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49 CFR 265
TITLE 49--TRANSPORTATION
CHAPTER II--FEDERAL RAILROAD ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION
PART 265--NONDISCRIMINATION IN FEDERALLY ASSISTED RAILROAD PROGRAMS
Subpart A--General
Sec.
265.1 Purpose.
265.3 Applicability.
265.5 Definitions.
Subpart B--Requirements
265.7 Nondiscrimination clauses.
265.9 Affirmative action program--General.
265.11 Submission of affirmative action program.
265.13 Contents of affirmative action program.
265.14 Determining the MBE status of a business.
265.14-1 Appeals of determination of MBE status.
265.15 Implementation and maintenance of affirmative action program.
265.17 Review of affirmative action program.
Subpart C--Compliance
265.19 Compliance information.
265.21 Conduct of investigations.
265.23 Procedures for effecting compliance.
265.25 Other information.
Appendix A to Part 265
Authority: Sec. 905 of the Railroad Revitalization and Regulatory
Reform Act of 1976, Pub. L. 94-210, 90 Stat. 31; regulations of the
Office of the Secretary of Transportation, 49 CFR 1.49(u).
Source: 42 FR 4286, Jan. 24, 1977, unless otherwise noted.
Subpart A--General
Sec. 265.1 Purpose.
The purpose of this part is to effectuate the provisions of section
905 of the Railroad Revitalization and Regulatory Reform Act of 1976
(hereinafter referred to as the ``Act'') to ensure that no person in the
United States shall on the grounds of race, color, national origin, or
sex be excluded from participation in, or denied the benefits of, or be
subjected to discrimination under, any project, program or activity
funded in whole or in part through financial assistance under the Act,
or any provision of law amended by the Act. Nothing contained in these
regulations is intended to diminish or supersede the obligations made
applicable by either title VI of the Civil Rights Act of 1964, (42
U.S.C. 2000d), or Executive Order No. 11246, (42 U.S.C. 2000e (note)).
Subsection (d) of section 905 of the Act authorizes the Secretary to
prescribe such regulations and take such actions as are necessary to
monitor, enforce, and affirmatively carry out the purposes of that
section. This authority coupled with the provisions of section 906 of
the Act, which requires the establishment of a Minority Resource Center
which is authorized to encourage, promote and assist in the
participation by MBE enterprises in the restructuring, improvement,
revitalization and maintenance of our Nation's railroads, provides the
basis for requirements for the development of affirmative action
programs by recipients of Federal financial assistance and certain of
their contractors to insure that minorities and MBEs are afforded ample
consideration with respect to employment and contractual opportunities
produced as a result of the implementation of the Act and other
provisions of law amended by the Act.
Sec. 265.3 Applicability.
This part applies to any project, program, or activity funded in
whole or in part through financial assistance provided under the Act,
and to any activity funded under any provision of the Regional Rail
Reorganization Act of 1973, as amended (45 U.S.C. 701 et seq.) or the
Rail Passenger Service Act, as amended (45 U.S.C. 501 et seq.) amended
by the Act including the financial assistance programs listed in
appendix A. It applies to contracts awarded to implement the Northeast
Corridor Project and to financial assistance programs administered by
the United States Railway Association.
Sec. 265.5 Definitions.
As used in this part, unless the context indicates otherwise:
(a) Act means the Railroad Revitalization and Regulatory Reform Act
of 1976 (Pub. L. No. 94-210).
(b) Administrator means the Federal Railroad Administrator or his
delegate.
(c) Affirmative action program means the program described in
Sec. 265.9 through Sec. 265.15 of this part.
[[Page 540]]
(d) Agency means the Federal Railroad Administration.
(e) Applicant means persons applying for financial assistance under
any of the Rail Acts.
(f) Contractor means a prime contractor or a subcontractor who will
be paid in whole or in part directly or indirectly from financial
assistance provided under the Rail Acts.
(g) [Reserved]
(h) Includes means includes but not limited to.
(i) Minority means women, Blacks, Hispanic Americans, American
Indians, American Eskimos, American Orientals and American Aleuts.
(j) MBE means a business concern which is owned and controlled by a
minority. For the purpose of this part, owned and controlled means a
business:
(1) Which is at least 51 per centum owned by one or more minority
individuals; or, in the case of a publicly owned business, at least 51
per centum of the stock of which is owned by one or more minority
individuals; and
(2) Whose management and daily operations are controlled by one or
more such individuals.
(k) MBE Resource Center means the Minority Resource Center
established in the Department of Transportation pursuant to section 906
of the Act.
