[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17851-17853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9900]
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Proposed Rules
Federal Register
________________________________________________________________________
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. 61, No. 79 / Tuesday, April 23, 1996 /
Proposed Rules
[[Page 17851]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Parts 15 and 15d
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. The proposal would remove the current regulation on this
subject found at 7 CFR part 15, subpart B (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
correction 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.
DATES: Comments must be received by May 23, 1996.
ADDRESSES: Send comments to Director of Civil Rights, Department of
Agriculture, Washington, DC 20250. Comments will be available for
public inspection at Room 1322, South Building, Department of
Agriculture, Washington, DC 20250.
FOR FURTHER INFORMATION CONTACT:
Andrew Johnson, Director, Policy and Planning, Civil Rights, 202-720-
1130; or Ron Walkow, Attorney-Advisor, Office of General Counsel, 202-
720-6056.
SUPPLEMENTARY INFORMATION: The Department in 1964 first adopted
regulations to cover nondiscrimination in all programs and activities
directly administered by USDA (29 FR 16966). At that time, the
regulations were intended to complement the newly enacted Title VI of
the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) by covering
those programs and activities not subject to Title VI; that is,
programs and activities in which USDA or an agency thereof made
available a benefit directly to persons rather than through a
recipient. However, these regulations were made a part of the
Department's Title VI regulations; specially, they were issued at
Subpart B where they have remained to this day. Since then, subpart B
has been amended on several occasions to include a variety of protected
classes in addition to race, color, and national origin. (38 FR 22465;
42 FR 65202; 47 FR 25458). Subpart B also was amended to provide that
individuals who believe they were subject to discrimination under the
regulations may file a complaint with the Department (50 FR 25687; 54
FR 31164).
Since Title VI is not the authority for the regulations, having
these regulations codified as part of the Department's Title VI
regulations has resulted in some confusion over the years. Accordingly,
the Department is proposing to remove the regulations from subpart B of
part 15 and reissue them in a new regulation, part 15f of Title 7.
Along these same lines, the authority provision of the regulation would
be revised to clarify that the authority for the regulation is 5 U.S.C.
301, not Title VI.
In addition to removing and reissuing the regulation, the
Department is proposing to make some minor substantive changes to the
regulation. First, the regulation will be reworded to clarify that it
applies to discrimination in all Department-conducted programs and
activities; that is, to any allegation that a USDA employee
discriminated against a member of the public--whether in a direct
assistance program or in any other manner.
Second, the Department is also proposing to add familial status and
marital status to the protected classes covered by the regulation. Over
the years, the Department has added protected classes to the regulation
in order to reflect those classes protected by the various Federal
civil rights laws. Two of those classes not currently included are
familial status (which is included in the Fair Housing Act (42 U.S.C.
3601 et seq.)) and marital status (which is included in the Equal
Credit Opportunity Act (15 U.S.C. 1691 et seq.). Accordingly, the
proposed rule would include these classes.
The proposed regulation would delete the provision now contained in
subpart B at Sec. 15.51(b). The Department believes that the broad
language used in proposed Sec. 15d.2 is sufficient to make clear that
the Department will not discriminate in any of its conducted programs,
without having to provide specific examples, of prohibited
discriminatory acts. By this action, the Department does not intend to
substantively affect the scope of the protections currently covered by
Sec. 15.51(b).
The Department is also proposing to add a new section on the
efforts of the Department to ensure compliance with this part since it
is as crucial to have an ongoing evaluation of Department agencies'
compliance with this section as it is to have a complaint process.
Therefore, the enforcement sections, i.e. proposed Secs. 15d.3 and
15d.4, provide for the Department engaging in compliance activities and
in complaint resolution. Specific provisions noting how these efforts
will be implemented within the Department will be set forth in internal
regulations and guidelines.
The proposed regulation would reflect that the authority to make
final determinations for the Department as to (1) whether
discrimination occurred and the corrective action required by the
Department to resolve complaints and (2) whether Department agencies'
efforts to comply with nondiscrimination requirements are sufficient
will no longer be delegated to the Director, Office of Civil Rights
Enforcement,\1\ but instead has been delegated to Assistant Secretary
for Administration (ASA). This delegation already has been effectuated
in 7 CFR part 2, and that change would be reflected in the proposed
regulation. The Department believes that determinations of this
magnitude should be elevated to the sub-cabinet level. In addition,
this
[[Page 17852]]
change would make the determining official in program discrimination
complaints the same official, i.e. the ASA, who makes final
determinations on employment discrimination complaints within the
Department. Civil Rights Adjudication and Enforcement (AE) will be
responsible for conducting the investigations on complaints and
evaluating agencies' efforts to comply with the discrimination
prohibition provisions of this new Part.
