[Federal Register Volume 78, Number 249 (Friday, December 27, 2013)]
[Proposed Rules]
[Pages 78788-78794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30812]
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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. 78, No. 249 / Friday, December 27, 2013 /
Proposed Rules
[[Page 78788]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 15d
RIN 0503-AA52
Nondiscrimination in Programs or Activities Conducted by the
United States Department of Agriculture
AGENCY: United States Department of Agriculture.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The United States Department of Agriculture (USDA or
Department) proposes to amend its regulation on nondiscrimination in
programs or activities conducted by the Department. The changes are
proposed to clarify the roles and responsibilities of USDA's Office of
the Assistant Secretary for Civil Rights (OASCR) and USDA agencies in
enforcing nondiscrimination in programs or activities conducted by the
Department and to strengthen USDA's civil rights compliance and
complaint processing activities to better protect the rights of USDA
customers. OASCR's compliance activities are detailed, and a
requirement is included that each agency shall, for civil rights
compliance purposes, collect, maintain, and annually compile data on
the race, ethnicity, and gender of all conducted program applicants and
participants by county and State. Applicants and program participants
will provide the race, ethnicity, and gender data on a voluntary basis.
The proposed amendment also provides that OASCR shall offer Alternative
Dispute Resolution (ADR) services to complainants where appropriate.
This amendment is intended to encourage the early resolution of
customer complaints. Finally, USDA proposes to amend its regulation to
add protection from discrimination in programs or activities conducted
by the Department with respect to two new protected bases: political
beliefs and gender identity. This amendment is meant to make explicit
protections against discrimination based on USDA program customers'
political beliefs or gender identity. Gender identity includes USDA
program customers' gender expression, including how USDA program
customers act, dress, perceive themselves, or otherwise express their
gender.
DATES: Submit comments on or before January 27, 2014. Submit comments
on the Paperwork Reduction Act package on or before February 25, 2014.
ADDRESSES: Submit comments on the proposed regulation to Anna G.
Stroman, Chief, Policy Division, by mail at Office of the Assistant
Secretary for Civil Rights, 1400 Independence Avenue SW., Washington
DC, 20250. Please send written comments on the information collection
or recordkeeping requirements included in this proposal to the Office
of Information and Regulatory Affairs, Office of Management and Budget
(OMB), attention: Desk Officer for Agriculture, Washington, DC 20503.
Please state that your comments refer to Docket No. 0503-AA52.
Please send a copy of your comments to: Docket No. 0503-AA52, Anna G.
Stroman, Chief, Policy Division, by mail at the Office of the Assistant
Secretary for Civil Rights, 1400 Independence Avenue SW., Washington
DC, 20250. Comments on the Paperwork Reduction Act section are best
assured of having their full effect if OMB receives them within 60 days
of publication of this proposed rule.
FOR FURTHER INFORMATION CONTACT: Anna Stroman on (202) 205-5953 or at
[email protected].
SUPPLEMENTARY INFORMATION:
Background
The USDA proposes to amend its regulation on nondiscrimination in
programs or activities conducted by the Department. In 1964, USDA
extended the nondiscrimination principles found in Title VI of the
Civil Rights Act of 1964 to apply to its own federally conducted
activities by prohibiting discrimination on the basis of race, color,
and national origin. (See 29 Federal Register (FR) 16966, creating 7
CFR part 15, subpart b, referring to nondiscrimination in direct USDA
programs and activities, now found at 7 CFR part 15d). Subsequently,
USDA expanded the protected bases for its conducted programs to include
religion, sex, age, marital status, familial status, sexual
orientation, disability, and whether any portion of a person's income
is derived from public assistance programs. The Secretary's intention
is to hold the Department and its employees accountable for a
nondiscrimination standard equal to or greater than the standard
recipients of Federal financial assistance must follow.
The regulation was last revised in 1999 (64 FR 66709, Nov 30,
1999). The changes are proposed to clarify the roles and
responsibilities of OASCR and USDA agencies in enforcing
nondiscrimination in programs or activities conducted by the Department
(``conducted programs'') and to strengthen USDA's civil rights
compliance and complaint processing activities to better protect the
rights of USDA customers. This regulation does not address those
programs for which the Department provides Federal financial assistance
\1\ (``federally assisted programs''), which are covered under 7 CFR
parts 15, 15a and 15b.
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\1\ Federally assisted programs are programs and activities
receiving financial assistance through a third party such as a State
or municipal government, university, or organization. Federally
conducted programs, which are those programs covered in this
regulation, are programs and activities receiving assistance
directly from USDA.
