Administrative Civil Rights Adjudications Under Section 741

DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 15f

Administrative Civil Rights Adjudications Under Section 741

AGENCY: Office of the Secretary, USDA.

ACTION: Interim final rule.

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SUMMARY: This interim final rule implements the United States

Department of Agriculture (USDA) adjudication process for certain civil

rights discrimination complaints filed administratively with USDA, as

authorized by section 741 of the Agriculture, Rural Development, Food

and Drug Administration, and Related Agencies Appropriations Act, 1999,

enacted in Division A, section 101(a) of the Omnibus Consolidated and

Emergency Supplemental Appropriations Act, 1999, Pub. L. 105-277.

DATES: This interim final rule is effective December 4, 1998. Written

comments via letter, facsimile, or Internet are invited from interested

individuals and organizations, and must be received by January 4, 1999.

ADDRESSES: Comments should be sent to Alyce Boyd-Stewart, Special

Assistant to the Director, Office of Civil Rights, 202-720-5212.

FOR FURTHER INFORMATION CONTACT: Alyce Boyd-Stewart, Special Assistant

to the Director, Office of Civil Rights, 202-720-5212.

SUPPLEMENTARY INFORMATION:

Classification

This final rule has been reviewed under E.O. 12866, and it has been

determined that it is not a ``significant regulatory action'' because

it will not have an annual effect on the economy of $100 million or

more or adversely and materially affect a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities. This

final rule will not create any serious inconsistencies or otherwise

interfere with actions taken or planned by another agency. It will not

materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs, or the rights and obligations of recipients

thereof, and does not raise novel legal or policy issues arising out of

legal mandates, the President's priorities, or principles set forth in

E.O. 12866.

Regulatory Flexibility Act

USDA certifies that this rule will not have a significant impact on

a substantial number of small entities as defined in the Regulatory

Flexibility Act, Pub. L. 96-534, as amended (5 U.S.C. 601 et seq.).

Paperwork Reduction Act

USDA has determined that the provisions of the Paperwork Reduction

Act of 1995, 44 U.S.C., chapter 35, do not apply to any collections of

information contained in this rule because any such collections of

information are made during the conduct of administrative action taken

by an agency against specific individuals or entities. 5 CFR

1320.4(a)(2).

Background and Purpose

History

During much of the 1980's and 1990's, the USDA administrative

processes for review of program civil rights complaints filed against

USDA agencies by program participants did not function effectively. As

a result, while administrative complaints were pending, the statutes of

limitation for certain discrimination statutes under which complainants

potentially could obtain relief continued to run and the time periods

available for obtaining relief expired, thus foreclosing the

possibility for relief for those who had filed discrimination

complaints administratively with the Department. Accordingly, the

Secretary of Agriculture sought the enactment of legislation to waive

the applicable statutes of limitation for those individuals who had

filed nonemployment related discrimination complaints with USDA

alleging discrimination during that time period.

Requirements of Section 741 Statute

Congress enacted legislation to so waive the applicable statutes of

limitation in section 741 of the Agriculture, Rural Development, Food

and Drug Administration, and Related Agencies Appropriations Act, 1999,

enacted in Division A, section 101(a) of the Omnibus Consolidated and

Emergency Supplemental Appropriations Act, 1999, Pub. L. 105-277, for a

period of two years after the enactment of that Act. The section 741

provisions are available to any person who filed a nonemployment

related discrimination complaint with USDA before July 1, 1997, that

alleged discrimination by USDA occurring at any time between January 1,

1981, and December 31, 1996, either (1) in violation of the Equal

Credit Opportunity Act (15 U.S.C. 1691 et seq.) with respect to the

administration of a farm ownership, farm operating, or emergency loan

funded from the Agricultural Credit Insurance Program Account, or with

respect to a housing program established under title V of the Housing

Act of 1949, or (2) in the administration of a commodity program or a

disaster assistance program. Section 741 also allows an eligible

complainant to bring suit directly either in the United States Court of

Federal Claims or a United States District Court to seek relief on the

same bases within two years of enactment of Pub. L. 105-277.

Section 741(b) of the statute also preserves to an eligible

complainant the right, in lieu of court proceedings, to first seek an

administrative determination by USDA on the merits of his or her

complaint. Such an administrative determination then would still be

subject to de novo review in either the United States Court of Federal

Claims or a United States District Court, if filed within 180 days of

the final USDA determination.

Section 741(b) provides some minimal steps that must be a part of

this administrative process, but the language of section 741 triggers

the application of other law that fills out the balance of the required

procedures. Section 741(b)(1) provides the complainant with the right

of an opportunity for a hearing on the record before USDA makes a

determination on the complaint. A statutory requirement for a

determination to be made on the record after opportunity for hearing

generally makes an agency administrative process for making a

determination subject to section 554(a) of the Administrative Procedure

Act (APA), 5 U.S.C. Secs. 551-559, and thus specifically triggers the

application of the provisions of the APA applicable to formal

adjudications, i.e., 5 U.S.C. Secs. 554, 556, 557, and 3105. See, e.g.,

Lane v. U.S. Dept. of Agriculture, 120 F.3d 106 (8th Cir. 1997); City

of West Chicago, Ill. v. U.S. Nuclear Regulatory Comm'n., 701 F.2d 632

(7th Cir. 1983). Section 741(g) applies chapter 5 of title 5 of the

United States Code generally to these proceedings, except for the

standard for judicial review. Both the APA and the Equal Access to

Justice Act, 5 U.S.C. Sec. 504 (EAJA), which permits eligible

prevailing parties to recover attorneys fees when the position of the

agency is not substantially justified in an administrative adversary

adjudication, are included in chapter 5 of title 5 of the United States

Code.

