[Code of Federal Regulations]

[Title 49, Volume 4]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR265.23]



[Page 831-833]

 

                        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:



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    (1) Direct that no further Federal financial assistance be provided 

to the recipient;

    (2) Refer the matter to the Attorney General with a recommendation 

that an appropriate civil action be instituted;

    (3) Exercise the powers and functions provided by title VI of the 

Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.); or

    (4) Take such other actions as may be provided by law or this part.

    (b) Persons receiving notification and a directive pursuant to 

paragraph (a) of this section may within thirty (30) days after receipt 

respond to the notice in writing in lieu of requesting an informal 

hearing as specified in paragraph (c) of this section. The Administrator 

will make a determination as to compliance within thirty (30) days after 

receipt of such written response, and advise the person in writing of 

his determination. If the Administrator determines that compliance is 

reasonably attainable and that such person has failed to comply with the 

provisions of this part or with his determination within 30 days after 

receipt of his determination, the Administrator shall pursue the 

remedies set forth in the last sentence of paragraph (a) of this 

section.

    (c) Persons receiving notification and a directive pursuant to 

paragraph (a) of this section may within ten (10) days after receipt 

request an informal hearing in lieu of filing a written response as 

specified in paragraph (b) of this section. The Administrator may, in 

his discretion, grant a request for an informal hearing for the purpose 

of inquiring into the status of compliance of such person. The 

Administrator will advise persons subject to his directive in writing as 

to the time and place of the informal hearings and may direct such 

persons to bring specific documents and records, or furnish other 

relevant information concerning their compliance status. When so 

requested, such person shall attend and bring the requested information. 

The time and place so fixed shall be reasonable and shall be subject to 

change for cause. The complainant, if any, shall be advised of the time 

and place of the hearing. The failure of such person to request a 

hearing or to appear at a hearing for which a date has been set shall be 

deemed to be a consent to the applicability of the procedures set forth 

in paragraph (a) of this section.

    (d) The hearing shall be conducted by a hearing officer appointed by 

the Administrator. Such hearings shall commence within twenty (20) days 

from the date the hearing is granted and shall be concluded no later 

than thirty (30) days from the commencement date. Parties to informal 

hearings may be represented by counsel or other authorized 

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



[[Page 833]]



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.