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Highlights of Changes to the Regulation
The proposed regulation outlines three specific changes to current
activities. First, the proposed regulation includes a requirement that
each agency shall, for civil rights compliance purposes, collect,
maintain, and annually compile, by county and State, data on the race,
ethnicity, and gender of all applicants and participants of programs
and activities conducted by USDA. Applicants and program participants
of these programs will provide this data on a voluntary basis. Although
USDA first established a policy for collecting data on race, ethnicity,
and gender in 1969, there is currently no uniform requirement for
reporting and tabulating this data across USDA's diverse program areas.
The four USDA agencies that administer the majority of USDA's conducted
programs--the Farm Services Agency (FSA), the Natural Resources
Conservation Service (NRCS), Rural
[[Page 78789]]
Development (RD), and the Forest Service--already collect this data
from individuals. FSA, NRCS, and RD (the ``field-based agencies'')
collect this data under the requirements of section 14006 of the Food,
Conservation, and Energy Act of 2008 (2008 Farm Bill), which requires
collection of this data for each program that serves agricultural
producers and landowners. This data allows USDA to track application
and participation rates for socially disadvantaged and limited
resources applicants and participants. Together, these four agencies
capture more than 90 percent of the contacts USDA has with the public
through its conducted programs. This proposed regulation will
standardize the recordkeeping requirement across the Department to all
programs conducted by USDA that deliver benefits to the public.
Second, the rule would require that OASCR offer ADR services to
complainants where appropriate. This amendment is intended to encourage
the early resolution of customer complaints and is in accordance with
the Secretary of Agriculture's Blueprint for Stronger Service. Offering
ADR will expand the use of techniques currently applied in the
employment context that facilitate complaint resolution and shorten
resolution time. It will provide a cost-effective opportunity for early
complaint resolution. USDA anticipates that this measure will reduce
costs associated with complaint processing while also enhancing
customer experience with the Department.
Finally, USDA proposes to amend its regulation to add protection
from discrimination in programs or activities conducted by the
Department with respect to two new protected bases, political beliefs
and gender identity. Discrimination by USDA employees on these grounds
is already prohibited in USDA's nondiscrimination statement. This
amendment is meant to formalize protections against discrimination
based on USDA program customers' political beliefs or gender identity,
which will strengthen USDA's ability to ensure that all USDA customers
receive fair and consistent treatment, and align the regulations with
USDA's civil rights goals. Gender identity includes USDA program
customers' gender expression, including how USDA program customers act,
dress, perceive themselves, or otherwise express their gender.
The inclusion of political beliefs will prohibit discrimination
consistent with the Food Stamp Act of 1964, Public Law 88-525, 78 Stat.
703-709 (Aug. 31, 1964), the Civil Service Reform Act of 1978 (which
covers political affiliation), and the Secretary of Agriculture's civil
rights policy statements.
The inclusion of gender identity will ensure equal treatment of
transgender and other gender nonconforming individuals in USDA's
conducted programs and activities. For the purpose of this regulation,
gender identity includes USDA program customers' gender expression,
including how USDA program customers act, dress, perceive themselves,
or otherwise express their gender. The inclusion of gender identity as
a separate category is not intended to undermine existing protections
for transgender and other nonconforming individuals under laws that
prohibit sex discrimination.
The change proposed will allow USDA customers of conducted programs
who believe that they have been discriminated against on the basis of
political beliefs or gender identity to take advantage of USDA's
existing mechanisms to file an administrative complaint and receive a
response. USDA's response could include recommending additional
training for USDA employees or outreach in appropriate cases,
procedures which already take place and can continue to take place
within existing resources. The change proposed applies only to USDA's
internal administrative complaint mechanism and does not, in and of
itself, create any new legal rights to bring suit against USDA, or
expand the class of cases where USDA is authorized to pay money in
connection with civil rights complaints.
Executive Orders 12866 and 13563 and Regulatory Flexibility Act
The proposed rule has been determined to be significant for the
purposes of Executive Order 12866 by the OMB. Executive Order 12866,
``Regulatory Planning and Review,'' and Executive Order 13563,
``Improving Regulation and Regulatory Review,'' direct agencies to
assess all costs and benefits of available regulatory alternatives,
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
The Regulatory Flexibility Act (RFA) requires agencies to consider
the impact of their rules on small entities and to evaluate
alternatives that would accomplish the same objectives without undue
burden when the rules impose a significant economic impact on a
substantial number of small entities.