On the basis of these provisions of section 741, USDA has

determined that

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the provisions of the APA applicable to formal adjudications, as well

as EAJA, are applicable to the formal consideration of administrative

complaints processed by USDA under section 741. The regulations

promulgated below implement a process for eligible complainants to seek

an administrative determination on their complaints from USDA under

section 741(b) that complies with the requirements of both the APA and

EAJA.

Initiating USDA Consideration of a Complaint Under Section 741

In order for a complaint to be processed under these regulations,

it must already have been filed with USDA and be an ``eligible

complaint'' as defined in section 741(e). Therefore these regulations

presume that there is a pre-existing complaint, and that proceedings

under these regulations will be at the request of, or with the consent

of, the complainant to consider his or her pre-existing complaint under

these procedures. Accordingly, a brief description of the process

follows.

The USDA Office of Civil Rights (OCR) has reviewed, or already is

in the process of reviewing, many of these eligible complaints. For

those already reviewed or in process, OCR automatically will docket

them for consideration as ``Section 741 Complaint Requests'' under

these rules. OCR will issue a letter notifying the complainants of this

action, and their Section 741 Complain Request docket number, by March

1, 1999. Such a letter also will provide further instructions or

options for the individual circumstances of each complainant, and may

include an offer of settlement for the complaint.

For those complaints not currently under review by OCR, or for

those complainants who do not receive letters by March 29, 1999,

notifying them that their complaints have been docketed under these

rules, complainants must file a Section 741 Complaint Request with OCR

seeking review of his or her complaint under these regulations. OCR

will assign the Section 741 Complaint Request a docket number, and will

so notify the complainant.

OCR Administrative Review and Settlement Opportunities

Until a complainant elects to request a hearing, the Section 741

Complaint Request will be reviewed by OCR. The intent of these

regulations is to provide all eligible complainants with every

opportunity to seek administrative (informal and formal) and judicial

adjudication of their complaints as permitted by Section 741. The

Director will review all eligible complaints and consider possible

settlement opportunities. Specifically, if the Director finds that your

complaint is an eligible complaint, the Director will: (1) review all

documents and evidence submitted by you; (2) review all agency or OCR

files, if any exist, regarding the circumstances surrounding the

alleged discrimination; (3) review any damage claims; and (4) seek any

further clarification, if necessary, from either you or the agency. OCR

also may refer your eligible complaint for a formal investigation by

the OCR Program Investigation Division or by an outside contractor.

Based on his or her review, the Director will either (1) undertake

negotiations with you to resolve the complaint; or (2) inform you that

OCR will not settle the complaint and explain to you your rights,

including your right to pursue formal proceedings before an ALJ under

these rules. If the complaint is successfully resolved or settled, the

Director will issue a final determination disposing of the matter and

concluding consideration of the complaint under these procedures.

Notwithstanding the informal settlement process, once OCR dockets a

complainant's Section 741 Complaint Request, a complainant may request

a hearing before an administrative law judge (ALJ) at any time during

consideration of his or her complaint under these rules. These rules

provide procedures for the conduct of such hearings.

Proceedings Before an Administrative Law Judge

As noted above, the complainant may request a hearing on the record

before an ALJ at any time after his Section 741 Complaint Request is

docketed. OCR will turn over to the ALJ its entire file on the

complaint, and file a report with the ALJ stating its position with

respect to whether the complaint is an eligible complaint, and, if so,

its position on the merits of the complaint. If the complainant chooses

to have an ALJ consider the complaint, he or she may either request

that the ALJ render a proposed determination on the written record

consisting of the complaint, the Section 741 Complaint Request, the OCR

report, and other submissions of the parties, or proceed with a full

hearing.

The ALJ will make a proposed decision that may either deny the

complaint or sustain the complaint and recommend award to the

complainant of such relief as would be afforded under the applicable

statute or regulation under which the eligible complaint was filed,

notwithstanding any statute of limitations. The proposed decision of

the ALJ will become final within 35 days, unless you request review of

the determination by the Assistant Secretary for Administration (ASA).

The ASA may also choose to review this on his or her own motion.

Timing of Final Determinations and Judicial Review

Whether with or without a hearing or review by the ASA, the USDA

will render a final determination to the maximum extent practicable

within 180 days after docketing of the Section 741 Complaint Request.

If the complaint is denied by USDA, in whole or in part, the

complainant will have at least 180 days to file suit in Federal court

seeking a review of the denial, regardless of any applicable statute of

limitations.

