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43 CFR 27.1
TITLE 43--PUBLIC LANDS: INTERIOR
PART 27--NONDISCRIMINATION IN ACTIVITIES CONDUCTED
UNDER PERMITS, RIGHTS-OF-WAY, PUBLIC LAND ORDERS,
AND OTHER FEDERAL AUTHORIZATIONS GRANTED OR ISSUED
UNDER TITLE II OF PUBLIC LAW 93-153
Sec.
27.1 Purpose.
27.2 Application.
27.3 Discrimination prohibited.
27.4 Assurances.
27.5 Equal opportunity terms.
27.6 Equal opportunity implementation.
27.7 Compliance information.
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27.8 Compliance procedures.
27.9 Procedures for effecting compliance.
27.10 Hearings.
27.11 Decisions and notices.
27.12 Judicial review.
27.13 Effect on other regulations; forms and instructions.
27.14 Definitions.
Authority: Sec. 403, 87 Stat. 576 (1973)
Source: 39 FR 34285, Sept. 24, 1974, unless otherwise noted.
Sec. 27.1 Purpose.
The purpose of this part is to effectuate section 403 of Public Law
93-153 (87 Stat. 576) to the end that no person shall on the grounds of
race, creed, color, national origin, or sex, be excluded from receiving,
or participating in any activity conducted under, any permit, right-of-
way, public land order, or other Federal authorization granted or issued
under title II of Public Law 93-153, 87 Stat. 584, the Trans-Alaska
Pipeline Authorization Act.
Sec. 27.2 Application.
This part applies to all activities, including contracting,
employment, services, financial aids, and other benefits, conducted
under permits, rights-of-way, public land orders, and other Federal
authorizations granted or issued under title II of the Act by recipients
of those authorizations, their agents, contractors, and subcontractors
at each of their facilities conducting such activities.
Sec. 27.3 Discrimination prohibited.
(a) General. No person shall on the grounds of race, creed, color,
national origin, or sex, be excluded from receiving or participating in
any activity conducted under, any permit, right-of-way, public land
order, or other Federal authorization to which this part applies.
(b) Specific discriminatory actions prohibited. No recipient of any
permit, right-of-way, public land order, or other Federal authorization
to which this part applies, or its contractors, or subcontractors to
which this part applies may directly or through contractual or other
arrangements, on the grounds of race, creed, color, national origin, or
sex, discriminate in offering or providing employment, contracting,
services, financial aids, or other benefits as follows:
(1) Employment practices. No recipient, contractor, or subcontractor
to which this part applies may, directly or through contractual or other
arrangements, subject an individual to discrimination on the grounds of
race, creed, color, national origin, or sex in its employment practices,
including recruitment advertising, hiring, firing, up-grading,
promotion, demotion, or transfer, layoff, or terminations, rates of pay
or other forms of compensation, or benefits, selection for training, or
apprenticeship, use of facilities, treatment of employees or any other
employment practice.
(2) Contracting practices. No recipient, contractor, or
subcontractor to which this part applies may discriminate on the grounds
of race, creed, color, national origin, or sex in its contracting
practices, including but not limited to, determining qualification for
placement on bidder lists, composition of bidder lists, pre-bid
conferences, solicitation for bids, designation of quantities, or other
specifications, delivery schedules, contract award and performance, or
any other contracting practice.
(3) Services, financial aids and other benefits. No recipient,
contractor, or subcontractor to which this part applies may, directly or
through contractual or other arrangements, on the grounds of race,
creed, color, national origin, or sex, discriminate in offering or
providing services, financial aids, or other benefits as follows:
(i) Deny an individual any service, financial aid, or other benefit
provided, in whole or in part, because of any Federal authorization to
which this part applies;
(ii) Provide any service, financial aid, or other benefit to an
individual which is different, or is provided in a different manner,
from that provided to others;
(iii) Subject an individual to segregation or separate treatment in
any matter related to his receipt of any service, financial aid, or
other benefit provided, in whole or in part, because of any Federal
authorization to which this part applies;
(iv) Restrict an individual in any way in the enjoyment of any
advantage or
[[Page 449]]
privilege enjoyed by others receiving any service, financial aid, or
other benefit provided, in whole or in part, because of any Federal
authorization to which this part applies;
(v) Treat an individual differently from others in determining
whether he satisfies any admission, enrollment, eligibility, membership
or other requirement or condition which individuals must meet in order
to be provided any service, financial aid, or other benefit offered, in
whole or in part, because of any Federal authorization to which this
part applies;
(vi) Deny an individual an opportunity to participate in any
activity made possible, in whole or in part, because of any Federal
authorization to which this part applies, through the provision of
services or otherwise, or afford him an opportunity to do so which is
different from that afforded others;
(vii) Deny an individual the opportunity to participate as a member
of a planning or advisory body participating in the provision of any
service, financial aid, or other benefit which is integrally associated
with any Federal authorization to which this part applies;
(4) Determining and administering services, financial aids and other
benefits. In determining the types of services, financial aids or other
benefits, or facilities which will be provided because of any Federal
authorization to which this part applies, or the class of individuals or
establishments to whom, or the situations in which, such services,
financial aids, other benefits or facilities will be provided, or the
class of individuals or establishments to be afforded an opportunity to
participate in any activity made possible, in whole or in part, because
of any Federal authorization to which this part applies, a recipient,
contractor, or subcontractor to which this part applies, may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting
individuals or establishments to discrimination because of their race,
creed, color, national origin, or sex.