Regulatory Impact Analysis--Benefits and Costs
The proposed changes to 7 CFR part 15d will clarify the roles and
responsibilities of the United States Department of Agriculture's
(USDA) Office of the Assistant Secretary for Civil Rights (OASCR) and
USDA agencies in enforcing nondiscrimination in programs or activities
conducted by the Department. They will also strengthen USDA's civil
rights compliance and complaint processing activities to better protect
the rights of USDA's customers.
Impact of Changes
This regulation will afford several benefits. First, requiring the
collection of data in a standardized fashion of applicants and
participants of those programs in which USDA directly provides to the
public services, benefits, or resources (i.e. conducted programs) will
conform with the requirements of the 2008 Farm Bill. Second, it will
strengthen USDA's ability to monitor agency compliance with civil
rights requirements. Third, the expansion of Alternative Dispute
Resolution Services will enhance USDA's ability to resolve complaints
against USDA conducted programs, and result in a small net annual
savings to USDA. The expansion of protections against discrimination in
the delivery of conducted programs will improve the protection of USDA
customers' rights by ensuring that USDA conducted programs are
delivered fairly and consistently.
These changes will impose a small, time-related cost on the public
who are served by USDA's conducted programs through the data collection
requirement, should they volunteer to provide the data. This data
collection requirement will benefit USDA by enabling it to better
monitor whether USDA programs and services are meeting the needs of all
populations served by USDA. USDA does not anticipate that the proposed
changes will otherwise significantly add to USDA's program costs.
The proposed changes do not affect programs administered by States,
local governments, or other third-party recipients of Federal
assistance from USDA, which are covered under 7 CFR parts 15, 15a and
15b. The benefits and costs of each of the three proposed changes to
the rule are discussed below.
Collection of Voluntary Data on Race, Ethnicity, and Gender
The proposed rule requires that each USDA agency collect, maintain,
and annually compile data on the race, ethnicity, and gender of all
program
[[Page 78790]]
applicants and participants of conducted programs by county and State.
Program users' responses will be voluntary. This will create a standard
collection of data on race, ethnicity, and gender from applicants and
beneficiaries of USDA-conducted programs. USDA anticipates that this
expanded data collection will include additional data regarding
customers who are and are not receiving USDA benefits, improve the
design of USDA programs, and ultimately reduce the number of complaints
of discrimination filed against USDA. While it is difficult to quantify
the impact of these improvements in advance of implementation,
improvements in outreach and monitoring adopted since 2009 led to a
measurable drop in complaints received.
As described below, the proposed additional collection of voluntary
data will impose a small new cost on the public in the form of time
needed to complete the form. USDA estimates that the cost to the USDA
agency to process the collection of the additional data on race,
ethnicity, and gender proposed in the rule will be low. As previously
described, the three field-based agencies and the Forest Service
account for more than 90 percent of contacts with the public in USDA-
conducted programs. However, these agencies are already collecting the
data required under this rule, and USDA has already incurred the
associated costs. Three additional USDA agencies currently have
conducted programs that will be covered by the proposed rule, and the
passage of this rule will require new data collection efforts. These
three agencies are the Animal and Plant Health Inspection Service
(APHIS), the Foreign Agricultural Service (FAS), and the Food and
Nutrition Service (FNS). These three agencies will collect voluntary
data from individuals who apply, participate in, or receive benefits
from their various conducted programs. Collectively, collection of
voluntary data at these three agencies will impact an estimated 1,349
additional program users per year. USDA estimates that it will take
each participant 3 minutes to respond, and using a conservative 100-
percent response rate, USDA estimates that the total new impact to the
public from this requirement will be 68 additional burden hours to
program users (Table 1). For comparison, the existing collection
requirements under FSA, NRCS, RD, and the Forest Service involve a
burden of about 82,800 hours. Considering USDA agency costs, USDA
estimates the total cost of the additional data collection to be $5,289
(Table 2).
Table 1--Estimated Burden Hours to Public From New Data Collection
Required by Proposed Rule
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Annual burden
Contacts with hours at 3
Agency program users min. per form
per year \1\ \2\
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APHIS................................... 1,100 55
FAS..................................... 90 5
FNS..................................... 159 8
-------------------------------
Total............................... 1,349 68
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Source:
\1\ Individual USDA Agency estimates of the number of program
participants engaging in conducted programs
\2\ Annual burden hours are calculated based on the unit of time needed
to complete the form: 3 min./60 min. = 0.05hours per form, which is
multiplied by the number of agency program users.
