03-3565. Administrative Civil Rights Adjudications Under Section 741

AGENCY:

Office of the Secretary, Department of Agriculture (USDA).

ACTION:

Interim final rule.

SUMMARY:

The USDA amends the adjudication process for certain civil rights discrimination complaints filed administratively with USDA in order to establish deadlines for complainants to request a formal proceeding before an administrative law judge (ALJ) and to clarify that complaints may no longer be filed.

DATES:

This rule is effective February 14, 2003. Written comments must be received by March 17, 2003.

ADDRESSES:

Submit all comments concerning this interim final rule to: David Winningham, Director, Office of Civil Rights (CR), USDA, Whitten Building, Room 326-W, 1400 Independence Avenue, SW., Washington, DC 20250. Comments may be submitted via electronic mail to: David [e-mail].

FOR FURTHER INFORMATION CONTACT:

David Winningham, Director, Office of Civil Rights, [phone].

SUPPLEMENTARY INFORMATION:

Classification

This interim final rule has been reviewed under Executive Order (E.O.) 121866, 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 interim 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 interim final 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.).

Background and Purpose

The purpose of this interim final rule is to establish finality with respect to the status of Section 741 Complaint Requests filed under part 15f by imposing deadlines that will bring closure to all actions filed under part 15f.

On December 4, 1998, USDA published an interim final rule at 7 CFR part 15f implementing 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 waived the statute of limitations (SOL) for filing discrimination complaints under certain nondiscrimination statutes for a period of two years after the enactment of that Act with respect to certain USDA programs.

The period for filing a Section 741 Complaint Request under the waiver of the SOL provided in Section 741 expired on October 21, 2000. USDA no longer has authority under the terms of the statutory waiver to accept Section 741 Complaint Requests under part 15f unless such a complaint has already been docketed under part 15f by USDA or unless a request was filed with USDA prior to October 21, 2000. This interim final rule amends § 15f.5 to make clear that Section 741 Complaint Requests filed under part 15f are no longer accepted by USDA.

A number of Section 741 Complaint Requests filed under the waiver are still pending before USDA, and complainants are still entitled to review of the final resolution of those Section 741 Complaint Requests by an ALJ if the Section 741 Complaint Requests are pursued to the formal proceeding stage under part 15f.

Prior to enactment of Section 741, USDA had a number of civil rights complaints pending that were eligible for consideration under Section 7841. In part 15f, USA committed itself to automatically docketing these pending complaints as Section 741 Complaint Requests and reviewing them to determine if settlement was a possibility. If settlement did not occur, then the Director would advise the complainant of the opportunity for review of the Section 741 Complaint Request under formal proceedings before an ALJ. Additionally, any new Section 741 Complaint Requests that were filed after promulgation of part 15f similarly were reviewed to determine if settlement was a possibility, and complainants were notified of the opportunity for an ALJ review if settlement did not occur.

The current regulations do not specify a deadline by which a complainant must seek an ALJ review of the Section 741 Complaint Request after USDA has informed the complainant that USDA will not settle the Section 741 Complaint Request. In order to bring legal finality to the complaint resolution process provided in part 15f, USDA amends § 15f.9 to specify that a complainant has 30 days from receipt of a notice that USDA will not settle the Section 741 Complaint Request to file a request for review by an ALJ. Complainants who, prior to the date of publication of this interim final rule, received a notice that USDA would not settle will have until 90 days after February 14, 2003 to request review of their Section 741 Complaint Request by an ALJ. Finally, part 15f is clarified to state that new request under part 15f will not be accepted by USDA.

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

For the reasons stated in the preamble, USDA proposes to amend 7 CFR part 15f as follows:

PART 15f—ADJUDICATIONS UNDER SECTION 741

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

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.).

2. Amend paragraph (c) of § 15f.5 to add a sentence to read as follows:

§ 15f.5

How do I request that USDA consider my complaint under these procedures?

* * * * *

(c) * * * If you did not receive a notice form USDA by October 21, 2000, that your Section 741 Complaint Request had been docketed automatically under paragraph (a) of this section, and you did not file a Section 741 Complaint Request prior to October 21, 2000, under paragraph (b) of this section, then any Section 741 Complaint Request received by USDA after October 21, 2000, will not be accepted.

3. Revise § 15f.9 to read as follows:

§ 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 CR 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. CR also may refer your eligible complaint for a formal investigation by the CR 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 CR will not settle the complaint and explain to you your options, including your right to request formal proceedings before an ALJ under subpart D of this part within 30 days of receipt of notice from the Director that CR will not settle the complaint. If the complaint is successfully resolved or settled, the Director will issue a final determination disposing of the matter. If you have received a notice that the Director will not settle the complaint prior to February 14, 2003, you have until 90 days after February 14, 2003 to request formal proceedings under subpart D of this part. Any request for formal proceedings received by USDA after the deadlines set forth in this section will not be accepted.

Done at Washington, DC, this 7th day of February, 2003.

Ann M. Veneman,

Secretary of Agriculture.