[Code of Federal Regulations]
[Title 13, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 13CFR117]
[Page 196-207]
TITLE 13--BUSINESS CREDIT AND ASSISTANCE
CHAPTER I--SMALL BUSINESS ADMINISTRATION
PART 117_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OR ACTIVITIES
OF SBA_EFFECTUATION OF THE AGE DISCRIMINATION ACT OF 1975, AS AMENDED
--Table of Contents
Sec.
117.1 Purpose.
117.2 Application of this part.
117.3 Definitions.
117.4 Discrimination prohibited and exceptions.
117.5 Illustrative applications.
117.6 Remedial and affirmative action by recipients.
117.7 Assurances required.
117.8 Responsibilities of SBA recipients.
117.9 Compliance information.
117.10 Review procedures.
117.11 Complaint procedures.
117.12 Mediation.
117.13 Investigation and resolution of matters.
117.14 Intimidating or retaliatory acts prohibited.
117.15 Procedure for effecting compliance.
117.16 Hearings.
117.17 Decisions and notices.
[[Page 197]]
117.18 Judicial review.
117.19 Effect on other regulations.
117.20 Supervision and coordination.
Appendix A to Part 117
Authority: Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq.
Source: 50 FR 41648, Oct. 11, 1985, unless otherwise noted.
Editorial Note: Nomenclature changes to part 117 appear at 68 FR
51349, Aug. 26, 2003.
Sec. 117.1 Purpose.
The purpose of this part is to effectuate the provisions of The Age
Discrimination Act of 1975, as amended (hereinafter referred to as the
Act), to the end that no person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under programs or activities receiving
financial assistance or any financial activities of the Small Business
Administration to which this Act applies. The Act also permits
recipients of Federal funds to continue to use certain age distinctions
and other factors other than age which meet the requirements of the Act
and these regulations in the conduct of programs and the provision of
services to the public.
Sec. 117.2 Application of this part.
(a) This part applies to all recipients of Federal financial
assistance administered by the Small Business Administration, whether or
not the specific type of Federal financial assistance administered is
listed in appendix A.
(b) For the purposes of this part, the prohibition against age
discrimination applies to natural persons of all ages.
(c) This part does not apply to the employment practices of any
recipients.
[50 FR 41648, Oct. 11, 1985, as amended at 68 FR 51349, Aug. 26, 2003]
Sec. 117.3 Definitions.
As used in this part:
(a) The term act means the Age Discrimination Act of 1975, as
amended (Title III of Pub. L. 94-135).
(b) The term action means any act, activity, policy, rule, standard,
or method of administration; or the use of any policy, rule, standard,
or method of administration.
(c) The term age means how old a person is, or the number of years
from the date of a person's birth.
(d) The term age distinction means any action using age or an age-
related term.
(e) The term age-related means a word or words which necessarily
imply a particular age or range of ages (for example, children, adult,
older persons, but not student).
(f) The term agency means a Federal department or agency that is
empowered to extend financial assistance.
(g) The term applicant means one who applies for Federal financial
assistance.
(h) The term Federal financial assistance includes: (1) Grants and
loans of Federal funds; (2) the grant or donation of Federal property
and interests in property; (3) the detail of Federal personnel; (4) the
sale and lease of, and the permission to use (on other than a casual or
transient basis), Federal property or any interest in such property
without consideration, or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient; and (5) any Federal agreement,
arrangement, or other contract which has as one of its purposes the
provision of assistance.
(i) The term normal operation means the operation of a business or
activity without significant changes that would impair its ability to
meet its objectives.
(j) The term program or activity means all of the operations of any
entity described in paragraphs (j)(1) through (4) of this section, any
part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local
[[Page 198]]
government entity) to which the assistance is extended, in the case of
assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (j)(1), (2), or (3) of this section.
(k) The term recipient means one who receives any Federal financial
assistance administered by the Small Business Administration. (See
Appendix A.) The term recipient also shall be deemed to include
subrecipients of SBA financial assistance.
(l) The term SBA means the Small Business Administration.
