GM_230 - Title 230 - Equal Opportunity

Part 401 - Equal Employment Opportunity

Subpart A - Introduction

401.0  Purpose

This directive provides the Natural Resources Conservation Service (NRCS) policy and guidance to ensure that employees and applicants for employment are not subjected to employment discrimination based on their race, color, national origin, sex, religion, age (40+), disability, retaliation (for prior participation in the equal employment opportunity complaint process), sexual orientation, marital or family status, political beliefs, parental status, and/or protected genetic information.

401.1  Policy

It is the policy of the U.S. Department of Agriculture (USDA) and NRCS to provide equal opportunity for employees and applicants for employment in every aspect of its employment practices and working conditions.  Therefore, discrimination on the basis of race, color, national origin, sex, religion, age (40+), disability, retaliation (for prior participation in the equal employment opportunity complaint process), sexual orientation, marital or family status, political beliefs, parental status, and/or protected genetic information, is prohibited.  The NRCS Civil Rights Division (CRD) is responsible for processing informal complaints of employment discrimination.

401.2  Legal Authorities

A.  Statutory

(1)  Title VII of the Civil Rights Act of 1964, Section 703, as amended;

(2)  Fair Labor Standards Act of 1938, as amended Equal Pay Act of 1963;

(3)  Age Discrimination in Employment Act (ADEA) of 1967, as amended;

(4)  Equal Opportunity Act of 1972, Section 717;

(5)  Rehabilitation Act of 1973, Section 501, and 505;

(6)  Civil Service Reform Act of 1978;

(7)  Titles I and V of the Americans with Disabilities Act of 1990;

(8)  Civil Rights Act of 1991; and

(9)  Administrative Dispute Resolution Act of 1996 (ADR Act).

B.  Regulatory and Executive Orders

(1)  29 CFR Part 1614 (EEOC);

(2)  EEO Management Directive for 29 CFR Part 1614 (EEO-MD-110);

(3)  Executive Order 13145 (February 2000), To Prohibit Discrimination in Federal Employment Based on Genetic Information;

(4)  Executive Order 13152 (May 2000) further amending EO 11478, Equal Employment Opportunity in Federal Government;

(5)  Executive Order 13163 (July 2000), Increasing the Opportunity for Individuals with Disabilities to be Employed in the Federal Government;

(6)  Executive Order 13164 (July 2000), Requiring Federal Agencies to Establish Procedures to Facilitate the Provision of Reasonable Accommodation; and

(7)  5 CFR 771 (Administrative Grievance System).

C.  Departmental Regulations (DR)/Policy

(1)  Secretary's Civil Rights Policy Statement;

(2)  NRCS Civil Rights Policy Statement (July 1, 2002);

(3)  Departmental Manual (DM) 4300-1 dated July 20, 2001, EEO Complaint Processing Procedures;

(4)  DR 4300-5 dated January 14, 1998, Agency Civil Rights Programs; and

(5)  DR 4300-6 dated June 30, 2000, Civil Rights Policy for the Department of Agriculture.

401.3  Glossary of Key Terms and Acronyms

A.  Administrative Process

The EEO complaint process at a Federal agency is distinct from the pursuit of an EEO matter through the legal system.

B.  Allegation

An assertion, declaration, or statement made in a complaint that sets out or identifies what the alleging party expects to be proved.

C.  Alternative Dispute Resolution (ADR)

Any number of conflict resolution techniques which uses a neutral third party to assists employees, managers, agencies, and USDA customers in resolving disputes.

D.  Basis

The reason(s) the complainant believes that he or she has been subjected to prohibited discriminatory behaviors.  The bases on which discrimination is prohibited in NRCS are race, color, national origin, sex, religion, age (40+), physical or mental disability, retaliation (for prior participation in the equal employment opportunity complaint process), sexual orientation, marital or family status, political beliefs, parental status, and/or protected genetic information.

E.  Class

A group of  employees, former employees or applicants for employment who, it is alleged, has been or is being adversely affected by an Agency personnel management policy or practice that discriminates against the group on the basis race, color, religion, sex, national origin, age, or disability.

F.  Class Action

A legal suit brought by one or more persons on behalf of all or a group of persons who allege the same type of discrimination.

G.  Class Complaint

A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that:

(i)  The class is so numerous that a consolidated complaint of the members of the class is impractical;

(ii)  There are questions of facts common to the class;

(iii)  The claims of the agent of the class are typical of the claims of the class; and

(iv)  The agent of the class, or if represented, the representative, will fairly and adequately protect the interests of the class.

H.  Collateral Assignments

Duties and responsibilities assigned to an employee in addition to the primary duties and responsibilities of the position the employee occupies.

I.  Complainant

Any person who presents a complaint that alleges discrimination in an employment matter to an EEO Counselor.

J.  Complaint

An allegation or series of allegations concerning employment discrimination.

K.  Conflict

Any disagreement, discord, argument, complaint, or legal action, as well as the circumstances leading up to it.

L.  Counselor

An individual designated to discuss and attempt to resolve informal complaints within the Department of Agriculture.  The Department expects all EO Counselors to function as mediators on the issues raised if any initial explanation does not satisfy the complainant. 

M.  CRD

Civil Rights Division, the designated organizational unit responsible for the Equal Employment Opportunity Program within NRCS.

N.  Customer

Individuals, organizations, or business external to USDA/NRCS that provides services to, or receives services from, USDA/NRCS, or that has contact with any USDA office or employee.

O.  Discrimination

Unequal or unfair treatment based on race, color, national origin, sex, religion, age (40+), physical or mental disability, retaliation (for prior participation in the equal employment opportunity complaint process), sexual orientation, marital or family status, political beliefs, parental status, and/or protected genetic information that has the purpose or effect of denying equal employment opportunity.

P.  Disparate Treatment

(1)  Disparate treatment occurs when similarly situated persons (or a class of persons) are treated differently than others, and the only attribute that is different is one that is protected by specific civil rights laws and regulations (e.g. race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, religion, or political beliefs).

(2)  Disparate treatment discrimination can occur based on the treatment of only one person if the reason for that disparate treatment is one of the protected categories.  If a recipient or program routinely treats members of a protected class differently, then it is possible to establish a “pattern and practice” of discrimination against a class of individuals.

Q.  Disparate Impact

Disparate impact occurs when a recipient uses a policy or practices that, while neutral on its face and applicable to everyone, disproportionately and adversely affects members of a protected group and the recipient can articulate no substantial legitimate justification.  The theory of disparate impact does not require proof of discriminatory intent, but centers around the adverse effect(s) that a policy or practices has on protected groups.

R.  EEO Complaint

A complaint filed for relief from a discriminatory employment practice believed to be based on race, color, national origin, sex, religion, age (40+), physical or mental disability, retaliation (for prior participation in the equal employment opportunity complaint process), sexual orientation, marital or family status, political beliefs, parental status, and/or protected genetic information.

S.  EEO Investigator

An EEO Investigator is a person officially designated and authorized to conduct inquiries into claims raised in EEO complaints.  The authorization includes the authority to administer oaths and to require employees to furnish testimony under oath or affirmation without promise of confidentiality.  The EEO Investigator does not make or recommend a finding of discrimination.

T.  Equal Employment Opportunity Commission (EEOC)

The Federal agency having overall responsibility for implementing Title VII (Employment) of the Civil Rights Act of 1964 and other laws prohibiting discrimination in Federal employment.

U.  Fact-finding

The inquiry conducted by an EEO Counselor during the pre-complaint or informal stage of the EEO complaint process.

V.  Final Decision

A determination of whether or not discrimination has occurred based on an analysis of the facts gathered in a thorough and impartial investigation of a formal EEO complaint.  A complainant may request a final decision (issued by the USDA, Office of Civil Rights (OCR)) on the 180th day after filing an informal complaint or on receipt of the complete report of investigation (ROI), whichever comes first.  A complainant may request an EEOC hearing, following which an EEOC Administrative Judge will submit findings and conclusions to USDA. 

W.  Formal Complaint

The second stage of the EEO discrimination complaint process in which a formal EEO complaint is filed with the USDA, Office of Civil Rights (OCR), after the 30th calendar day from the filing of an informal complaint or after completion of EEO counseling, whichever comes first.  If the complaint is accepted, CR has 180 days to complete an investigation and provide a copy of the report of investigation to the complainant.

X.  Good Faith

An effort to honestly, sincerely, and fully discuss problems and matters in conflict, and to explore solutions to those problems or conflicts.

Y.  Harassment

Harassment is defined as any unwelcome verbal or physical conduct which has the  effect of creating an intimidating, hostile, or offensive work environment, based on any characteristic protected by law when:

(i)  The behavior can reasonably be considered to adversely affect the work environment, which includes employees’ performance;

(ii)  An employment decision which is based on the employee’s acceptance or rejection of such conduct;

(iii)  The conduct culminates in a tangible employment action (i.e., a supervisor’s harassment results in a significant change in employment status or benefits, such as demotion, termination, failure to promote.)

Z.  Informal Complaint

The first stage of the EEO discrimination complaint process.  Before filing a formal EEO complaint of discrimination, a complainant must contact an EO Counselor within 45 calendar days of the alleged discriminatory event for counseling at the informal stage.  The EO Counselor has 30 calendar days in which to complete a fact-finding and investigation to resolve the issues raised in the complaint before the complainant can file a formal EO complaint.