(5) Site or location of facilities. In determining the site or
location of facilities, for the provision of services, financial aids,
or other benefits, a recipient, contractor or subcontractor to which
this part applies, may not make selections with the purpose or effect of
excluding individuals or establishments from, denying them the benefits
of, or subjecting them to discrimination on the grounds of race, creed,
color, national origin, or sex, or with the purpose or effect of
defeating or substantially impairing the accomplishment of the
objectives of section 403 of Public Law 93-153 and implementing rules,
regulations, and orders.
(6) References to services, financial aides or other benefits.
References to services, financial aids or other benefits shall be deemed
to include all services, financial aids, or other benefits provided in
or through facilities, programs, or operations made possible, in whole
or in part, because of any Federal authorizations to which this part
applies.
(7) Scope of prohibited discrimination. The enumeration of specific
forms of prohibited discrimination in this paragraph (b) does not limit
the generality of the prohibitions in paragraph (a) of this section.
Sec. 27.4 Assurances.
Every application for a permit, right-of-way, public land order, or
other Federal authorization to which this part applies, filed after the
effective date of these regulations, and every contract covered
hereunder to provide goods, services or facilities in the amount of
$10,000 or more to the recipient of any Federal authorization to which
this part applies, must contain an assurance that the recipient,
contractor, or subcontractor does not and will not maintain any
facilities in a segregated manner, and that all requirements imposed by
or pursuant to section 403 of PubLic Law 93-153 shall be met, and that
it will require a similar assurance in every subcontract over $10,000.
The assurances shall be in a form specified by the Department Compliance
Officer.
Sec. 27.5 Equal opportunity terms.
Each permit, right-of-way, public land order, or other Federal
authorization to which this part applies, shall include by reference or
incorporation
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by operation of law the terms, conditions, obligations, and
responsibilities of this section, as follows:
(a) The recipient hereby agrees that it will not, directly or
through contractual or other arrangements, on the grounds of race,
creed, color, national origin, or sex, discriminate against any
individual or establishment in offering or providing contracts,
employment, services, financial aids, or other benefits. Recipient will
take affirmative action to utilize minority business enterprises in the
performance of contracts awarded by recipient, to assure that applicants
for employment are employed and that employees are treated during
employment, and that individuals are offered and provided services,
financial aids, and other benefits without regard to their race, creed,
color, national origin, or sex. Recipient agrees to post in conspicuous
places available to contractors, employees, and other interested
individuals, notices which set forth these equal opportunity terms and
to notify interested individuals, such as bidders, purchasers, and labor
unions or representatives of workers with whom it has collective
bargaining agreements of recipient's obligations under section 403 of
Public Law 93-153.
(b) The recipient will comply with all rules, regulations, and
orders of the Department of the Interior which implement section 403 of
Public Law 93-153.
(c) The recipient will furnish all information and reports required
by or pursuant to rules, regulations, and orders implementing section
403 of Public Law 93-153 and permit access to its books, records, and
accounts by the Secretary of the Interior, the Department Compliance
Officer, or other designee of the Secretary, for purposes of
investigation to ascertain compliance with rules, regulations, and
orders of the Department of the Interior which implement section 403 of
Public Law 93-153.
(d) The recipient recognizes and agrees that its obligation for
compliance with section 403 of Public Law 93-153 and implementing rules,
regulations, and orders extends not only to direct activities, but also
to require that contractors, subcontractors, suppliers, and lessees,
comply with section 403 and implementing rules, regulations and orders.