Table 2--Estimated Public and Agency Cost of New Data Collection Required By Proposed Rule
----------------------------------------------------------------------------------------------------------------
Estimated cost
to public in Cost to USDA
Number of time required to collect and
Agency contacts with to complete report data at Total costs
program users form at $0.84 $3.08 per
per year \1\ per contact contact \3\
\2\
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APHIS........................................... 1,100 $924 $3388 $4312
FAS............................................. 90 76 277 353
FNS............................................. 159 134 490 624
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Total \4\................................... 1,349 1,134 4,155 5,289
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Sources:
\1\ Individual USDA Agency estimates of the number of program participants engaging in conducted programs.
\2\ Estimated cost to the public in the time required to complete the form is estimated based on the Department
of Labor Occupation Employment Survey data, which shows that for all occupations, the median wage rate is
$16.71/hr. This rate equals $0.28 per minute, or $.84 per 3-minute contact. This figure is multiplied by the
number of agency program users.
\3\ Estimated cost to process each form is based on the assumption that the data from one contact will take 10
minutes to process by an employee at a GS-7 Step 5 salary. The Office of Personnel Management states that this
salary is $18.45/hr. This rate equals $0.308 per minute, or $3.08 per 10-minute contact. This figure is
multiplied by the number of agency program users.
Alternative Dispute Resolution Services Offered to Program Complainants
The proposed amendment provides that OASCR shall offer ADR services
to complainants where appropriate. This amendment is intended to
encourage the early resolution of customer complaints. The outcome from
early resolution should improve customers' experience with the
complaint process and result in reduced costs to complainants and the
Department.
The proposed change to ADR will not impose or result in any costs
to the public served by USDA's conducted programs. USDA anticipates
that this expansion of ADR services to complainants of USDA's conducted
programs will provide a small net yearly savings to USDA. USDA
receives, on
[[Page 78791]]
average, approximately 1,055 \2\ complaints from participants of all
USDA programs per year; of these, 160 are under USDA's conducted
programs and would be covered by this rule.
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\2\ Estimated complaints average based on data from FY 2009-
2011. FY 2009-2011 Farm Bill Reports are posted on OASCR Web site.
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Even assuming an additional 160 program complaints per year through
ADR, USDA has existing infrastructure to process these complaints. An
average of 16.7 hours of staff time will be required to provide ADR in
each case. Based on an hourly wage rate of $46 per hour for this staff,
OASCR estimates an annual estimated cost of program ADR of $122,912.
Historically, the ADR rate of resolution for Equal Employment
Opportunity cases is 16.5 percent. Should this rate be realized for
program resolution, approximately 26 cases per year would be resolved
through ADR. Complaints successfully resolved through ADR will allow
the avoidance of several additional, costly steps currently required to
resolve complaints, such as an Agency response, fact finding,
investigation, adjudication, or review. OASCR estimates that avoiding
these steps would save an average of 250 hours of staff time per
complaint successfully resolved through ADR. Resolving 26 cases through
ADR would save the agency approximately 6,500 hours in processing time.
These savings amount to $299,000, yielding net savings of about
$176,000 per year by implementing ADR for program complaints.
Adding Explicit Protections Against Discrimination Based on Political
Beliefs and Gender Identity
Finally, USDA proposes to amend its regulation to add protection
from discrimination in programs or activities conducted by the
Department with respect to two new protected bases, political beliefs
and gender identity. Discrimination by USDA employees on these grounds
is already prohibited in USDA's nondiscrimination statement. Making
these protections explicit in the governing regulations will benefit
the public by strengthening USDA's ability to ensure that all USDA
customers receive fair and consistent treatment, and will bring the
regulations into alignment with USDA's nondiscrimination goals. The
proposed change will impose no new costs on the public served by USDA-
conducted programs, and USDA does not expect any significant increase
in operational costs to USDA.
The change proposed will allow USDA customers of conducted programs
who believe that they have been discriminated against based on their
political beliefs or gender identity to take advantage of USDA's
existing mechanisms to file an administrative complaint and receive a
response. USDA's response could include recommending additional
training for USDA employees or outreach in appropriate cases,
procedures that already take place within existing resources. The
change proposed applies only to USDA's internal administrative
complaint mechanism and does not create any new legal rights to bring
suit against USDA, or expand the class of cases where USDA is
authorized to pay money in connection with civil rights complaints. The
inclusion of gender identity also is not intended to undermine existing
protections against transgender discrimination under laws that prohibit
sex discrimination.
