U.S. DEPARTMENT OF
AGRICULTURE
WASHINGTON,
D.C. 20250
DEPARTMENTAL REGULATION |
Number: 4300-004 |
|
SUBJECT: Civil
Rights Impact Analysis |
DATE: May 30, 2003 |
|
OPI: Office of Civil Rights |
||
1 PURPOSE
The
purpose of this regulation is to provide Department of Agriculture (USDA)
agencies, Departmental Administration, and Departmental Offices with guidance
on how to meet civil rights impact analysis requirements.
2 BACKGROUND
USDA
civil rights policy requires each agency to analyze the civil rights impact(s)
of policies, actions, or decisions that will affect the USDA work force or
federally conducted and federally assisted programs and activities. A civil rights impact analysis (CRIA)
facilitates the identification of the effects of eligibility criteria, methods
of administration, or other agency-imposed requirements that may adversely and
disproportionately impact employees or program beneficiaries based on their
membership in a protected group. Proper
follow-up actions based on CRIA findings can eliminate or substantially
alleviate these negative effects.
3 DEFINITIONS
Within
the context of this regulation, the following definitions apply:
a Agency. A major program organizational unit of the
Department with delegated authorities to deliver agricultural or food programs,
activities, benefits, and services.
Heads of agencies report to and receive their delegated authorities from
Under or Assistant Secretaries as prescribed in 7 C.F.R. The term “agency” does not include
Departmental Administration or Departmental Offices.
b Civil
Rights Impact. The consequences of
policies, actions, and decisions on the civil rights and opportunities of
protected groups or classes of persons who are USDA employees or program
beneficiaries.
c Civil
Rights Impact Analysis (CRIA). An
analytical process used to determine the scope, intensity, direction, duration,
and significance of the effects of an agency=s
proposed employment and program policies, actions, and decisions.
d Civil
Rights Implications. Information or
data that suggest, or from which one may infer, that a policy, action, or
decision will affect groups or classes of persons, positively or negatively,
because of one or more prohibited bases.
e Departmental
Administration. The Assistant
Secretary for Administration and all staff offices that receive their major
delegations from the Assistant Secretary for Administration.
f Departmental
Office. A Departmental
administrative (non-program) office, the head of which is a general officer or
reports to an official within the Office of the Secretary and receives
delegated authority under 7.C.F.R. Also
referred to as a Staff Office.
g Disparate
Treatment. The less favorable
treatment of a group(s) or class(es) of persons by reason of one or more
prohibited bases when compared with/contrasted to another group(s)s or
class(es) of persons that is similarly situated.
h Disparate
Impact (Adverse Impact). Neutral
employment or program policies, actions, or decisions which are applied
evenhandedly (are of “general applicability”), that have the effect of
excluding or otherwise adversely affecting groups or classes of persons by
reason of one or more prohibited bases.
i Employees. Individuals who apply for jobs and/or are
hired by USDA and classified under Federal pay schedules. In some instances, the word “employee” may
also mean individuals who apply for jobs and/or are hired by USDA recipients or
contractors.
j Expedited
Clearance. An arrangement whereby
an agency is authorized by the Office of Civil Rights (CR) to submit a rule,
notice, or other regulatory action without a CRIA, for approval, clearance, and
publication.
k Group
or Class. Multiples of similarly
situated persons who may be distinguished by their common race, color, national
origin, age, disability, and where applicable, sex, marital status, familial
status, parental status, religion, sexual orientation, genetics, political
beliefs, or receipt of income from any public assistance program.
l Methods
of Administration. The full range
of practices, management prerogatives, application criteria, participation
requirements, processes, and procedures used by management to administer
federally assisted and federally conducted programs and activities within USDA.
m Policies,
Actions, and Decisions. All those
prerogatives exercised by USDA management to design, plan, develop, implement,
and evaluate USDA programs and activities.