(m) The term subrecipient means any business concern that receives
Federal financial assistance from the primary recipient of such
financial assistance. A subrecipient is generally regarded as a
recipient of Federal financial assistance and has all the duties of a
recipient in these regulations.
(n) The term statutory objective means the purposes of the
legislation as stated in an act, statute or ordinance or can be shown in
the legislative history of any Federal statute, State statute, or local
statute or ordinance adopted by an elected, general purpose legislative
body.
[50 FR 41648, Oct. 11, 1985, as amended at 68 FR 51349, Aug. 26, 2003]
Sec. 117.4 Discrimination prohibited and exceptions.
(a) General. To the extent that this part applies, no person in the
United States shall, on the basis of age, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under
any business or activity receiving Federal financial assistance.
(b) Specific discriminatory actions prohibited. To the extent that
this part applies, a recipient business or other activity may not,
directly or through contractual arrangements, on the ground of age:
(1) Deny an individual any services, financial aid or other benefit
provided by the business or other activity, except where sanctioned by
one of the exceptions stated in Sec. 117.4 (d), (e) or (f) of this
section.
(2) Provide any service, financial aid or other benefit, except as
sanctioned by one of the exceptions stated below, in such a way as to
deny or limit persons in their efforts to participate in federally-
assisted programs or activities;
(3) Treat an individual differently from others, except as
sanctioned by an exception stated below, in determining whether the
person satisfied 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 provided by the
business or activity.
(c) The specific forms of prohibited discrimination in paragraph (b)
of this section does not limit the generality of the prohibition in
paragraph (a) of this section.
(d) Exception 1. A recipient is permitted to take an action
otherwise prohibited by paragraphs (a) and (b) of this section, if the
action reasonably takes into account age as a factor necessary to the
normal operation or the achievement of any statutory objective of a
business or activity. An action reasonably takes into account age as a
factor necessary to the normal operation or the achievement of any
statutory objective of a business or activity, if:
(1) Age is used as a measure or approximation of one or more other
characteristics; and
[[Page 199]]
(2) The other characteristic(s) must be measured or approximated in
order for the normal operation of the business or activity to continue,
or to achieve any statutory objective of the business or activity; and
(3) The other characteristic(s) can be reasonably measured or
approximated by the use of age; and
(4) The other characteristic(s) are impractical to measure directly
on an individual basis.
Note: All of the above factors must be met in order to exclude a
business activity from the provisions of this part.
(e) Exception 2. A recipient is permitted to take an action
otherwise prohibited by paragraphs (a) and (b) of this section which is
based on a factor other than age, even though that action may have a
disproportionate effect on persons of different ages. An action may be
based on a factor other than age if the factor bears a direct and
substantial relationship to the normal operation of the business or
activity or to the achievement of a statutory objective.
(f) Exception 3. A recipient is permitted to take an action
otherwise prohibited by paragraphs (a) and (b) of this section if an age
distinction is contained in that part of a Federal, State or local
statute or ordinance adopted by an elected general purpose legislative
body which provides any benefits or assistance to, establishes criteria
for participation in, or describes intended beneficiaries or target
groups in age-related terms.
(g) The burden of proving that an age distinction or other action
falls within the exceptions outlined in paragraphs (d), (e), and (f) of
this section on the recipient of Federal financial assistance.
Sec. 117.5 Illustrative applications.
(a) Discrimination in providing financial assistance. Development
companies and small business investment companies, which apply for or
receive any financial assistance may not discriminate on the ground of
age in providing financial assistance to small business concerns. Such
discrimination prohibited by Sec. 117.4 includes but is not limited to
the failure or refusal, because of the age of the applicant, or the age
of the applicant's principal owner or operating official to extend a
loan or equity financing to any business concern; or, in the case of
financing which has actually been extended, the failure or refusal
because of the age of the recipient, or the age of recipient's principal
owner or operating official to accord the recipient fair treatment and
the customary courtesies regarding such matters as default, grace
periods and the like.
