[Code of Federal Regulations]

[Title 32, Volume 1]

[Revised as of July 1, 2006]

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

[CITE: 32CFR56.9]



[Page 333-342]

 

                       TITLE 32--NATIONAL DEFENSE

 

              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE

 

PART 56_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS AND 

ACTIVITIES ASSISTED OR CONDUCTED BY THE DEPARTMENT OF DEFENSE--Table 

of Contents

 

Sec.  56.9  Ensuring compliance with this part in Federal financial 

assistance programs and activities.



    (a) Supplementary guidelines issued by DoD Components. (1) Whenever 

necessary, DoD Components shall publish supplementary guidelines for 

each type of program or activity to which they disburse Federal 

financial assistance within 120 days of the effective date of this part 

or of the effective date of any subsequent statute authorizing Federal 

financial assistance to a new type of program or activity. DoD 

Components shall obtain approval of these supplementary guidelines from 

the ASD(MRA&L), or designee, before issuing them. Prior to their 

issuance, the ASD(MRA&L), or designee, shall submit supplementary 

guidelines prepared pursuant to paragraph (a)(1) of this section to the 

Coordination and Review Section, Civil Rights Division, Department of 

Justice, for review and approval. To the extent that supplementary 

guidelines issued by DoD Components deal with the employment of 

civilians in programs and activities subject to this part the 

ASD(MRA&L), or designee, shall also obtain the approval of the Equal 

Employment Opportunity Commission (EEOC) in accordance with Executive 

Order 12067.

    (2) The ASD(MRA&L), or designee, and DoD Components shall ensure 

that their supplementary guidelines conform to the requirements of this 

part and that they provide:

    (i) A description of the types of programs and activities covered.

    (ii) Examples of prohibited practices likely to arise with respect 

to those types of programs and activities.

    (iii) A list of the data collection and reporting requirements of 

the recipients.

    (iv) Procedures for processing and investigating complaints.

    (v) Procedures for hearings to determine compliance by recipients 

with this part.

    (vi) Requirements or suggestions for affirmative action on behalf of 

qualified handicapped persons.

    (vii) Requirements for the dissemination of program and complaint 

information to the public.

    (viii) A description of the form of the assurances that must be 

executed pursuant to paragraph (b) of this section, and sample 

assurances.

    (ix) Requirements concerning the frequency and nature of 

postapproval reviews conducted pursuant to paragraph (h) of this 

section.

    (x) A period of time, provided for by Sec.  56.8(c)(2)(ii)(B), for 

the development of a transition plan that sets out the steps necessary 

to complete structural changes that might be required by Sec.  56.8(c).

    (xi) The maximum period of time that may be allowed for extensions 

that might be granted pursuant to Sec.  56.8(c)(2)(ii).



[[Page 334]]



    (xii) An appendix that contains a list of identified programs and 

activities of the type covered by the supplementary guidelines, 

including the names of the programs and activities and the authorizing 

statute, regulation, or directive for each program and activity.

    (xiii) Requirements for the recipient to designate a responsible 

official to coordinate the implementation of supplementary guidelines.

    (xiv) Requirements for any other actions or procedures necessary to 

implement this part.

    (3) When the head of a DoD Component determines that it would not be 

appropriate to include on or more of the provisions described in 

paragraph (a)(2) of this section, in the supplementary guidelines of 

that DoD Component or that it is not necessary to issue such guidelines 

at all, the reasons for such determination shall be stated in writing 

and submitted to the ASD(MRA&L), or designee, for review and approval. 

Once that determination is approved, the DoD Component shall make it 

available to the public upon request.

    (4) The heads of DoD Components, or designees, shall be responsible 

for keeping the supplementary guidelines current and accurate. When a 

DoD Component determines that a program or activity should be added to 

or deleted from the guidelines, the DoD Component shall notify the 

ASD(MRA&L), or designee, in writing.

    (b) Required assurances. (1) DoD Components shall require all 

recipients to file written assurances that their programs or activities 

will be conducted in accordance with this part and supplementary 

guidelines promulgated by DoD Components. If a recipient fails to 

provide an assurance that conforms to the requirements of this section, 

the DoD Component shall attempt to effect compliance pursuant to 

paragraphs (f) through (h) of this section, provided that if assistance 

is due and payable to the recipient based on an application approved 

prior to the effective date of this part the DoD Component shall 

continue the assistance while any proceedings required by paragraphs (n) 

through (v) of this section, are pending.