n Program
Beneficiary. The person,
organization, or other entity that applies for or
ultimately
receives or enjoys USDA services, benefits, resources and information;
or
the ultimate participant in programs and activities conducted by USDA
(federally
conducted) or administered through USDA recipients (federally
assisted).
o Program
Participant. Any person or group of
persons, that either benefits from or carries out activities on behalf of USDA,
inclusive of ultimate program beneficiaries, primary recipients,
sub-recipients, and indirect recipients.
p Prohibited
Bases. The specific grounds of
discrimination banned under Federal civil rights statutes, Executive Orders,
and Federal regulations, i.e., discrimination based on race, color, national
origin, age, disability, and where applicable, sex, marital status, familial
status, parental status, religion, sexual orientation, genetic information,
political beliefs, reprisal, or because all or a part of an individual=s income is derived from any public assistance
program.
q Protected
Groups. Any person, group, or class
of persons protected under Federal law and Executive Order from discrimination
on any prohibited basis.
r Purpose
or Effect. Intentional actions or
their consequences which are specific to the occurrence of disparate treatment
or disparate impact, respectively.
4 OBJECTIVES
The
objectives of this regulation are to:
a Establish
procedures for the evaluation of proposed policies, actions, or decisions for
potential violations of civil rights statutes, Federal regulations, or USDA
policy on nondiscrimination;
b Preclude
the issuance of policies, actions, or decisions that contain eligibility
criteria, methods of administration, or other agency-imposed requirements that
may adversely and disproportionately impact employees or program beneficiaries
because of their race, color, national origin, age, disability, and where
applicable, sex, marital status, familial status, parental status, religion,
sexual orientation, protected genetic information, political beliefs, reprisal,
or because all or a portion of an individual’s income is derived from any
public assistance program; and
c Utilize
CRIAs as a management tool to ensure fair and equitable service to USDA
employees and beneficiaries of federally assisted and federally conducted
programs and activities.
5 SPECIAL
INSTRUCTIONS/CANCELLATION
This
regulation replaces DR 4300-4, Civil Rights Impact Analysis, dated September
22, 1993; Appendix A of DR 1010-1, Organization, dated July 3, 1996; Guidance
to Agencies, Preparing the Civil Rights Impact Analysis, dated August 18, 1998;
and civil rights review requirements contained in DR 1512-1, Regulatory
Decisionmaking Requirements, dated March 14, 1997.
Processes
and procedures to implement this regulation must be established within 90 days
of the effective date of this regulation.
6 SCOPE
This
regulation applies to all USDA agencies, Departmental Administration, and
Departmental Offices.
7 RESPONSIBILITIES
a Each
agency will take the following steps to institute CRIA requirements across
USDA:
(1)
Integrate civil rights
technical requirements into the development of policies, programs, and
activities;
(2)
Conduct sufficient
analysis to prepare a written CRIA in accordance with the provisions of this
regulation;
(3)
Establish internal CRIA
processes and procedures; and
(4)
Certify in writing to
the Assistant Secretary for Civil Rights that internal processes and procedures
to implement this regulation have been established.
b Each
agency will take the following actions when developing CRIAs and implementing
civil rights strategies related to policies, programs, and activities:
(1)
Involve subject matter
experts from the appropriate disciplines (e.g., economists, statisticians,
budget analysts, civil rights analysts, program/management analysts,
personnelists, etc.);
(2)
Consult with stakeholders,
advisory committees, and customers, as appropriate, to obtain input prior to
decision-making;
(3) Analyze
employment and program participation data by race, sex, national origin,
disability, and age, as appropriate, to identify the proportion of the labor
force and eligible population, respectively, that are participating in the USDA
work force and in USDA programs and activities;
(4) Identify
and analyze the civil rights implications and impacts of proposed eligibility
criteria, methods of administration, and other requirements associated with
policies, programs, and activities on employees, recipients, and beneficiaries
and develop civil rights strategies to eliminate, alleviate, or mitigate such
impacts;
(5) Refer
problematic aspects of proposed policies, programs, and activities that cannot
be resolved at the agency level to the Office of Civil Rights (CR) for review
and guidance, with supporting documentation on potential civil rights
implications or impacts;
(6) Submit
a CRIA, including a Civil Rights Certification signed by the Agency Head, on
the proposed policy, program, or activity, to CR for review and a determination
of CRIA sufficiency;
(7) Coordinate
and implement civil rights strategies identified in CRIAs with implementation
of policies, programs, or activities; and
(8) Monitor and evaluate the policy, program, or activity
for civil rights effects after implementation.