(b) Discrimination in accommodations or services. Small Business
Concerns and others who or which apply for or receive any financial
assistance administered by the Small Business Administration, such as
but not limited to physicians, dentists, hospitals, schools, libraries,
and other individuals or organizations may not discriminate in the
treatment, accommodations or services they provide to their patients,
students, members, passengers, or members of the public, except when the
normal operation or statutory objective of the business or activity of
the intended beneficiary is designated in age-related terms, whether or
not operated for profit. Action by such business or activity to be
excluded from compliance with this regulation must fall within the
exceptions enumerated in Sec. 117.4 (d), (e), and (f) of this part.
(c) The discrimination prohibited by Sec. 117.5(b) includes, but is
not limited to the failure or refusal, because of age, to accept a
patient, student, member, customer, client, or passenger, except when
the imposition of this prohibition would interfere with the normal
operation of the business, e.g., pediatricians, nursery schools,
geriatric clinics.
Sec. 117.6 Remedial and affirmative action by recipients.
(a) Where a recipient is found to have discriminated on the basis of
age, the recipient shall take any remedial action which the Agency may
require to overcome the effects of the discrimination. If another
recipient exercises control over the recipient that has discriminated,
both recipients may be required to take remedial action.
(b) Even in the absence of a finding of discrimination, a recipient
may take
[[Page 200]]
affirmative action to overcome the effects of conditions that resulted
in limited participation in the recipient's program or activity on the
basis of age.
(c) If a recipient operating a program or activity which serves the
elderly or children in addition to persons of other ages, provides
special benefits to the elderly or to children, the provision of those
benefits shall be presumed to be voluntary affirmative action provided
that it does not have the effect of excluding otherwise eligible persons
from participation in the program or activity.
Sec. 117.7 Assurances required.
An application for financial assistance administered by the Small
Business Administration shall, as a condition of its approval and the
extension of such assistance, contain or be accompanied by an assurance
that the recipient will comply with this part. SBA shall specify the
form of the foregoing assurance, and the extent to which like assurances
will be required of contractors and subcontractors, transferees,
successors, and other participants.
Sec. 117.8 Responsibilities of SBA recipients.
(a) Each SBA recipient has the primary responsibility to ensure that
its programs or activities are in compliance with the Act and these
regulations, and shall take steps to eliminate violations of the Act. A
recipient also has responsibility to maintain records, provide
information, and to afford SBA access to its records to the extent SBA
finds necessary to determine whether the recipient is in compliance with
the Act and these regulations. (OMB No. 3245 0076)
(b) Where a recipient passes on Federal financial assistance from
SBA to subrecipients, the recipient shall provide the subrecipients
written notice of their obligations under the Act and these regulations.
(c) Each recipient shall make necessary information about the Act
and these regulations available to the beneficiaries of its programs or
activities in order to inform them about the protections against
discrimination provided by the Act and these regulations.
(d) Whenever an assessment indicates a violation of the Act and the
SBA regulations, the recipient shall take corrective action.
Sec. 117.9 Compliance information.
(a) Cooperation and assistance. SBA shall, to the fullest extent
practicable, seek the cooperation of recipients in obtaining compliance
with this part and shall provide assistance and guidance to recipients
to help them comply voluntarily with this part.
(b) Record Keeping. Each recipient shall keep records in such form,
and containing such information which SBA determines may be necessary to
ascertain whether the recipient has complied or is complying with this
part (OMB No. 3245 0076). In the case of a small business concern which
receives financial assistance from a development company or from a small
business investment company, the small business concern shall also keep
such records and information as may be necessary to enable SBA to
determine if the small business concern is complying with this part.
(c) Each recipient shall provide to SBA, upon request, information
and reports which SBA determines are necessary to ascertain whether the
recipient is complying with the Act and these regulations.
(d) Access to sources of information. Each recipient shall permit
reasonable access by SBA during normal business hours to such of its
books, records, accounts, and other sources of information, and its
facilities as may be pertinent to ascertain compliance with this part.