Determination To Issue an Interim Final Rule

Delay, neglect, and inadequate consideration of these

discrimination complaints by USDA in the past created the need for

Congress to pass this extraordinary relief statute in the first

instance. The waiver of the statute of limitations in section 741(a) is

available only for a period of 2 years after the date of enactment

which occurred on October 21, 1998. That is, all complaints under

section 741 must be filed either in court or with USDA by October 21,

2000. (Those complainants, who initially seek USDA administrative

review, then will have 180 days after USDA's issuance of a final

determination under section 741 to pursue an action for judicial review

even if the USDA review or the 180-day period extends beyond October

21, 2000.) Since less than two years remain for those who allegedly

have suffered discrimination to file complaints with USDA, time is of

the essence in implementing this procedure as soon as possible.

Accordingly, publication of these rules of procedure as interim final,

without prior notice and comment, is permissible under either the

procedural rules or good cause exceptions to the APA requirement for

notice and comment rulemaking. 5 U.S.C. Sec. 553(b)(3) (A) and (B).

However, USDA is providing a comment period of 30 days to provide for

comment and subsequent modification of this rule, if necessary.

List of Subjects in 7 CFR Part 15f

Administrative practice and procedure, Agriculture, Appeal

procedures, Civil rights, Equal access to justice, Ex parte

communications, Farmers, Federal aid programs, Guaranteed loans,

Insured loans, Loan

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programs, Nondiscrimination, Price support programs.

For the reasons set out in the preamble, subtitle A of Title 7 of

the Code of Federal Regulations is amended as set forth below:

Part 15f is added to read as follows:

PART 15F--ADJUDICATIONS UNDER SECTION 741

Subpart A--What Is The Purpose Of These Regulations And To Whom And To

What Programs Do They Apply?

Sec.

15f.1 What is the purpose of these regulations?

15f.2 Who may use these procedures for processing their

discrimination complaint with USDA?

15f.3 If I want to use these procedures to have USDA consider my

complaint, how long will it take for USDA to make a decision?

15f.4 What do certain words and phrases in these regulations mean?

Subpart B--I Filed A Complaint With USDA Prior To July 1, 1997, How Do

I Request That USDA Consider My Complaint Using These Procedures?

15f.5 How do I request that USDA consider my complaint under these

procedures?

15f.6 What must I say or include in my Section 741 Complaint

Request?

15f.7 May I be represented by an attorney?

Subpart C--What Happens After I Send In My Request? May I Seek to

Resolve My Complaint Informally With OCR?

15f.8 What does the Docketing Clerk do with my request?

15f.9 What will the Director do to settle my Section 741 Complaint

Request when it is received?

15f.10 What if I do not want the Director to review my Section 741

Complaint Request and I want to proceed directly to a hearing?

Subpart D--If I Request A Hearing, What Will Happen? How Will The

Hearing Be Conducted?

15f.11 Where must I file a hearing request and what happens to it?

15f.12 Am I entitled to a hearing in all circumstances?

15f.13 What is the function of the ALJ and who may communicate with

him?

15f.14 What happens after I file a request for a hearing?

15f.15 What Happens After the Docketing Clerk Notifies All Parties?

15f.16 Although I request a hearing, may I request the ALJ to issue

a decision without a hearing?

15f.17 What happens before the hearing?

15f.18 May I depose potential witnesses?

15f.19 Other than myself, OCR, and the agency, may any other

interested party participate in the proceeding?

15f.20 May I subpoena witnesses to the hearing?

15f.21 What rules are applicable to the actual conduct of the

hearing?

15f.22 What happens after the hearing?

15f.23 What will constitute the record for the final determination?

15f.24 When and in what form will a final determination be made on

my complaint by USDA?

15f.25 Will USDA pay my attorneys fees if I win?

Subpart E--What If I Do Not Agree With The Final Determination By USDA?

15f.26 May I seek judicial review of the final determination?

Subpart F--How Do I Count Days For Purposes Of Deadlines And What

Happens If I Miss A Deadline In These Rules?

15f.27 When is something considered ``filed'' as required by these

rules and to whom do I need to give copies of what I file?

15f.28 When I or someone else has to do something within a certain

number of days, how will USDA or the ALJ count the days?

15f.29 May I request an extension of a deadline or may I get relief

for missing a deadline in these rules?

Authority: 5 U.S.C. 301; section 101(a) of Pub. L. 105-277, 112

Stat. 2681; Reorganization Plan No. 2 of 1953 (5 U.S.C. App.).

Subpart A--What Is The Purpose Of These Regulations And To Whom And

To What Programs Do They Apply?

Sec. 15f.1 What is the purpose of these regulations?

These regulations provide the rights of complainants and the

procedures for the processing of certain nonemployment related

complaints alleging discrimination by USDA that were filed with USDA

prior to July 1, 1997, as authorized under section 741(b) of the

Agriculture, Rural Development, Food and Drug Administration, and

Related Agencies Appropriations Act, 1999, enacted in Division A,

section 101(a) of the Omnibus Consolidated and Emergency Supplemental

Appropriations Act, 1999, Pub. L. 105-277.

