[Federal Register Volume 63, Number 233 (Friday, December 4, 1998)]
[Rules and Regulations]
[Pages 67392-67398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32279]
[[Page 67391]]
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Part III
Department of Agriculture
_______________________________________________________________________
Office of the Secretary
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7 CFR Part 15f
Administrative Civil Rights Adjudications Under Section 741; Interim
Final Rule
Federal Register / Vol. 63, No. 233 / Friday, December 4, 1998 /
Rules and Regulations
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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
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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