AA.  Investigation

In the formal EEO complaint process, an investigation is an official review or inquiry, by persons authorized to conduct such review or inquiry, into claims raised in an EEO complaint.  The investigative process is non-adversarial.  That means that the investigator is obligated to collect evidence regardless of the parties' positions, with respect to the items of evidence.  A copy of the complaint shall be provided to the investigator prior to the commencement of the investigation.  Investigations are conducted by using interviews, requests for documents, position statements, interrogatories, and affidavits, as appropriate.

BB.  Issue

The action of a decision (including a failure to act or decide), policy, or practice that has affected an employee who allege to have been discriminated against.

CC.  Mediation

An ADR technique that involves a confidential discussion among two or more parties in conflict, with one or more mediators present to facilitate the discussion in an attempt to reach a resolution that is acceptable to all parties.

DD.  Mixed Case Complaint

An allegation of discrimination in a matter that combines with another action, e.g., an adverse action, reduction in force, denial of a within-grade increase, alleged coerced separation, performance-based actions.  Mixed cases can either be mixed complaints (processed within USDA), or a mixed case appeal (processed at the Merit Systems Protection Board.)

EE.  Merit Systems Protection Board (MSPB)

A forum for resolving certain employee complaints and appeals, to safeguard the merit system, and to protect individual employees against abuses and unfair personnel practices such as removals, suspensions for more than 14 days, and reduction in grade or pay.

FF.  Neutral

An individual who conducts, leads, or facilitates an ADR session.  The neutral has no personal interest in the outcome of the conflict, and performs the neutral duties impartially and without bias.  Neutrals include mediators, facilitators, and arbitrators.

GG.  Parties

The agencies, employees, managers, or customers who are in conflict.

HH.  Prohibited factor, Protected class

Any one of the bases on which an employee or applicant can bring an EO complaint of discrimination.  The following discrimination factors are prohibited by Federal law:  race, color, national origin, sex, religion, age (40+), physical or mental disability, marital or family status, political beliefs, parental status, and retaliation (for prior participation in the equal opportunity complaint process).  In USDA, sexual orientation and/or protected genetic information are also included as prohibited bases.  A group of persons having a factor in common are often referred to as a "protected class," though all classes defined by a factor are "protected."

II.  Resolution

The terms, to which parties in conflict agree, that result in the total or partial end or closure of a conflict, complaint, grievance, appeal, or litigation.

JJ.  Responding Official

The person named by the complainant or indicated by the records as responsible, in whole or in part, for taking or recommending the action or decision that is the issue of the complaint.

KK.  Retaliation

Any action (including restraint, coercion, or interference) taken against someone because the person:

(i)  Filed a previous EEO complaint;

(ii)  Testified on behalf of a complainant or participated in the EEO complaint system; or

(iii)  Opposed an employment action prohibited under civil rights law or policy.

LL.  Sexual Harassment

Sexual Harassment is defined as attempts to force an individual to exchange sexual favors in return for employment consideration or benefits.  Laws and regulations impose legal responsibility on managers or supervisors regardless of whether an act or conduct was authorized or forbidden; neither care, negligence, good faith, bad faith, knowledge, nor ignorance will absolve one from responsibility for an unlawful discriminatory act. Sexual harassment in its most severe form includes:

(i)  Sexual assault, attempted rape or rape;

(ii)  Deliberate or repeated offensive comments; and

(iii)  Gestures or physical contact of a sexual nature.

MM.  Strict Liability

A provision of Federal laws and regulations that imposes legal responsibility on managers or supervisors regardless of whether an act or conduct was authorized or forbidden; a situation where neither care, negligence, good faith, bad faith, knowledge, nor ignorance will absolve one from responsibility for an unlawful discriminatory act.

NN.  Term or Condition of Employment

A prerequisite to an employment agreement that qualifies, restricts, or makes employment contingent upon some other occurrence that may or may not be expressly mentioned; a stated, implied, or presumed stipulation that suspends, rescinds, modifies, or destroys an employment agreement.

401.4  Objectives

NRCS will:

(1)  Provide equal employment opportunity for all employees and applicants regardless of race, color, national origin, sex, religion, age (40+), physical or mental disability, sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information in its policies, practices, and working conditions; 

(2)  Encourage employees to fully develop their knowledge, skills, and abilities through on-the-job training, work study, and other measures, so that they may perform at their highest potential and advance in accordance with their abilities;

(3)  Take affirmative action to eliminate under representation of minorities, women, and persons with disabilities who have not participated in the workforce in representative numbers because of past statutory, economic, or social restrictions;

(4)  Develop positive working relationships with special interest organizations and educational institutions to improve conditions that affect employability, and inform these groups of employment opportunities;

(5)  Counsel employees and applicants who believe they have been subjected to discrimination; and

(6)  Attempt resolutions of all discrimination complaints promptly and impartially in the informal stage.

401.5  General

A.  All NRCS personnel policies and practices affecting employees and applicants will be free from any discrimination based on race, color, national origin, sex, religion, age (40+), physical or mental disability. To ensure this, managers and supervisors will not engage in prohibited practices such as:

(1)  Failing or refusing to refer or consider applicants for employment;

(2)  Limiting, segregating, or classifying employees or applicants in any way that would deprive them of employment opportunities or otherwise adversely affect their status;

(3)  Applying different standards in the recruitment, employment, promotion, discipline, counseling, or retention of employees or applicants;

(4)  Denying admission, participation, or employment in any program established to provide training, including on-the-job training and retraining;

(5)  Printing, publishing, or distributing any notice, announcement, or advertisement relating to employment, training, classification, or referral that indicates any discriminatory preference or restrictions;

(6)  Participating in employment-related activities held in segregated facilities or sponsored by groups or organizations that engage in discrimination;

(7)  Retaliating against an employee who supports any policy or practices sanctioned in this Part or who has made a charge, testified, assisted, or otherwise participated in an investigation, proceeding, or hearing; and

(8)  Engaging in other practices that restrict or make distinctions in the terms or conditions of employment.

B.  Employees subject to the above provisions may also be subject to more stringent nondiscrimination provisions in applicable State laws.

401.6  Responsibilities Within the EEO Process

A.  The Chief of NRCS serves as the Equal Opportunity Officer (EOO) and delegates the overall responsibility for administering the Agency’s equal opportunity program to the Director of the Civil Rights Division (CRD).  The Director exercises personal leadership by ensuring that:

(1)  Sufficient resources are available to effectively administer the Agency-wide equal employment opportunity program;

(2)  Management officials take affirmative actions that promote equal employment opportunity in every aspect of personnel policy and practices;

(3)  Principal and operating officials responsible for carrying out the equal employment opportunity program meet established qualification requirements; and

(4)  Corrective and disciplinary action is taken in instances where discrimination is substantiated.

B.  The Associate Chief, Deputy Chiefs, Regional Assistant Chief, State Conservationists, and Directors, Pacific Islands and Caribbean Area, in coordination with the Director, CRD will serve as Deputy Equal Opportunity Officers (DEOO) for their jurisdictional areas.  The DEOO will be the principal EEO official responsible for ensuring that:

(1)  Employees are provided an equal opportunity to develop their skills so they may perform at their highest potential and advance in accordance with their knowledge, skills, and abilities;

(2)  Employees and applicants who believe they have been subjected to discrimination receive counseling;

(3)  Complaints of discrimination are processed in a timely and impartial manner;

(4)  Barriers to employment and advancement are identified and affirmative action goals and objectives are established in their respective organizational units;

(5)  Educational institutions, special interest groups, and other potential sources of job candidates are made aware of the NRCS equal employment opportunity policy, employment needs, and job qualifications;

(6)  Performance of managers and supervisors is monitored, evaluated, improved, and rewarded, where appropriate, to guarantee vigorous enforcement of the equal employment opportunity policy and to recognize superior accomplishment; and

(7)  Orientation, advice, and training are provided to managers, supervisors, and EEO collateral duty personnel so that they will understand and be better able to implement the equal opportunity policy and initiatives.

C.  All managers and supervisors are responsible for:

(1)  Eliminating barriers to employment and advancement and implementing affirmative action goals and objectives;

(2)  Monitoring employment-related activities to make sure that nondiscriminatory policies and practices are being followed;

(3)  Reviewing the qualifications of all employees to ensure that they are provided full opportunities for training, promotion, transfers, details, and other assignments;

(4)  Conducting and supporting career counseling for all employees; and

(5)  Encouraging all employees to participate in all NRCS-sponsored educational, training, recreational, or social activities.

401.7  Reports

A notification on changes in equal employment opportunity personnel and activities will be submitted to National Headquarters as changes occur.

[GM_230_401_A - Amendment 23 - January 2008]

Subpart B - Provisions Applicable to Particular Complaints of Discrimination

401.20 Race and Color

A. Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color, as well as national origin, religion, and sex (including sexual harassment).

B. It is unlawful to discriminate against any NRCS employee or applicant for employment because of his or her race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or performance of individuals of certain racial groups. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related.

C. Equal employment opportunity cannot be denied because of marriage to or association with an individual of a different race; membership in or association with ethnic-based organizations or groups; or attendance or participation in schools or places of worship generally associated with certain minority groups.

D. Discrimination on the basis of an immutable characteristic associated with race, such as skin color, hair texture, or certain facial features violates Title VII, even though not all members of the race share the same characteristic.