Sec. 15f.2 Who may use these procedures for processing their

discrimination complaint with USDA?

A person may use these procedures if he or she filed a

nonemployment related discrimination complaint with USDA prior to July

1, 1997, that alleged discrimination by USDA at any time during the

period beginning January 1, 1981 and ending December 31, 1996 :

(a) In violation of the Equal Credit Opportunity Act (15 U.S.C.

1691 et seq.) in administering--

(1) A farm ownership, farm operating, or emergency loan funded from

the Agricultural Credit Insurance Program Account; or

(2) A housing program established under title V of the Housing Act

of 1949; or

(b) In the administration of a commodity program or a disaster

assistance program.

Sec. 15f.3 If I want to use these procedures to have USDA consider my

complaint, how long will it take for USDA to make a decision?

To the maximum extent practicable, a final determination under

these procedures will be issued within 180 days after you have filed

your request.

Sec. 15f.4 What do certain words and phrases in these regulations

mean?

Agency means the USDA agency, office, or committee that the

complainant alleges has discriminated against the complainant in the

administration of a covered program.

ALJ means an Administrative Law Judge appointed pursuant to the

Administrative Procedure Act (5 U.S.C. 557(b)(3), 3105) who presides

over a hearing if requested by a complainant.

ASA means the Assistant Secretary for Administration.

Complainant means a person who requests that USDA consider his or

her complaint under the procedures of this part.

Complaint means a written document filed with USDA by a person

alleging discrimination by USDA under a covered program.

Covered program means:

(1) A farm ownership, farm operating, or emergency loan funded from

the Agricultural Credit Insurance Program Account;

(2) A housing program established under title V of the Housing Act

of 1949; or

(3) A commodity program or disaster assistance program.

Director means the Director of USDA, OCR, or his or her subordinate

designee.

Docketing clerk means an employee of the USDA Office of Civil

Rights, designated to serve in this capacity.

Eligible complaint means a complaint that was filed with the

Department of Agriculture before July 1, 1997, and that alleges

discrimination occurring at any time during the period beginning on

January 1, 1981 and ending December 31, 1996--

(1) In violation of the Equal Credit Opportunity Act (15 U.S.C.

1691 et seq.) in administering--

(i) A farm ownership, farm operating, or emergency loan funded from

the Agricultural Credit Insurance Program Account; or

(ii) A housing program established under title V of the Housing Act

of 1949; or

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(2) In the administration of a commodity program or a disaster

assistance program.

Ex parte communication means a prohibited communication between a

party to a proceeding and the ALJ outside of the presence of, or

without notice to, the other parties to the proceeding, as explained

more fully in Sec. 15f.13.

Final determination means the final USDA decision made on your

complaint under these rules.

Hearing means a proceeding in which you may present your case

before the ALJ.

Interested party means a person, other than the complainant, OCR,

and the agency, who has an interest in a proceeding under these rules

and is admitted to the proceeding under Sec. 15f.20.

OCR means the USDA Office of Civil Rights.

Party or parties means the complainant, OCR, the agency, or a

person admitted to the proceeding as an interested party.

Secretary means the Secretary of Agriculture.

Section 741 means section 741 of the Agriculture, Rural

Development, Food and Drug Administration, and Related Agencies

Appropriations Act, 1999, enacted in Division A, section 101(a) of the

Omnibus Consolidated and Emergency Supplemental Appropriations Act,

1999, Pub. L. 105-277.

Section 741 Complaint Request (or Request) means a request by a

complainant to consider his complaint under these rules.

USDA means the United States Department of Agriculture.

Subpart B--I Filed A Complaint With USDA Prior To July 1, 1997, How

Do I Request That USDA Consider My Complaint Using These

Procedures?

Sec. 15f.5 How do I request that USDA consider my complaint under

these procedures?

In order for USDA to consider your complaint under these

procedures, a Section 741 Complaint Request must be docketed with the

Docketing Clerk in the USDA OCR.

(a) Do I have to file a ``Section 741 Complaint Request'' if USDA

is already working on my complaint? Do I have to file again? If USDA

OCR already reviewed or is working on your complaint, you will receive

a notice by March 1, 1999, indicating that your complaint automatically

has been docketed as a Section 741 Complaint Request for consideration

under these procedures. The notice will provide you with the docket

number assigned your Request and will give you further instructions

with respect to what options you have or what actions you must take.

(b) What if USDA is not working on my complaint? If I think USDA

has reviewed or is working on my complaint, but do not receive a letter

by March 1, 1999, what should I do? If USDA is not already working on

your complaint, or you do not receive a letter from USDA by March 1,

1999, or within 30 days thereafter, you should file a Section 741

Complaint Request with the Docketing Clerk at USDA OCR.

(c) How long do I have to file my Section 741 Complaint Request?

You have until October 21, 2000 to file your Section 741 Complaint

Request.

Sec. 15f.6 What must I say or include in my Section 741 Complaint

Request?