(l) Rail Acts means the Railroad Revitalization and Regulatory
Reform Act of 1976, the Regional Rail Reorganization Act of 1973, as
amended (45 U.S.C. 701 et seq.) and the Rail Passenger Service Act, as
amended (45 U.S.C. 501 et seq.).
(m) Recipient means a person who receives financial assistance under
any of the Rail Acts except under section 602 of the Rail Passenger
Service Act, as amended (45 U.S.C. 501 et seq.).
(n) Underutilization means the condition of having fewer minority
employees in a particular job group or fewer awards of contracts to MBEs
than would reasonably be expected by their availability for such jobs or
awards.
[42 FR 4286, Jan. 24, 1977, as amended at 44 FR 36339, June 21, 1979]
Subpart B--Requirements
Sec. 265.7 Nondiscrimination clauses.
(a) Each agreement for financial assistance made under any provision
of the Rail Acts shall include, or in the case of agreements made prior
to the effective date of this part, shall be amended to include, the
following clauses:
(1) As a condition to receiving Federal financial assistance under
the Railroad Revitalization and Regulatory Reform Act of 1976 (``Act''),
or the provisions of the Regional Rail Reorganization Act of 1973, as
amended (45 U.S.C. 701 et seq.), or the Rail Passenger Service Act of
1970, as amended (45 U.S.C. 501 et seq.) amended by the Act
(collectively called, together with the Act, the ``Rail Acts''), the
recipient hereby agrees to observe and comply with the following:
(i) No person in the United States shall on the ground of race,
color, national origin or sex be excluded from participation in, or
denied the benefits of, or be subjected to discrimination under, any
project, program, or activity funded in whole or in part through such
assistance.
(2) The following specific discriminatory actions are prohibited:
(i) A recipient under any project, program or activity to which
these clauses apply shall not, directly or through contractual or other
arrangements, on the ground of race, color, national origin, or sex:
(A) Deny a person any service, financial aid, or other benefit
provided under such project, program or activity;
(B) Provide any service, financial aid, or other benefit to a person
which is different, or is provided in a different manner, from that
provided to others under such project, program or activity;
(C) Subject a person to segregation or separate treatment in any
matter related to his receipt of any service, financial aid or other
benefit under such project, program or activity;
(D) Restrict a person in any way in the enjoyment of any advantage
or privilege enjoyed by others receiving
[[Page 541]]
any service, financial aid or other benefit under such project, program
or activity; or
(E) Deny a person an opportunity to participate in such project,
program or activity through the provision of services or otherwise or
afford him an opportunity to do so which is different from that afforded
others under such project, program or activity.
(ii) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such project, program or activity or the class of persons to whom, or
the situations in which such services, financial aid, other benefits, or
facilities will be provided under any such project, program or activity,
or the class of persons to be afforded an opportunity to participate in
any such project, program or activity shall not, directly or through
contractual or other arrangements, utilize criteria or methods of
administration which have the effect of subjecting persons to
discrimination because of their race, color, national origin, or sex, or
have the effect of defeating or substantially impairing accomplishment
of the objectives of the project, program or activity, with respect to
individuals of a particular race, color, national origin or sex.
(iii) In determining the site or location of facilities, a recipient
shall not make selections with the purpose or effect of excluding
persons from, de- nying them the benefits of, or subjecting them to
discrimination under any project, program or activity to which these
clauses apply on the grounds of race, color, national origin or sex, or
with the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of these clauses.
(iv) The recipient shall not discriminate against any employee or
applicant for employment because of race, color, national origin or sex.
Except as otherwise required by the regulations or orders of the
Administrator, the recipient shall take affirmative action to insure
that applicants for employment are employed, and that employees are
treated during employment, without regard to their race, color, national
origin or sex. Such action shall include but not be limited to the
following: Employment, promotion, demotion, transfer, recruitment or
recruitment advertising, layoff or termination, rates of pay or other
forms of compensation, and selection for training, including
apprenticeship. The recipient agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be
provided by the agency's representative setting forth the provisions of
these nondiscrimination clauses. The recipient understands and agrees
that it shall not be an excuse for the recipient's failure to provide
affirmative action that the labor organizations with which the recipient
has a collective bargaining agreement failed or refused to admit or
qualify minorities for admission to the union, or that the provisions of
such agreements otherwise prevent recipient from implementing its
affirmative action program.
(v) The recipient shall not discriminate against any business
organization in the award of any contract because of race, color,
national origin or sex of its employees, managers or owners. Except as
otherwise required by the regulations or orders of the Administrator,
the recipient shall take affirmative action to insure that business
organizations are permitted to compete and are considered for awards of
contracts without regard to race, color, national origin or sex.
