[Federal Register Volume 63, Number 217 (Tuesday, November 10, 1998)]
[Proposed Rules]
[Pages 62962-62964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28699]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 63, No. 217/ Tuesday, November 10, 1998 /
Proposed Rules
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DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Parts 15 and 15d
RIN 0503-AA15
Nondiscrimination in USDA Conducted Programs and Activities
AGENCY: Department of Agriculture.
ACTION: Proposed rule.
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SUMMARY: The United States Department of Agriculture (USDA or the
Department) is proposing to revise its regulations governing
nondiscrimination in programs and activities conducted by the
Department. On April 23 1996, the Department published an earlier
proposal to do so in the Federal Register (61 FR 17851). Specifically,
the Department proposed to remove the current regulation on this
subject found at 7 CFR part 15, subpart B, and place it in a new part
15d; clarify that the regulation applies to all Department-conducted
programs and activities, not just to direct assistance programs; add
familial status and marital status to the protected classes contained
in the regulation; add a provision on Department agencies' compliance
efforts; reflect that the Assistant Secretary for Administration has
been delegated the authority to make final determinations as to whether
prohibited discrimination occurred and the corrective action required
to resolve complaints; remove the Appendix to the regulation that lists
the Department programs subject to these provisions; and make other
clarifications to the regulation.
A final rule never was issued because USDA was in the midst of a
comprehensive evaluation of its civil rights program. Now that that
review is complete, it is appropriate to continue with promulgation of
the rule. However, because USDA is proposing several significant
changes since the proposed rule, the Department has determined that it
would be appropriate to again publish a proposed rule so that the
public will have an opportunity to comment on these changes. These
changes include the addition of sexual orientation and public
assistance status as protected classes and a prohibition against
reprisal for exercising rights under the rule.
DATES: Comments must be received by December 10, 1998.
FOR FURTHER INFORMATION CONTACT:
Alyce Boyd-Stewart, Chief, Policy and Planning Division, Office of
Civil Rights, (202) 720-5212; or Ron Walkow, Attorney-Advisor, Office
of the General Counsel, (202) 720-6056. If a copy of this final rule in
an alternate format, e.g., braille, is necessary, contact 202-720-0353
(voice or TDD).
SUPPLEMENTARY INFORMATION: Subpart B currently contains the
Department's civil rights regulations for programs and activities
conducted by the Department. As noted in the Department's earlier
proposed rule, the rule is in need of revision. The Department's
earlier proposal to revise the rule was published April 23, 1996, and a
30-day comment period followed. The Department now is proposing
additional changes, as well as modifications to the previous proposal.
The instant proposal should be read alongside the earlier proposal for
a complete explanation of what USDA is proposing.
The only comment the Department received on the earlier proposal
was from a non-profit law center that represents farmers and rural
communities. The commenter supports the addition of compliance reviews
to the regulation and states that having the Department supplement an
agency investigation of a complaint is a positive step that will ensure
that complaints are fully investigated
However, the commenter urged the Department to abandon the 180-day
period for filing complaints or, in the alternative, to adopt a longer
limitations period. The commenter argued that victims of discrimination
often do not recognize the full effect of discrimination for several
months and that many such victims will appropriately deal with their
difficulties through other means before filing a complaint. The
commenter further argued that there is no legal basis for the 180-day
limit while under the Equal Credit Opportunity Act (ECOA), for example,
an individual has two years to file a lawsuit. Thus, the commenter
argued, the limitations period may have the effect of encouraging
litigation against the Department even when an individual would prefer
to go through the administrative complaint process.
The Department has determined that it will retain the 180-day
filing period for complaints in this proposed rule. The reasons for
this retention are set out below. Nothing in those reasons is intended
to indicate that full and fair consideration will not be given to
comments on this matter received in response to this proposed rule. The
180-day period is intended to have individuals bring allegations of
discrimination to the attention of the Department in a timely manner so
that the Department can adequately address such allegations. A 180-day
period also is used in the Department's Title VI regulations, which
deal with allegations of discrimination against recipients of
assistance through the Department. See 7 CFR 15.6. Indeed, this period
is common to every Department and Federal agency that has a Title VI
regulation. We believe the same period should apply to the Department
conducted activities as that which applies to its Title VI activities.
In addition, the proposed regulation addresses the commenter's
concern that some individuals may not recognize the full effects of
discrimination within 180 days. Specifically, the regulation states
that the 180-day period begins to run ``from the date the person knew
or should have known of the alleged discrimination * * *.'' Thus, the
180-day period will not begin to run until that individual knows, or at
least should have known, that he or she was discriminated against. To
emphasize, the filing period does not necessarily begin to run from the
date of a particular action that may be discriminatory, for example the
denial of a loan, but rather ``from the date the person knew or should
have known of the alleged discrimination * * *.''