To that end the recipient agrees that with regard to all contracts over
$10,000 and all contracts of indefinite quantity (unless there is reason
to believe that the amount to be ordered in any year under the contract
will not exceed $10,000) to:
(1) Obtain as part of its contractual arrangements with such
parties, as a minimum form of assurance an agreement in writing, that:
(i) The contractor hereby agrees that it will not, directly or
through contractual or other arrangements, on the grounds of race,
creed, color, national origin, or sex, discriminate against any
individual or establishment in offering or providing contracts,
employment, services, financial aids, or other benefits. Contractor will
take affirmative action to utilize minority business enterprises in the
performance of subcontracts which is awards, and to assure that
applicants are employed and that employees are treated during
employment, and that individuals are offered and provided services,
financial aids, and other benefits without regard to their race, creed,
color, national origin, or sex. Contractor agrees to post in conspicuous
places available to contractors, employees, and other interested
individuals notices which set forth these equal opportunity terms and to
notify interested individuals, such as bidders, purchasers, and labor
unions or representatives of workers with whom it has collective
bargaining agreements of contractor's obligations under section 403 of
Public Law 93-153.
(ii) The contractor will comply with all rules, regulations, and
orders of the Department of the Interior which implement section 403 of
Public Law 93-153.
(iii) The contractor will furnish all information and reports
required by or pursuant to rules, regulations, and orders implementing
section 403 of Public Law 93-153 and permit access to its books,
records, and accounts by the Secretary of the Interior, the Department
Compliance Officer, or other designee of the Secretary, for purposes of
investigation to ascertain compliance with rules, regulations, and
orders of the Department of the Interior which
[[Page 451]]
implement section 403 of Public Law 93-153.
(iv) Contractor's noncompliance with the nondiscrimination clauses
of this contract or with any of said rules, regulations, and orders
shall constitute a breach of its contractual arrangements whereby said
arrangements may be cancelled, terminated, or suspended, or may be
subject to enforcement otherwise by appropriate legal proceedings.
(v) Contractor will obtain the provisions of paragraph (d)(1) (i)
through (v) of this section in all subcontracts over $10,000 and all
subcontracts of indefinite quantity (unless there is reason to believe
that the amount to be ordered in any year under the contract will not
exceed $10,000).
(2) Recipient will make every good faith effort to secure the
compliance and will assist and cooperate actively with the Department
Compliance Officer and the Secretary or his designee in obtaining and
enforcing the compliance of said contracting parties with the
requirements of section 403 and implementing rules, regulations, and
orders, and with their respective contractual arrangements; and will
take such action with respect to any contract or purchase order that the
Secretary of the Interior, the Department Compliance Officer, or other
designee of the Secretary may direct as a means of enforcing such
provisions: Provided, however, That in the event the recipient becomes
involved in litigation with a noncomplying party, it may request the
Department of the Interior to enter into such litigation to protect the
interests of the United States in the enforcement of these obligations,
and
(3) Recipient will obtain and furnish to the Department Compliance
Officer such information as he may require for the supervision or
securing of such compliance.
(e) In the event of the recipient's noncompliance with the equal
opportunity terms, compliance may be effected by the suspension or
termination or refusal to grant or to continue providing the Federal
authorization in accordance with procedures authorized by section 403 of
Public Law 93-153, and set forth in implementing rules, regulations, or
orders, or by any other means authorized by law.
Sec. 27.6 Equal opportunity implementation.
Within sixty (60) days of the effective date of these regulations,
or within sixty (60) days from the commencement of a Federal
authorization to which this part applies, whichever occurs later,
recipients of Federal authorizations to which this part applies, shall
prepare and submit an affirmative action plan for each of their
establishments to which this part applies, to assure that the
requirements of this part will be met. In addition, recipients and each
of their prime contractors and subcontractors shall require each
contractor and subcontractor with a contract of $50,000 or more and 50
or more employees to develop within sixty (60) days from the
commencement of the contract and to keep on file a written affirmative
action plan for each of its establishments, to which this part applies,
with the exception of those establishments which the Department
Compliance Officer determines are in all respects separate and distinct
from performance of the activities of the prime contractor or
subcontractor conducted under the Federal authorizations. Such plans
shall include a set of specific and result-oriented procedures which the
recipient, contractor or subcontractor commits itself to apply every
good faith effort to achieve equal opportunity in all aspects of its
operations. An acceptable program must include an analysis of all areas
of operation of the recipient, contractor, or subcontractor in which it
could be deficient in offering services, opportunities, or benefits to
minority groups and women, and all areas of employment in which it could
be deficient in the utilization of minority groups and women and all
areas of contracting in which it could be deficient in the utilization
of minority business enterprises, and, further, specific goals and
specific timetables to which its efforts will be directed, to correct
all deficiencies and thus to increase materially the participation of
minorities and women in all aspects of its operation. The implementing
affirmative action plans shall include the following:
(a) Services, financial aids, and other benefits. The implementing
program is required to specifically address all
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areas of operation of the recipient, contractor or subcontractor which
offer and provide services, financial aids, and other benefits; it shall
identify those services, financial aids, and benefits; analyze the
opportunities available to minorities and women in each area; and set
forth affirmative action, including goals and time- tables, which will
be taken to materially increase participation of minorities and women.