(3) As used in these clauses, the services, financial aid, or other
benefits provided under a project, program, or activity receiving
financial assistance under the Rail Acts include any service, financial
aid, or other benefit provided in or through a facility funded through
financial assistance provided under the Rail Acts.
(4) The enumeration of specific forms of prohibited discrimination
does not limit the generality of the prohibition in paragraph (a)(1)(i)
of this section.
(5) These clauses do not prohibit the consideration of race, color,
national origin or sex if the purpose and effect are to remove or
overcome the consequences of practices or impediments which have
restricted the availability of, or participation in, recipient's
operations or activities on the grounds of race, color, national origin
or sex.
[[Page 542]]
Where prior discriminatory or other practice or usage tends, on the
grounds of race, color, national origin or sex, to exclude individuals
or businesses from participation in, to deny them the benefits of, or to
subject them to discrimination under any project, program or activity to
which these clauses apply, the recipient must take affirmative action to
remove or overcome the effects of the prior discriminatory practice or
usage. Even in the absence of prior discriminatory practice or usage to
which this part applies, the recipient is expected to take affirmative
action to insure that no person is excluded from participation in or
denied the benefits of the project, program or activity on the grounds
of race, color, national origin or sex, and that minorities and MBEs are
afforded a reasonable opportunity to participate in employment and
procurement opportunities that will result from financial assistance
provided under the Rail Acts.
(6) The recipient agrees to take such actions as are necessary to
monitor its activities and those of its contractors who will be paid in
whole or in part with funds provided by the Rail Acts, or from
obligations guaranteed by the Administrator pursuant to the Rail Acts,
except obligations guaranteed under section 602 of the Rail Passenger
Service Act, in order to carry out affirmatively the purposes of
paragraph (a)(1) of this section, and to implement the affirmative
action program developed and implemented pursuant to 49 CFR part 265.
(7) The recipient shall, in all advertisements for employees, or
solicitations for services or materials from business organizations
placed by or on behalf of the recipient, in connection with any project,
program or activity funded in whole or in part with financial assistance
under the Rail Acts, state that all applicants for employment will
receive consideration for employment, and all business organizations
will receive consideration for an award of a contract, without regard to
race, color, national origin or sex.
(8) The recipient shall send to each labor organization or
representative of workers with which it has a collective bargaining
agreement or other contract or understanding a notice to be provided by
the agency's representative, advising the labor organization or workers'
representative of the recipient's commitments under section 905 of the
Act, and shall post copies of the notice in conspicuous places available
to employees and applicants for employment.
(9) The recipient shall comply with all provisions of section 905 of
the Act, the Civil Rights Act of 1964, any other Federal civil rights
act, and with the rules, regulations, and orders issued under such acts.
(10) The recipient shall furnish all information and reports
required by the rules, regulations, and orders of the Administrator, and
will permit access to its books, records, and accounts by the
Administrator for purposes of investigation to ascertain compliance with
rules, regulations, and orders referred to in paragraph (a)(9) of this
section.
(11) Recipient shall furnish such relevant procurement information,
not included in its affirmative action program as may be requested by
the MBE Resource Center. Upon the request of the recipient, the Center
shall keep such information confidential to the extent necessary to
protect commercial or financial information or trade secrets to the
extent permitted by law.
(12) In the event of the recipient's noncompliance with the
nondiscrimination clauses of this agreement, or with the provisions of
section 905 of the Act, the Civil Rights Act of 1964, or with any other
Federal civil rights act, or with any rules, regulations, or orders
issued under such acts, this contract will, after notice of such
noncompliance, and after affording a reasonable opportunity for
compliance, be canceled, terminated, or suspended in whole or in part
and the recipient may be declared ineligible for further Federal
financial assistance in accordance with procedures authorized in section
905 of the Act, or as otherwise provided by law.
(13) The recipient shall not enter into any contract or contract
modification whether for the furnishing of supplies or services or for
the use of real or personal property, including lease arrangements, or
for construction, in connection with a project, program or
[[Page 543]]
activity which receives financial assistance under the Rail Acts with a
contractor debarred from or who has not demonstrated eligibility for
Federal or federally assisted contracts, and will carry out such
sanctions and penalties for violation of this part as may be imposed
upon contractors and subcontractors by the Administrator or any other
authorized Federal official. The recipient shall insure that the clauses
required by 41 CFR 60-1.46 implementing Executive Order 11246 will be
placed in each non-exempt federally assisted construction contract.
(14) The recipient agrees to comply with and implement the written
affirmative action program as approved by the Administrator pursuant to
Sec. 265.17 of title 49 CFR.