If you must file a Section 741 Complaint Request, it should include

a copy of your original complaint, a request in writing that USDA

consider the complaint in accordance with these procedures, a statement

as to when your complaint was filed with USDA, and any other evidence

you consider necessary to prove that your complaint is an eligible

complaint suitable for consideration under these procedures.

Sec. 15f.7 May I be represented by an attorney?

(a) If your Section 741 Complaint Request is automatically docketed

as set forth in Sec. 15f.5(a), and you already are represented by

counsel of whom you have notified USDA, then this section does not

apply.

(b) If you are filing your Section 741 Complaint Request with USDA,

and if you are represented by an attorney, your Section 741 Complaint

Request should also include an authorization signed by you indicating

that the attorney is entitled to represent you on your behalf. If USDA

receives such an authorization, all documents in connection with

consideration of your complaint under these procedures will be sent to

your attorney and not to you.

(c) Once your Section 741 Complaint Request is docketed with USDA,

and you afterwards retain an attorney, you should forward an

authorization to USDA signed by you indicating that the attorney is

entitled to represent you on your behalf. If USDA receives such an

authorization, all documents in connection with consideration of your

complaint under these procedures will be sent to your attorney and not

to you.

Subpart C--What Happens After I Send In My Section 741 Complaint

Request? May I Seek to Resolve My Complaint Informally With OCR?

Sec. 15f.8 What does the Docketing Clerk do with my Section 741

Complaint Request?

All Section 741 Complaint Requests docketed by the OCR Docketing

Clerk will be referred to the Director for an informal review. The

Director will determine if the complaint is one that can be resolved

informally, and, if so, the Director will seek to resolve the complaint

informally with the complainant.

Sec. 15f.9 What will the Director do to settle my Section 741

Complaint Request when it is received?

The Director will review each Section 741 Complaint Request. If the

Director finds that your complaint is an eligible complaint, the

Director will: review all documents and evidence submitted by you;

review all agency or OCR files, if any exist, regarding the

circumstances surrounding the alleged discrimination; review any damage

claims; and seek any further clarification, if necessary, from either

you or the agency. OCR also may refer your eligible complaint for a

formal investigation by the OCR, Program Investigation Division or by

an outside contractor. Based on his or her review, the Director will

either undertake negotiations with you to resolve the complaint; or

inform you that OCR will not settle the complaint and explain to you

your options, including your right to pursue formal proceedings before

an ALJ under subpart D. If the complaint is successfully resolved or

settled, the Director will issue a final determination disposing of the

matter.

Sec. 15f.10 What if I do not want the Director to review my Section

741 Complaint Request and I want to proceed directly to a hearing?

If you do not want the Director to review your Section 741

Complaint Request, you may request a hearing following the procedures

below in subpart D. You may request a hearing at any time during

informal review or negotiations with the Director, or at any time

during USDA consideration of your Section 741 Complaint Request.

Subpart D--If I Request A Hearing, What Will Happen? How Will The

Hearing Be Conducted?

Sec. 15f.11 Where must I file a hearing request and what happens to

it?

If you desire a hearing, you must file a request for a hearing with

the Docketing Clerk, citing the docket

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number assigned to your Section 741 Complaint Request. When the

Docketing Clerk receives your request for a hearing, your Section 741

Complaint Request will be assigned to an ALJ. The Docketing Clerk will

send a notice of your hearing request to OCR and the agency, notifying

them of the docket number and the assigned ALJ. The Docketing Clerk

also will send you a notice of receipt of the hearing request that will

inform you of the name of the assigned ALJ.

Sec. 15f.12 Am I entitled to a hearing in all circumstances?

Under section 741, you have a right to a hearing as part of the

process for USDA to render a final determination on your eligible

complaint. However, if at any time the ALJ determines that your

complaint is not an eligible complaint, he or she may dismiss your

complaint with a final determination and USDA review of your complaint

will then have been completed. You also are not entitled to a hearing

if there are no material issues of fact in dispute between you and

USDA. In other words, if the only dispute remaining is a question of

law, you will not receive a hearing and the ALJ will make a final

determination under Sec. 15f.16.

Sec. 15f.13 What is the function of the ALJ and who may communicate

with him?

(a) What are the powers of the ALJ? The ALJ is responsible for

conducting a hearing at your request on your Section 741 Complaint

Request. He or she will have all powers prescribed in these rules and

will make a proposed determination on your complaint. The proposed

determination then will become the final determination after 35 days,

unless the ASA reviews the proposed determination.

(b) What is an ex parte communication? An ex parte communication is

a communication by one party to a proceeding with the ALJ outside of

the presence of, or without notice to, the other parties to a

proceeding. Ex parte communications in the proceedings on your

complaint are prohibited and will be handled as follows:

(1) The ALJ will not engage in ex parte communications regarding

the merits of a complaint with any party or with any person having any

interest in the proceedings on the complaint, including OCR and any

person in an advocacy or investigative capacity, at any time between

the assignment of a hearing to him or her and the issuance of a

proposed determination. This prohibition does not apply to:

(i) Discussions of procedural matters related to the complaint; or

(ii) Discussions of the merits of the complaint where all parties

to the proceeding on the complaint have been given notice and an

opportunity to participate.