E. Harassment on the basis of race and/or color violates Title VII. Ethnic slurs, racial "jokes," offensive or derogatory comments, or other verbal or physical conduct based on an individual's race or color constitutes unlawful harassment when the conduct creates an intimidating, hostile, or offensive working environment, or interferes with an individual's work performance.

401.21 Religion

A. Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of religion, as well as race, color, national origin, and sex (including sexual harassment). Title VII prohibits NRCS from discriminating against employees or applicants because of their religion in hiring, firing, and other terms, conditions, or privilege of employment. Title VII also requires NRCS to reasonably accommodate religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer.

B. NRCS must accommodate any employee who gives notice that practices or programs are inconsistent with the employee's religious beliefs, whether or not NRCS believes there is a religious basis for the employee's objection.

401.22 National Origin

A. Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of national origin, as well as race, color, religion, and sex (including sexual harassment). National origin can be defined as birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. Equal employment opportunity cannot be denied because of marriage or association with persons of a national origin group; membership or association with specific ethnic promotion groups; attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or a surname associated with a national origin group.

B. A rule requiring employees to speak English at all times on the job may violate Title VII, unless NRCS shows it is necessary for conducting business. If NRCS believes the English-only rule is critical for business purposes, employees have to be told when they must speak English, and the consequences for violating the rule. Any negative employment decision based on breaking the English-only rule will be considered evidence of discrimination if NRCS did not tell employees of the rule.

C. NRCS must show legitimate nondiscriminatory reasons for the denial of employment opportunity because of an individual's accent or manner of speaking. Investigations will focus on the qualifications of the person and whether his or her accent or manner of speaking had a detrimental effect on job performance. Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to their job performance.

D. Harassment on the basis of national origin is a violation of Title VII. An ethnic slur or other verbal or physical conduct because of an individual's nationality constitutes harassment when they create an intimidating, hostile, or offensive working environment, unreasonably interfere with work performance, or negatively affect an individual's employment opportunities.

401.23 Age

A. The Age Discrimination in Employment Act (ADEA) of 1967 protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful for NRCS to discriminate against employees or applicants because of their age with respect to any term, condition, or privilege of employment including but not limited to hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

B. It is also unlawful for NRCS to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination complaint, testifying, or participating in any way in an investigation, proceeding, or litigation under ADEA.

C. ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. As narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a "bona fide occupational qualification" reasonably necessary to the essence of the business.

D. ADEA does not specifically prohibit NRCS from asking an applicant's age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.

E. As an alternative to filing a complaint, an aggrieved individual may file a civil action in a U.S. District Court under the ADEA against the head of an alleged discriminating agency after giving the EEOC not less than 30 days notice of the intent to file such an action. Such notice must be filed in writing with the EEOC, P.O. Box 19848, Washington, DC, 20036, or personally delivered within 180 days of the occurrence of the alleged discriminatory practice.

401.24 Sex

A. Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of sex (including sexual harassment), as well as race, color, national origin, and religion.

B. It is unlawful for NRCS to discriminate against any employee or applicant for employment because of his or her sex in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits unlawful employment practices whereby NRCS may limit, segregate, or classify employees or applicants in any way which would deprive, or tend to deprive, any individual of employment opportunities or otherwise adversely affect his or her status as an employee.

401.25 Sexual Harassment

A. Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Sexual harassment is unwelcome verbal or physical conduct which is made either explicitly or implicitly. For example, a term, condition, or privilege of employment; or when submission to or rejection of such conduct is used as a basis for making an employment decision affecting an individual; or when such conduct has the purpose or effect of interfering with an employee's work performance or creating an intimidating, hostile, or offensive working environment.

B. Misconduct of a sexual nature is any activity relating to employee behavior and which infringes on an employee's ability to perform his or her job effectively.

C. Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

(1) The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex;

(2) The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee;

(3) The victim does not have to be the person harassed but could be anyone affected by the offensive conduct;

(4) Unlawful sexual harassment may occur without economic injury to or discharge of the victim; and

(5) The harasser's conduct must be unwelcome.

D. Prevention is the best tool to eliminate sexual harassment in the workplace. It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. NRCS will take necessary steps to prevent sexual harassment from occurring. Sexual harassment will not be tolerated.

E. Two distinct types of sexual harassment which exist:

(1) "Quid pro Quo" harassment occurs when an individual's submission to or rejections of unwelcome sexual conduct is used as a basis for employment decisions affecting the individual (such as hiring, firing, promotions, awards, transfers, or disciplinary action). Typical examples of "quid pro quo" harassment are when a supervisor coerces an employee into sexual relationship and then rewards the employee with a promotion, or when a supervisor takes disciplinary action or denies a promotion to an employee because he or she rejected sexual advances from the supervisor; and

(2) "Hostile environment" harassment occurs when unwelcome sexual conduct unreasonably interferes with an individual's job performance or creates an intimidating, hostile, or offensive working environment. This form of harassment, whether engaged in by a manager or an employee, can constitute discrimination, even if there are no tangible economic job consequences. Typical examples of misconduct which may constitute evidence of a hostile environment are: displaying "pinup" calendars or sexually demeaning pictures; making sexually oriented jokes or offensive remarks; or subjecting another employee to unwelcome sexual advances or touching.

Sanctions

Supervisors and managers should be able to resolve substantiated complaints of less severe sexual harassment perpetrated by NRCS employees in the early stages where formal counseling requiring cessation of the misconduct is needed. However, severe sexual harassment, most severe sexual harassment, and repeated offenses of less severe sexual harassment warrant stronger disciplinary action.

The type of disciplinary action recommended or taken will be based on the severity of the misconduct, the sexual harasser's previous conduct, the presence or absence of any previous disciplinary action, the level of responsibility at which the sexual harasser is employed, and other circumstances surrounding the complaint.

401.26 Disability

A. The Rehabilitation Act of 1973 and the American with Disabilities Act prohibits private employers, State and local governments, Federal employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. An individual with a disability is a person who:

(1) Has a physical or mental impairment which substantially limits one or more of a person's major life activities;

(2) Has a history of such an impairment; or

(3) Is regarded as having such an impairment.

B. A qualified individual with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question without endangering the health and safety of the individual or others and who, depending upon the type of appointing authority being used:

(1) Meets the experience or education requirements (which may include passing a written test) of the job in question; or

(2) Meets the criteria for appointment under one of the special appointing authorities for individuals with a disability.

C. Physical or mental impairment is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, cardiovascular, reproductive, digestive, respiratory, genitourinary, hemic and lymphatic, skin, and endocrine; or any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

D. NRCS is required to make an accommodation to the known disability when requested by a qualified applicant or employee when it would not impose an "undue hardship" to the operation of the NRCS business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

E. Examples of accommodations:

(1) Making existing facilities used by employees readily accessible to and usable by persons with disabilities;

(2) Job restructuring, modifying work schedules, reassignment to a vacant position only as a last resort; and

(3) Acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters.

F. NRCS is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids.

G. NRCS may not ask applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination or inquiry, but only if the examination or inquiry is required for all entering employees in the job. Medical examinations or inquiries of employees must be job related and consistent with NRCS business needs.

H. The ADA does not cover NRCS employees and applicants currently engaging in the illegal use of drugs. When NRCS acts on the basis of such use, tests for illegal drugs are not subject to the ADA's restrictions on medical examinations. NRCS may hold illegal drug users and alcoholics to the same performance standards as other employees.

401.27 Sexual Orientation

A. NRCS supports a Federal workforce that is based on inclusion and equal opportunity for all of its employees. It also reflects that all employees of USDA and NRCS be protected from discrimination in any form including sexual orientation.

B. Federal civil rights laws do not specifically address discrimination on the basis of sexual orientation. However, the Civil Service Reform Act of 1978 prohibits any employee who has authority to take personnel actions from discriminating for or against any employee or applicant for employment on the basis of conduct which does not adversely affect either the employee's own job performance or the performance of others.

C. Any NRCS employee or applicant who believes that they have been discriminated against on the basis of sexual orientation, and in accordance with Executive Order 13087 (May 1998), may file an EEO complaint of discrimination, and be assured that the complaint will be processed in the same manner as other EEO complaints. NRCS employees and applicants will be provided EEO counseling, and if resolution cannot be achieved, informed of the right to file a formal EEO complaint. Upon completion of the investigation, the complainant will be given a copy of the report of investigation and may request that a final decision is issued by USDA.

D. However, based on existing Federal civil rights laws, a complainant cannot pursue an EEO complaint of sexual orientation discrimination outside of USDA. This means that a complainant does not have a right to a hearing before an EEOC administrative judge or appeal rights to other agencies or to the courts after the final decision issued by USDA. Compensatory damages cannot be provided as a remedy, and other remedies, such as attorney fees and back pay, may be available in limited situations.

E. If an employee wishes to complain about a matter which is appealable to the Merit Systems Protection Board (MSPB), he or she should be aware that filing an EEO complaint or a grievance alleging sexual orientation discrimination will not preserve his or her MSPB appeal rights.

401.28 Protected Genetic Information

A. Executive Order 13145 dated February 8, 2000, provides equal employment opportunity in Federal employment for all qualified persons and to prohibit discrimination against employees based on protected genetic information, or information about a request for or the receipt of genetic services.

B. In general, protected genetic information means:

(1) Information about an individual's genetic test;

(2) Information about the genetic tests of an individual's family member; or

(3) Information about the occurrence of a disease, or medical condition or disorder in family members of the individual.