USDA does not anticipate a significant increase in operational
costs to result from specifying that discrimination based on political
beliefs and gender identity may be the bases for complaints in
conducted programs. Based on USDA's complaint inventory, and the
experience of the Department of Housing and Urban Development (HUD) in
adopting similar protections, USDA does not anticipate a significant
increase in the number of complaints, and therefore the cost of
processing these complaints, as a result of extending the requirement
that USDA program customers are treated fairly and without bias. Any
additional administrative costs to process these complaints will be
offset by the benefits of extending these protections to USDA
customers.
For additional context, in February 2012, HUD amended its
regulations to extend protections against discrimination based on
gender identity (see FR Vol. 77, No. 23 at 5662 et seq.). The public
comment period for the HUD-proposed rule resulted in approximately 376
public comments received from a variety of commenters, including
individuals, advocacy groups, legal aid offices, tenant and fair
housing organizations, realtors and their representatives, law school
clinics, public housing authorities, local government officials, and
members of Congress. The overwhelming majority of comments were
supportive of the rule, stating that it was long overdue and noting
that HUD, as the Nation's housing agency, should lead the efforts to
prevent discrimination against Lesbian, Gay, Bisexual, and Transgender
persons in housing. Moreover, HUD's rule has not created a significant
increase in complaints received. USDA expects that its rule will be
similarly received.
OASCR believes that the benefits of this rule exceed its cost, but
OASCR invites comments on the analysis, and is interested in receiving
further information that could be used to quantify further the benefits
and costs of this proposed rule.
Regulatory Flexibility Act
When an agency issues a rulemaking proposal, the Regulatory
Flexibility Act (RFA) requires the agency to ``prepare and make
available for public comment an initial regulatory flexibility
analysis'' that will ``describe the impact of the proposed rule on
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an
agency to certify a rule, in lieu of preparing an analysis, if the
proposed rulemaking is not expected to have a significant economic
impact on a substantial number of small entities.
7 CFR part 15d clarifies the roles and responsibilities of the USDA
OASCR and USDA agencies in enforcing nondiscrimination in programs or
activities conducted by the Department. The proposed regulation was
last revised in 1999 (64 FR 66709, Nov 30, 1999). The changes also
strengthen USDA's civil rights compliance and complaint processing
activities to better protect the rights of USDA customers. As stated
previously, the proposed data collection is in line with the
requirements of section 14006 of the 2008 Farm Bill. The inclusion of
political beliefs as a protected basis will prohibit discrimination in
accordance with current civil rights laws, the Food Stamp Act of 1964,
Public Law 88-525, 78 Stat. 703-709 (Aug. 31, 1964) and the Civil
Service Reform Act of 1978 (which covers political affiliation) and the
Secretary of Agriculture's civil rights policy statements.
The proposed rule may affect entities such as grocery and related
product merchant wholesalers, establishments that export their goods on
their own account that fall into category 4244 of the North American
Industry Classification System (NAICS). Merchant wholesale
establishments typically maintain their own warehouse, where they
receive and handle goods for their customers. Goods are generally sold
without transformation but may include integral functions, such as
sorting, packaging, labeling, and other marketing services.
For the purpose of this analysis and following the Small Business
Administration (SBA) guidelines, the potentially affected entities are
classified within the following
[[Page 78792]]
industries: General Line Grocery Merchant Wholesalers (NAICS 424410);
Packaged Frozen Food Merchant Wholesalers (NAICS 424420); Dairy Product
(except Dried or Canned) Merchant Wholesalers (NAICS 424430); Poultry
and Poultry Product Merchant Wholesalers (NAICS 424440); Confectionery
Merchant Wholesalers (NAICS 424450); Fish and Seafood Merchant
Wholesalers (NAICS 424460); Meat and Meat Product Merchant Wholesalers
(NAICS 424470); Fresh Fruit and Vegetable Merchant Wholesalers (NAICS
424480); and Other Grocery and Related Products Merchant Wholesalers
(NAICS 424490).
Establishments in the categories listed above are considered small
by SBA standards if their employee base is less than 100 employees.
According to the U.S. Census data, there are 46,272 grocery and related
product merchant wholesalers that are considered small.
Based on USDA program data, it is expected that the proposed data
collection requirements on those who apply, participate in, or receive
benefits from various conducted programs may affect 90 participants who
fall in the above cited categories. These are participants in FAS
programs (Table 1). The remaining 1,259 contacts are private
individuals.
