Nondiscrimination in USDA Conducted Programs and Activities

SUMMARY: The United States Department of Agriculture (USDA or the

Department) is proposing to revise its regulations governing

nondiscrimination in programs and activities conducted by the

Department. The proposal would remove the current regulation on this

subject found at 7 CFR part 15, subpart B (Subpart B), and place it in

a new part 15d; clarify that the regulation applies to all Department-

conducted programs and activities, not just to direct assistance

programs; add familial status and marital status to the protected

classes contained in the regulation; add a provision on Department

agencies' compliance efforts; reflect that the Assistant Secretary for

Administration has been delegated the authority to make final

determinations as to whether prohibited discrimination occurred and the

correction action required to resolve complaints; remove the Appendix

to the regulation that lists the Department programs subject to these

provisions; and make other clarifications to the regulation.

DATES: Comments must be received by May 23, 1996.

ADDRESSES: Send comments to Director of Civil Rights, Department of

Agriculture, Washington, DC 20250. Comments will be available for

public inspection at Room 1322, South Building, Department of

Agriculture, Washington, DC 20250.

FOR FURTHER INFORMATION CONTACT:

Andrew Johnson, Director, Policy and Planning, Civil Rights, 202-720-

1130; or Ron Walkow, Attorney-Advisor, Office of General Counsel, 202-

720-6056.

SUPPLEMENTARY INFORMATION: The Department in 1964 first adopted

regulations to cover nondiscrimination in all programs and activities

directly administered by USDA (29 FR 16966). At that time, the

regulations were intended to complement the newly enacted Title VI of

the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) by covering

those programs and activities not subject to Title VI; that is,

programs and activities in which USDA or an agency thereof made

available a benefit directly to persons rather than through a

recipient. However, these regulations were made a part of the

Department's Title VI regulations; specially, they were issued at

Subpart B where they have remained to this day. Since then, subpart B

has been amended on several occasions to include a variety of protected

classes in addition to race, color, and national origin. (38 FR 22465;

42 FR 65202; 47 FR 25458). Subpart B also was amended to provide that

individuals who believe they were subject to discrimination under the

regulations may file a complaint with the Department (50 FR 25687; 54

FR 31164).

Since Title VI is not the authority for the regulations, having

these regulations codified as part of the Department's Title VI

regulations has resulted in some confusion over the years. Accordingly,

the Department is proposing to remove the regulations from subpart B of

part 15 and reissue them in a new regulation, part 15f of Title 7.

Along these same lines, the authority provision of the regulation would

be revised to clarify that the authority for the regulation is 5 U.S.C.

301, not Title VI.

In addition to removing and reissuing the regulation, the

Department is proposing to make some minor substantive changes to the

regulation. First, the regulation will be reworded to clarify that it

applies to discrimination in all Department-conducted programs and

activities; that is, to any allegation that a USDA employee

discriminated against a member of the public--whether in a direct

assistance program or in any other manner.

Second, the Department is also proposing to add familial status and

marital status to the protected classes covered by the regulation. Over

the years, the Department has added protected classes to the regulation

in order to reflect those classes protected by the various Federal

civil rights laws. Two of those classes not currently included are

familial status (which is included in the Fair Housing Act (42 U.S.C.

3601 et seq.)) and marital status (which is included in the Equal

Credit Opportunity Act (15 U.S.C. 1691 et seq.). Accordingly, the

proposed rule would include these classes.

The proposed regulation would delete the provision now contained in

subpart B at Sec. 15.51(b). The Department believes that the broad

language used in proposed Sec. 15d.2 is sufficient to make clear that

the Department will not discriminate in any of its conducted programs,

without having to provide specific examples, of prohibited

discriminatory acts. By this action, the Department does not intend to

substantively affect the scope of the protections currently covered by

Sec. 15.51(b).

The Department is also proposing to add a new section on the

efforts of the Department to ensure compliance with this part since it

is as crucial to have an ongoing evaluation of Department agencies'

compliance with this section as it is to have a complaint process.