Where any information required of an applicant or recipient is in the
exclusive possession of any other agency, institution or person and that
agency, institution or person shall fail or refuse to furnish the
information, the recipient shall so certify and shall set forth what
efforts it has made to obtain the required information. The recipient
will be held responsible for submitting the information. Failure to
submit information or permit access to sources of information required
by SBA
[[Page 201]]
will subject the recipient to enforcement procedure as provided in Sec.
117.15 of this part.
(Information collection requirements in paragraph (c) were approved by
the Office of Management and Budget under control number 3245-0076)
Sec. 117.10 Review procedures.
(a) SBA shall from time to time review the practices of recipients
to determine whether they are complying with this part. As part of a
compliance review or complaint investigation, SBA may require a
recipient employing 15 or more full-time employees to complete a written
self-evaluation, in a manner specified by the Agency, of any age
distinction imposed in its program or activity receiving Federal
financial assistance.
(b) If a compliance review or pre-award review indicates a violation
of the Act or these regulations, SBA will attempt to achieve voluntary
compliance with the Act. If voluntary compliance with the recipient
cannot be achieved, such recipient will be subject to the enforcement
procedure contained in Sec. 117.15 of these regulations. A refusal to
permit an on-site compliance review during normal working hours may
constitute noncompliance with this part.
Sec. 117.11 Complaint procedures.
(a) Any person who believes that he/she or any specific class of
individuals is being or has been subjected to discrimination by SBA, a
recipient, or an applicant for assistance, prohibited by this part may,
by himself/herself or by a representative, file with SBA a written
complaint. The complainant has the right to have a representative at all
stages of the complaint procedure.
(b) A complaint must be filed not later than 180 days from the date
of the alleged discrimination, unless the time filing is extended by
SBA. The Adminstrator, the Director, Office of Equal Employment
Opportunity and Compliance, and the Chief, Office of Civil Rights
Compliance, are the only officials who may waive the 180-day time limit
for filing complaints under this part. SBA will consider the date a
complaint is filed to be the date upon which the complaint is sufficient
to be processed.
(c) Each complaint will be reviewed to ensure that it falls within
the coverage of the Act and contains all information necessary for
further processing.
(d) SBA will attempt to facilitate the filing of complaints wherever
possible, including taking the following actions:
(1) Accepting as a sufficient complaint, any written statement which
identifies the parties involved and the date the complainant first had
knowledge of the alleged violation, describes generally the action or
practice complained of, and is signed by the complainant.
(2) Freely permitting a complainant to add information to the
complaint to meet the requirements of a sufficient complaint.
(3) Notifying the complainant and the recipient of their rights and
obligations under the complaint procedure, including the right to have a
representative at all stages of the complaint procedure.
(4) Notifying the complainant and the recipient (or their
representatives) of their right to contact the Chief, Office of Civil
Rights Compliance, for information and assistance regarding the
complaint resolution process.
(e) SBA will return to the complainant any complaint filed under the
jurisdiction of this regulation, but found to be outside the
jurisdiction of this regulation, and will state the reason(s) why it is
outside the jurisdiction of this regulation.
Sec. 117.12 Mediation.
(a) SBA shall, after ensuring that the complaint falls within the
coverage of this Act and all information necessary for further
processing is contained therein, unless the age distinction complained
of is clearly within an exception, promptly refer the complaint to the
Federal Mediation and Conciliation Service (FMCS).
(b) SBA shall, to the extent possible, require the participation of
the recipient and the complainant in the mediation process in an effort
to reach a mutually satisfactory settlement of the complaint or make an
informed
[[Page 202]]
judgment that an agreement is not possible. Both parties need not meet
with the mediator at the same time.
(c) If the complainant and the recipient reach a mutually
satisfactory resolution of the complaint during the mediation period,
the mediator shall prepare a written statement of the agreement and have
the complainant and recipient sign it.
(d) A copy of the written mediation agreement will be referred to
SBA, and no further action will be taken unless it appears that either
the complainant or the recipient (or other alleged discriminator subject
to this part) fails to comply with the agreement.