USDA estimates that it will take each participant 3 minutes to
respond. The race, ethnicity, and gender information will be
voluntarily collected from individual applicants. Assuming an upper
bound, 100-percent response rate of all 1,349 contacts, USDA estimates
that the total new impact to the public from this requirement will be
68 additional burden hours per year at an estimated cost of about
$1,100 (Table 2), or less than $1 per respondent should they choose to
report.
The offer of ADR to program customers is not expected to have an
adverse impact on small businesses. ADR will reduce the number of
complaints filed, thereby reducing costs to the agency.
The inclusion of political beliefs and gender identity as protected
bases is also not expected to have any adverse effect on small
businesses. Instead, it will ensure that USDA is operating in
accordance with the requirements of current civil rights laws and
regulations and should not add additional costs to small businesses
that are not participating in discriminatory activities or practices.
USDA considered the alternative of not updating its
nondiscrimination regulations, however, without this rule, no
additional assurances of nondiscrimination protections will be
realized.
Based on the above discussion, the Assistant Secretary for Civil
Rights certifies that this rule will not have a significant economic
impact on a substantial number of small entities. USDA invites comment
from members of the public who believe there will be a significant
impact, and requests information to better inform the analysis of
benefits and costs.
The 2008 Farm Bill, section 14006 requires the collection of
application and participation rate data regarding socially
disadvantaged farmers or ranchers. OMB has approved a form for this
data collection, and the field-based agencies have already implemented
it. This existing data collection already meets the requirements
proposed in this rule, and therefore, the proposed rule imposes no new
data collection requirements on the three field-based agencies and will
not cause duplication or conflict with the 2008 Farm Bill requirements.
USDA is unaware of any other Federal rules that duplicate, overlap, or
conflict with the proposed rule.
Executive Order 12372
Executive Order 12372, ``Intergovernmental Review of Federal
Programs'', requires consultation with State and local officials. The
objectives of the Executive Order are to foster an intergovernmental
partnership and a strengthened Federalism, by relying on State and
local processes for State and local government coordination and review
of proposed Federal financial assistance and direct Federal
development. This rule neither provides Federal financial assistance
nor direct Federal development. It does not provide either grants or
cooperative agreements. Therefore, this program is not subject to
Executive Order 12372.
Executive Order 12988
This rule has been reviewed in accordance with Executive Order
12988, ``Civil Justice Reform.'' This rule would not preempt State and
or local laws, and regulations, or policies unless they present an
irreconcilable conflict with this rule. Before any judicial action may
be brought regarding the provisions of this rule, the administrative
appeal provisions of 7 CFR parts 11 and 780 must be exhausted.
Executive Order 13175
This rule has been reviewed for compliance with Executive Order
13175, ``Consultation and Coordination with Indian Tribal
governments.'' The review reveals that this rule will not have
substantial and direct effects on Tribal Governments and will not have
significant Tribal implications. OASCR consulted with the USDA Office
of Tribal Relations in development of this proposed rule and believes
that it will not impact or have direct effects on Tribal governments
and will not have significant Tribal implications. OASCR continues to
consult with the USDA Office of Tribal Relations to collaborate
meaningfully to develop and strengthen departmental regulations.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L.
104-4) requires Federal agencies to assess the effects of their
regulatory actions on State, local, or Tribal governments or the
private sector. Agencies generally must prepare a written statement,
including a cost benefit analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any one year for State, local, or Tribal governments, in the
aggregate, or to the private sector. The UMRA generally requires
agencies to consider alternatives and adopt the more cost-effective or
least burdensome alternative that achieves the objectives of the rule.
This rule contains no Federal mandate as defined by Title II of UMRA
for State, local, or Tribal governments or for the private sector.
Therefore, this rule is not subject to the requirements of sections 202
and 205 of UMRA.
Paperwork Reduction Act of 1995
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this proposed rule will be
submitted for approval to OMB. Please send written comments to the
Office of Information and Regulatory Affairs, OMB, attention: Desk
Officer for the Office of the Assistant Secretary for Civil Rights,
Washington, DC 20503. Please state that your comments refer to Docket
No. 0503-AA52. Please send a copy of your comments to: Docket No. 0503-
AA52, Anna G. Stroman, Chief, Policy Division, by mail, at the Office
of the Assistant Secretary for Civil Rights, 1400 Independence Avenue
SW., Washington DC, 20250. Comments on the Paperwork Reduction Act
section are best assured of having their full effect if OMB receives
them within 60 days of publication of this proposed rule.