(15) The recipient agrees to notify the Administrator promptly of
any law suit or complaint filed against the recipient alleging
discrimination on the basis of race, color, national origin or sex.
(16) The recipient shall include the preceding provisions of
paragraphs (a) (1) through (15) of this section in every contract or
purchase order, whether for the furnishing of supplies or services or
for the use of real or personal property, including lease arrangements,
or for construction relating to projects, programs or activities
financed in whole or in part under the Rail Acts. The recipient shall
cause each such contractor or vendor to include the provisions of
paragraphs (a) (1) through (15) of this section in every subcontract.
The recipient will take such action with respect to any such contract or
purchase order as the Administrator may direct as a means of enforcing
such provisions including sanctions for noncompliance; provided,
however, that in the event the recipient becomes involved in, or is
threatened with, litigation with a contractor or vendor as a result of
such direction by the Administrator, the recipient may request the
United States to enter into such litigation.
Sec. 265.9 Affirmative action program--General.
Recipients of financial assistance under the Rail Acts and their
contractors, as specified herein, shall develop and maintain an
affirmative action program to insure that persons and businesses are not
discriminated against because of race, color, national origin or sex in
programs, projects and activities financed in whole or in part through
financial assistance provided under the Rail Acts, and that minorities
and MBEs receive a fair proportion of employment and contractual
opportunities which will result from such programs, projects and
activities.
Sec. 265.11 Submission of affirmative action program.
(a) Each application for financial assistance under any of the Rail
Acts shall, as a condition to its approval and the extension of any
financial assistance pursuant to the application, contain or be
accompanied by two copies of a written affirmative action program for
review by and approval of the Administrator. Recipients that have
already entered into an agreement or other arrangement providing for
such assistance shall, within 60 days after the effective date of this
part, develop and submit to the Administrator two copies of a written
affirmative action program for review by and approval of the
Administrator and thereafter maintain such program.
(b)(1) Beginning 30 days after the effective date of this part, and
until 120 days after such date, each recipient shall require any
contractor, as a condition to an award of a contract, for $50,000 or
more for services or products on a project receiving federal financial
assistance under a program covered by section 905 of the Act:
(i) To furnish to the recipient a written assurance that it will,
within 90 days after the date of the award, develop and maintain a
written affirmative action program meeting the requirements of this part
for the project, program or activity covered by the contract,
(ii) To require each of its subcontractors receiving an award of a
subcontract for $50,000 or more within 120 days after the effective date
of this part, to furnish to the contractor as a condition to such an
award the written assurance described in paragraph (b)(1)(i) of this
section.
(2) Beginning 120 days after the effective date of this part, each
recipient
[[Page 544]]
shall require as a condition to the award of a contract or subcontract
of $50,000 or more that the contractor or subcontractor furnish a
certificate to the recipient or contractor as appropriate that a written
affirmative action program meeting the requirements of this part has
been developed and is being maintained.
(3) Notwithstanding paragraphs (b) (1) and (2) of this section, each
contractor or subcontractor having a contract or $50,000 or more but
less than 50 employees shall be required to develop and maintain a
written affirmative action program only for contracts in accordance with
Sec. 265.13(c) of this part.
(4) A recipient or contractor shall not procure supplies or services
in less than usual quantities or in a manner which is intended to have
the effect of avoiding the applicability of this paragraph.
Sec. 265.13 Contents of affirmative action program.
(a) General. A prerequisite to the development of a satisfactory
affirmative action program is the identification and analysis of problem
areas inherent in minority employment and utilization of MBEs, and an
evaluation of opportunities for utilization of minority group personnel
and MBEs. Therefore, an affirmative action program to guarantee
employment and contractual opportunities shall provide for specific
actions keyed to the problems and needs of minority persons and MBEs
including, where there are deficiencies based on past practices, and
with respect to future plans for hiring and promoting employees or
awarding contracts, the development of specific goals and timetables for
the prompt achievement and maintenance of full opportunities for
minority persons and MBEs with respect to programs, projects and
activities subject to this part.
(b) Employment practices. (1) The affirmative action program for
employment showing the level of utilization of minority employees, and
establishing a plan to insure representative opportunities for
employment for minority persons shall be developed in accordance with
the regulations of the Department of Labor at 41 CFR 60-2.
(2) Railroad applicants or recipients shall develop their program
for each establishment in their organization and by job categories in
accordance with the requirements of the Joint Reporting Committee of the
Equal Employment Opportunity Commission and the Department of Labor.