(b) Employment practices. The implementing plan shall address all
aspects of employment operations and is required to contain all analyses
and commitments, including goals and timetables, which are required in
rules, regulations, and orders implementing Executive Order 11246, as
amended, and to include additional commitments to employment goals for
minorities and women in construction operations, to the extent that
those goals are not established under Executive Order 11246.
(c) Contracting practices. Recipients to which this part applies and
each of their contractors and subcontractors with a contract of $150,000
or more shall also include in their affirmative action plan a program in
which the recipient, contractor or subcontractor agrees to take specific
affirmative action as set forth below to utilize minority business
enterprises as subcontractors and suppliers. For this purpose, the term
minority business enterprise means a business enterprise that is owned
or controlled by minority group members or women. The plan shall
identify specific actions which the recipient, contractor or
subcontractor will take to:
(1) Designate a liaison officer who will administer the minority
business enterprises program;
(2) Provide adequate and timely consideration of the potentialities
of minority business enterprises in all contracting decisions;
(3) Afford minority business enterprises an equitable opportunity to
compete for contracts and subcontracts by arranging solicitations, time
for preparation of bids, quantities, specifications, and delivery
schedules so as to facilitiate the participation of minority business
enterprises;
(4) Submit periodic reports of contracting opportunities,
procedures, and awards to minority business enterprises, at such times,
and in such form, and containing such information as the Department
Compliance Officer may prescribe, including reports showing:
(i) Procedures which have been adopted to comply with the policies
set forth in this clause, including the establishment of a source list
of minority business enterprises;
(ii) Awards to minority business enterprises on the source lists,
and
(iii) Specific efforts to identify and award contracts to minority
business enterprises.
(5) Establish specific goals and timetables to utilize minority
business enterprises in the performance of contracts awarded.
(6) Inform minority business enterprises and organizations of
minority business enterprises of contracting opportunities and
procedures.
(7) Cooperate with the Department Compliance Officer in any studies
and surveys of the recipient's minority business enterprise procedures
and practices that the Department Compliance Officer may from time to
time conduct.
(8) Assist potential minority business enterprises in obtaining and
maintaining suitable bonding capabilities, in those instances where
bonds are required.
(d) Exemption. Contracts and subcontracts are exempt from the
requirements of the equal opportunity clause with regard to work
performed outside the United States by employees who were not recruited
within the United States.
Sec. 27.7 Compliance information.
(a) Records, reports, and access to books. Each recipient,
contractor, or subcontractor to which this part applies, shall keep such
records and submit to the Department Compliance Officer complete and
accurate reports, at such times, and in such form, and containing such
information, as he may determine to be necessary to enable him to
ascertain whether the recipient, contractor or subcontractor has
complied or is complying with rules, regulations and orders implementing
section 403 of Public Law 93-153. In the case where the recipient,
contractor or
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subcontractor contracts with another, such other contractor shall also
submit such compliance reports to the recipient, contractor or
subcontractor as may be necessary to enable the recipient, contractor or
subcontractor to determine and carry out his obligations under section
403 of Public Law 93-153 and implementing rules, regulations, and
orders.
(b) Access to sources of information. Each recipient, contractor and
subcontractor to which this part applies, shall permit access by the
Department Compliance Officer or his designee or by the Secretary or his
designee during normal business hours to such of his books, records,
accounts, and other sources of information, and his facilities, as may
be pertinent to ascertain compliance with rules, regulations, and orders
implementing section 403 of Public Law 93-153.
(c) Information in possession of other agency, institution, or
person. Where any information required of a recipient, contractor or
subcontractor is in the exclusive possession of any other agency,
institution, or person and such agency, institution or person shall fail
or refuse to furnish this information, the recipient, contractor or
subcontractor shall so certify in a report and shall set forth what
efforts it has made to obtain the information.
(d) Failure to submit reports. Failure to file timely, complete and
accurate reports as required constitutes noncompliance with the equal
opportunity clause and is ground for the imposition by the agency,
recipient, contractor, or subcontractor of any sanctions as authorized
by section 403 of Public Law 93-153 and implementating rules,
regulations, and orders.