Therefore, the enforcement sections, i.e. proposed Secs. 15d.3 and

15d.4, provide for the Department engaging in compliance activities and

in complaint resolution. Specific provisions noting how these efforts

will be implemented within the Department will be set forth in internal

regulations and guidelines.

The proposed regulation would reflect that the authority to make

final determinations for the Department as to (1) whether

discrimination occurred and the corrective action required by the

Department to resolve complaints and (2) whether Department agencies'

efforts to comply with nondiscrimination requirements are sufficient

will no longer be delegated to the Director, Office of Civil Rights

Enforcement,\1\ but instead has been delegated to Assistant Secretary

for Administration (ASA). This delegation already has been effectuated

in 7 CFR part 2, and that change would be reflected in the proposed

regulation. The Department believes that determinations of this

magnitude should be elevated to the sub-cabinet level. In addition,

this

[[Page 17852]]

change would make the determining official in program discrimination

complaints the same official, i.e. the ASA, who makes final

determinations on employment discrimination complaints within the

Department. Civil Rights Adjudication and Enforcement (AE) will be

responsible for conducting the investigations on complaints and

evaluating agencies' efforts to comply with the discrimination

prohibition provisions of this new Part.

---------------------------------------------------------------------------

\1\ The Office of Civil Rights Enforcement has been reorganized

into two entities within Departmental Administration, i.e., Civil

Rights and Civil Rights Adjudication and Enforcement.

---------------------------------------------------------------------------

The Department is also proposing to remove the provisions in

Sec. 15.52(a) that require covered agencies of the Department to

provide notice of the public's right to file a complaint under that

Subpart. Under the proposed new Part 15d, this requirement will be

transferred to the Department's internal regulations. The Department

now believes that internal instructions such as the notice requirement

now in Sec. 15.52(a) are more appropriate in such a regulatory setting.

However, until such internal regulations are issued, agencies of the

Department will continue to follow the procedures currently required in

Sec. 15.52(a).

The Department is next proposing to remove the appendix to the

regulation (currently ``Appendix to Subpart B''), which purports to

list the programs and activities conducted by the Department. The

Department has found that it is difficult to maintain the accuracy of

this list on a regular basis when it is contained in the Code of

Federal Regulations. Additionally, having the Appendix in the Code of

Federal Regulations does not contribute to the effectiveness of the

regulation. Accordingly, the Department would remove the Appendix and

maintain such a list of programs and activities in internal guidelines

to be maintained by Civil Rights (CR).

The proposed regulation would contain a new provision that would

state that nothing in the regulation shall be construed as making

unlawful any program or activity conducted by the Department that is

otherwise lawful. The purpose of this provision is to make clear the

intent of the regulation. That is, this regulation is not intended to

prohibit the Department from doing anything that it is not already

prohibited from doing by the Constitution and various Federal statutes.

The regulation merely states the nondiscrimination policy of the

Department; it does not create any additional rights for individuals

and entities that deal with the Department. The proposed language would

make clear this intention as well as the legal effect of the

regulation.

Finally, the Department proposes to add a provision stating that

complaints filed under the regulation that are subject to a Department

complaint process that is implemented under specific statutory

authority will be processed under the statutory complaint process.

Thus, for example, a complaint alleging that the Department

discriminated on the basis of disability in a conducted program will be

processed under 7 CFR part 15e, which implements the Rehabilitation

Act.

In conclusion, the proposed regulation would set forth the

nondiscrimination policy of the Department, provide for compliance

efforts by the Department, notify the public that it may file

complaints with the Department alleging discrimination, and provide

that complainants will be notified of the final determinations on their

complaints. The Department believes that the detailed internal

procedures on the processing of these complaints should be contained in

internal regulations rather than in the Code of Federal Regulations.

These internal regulations will address such matters as the duties of

Department agencies under the regulation, guidelines on what

constitutes a proper investigation, and the standards for ``good-

cause'' extension of the 180-day filing period. The Department will

issue these internal regulations as soon as is practicable after this

proposed rule has been made final. Once completed, the internal

regulations will be available for public inspection.