    (2) DoD Components shall advise each recipient of the required 

elements of the assurance and, with respect to each program or activity, 

of the extent to which those receiving assistance from recipients shall 

be required to execute similar assurances.

    (3) DoD Component shall ensure that each assurance:

    (i) Obligates the recipient to advise the DoD Component of any 

complaints received that allege discrimination against handicapped 

persons.

    (ii) Obligates the recipient to collect and provide the items of 

information that the DoD Component lists in its supplementary guidelines 

pursuant to paragraph (a)(2)(iii) of this section.

    (iii) Is made applicable to any Federal financial assistance that 

might be disbursed by a DoD Component without the submission of a new 

application.

    (iv) Obligates the recipient, when the financial assistance is in 

the form of proprerty, for the period during which the property is used 

under a financial assistance agreement or is possessed by the recipient.

    (v) Includes a provision recognizing that the U.S. Government has 

the right to seek judicial enforcement of section 504 and this part.

    (c) Self-evaluation and consultation with interested persons and 

organizations. (1) DoD Components shall require recipients to conduct, 

within 6 months of the effective date of this part or of first receiving 

Federal financial assistance disbursed by the Department of Defense, a 

self-evaluation with the assistance of interested persons, including 

handicapped persons or organizations that represent them. When 

appropriate, DoD Components also shall require recipients to consult at 

least annually with such persons. The ``Department of Health, Education, 

and Welfare Section 504 Technical Assistance Reserve Directory,'' April 

1980, shall be consulted to identify likely sources for consultation. In 

conducting its self-evaluation, each recipient shall:

    (i) Evaluate the effects of its policies and practices with respect 

to its compliance with this part and the applicable DoD Component's 

supplementary guidelines.

    (ii) Modify any policies that do not meet such requirements.



[[Page 335]]



    (iii) Take appropriate remedial steps to eliminate the 

discriminatory effects of any such policies or practices.

    (2) For at least 3 years following the completion of a self-

evaluation required under paragraph (c)(1) of this section, a recipient 

shall maintain on file, make available for public inspection, and 

provide to the ASD(MRA&L), or designee, upon request:

    (i) A list of the interested persons (last names, first names, and 

middle initials) consulted.

    (ii) A description of areas examined and problems identified, if 

any, with respect to those areas.

    (iii) A description of any modification made and remedial steps 

taken.

    (d) Dissemination of information. (1) Within 90 days of the 

effective date of this part or of first receiving assistance from the 

Department of Defense and on a continuing basis thereafter, each 

recipient shall notify beneficiaries and employees of their rights under 

this part and shall take appropriate steps to notify participants, 

beneficiaries, applicants for employment and employees, including those 

with impaired vision or hearing, and unions or professional 

organizations involved in collective bargaining or professional 

agreements with the recipient that the recipient does not discriminate 

on the basis of handicap in violation of this part. The notification 

shall state, when appropriate, that the recipient does not discriminate 

in admitting or providing access to or treating or employing persons in 

its programs and activities. Such notification may be accomplished by 

posting notices, publishing announcements in newspapers and magazines, 

placing notices in its publications, or distributing memoranda or other 

written communications.

    (2) If a recipient publishes or uses and makes available to 

participants, beneficiaries, applicants for employment, or employees 

recruitment materials or publications containing general information 

about the recipient's programs and activities, it shall include in those 

materials or publications a statement of the policy described in 

paragraph (d)(1) of this section. This may be accomplished by including 

appropriate inserts in existing materials and publications or by 

revising and reprinting the materials and publications.

    (3) Understandable materials developed in accordance with this 

section shall be provided to ensure that all beneficiaries and employees 

of the recipient understand the information. In addition, recipients 

shall disseminate appropriate and comprehensive information about formal 

and informal complaint and appeal procedures, including directions on 

how and where to file complaints and to appeal DoD Component decisions.

    (e) Intimidation and interference. Recipients and DoD Components 

shall take reasonable steps to ensure that no person intimidates, 

threatens, coerces, or discriminates against any individual for the 

purpose of retaliating against, interfering with, or discouraging the 

filing of a complaint, furnishing of information, or assisting or 

participating in an investigation, compliance review, hearing, or other 

activity related to the administration of this part.

