Nondiscrimination in Programs or Activities Conducted by the United States Department of Agriculture, 78788-78794 [2013-30812]

Agencies

• DEPARTMENT OF AGRICULTURE
• Office of the Secretary

[Federal Register Volume 78, Number 249 (Friday, December 27, 2013)]
[Proposed Rules]
[Pages 78788-78794]
From the Federal Register Online via the Government Printing 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 
anna.stroman@ascr.usda.gov.

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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
------------------------------------------------------------------------
                                                           Annual burden
                                           Contacts with    hours at 3
                 Agency                    program users   min. per form
                                           per year \1\         \2\
------------------------------------------------------------------------
APHIS...................................           1,100              55
FAS.....................................              90               5
FNS.....................................             159               8
                                         -------------------------------
    Total...............................           1,349              68
------------------------------------------------------------------------
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\
----------------------------------------------------------------------------------------------------------------
APHIS...........................................           1,100            $924           $3388           $4312
FAS.............................................              90              76             277             353
FNS.............................................             159             134             490             624
                                                 ---------------------------------------------------------------
    Total \4\...................................           1,349           1,134           4,155           5,289
----------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    \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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