Other applicants, recipients or contractors may use any program format
or organization which has been approved for use by other Federal
agencies enforcing equal opportunity laws.
(3) The affirmative action program shall show the source of
statistical data used.
(4) The affirmative action program shall include a listing by job
category of all jobs which may be established or filled by the
applicant, recipient or contractor as a result of the project, program
or activity funded by federal financial assistance under the Rail Acts
for the first five years of such project, program or activity or the
period during which such project, program or activity will be
undertaken, whichever is the lesser (``program period'').
(5) The affirmative action program shall set forth in detail a plan
to insure that with respect to the project, program or activity financed
in whole or in part through financial assistance under the Rail Acts,
minority persons have an opportunity to participate in employment in
proportion to the percentage of the minority work force in the area
where the applicant's, recipient's or contractor's operations are
located as compared to the total work force, and that such minority
persons have an equal opportunity for promotion or upgrading. Where
appropriate because of prior underutilization of minority employees, the
program shall establish specific goals and timetables to utilize
minority employees in such projects, programs or activities in the
above-mentioned proportion.
(c) Contracts. (1) The affirmative action program shall include
details of proposed contracts in excess of $10,000 to be awarded in
connection with projects, programs and activities funded in whole or in
part through financial
[[Page 545]]
assistance under the Rail Acts, including contracts for professional and
financial services, for the program period. The details shall include a
description of the services or products which will be sought including
estimated quantities, the location where the services are to be
provided, the manner in which proposals will be solicited (e.g., cost
plus fixed fee, fixed price), the manner in which contracts will be
awarded (e.g., competitive or sole source). The plan shall also give
details as to bidding procedures, and information as to other
qualifications for doing business with the applicant, recipient or
contractor. Upon request by the applicant, recipient or contractor, any
information submitted to the Administrator shall be kept confidential to
the extent permitted by law.
(2) The affirmative action program shall review the procurement
practices of the applicant, recipient or contractor for the full year
preceding the date of the submission of the affirmative action program
and evaluate the utilization of MBE in its procurement activities. Such
evaluation of utilization of MBEs shall include the following:
(i) An analysis of awards of contracts to MBEs during such year
describing the nature of goods and services purchased and the dollar
amount involved; and
(ii) A comparison of the percentage of awards of contracts to MBEs
(by number of contracts and by total dollar amount involved) to the
total procurement activity of the applicant, recipient or contractor for
said year.
(3) The affirmative action program shall set forth in detail
applicant's, recipient's or contractor's plan to insure that MBEs are
afforded a fair and representative opportunity to do business with
applicant, recipient or contractor (both in terms of number of contracts
and dollar amount involved) for the program period. Such plan shall
identify specific actions to be taken to:
(i) Designate a liaison officer who will administer the MBE program;
(ii) Provide for adequate and timely consideration of the
availability and potential of MBEs in all procurement decisions;
(iii) Assure that MBEs will have an equitable opportunity to compete
for contracts, by arranging solicitation time for the preparation of
bids, quantities, specifications, and delivery schedules so as to
facilitate the participation of MBEs and by assisting MBEs who are
potential contractors in preparing bid materials and in obtaining and
maintaining suitable bonding coverage in those instances where bonds are
required;
(iv) Maintain records showing that the policies set forth in this
part are being complied with;
(v) Submit quarterly reports of the records referred to in paragraph
(c)(3)(iv) of this section in such form and manner as the Administrator
may prescribe; and
(vi) Where appropriate because of prior underutilization of MBEs,
establish specific goals and timetables to utilize MBEs in the
performance of contracts awarded.
(d) Successor organizations. Where applicant, recipient or
contractor is a successor organization, its affirmative action program
shall review the hiring and procurement practices of its predecessor
organization or organizations.
Sec. 265.14 Determining the MBE status of a business.
FRA or a recipient may, on the basis of available information,
determine that a business is not an MBE within the meaning of this part.
This determination shall be final, except as provided in Sec. 265.14-1,
for that contract and other contracts being let by that contracting
agency at the time of the determination. Businesses may correct
deficiencies in their ownership and control and apply as MBEs only for
future contracts.
[44 FR 36339, June 21, 1979]
Sec. 265.14-1 Appeals of determination of MBE status.
(a) Filing. Any firm who believes that it has been wrongly
determined not to be an MBE under Sec. 265.14 by the FRA or a recipient
may file an appeal in writing with the Administrator. The appeal shall
be filed no later than 30 days after the date of the determination. The
Administrator may extend the time for filing or waive the time limit in
the interest of justice, specifying in writing the reasons for so doing.