    (f) Staff responsibilities. All DoD Component determinations of 

recipient compliance with this part shall be subject to reviews by the 

ASD(MRA&L), or designee. When responsibility for approving applications 

for Federal financial assistance disbursed by a DoD Component is 

assigned to regional or area offices of the DoD Component, personnel in 

such offices shall be designated to perform the functions described in 

paragraphs (h) and (o) through (w) of this section.

    (g) Access to records and facilities. Each recipient shall permit 

access to its premises by DoD officials during normal business hours 

when such access is necessary for conducting onsite compliance reviews 

or complaint investigations, and shall allow such officials to 

photograph facilities and to inspect and copy any books, records, 

accounts, and other material relevant to determining the recipient's 

compliance with this part. Information so obtained shall be used only in 

connection with the administration of this part. If the recipient does 

not have the information requested, it shall submit to the DoD Component 

a written report that contains a certification that the information is 

not available and describes the



[[Page 336]]



good-faith efforts made to obtain the information.

    (h) Compliance review. DoD Components shall determine the compliance 

of each recipient with this part as follows: (1) General. Whenever 

possible, DoD Components shall perform compliance reviews in conjunction 

with their review and audit efforts implementing title VI of the Civil 

Rights Act of 1964.

    (2) Desk audit application review. Before approving an application 

for Federal financial assistance, the DoD Component concerned shall make 

a written determination as to whether the recipient is in compliance 

with this part, based on a review of the assurance of compliance 

executed by a recipient pursuant to paragraph (b) of this section, and 

other data submitted by the recipient. When a determination cannot be 

made from the assurance and other data submitted by the recipient, the 

DoD Component concerned shall require the recipient to submit additional 

information and shall take other steps as necessary to determine the 

recipient's compliance with this part. If this additional information 

demonstrates that the recipient is in compliance with this part, the DoD 

Component shall notify the recipient promptly that it is in compliance.

    (3) Preapproval onsite review. (i) When a desk audit application 

review conducted pursuant to paragraph (h)(2) of this section indicates 

that the recipient might not be in compliance with this part, the DoD 

Component concerned may conduct a preapproval onsite review at the 

recipient's facilities before approving the disbursement of Federal 

financial assistance to the recipient. The DoD Component shall conduct 

such a review:

    (A) When appropriate, if a desk audit application review reveals 

that the recipient's compliance posture is questionable because of a 

history of discrimination complaints, current discrimination complaints, 

a noncompliance determination by another government agency or DoD 

Component, or other indications of possible noncompliance; or

    (B) If Federal financial assistance is requested for construction, 

except under extraordinary circumstances, to determine whether the 

location and design of the project would provide service on a 

nondiscriminatory basis, in conformity with Sec.  56.8(c).

    (ii) Preapproval onsite reviews shall be conducted under DoD 

Component supplementary guidelines and in accordance with the provisions 

of paragraph (h)(4) of this section, concerning postapproval reviews.

    (4) Postapproval reviews. DoD Components shall: (i) Establish and 

maintain effective programs of postapproval reviews.

    (ii) Conduct such reviews of each recipient, the frequency and the 

nature of which shall be prescribed in the DoD Component supplemetary 

guidelines implementing this part.

    (iii) Require recipients periodically to submit compliance reports 

to them.

    (iv) Record the results of the reviews, including findings of fact 

and recommendations.

    (5) A DoD Component shall complete a review within 180 calendar days 

of initiating it unless an extension of time is granted by the 

ASD(MRA&L), or designee, for good cause shown, and shall either:

    (i) Find the recipient to be in compliance and notify the recipient 

of that finding; or

    (ii) Notify the recipient and the ASD(MRA&L), or designee, of a 

finding of probable noncompliance, pursuant to paragraph (o) of this 

section.

    (i) Filing of complaints against recipients. (1) DoD Components 

shall establish and publish in their supplementary guidelines procedures 

for the prompt processing and disposition of complaints against 

recipients, consistent with this section.

    (2) A DoD Component shall consider all complaints that: (i) Are 

filed with it within 180 days of the alleged discrimination or within a 

longer period of time if an extension is granted for good cause by the 

DoD Component with the approval of the ASD(MRA&L), or designee.