The proposed rule outlines USDA's compliance activities in greater
detail, including a requirement that each agency shall, for civil
rights compliance
[[Page 78793]]
purposes, collect, maintain, and annually compile data on the race,
ethnicity, and gender of all applicants and participants of programs
and activities conducted by USDA, by county and State. This requirement
would not apply to programs conducted by state or local governments or
other private entities that receive Federal funding from USDA. While
USDA agencies will be required to seek this data, program users'
responses will be voluntary. USDA estimates that it will take program
users who participate no more than 3 minutes to respond.
Four USDA agencies already collect and report this data; this
regulation will not impact their existing data collections. The field-
based agencies, FSA, NRCS, and RD, track participation rates for
socially disadvantaged limited resources applicants and participants.
Collection by these three agencies is required by Section 14006 of the
Food, Conservation, and Energy Act of 2008 (2008 Farm Bill). OMB has
approved a form for data collection by the three field-based agencies,
and USDA has already implemented collection efforts (Approved OMB No.
0503-0019). In addition, the Forest Service also has an OMB-approved
form in place to collect this data through a survey (Approved OMB No.
0596-0110). The proposed regulation will standardize the recordkeeping
requirement across the Department to all other programs conducted by
USDA. FSA, NRCS, RD, and the Forest Service will continue to use the
existing forms that OMB has approved for their data collections. Other
program areas will adopt the form that has already been approved by OMB
for the three field-based agencies, under control number OMB No. 0503-
0019. Therefore, the provisions of this rule require no revision to the
information collection requirements that were previously approved by
OMB under control number 0503 0019.
There is no paperwork collection associated with the other changes
in this rule.
USDA is soliciting comments from the public concerning the proposed
information collection and recordkeeping requirements. These comments
will help us:
(1) Evaluate whether the proposed information collection is
necessary for the proper performance of the agency's functions,
including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed information collection, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses).
Title of the Collection: 7 CFR part 15 subpart D--Data Collection
Requirement
OMB Control Number: 0503-NEW
Estimate of burden hours: Public reporting burden for this
collection of information is estimated to average 3 minutes per
response.
Respondents: Applicant and program participants of USDA federally
conducted programs.
Estimated annual number of Respondents: 1,349.
Estimated annual number of Responses per Respondent: 1.
Estimated annual number of Responses: 1,349.
Estimated total annual burden on Respondents: 68 hours.
Copies of this information collection can be obtained from:
Clearance Officer, OCIO, USDA, Room 405W, 1400 Independence Avenue SW.,
Washington, DC 20250.
E-Government Act Compliance
OASCR is committed to complying with the E-Government Act, which
requires Government Agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible.
List of Subjects in 7 CFR Part 15d
Civil rights, Equal employment opportunity, Grant programs-
education, Individuals with disabilities.
For the reasons set forth in the preamble, USDA proposes to revise
7 CFR Part 15d 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 Definitions.
15d.3 Discrimination prohibited.
15d.4 Compliance.
15d.5 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 (USDA) 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 Definitions.
For the purpose of this section, the below terms are defined as
follows:
(a) Agency means a major organizational unit of the Department with
delegated authority to deliver programs, activities, benefits, and
services. Heads of Agencies receive their delegated authority as
prescribed in 7 CFR Part 2.
(b) Agency Head Assessment means the annual Agency Civil Rights
Performance Plan and Accomplishment Report conducted by the Office of
the Assistant Secretary for Civil Rights (OASCR). It is an evaluation
tool used by OASCR to assess USDA Agency Heads and Staff Office
Directors on their civil rights activities and accomplishments to
ensure accountability throughout the Department on these issues.
(c) Alternative Dispute Resolution or ADR means any number of
conflict resolution procedures in which parties agree to use a third-
party neutral to resolve complaints or issues in controversy. ADR
methods include, but are not limited to, mediation, facilitation, fact
finding, arbitration, use of ombuds, or any combination thereof.
(d) Assistant Secretary for Civil Rights or ASCR means the civil
rights officer for USDA responsible for the performance and oversight
of all civil rights functions within USDA, and who retains the
authority to delegate civil rights functions to heads of USDA agencies
and offices. The ASCR is also responsible for evaluating agency heads
on their performance of civil rights functions.
(e) Complaint means a written statement that contains the
complainant's name and address and describes an agency's alleged
discriminatory action in sufficient detail to inform the ASCR of the
nature and date of an alleged civil rights violation. The statement
must be signed by the complainant(s) or someone authorized to sign on
behalf of the complainant(s). To accommodate the needs of people with
disabilities, special needs, or who have Limited English Proficiency, a
complaint may be in an alternative format.