Third
[[Page 546]]
parties who have reason to believe that a business has been wrongly
denied or granted status as an MBE may advise the Administrator. This
information is not considered an appeal pursuant to this section.
(b) Decision to investigate. The Administrator ensures that a prompt
investigation is made of those cases with investigative merit (except
those being reviewed on the merits by the Comptroller General), pursuant
to prescribed DOT Title VI (49 CFR part 21) investigation procedures.
(c) Status during the investigation. The Administrator may deny the
business in question eligibility to participate as an MBE in direct or
FRA-assisted contracts let during the pendancy of the investigation,
after providing the business in question an opportunity to show cause by
written statement to the Administrator why this should not occur.
(d) Cooperation in investigation. All parties shall cooperate fully
with the investigation. Failure or refusal to furnish relevant
information or other failure to cooperate is a violation of this part.
(e) Determinations. The Administrator will make one of the following
determinations and so inform the business in writing of the reasons for
the determination:
(1) The business is considered to be an MBE within the meaning of
this part; or
(2) The business is not considered to be an MBE within the meaning
of this part and is denied eligibility to participate as an MBE in any
direct or FRA-assisted contract until a further determination is made by
FRA that the business is an MBE within the meaning of this part.
[44 FR 36339, June 21, 1979]
Sec. 265.15 Implementation and maintenance of affirmative action
program.
The affirmative action program with respect to employment and
procurement practices shall set forth in detail applicant's recipient's
or contractor's program to implement and maintain its recommended action
program to insure that persons and businesses are not discriminated
against because of race, color, national origin or sex, and that
minorities and MBEs have equal employment and contractual opportunities
with applicant, recipient or contractor. In developing its maintenance
program for employment, applicants, recipients and contractors shall
follow the applicable regulations of the Department of Labor
implementing Executive Order 11246 at 41 CFR 60-2, subpart C, which
provisions may also be helpful in implementing and maintaining
applicant's recipient's or contractor's procurement program.
Sec. 265.17 Review of affirmative action program.
(a) Except as provided for contractors and subcontractors in
Sec. 265.11(b), each affirmative action program to be acceptable must
have the written approval of the Administrator.
(b) The Administrator recognizes that there may be some exceptional
situations where the requirements of Sec. 265.13 through Sec. 265.15 may
not fulfill the affirmative action objectives sought or that those
objectives may be better achieved through modified or different
requirements. Accordingly, the applicant, recipient or contractor may
request approval for modified or different requirements that embody the
objectives of Secs. 265.13 through 265.15. Such a request must include
detailed showings that the particular situation is exceptional and that
the modified or different proposals substantially comply with the
objectives of this part. If the Administrator determines that the
requirements for a detailed justification have been met, he may waive or
modify these requirements or impose different requirements as he deems
necessary to further the objectives sought herein.
Subpart C--Compliance
Sec. 265.19 Compliance information.
(a) Each recipient and contractor shall keep such records and submit
to the Administrator complete and accurate reports, at such times, and
in such form, and containing such information as the Administrator may
determine to be necessary to enable him to ascertain whether the
recipient or contractor has complied or is complying with this
[[Page 547]]
part. These records shall show in connection with the project, program
or activity funded in whole or in part through financial assistance
under the Rail Acts:
(1) Procedures which have been adopted to comply with the policies
set forth in this part, including the establishment of a source list of
MBEs;
(2) Specific efforts to identify and award contracts to MBEs; and
(3) Awards to MBEs on the source list required in paragraph (a)(1)
of this section.
(b) Each recipient and contractor shall permit access by the
Administrator during normal business hours to such of its books,
records, accounts and other sources of information and its facilities as
may in the opinion of the Administrator be necessary to ascertain
compliance with this part.
(c) Each recipient and contractor shall make available to
participants, beneficiaries and other interested persons, such
information regarding the provisions of this part and the applicability
to the program, project or activity under which the recipient received
financial assistance from the Rail Acts or under which the contractor is
awarded a contract and make such information available to them in such
manner as the Administrator finds necessary to apprise such persons of
the protections against discrimination assured them by the Act and this
part.
Sec. 265.21 Conduct of investigations.
(a) The Administrator shall from time to time review the practices
of recipients and contractors to determine whether they are complying
with this part. The Administrator shall to the fullest extent
practicable seek the cooperation of recipients and contractors in
obtaining compliance with this part and shall provide assistance and
guidance to recipients and contractors to help them comply voluntarily
with this part. As required by Sec. 265.7(a)(6) of this part recipients
and contractors shall from time to time review the practices of their
contractors and subcontractors to determine whether they are complying
with this part.