    (ii) Include the name, address, and telephone number, if any, of the 

complainant; the name and address of the recipient committing the 

alleged discrimination; a description of the acts or omissions 

considered to be discriminatory; and other pertinent information.



[[Page 337]]



    (iii) Are signed by the complainant or the complainant's authorized 

representative (legal counsel or a person with power of attorney granted 

by the complainant).

    (3) DoD Components shall transmit a copy of each complaint filed 

with them to the ASD(MRA&L), or designee, within 10 calendar days after 

its receipt.

    (4) If the information in a complaint is incomplete, the DoD 

Component shall request the complainant to provide the additional 

information required. If the DoD Component does not receive this 

requested information within 30 calendar days of the date of the 

request, the case may be closed and the complainant so notified in 

writing.

    (5) If a complaint concerning a program or activity is filed with a 

DoD Component that does not have jurisdiction over it, the DoD Component 

shall refer the complaint to the ASD(MRA&L), or designee, and advise the 

complainant in writing of such referral. The ASD(MRA&L), or designee, 

then shall refer the complaint to the appropriate DoD Component and so 

notify the complainant in writing.

    (j) Investigation by DoD components. (1) DoD Components shall 

investigate complaints that involve recipients and that meet the 

standards described in paragraph (i) of this section, unless good cause 

for not investigating is stated in a written notification of the 

disposition of the complaint provided to the complainant.

    (2) If an investigation of a complaint is conducted, the DoD 

Component concerned shall maintain a case record that contains:

    (i) The name (last name, first, and middle initial), address (street 

address, city, State, and zip code), and telephone number of each person 

interviewed.

    (ii) Copies, transcripts, or summaries of pertinent documents.

    (iii) A reference to at least one program or activity conducted by 

the recipient and receiving Federal financial assistance disbursed by a 

DoD Component, and a description of the amount and nature of the 

assistance.

    (iv) A narrative report of the results of the investigation that 

contains references to relevant exhibits and other evidence that relates 

to the alleged violations.

    (k) Investigations by recipients. (1) A DoD Component may require or 

permit recipients to investigate complaints alleging violation of this 

part. In such cases, the DoD Component shall:

    (i) Ensure that the recipient investigates the complaints in 

accordance with the standards, procedures, and requirements prescribed 

in paragraph (j) of this section.

    (ii) Require the recipient to submit a written report of each 

complaint and investigation to the DoD Component.

    (iii) Retain a review responsibility over the investigation and 

disposition of each complaint.

    (iv) Ensure that each complaint investigation is completed within 

180 calendar days of the receipt of the complaint by the proper DoD 

Component, unless an extension of time is granted for good cause by the 

ASD(MRA&L), or designee.

    (v) Require the recipient to maintain a log of all complaints filed 

against it, as described in Sec.  56.6(a)(1).

    (2) DoD Components that require or permit complaint investigations 

to be conducted by recipients shall review recipient complaint 

investigations pursuant to paragraphs (k) and (l) of this section.

    (l) Results of investigations. (1) Within 180 days of the receipt of 

a complaint, the DoD Component, recipient, or the ASD(MRA&L), or 

designee, shall give written notification:

    (i) Of the disposition of the complaint to the complainant and, as 

the case may be, to the recipient or DoD Component.

    (ii) To the complainant that within 30 calendar days of receipt of 

the written notification, the complainant may request that the 

ASD(MRA&L), or designee, review the findings in the notification 

pursuant to paragraph (m) of this section.

    (2) If the complaint investigation results in a determination by the 

DoD Component that a recipient is not complying with this part the DoD 

Component shall proceed as prescribed in paragraph (n) through (v) of 

this section. If the DoD Component determines that the recipient is in 

compliance, the



[[Page 338]]



DoD Component shall submit the complete case file to the ASD(MRA&L), or 

designee, within 15 calendar days after the notification of the 

disposition of the investigation to the complainant.

    (m) Reviewing completed investigations. (1) The ASD(MRA&L), or 

designee, may review all completed investigations.

    (2) The ASD(MRA&L), or designee, shall review the results of any 

investigation of a complaint if the complainant requests such a review 

pursuant to paragraph (l)(1)(ii) of this section.