In addition, the proposed regulation states that the 180-day limit
can be extended ``for good cause.'' Thus, a complainant who files a
complaint past the 180-day period will be given an opportunity to
explain the delay and, in appropriate circumstances, retain the
opportunity to present his or her complaint.
The commenter argued that the 180-day period may be shorter than
the
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period some complainants have to file a lawsuit. However, the
Department does not believe that this alone is sufficient cause for
lengthening the filing period. In regard to the commenter's point about
ECOA, it should be noted that Part 15d is not an ECOA administrative
procedure, nor an administrative procedure pursuant to any other
Federal statute. The proposed regulation merely informs the public of
the Department's nondiscrimination policy and of an individual's right
to file a complaint if he or she believes that he or she has been
discriminated against by the Department so that the Department can take
appropriate action. Of course, the availability of 15d and ECOA often
will be co-extensive, and it often will be the case that a 15d
complaint will afford the Department an opportunity to provide relief
to a complainant that may avoid an ECOA lawsuit. The fact that the 180-
day period has run does not prohibit an individual from filing an ECOA
lawsuit, nor does it prohibit the Department from settling a potential
ECOA lawsuit before such a suit is initiated. There is no exhaustion of
administrative requirement to filing an ECOA lawsuit. In addition, the
fact that a complainant may have a legitimate ECOA claim might be the
basis for applying the ``good cause'' exception to the filing period.
The commenter next contended that the ``good cause'' exception to
the 180-day filing period should be explained in 15d rather than in
internal guidance. After reviewing the commenter's arguments, the
Department does not agree with this contention. The ``good cause''
exception is intended to give discretion to the Director of the Office
of Civil Rights (CR) or his or her designee to extend the filing period
when appropriate. The exception is not intended to create a rigid rule
as to when ``good cause'' has been met. Thus, it would not be
appropriate to address the specifics of good cause in the published
regulation. Any complainant who files after the 180-day period may
explain the reason for the delay and in appropriate circumstances an
extension will be granted. The fact that a claim may be time barred
does not prohibit the Department from looking into the allegations and
taking appropriate action as to internal matters. The Department
believes that an enumeration of the elements of the good cause
exception may deter some individuals from filing complaints because
they mistakenly believe that their situation is not covered by the
listed elements. A simple good cause exception will allow for
individuals to file complaints who believe that they have a good reason
for filing after the 180-day period.
Finally, the commenter objected to proposed section 15d.5. After
further review, the Department has determined that this provision
should not be included in the rule. As is explained in more detail in
the preamble to the original proposed rule, the purpose of this section
was to make clear the intent and legal effect of the regulation.
However, the Department believes that the statement of intent contained
in the preamble to the earlier proposed rule is sufficient notice as to
the intent of the prohibition of discrimination contained in the rule.
In short, proposed section 15d.5 is more confusing than illuminating.
The Department also is proposing two additional protected classes
in addition to those discussed in the earlier proposal. As stated in
that proposal, the Department's policy has been that the protected
classes contained in the rule should, at a minimum, reflect those
classes protected by the various civil rights laws. Thus, the earlier
proposal stated that the rule should include marital status and
familial status since these classes are included in the Fair Housing
Act (marital status) and ECOA (marital and familial status). However,
the Department neglected the fact that ECOA also prohibits
discrimination against individuals because all or part of their income
is derived from any public assistance program. 15 U.S.C. 1691(a)(3).
Accordingly, the Department is proposing to add ``public assistance
status'' to the list of protected classes contained in the regulation.
The Department also is proposing to add sexual orientation as a
protected class in the rule. Beginning with the Secretary's Civil
Rights Policy Statement issued in February 1997, the Secretary of
Agriculture has included sexual orientation as a prohibited basis for
discrimination against both USDA employees and customers in his civil
rights policy statements. In doing so, the Secretary has determined
that treatment of USDA employees and customers based on sexual
orientation is treatment that is unfair and inequitable. Based on this
policy and Executive Order 13087 in which the President directed a
uniform policy prohibiting discrimination on this basis in Federal
employment, USDA is about to add sexual orientation as a protected
class to its complaint process for USDA employees. In order to be
consistent, the Department is now proposing to add sexual orientation
to the instant rule so that USDA customers who believe that they have
been discriminated against by USDA employees will be able to file a
complaint with USDA, have this complaint investigated and resolved and,
if appropriate, have corrective action provided.
The Department also is proposing that a provision on reprisal be
added to the rule. It is USDA's policy that no individual who files a
complaint or otherwise participates in the complaint process under the
proposed rule be subject to reprisal or retaliation. In addition, no
person who opposes any practice prohibited by the rule in any manner
should be subjected to such reprisal. By including a prohibition
against reprisal in the rule, individuals who believe that they have
been subject to reprisal will be able to file a complaint with CR, have
this complaint investigated and resolved and, if appropriate, have
corrective action provided. Finally, this is consistent with all
Federal civil rights complaint processes, which uniformly contain a
prohibition against reprisal.
