Nondiscrimination in USDA Conducted Programs and Activities

DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Parts 15 and 15d

RIN 0503-AA15

Nondiscrimination in USDA Conducted Programs and Activities

AGENCY: Department of Agriculture.

ACTION: Proposed rule.

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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. On April 23 1996, the Department published an earlier

proposal to do so in the Federal Register (61 FR 17851). Specifically,

the Department proposed to remove the current regulation on this

subject found at 7 CFR part 15, 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 corrective 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.

A final rule never was issued because USDA was in the midst of a

comprehensive evaluation of its civil rights program. Now that that

review is complete, it is appropriate to continue with promulgation of

the rule. However, because USDA is proposing several significant

changes since the proposed rule, the Department has determined that it

would be appropriate to again publish a proposed rule so that the

public will have an opportunity to comment on these changes. These

changes include the addition of sexual orientation and public

assistance status as protected classes and a prohibition against

reprisal for exercising rights under the rule.

DATES: Comments must be received by December 10, 1998.

FOR FURTHER INFORMATION CONTACT:

Alyce Boyd-Stewart, Chief, Policy and Planning Division, Office of

Civil Rights, (202) 720-5212; or Ron Walkow, Attorney-Advisor, Office

of the General Counsel, (202) 720-6056. If a copy of this final rule in

an alternate format, e.g., braille, is necessary, contact 202-720-0353

(voice or TDD).

SUPPLEMENTARY INFORMATION: Subpart B currently contains the

Department's civil rights regulations for programs and activities

conducted by the Department. As noted in the Department's earlier

proposed rule, the rule is in need of revision. The Department's

earlier proposal to revise the rule was published April 23, 1996, and a

30-day comment period followed. The Department now is proposing

additional changes, as well as modifications to the previous proposal.

The instant proposal should be read alongside the earlier proposal for

a complete explanation of what USDA is proposing.

The only comment the Department received on the earlier proposal

was from a non-profit law center that represents farmers and rural

communities. The commenter supports the addition of compliance reviews

to the regulation and states that having the Department supplement an

agency investigation of a complaint is a positive step that will ensure

that complaints are fully investigated

However, the commenter urged the Department to abandon the 180-day

period for filing complaints or, in the alternative, to adopt a longer

limitations period. The commenter argued that victims of discrimination

often do not recognize the full effect of discrimination for several

months and that many such victims will appropriately deal with their

difficulties through other means before filing a complaint. The

commenter further argued that there is no legal basis for the 180-day

limit while under the Equal Credit Opportunity Act (ECOA), for example,

an individual has two years to file a lawsuit. Thus, the commenter

argued, the limitations period may have the effect of encouraging

litigation against the Department even when an individual would prefer

to go through the administrative complaint process.

The Department has determined that it will retain the 180-day

filing period for complaints in this proposed rule. The reasons for

this retention are set out below. Nothing in those reasons is intended

to indicate that full and fair consideration will not be given to

comments on this matter received in response to this proposed rule. The

180-day period is intended to have individuals bring allegations of

discrimination to the attention of the Department in a timely manner so

that the Department can adequately address such allegations. A 180-day

period also is used in the Department's Title VI regulations, which

deal with allegations of discrimination against recipients of

assistance through the Department. See 7 CFR 15.6. Indeed, this period

is common to every Department and Federal agency that has a Title VI

regulation. We believe the same period should apply to the Department

conducted activities as that which applies to its Title VI activities.

In addition, the proposed regulation addresses the commenter's

concern that some individuals may not recognize the full effects of

discrimination within 180 days. Specifically, the regulation states

that the 180-day period begins to run ``from the date the person knew

or should have known of the alleged discrimination * * *.'' Thus, the

180-day period will not begin to run until that individual knows, or at

least should have known, that he or she was discriminated against. To

emphasize, the filing period does not necessarily begin to run from the

date of a particular action that may be discriminatory, for example the

denial of a loan, but rather ``from the date the person knew or should

have known of the alleged discrimination * * *.''

In addition, the proposed regulation states that the 180-day limit

can be extended ``for good cause.'' Thus, a complainant who files a

complaint past the 180-day period will be given an opportunity to

explain the delay and, in appropriate circumstances, retain the

opportunity to present his or her complaint.

The commenter argued that the 180-day period may be shorter than

the

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period some complainants have to file a lawsuit. However, the

Department does not believe that this alone is sufficient cause for

lengthening the filing period. In regard to the commenter's point about

ECOA, it should be noted that Part 15d is not an ECOA administrative

procedure, nor an administrative procedure pursuant to any other

Federal statute. The proposed regulation merely informs the public of

the Department's nondiscrimination policy and of an individual's right

to file a complaint if he or she believes that he or she has been

discriminated against by the Department so that the Department can take

appropriate action. Of course, the availability of 15d and ECOA often

will be co-extensive, and it often will be the case that a 15d

complaint will afford the Department an opportunity to provide relief

to a complainant that may avoid an ECOA lawsuit. The fact that the 180-

day period has run does not prohibit an individual from filing an ECOA

lawsuit, nor does it prohibit the Department from settling a potential

ECOA lawsuit before such a suit is initiated. There is no exhaustion of

administrative requirement to filing an ECOA lawsuit. In addition, the

fact that a complainant may have a legitimate ECOA claim might be the

basis for applying the ``good cause'' exception to the filing period.