    (3) After reviewing the results of an investigation, the ASD(MRA&L), 

or designee, may:

    (i) Find that no further investigation is necessary and approve the 

results of the investigation;

    (ii) Request further investigation by the DoD Component; or

    (iii) Require the DoD Component to take appropriate corrective 

action.

    (n) Effecting compliance. (1) When a compliance review or complaint 

investigation indicates that a recipient has violated this part, the 

applicable DoD Component's supplementary guidelines, or the assurances 

executed pursuant to paragraph (b) of this section, the responsible DoD 

Component or the ASD(MRA&L), or designee, shall attempt to effect 

compliance in accordance with paragraphs (o) and (p) of this section. 

The inability of a DoD Component to comply with any time frame 

prescribed by this part does not relieve a recipient of the 

responsibility for compliance with this part.

    (2) The DoD Component may require, when necessary to overcome the 

effects of discrimination in violation of this part, a recipient to take 

remedial action:

    (i) With respect to handicapped persons who are no longer 

participants in the recipient's program or activity but who were 

participants in the program or activity when such discrimination 

occurred.

    (ii) With respect to handicapped persons who would have been 

participants in the recipient's program or activity had the 

discrimination not occurred.

    (iii) With respect to handicapped persons presently in the 

recipient's program or activity, but not receiving full benefits or 

equal and integrated treatment within the program or activity.

    (o) Written notice.  After evaluating the investigative report, the 

DoD Component shall issue to the recipient and, pursuant to paragraph 

(n)(2) of this section to the ASD(MRA&L), or designee, a written notice 

that:

    (1) Describes the apparent violation and the corrective actions 

necessary to achieve compliance.

    (2) Extends an offer to meet informally with the recipient.

    (3) Informs the recipient that failure to respond to the notice 

within 15 calendar days of its receipt shall result in the initiation of 

enforcement procedures described in paragraphs (r) through (v), of this 

section.

    (p) Attempting to achieve voluntary compliance by recipients. (1) If 

a DoD Component issues a notice pursuant to paragraph (o) of this 

section, the DoD Component shall attempt to meet with the recipient and 

shall attempt to persuade it to take the steps necessary to achieve 

compliance with this part.

    (2) If a recipient agrees to take remedial steps to achieve 

compliance, the DoD Component shall require that the agreement be in 

writing and:

    (i) Be signed by the head of the DoD Component concerned, or 

designee, and by the principal official of the recipient.

    (ii) Specify the action necessary to achieve compliance.

    (iii) Be made available to the public upon request.

    (iv) Be subject to the approval of the ASD(MRA&L), or designee.

    (3) If satisfactory adjustment or a written agreement has not been 

achieved within 60 calendar days of the recipient's receipt of the 

notice issued pursuant to paragraph (o) of this section, the DoD 

Component shall notify the ASD(MRA&L), or designee, and state the 

reasons therefor.

    (4) The DoD Component shall initiate the enforcement actions 

prescribed in paragraphs (r) through (v) of this section if:

    (i) The recipient does not respond to a notice pursuant to paragraph 

(o) of this section, within 15 calendar days of its receipt and 

satisfactory adjustments are not made within 45 calendar



[[Page 339]]



days of the date of the recipient's response; or

    (ii) The DoD Component or the ASD (MRA&L) determines at any time 

within 90 days after the recipient receives a notice pursuant to 

paragraph (o) of this section, that, despite reasonable efforts, it is 

not likely that the recipient will comply promptly and voluntarily.

    (5) If, pursuant to paragraph (p)(4) of this section, the DoD 

Component initiates enforcement action, it also shall continue its 

attempts to persuade the recipient to comply voluntarily.

    (q) Imposing sanctions--(1) Sanctions available. If a DoD Component 

has taken action pursuant to paragraphs (o) and (p) of this section, the 

DoD Component may, by order, subject to paragraph (q)(2) and (q)(3) of 

this section:

    (i) Terminate, suspend, or refuse to grant or continue assistance to 

such recipient.

    (ii) Refer the case to the Department of Justice for the initation 

of enforcement proceedings at a Federal, State, or local level.

    (iii) Pursue any remedies under State or local law.

    (iv) Impose other sanctions upon consultation with the ASD (MRASL), 

or designee.