C. Information about an individual's current health status (including information about sex, age, physical exams, and chemical, blood, or urine analyses) is not protected genetic information unless described.

D. Genetic monitoring means the periodic examination of employees to evaluate acquired modifications to their genetic material, such as chromosomal damage or evidence of increased occurrence of mutations, that may have developed during the course of employment due to exposure to toxic substances in the workplace. Genetic services means health services, including genetic tests, provided to obtain, assess, or interpret genetic information for diagnostic or therapeutic purposes, or for genetic education or counseling.

[GM_230_401_B - Amendment 17 - October 2006]

Subpart C - Reasonable Accommodations

401.30 Purpose

This subpart transmits the procedures to implement Departmental Regulations (DR) 4300-8, Reasonable Accommodations for Employees and Applicants with Disabilities, as specified in Executive Order 13164, Requiring Federal Agencies to Establish Procedures to Facilitate the Provision of Reasonable Accommodation; and the Rehabilitation Act of 1973, as amended. This document specifically establishes written procedures to use when implementing DR 4300-8. These procedures provide a simple, efficient way to request and obtain reasonable accommodation.

401.31 Policy

A. It is the policy of NRCS to make reasonable accommodations to the known physical or mental limitations of qualified applicants or employees with disabilities except when such accommodation would cause an undue hardship to the Agency. The employee, family member, immediate supervisor, medical provider, or other representative may make a written or oral request for reasonable accommodation.

B. The procedures mentioned in this subpart provide a way for qualified employees and applicants with disabilities to request accommodations that enable them to perform the essential functions of the position occupied or being applied for and that afford equal employment opportunity. All requests are evaluated to determine if providing the accommodation would be effective in removing the workplace barrier without causing an undue hardship on NRCS activities or programs. Reasonable accommodation requests will be handled promptly and fairly within 30 business days from receipt of an oral or written request unless extenuating circumstances require an extension of this time period.

C. NRCS will not discriminate on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place it owns, leases, operates, or contracts.

401.32 Definitions

A. Disability – Targeted disabilities as defined by the Rehabilitation Act with respect to an individual, means:

(1) A physical or mental impairment that substantially limits one or more of the major life activities of the individual;

(2) A record of such an impairment; and

(3) Being regarded as having such impairment.

(i) An example of “a record of such impairment” includes having a history of, or having been classified as having mental or physical impairment that substantially limits one or more major life activities.

(ii) An example of “being regarded as having such impairment” includes having an impairment that does not substantially limit a major life activity but is treated by USDA as constituting such limitation; having an impairment that substantially limits a major life activity only as a result of the attitudes of others toward such impairment; or having none of the impairments described in this section, but being treated by USDA as having a substantially limiting impairment.

B. Disability Does Not Include:

(1) Homosexuality and bisexuality;

(2) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(3) Compulsive gambling, kleptomania, or pyromania; and

(4) Current illegal use of drugs resulting in psychoactive substance abuse disorders.

C. Essential Functions – The fundamental duties of the employment position the individual with a disability holds or desires. The reasons a function may be considered essential could include, but is not limited to:

(1) The reason the position exists is to perform that function;

(2) The number of other employees who could perform that function; and

(3) The fundamental duties of the employment position may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

D. Major Life Activities – Includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, thinking, sitting, standing, reaching, interacting with others, concentrating, lifting, sleeping, reproduction, running, and working.

E. Mental Impairment – Any psychological or mental disorder, e.g., mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities.

F. Physical Impairment – Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, or endocrine.

G. Qualified Individual with a Disability – An individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires to hold, and who can perform the essential functions of such positions with or without reasonable accommodation.

H. Reasonable Accommodation – A change in the work environment or the application process that would enable a person with a disability to enjoy equal employment opportunities. There are three general categories of reasonable accommodations:

(1) Changes to a job-application process to permit people with disabilities to be considered for jobs;

(2) Changes to enable people with disabilities to perform the essential functions of a job; and

(3) Changes to give people with disabilities equal access to the benefits and privileges of employment.

I. Substantially Limited – The inability to perform a major life activity that the average person in the general population can perform, or significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

J. USDA TARGET Center – The Department’s resource center that provides onsite workplace assessments and demonstrations of assistive technology as well as ergonomic solutions to ensure appropriate implementation of reasonable accommodations for the NRCS workforce.

K. Undue Hardship – A specific accommodation that would require significant difficulty or expense. This determination is made on a case-by-case basis and considers the nature, cost of the accommodation, the financial resources of USDA as a whole, and/or impact of the accommodation on the operations of the particular office or facility involved.

401.33 Administration

A. An employee is anyone who wishes to be considered for an accommodation under these procedures. The employee may contact his or her first-line supervisor, Human Resources Manager, State Disability Employment Program Manager (DEPM), Civil Rights Division, or other managers in the employee’s chain of command. The accommodation would modify or adjust the work environment, the manner or circumstances under which the position held or desired is customarily performed so that the employee would be able to perform the essential functions of the position, and/or allow the employee to enjoy equal benefits and privileges of employment. The employee must participate in the communications process or designate someone to do so, and must provide reasonable documentation in accordance with these procedures when necessary. Requests for reasonable accommodation may also be made to any Agency official proposing to take a performance or conduct action; e.g., first-line supervisor, human resources manager, or State administrative officer. The request should outline the type of accommodation being, if known.

B. The Supervisor/Manager receives, processes, and documents the reasonable accommodation request, and forwards the request to the appropriate official; provides a copy to the NRCS DEPM; participates in the communications process; responds expeditiously; maintains confidentiality; and consults with the Employee Relations staff when accommodation is requested in conjunction with an anticipated or pending performance-based and/or conduct-based action.

C. The NRCS DEPM has overall responsibility for the reasonable accommodation policy and procedures. He or she guides, assists, and oversees the disability emphasis program and serves as consultant, when appropriate, regarding any aspect of these procedures; and tracks and maintains all reasonable accommodation requests in the Agency.

D. The USDA Medical Officer serves as a consultant and reviews and interprets medical documentation, when necessary, to help the Agency determine if the person requesting the accommodation’s medical condition rises to the level of a disability as defined by the Rehabilitation Act of 1973 as amended.

E. The USDA TARGET Center is the USDA resource that can provide onsite workplace assessments, demonstrate assistive technology; recommend ergonomic workplace facilities and recommend specific reasonable accommodations. The USDA TARGET Center can be reached at 202-720-2600 (Voice/TTY), or visit their Web site at http://www.usda.gov/oo/target/.

401.34 Confidentiality

A. Under the Rehabilitation Act, medical information obtained in connection with the reasonable accommodation process must be kept confidential. This means that all medical information, including information about functional limitations and reasonable accommodation needs that NRCS obtains in connection with a request for reasonable accommodation must be kept in files separate from the employee’s personnel file. Any NRCS employee who obtains or receives such information is strictly bound by these confidentiality requirements. Confidentiality applies to all aspects of the reasonable accommodation process.

B. The NRCS DEPM will maintain custody of all records including medical information obtained or created while processing a request for reasonable accommodation and will respond to all requests for disclosure of records. All records will be maintained in accordance with the Privacy Act, and information regarding these records, or any aspect of the process, may be disclosed only as follows:

(1) Supervisors and managers who need to know may be told about the determination of eligibility of an individual with a disability, the necessary restrictions on the work or duties of the employee, and any recommended accommodations. Medical information should be disclosed only if strictly necessary;

(2) First aid and safety personnel may be given specific medical information, when appropriate, if the disability might require emergency treatment;

(3) Government officials may be given information necessary to investigate the Agency's compliance with the Rehabilitation Act;

(4) In certain circumstances, the information may be disclosed to workers’ compensation offices or insurance carriers, in accordance with EEOC regulations; and

(5) The USDA medical officer may talk to the employee regarding the interpretation of any medical documentation.

C. State or collateral-duty DEPMs may receive requests for reasonable accommodations and help local NRCS officials provide the requested accommodations, send copies of reasonable accommodation requests to the NRCS DEPM, and serve as a resource between managers, employees, and accommodation providers such as the USDA TARGET Center and the Job Accommodation Network (JAN).

401.35 Time Frames

A. Reasonable accommodation provides an opportunity for the employee to perform the essential functions of the job or access a benefit or privilege of employment and allows an applicant access to the application process. The accommodation shall be provided within 30 business days or as soon as reasonably possible; however, special circumstances may influence this process. The timelines indicated below shall be followed:

(1) The process to consider a reasonable accommodation request should begin immediately when the appropriate official receives the oral or written request from the individual asking for the accommodation or from the requestor’s representative. However, the process shall begin in more than five business days from the date of oral or written request.

(2) In situations where the individual has an obvious disability or previously documented medical condition that qualifies him or her as an individual with a disability and the accommodation requested is related to limitations caused by that medical condition, the first-line supervisor must determine if the accommodation is effective and, if so, provide the accommodation in no more than 30 business days from the date of the written or oral request.

(3) In situations where the individual does not have an obvious or previously documented medical condition that qualifies him or her as an individual with a disability, the individual to whom the request is made shall forward the request to the NRCS DEPM within three business days from the date of the written or oral request.

(4) With permission of the employee, the NRCS DEPM shall request any needed additional documentation from the appropriate source within five business days.

(5) Upon receipt of the documentation, the NRCS DEPM shall within five business days:

(i) Consult the USDA Medical Officer, as necessary;

(ii) Determine whether the employee is or is not an individual with a disability; and

(iii) Inform the requestor’s first-line supervisor or appropriate Agency official of the decision.