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\1\ The Office of Civil Rights Enforcement has been reorganized
into two entities within Departmental Administration, i.e., Civil
Rights and Civil Rights Adjudication and Enforcement.
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The Department is also proposing to remove the provisions in
Sec. 15.52(a) that require covered agencies of the Department to
provide notice of the public's right to file a complaint under that
Subpart. Under the proposed new Part 15d, this requirement will be
transferred to the Department's internal regulations. The Department
now believes that internal instructions such as the notice requirement
now in Sec. 15.52(a) are more appropriate in such a regulatory setting.
However, until such internal regulations are issued, agencies of the
Department will continue to follow the procedures currently required in
Sec. 15.52(a).
The Department is next proposing to remove the appendix to the
regulation (currently ``Appendix to Subpart B''), which purports to
list the programs and activities conducted by the Department. The
Department has found that it is difficult to maintain the accuracy of
this list on a regular basis when it is contained in the Code of
Federal Regulations. Additionally, having the Appendix in the Code of
Federal Regulations does not contribute to the effectiveness of the
regulation. Accordingly, the Department would remove the Appendix and
maintain such a list of programs and activities in internal guidelines
to be maintained by Civil Rights (CR).
The proposed regulation would contain a new provision that would
state that nothing in the regulation shall be construed as making
unlawful any program or activity conducted by the Department that is
otherwise lawful. The purpose of this provision is to make clear the
intent of the regulation. That is, this regulation is not intended to
prohibit the Department from doing anything that it is not already
prohibited from doing by the Constitution and various Federal statutes.
The regulation merely states the nondiscrimination policy of the
Department; it does not create any additional rights for individuals
and entities that deal with the Department. The proposed language would
make clear this intention as well as the legal effect of the
regulation.
Finally, the Department proposes to add a provision stating that
complaints filed under the regulation that are subject to a Department
complaint process that is implemented under specific statutory
authority will be processed under the statutory complaint process.
Thus, for example, a complaint alleging that the Department
discriminated on the basis of disability in a conducted program will be
processed under 7 CFR part 15e, which implements the Rehabilitation
Act.
In conclusion, the proposed regulation would set forth the
nondiscrimination policy of the Department, provide for compliance
efforts by the Department, notify the public that it may file
complaints with the Department alleging discrimination, and provide
that complainants will be notified of the final determinations on their
complaints. The Department believes that the detailed internal
procedures on the processing of these complaints should be contained in
internal regulations rather than in the Code of Federal Regulations.
These internal regulations will address such matters as the duties of
Department agencies under the regulation, guidelines on what
constitutes a proper investigation, and the standards for ``good-
cause'' extension of the 180-day filing period. The Department will
issue these internal regulations as soon as is practicable after this
proposed rule has been made final. Once completed, the internal
regulations will be available for public inspection.
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 proposed 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
proposed 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 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.
In consideration of the foregoing, the Department 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
would be removed; and
3. A new Part 15d would be added 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.
15d.5 Effect of regulation.
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.
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, or disability under any program or activity
conducted by such agency, officer, or employee.
Sec. 15d.3 Compliance.
The Office of the Director of Civil Rights shall evaluate each
agency's efforts to comply with this part and report to the Assist
Secretary for Administration the results of such evaluations, including
recommendations for improving such efforts. The Assistant Secretary
shall make a final determination as to the merits of such
recommendations and the actions to be taken to improve 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
[[Page 17853]]
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
Assistant Secretary for Administration 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 Civil Rights Adjudication and Enforcement, United States
Department of Agriculture, Washington, DC 20250, who will investigate
the complaints. The Assistant Secretary for Administration 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 that is subject to a
Department complaint process that is implemented under specific
statutory authority will be processed under the statutory complaint
process.
Sec. 15d.5 Effect of regulation.
Nothing in this part shall be construed as making unlawful any
program or activity conducted by the Department that is otherwise
lawful.
Dated: April 16, 1996.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 96-9900 Filed 4-22-96; 8:45 am]
BILLING CODE 3410-01-M