    (2) Terminating, suspending, or refusing to grant or continue 

assistance. A DoD Component may not terminate or refuse to grant or 

continue Federal financial assistance unless:

    (i) Such action has been approved by the Secretary of Defense.

    (ii) The DoD Component has given the recipient an opportunity for a 

hearing pursuant to the procedures set out in paragraph (r) of this 

section, and a finding of noncompliance has resulted.

    (iii) Thirty calendar days have elapsed since the Secretary of 

Defense has filed a written report describing the violation and action 

to be taken with the committees of the House of Representatives and 

Senate that have jurisdiction over the program or activity in which the 

violation of this part exists.

    (iv) Such action is limited to affect only the particular activity 

or program, or portion thereof, of the recipient where the violation 

exists.

    (3) Other sanctions. A DoD Component may not impose the sanctions 

set out in paragraphs (q)(1) (iii) and (iv) of this section, unless:

    (i) The DoD Component has given the recipient an opportunity for a 

hearing pursuant to paragraph (r) of this section, and a finding of 

noncompliance has resulted.

    (ii) The action has been approved by the Secretary of Defense.

    (iii) Ten calendar days have elapsed since the mailing of a notice 

informing the recipient of its continuing failure to comply with this 

part the action necessary to achieve compliance, and the sanction to be 

imposed.

    (iv) During those 10 calendar days the DoD Component has made 

additional efforts to persuade the recipient to comply.

    (r) Hearings for recipients--(1) General. When, pursuant to 

paragraph (q)(2)(ii) of this section, an opportunity for a hearing is 

given to a recipient, the DoD Component involved shall follow the 

procedures prescribed in paragraphs (r)(2) through (r)(6) of this 

section.

    (2) Notice. The DoD Component concerned shall notify the recipient 

of the opportunity for a hearing by registered or certified mail, return 

receipt requested, when the recipient denies a tentative finding of 

noncompliance with this part.

    (i) The DoD Component shall ensure that the notice:

    (A) Describes the proposed sanctions to be imposed.

    (B) Cites the section of this part under which the proposed action 

is to be taken.

    (C) States the name and office of the DoD Component official who is 

responsible for conducting the hearing (hereafter referred to as the 

``responsible DoD official'').

    (D) Outlines the issues to be decided at the hearing.

    (E) Advises the recipient either of a date, not less than 20 

calendar days after the date that the notice is received, by which the 

recipient may request that the matter be scheduled for a hearing, or of 

a reasonable time and place of a hearing that is subject to change for 

good cause shown.

    (ii) When a time and place for a hearing are set, the DoD Component 

shall



[[Page 340]]



give the recipient and the complainant, if any, reasonable notice of 

such time and place.

    (3) Waiver of a hearing. A recipient may waive a hearing and submit 

to the responsible DoD official, in writing, information or arguments on 

or before the date stated pursuant to paragraph (r)(2)(i)(E) of this 

section.

    (i) A recipient waives its right to a hearing if it fails to request 

a hearing on or before a date stated pursuant to paragraph (r)(2)(i)(E) 

of this section, or fails to appear at a hearing that has been scheduled 

pursuant to that paragraph.

    (ii) If a recipient waives its right to a hearing under this 

section, the responsible DoD official shall decide the issues and render 

a final decision that is based on the information available and that 

conforms to the requirements of paragraph (s)(4) of this section.

    (4) Hearing examiner. Hearings shall be conducted by the responsible 

DoD official or by a hearing examiner designated by the official, 

provided that the hearing examiner shall be a field grade officer or 

civilian employee above the grade of GS-12 (or the equivalent) who is 

admitted to practice law before a Federal court or the highest court of 

a State, territory, commonwealth, or the District of Columbia.

    (5) Right to counsel. In all proceedings under this section, the 

recipient and the DoD Component may be represented by counsel. The 

representation of the recipient will not be at U.S. Government expense.

    (6) Procedures. Hearings authorized under this section shall be 

subject to the following: (i) Hearings shall be open to the public.

    (ii) Formal rules of evidence will not apply. The DoD Component 

concerned and the recipient shall be entitled to introduce all relevant 

evidence on the issues stated in the notice of hearing issued pursuant 

to paragraph (r)(2) of this section, and those designated by the 

responsible DoD official or the hearing examiner at the outset of or 

during the hearing. The responsible DoD official or hearing examiner, 

however, may exclude irrelevant, immaterial, or repetitious evidence.