(f) Compliance report means a written review of an agency's
compliance with civil rights requirements, to be prepared by OASCR and
to identify each finding of non-compliance or other civil rights-
[[Page 78794]]
related issue. The review is conducted at the discretion of OASCR or if
there has been a formal finding of non-compliance.
(g) Conducted programs and activities means the program services,
benefits, or resources delivered directly to the public by USDA.
(h) Days mean calendar days, not business days.
(i) Department (used interchangeably with USDA) means the
Department of Agriculture and includes each of its operating agencies
and other organizational units.
(j) Discrimination means unlawful treatment or denial of benefits,
services, rights, or privileges to a person or persons based on race,
color, national origin, religion, sex (including gender identity),
sexual orientation, disability, age, marital status, sexual
orientation, familial status, parental status, income derived from a
public assistance program, political beliefs, or gender identity.
(k) Secretary means the Secretary of Agriculture or any officer or
employee of the Department whom the Secretary has heretofore delegated,
or whom the Secretary may hereafter delegate, the authority to act in
his or her stead under the regulations in this part.
Sec. 15d.3 Discrimination prohibited.
(a) No agency, officer, or employee of USDA shall, on the grounds
of race, color, national origin, religion, sex, gender identity, sexual
orientation, disability, age, marital status, family/parental status,
income derived from a public assistance program, or political beliefs,
exclude from participation in, deny the benefits of, or subject to
discrimination any person in the United States under any program or
activity conducted by USDA.
(b) No person shall be subjected to reprisal for opposing any
practice(s) prohibited by this part, for filing a complaint, or for
participating in any other manner in a proceeding under this part.
Sec. 15d.4 Compliance.
(a) Compliance program. OASCR shall evaluate each agency's efforts
to comply with this part and shall make recommendations for improving
such efforts.
(1) OASCR shall oversee the compliance reviews and evaluations, and
issue compliance reports that monitor compliance efforts to ensure that
there is equitable and fair treatment in conducted programs.
(2) OASCR shall monitor all settlement agreements pertaining to
program complaints for compliance to ensure full implementation and
enforcement.
(3) OASCR shall oversee Agency Head Assessments to ensure that
Agency Heads are in compliance with civil rights laws and regulations.
(4) OASCR shall monitor all findings of non-compliance to ensure
that compliance is achieved.
(5) OASCR shall require agencies to collect the race, ethnicity,
and gender of applicants and program participants, who choose to
provide such information on a voluntary basis, in USDA-conducted
programs, for purposes of civil rights compliance, oversight, and
evaluation.
(b) Agency data collection and compliance reports. (1) Each Agency
shall, for civil rights compliance, collect, maintain, and annually
compile data on all program applicants and participants in conducted
programs by county and State, including but not limited to, application
and participation rate data regarding socially disadvantaged and
limited resources applicants and participants. At a minimum, the data
should include:
(i) Numbers of applicants and participants by race, ethnicity, and
gender, subject to appropriate privacy protections, as determined by
the Secretary and in accordance with law; and
(ii) The application and participation rate, by race, ethnicity,
and gender, as a percentage of the total participation rate.
(2) Each Agency shall submit to OASCR timely, complete, and
accurate program application and participation reports containing the
information described in paragraph (b)(1) of this section, on an annual
basis, and upon the request of OASCR independently of the annual
requirement.
(c) Complaint reporting compliance. OASCR shall ensure compliance
with mandated complaint reporting requirements, such as those required
by section 14006 of the Food, Conservation, and Energy Act of 2008 (PL
110-246).
Sec. 15d.5 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 (or file through an authorized
representative) a written complaint alleging such discrimination. The
written 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 ASCR or
the designee. Any person who complains of discrimination under this
part in any fashion shall be advised of the right to file a complaint
as herein provided.
(b) All complaints under this part should be filed with the Office
of the Assistant Secretary for Civil Rights (ASCR), 1400 Independence
Ave SW., U.S. Department of Agriculture, Washington, DC 20250, who will
investigate the complaints. The ASCR will make final determinations as
to the merits of complaints under this part and as to the corrective
actions required to resolve program complaints. The complainant will be
notified of the final determination on the complaint.
(c) Any complaint filed under this part alleging discrimination on
the basis of disability will be processed under 7 CFR part 15e.
(d) For complaints OASCR deems appropriate for ADR, OASCR shall
offer ADR services to complainants.
Dated: December 19, 2013.
Krysta Harden,
Deputy Secretary.
[FR Doc. 2013-30812 Filed 12-26-13; 8:45 am]
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