(2) In the case of a communication described in paragraph

(b)(1)(ii) of this section, a memorandum of any such discussion shall

be included in the hearing record.

(3) No party to the proceeding or other interested person shall

make or knowingly cause to be made to the ALJ an ex parte communication

relevant to the merits of the complaint.

(4) If the ALJ receives an ex parte communication in violation of

this section, the ALJ will place in the written record:

(i) All such written communications;

(ii) Memoranda stating the substance of all such oral

communications; and

(iii) All written responses to such communications, and memoranda

stating the substance of any oral responses to such communications.

(c) Upon receipt of a communication knowingly made or knowingly

caused to be made by a party in violation of this section the ALJ may,

to the extent consistent with the interests of justice and the policy

underlying these proceedings, require the party or other interested

person making the communication to show cause why such party's claim or

interest in the complaint should not be dismissed, denied, disregarded,

or otherwise adversely affected on account of such violation.

Sec. 15f.14 What happens after I file a request for a hearing?

Within 20 days after you have filed your request for a hearing, ALJ

shall file with the Docketing Clerk a notice stating the time, place,

and manner of the hearing. The ALJ will have due regard for the public

interest and the convenience and necessity of the parties in

determining the time, place, and manner of the hearing. The notice will

state whether the hearing will be conducted by telephone, audiovisual

telecommunication, or personal attendance of any individual expected to

participate in the hearing. The Docketing Clerk will send copies of the

notice to the complainant and to all other parties to the proceeding.

Sec. 15f.15 What happens after the Docketing Clerk notifies all

parties?

The first step in this process involves a response to your hearing

request by OCR. OCR will turn over its entire file on your complaint to

the ALJ. OCR also will file a report with the ALJ stating its position

with respect to whether or not your complaint is an eligible complaint,

with reasons for its position, as well as stating its position with

respect to the merits of your complaint. OCR must turn over its file

and make its report on its position on your complaint within 35 days.

OCR must provide a copy to you of anything it provides to the ALJ.

Sec. 15f.16 Although I request a hearing, may I request the ALJ to

issue a decision without a hearing?

(a) At any time after the parties have been notified of your

hearing request, you may file a request with the ALJ to make a

determination based on the written record. With your request, you

should file any other arguments or evidence that you wish the ALJ to

consider. The agency and OCR will have 35 days after you file your

request to file any additional information, arguments, or evidence for

the consideration of the ALJ. The ALJ may recommend dismissal of your

complaint on the basis of a finding that it is not an eligible

complaint; recommend denial of your eligible complaint on the merits;

or make a proposed finding of discrimination on your eligible complaint

and recommend to award you such relief as would be afforded under the

applicable statute or regulation under which the eligible complaint was

filed. The ALJ will make a proposed determination on your complaint

based on the original complaint, the Section 741 Complaint Request, the

OCR report, and any other evidence or written documents filed by the

parties. The proposed determination will become the final determination

35 days after it is filed unless you request review of the proposed

determination by the ASA. The ASA also may review the proposed

determination on his or her own initiative. If the ASA reviews the

decision, he or she will allow the parties a reasonable opportunity to

file briefs in support of or opposition to the proposed determination,

and afterwards will issue a final determination within 35 days after

you request review of the proposed determination.

(b) To the maximum extent practicable, a final determination will

be made within 180 days of your filing of the Section 741 Complaint

Request.

Sec. 15f.17 What happens before the hearing?

(a) Do I need to file another answer or pre-hearing brief? You may

file a pre-hearing brief in support of your complaint.

(b) Will there be a pre-hearing conference? The ALJ may hold a pre-

hearing conference. If such a conference

[[Page 67397]]

is to be held, the notice of the pre-hearing conference also will

contain a notice to the parties of a time and date for the pre-hearing

conference. Pre-hearing conferences normally will be held by telephone.

Issues that may be addressed at the pre-hearing conference may include:

simplification of the issues; the possibility of obtaining stipulations

of fact and of the authenticity of documents; limitation of the number

of witnesses; exchange of copies of hearing exhibits; negotiation,

compromise or settlement of issues; identification of documents of

which official notice will be requested; a schedule for completion of

the actions decided upon at the conference; and any other matters that

may aid and expedite the conclusion of the proceeding. No transcript of

the pre-hearing conference will be made but the ALJ will issue a

written memorandum summarizing the results of the pre-hearing

conference.

(c) What else may the ALJ ask for before the hearing? Prior to the

hearing, the ALJ may require each of the parties to furnish any or all

of the following: an outline of a party's position with respect to the

complaint, the facts upon which the party intends to rely, the legal

theories upon which the party intends to rely, copies of or a list of

the documents and exhibits which the party anticipates on introducing

at the hearing, and a list of anticipated witnesses.

Sec. 15f.18 May I depose potential witnesses?

(a) A party may request an order from the ALJ to take the testimony

of any person by deposition upon oral examination or written

interrogatories before any officer authorized to administer oaths at

the place of examination, for use as evidence. The application for the

order must specify the reason and need for taking testimony by

deposition.