(6) In situations where medical documentation is necessary, the 30 business day period for the first-line supervisor to determine if the accommodation is effective and to provide the accommodation begins on the date the NRCS DEPM issues a decision identified in Section 401.25(5)(ii).

B. When extenuating circumstances that could not reasonably have been anticipated or avoided before the accommodation was requested, the above-mentioned timeframes may be extended. The time for processing a request and providing the accommodation will be extended as necessary. All NRCS decision makers are expected to act as quickly as possible to determine eligibility and provide needed accommodation. Below are a few examples of extenuating circumstances:

(1) The purchase of equipment may take longer than 30 business days;

(2) The employee with a disability needs to try out equipment before purchase can be made;

(3) New staff needs to be hired or contracted for; or

(4) An accommodation involves the removal of architectural barriers.

C. In the event of an extenuating circumstance, the employee’s supervisor shall notify the employee of the reason for the delay and the approximate date on which a decision and/or provision of the reasonable accommodation is expected. The supervisor shall investigate whether temporary measures can be taken to assist the employee. A temporary measure may be taken even when the delay is caused by the need to obtain or evaluate medical documentation to determine if the employee has a covered disability. This in no way obligates USDA to continue or offer further accommodations if the determination is made that the employee does not have a covered disability.

401.36 Procedures

A. Requests by an employee, or on the employee’s behalf, for reasonable accommodation under this regulation may be made orally or in writing to his or her immediate or first-line supervisor. The request should outline the kind of accommodation requested, if known.

B. If the employee has an obvious or previously documented medical condition that qualifies him or her as an individual with a disability, the accommodation request shall be considered immediately. If the employee does not have an obvious or previously documented medical condition that qualifies him or her as an individual with a disability, he or she may be required to provide sufficient documentation of his or her medical condition to the NRCS Disability Emphasis Program Manager, who will determine, in consultation with the Department’s Medical Officer, whether the medical impairment rises to the level of disability. That determination and a recommendation on the requested accommodation will be provided to the appropriate NRCS official/decision makers. To enable NRCS to keep accurate records regarding reasonable accommodation, the employee seeking a reasonable accommodation or the receiver of the request must follow-up an oral request by one of the following:

(1) Completing Form AD-1163, Confirmation of Request for Reasonable Accommodation. See General Manual (GM), Title 230, Part 401, Subpart E, Exhibits, Section 401.51.

(2) Confirming the request in writing, including by e-mail. Although either the employee or the receiver of the request may document the request, the receiver is responsible for completing written documentation and sending a copy to the NRCS DEPM.

(i) An employee gives an applicant seeking a reasonable accommodation the Form AD-1163, Confirmation of Request for Reasonable Accommodation, from the personnel office where the applicant is submitting the application.

(ii) Although a written document is required for record-keeping purposes, Form AD-1163 shall be processed in accordance with timeframes outlined in these procedures. Accommodations needed repeatedly (e.g., sign language interpreter, reader, or personal assistant) do not require written confirmation. The initial or subsequent request should contain language describing the accommodation as “recurring and continuing” and appropriate notice must be given each time the accommodation is needed.

(iii) If a written or oral request is made to an NRCS employee who does not have the authority to provide the accommodation, the request shall be forwarded as soon as possible, but in no more than five days, to the appropriate NRCS official.

C. When the employee is determined to be a qualified individual with a disability and the requested accommodation does not cause undue hardship to the Agency, the accommodation shall be provided.

D. Because a reasonable accommodation allows the employee to perform the essential functions of the job satisfactorily, it is expected that the accommodation shall be provided within 30 business days of the request, unless documented extenuating circumstances prevent accommodation within this time period.

E. The process of providing reasonable accommodation must begin as soon as possible after the request for an accommodation is received. The communications process is crucial, and management shall consult all necessary parties, including, but not limited to:

(1) Employee

(2) Members of the family of the employee

(3) The employee’s attending physician

(4) Rehabilitation counselor

(5) TARGET Center

(6) Department’s Medical Officer

(7) Department’s Disability Employment Program Manager

(8) NRCS Disability Emphasis Program Manager

(9) Job Accommodation Network (JAN)

F. JAN, a service of the President’s Committee on Employment of People with Disabilities, can provide information, free-of-charge, about many types of reasonable accommodations. JAN can be reached at 1-800-526-7234 (Voice/TTY) or visit their Web site at http://www.jan.wvu.edu/.

G. The determination of whether an accommodation would cause an undue hardship shall be made in consultation with the NRCS DEPM. If the immediate supervisor determines the accommodation to cause an undue hardship, the supervisor shall immediately consult the Agency’s DEPM before issuing the decision.

Documentation is required when granting or denying the accommodation. This documentation shall be provided to the employee requesting an accommodation and the NRCS DEPM. If denying the accommodation, Denial of Reasonable Accommodation Request Form and supporting documentation must state specifically how the requested accommodation causes an undue hardship and provide written notification to the employee of his or her rights to file a complaint. A copy of the decision goes to the employee, the individual’s immediate supervisor and the NRCS DEPM.

H. A first-line or immediate supervisor may request consideration for reasonable accommodation on behalf of an employee with a disability.

I. The supervisor may initiate the request, when he or she anticipates or suspects that an employee with a disability needs to be considered for a reasonable accommodation to perform the essential functions of the job he or she is in or desires. The communications process is crucial to determine if accommodations are needed. The supervisor shall speak with the employee and others as necessary to decide what, if any, accommodations are indicated.

J. When a reasonable accommodation is identified, the supervisor is authorized to initiate the process and/or provide the identified accommodation. The accommodation shall be provided as soon as possible, but within 30 business days after the accommodation has been identified unless documented extenuating circumstances affect this time period.

K. An applicant for reasonable accommodation under these procedures may make the request orally or in writing to the personnel office to which he or she is applying. This request should identify the accommodation, if known. Although an applicant with a disability may request a reasonable accommodation at any time during the application process, the applicant should, to the greatest extent possible, make the request as soon as he or she is aware of a barrier to the application process. Applicants with a disability contacted for an interview shall be asked, “Is an accommodation needed for the interview?” If the answer is “yes,” the applicant shall be asked, “What type of accommodation?” Providing the accommodation for the interview shall be the responsibility of the interviewing official.

L. To determine eligibility, the applicant may be required to submit appropriate documentation to the personnel office. The representative in the personnel office may consult the NRCS DEPM regarding the eligibility of the individual. When a favorable determination is made regarding eligibility, the requested accommodation shall be provided unless to do so would cause undue hardship.

M. Reassignment is a form of reasonable accommodation. However, employees may be reassigned only to vacant positions that they are qualified to hold. If no undue hardship exists, reassignment, “the accommodation of last resort” can be considered after all other accommodations have been eliminated. It may be necessary to reassign an employee, because of a disability; the essential functions of the position held can no longer be performed, with or without a reasonable accommodation. When reassignment is made as a reasonable accommodation, the employee will not have to compete for it.

N. The employee must be at least minimally qualified for the position (i.e., must satisfy the requisite skill, experience, education, and other job-related requirements of the position) and be able to perform the essential functions of the position, with or without a reasonable accommodation. If the employee is qualified for the position, he or she should be non-competitively reassigned to the job.

O. In considering whether there are positions available for reassignment, the employee shall give the Human Resources Office a current copy of his or her qualification (Form OF-612, (resume), or Form SF-171) within two business days. The Human Resources Office will determine if there is a vacant position to which the employee may be reassigned. If no such position exists, the Human Resources Office shall forward the application to the Departmental Human Resources Office for reassignment department-wide. This action shall occur within two business days of receipt of the information from the Agency.

P. At any stage in the above process, the employee may be reassigned to a position for which he or she qualifies and for which he or she can perform the essential functions of the job, with or without a reasonable accommodation.

Q. The employee and the NRCS DEPM shall be notified in writing by the NRCS Human Resources Office of the outcome of the reassignment process within 10 business days of the decision.

R. Reasonable accommodations are designed to be effective and allow the individual with a disability to perform the essential functions of the job he or she occupies or desires. The communications process with the employee is essential in providing effective accommodation. Most accommodations are simple and inexpensive. Management shall provide written documentation when a reasonable accommodation has been provided and send a copy to the NRCS DEPM.

S. If an accommodation is denied that decision shall be immediately communicated to the requestor using Form AD-1165, Denial of Reasonable Accommodation Request Form. (See GM, Title 230, Part 401, Subpart E, Exhibits) A copy of the completed form shall be given to the individual who made the request, the individual’s immediate supervisor, and the NRCS DEPM. The explanation for the denial should be written in plain language, clearly stating the specific reasons for the denial. Where a specific requested accommodation was denied but a different accommodation was offered, the denial notice must explain why the request was denied and why the decision maker believes that the offered accommodation will be effective. Reasons for the denial must be specific; for example, why the accommodation would not be effective or why it would cause undue hardship.

T. The written notice of denial also informs the requestor that he or she has the right to file an equal employment opportunity complaint and may have rights to pursue a grievance or Merit Systems Protection Board appeal. The notice also explains procedures available for alternative dispute resolution along with appropriate encouragement to use this process to resolve issues associated with the denial to accommodate.