(e) Information to beneficiaries and participants. Each recipient,
contractor and subcontractor to which this part applies, shall make
available to participants in and beneficiaries of its operations and
services, information regarding the provisions of this part and the
details of the recipient's, contractor's or subcontractor's compliance
with this part, to the extent that it will enhance their participation
in nondiscrimination programs of recipient, contractor, or
subcontractor, and aid the recipient, contractor, or subcontractor in
meeting its obligations under this part.
Sec. 27.8 Compliance procedures.
(a) Approval of affirmative action plans. The Department Compliance
Officer shall from time to time review the recipient's, contractor's or
subcontractor's affirmative action plans to determine whether they meet
the requirements of rules, regulations and orders implementing section
403 of Public Law 93-153. Where deficiencies are found to exist, the
Department Compliance Officer or his designee will so inform the
recipient, contractor or subcontractor and the matter will be resolved
by informal means whenever possible. If it has been determined that the
matter cannot be resolved by informal means, action will be taken as
provided for in Sec. 27.9.
(b) Periodic compliance reviews. The Department Compliance Officer
shall from time to time review the practices of recipients, contractors
and subcontractors to determine whether they are complying with the
rules, regulations and orders implementing section 403 of Public Law 93-
153. The purpose of the compliance review is to determine if the
recipient, contractor or subcontractor maintains nondiscriminatory
operations and practices and whether it is taking the action required by
the rules, regulations, and orders implementing section 403 of Public
Law 93-153 to assure that no person on the grounds of race, creed,
color, national origin or sex is excluded from receiving or
participating in any activity conducted under any permit, right-of-way,
public land order or other Federal authorization to which this part
applies. It shall consist of a comprehensive analysis of all aspects of
the recipient's, contractor's or subcontractor's operations and
practices which may be involved, and the policies and conditions
resulting therefrom. Where necessary, recommendations for appropriate
sanctions shall be made.
(c) Complaints. Any person who believes himself or any other
individual to be subjected to discrimination prohibited by this part may
file with the Department Compliance Officer or his designee, a written
complaint. A complaint must be filed not later than 180
[[Page 454]]
days from the date of the alleged discrimination, unless the time for
filing is extended by the Department Compliance Officer or his designee.
(d) Investigations. The Department Compliance Officer or his
designee will make a prompt investigation whenever a compliance review
report, complaint, or any other information indicates a possible failure
to comply with the rules, regulations, and orders implementing section
403 of Public Law 93-153. The investigation should include, where
appropriate, a review of the pertinent practices and policies of the
recipient, contractor, or subcontractor, the circumstances under which
the possible noncompliance occurred and other factors relevant to a
determination as to whether the recipient, contractor or subcontractor
has failed to comply with section 403 of Public Law 93-153 and
implementing rules, regulations, and orders.
(e) Resolution of matters. (1) If an investigation pursuant to
paragraph (a), (b), (c), or (d) of this section indicates a failure to
comply with the rules, regulations, and orders implementing section 403
of Public Law 93-153, the Department Compliance Officer or his designee
will so inform the recipient, contractor or subcontractor and the matter
will be resolved by informal means whenever possible. Before the
recipient, contractor or subcontractor can be found to be in compliance,
he must make specific commitments in writing, to correct all
deficiencies. The commitments must include the precise actions to be
taken and dates for completion. The time periods allotted shall be no
longer than the minimum periods necessary to effect such changes. Upon
approval of the Department Compliance Officer, the recipient, contractor
or subcontractor, may be considered in compliance, on condition that the
commitments are faithfully kept. The recipient, contractor or
subcontractor shall be notified that making such commitments does not
preclude future determinations of noncompliance when the commitments are
not being met or when there is a determination by the Department
Compliance Officer that the full facts were not known at the time
commitments were accepted, and that commitments are not sufficient to
correct deficiencies.
(2) If an investigation does not warrant action pursuant to
paragraph (e)(1) of this section, the Department Compliance Officer
shall so inform the recipient, contractor or subcontractor, and the
complainant, if any, in writing.
(f) Intimidatory or retaliatory acts prohibited. No recipient,
contractor or subcontractor shall intimidate, threaten, coerce, or
discriminate against any individual for the purpose of interfering with
any right or privilege secured by section 403 of Public Law 93-153 and
implementing rules, regulations, and orders, or because he has made a
complaint, testified, assisted, benefited from, or participated in any
manner in an investigation, compliance review, proceeding, or hearing
under this part. The identity of complainants shall be kept confidential
except to the extent necessary to carry out the purposes of this part
including the conduct of any investigation, hearing, or judicial
proceeding arising thereunder.