The commenter next contended that the ``good cause'' exception to

the 180-day filing period should be explained in 15d rather than in

internal guidance. After reviewing the commenter's arguments, the

Department does not agree with this contention. The ``good cause''

exception is intended to give discretion to the Director of the Office

of Civil Rights (CR) or his or her designee to extend the filing period

when appropriate. The exception is not intended to create a rigid rule

as to when ``good cause'' has been met. Thus, it would not be

appropriate to address the specifics of good cause in the published

regulation. Any complainant who files after the 180-day period may

explain the reason for the delay and in appropriate circumstances an

extension will be granted. The fact that a claim may be time barred

does not prohibit the Department from looking into the allegations and

taking appropriate action as to internal matters. The Department

believes that an enumeration of the elements of the good cause

exception may deter some individuals from filing complaints because

they mistakenly believe that their situation is not covered by the

listed elements. A simple good cause exception will allow for

individuals to file complaints who believe that they have a good reason

for filing after the 180-day period.

Finally, the commenter objected to proposed section 15d.5. After

further review, the Department has determined that this provision

should not be included in the rule. As is explained in more detail in

the preamble to the original proposed rule, the purpose of this section

was to make clear the intent and legal effect of the regulation.

However, the Department believes that the statement of intent contained

in the preamble to the earlier proposed rule is sufficient notice as to

the intent of the prohibition of discrimination contained in the rule.

In short, proposed section 15d.5 is more confusing than illuminating.

The Department also is proposing two additional protected classes

in addition to those discussed in the earlier proposal. As stated in

that proposal, the Department's policy has been that the protected

classes contained in the rule should, at a minimum, reflect those

classes protected by the various civil rights laws. Thus, the earlier

proposal stated that the rule should include marital status and

familial status since these classes are included in the Fair Housing

Act (marital status) and ECOA (marital and familial status). However,

the Department neglected the fact that ECOA also prohibits

discrimination against individuals because all or part of their income

is derived from any public assistance program. 15 U.S.C. 1691(a)(3).

Accordingly, the Department is proposing to add ``public assistance

status'' to the list of protected classes contained in the regulation.

The Department also is proposing to add sexual orientation as a

protected class in the rule. Beginning with the Secretary's Civil

Rights Policy Statement issued in February 1997, the Secretary of

Agriculture has included sexual orientation as a prohibited basis for

discrimination against both USDA employees and customers in his civil

rights policy statements. In doing so, the Secretary has determined

that treatment of USDA employees and customers based on sexual

orientation is treatment that is unfair and inequitable. Based on this

policy and Executive Order 13087 in which the President directed a

uniform policy prohibiting discrimination on this basis in Federal

employment, USDA is about to add sexual orientation as a protected

class to its complaint process for USDA employees. In order to be

consistent, the Department is now proposing to add sexual orientation

to the instant rule so that USDA customers who believe that they have

been discriminated against by USDA employees will be able to file a

complaint with USDA, have this complaint investigated and resolved and,

if appropriate, have corrective action provided.

The Department also is proposing that a provision on reprisal be

added to the rule. It is USDA's policy that no individual who files a

complaint or otherwise participates in the complaint process under the

proposed rule be subject to reprisal or retaliation. In addition, no

person who opposes any practice prohibited by the rule in any manner

should be subjected to such reprisal. By including a prohibition

against reprisal in the rule, individuals who believe that they have

been subject to reprisal will be able to file a complaint with CR, have

this complaint investigated and resolved and, if appropriate, have

corrective action provided. Finally, this is consistent with all

Federal civil rights complaint processes, which uniformly contain a

prohibition against reprisal.

The earlier proposed rule stated that the authority to make final

determinations, including corrective action, would be delegated to the

Assistant Secretary for Administration. However, after a reevaluation

of this proposal, the Department is proposing that this authority

should be delegated to the Director, CR. Thus, the proposed rule

reflects this change. In addition, the proposed provision on compliance

similarly reflects that the Director has been delegated the authority

for enforcement of this rule.

Finally, the Department is proposing to modify section 15d.4(c)

from the form it originally was proposed so that it is less confusing.

The purpose of this provision is to make clear that complaints

submitted under this part alleging discrimination based on disability

will be processed pursuant to 7 CFR Part 15e, which contains the

Department's regulations implementing the Rehabilitation Act as it

applies to federally conducted programs.

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 final 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 final

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

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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.

Accordingly, The Department of Agriculture 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

is proposed to be removed.

3. Part 15, subpart C (Secs. 15.60-15.143) is proposed to be

redesignated as part 15, subpart B.

4. A new part 15d is proposed to be added to read 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.

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.

(a) 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, public assistance status, sexual orientation,

or disability under any program or activity conducted by such agency,

officer or employee.

(b) No person shall be subjected to reprisal for opposing any

practice prohibited by this part or for filing a complaint or

participating in any other manner in a proceeding under this part.

Sec. 15d.3 Compliance.

The Director of the Office of Civil Rights shall evaluate each

agency's efforts to comply with this part and shall make

recommendations for improving 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

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

Director of the Office of Civil Rights 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 the Office of Civil Rights, United States Department of

Agriculture, Washington, DC 20250, who will investigate the complaints.

The Director of the Office of Civil Rights 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 alleging discrimination on

the basis of disability will be processed under Part 15e of this

chapter.

Dated: October 20, 1998.

Dan Glickman,

Secretary of Agriculture.

[FR Doc. 98-28699 Filed 11-9-98; 8:45 am]

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