c The CR
will:
(1)
Consult, advise, and
provide technical assistance to:
(a) Identify civil rights implications and impacts of
proposed policies, programs, and activities;
(b) Assess the extent or severity of potential adverse
civil rights impacts; and
(c) Make recommendations on and identify actions to
eliminate, alleviate, or mitigate potential adverse civil rights impacts.
(2) Review and determine the sufficiency of
CRIAs submitted by agencies for pre-approval;
(3) Respond to agency requests for waivers or
expedited clearance of rules, notices, or other regulatory actions;
(4) Concur on regulatory dockets that adequately
address civil rights concerns;
(5) Provide advice and technical support to
the Assistant Secretary for Civil Rights on matters related to CRIA reviews and
sufficiency determinations; and
(6) Develop CRIAs and carry out the civil
rights duties and tasks described in this regulation on behalf of the Office of
the Secretary, Departmental Administration and Departmental Offices.
d The
Assistant Secretary for Civil Rights will:
(1) Resolve agency questions or issues
regarding civil rights impacts that cannot be resolved by CR; and
(2) Sign Form AD 116, Clearance and Approval
for Departmental Issuances, subsequent to clearance by the Director, CR.
8 NOTIFICATION
TO THE SECRETARY
In
most instances, agencies are required to obtain authorization to reorganize or
to issue a rule, notice, or other regulatory action through a Decision
Memorandum to the Secretary. When authorization is sought through a Decision
Memorandum, the requesting agency will consult with CR to ensure that the
Decision Memorandum contains sufficient
information
on potential civil rights impacts that may result from the proposed action so
as to properly inform the Secretary on potential civil rights impacts.
9 ACTIONS
REQUIRING CRIAs
a Agencies
will complete written CRIAs on the following policy, program, and activity
documents and submit them to CR for review and determinations of CRIA
sufficiency:
(1)
New, revised, or interim
rules and notices to be published in the Federal Register and the Code
of Federal Regulations;
(2)
Charters for advisory
committees, councils, or boards managed by the agencies on behalf of the
Secretary;
(3)
Departmental
regulations, manuals, and notices;
(4)
Proposed reorganizations
requiring Departmental approval prescribed in DR 1010-1, Section 6a;
(5) Reductions-in-force and
transfer of function proposals; and
(6) At the discretion of
the Director, CR, other policy, program, or activity documents that have
potentially adverse civil rights impacts.
b Each
agency will establish and implement processes and procedures to complete CRIAs
on the following INTERNAL policy, program, and activity documents, though they
do not have to be submitted to CR for review and determinations of CRIA
sufficiency:
(1)
New and revised
agency-specific instructions, procedures, manuals, and other guidance published
in agency directives systems;
(2)
Advisory boards and
committees that are established at the discretion of the agency and are not
mandated by statute, rule, or USDA regulation;
(3)
Budget proposals;
(4)
Grants and contracts;
(5)
Organizational changes
requiring Departmental notification as prescribed in DR 1010-1, Section 6b; and
(6)
National, regional, and
local special projects affecting program beneficiaries.
c Notwithstanding
Section 9 b (1) above, agencies will submit internal CIVIL RIGHTS
instructions, procedures, manuals, and other guidance to CR for review and
clearance prior to implementation.
10 RETENTION
OF CRIA RECORDS
Agencies
will retain ALL CRIA documents for three years and make them available to CR
and other Federal agencies upon request.