(e) If at the end of 60 days after the receipt of a complaint by
SBA, or at any time prior thereto, an agreement is reached or the
mediator determines an agreement cannot be reached through mediation,
the agreement or complaint will be returned to SBA.
(f) This 60-day period may be extended by the mediator, with the
concurrence of SBA for not more than 30 days if the mediator determines
that an agreement will likely be reached during the extended period.
(g) The mediator shall protect the confidentiality of all
information obtained in the course of the mediation process. No mediator
shall testify in any adjudicative proceeding, produce any document, or
otherwise disclose any information obtained during the course of the
mediation process without prior approval of the head of the agency
appointing the mediator.
Sec. 117.13 Investigation and resolution of matters.
(a) SBA will make a prompt investigation whenever a compliance
review indicates a possible failure to comply with this part by the
recipient and additional information is needed by SBA to assure
compliance with this part, or when an unresolved complaint has been
returned by the FMCS, or when it appears that the complainant or the
recipient is failing to comply with a mediation agreement. The
investigation shall include a review of the pertinent practices and
policies of the recipient, the circumstances under which the possible
noncompliance with this part occurred, and other factors relevant to a
determination as to whether the recipient is complying, is not
complying, or has failed to comply with this part.
(b) Resolution of matters. If an investigation indicates a failure
to comply with this part, SBA will so inform the complainant, if
applicable, and the recipient that the matter will be resolved by
informal means that are mutually agreeable to the parties, whenever
possible.
(1) If, during the course of an investigation, the matter is
resolved by informal means, SBA will put any agreement in writing and
have it signed by the parties and an authorized official of SBA.
(2) If investigation indicates a violation of the Act or these
regulations, SBA will attempt to achieve voluntary compliance. If SBA
cannot achieve voluntary compliance, it will begin enforcement as
described in Sec. 117.15.
(3) If an investigation does not warrant action, SBA will so inform
the complainant, if applicable, and the recipient in writing.
Sec. 117.14 Intimidating or retaliatory acts prohibited.
No complainant, recipient or other person shall intimidate,
threaten, coerce, or discriminate against any individual for the purpose
of interfering with any right or privilege secured by this part or
because an individual or group has made a complaint, testified,
assisted, or participated in any manner in an investigation, review,
enforcement process, 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, mediation, or judicial proceeding.
Sec. 117.15 Procedure for effecting compliance.
(a) General. (1) If there appears to be a failure or threatened
failure to comply with this part by an applicant or recipient and if the
noncompliance or threatened noncompliance cannot be resolved by informal
means, compliance with this part may be effected by suspending,
terminating, or refusing any financial assistance approved but not yet
disbursed to an applicant. In
[[Page 203]]
the case of loans partially or fully disbursed, compliance with this
part may be effected by calling, canceling, terminating, accelerating
repayment, or suspending in whole or in part the Federal financial
assistance provided. The determination of the recipient's violation may
be made only after a recipient has had an opportunity for a hearing on
the record before an administrative law judge.
(2) In addition, compliance may be effected by any other means
authorized by law. Such other means may include, but are not limited to:
(i) Action by SBA to accelerate the maturity of the recipient's
obligation;
(ii) Referral 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 obligations of the
recipient created by the Act or this part; and
(iii) Use of any requirement of or referral to any Federal, State or
local government agency that will have the effect of correcting a
violation of the Act or these regulations.
(3) If there appears to be a failure or threatened failure to comply
with this part by an SBA office or official, the Chief, Office of Civil
Rights Compliance, through the Director, Office of Equal Employment
Opportunity and Compliance, will recommend appropriate corrective action
to the Administrator. Any resulting adverse action against an SBA
employee shall follow Office of Personnel Management and SBA procedures
for such action.