401.37 Requesting Accommodation for Assistive Technologies

A. On August 30, 2002, the United States Department of Agriculture (USDA) and the U.S. Department of Defense (DOD), signed a memorandum of understanding (MOU) allowing all assistive technology accommodations to be provided to USDA agencies by the DOD Computer/Electronic Accommodations Program (CAP) through the USDA TARGET Center at no cost.

B. Examples of assistive technologies are listed on the TARGET Web site at http://www.usda.gov/oo/target/pops/assistive.html.

C. The USDA TARGET Center is the point of contact for the USDA-CAP Partnership Program. Please submit your request for assistive technology to the TARGET Center. If you are unsure of what technology you need, the TARGET Center can help determine the appropriate accommodation.

[GM_230_401_C - Amendment 21 - October 2006]

Subpart D - EEO Complaint Process

401.40  Purpose

The purpose of this directive is to provide guidelines and procedures on the Equal Employment Opportunity (EEO) counseling and complaint process within the Natural Resources Conservation Service (NRCS).

401.41  Informal or Pre-Complaint Process

A.  The EEO counseling, mediation, and complaint process provides procedures whereby an employee, applicant, or management official alleging charges of discrimination may file an informal EEO complaint.  The EEO Counselor will discuss the issues of the complaint with the complainant and the responding official.  The EEO Counselor will conduct a fact-finding session and provide technical advice, guidance, and consultation on employment discrimination matters to employees, applicants, and management officials.  The Counselor will also provide professional expertise on EEO case law and personnel rules and regulations to identify discriminatory practices and policies that surface from individual complaints or patterns of complaints, advise the appropriate officials, and recommend alternatives for resolution.

B.  Any employee or an applicant seeking employment with NRCS who feels that he or she may have been discriminated against on the basis of their race, color, national origin, sex, religion, age (40+), disability, retaliation (for prior participation in the equal employment opportunity complaint process), sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information may file an informal complaint by contacting an EEO counselor.

C.  The complainant must make initial contact with an EEO counselor within 45 days of the date of the alleged discriminatory event, or in the case of a personnel action, within 45 days of the effective date of the action.  At the initial counseling session, the EEO counselor must ensure that the complainant understands his or her rights and responsibilities as an employee or applicant. 

D.  The EEO counselor must provide written documentation explaining the complainant’s rights and responsibilities along with the following processes:  Equal Employment Opportunity, Alternative Dispute Resolution (ADR), Merit System Protection Board (MSPB), and Administrative Grievance Process.  The EEO counselor must advise the complainant of his/her right to elect the ADR Process or the traditional EEO Counseling process.

E.  The initial contact with the EEO counselor:

(1)  Helps to establish the timeliness of the complaint (within 45 days of the alleged discriminatory event);

(2)  Provides the complainant an opportunity to understand the EEO complaint process;

(3)  Provides the complainant an opportunity to talk about the issue, impact, and ways to resolve the complaint; and

(4)  Determines the issue(s) and basis(es) raised by the complainant.

F.  The EEO counselor must perform the following tasks in all cases, regardless of whether the complainant elects ADR or traditional counseling:

(1)  Receives the signed informal complaint form that identifies the alleged discriminatory events and their dates;

(2)  Conducts an inquiry during the initial interview with the complainant to determine jurisdictional questions;

(3)  EEO counseling is generally completed within 30 calendar days.  However, counseling may be extended to an additional 60 calendar days, with the complainant's approval, in order to permit further resolution efforts;

(4)  Seek a resolution of the dispute at the lowest possible level, unless the complainant elects to participate in the ADR process. The complainant should specify what remedy (ies) he or she is seeking in order to resolve their complaint.  If the dispute is resolved in counseling, the EEO counselor must document the resolution;

(5)  After 30 calendar days of EEO counseling, or if ADR fails, conduct a final counseling session and issue the complainant a Notice of Right to File a Formal Complaint (NRF); and

(6)  Prepare a written EEO Counselor's Summary Report that documents the facts gathered from the complainant, as well as the supervisor or person(s) responsible for the alleged discriminatory action.

401.42  Benefits of the EEO Counseling Process

The EEO complaint process provides one avenue where employees can get help in understanding and resolving workplace problems.  It enables complainants to ease into the EEO complaint process, permitting them time to understand it.  The EEO counseling process provides breathing space for both the complainant and supervisor, often brings learning and resolution of problems, reduces the number of cases that require full investigation, and reduces disruption to the lives of the parties involved and to the workplace.

401.43  Formal Process

A.  Filing an Individual Complaint

(1)  If all attempts at an informal resolution have failed, the complainant may exercise his or her rights by filing a formal EEO complaint with the USDA, Office of Civil Rights (CR).  The formal EEO complaint should be sent to the USDA, Office of Civil Rights (OCR), Employment Complaints Division, Reporters Building, 300 7th Street, SW, Room 607, Washington, D.C. 20024.

(2)  Time limits.  A formal complaint must be signed by the complainant and filed in writing within 15 days of receipt of the Notice of Final Interview with the EEO counselor.  A complaint is deemed filed on the date postmarked, if addressed to the official designated to receive complaints; or, if not postmarked, on the date received by the office of such a designated official.  For purposes of timeliness, in the absence of a returned receipt, the USDA will presume that the Notice of Final Interview was received by the complainant within 5 calendar days of mailing.

(3)  Location.  All formal complaints must be submitted to the Director of the Office of Civil Rights.  No other office is authorized to receive formal complaints, and filing with any other office does not toll the necessary time frames.  A complaint is filed on the date complete information, as required by regulations, is actually received by the Office of Civil Rights (OCR), and all time frames for processing begin from that date.  

(4)  CR prepares an acknowledgment letter and mails it to the complainant and the representative.  A copy of the acknowledgment letter, including the complaint, is also forwarded to the NRCS Civil Rights Division (CRD) complaint processing office.  The letter of acceptance may serve as the acknowledgment letter if mailed within 30 days from the filing of the complaint.

(5)  Complaint content.  A complaint must include:

(i)  The complainant’s name, address, and telephone numbers;

(ii)  The name of the EEO counselor contacted.  CR may prescribe a form for use in filing an EEO complaint with USDA;

(iii)  The name, address, and telephone number of any representative;

(iv)  A specific description, including the dates, of the decision involved in any individual complaint or the policy or practice and incident of application in any class complaint;

(v)  The agency that made the decision or applied the policy; and

(vi)  The basis on which discrimination is alleged.

(6)  Acceptance.  The Director, Office of Civil Rights, or a designee, shall accept complaints that are timely submitted and covered by this Subpart. (see 401.47 Acceptance/Dismissal Checklist).  Complainants will be notified of the acceptance and all administrative and legal rights to which they are entitled as well as the opportunity to request ADR (see 401.45, ADR) as a means of resolution, and include a detailed explanation of available ADR options.  Once CR has acknowledged receipt of the formal EEO complaint, they will notify NRCS CRD that the complainant has filed a formal EEO complaint and request NRCS CRD to provide the Counselor's Report within 15 calendar days.  This report is used to help the OCR staff determine whether the EEO complaint of discrimination was timely and whether or not to accept it for formal EEO investigation.

(7)  If the initial material submitted as a complaint is not complete, CR will request that the complainant clarify the complaint and/or provide the missing material and allow 15 days for its submission.

(8)  Dismissal.  A complaint that is not properly filed will be dismissed by the Director, Office of Civil Rights (see 401.47 Acceptance/Dismissal Checklist).  A complaint will be dismissed if:

(i)  The issue was not brought to the attention of an EEO counselor or submitted formally within the prescribed time limits, unless the time limits are extended and the issue is not remanded for counseling;

(ii)  The action or decision, or the factor or basis alleged, is not within the  control of USDA or the scope of this subpart;

(iii)  The action or decision involved in the complaint is moot and there is no further potential relief available through the complaint process (when two conditions are satisfied).  There is no reasonable expectation that the alleged violation(s) will recur; and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation;

(iv)  It sets forth an issue identical to a complaint that is pending, or that has already been decided (such as in a complaint within USDA, or under a negotiated grievance procedure that covers discrimination allegations, or as an appeal to the MSPB, or as a civil action in a Federal Court);

(v)  the issues deal with a proposed action that is nonspecific to the complainant;

(vi)  The complainant fails to prosecute the complaint after being provided 15 days notice of the requirement to proceed and the potential dismissal;

(vii)  The allegation concerns the processing of a previous complaint (unless the allegation is consolidated with the previous complaint); or

(viii)  There is a clear pattern of abuse of the EEO complaint system.  A dismissal is a final decision.

(9)  Amendments.  A complainant may amend a formal complaint, either before or after acceptance, to add additional factors or bases.  Complainants may request to add additional issues to complaints, but only if each additional issue has been presented properly to an EEO counselor.  An additional incident cited as evidence in support of previously accepted issues does not need to be discussed with an EEO counselor to be reviewed in the complaint.  USDA may, in its discretion, join individual complaints from the same complainant or from different complainants on the same issue for processing.  CR will notify complainants and NRCS CRD of such actions.  When a complainant wishes to amend a complaint after the initial complaint is filed, USDA will determine, on a case-by-case basis, how any additional issues will be processed and notify complainants and NRCS CRD.

(10)  At anytime prior to the conclusion of the investigation, a complainant may amend a pending EEO complaint to add claims that are like or related to those claim(s) raised in the pending complaint.  The complainant is not required to seek EEO counseling on these new claims.  After the complainant has requested a hearing, he or she may file a motion with the EEOC AJ to amend the complaint to include claims that are like or related to those raised in the pending complaint.