The earlier proposed rule stated that the authority to make final
determinations, including corrective action, would be delegated to the
Assistant Secretary for Administration. However, after a reevaluation
of this proposal, the Department is proposing that this authority
should be delegated to the Director, CR. Thus, the proposed rule
reflects this change. In addition, the proposed provision on compliance
similarly reflects that the Director has been delegated the authority
for enforcement of this rule.
Finally, the Department is proposing to modify section 15d.4(c)
from the form it originally was proposed so that it is less confusing.
The purpose of this provision is to make clear that complaints
submitted under this part alleging discrimination based on disability
will be processed pursuant to 7 CFR Part 15e, which contains the
Department's regulations implementing the Rehabilitation Act as it
applies to federally conducted programs.
This proposed rule has been determined to be ``not-significant''
for purposes of Executive Order 12866, and therefore has not been
reviewed by the Office of Management and Budget. USDA certifies that
this final rule would not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act of 1980 (5 U.S.C. 601 et seq.). USDA also certifies that this final
rule would not impose any reporting or recordkeeping requirements under
the Paperwork Reduction Act of 1995. 44 U.S.C. Chapter 35.
USDA is providing a 30-day comment period for this rule. Comment is
invited
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on all aspects of the proposal, including the appropriateness and
effect of the proposed changes, and any additional or alternative
measures that would serve the goals of USDA as outlined in the
proposal.
List of Subjects in 7 CFR Parts 15 and 15d
Nondiscrimination.
Accordingly, The Department of Agriculture proposes to amend Title
7 of the Code of Federal Regulations. Subtitle A, as follows:
PART 15--[AMENDED]
1. The authority citation for part 15 continues to read as follows:
Authority: 5 U.S.C. 301; 29 U.S.C. 794.
2. Part 15, subpart B (Secs. 15.50-15.52) and the appendix thereto
is proposed to be removed.
3. Part 15, subpart C (Secs. 15.60-15.143) is proposed to be
redesignated as part 15, subpart B.
4. A new part 15d is proposed to be added to read as follows:
PART 15d--NONDISCRIMINATION IN PROGRAMS OR ACTIVITIES CONDUCTED BY
THE UNITED STATES DEPARTMENT OF AGRICULTURE
Sec.
15d.1 Purpose.
15d.2 Discrimination prohibited.
15d.3 Compliance.
15d.4 Complaints.
Authority: 5 U.S.C. 301.
Sec. 15d.1 Purpose.
The purpose of this part is to set forth the nondiscrimination
policy of the United States Department of Agriculture in programs or
activities conducted by the Department, including such programs and
activities in which the Department or any agency thereof makes
available any benefit directly to persons under such programs and
activities.
Sec. 15d.2 Discrimination prohibited.
(a) No agency, officer, or employee of the United States Department
of Agriculture shall exclude from participation in, deny the benefits
of, or subject to discrimination any person in the United States on the
ground of race, color, religion, sex, age, national origin, marital
status, familial status, public assistance status, sexual orientation,
or disability under any program or activity conducted by such agency,
officer or employee.
(b) No person shall be subjected to reprisal for opposing any
practice prohibited by this part or for filing a complaint or
participating in any other manner in a proceeding under this part.
Sec. 15d.3 Compliance.
The Director of the Office of Civil Rights shall evaluate each
agency's efforts to comply with this part and shall make
recommendations for improving such efforts.
Sec. 15d.4 Complaints.
(a) Any person who believes that he or she (or any specific class
of individuals) has been, or is being, subjected to practices
prohibited by this part may file on his or her own, or through an
authorized representative, a written complaint alleging such
discrimination. No particular form of complaint is required. The
complaint must be filed within 180 calendar days from the date the
person knew or reasonably should have known of the alleged
discrimination, unless the time is extended for good cause by the
Director of the Office of Civil Rights or his designee. Any person who
complains of discrimination under this part in any fashion shall be
advised of his or her right to file a complaint as herein provided.
(b) All complaints under this part should be filed with the
Director of the Office of Civil Rights, United States Department of
Agriculture, Washington, DC 20250, who will investigate the complaints.
The Director of the Office of Civil Rights will make final
determinations as to the merits of complaints under this part and as to
the corrective actions required to resolve the complaints. The
complainant will be notified of the final determination on his or her
complaint.
(c) Any complaint filed under this part alleging discrimination on
the basis of disability will be processed under Part 15e of this
chapter.
Dated: October 20, 1998.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 98-28699 Filed 11-9-98; 8:45 am]
BILLING CODE 3410-01-M
