[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
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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. 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.
---------------------------------------------------------------------------

    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]
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