(i)  When a complainant raises a new incident of alleged discrimination during the processing of an EEO complaint, it must be determined whether this new incident:

    • Provides additional evidence offered to support the existing claim, but does not raise a new claim in and of itself;
    • Raises a new claim that is like or related to the claim(s) raised in the pending complain;, or
    • Raises a new claim that is not like or related to the claim(s) raised in the pending complaint.

(ii)  In order to facilitate such a determination, the complainant must submit a letter to the Employment Complaints Division (ECD), Office of Civil Rights, specifically describing the new incident.

(iii)  If the ECD concludes that the new incident(s) raises a new claim, but that the new claim is like or related to the claim(s) raised in the pending complaint, the pending complaint will be amended to include the new claim.  The ECD will send a copy of the letter to the NRCS CRD.  NRCS CRD will provide a copy of the letter to the EEO investigator with instructions to include the new incident(s) in the investigation.

(iv)  If ECD concludes that the new claim raised by the complainant is not like or related to the claim(s) raised in the pending complaint, the complainant will be advised in writing that he/she must seek EEO counseling on the new claim and the applicable time limit.  The postmark date of the letter from the complainant would be considered the actual date for the time computation purposes used to determine if the initial EEO counselor contact was timely in accordance with the EEOC regulations.  Actual contact with a counselor will initiate the counseling time frames in EEOC regulations.

(11)  Continuing violations.  A complainant may also proceed with a discrimination claim where some or all of the discriminatory acts took place more than 45 days prior to contact with an EEO counselor by alleging and proving that the alleged discriminatory violation constituted a continuing violation.  A continuing violation is a series (serial violation) of related acts, one or more of which falls within the 45-day limitation period, none of which is significant enough by itself to trigger the need to initiate the complaint process to protect an individual’s rights.  Under a serial violation theory, a complainant must show that:

(i)  There are a series of related acts, at least one of which occurred within the 45-day limitation period, and,

(ii)  The untimely and timely acts are sufficiently related by a common nexus. The key factors in determining whether a series of acts are sufficiently related include:

    • Subject matter;
    • Frequency (are the acts recurring or are they isolated?);
    • Permanency (were the acts of sufficient impact that an exercise of a right to challenge should have occurred); and
    • The involvement of the same individuals or the maintenance of a practice concerning the issue.

(12)  NRCS CRD’s responsibilities once an EEO complaint is accepted.  The agency is responsible for ensuring that all Responsible Management Officials are notified of any accepted issues and the procedures involved in processing the complaint. The assigned Complaints Branch staff member identifies the accepted issues, the appropriate statement of work for the investigation, and any background issues.

(13)  An investigator is then assigned to conduct a thorough and impartial investigation within 180 days of the date the complaint was filed with CR.  The NRCS CRD Director or designee and the complainant may agree in writing to an extension of not more than 90 days.  Though an EEO complaint may be resolved at any time during the EEO complaint process, the investigator's focus, unlike the EEO counselor's, is on uncovering the facts of the case that will clearly demonstrate whether or not discrimination has taken place.

(14)  NRCS CRD is required to retain records relating to the action involved, irrespective of any other retention schedule regulations.  Willful failure to retain records will result in an adverse inference being drawn by the Office of Civil Rights or the EEOC with regard to the actions at issue.

B.  The Right to Hearing

Except in mixed cases, the complainant has the right to request a hearing before an EEOC Administrative Judge after 180 calendar days from the filing of a formal EEO complaint or after completion of the investigation, whichever comes first.  Complainants must request a hearing directly from the EEOC field office that has jurisdiction over the geographic area where the complaint arose.  In the written acknowledgement of receipt of the formal EEO complaint or amendment to a complaint, CR will advise the complainant of the EEOC office and address where a hearing request is to be sent as well as a copy of the request being sent to CR.

C.  The Right to Appeal

(1)  The complainant has the right to appeal a dismissal, final action, or final decision.  However, formal EEO complaints alleging discrimination on the basis of sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information are not appealable before the EEOC.

(2)  Complainants may appeal within 30 days of receipt of the dismissal, final action, or final decision to:

Equal Employment Opportunity Commission (EEOC)
Office of Federal Operations (OFO)
P.O. Box 19848
Washington, DC  20036

Or hand delivered to:

Equal Employment Opportunity Commission (EEOC)

Office of Federal Operations (OFO)

Appellate Review Programs

1801 L Street, NW,

Washington, DC  20507

(3)  CR will provide the complainants the information for use of the appeal form EEOC Form 573, Notice of Appeal/Petition.  With regard to a mixed case, if the complainant is dissatisfied with CR's final decision on the mixed case complaint, the complainant may appeal the matter to the MSPB, not the EEOC, within 30 days of receipt of CR's final decision.

D.  The Right to File a Civil Action

(1)  The complainant has the right to file a civil action in Federal district court on claims raised in the administrative process:

(i)  Within 90 days of receipt of a final action on an individual or class complaint, if no appeal has been filed;

(ii)  After 180 days from the date of filing an individual or class complaint, if an appeal has not been filed and a final action has not been taken;

(iii)  Within 90 days of receipt of the EEOC's final decision on appeal; and

(iv)  After 180 days from the date of the filing of an appeal with the EEOC, if there has been no final decision by the EEOC.

(2)  Unless the complainant withdraws or the EEO complaint is settled, the OCR Director of Employment or an EEOC Administrative Judge will issue a Final Decision on whether or not discrimination took place.

401.44  Class Complaints

An individual who wishes to file a class complaint as an agent alleging discrimination based on race, color, national origin, sex, religion, age (40+), physical or mental disability, and/or retaliation in a personnel management policy or practice of the Department or the Natural Resources Conservation Service (NRCS), must seek counseling and be counseled.  The complainant may move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claim(s) raised in an individual complaint.  If the complainant moves for class certification after completing the counseling process contained in GM 230, Part 401.40 Subpart E (Steps in EEO Complaint Process), no additional counseling is required.  An EEOC Administrative Judge will make the determination on whether or not the class complaint meets the prerequisites of a class complaint. 

401.45  Alternative Dispute Resolution (ADR)

A.  Purpose

NRCS establishes policy on the use of Alternative Dispute Resolution (ADR) and related techniques to prevent and resolve workplace and program conflicts.

B.  Policy

The benefits of using ADR include achieving effective and mutually satisfactory resolutions of conflicts, decreasing time, cost, and other resources expended in resolving conflicts, fostering a culture of respect and trust between NRCS and its customers and employees, and increasing customer satisfaction and employee morale.  NRCS will attempt to prevent conflicts whenever possible and, when conflicts do occur, make every effort to reach early, consensual resolution of conflicts and issues, using ADR as an essential tool toward achieving that goal.

C.  General Provisions

(1)  NRCS shall utilize ADR as a standard tool for resolving workplace conflicts and conflicts between NRCS and its customers;

(2)  NRCS shall seek to resolve conflicts at the earliest stage possible;

(3)  In any ADR proceeding involving a conflict with NRCS or other organizational entity, an individual with authority to fully resolve the matter on behalf of the entity should be in attendance whenever possible.  If that is not possible, an individual with authority to negotiate on behalf of the entity should attend the ADR proceeding, and should have access to an individual with authority to fully resolve the matter on behalf of the entity;

(4)  All parties participating in ADR are expected to participate in good faith. Participation in ADR is voluntary for the Complainant in the pre-complaint process.  However, ADR is offered at various stages throughout the formal process and is evaluated on a case-by-case basis, as it relates to when an offer of ADR is extended to the Complainant;

(5)  Agreement to resolve a conflict shall be voluntary for all parties participating in ADR;

(6)  Parties are entitled to have a representative in attendance during the ADR proceedings;

(7)  The use of ADR shall not adversely affect the rights of individuals to seek resolution of their issues through the established EEO complaint process;

(8)  No employee shall commit, authorize, or condone any retaliation against any employee or customer because of the pursuit of, or participation in, ADR; and

(9)  NRCS shall make available training and educational services designed to promote effective conflict management.

D.  For additional information concerning ADR, refer to General Manual 110, Part 404, and/or contact NRCS Civil Rights Division at (301) 504-2181 or 1-866-NRCS395.

401.46  EEO Counselors

Training Requirements

(1)  To ensure quality counseling, NRCS in accordance with the EEOC, requires that new EEO Counselors receive a minimum of thirty-two (32) hours of EEO Counselor training prior to assuming counseling duties.

(2)    Individuals currently designated as EEO Counselors may also benefit from such training.  All EEO Counselors are required to receive at least eight (8) hours of continuing EEO counselor training annually.

(3)  The EEOC, as well as the USDA Graduate School, have developed training courses to satisfy this requirement, and offer them to agencies through a fee-for-service basis. 

(4)  Individuals designated as counselors must receive an EEO counseling course which includes:

(i)  EEO Counselor Training;

(ii)  EEO Counselor Refresher Course;

(iii)  Counseling Techniques;

    • Mediation
    • Negotiation
    • Conflict Resolution
    • EEO laws and regulations
    • Background and history of EEO laws
    • Affirmative Employment Program 
    • Theories of Discrimination 
    • Special Emphasis Programs
    • Role of Counselor
    • Report Writing 
    • Sexual Harassment

(iv)  Personnel procedures/practices, including:

    • Classification Principles
    • General Staffing
    • Merit Promotion Principles 
    • Performance appraisals/evaluations 
    • Discipline (responsibilities and conduct)
    • Grievance and appeals procedures 
    • Pertinent Department and NRCS policy 

(5)  All new EEO counselors must receive this training before counseling unless the individual already has the knowledge or skill.