(g) Approval of action by Authorized Officer. During the period of
construction of the Trans-Alaska Pipeline, and until such time as this
paragraph (g) is rescinded by the Secretary, the Department Compliance
Officer shall coordinate all actions taken pursuant to this part with
the Authorized Officer and shall secure the approval of the Authorized
Officer prior to the taking of any final act hereunder.
Sec. 27.9 Procedures for effecting compliance.
(a) General. If there appears to be a failure or refusal of any
recipient, contractor, or subcontractor to observe or comply
substantially with section 403 of Public Law 93-153, or implementing
rules, regulations, and orders, compliance may be effected through the
use of conciliation conferences, informal hearings, and procedures to
cause termination or suspension of or refusal to grant or to continue
the permit, or other Federal authorization to which this part applies,
or of the contracts to which this part applies, or by any other means
authorized by law. Such other means may include, but are not limited to:
[[Page 455]]
(1) A reference to the Department of Justice with a recommendation
that appropriate proceedings be brought to enforce any rights of the
United States under any law of the United States or any assurance or
other contractural undertaking, and
(2) Any applicable proceeding under State or local law.
(b) Noncompliance with Sec. 27.4. In the event that a recipient
fails or refuses to furnish an assurance required under Sec. 27.4, or
otherwise fails or refuses to comply with a requirement imposed by or
pursuant to that section the failure or refusal may, at the option of
the Secretary, be grounds for authorizing proceedings to cause refusal
of the Federal authorization in accordance with the procedures of
paragraph (c) of this section. The Department of the Interior shall not
be required to provide the authorization in such a case during the
pendency of the administrative proceedings under such paragraph.
(c) Termination of or refusal to grant or to continue the Federal
authorization--(1) General. In those instances where a recipient fails
or refuses to observe or comply substantially with section 403 of Public
Law 93-153 or implementing rules, regulations, and orders, noncompliance
at the option of the Secretary, may be grounds for termination,
suspension, refusal to grant or continue the Federal authorization.
(i) Recommendation to proceed. The Department Compliance Officer may
request that the Secretary commence procedures to suspend, terminate, or
refuse to grant or continue the Federal authorization or to cause such
suspension, termination, or refusal to grant. He shall indicate the
specific grounds for alleging noncompliance with section 403 and
implementing rules, regulations, and orders, the actions which would
create compliance, and the time necessary to achieve compliance.
(ii) Commencement of proceedings. Before the Secretary authorizes
the commencement of an administrative proceeding for termination,
suspension, or refusal to grant any Federal authorization to which this
part applies, the Secretary or his designee shall give the recipient
notice in writing of the alleged ground or grounds for termination or
formal suspension, or refusal to grant, with sufficient particularity to
enable the recipient to comply with section 403 of Public Law 93-153 and
implementing rules, regulations and orders. The recipient shall have
sixty (60) days from the date of delivery of the notice within which to
comply. If compliance cannot be achieved in sixty (60) days, the
recipient shall be entitled to additional time if he demonstrates that
compliance is not possible within the sixty (60) day period and that the
necessary curative actions were undertaken promptly and have been
diligently prosecuted toward completion; Provided further that the
aforesaid additional time shall not exceed ninety (90) days from the
last day of the said sixty (60) day period, without the prior written
consent of the Secretary or his designee which shall specify the last
day upon which the curative action must be completed to the satisfaction
of the Secretary or his designee.
(iii) Opportunity for a hearing. No order suspending, terminating or
refusing to grant or continue any Federal authorization to which this
part applies shall become effective until there has been an express
finding on the record, after opportunity for a formal hearing, of a
failure by the applicant or recipient to comply substantially with
section 403 of Public Law 93-153 or implementing rules, regulations, and
orders and the action has been approved by the Secretary pursuant to
Sec. 27.11(e).
(2) [Reserved]
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until (1) the action
has been approved by the Secretary, (2) the recipient or other person
has been notified of its failure to comply and of the action to be taken
to effect compliance, and (3) the expiration of at least 10 days from
the mailing of such notice to the recipient or other person. During this
period of at least 10 days additional efforts shall be made to persuade
the recipient or other person to comply and to take such corrective
action as may be appropriate.
Sec. 27.10 Hearings.
(a) Informal hearings--(1) Purpose. The Department Compliance
Officer may convene such informal hearings as may
[[Page 456]]
be deemed appropriate for the purpose of inquiring into the status of
compliance of any recipient, contractor, or subcontractor to which this
part applies.