(b) The time, place, and manner of taking depositions will be as

mutually agreed by the parties, or failing agreement, by order of the

ALJ.

(c) No testimony taken by depositions will be considered as part of

the evidence in the hearing until such testimony is offered and

received in evidence at the hearing, and ordinarily it will not be

received into evidence if the deponent is present and can testify at

the hearing. However, when the deponent is present and can testify, the

deposition may be used to contradict or impeach the testimony of the

deponent given at the hearing. Where you have requested a final

determination by the ALJ based on the written record without a hearing,

the ALJ, in his or her discretion, may receive depositions to

supplement the record.

(d) Each party will bear its own expenses associated with the

taking of any deposition.

Sec. 15f.19 Other than myself, OCR, and the agency, may any other

interested party participate in the proceeding?

In most cases, there will be no parties to a proceeding under these

rules, other than the complainant, OCR, and, and if it so desires, the

agency. However, if there are circumstances in which additional parties

have an interest in the proceeding, such as a bank which participated

in a case involving a guaranteed loan, such other interested parties

may be permitted to participate in the proceeding at the discretion of

the ALJ.

Sec. 15f.20 May I subpoena witnesses to the hearings?

No. USDA has no statutory authority to subpoena witnesses to

testify at the hearing.

Sec. 15f.21 What rules are applicable to the actual conduct of the

hearing?

(a) Who may appear at the hearing? You may appear at the hearing in

person or through your attorney. OCR or the agency will appear through

a designated representative, which may include a USDA attorney. Any

person who appears as counsel must conform to the standards of ethical

conduct required of practitioners before the courts of the United

States.

(b) What happens if I fail to show up? If, after having received

notice of the hearing under Sec. 15f.14, you fail to appear at the

hearing without good cause, you will have waived your right to a

hearing in the proceeding and the ALJ may proceed to issue a final

determination based on the written record as provided for under

Sec. 15f.16.

(c) Which party presents its case first at the hearing? You, as the

complainant, will proceed first at the proceeding, unless otherwise

determined by the ALJ.

(d) What kind of evidence will be admitted and how will it be

handled? (1) In general. The hearing will be conducted by the ALJ in

the manner he or she determines most likely to obtain the facts

relevant to the matter or matters at issue. The ALJ may confine the

presentation of facts and evidence to pertinent matters and exclude

irrelevant, immaterial, or unduly repetitious evidence, information, or

questions. Each party will have the opportunity to present oral and

documentary evidence, oral testimony of witnesses, and arguments in

support of the party's position; controvert evidence relied on by any

other party; and question all witnesses. The testimony of witnesses at

a hearing will be on oath or affirmation and will be subject to cross-

examination. Any evidence may be received by the ALJ without regard to

whether that evidence could be admitted in judicial proceedings. Upon a

finding of good cause, the ALJ may order that any witness be examined

separately and apart from all other witnesses except those who may be

parties to the proceeding.

(2) Objections. (i) If a party objects to the admission of any

evidence or to the limitation of the scope of any examination or cross-

examination or to any other ruling of the ALJ, the party must state

briefly the grounds of such objection.

(ii) Only objections made before the ALJ may subsequently be relied

upon in the proceeding.

(3) Depositions. The deposition of any witness will be admitted in

the manner provided in and subject to the provisions of Sec. 15f.18(c)

of these rules.

(4) Exhibits. Unless the ALJ finds that the furnishing of copies is

impracticable, two copies of each exhibit must be filed with the ALJ. A

party submitting an exhibit must provide every other party (except

interested parties) a copy of the exhibit one week before the hearing.

A true copy of an exhibit may be substituted for the original.

(5) Official records or documents. An official government record or

document or entry therein, if admissible for any purpose, will be

admissible in evidence without the production of the person who made or

prepared the same, and will be prima facie evidence of the relevant

facts stated therein. Such record or document must be evidenced by an

official publication thereof or a copy certified by a person having

legal authority to make such certification.

(6) Official notice. Official notice will be taken of such matters

as are judicially noted by the courts of the United States and of any

other matter of technical, scientific, or commercial fact of

established character if the parties are given adequate notice of

matters so noticed, and the parties will be given adequate opportunity

to show that such facts are erroneously noticed.

(7) Offer of proof. Whenever evidence is excluded by the ALJ, the

party offering such evidence may make an offer of proof, which must be

included in the transcript. The offer of proof should consist of a

brief statement describing the evidence excluded. If the evidence

consists of a brief oral statement, it must be included in the

transcript in its entirety. If the evidence

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consists of an exhibit, it must be marked for identification and

inserted in the hearing record.

(8) Interlocutory review. Interlocutory review of rulings by the

ALJ will not be permitted.

(9) Transcript or recording. (i) Hearings to be conducted by

telephone will be recorded verbatim by electronic recording device.

Hearings conducted by audio-visual telecommunication or by the personal

attendance of parties and witnesses must be transcribed, unless the ALJ

finds that recording the hearing verbatim would expedite the proceeding

and the ALJ orders the hearing to be recorded verbatim. The ALJ must

certify that to the best of his or her knowledge and belief any

recording made pursuant to this paragraph with exhibits that were

accepted into evidence is the record of the hearing.