This proposed rule has been determined to be ``not-significant''

for purposes of Executive Order 12866, and therefore has not been

reviewed by the Office of Management and Budget. USDA certifies that

this proposed rule would not have a significant economic impact on a

substantial number of small entities under the Regulatory Flexibility

Act of 1980 (5 U.S.C. 601 et seq.). USDA also certifies that this

proposed rule would not impose any reporting or recordkeeping

requirements under the Paperwork Reduction Act of 1995, 44 U.S.C.

Chapter 35.

USDA is providing a 30-day comment period for this rule. Comment is

invited on all aspects of the proposal, including the appropriateness

and effect of the proposed changes, and any additional or alternative

measures that would serve the goals of USDA as outlined in the

proposal.

List of Subjects in 7 CFR Parts 15 and 15d

Nondiscrimination.

In consideration of the foregoing, the Department proposes to amend

Title 7 of the Code of Federal Regulations, Subtitle A, as follows:

PART 15--[AMENDED]

1. The authority citation for part 15 continues to read as follows:

Authority: 5 U.S.C. 301; 29 U.S.C. 794.

2. Part 15, subpart B (Secs. 15.50-15.52) and the appendix thereto

would be removed; and

3. A new Part 15d would be added as follows:

PART 15d--NONDISCRIMINATION IN PROGRAMS OR ACTIVITIES CONDUCTED BY

THE UNITED STATES DEPARTMENT OF AGRICULTURE

Sec.

15d.1 Purpose.

15d.2 Discrimination prohibited.

15d.3 Compliance.

15d.4 Complaints.

15d.5 Effect of regulation.

Authority: 5 U.S.C. 301.

Sec. 15d.1 Purpose.

The purpose of this part is to set forth the nondiscrimination

policy of the United States Department of Agriculture in programs or

activities conducted by the Department, including such programs and

activities in which the Department or any agency thereof makes

available any benefit directly to persons under such programs and

activities.

Sec. 15d.2 Discrimination prohibited.

No agency, officer, or employee of the United States Department of

Agriculture shall exclude from participation in, deny the benefits of,

or subject to discrimination any person in the United States on the

ground of race, color, religion, sex, age, national origin, marital

status, familial status, or disability under any program or activity

conducted by such agency, officer, or employee.

Sec. 15d.3 Compliance.

The Office of the Director of Civil Rights shall evaluate each

agency's efforts to comply with this part and report to the Assist

Secretary for Administration the results of such evaluations, including

recommendations for improving such efforts. The Assistant Secretary

shall make a final determination as to the merits of such

recommendations and the actions to be taken to improve such efforts.

Sec. 15d.4 Complaints.

(a) Any person who believes that he or she (or any specific class

of individuals) has been, or is being, subjected to practices

prohibited by this part may file on his or her own, or through an

authorized representative, a written complaint alleging such

[[Page 17853]]

discrimination. No particular form of complaint is required. The

complaint must be filed within 180 calendar days from the date the

person knew or reasonably should have known of the alleged

discrimination, unless the time is extended for good cause by the

Assistant Secretary for Administration or his designee. Any person who

complains of discrimination under this part in any fashion shall be

advised of his or her right to file a complaint as herein provided.

(b) All complaints under this part should be filed with the

Director of Civil Rights Adjudication and Enforcement, United States

Department of Agriculture, Washington, DC 20250, who will investigate

the complaints. The Assistant Secretary for Administration will make

final determinations as to the merits of complaints under this part and

as to the corrective actions required to resolve the complaints. The

complainant will be notified of the final determination on his or her

complaint.

(c) Any complaint filed under this part that is subject to a

Department complaint process that is implemented under specific

statutory authority will be processed under the statutory complaint

process.

Sec. 15d.5 Effect of regulation.

Nothing in this part shall be construed as making unlawful any

program or activity conducted by the Department that is otherwise

lawful.

Dated: April 16, 1996.

Dan Glickman,

Secretary of Agriculture.

[FR Doc. 96-9900 Filed 4-22-96; 8:45 am]

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