(2) Notice. Recipients, contractors, and subcontractors shall be
advised in writing as to the time and place of the informal hearings and
may be directed to bring specific documents and records, or furnish
other relevant information concerning their compliance status. When so
requested, the recipient, contractor, or subcontractor shall attend and
bring requested documents and records, or other requested information.
(3) Conduct of hearings. The hearing shall be conducted by hearing
officers appointed by the Department Compliance Officer. Parties to
informal hearings may be represented by counsel or other authorized
representative as provided in 43 CFR part 1 and shall have a fair
opportunity to present any relevant material. Formal rules of evidence
will not apply to such proceedings.
(b) Formal hearings--(1) Opportunity for hearing. Whenever an
opportunity for a hearing is required by Sec. 27.9(c), reasonable notice
shall be given by registered or certified mail, return receipt
requested, to the affected applicant or recipient. This notice shall
advise the applicant or recipient of the action proposed to be taken,
the specific provision under which the proposed action against it is to
be taken, and the matters of fact or law asserted as the basis for this
action, and either (i) fix a date not less than twenty (20) days after
the date of such notice within which the applicant or recipient may
request of the Secretary or his designee or the administrative law judge
to whom the matter has been assigned that the matter be scheduled for
hearing or (ii) advise the applicant or recipient that the matter in
question has been set down for hearing at a stated place and time. 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. An applicant or recipient may waive a hearing
and submit written information and argument for the record. The failure
of an applicant or recipient to request a hearing under this paragraph
or to appear at a hearing for which a date has been set shall be deemed
to be a waiver of the right to a hearing under section 403 of Public Law
93-153 and implementing rules, regulations, and orders and consent to
the making of a decision on the basis of information on the record.
(2) Time and place of hearing. Hearings shall be conducted by the
Office of Hearings and Appeals of the Department, at a time and place
fixed by the administrative law judge to whom the matter has been
assigned. Hearings shall be held before an administrative law judge
designated by the Office of Hearings and Appeals in accordance with its
procedures.
(3) Right to Counsel. In all proceedings under this section, the
applicant or recipient and the Department shall have the right to be
represented by counsel or other authorized representative as provided in
43 CFR part 1.
(4) Procedures, evidence, and record. (i) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
5 U.S.C. 554 through 557 and in accordance with such rules of procedure
as are proper (and not inconsistent with this section) relating to the
conduct of the hearing, giving of notices subsequent to those provided
for in paragraph (b)(1) of this section, taking of testimony, exhibits,
arguments and briefs, requests for findings, and other related matters.
Both the Department and the applicant or recipient shall be entitled to
introduce all relevant evidence on the issues as stated in the notice
for hearing or as determined by the administrative law judge conducting
the hearing at the outset of or during the hearing.
(ii) Technical rules of evidence shall not apply to hearings
conducted pursuant to this part, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where determined
reasonably necessary by the administrative law judge conducting the
hearing. The administrative law judge may exclude irrelevant,
immaterial, or unduly repetitious evidence. All documents and other
evidence offered or taken for the record shall be open to
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examination by the parties and opportunity shall be given to refute
facts and arguments advanced on either side of the issues. A transcript
shall be made of the oral evidence except to the extent that the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(5) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more Federal authorizations to which this part
applies, or asserted to constitute noncompliance with this part and the
regulations of one or more other Federal departments or agencies, the
Secretary may, by agreement with such other departments or agencies,
where applicable, provide for the conduct of consolidated or joint
hearings, and for the application to such hearings of rules of procedure
not inconsistent with this part. Final decisions in such cases, insofar
as this part is concerned, shall be made in accordance with Sec. 27.11.
Sec. 27.11 Decisions and notices.
(a) Initial decision by an administrative law judge. The
administrative law judge shall make an initial decision and a copy of
such initial decision shall be sent by registered mail, return receipt
requested, to the recipient or applicant.
(b) Review of the initial decision. The applicant or recipient may
file his exceptions to the initial decision, with his reasons therefor,
with the Director, Office of Hearings and Appeals, within thirty (30)
days of receipt of the initial decision. In the absence of exceptions,
the Director, Office of Hearings and Appeals, on his own motion within
forty-five (45) days after the initial decision, may notify the
applicant or recipient that he will review the decision. In the absence
of exceptions or a notice of review, the initial decision shall
constitute the final decision subject to the approval of the Secretary
pursuant to paragraph (f) of this section.
(c) Decisions by the Director, Office of Hearings and Appeals.
Whenever the Director, Office of Hearings and Appeals, reviews the
decision of an administrative law judge pursuant to paragraph (b) of
this section, the applicant or recipient shall be given reasonable
opportunity to file with him briefs or other written statements of its
contention, and a copy of the final decision of the Director, Office of
Hearings and Appeals, shall be given to the applicant or recipient and
to the complainant, if any.