(b) Any person who believes himself or herself or any other person
to be subjected to discrimination prohibited by this part, may file with
the Administrator a written complaint. A complaint must be filed not
later than sixty (60) days after the date complainant discovers the
alleged discrimination, unless the time for filing is extended by the
Administrator.
(c) The Administrator will make a prompt investigation in cases
where a compliance review, report, complaint or other information
indicates a possible failure to comply with this part.
(d)(1) If an investigation pursuant to paragraph (c) of this section
indicates a failure to comply with this part, the Administrator shall
within ten (10) days after such determination so inform the recipient or
contractor in writing of the specific grounds for alleging noncompliance
and the matter shall be resolved by informal means whenever possible.
The notice shall provide that, if it has been determined that the matter
is not resolved by informal means within thirty (30) days after the
delivery of the notice, action will be taken as provided for in
Sec. 265.23.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section, the Administrator shall within ten
(10) days after such determination so inform the recipient, or
contractor and the complainant, if any, in writing.
(e) No recipient, contractor or other person shall intimidate,
threaten, coerce or discriminate against any individual for the purpose
of interfering with any right or privilege secured by section 905 of the
Act or this part, or because he or she made a complaint, testified,
assisted or participated in any manner in an investigation, proceeding
or hearing under this part. The identity of complainants shall be kept
confidential at their election during the conduct of any investigation,
proceeding or hearing under this part. But when such confidentiality is
likely to hinder the investigation the complainant will be advised for
the purpose of waiving the privilege.
Sec. 265.23 Procedures for effecting compliance.
(a) Whenever the Administrator determines that any recipient, or
contractor has failed to comply with the provisions of this part, or
with any
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Federal civil rights statute, or with any order or regulation issued
under such a statute, and such failure has not been resolved by informal
means pursuant to Sec. 265.21 of this part, the Administrator shall
within ten (10) days after such determination notify such recipient or
contractor, and the appropriate labor organization if the matter may
appear to affect a person who is covered by a collective bargaining
agreement, in writing of the specific grounds for alleging
noncompliance, and the right of such persons to respond to such
determination in writing or to request an informal hearing. Where the
Administrator determines that substantial noncompliance exists and it is
unlikely that compliance will be obtained, or that lack of good faith
exists, or that other good cause exists, he may order that further
financial assistance be suspended in whole or in part pending a final
decision in the matter. Subject to the provisions of paragraphs (b)
through (e) of this section, the recipient or contractor shall have
sixty (60) days from the date of delivery of the notice within which to
comply. The recipient or contractor may be entitled to additional time
if it is demonstrated that compliance is not possible within the sixty
day period and that the necessary initial curative actions were
undertaken promptly and have been diligently prosecuted toward
completion. The Administrator shall specify the last day upon which
curative action must be completed to his satisfaction. Unless the
Administrator determines that compliance cannot be reasonably attained,
failure to take curative action shall be grounds for the Administrator
to:
(1) Direct that no further Federal financial assistance be provided
to the recipient;
(2) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted;
(3) Exercise the powers and functions provided by title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.); or
(4) Take such other actions as may be provided by law or this part.
(b) Persons receiving notification and a directive pursuant to
paragraph (a) of this section may within thirty (30) days after receipt
respond to the notice in writing in lieu of requesting an informal
hearing as specified in paragraph (c) of this section. The Administrator
will make a determination as to compliance within thirty (30) days after
receipt of such written response, and advise the person in writing of
his determination. If the Administrator determines that compliance is
reasonably attainable and that such person has failed to comply with the
provisions of this part or with his determination within 30 days after
receipt of his determination, the Administrator shall pursue the
remedies set forth in the last sentence of paragraph (a) of this
section.
(c) Persons receiving notification and a directive pursuant to
paragraph (a) of this section may within ten (10) days after receipt
request an informal hearing in lieu of filing a written response as
specified in paragraph (b) of this section. The Administrator may, in
his discretion, grant a request for an informal hearing for the purpose
of inquiring into the status of compliance of such person. The
Administrator will advise persons subject to his directive in writing as
to the time and place of the informal hearings and may direct such
persons to bring specific documents and records, or furnish other
relevant information concerning their compliance status. When so
requested, such person shall attend and bring the requested information.
The time and place so fixed shall be reasonable and shall be subject to
change for cause. The complainant, if any, shall be advised of the time
and place of the hearing. The failure of such person to request a
hearing or to appear at a hearing for which a date has been set shall be
deemed to be a consent to the applicability of the procedures set forth
in paragraph (a) of this section.