11 CIVIL
RIGHTS IMPACT ANALYSIS PROCEDURES
Agencies
will:
a Summarize
the proposed policy, program, or activity;
b Identify
the appropriate theory(ies) of discrimination that will be used to analyze the
policy, program, or activity, i.e., disparate treatment, disparate impact;
c Review
the policy, program, or activity to determine:
(1)
Whether or not it
contains any requirement related to eligibility, benefits, services, etc., that
may have the purpose or effect of excluding, limiting, or otherwise
disadvantaging any group or class of persons on one or more prohibited bases;
and
(2)
Whether and the extent
to which each group or class of persons may be affected potentially, positively
or negatively.
d Analyze
relevant numerical and non-numerical data and information to determine if there
are significant differences in potential civil rights impacts among groups or
classes of persons;
e Describe
the civil rights impacts identified in Section 11, c-d, in terms of
whether or not:
(1)
They are likely to be
beneficial;
(2)
They are likely to
maintain the status quo; or
(3)
They are likely to have
an adverse impact.
f Determine whether or not the civil
rights impacts will likely affect adversely
one or more groups or classes of persons, specifically:
(1) Whether or not the impacts will likely be disproportionate;
and
(2)
How the disproportionate
impacts will likely be manifested.
g Identify
and compare/contrast alternatives that could eliminate, alleviate, or mitigate
adverse and disproportionate civil rights impacts for the affected groups or
classes of persons;
h Draw
conclusions and identify feasible strategies and actions that the agency could
utilize to offset adverse and disproportionate civil rights impacts (short term
and/or long term); and
i Select
for implementation feasible strategies and action(s) to eliminate, alleviate,
or mitigate adverse and disproportionate civil rights impacts, based on overall
needs and consideration of all significant factors related to the proposed
policy, action, or decision.
12 CONTENTS
OF AGENCY CRIA SUBMISSIONS
Each
CRIA submission will contain:
a The
completed CRIA document, which reduces the requirements described in Section
11 to writing;
b An
executed Civil Rights Certification (see Figure 1);
c A
final draft/advance copy of the rule, notice, reorganization proposal, or other
regulatory action; and
d A
Cost/Benefit Analysis and other documents, as appropriate, that are a part of
the regulatory docket.
13 CRIA
PRE-APPROVAL
a Each
agency will submit a written CRIA to CR, along with the final draft/advance
copy of the rule, notice, reorganization proposal, or other regulatory action,
PRIOR TO INITIATING THE USDA CLEARANCE PROCESS. To obtain pre-approval, agencies should:
(1) Collaborate
with CR in identifying civil rights issues, implications, impacts, affirmative
strategies, etc., associated with each policy, program, or activity document
subject to this regulation during its planning and design phases; and
(2)
Forward the written CRIA
to CR as described in Section 12.
b CR
will inform each agency of any needed additions or revisions to the CRIA or the
eligibility criteria, methods of administration, or other requirements
contained in or associated with the final draft/advance copy of the proposed
policy, program, or activity.
c The
agency will amend the CRIA submission in accordance with feedback from CR and
return it to CR for pre-approval.
d The
Director, CR, will pre-approve the CRIA submission by signing the Civil Rights
Certification as the USDA reviewing official.
14 CLEARANCE
a After
obtaining pre-approval from CR, agencies may begin circulation of the docket
for clearance. However, agencies will
include:
(1) A
FULLY EXECUTED CIVIL RIGHTS CERTIFICATION IN REORGANIZATION PROPOSAL DOCKETS
(see Figure 1); and
(2) BOTH A
CRIA AND A FULLY EXECUTED CIVIL RIGHTS CERTIFICATION in regulatory dockets for
rules, notices, and other actions.
b The
Director, CR, will review each docket for the fully executed Civil Rights
Certification and/or CRIA. If they are
included, the Director, CR, will sign the AD-116 and forward the docket to the
Assistant Secretary for Civil Rights for review.
c Where
CR has authorized expedited clearance (see Section 15), agencies will
include in the docket a Note to the Director, Office of Civil Rights”
describing the nature of the agreement with CR and the time frame in which a
CRIA will be provided.