(d) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 27.10 (b)(1), a decision shall be
made by the Director, Office of Hearings and Appeals, on the record and
a copy of such decision shall be given in writing to the applicant or
recipient and to the complainant, if any.
(e) Rulings required. Each decision of an administrative law judge
or the Director, Office of Hearings and Appeals, shall set forth his
ruling on each finding, conclusion, or exception presented, and shall
identify the requirement or requirements imposed by or pursuant to this
part with which it is found that the applicant or recipient has failed
to comply.
(f) Approval by Secretary. Any final decision of an administrative
law judge or of the Director, Office of Hearings and Appeals, which
provides for the suspension or termination of, or the refusal to grant
or continue a Federal authorization, or the imposition of any other
sanction available under this part, shall promptly be transmitted to the
Secretary, who may approve such decision, may vacate it, or remit or
mitigate any sanction imposed.
(g) Content of decisions. The final decision may provide for
suspension or termination of, or refusal to grant or continue a Federal
authorization, in whole or in part, and may contain such terms,
conditions, and other provisions as are consistent with and will
effectuate the purposes of section 403 of Public Law 93-153 and
implementing rules, regulations, and orders, including provisions
designated to assure that no Federal authorization will be extended
under title II of Public Law 93-153 to the applicant or recipient
determined by such decision to be in default in its performance of an
assurance given by it pursuant to section 403 and implementing rules,
regulations, and orders or to have otherwise failed
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to comply with this part, unless and until it corrects its noncompliance
and satisfies the Secretary that it will fully comply with this part.
(h) Post termination decisions. An applicant or recipient adversely
affected by an order issued under paragraph (g) of this section shall be
restored to full eligibility to receive the Federal authorization if it
satisfies the terms and conditions of that order for such eligibility
and if it provides reasonable assurance that it will fully comply with
this part.
Sec. 27.12 Judicial review.
Action taken pursuant to this part is subject to judicial review.
Sec. 27.13 Effect on other regulations; forms and instructions.
(a) Effect on other regulations. Nothing in these regulations shall
be deemed to supersede any of the following (including future amendments
thereof):
(1) Executive Order 11246, as amended, and regulations therefor;
(2) Executive Order 11063 and regulations issued thereunder, or any
other regulations or instructions insofar as such Order, regulations, or
instructions prohibit discrimination on the ground of race, creed,
color, national origin, or sex in any program or situation to which this
part is inapplicable, or prohibit discrimination on any other ground.
(3) Regulations to effectuate title VI of the Civil Rights Act of
1964.
(b) Forms and instructions. The Department Compliance Officer may
issue and make available to interested persons instructions and
procedures for effectuating this part.
(c) Supervision and coordination. The Secretary may from time to
time assign to such officials of the Department as he deems appropriate,
or to officials of other departments or agencies of the Government with
the consent of such departments or agencies, responsibilities in
connection with the effectuation of the purposes of this part (other
than responsibility for final decision as provided in Sec. 27.11),
including the achievement of effective coordination and maximum
uniformity within the Department and within the Executive Branch of the
Government in the application of this part. Any action taken,
determination made, or requirement imposed by an official of another
department or agency acting pursuant to an assignment of responsibility
under this paragraph shall have the same effect as though such action
had been taken by the Secretary of the Interior.
Sec. 27.14 Definitions.
As used in this part:
(a) The term Secretary means the Secretary of the Interior.
(b) The term applicant means one who submits an application for any
Federal authorization to which this part applies.
(c) The term recipient means any entity or individual who receives a
permit, right-of-way, public land order, or other Federal authorization
granted or issued under title II of Public Law 93-153 and its agent or
agents.
(d) The term contract means any agreement or arrangement between a
recipient and any person (in which the parties do not stand in the
relationship of an employer and an employee) in any way related to the
activities of the recipient conducted under any permit, right-of-way,
public land order, or other Federal authorization granted or issued
under title II.
(e) The term subcontract means any agreement or arrangement between
a contractor and any person (in which the parties do not stand in the
relationship of an employer and an employee) in any way related to the
performance of any one or more contracts as defined above.
(f) The Authorized Officer means the employee of the Department,
designated to act on behalf of the Secretary pursuant to the Agreement
and Grant of Right-of-Way for Trans-Alaska Pipeline or such other person
to whom the Authorized Officer redelegates his authority pursuant to the
delegation of authority to the Authorized Officer from the Secretary.
(g) The Department Compliance Officer means that officer of the
Department of the Interior so designated by the Secretary.
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