(d) The hearing shall be conducted by a hearing officer appointed by
the Administrator. Such hearings shall commence within twenty (20) days
from the date the hearing is granted and shall be concluded no later
than thirty (30) days from the commencement date. Parties to informal
hearings may be represented by counsel or other authorized
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representative and shall have a fair opportunity to present any relevant
material. Formal rules of evidence will not apply to such proceedings.
(e) Decisions and notices. (1) Within ten (10) days after the
conclusion of such hearings, the hearing officer will advise the
Administrator, in writing, of his views and recommendations as to
compliance with this part and a copy of such decision shall be sent by
registered mail, return receipt requested, to the recipient or
contractor and participating labor organization. If the hearing officer
in his decision determines that the recipient or contractor is in
noncompliance with this part, he may, if he determines that it is
unlikely that compliance will be obtained, or that a lack of good faith
exists, or for other good cause, order that further financial assistance
be suspended in whole or in part, pending a decision by the
Administrator in the matter.
(2) The recipient, contractor or labor organization may file
exceptions to the hearing officer's decision, with his reasons therefor,
with the Administrator within thirty (30) days of receipt of the initial
decision. Within twenty (20) days, after the time for filing exceptions,
the Administrator shall determine, in writing, whether or not the
parties involved are in compliance with this part. A copy of the
Administrator's decision will be given to the recipient, contractor,
labor organization, if appropriate, and to the complainant, if any.
(3) If the Administrator determines that compliance can reasonably
be attained, his decision shall provide that if such person fails or
refuses to comply with the decision of the Administrator within thirty
(30) days after receipt of the decision, the Administrator shall:
(i) Direct that no further Federal assistance be provided to such a
person;
(ii) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted;
(iii) Exercise the powers and functions provided by title VI of the
Civil Rights Act of 1964; and/or
(iv) Take such other actions as may be provided by law or this part.
(4) A recipient or contractor adversely affected by a decision of
the Administrator issued under paragraph (a) or (b) of this section
shall be restored to full eligibility to receive Federal assistance or
award of a federally assisted contract if the recipient or contractor
takes complete curative action to eliminate the noncompliance with this
part and if the recipient or contractor provides reasonable assurance
that the recipient or contractor will fully comply with this part.
Sec. 265.25 Other information.
(a) Each person required to submit a written affirmative action
program pursuant to this part shall include as an appendix thereto, the
following information except to the extent such information is already
provided as part of the application for financial assistance;
(1) A brief description of other pending applications to other
federal agencies for financial assistance, and of federal assistance
being provided at the time of submission of the affirmative action
program;
(2) A statement of any civil rights compliance reviews regarding
applicant or recipient conducted in the two year period before the
application, or affirmative action program; the name of the agency or
organization performing the review, and the findings of the review;
(3) Where the project, program or activity receiving financial
assistance will require the relocation of persons and businesses, a
description of the requirements and steps used or proposed to guard
against unnecessary impact on persons on the basis of race, color, or
national origin;
(4) Where the project, program or activity receiving financial
assistance will result in the construction of new facilities or
expansion of existing facilities, a description of the requirements and
steps used or proposed to guard against unnecessary impact on persons on
the basis of race, color or national origin;
(5) Where paragraphs (a) (3) and (4) of this section are applicable,
additional data such as demographic maps, racial composition of affected
neighborhoods, or census data should be provided
[[Page 550]]
where necessary or appropriate to evaluate the impact of projects,
programs and activities referred to in paragraphs (a) (3) and (4) of
this section.
Appendix A to Part 265
The following are the financial assistance programs to which this
part applies:
(a) Railroad Revitalization and Regulatory Reform Act of 1976, (1)
purchase of redeemable preference shares or trustee certificates
pursuant to section 505;
(2) Guarantee of obligations, the proceeds of which will be used to
acquire, or rehabilitate or improve rail facilities, or equipment,
pursuant to section 511; and
(3) Grants and contracts made to implement the Northeast Corridor
project under section 704.
(b) Regional Rail Reorganization Act of 1973, as amended, (1) loans
made by the United States Railway Association (USRA) pursuant to section
211;
(2) Purchase of securities of the Consolidated Rail Corporation
pursuant to section 216; and
(3) Grants to States, or local or regional authorities for rail
continuation assistance under section 402.
(c) Department of Transportation Act, (1) grants to States for rail
freight assistance programs under section 5 (sec. 803 of the Railroad
Revitalization and Regulatory Reform Act of 1976); and
(2) Grants under section 4(i) for the planning, preservation and
conversion of rail passenger terminals of historical or architectural
significance.
(d) Rail Passenger Service Act, (1) grants to Amtrak under section
601.
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