(b) Noncompliance with Sec. Sec. 117.7 and 117.9. If an applicant
fails or refuses to furnish an assurance required under Sec. 117.7, or
fails to provide information or allow SBA access to information under
Sec. 117.9 or otherwise fails or refuses to comply with a requirement
imposed by or pursuant to those sections, Federal financial assistance
may be deferred for a period not to exceed 60 days after the applicant
has received a notice for an opportunity for hearing under Sec. 117.16,
or unless a hearing has begun within that time, or the time for
beginning the hearing has been extended by mutual consent of the
recipient and the Agency, for purposes of determining what constitutes
mutual consent, the Agency shall be deemed to have consented to any
extension requested by the recipient and granted by the administrative
law judge (hearing officer), whether or not the Agency initially
approved the extension. A deferral may not continue for more than 30
days after the close of the hearing, unless the hearing results in a
finding against the applicant or recipient.
(c) SBA will not take action toward accelerating repayment,
suspending, terminating, or refusing financial assistance until:
(1) SBA has advised the applicant or recipient of the failure to
comply and has determined that compliance cannot be secured by voluntary
means;
(2) There has been an express finding on the record, after an
opportunity for hearing, of a failure by the applicant or recipient to
comply with a requirement imposed by or pursuant to this part;
(3) The action has been approved by the Administrator of SBA
pursuant to Sec. 117.17; and
(4) The expiration of 30 days after SBA has filed with the committee
of the House and the committee of the Senate having legislative
jurisdiction over the form of financial assistance involved, a full
written report of the circumstances and the grounds for such action.
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until:
(1) SBA has determined that compliance cannot be secured by
voluntary means;
(2) The action has been approved by the Administrator or designee;
(3) The expiration of 30 days after SBA has filed with the committee
of the House and the committee of the Senate having legislative
jurisdiction over the form of financial assistance involved, a full
written report of the circumstances and the grounds for such action;
(4) The applicant or recipient has been notified of the failure to
comply, and of the action to be taken to effect compliance; and
(5) The expiration of at least 10 days from the mailing of such
notice to the applicant or recipient or other person. During this period
of at least 10 days
[[Page 204]]
from the mailing of such notice to the applicant or recipient or other
person, additional efforts shall be made to persuade the applicant or
recipient to comply with this part and to take such corrective action as
may be appropriate.
Sec. 117.16 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 117.15, 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.
(1) Fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request the Office of
Hearings and Appeals (OHA) that the matter be scheduled for hearing; or
(2) 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 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 appear at a hearing for which a date has been
set shall be deemed to be a waiver of the right to a hearing and as
consent to the making of a decision on the basis of such information as
is available.
(b) Time and place of hearing. Hearings shall be held at OHA in
Washington, DC, at a time fixed by OHA unless that office determines
that the convenience of the complainant, applicant, recipient or SBA
requires that another place be selected. Hearings shall be held before
an administrative law judge designated in accordance with the
Administrative Procedure Act.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and SBA shall have the right to be represented by
counsel.
(d) Procedures, evidence, and record. (1) The hearings, decisions,
and any administrative review shall be conducted in conformity with the
Administrative Procedure Act and 13 CFR part 134. Such rules of
procedure should be consistent with this section, relate to the conduct
of the hearing, provide for giving of notices to those referred to in
paragraph (a) of this section, taking of testimony, exhibits, arguments,
and briefs, request for findings and other related matters. SBA, the
complainant, if any, 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.
(2) Technical rules of evidence may be waived by the administrative
law judge conducting a hearing pursuant to this part, but rules or
principles designed to assure production of the most credible evidence
available, and subject testimony to test by cross-examination shall be
applied where reasonably necessary. 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 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 the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance or threatened
noncompliance with this part, with respect to two or more forms of
financial assistance to which this part applies, or noncompliance with
this part and the regulations of one or more other Federal agencies
issued under the Act, the Administrator may, by agreement with such
other agencies, provide for the conduct of consolidated or joint
hearings, and for the application to such
[[Page 205]]
hearings of rules and procedures not inconsistent with this part. Final
decisions in such cases, insofar as this part is concerned, shall be
made in accordance with Sec. 117.17.
Sec. 117.17 Decisions and notices.