    (iii) All witnesses may be examined or cross-examined, as the case 

may be, by each party.

    (iv) All parties shall have the opportunity to examine all evidence 

offered or admitted for the record.

    (v) A transcript of the proceedings shall be maintained in either 

electronic or typewritten form and made available to all parties.

    (s) Decisions--(1) Initial or proposed decisions by a hearing 

examiner. If a hearing is conducted by a hearing examiner who is 

designated by the responsible DoD official pursuant to paragraph (r)(4) 

of this section, the hearing examiner shall either:

    (i) Make an initial decision, if so authorized, that conforms to the 

requirements of paragraph (s)(4) of this section; or

    (ii) Certify the entire record and submit to the responsible DoD 

official recommended findings and a proposed decision.

    (2) Review of initial decisions. Initial decisions made by a hearing 

examiner pursuant to paragraph (s)(1)(i) of this section, shall be 

reviewed as follows:

    (i) A recipient may file exceptions to an initial decision within 30 

calendar days of receiving notice of such initial decision. Reasons 

shall be stated for each exception.

    (ii) If the recipient does not file exceptions pursuant to paragraph 

(s)(2)(i) of this section, the responsible DoD official may notify the 

recipient within 45 calendar days of the initial decision that the 

responsible DoD official will review the decisions.

    (iii) If exceptions are filed pursuant to paragraph (s)(2)(i) of 

this section, or a notice of review is issued pursuant to paragraph 

(s)(2)(ii) of this section, the responsible DoD official shall review 

the initial decision and, after giving the recipient reasonable 

opportunity to file a brief or other written statement of its 

contentions, issue a final decision that addresses each finding and 

conclusion in the initial decision and each exception, if any.

    (iv) If the exceptions described in paragraph (s)(2)(i) of this 

section are not filed and the responsible DoD official does not issue 

the notice of review described in paragraph (s)(2)(ii) of this section, 

the initial decision of the



[[Page 341]]



hearing examiner shall constitute the final decision of the responsible 

DoD official.

    (3) Decisions by the responsible DoD official who conducts a hearing 

or receives a certified record. If a hearing examiner who is designated 

by the responsible DoD official certifies the entire record and submits 

recommended findings and a proposed decision to the responsible DoD 

official pursuant to paragraph (s)(1)(ii) of this section, or if the 

responsible DoD official conducts the hearing, after giving the 

recipient a reasonable opportunity to file a brief or other written 

statement of its contentions, the responsible DoD official shall render 

a final decision that conforms to paragraph (s)(4) of this section.

    (4) Contents of decisions. Each decision of a hearing examiner or 

responsible DoD official shall state all findings and conclusions and 

identify each violation of this part. The final decision may contain an 

order pursuant to paragraph (q) of this section, providing for the 

suspension or termination of or refusal to grant or continue all or some 

of the Federal financial assistance under the program or activity 

involved and contain terms, conditions, and other provisions that are 

consistent with and intended to achieve compliance with this Directive.

    (5) Notice of decisions and certifications. The responsible DoD 

official shall provide a copy of any certified record of a hearing and 

any initial or final decision to the recipient and the complainant, if 

any.

    (6) Review by the Secretary of Defense. The responsible DoD official 

shall transmit promptly any final decision that orders a suspension, 

termination, or denial of Federal financial assistance through the 

ASD(MRA&L) to the Secretary of Defense. The Secretary may;

    (i) Approve the decision;

    (ii) Vacate the decision; or

    (iii) Remit or mitigate any sanction imposed.

    (t) Restoring eligibility for financial assistance. (1) A recipient 

that is affected adversely by a final decision issued under paragraph 

(s) of this section, may at any time request the responsible DoD 

official to restore fully its eligibility to receive Federal financial 

assistance.

    (2) If the responsible DoD official determines that the information 

supplied by the recipient demonstrates that it has satisfied the terms 

and conditions of the order entered pursuant to paragraph (s) of this 

section, and that is complying with and has provided reasonable 

assurance that it will continue to comply with this part the responsible 

DoD official shall restore such eligibility immediately.

