[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]
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