[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR265.23]

[Page 709-710]
 
                        TITLE 49--TRANSPORTATION
 
       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 
                             TRANSPORTATION
 
PART 265--NONDISCRIMINATION IN FEDERALLY ASSISTED RAILROAD PROGRAMS--Table of Contents
 
                          Subpart C--Compliance
 
Sec. 265.23  Procedures for effecting compliance.

    (a) Whenever the Administrator determines that any recipient, or 
contractor has failed to comply with the provisions of this part, or 
with any Federal civil rights statute, or with any order or regulation 
issued under such a statute, and such failure has not been resolved by 
informal means pursuant to Sec. 265.21 of this part, the Administrator 
shall within ten (10) days after such determination notify such 
recipient or contractor, and the appropriate labor organization if the 
matter may appear to affect a person who is covered by a collective 
bargaining agreement, in writing of the specific grounds for alleging 
noncompliance, and the right of such persons to respond to such 
determination in writing or to request an informal hearing. Where the 
Administrator determines that substantial noncompliance exists and it is 
unlikely that compliance will be obtained, or that lack of good 
faithexists, or that other good cause exists, he may order that further 
financial assistance be suspended in whole or in part pending a final 
decision in the matter. Subject to the provisions of paragraphs (b) 
through (e) of this section, the recipient or contractor shall have 
sixty (60) days from the date of delivery of the notice within which to 
comply. The recipient or contractor may be entitled to additional time 
if it is demonstrated that compliance is not possible within the sixty 
day period and that the necessary initial curative actions were 
undertaken promptly and have been diligently prosecuted toward 
completion. The Administrator shall specify the last day upon which 
curative action must be completed to his satisfaction. Unless the 
Administrator determines that compliance cannot be reasonably attained, 
failure to take curative action shall be grounds for the Administrator 
to:
    (1) Direct that no further Federal financial assistance be provided 
to the recipient;
    (2) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted;
    (3) Exercise the powers and functions provided by title VI of the 
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.); or
    (4) Take such other actions as may be provided by law or this part.
    (b) Persons receiving notification and a directive pursuant to 
paragraph (a) of this section may within thirty (30) days after receipt 
respond to the notice in writing in lieu of requesting an informal 
hearing as specified in paragraph (c) of this section. The Administrator 
will make a determination as to compliance within thirty (30) days after 
receipt of such written response, and advise the person in writing of 
his determination. If the Administrator determines that compliance is 
reasonably attainable and that such person has failed to comply with the 
provisions of this part or with his determination within 30 days after 
receipt of his determination, the Administrator shall pursue the 
remedies set forth in the last sentence of paragraph (a) of this 
section.
    (c) Persons receiving notification and a directive pursuant to 
paragraph (a) of this section may within ten (10) days

[[Page 710]]

after receipt request an informal hearing in lieu of filing a written 
response as specified in paragraph (b) of this section. The 
Administrator may, in his discretion, grant a request for an informal 
hearing for the purpose of inquiring into the status of compliance of 
such person. The Administrator will advise persons subject to his 
directive in writing as to the time and place of the informal hearings 
and may direct such persons to bring specific documents and records, or 
furnish other relevant information concerning their compliance status. 
When so requested, such person shall attend and bring the requested 
information. The time and place so fixed shall be reasonable and shall 
be subject to change for cause. The complainant, if any, shall be 
advised of the time and place of the hearing. The failure of such person 
to request a hearing or to appear at a hearing for which a date has been 
set shall be deemed to be a consent to the applicability of the 
procedures set forth in paragraph (a) of this section.
    (d) The hearing shall be conducted by a hearing officer appointed by 
the Administrator. Such hearings shall commence within twenty (20) days 
from the date the hearing is granted and shall be concluded no later 
than thirty (30) days from the commencement date. Parties to informal 
hearings may be represented by counsel or other authorized 
representative and shall have a fair opportunity to present any relevant 
material. Formal rules of evidence will not apply to such proceedings.
    (e) Decisions and notices. (1) Within ten (10) days after the 
conclusion of such hearings, the hearing officer will advise the 
Administrator, in writing, of his views and recommendations as to 
compliance with this part and a copy of such decision shall be sent by 
registered mail, return receipt requested, to the recipient or 
contractor and participating labor organization. If the hearing officer 
in his decision determines that the recipient or contractor is in 
noncompliance with this part, he may, if he determines that it is 
unlikely that compliance will be obtained, or that a lack of good faith 
exists, or for other good cause, order that further financial assistance 
be suspended in whole or in part, pending a decision by the 
Administrator in the matter.
    (2) The recipient, contractor or labor organization may file 
exceptions to the hearing officer's decision, with his reasons therefor, 
with the Administrator within thirty (30) days of receipt of the initial 
decision. Within twenty (20) days, after the time for filing exceptions, 
the Administrator shall determine, in writing, whether or not the 
parties involved are in compliance with this part. A copy of the 
Administrator's decision will be given to the recipient, contractor, 
labor organization, if appropriate, and to the complainant, if any.
    (3) If the Administrator determines that compliance can reasonably 
be attained, his decision shall provide that if such person fails or 
refuses to comply with the decision of the Administrator within thirty 
(30) days after receipt of the decision, the Administrator shall:
    (i) Direct that no further Federal assistance be provided to such a 
person;
    (ii) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted;
    (iii) Exercise the powers and functions provided by title VI of the 
Civil Rights Act of 1964; and/or
    (iv) Take such other actions as may be provided by law or this part.
    (4) A recipient or contractor adversely affected by a decision of 
the Administrator issued under paragraph (a) or (b) of this section 
shall be restored to full eligibility to receive Federal assistance or 
award of a federally assisted contract if the recipient or contractor 
takes complete curative action to eliminate the noncompliance with this 
part and if the recipient or contractor provides reasonable assurance 
that the recipient or contractor will fully comply with this part.