    (3) If the responsible DoD official denies a request for restoration 

of eligibility, the recipient may submit a written request for a hearing 

that states why it believes the responsible DoD official erred in 

denying the request. Following such a written request, the recipient 

shall be given an expeditious hearing under rules of procedure issued by 

the responsible DoD official to determine whether the requirements 

described in paragraph (t)(2) of this section, have been met. While any 

such proceedings are pending, the sanctions imposed by the order issued 

under paragraph (s) of this section, shall remain in effect.

    (u) Interagency cooperation and delegation. (1) When several 

recipients are receiving assistance for the same or similar purposes 

from a DoD Component and another Federal agency, the DoD Component shall 

notify the ASD (MRA&L), or designee. Such notification shall be in 

writing and shall contain:

    (i) A description of the programs and activities involved.

    (ii) A statement of the amount of money expended on the programs and 

activities in the previous and current fiscal year by the DoD Component 

and the agency.

    (iii) A list of the known primary recipients.

    (2) The ASD(MRA&L), or designee, shall attempt to negotiate with the 

Federal agency a written delegation agreement that designates the agency 

or the DoD Component as the primary agency for purposes of ensuring 

compliance with section 504 of Public Law 93-112, as amended, and this 

part depending upon which of them administers a larger financial 

assistance program with the common recipients and other



[[Page 342]]



relevant factors. If necessary, the agreement shall establish procedures 

to ensure the enforcement of section 504 of Public Law 93-112, as 

amended, and this part. The ASD(MRA&L), or designee, shall provide 

written notification to recipients of an agreement reached under this 

subsection.

    (3) When several recipients are receiving assistance for the same or 

similar purposes from two or more DoD Components, the DoD Components may 

negotiate a proposed written delegation agreement that:

    (i) Assigns responsibility for ensuring that the recipient complies 

with this part to one of the DoD Components.

    (ii) Provides for the notification to recipients and the responsible 

program officials of the DoD Components involved of the assignment of 

enforcement responsibility.

    (4) No delegation agreement reached in accordance with paragraph 

(u)(3) to this section shall be effective until it is approved by the 

ASD(MRA&L), or designee.

    (5) When possible, existing delegation agreements relating to title 

VI of the Civil Rights Act of 1964 shall be amended to provide for the 

enforcement of this part.

    (6) Any DoD Component conducting a compliance review or 

investigating a complaint of an alleged violation by a recipient shall 

notify any other affected agency or DoD Component through the 

ASD(MRA&L), or designee, upon discovery that the agency or DoD Component 

has jurisdiction over the program or activity in question and shall 

subsequently inform it of the finding made. Such reviews or 

investigations may be conducted on a joint basis.

    (7) When a compliance review or complaint investigation under this 

part reveals a possible violation of Executive Order 11246, titles VI or 

VII of the Civil Rights Act of 1964, or any other Federal law, the DoD 

Component shall notify the appropriate agency, through the ASD(MRA&L), 

or designee.

    (v) Coordination with sections 502 and 503. (1) DoD Components shall 

use DoD 4270.1-M and Department of the Army, Office of the Chief of 

Engineers, Manual EM 1110-1-103, in developing requirements for the 

accessibility of facilities. If DoD Components encounter issues with 

respect to section 502 of the Rehabilitation Act of 1973, as amended, 

that are not covered by these publications, the ASD(MRA&L), or designee, 

may be consulted. If necessary, the ASD(MRA&L), or designee, shall 

consult with the Architectural and Transportation Barriers Compliance 

Board in resolving such problems.

    (2) DoD Components may advise recipients to consult directly with 

the Architectural and Transportation Barriers Compliance Board in 

developing accessibility criteria.

    (3) DoD Components shall coordinate enforcement actions relating to 

the accessibility of facilities with the Architectural and 

Transportation Barriers Compliance Board and shall notify the 

ASD(MRA&L), or designee, of such coordination.

    (4) If a recipient is also a Federal contractor subject to section 

503 of the Rehabilitation Act of 1973, as amended, and the regulations 

thereunder (41 CFR part 60-741) and if a DoD Component has reason to 

believe that the recipient is in violation thereof, the DoD Component 

shall coordinate enforcement actions with the Department of Labor, 

Office of Federal Contract Compliance Programs. The DoD Component shall 

notify the ASD(MRA&L), or designee, of such coordination.