(a) Decision by an administrative law judge. If the hearing is held
by an administrative law judge, such administrative law judge shall
either make an initial decision, if so authorized, or certify the entire
record, including recommended findings and proposed decision, to the
Administrator for a final decision and a copy of such initial decision
or certification shall be mailed to the applicant or recipient and the
complainant. Where the initial decision is made by the administrative
law judge, the applicant or recipient may, within 30 days of the mailing
of such notice of initial decision, file with the Administrator
exceptions to the initial decision, with the reasons therefor. In the
absence of exceptions, the Administrator may, by motion within 45 days
after the initial decision, serve on the applicant or recipient a notice
that he/she will review the decision. Upon the filing of such exceptions
or of such notice of review, the Administrator shall review the initial
decision and issue his/her decision thereon, including the reasons
therefor. The decision of the Administrator shall be mailed promptly to
the applicant or recipient, and the complainant, if any. In the absence
of either exceptions or a notice of review, the initial decision shall
constitute the final decision of the Administrator.
(b) Decisions on record or review by the Administrator. Whenever a
record is certified to the Administrator for decision or the
Administrator reviews the decision of an administrative law judge
pursuant to paragraph (a) of this section, or whenever the Secretary of
the Department of Health and Human Services or the Department of Justice
conducts the hearing, the applicant or recipient shall be given
reasonable opportunity to file briefs or other written statements of its
contentions and a copy of the final decision of the Administrator shall
be given in writing to the applicant or recipient and the complainant,
if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 117.16, a decision shall be made by
the Administrator 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.
(d) Rulings required. Each decision of an administrative law judge
or the Administrator shall set forth the 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.
(e) Decision by the Administrator. The Administrator shall make any
final decision which provides for the suspension or termination of, or
the refusal to grant or continue Federal financial assistance,
acceleration repayment or the imposition of any other sanction available
under the regulations or taken under other means authorized by law.
(f) Content of orders. The final decision may provide for
accelerating of repayment, suspension or termination of, or refusal to
approve, disburse, or continue Federal financial assistance, in whole or
in part, to which this regulation applies, and may contain such terms,
conditions, and other provisions as are consistent with and will
effectuate the purposes of the Act and this part, including provisions
designed to assure that no Federal financial assistance to which this
regulation applies will, thereafter, be extended to the applicant or
recipient determined by such decision to have failed to comply with this
part, unless and until it corrects its noncompliance and satisfies the
Administrator that it will fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (e) of this
section shall be restored to full eligibility to receive Federal
financial assistance only if it satisfies the terms and conditions of
that order for such eligibility and it brings itself into compliance
with this regulation and provides reasonable assurance that it will
fully comply with this regulation.
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(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the Administrator to restore fully its eligibility to receive
Federal financial assistance. Any such request shall be supported by
information showing that the applicant or recipient has met the
requirements of paragraph (g)(1) of this section. If the Administrator
determines that those requirements have been satisfied, he/she shall
restore such eligibility.
(3) If the Administrator denies any such request, the applicant or
recipient may submit a request for a hearing in writing, specifying why
it believes the denial to have been in error. It shall there upon be
given an expeditious hearing, with a decision on the record, in
accordance with rules and procedures issued by the Administrator. The
applicant or recipient shall be restored to such eligibility if it
proves at such hearing that it satisfied the requirements of paragraph
(g)(1) of this section. While proceedings under this paragraph are
pending, the sanctions imposed by the order issued under paragraph (f)
of this section shall remain in effect.
Sec. 117.18 Judicial review.
(a) The complainant may file a civil action following the exhaustion
of administrative remedies under the Act. Administrative remedies are
exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint
and the Agency has made no finding with regard to the complaint; or
(2) The Agency has issued a finding in favor of the recipient.