(ii) If a hearing is recorded verbatim, a party requests the

transcript of a hearing or part of a hearing, and the ALJ determines

that the disposition of the proceeding would be expedited by a

transcript of the hearing or part of a hearing, the ALJ shall order the

verbatim transcription of the recording as requested by the party.

(iii) The costs of transcription or verbatim recordings will be

paid for by USDA and charged to the agency whose action gave rise to

the complaint at issue. Copies of recordings or transcripts of hearings

will be made available to any party at the actual cost of duplication.

Sec. 15f.22 What happens after the hearing?

The ALJ will fix a reasonable time for filing posthearing briefs,

proposed findings of fact and conclusions of law, and if permitted,

reply briefs. Briefs should include a summary of evidence relied upon

together with references to exhibit numbers and citations to the

transcript and authorities relied upon. Briefs must be filed with the

Docketing Clerk with copies to all parties.

Sec. 15f.23 What will constitute the record for the final

determination?

The original complaint, the Section 741 Complaint Request, the OCR

report, the agency answer, the transcript of testimony, exhibits,

affidavits, depositions, briefs, memoranda of law, and all pleadings,

motions, papers, and requests filed in the proceeding, including

rulings, and the proposed determination by an ALJ (if applicable) shall

constitute the exclusive record for the final determination.

Sec. 15f.24 When and in what form will a final determination be made

on my complaint by USDA?

(a) The ALJ will make a proposed determination orally at the close

of a hearing, or in writing within 35 days. The ALJ may recommend

dismissal of your complaint on the basis of a finding that it is not an

eligible complaint; recommend denial of your eligible complaint on the

merits; or make a proposed finding of discrimination on your eligible

complaint and recommend to award you such relief as would be afforded

under the applicable statute or regulation under which the eligible

complaint was filed. The proposed determination will become the final

determination 35 days after it is made, unless you request review of

the proposed determination by the ASA. The ASA also may review the

proposed determination on his or her own initiative. If the ASA reviews

the proposed determination, he or she will allow the parties a

reasonable opportunity to file briefs in support or opposition to the

proposed determination, and afterwards file a final determination

within 35 days after you request review of the proposed determination.

(b) To the maximum extent practicable, a final determination will

be filed within 180 days after you filed your Section 741 Complaint

Request.

Sec. 15f.25 Will USDA pay my attorneys fees if I win?

If you prevail on your eligible complaint, either in whole or in

part, after a proceeding before an ALJ under the procedures in this

subpart, you may be eligible for an award of attorneys fees as a

prevailing party under the Equal Access to Justice Act (EAJA), 5 U.S.C.

504. To get an EAJA award, you must file an application for such fees

with the ALJ within 30 days after the final determination is made.

Instructions for filing an EAJA application and obtaining an EAJA award

are contained in 7 CFR part 1, subpart J. The ALJ must follow those

rules, and not these Section 741 Complaint Request rules, in making any

EAJA award.

Subpart E--What If I Do Not Agree With The Final Determination by

USDA?

Sec. 15f.26 May I seek judicial review of the final determination?

Section 741 provides that you have at least 180 days after a final

determination denying your eligible complaint under these rules to seek

judicial review in the United States Court of Federal Claims or a

United States District Court of competent jurisdiction.

Subpart F--How Do I Count Days For Purposes Of Deadlines and What

Happens If I Miss A Deadline In These Rules?

Sec. 15f.27 When is something considered ``filed'' as required by

these rules and to whom do I need to give copies of what I file?

A document, or other item, that must be ``filed'' under these rules

is considered filed when postmarked or when it is received and date-

stamped by the Docketing Clerk.

Sec. 15f.28 When I or someone else has to do something within a

certain number of days, how will USDA or the ALJ count the days?

Unless otherwise specifically noted, a ``day'' refers to a calendar

day and a document that must be filed by a certain date must either be

postmarked on that date or received by the Docketing Clerk on that

date. For documents that must be or are ``filed'' under these

regulations, you count the number of days after filing starting with

the day after the filing date as day one. For other time periods, you

calculate the time period by counting the day after receipt by the

party as day one. If the last day of a time period expires on a

Saturday, a Sunday, or a Federal holiday, the last day of the time

period will expire on the next business day.

Sec. 15f.29 May I request an extension of a deadline or may I get

relief for missing a deadline in these rules?

You may request that the ALJ extend a deadline in these rules, or

afford you relief for missing a deadline, which he or she may do,

consistent with the principles of sovereign immunity, the terms of any

applicable statute, these rules, and the necessity of expeditious

completion of the public business. It is the intent of USDA that the

time deadlines expressed in these regulations be construed equitably to

ensure resolution of eligible complaints, to the extent permitted by

law.

Done at Washington, D.C., this 30th day of November, 1998.

Dan Glickman,

Secretary of Agriculture.

[FR Doc. 98-32279 Filed 12-2-98; 1:00 pm]

BILLING CODE 3410-01-P