15 EXPEDITED
CLEARANCE
a Agencies
are required to complete CRIAs in accordance with Sections 11-13.
However, CR may agree to expedite the clearance of certain rules, notices, or
other regulatory actions PRIOR TO SUBMISSION OF A CRIA if an Agency Head
submits a final draft/advance copy of the rule, notice, or other regulatory
action along with a written request. See Figure 2. Such a request must include:
(1) The
purpose of the rule, notice, or proposed action;
(2) Information
on who will benefit from issuance of the rule, notice, or proposed action and
the manner in which they will benefit;
(3) The
reason or rationale justifying the request for expedited clearance;
(4) The
consequences of denial of a request to expedite the rule, notice, or proposed
action; and
(5) A
proposed deadline for completing the CRIA.
b If the
request for expedited clearance is approved, CR will either confirm the
deadline submitted for completing the CRIA or negotiate a new one. It is likely that a request for expedited
clearance will be approved if:
(1)
Expedited clearance will
facilitate publication of a rule or notice that must be immediately implemented
to protect the health and safety of the public or to prevent or mitigate
catastrophic across-the-board economic harm to domestic producers; or
(2)
The rule or notice MUST
be promulgated within 30 days or less by order of the President or the
Secretary; and
(3)
The request for
expedited clearance is timely received.
c A
request for expedited clearance MAY NOT be approved if the rule, notice, or
other regulatory action is:
(4)
Identified in an agency=s Planned Rulemaking Work Plan which is required by
the Office of Budget and Program Analysis;
(5)
Scheduled to be
published more than 30 days after the date of the request for expedited
clearance; or
(6)
Promulgated at the
discretion of the Agency Head.
d In
situations where CR agrees to expedite the clearance of a rule, notice, or
other regulatory action, the agency must submit the CRIA in accordance with an
agreed upon deadline. The agency will
be held accountable for:
(1) Meeting
the deadline agreed upon; and
(2) Implementing
recommendations from CR designed to eliminate, alleviate, or mitigate potential
adverse and disproportionate civil rights impacts.
16 WAIVERS
a An
agency may request a waiver from the CRIA approval process (see Figure 3)
if the subject matter is positive, neutral, and/or being implemented according to the requirements of a statute or
treaty, and has no foreseeable adverse civil rights impacts. To request a waiver, an Agency Head must
submit the final draft/advance copy of the rule, notice, or other regulatory
action, along with the written request that includes the following information:
(1) Purpose
of the rule, notice, or other regulatory action;
(2) Information
on who will benefit from issuance of the rule, notice, or other regulatory
action and the manner in which they will benefit; and
(3) Justification
for the waiver request.
b A
waiver will be granted, on a case-by-case basis, for:
(1)
FINAL rules previously
reviewed and concurred on by CR as proposed or interim rules, if no substantive
modifications or additions were made in the provisions;
(2)
Rules, notices, or other
regulatory actions that deal with strictly scientific or technological matters
that CLEARLY have no civil rights implications; or
(3)
Rules, notices, or other
regulatory actions that are outside the jurisdictional control of the program
agency issuing the rule, notice, or other regulatory action.
17 MONITORING
AND EVALUATION
Each
agency will monitor and evaluate the results of strategies and/or actions it
implements to address adverse and disproportionate civil rights impacts of its
programs and activities as follows:
a Monitoring
and evaluation responsibilities should be coordinated with or integrated into
annual business plans, civil rights strategic plans, Affirmative Employment
Program Plans, Civil Rights Implementation Plans, Outreach Plans, etc.
b Supervisors
and managers should be held accountable for implementing strategies and actions
to eliminate, alleviate, or mitigate adverse and disproportionate civil rights
impacts via annual performance plans.
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