(b) If the Agency fails to make a finding within 180 days or issues
a finding in favor of the recipient, the Agency shall:
(1) Advise the complainant of this fact;
(2) Advise the complainant of the right to file a civil action for
injunctive relief; and
(3) Inform the complainant:
(i) That the complainant may bring a civil action only in a United
States district court for the district in which the recipient is found
or transacts business;
(ii) That a complainant prevailing in a civil action has the right
to be awarded the costs of the action, including reasonable attorney's
fees, but that the complainant must demand these costs in the complaint;
(iii) That before commencing the action the complainant shall give
30 days notice by registered mail to the Secretary of the Department of
Health and Human Services, the Attorney General of the United States and
the recipient;
(iv) That the notice must state: The alleged violation of the Act;
the relief requested; the court in which the complainant is bringing the
action; and whether or not attorney's fees are demanded in the event the
complainant prevails; and
(v) That the complainant may not bring an action if the same alleged
violation of the Act by the same recipient is the subject of a pending
action in any court of the United States.
Sec. 117.19 Effect on other regulations.
(a) All regulations, orders or like directions heretofore issued by
SBA which impose requirements designed to prohibit any discrimination
against individuals on the grounds of age and which authorize the
suspension or termination of or refusal to grant or to continue
financial assistance to any applicant for or recipient of such
assistance for failure to comply with such requirements, are hereby
superseded to the extent that such discrimination is prohibited by this
part, except that nothing in this part shall be deemed to relieve any
person of any obligation assumed or imposed under any such superseded
regulation, order, instruction, or like direction prior to the effective
date of this part. Nothing in this part, however, shall be deemed to
supersede any of the following (including future amendments thereof):
(1) Executive Order 11246, as amended, and regulations issued
thereunder;
(2) Title VI of the Civil Rights Act of 1964, as amended;
(3) The Equal Credit Opportunity Act, as amended and Regulation B of
the Board of Governors of the Federal Reserve System, (12 CFR part 202);
[[Page 207]]
(4) Section 504 of the Rehabilitation Act of 1973, as amended;
(5) Title VIII of the Civil Rights Act of 1968;
(6) Title IX of the Educational Amendments of 1972;
(7) Section 633(b) of the Small Business Act;
(8) Part 113 of title 13 of the Code of Federal Regulations (13 CFR
part 113); or
(9) Any other statute, order, regulation or instruction, insofar as
such order, regulations, or instruction prohibits discrimination on the
grounds of age in any program or activity or situation to which this
part is inapplicable on any other ground.
Sec. 117.20 Supervision and coordination.
The Administrator may from time to time assign to officials of SBA
or to officials of other agencies of the Government with the consent of
such agencies, responsibilities in connection with the effectuation of
the purpose of the Act and this part (other than responsibility for
final decision as provided in Sec. 117.17), including the achievement
of effective coordination and maximum uniformity within SBA and within
the Executive Branch of the Government in the application of the Act and
this part to similar programs or activities and in similar situations.
Responsibility for administering and enforcing this part is assigned by
the Administrator, to the Office of Civil Rights Compliance, Office of
Equal Employment Opportunity and Compliance of the Small Business
Administration.
Appendix A to Part 117\1\
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Type of Federal financial assistance Authority
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Business Loans............................ Small Business Act, section
7(a).
Debtor State Development companies (501) Small Business Investment
and their small business concerns. Act, Title V.
Debtor State Development companies (502) Small Business Investment
and their small business concerns. Act, Title V.
Debtor certified development companies Small Business Investment
(503) and their small business concerns. Act, Title V.
Debtor small business investment companies Small Business Investment
and their small business concerns. Act, Title III.
Pollution Control......................... Small Business Investment
Act, Title IV, Part A.
Disaster Loans:
Physical, including riot................ Small Business Act, section
7(b)(1).
Economic Injury (EIDL).................. Small Business Act, section
7(b)(2).
Federal Action Loan Program............. Small Business Act, section
7(b)(3).
Small Business Institute................ Small Business Act, section
8(b)(1).
Small Business Development Centers...... Small Business Act, section
21.
International Trade Program............. Small Business Act, section
22.
Technical and Management Assistance..... Small Business Act, section
7(j).
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\1\ None of the programs administered have any age distinctions except
as statutorily required.