401.47  Acceptance/Dismissal Checklist

YES      NO

[ ]         [ ]         The complaint is filed within 15 days of receipt of the NRF.

[ ]         [ ]         Complaint is signed by the person claiming to be aggrieved.

[ ]         [ ]         Complaint is sufficiently precise to identify the aggrieved individual and the Agency and to describe generally the action(s) or practice(s) that form the issues of the complaint.

[ ]         [ ]         The complainant contacted an EEO Counselor within 45 days of the discriminatory event or within 45 days of the effective date of the personnel action, or within 45 days of reasonable suspicion of discrimination.

[ ]         [ ]         If contact is beyond 45 days from the incident or reasonable suspicion of discrimination, the complainant showed the 45-day contact period should be extended because he or she was not aware of the time limits or did not know and reasonably could not have known that the matter or personnel action occurred or that despite due diligence was prevented by circumstances beyond his or her control from contacting a counselor within the 45-day time limit.

[ ]         [ ]         The complainant stated a claim of discrimination covered by law or regulation (i.e., a covered discriminatory basis is alleged, and the issues are within USDA’s jurisdiction) and the issue is not moot.

[ ]         [ ]         The complainant does not have the same claim pending before or had been decided by USDA or the EEOC.

[ ]         [ ]         The complainant did not raise the matter in a negotiated grievance procedure or elect to appeal the matter to the MSPB.

[ ]         [ ]         The alleged action is not a preliminary step or a proposal to take a personnel action (unless reprisal is alleged as the basis).

If any answer is “no,” the complaint issue(s) are not accepted.  Any dismissal Decision includes reasons for the action, cites, the subsection of the EEOC’s regulations and further rights of appeal.  If all answers are “yes,” complaint issues and bases are identified, accepted, and referred for investigation.

In addition at any time in the process, USDA may dismiss a complaint or a portion of a complaint that:

YES     NO

[ ]        [ ]
 Is the basis of a civil action in a U.S. District Court in which the complainant is a party, provided that at least 180 days have passed since the filing of the complaint, or that was the basis of a civil action decided by a U.S. District Court in which the complainant was a party.
 
[ ]       [ ]
 The complainant cannot be located, provided that reasonable efforts have been made to locate the complainant and the complainant has not responded within 15 days to a notice of proposed dismissal sent to his or her last known address.
 
[ ]       [ ]
 USDA has provided the complainant with a written request to provide relevant information or otherwise proceed with the complaint and the complainant has failed to respond to the request within 15 days of its receipt, or the complainant’s response does not address the Agency’s request, provided that the request included a notice of the proposed dismissal.
 
[ ]      [ ]
 After the issuance of the certified offer of full relief, the complainant refuses within 30 days of receipt of the offer to accept, provided that the offer gave notice that failure to accept it would result in dismissal of the complaint.
 


 

[GM_230_401_D - Amendment 25 - March 2008]

Subpart E - Exhibits
401.50 Steps in EEO Complaint Procedure
Click here for a copy of the Steps in EEO Complaint Procedure

401.51 Confirmation of Request for Reasonable Accommodation Form

Click here for a copy of the Confirmation of Request for Reasonable Accommodation Form

401.52 Reasonable Accommodation Information Reporting Form

Click here for a copy of the Reasonable Accommodation Information Reporting Form

401.53 Denial of Reasonable Accommodation Request Form

Click here for a copy of the Denial of Reasonable Accommodation Request Form
[GM_230_401_E - Amendment 17 - October 2006]

Subpart F - NRCS Official Time Policy

401.60  General

A.  This policy is intended to provide the Natural Resources Conservation Service (NRCS), and employees working for NRCS, with clarity regarding the use of official time and Agency resources by employees pursuing administrative equal employment opportunity (EEO) complaints against NRCS before the Equal Employment Opportunity Commission (EEOC).  Also, the policy is intended to provide clarity regarding the use of official time by NRCS employees who are designated as representatives of other NRCS employees in employment discrimination matters.  However, this policy is limited solely to clarification of the process for requesting official time regarding administrative complaints of employment discrimination and use of Agency resources to pursue such complaints.

B.  The Agency’s general policy is to grant, deny, or reschedule leave based upon a balanced consideration of the needs of the employee’s work unit and the circumstances surrounding the employee’s request for leave.

C.  This policy becomes effective May 21, 2007, and will apply to all pending complaints that have not yet proceeded to hearing.

401.61  Purpose

The following constitutes the Agency’s policy with respect to requests by complainants, their representatives, and witnesses for official time during the pre-complaint and formal stages of the process for administrative complaints of employment discrimination.

401.62  Authority

The regulations of the United States Equal Employment Opportunity Commission (EEOC) at 29 C.F.R. § 1614.605(b), address the rights of complainants, their representatives, and witnesses to a reasonable amount of official time to prepare a complaint, and to respond to Agency and EEOC requests for information.

401.63  Eligibility

The following individuals are to be granted a reasonable amount of official time:

(1)  A complainant and his/her representative, who are employees of the Agency and when otherwise in a pay status, to present a complaint or an appeal, participate in mediation, or when their presence is authorized or required by the Agency or EEOC during the investigation, resolution, or settlement attempts, or hearing on a complaint of employment discrimination brought by the complainant; and

(2)  An Agency employee, who is a witness in a complaint, regardless of whether the complaint is in the employee’s Agency or another Department of Agriculture (USDA) agency.  The employee must be in a duty status and his/her presence must be authorized or required by EEOC or Agency officials in connection with a complaint.

401.64  Official Time for Employee as Complainant

A.  For purposes of this policy, “official time” is time granted to an NRCS employee without charge to leave or loss of pay, when the employee would otherwise be in a duty status. 

B.  For purposes of this policy, “duty status” means the NRCS employee’s or representative's normal hours of work at NRCS.

C.  An employee may have a reasonable amount of official time, if otherwise in duty status, to prepare his or her complaint of employment discrimination against NRCS, to respond to requests for information from the Agency or from the Administrative Judge of the EEOC, assigned to hear the employee’s complaint of employment discrimination against NRCS, to meet with Agency officials, to prepare for meetings with Agency officials, to prepare for the hearing of his or her complaint of employment discrimination against NRCS, and to present his or her case before the EEOC.  The Agency is required only to grant an employee reasonable time consistent with the actual business necessities of the Agency.

401.65  Pre-Complaint (Informal Complaint) of Employment Discrimination

A reasonable amount of official time will be allowed for an employee to make contact, discuss, and meet to attempt resolution of pre-complaint issues with EEO counselors, human resources specialists, and/or other officials.  A reasonable amount of time may be granted for an employee to prepare for an initial pre-complaint contact, including time to discuss issues with the employee’s representative.

401.66  Preparation and Presentation of Complaint of Employment Discrimination

A reasonable amount of official time will be allowed for an employee to prepare and present an EEO complaint.  Official time for such purposes will typically include time to assemble documents to be submitted in conjunction with the complaint, time spent meeting or consulting with the employee’s representative to assist in complaint preparation, and time to draft the complaint.  A reasonable amount of official time will be allowed for an employee to prepare responses to questions or information requests from government officials responsible for processing or attempting to resolve EEO complaints and pre-complaints.  Employees are also afforded a reasonable amount of official time to prepare any appeals that may be filed with the Commission, even though no meetings or hearings are involved.

401.67  Official Time for Employee as Designated Representative

According to EEOC regulations, an employee has the right to a representative of his or her choice during the EEO process.  An NRCS employee may designate another NRCS employee as his or her representative in an administrative complaint of employment discrimination.  An NRCS employee representative may have a reasonable amount of official time, if otherwise in duty status, to assist in preparation of a complaint, to assist in responding to requests for information from the Agency, or from the EEOC Administrative Judge, to meet with Agency officials, to prepare for meetings with Agency officials, to prepare for the hearing, and to present the case before the EEOC.

401.68  Designation of Representative

Any NRCS employee may serve as another employee’s representative during the course of an EEO complaint, provided that a written designation has been submitted and that the representational functions do not constitute a conflict or apparent conflict of interest with the employee representative’s official or collateral duties (29 C.F.R. 1614.605(C)).  Both the complainant and the employee he or she seeks to designate as a representative must notify their first-line and second-line supervisors, and NRCS’ Civil Rights Director, in writing, of the proposed designation of representation.  No request for official time of an employee representative will be granted until the supervisor and the Civil Rights Director have received the written designation of representation.

401.69  Restrictions on Representatives

The following guidelines apply to representatives of NRCS employees during the course of an EEO complaint:

(1)  No Conflict with Official or Collateral Duties of Representative

As stated above, a representative may be disqualified from representing an NRCS employee if the representational functions constitute a conflict or apparent conflict of interest with the representative’s official or collateral duties (29 C.F.R. 1614.605(C)).

(2)  Majority of Duty Hours Working for Agency

Agency employees are expected to spend the majority of their duty hours working for the Agency.  It is not unreasonable for the Agency to restrict the total amount of    representational time granted to an employee to a certain percentage of his or her time.  The process for such restriction, if necessary, is outlined below.

(3)  Official Time Limited to Representation of NRCS Employees

If an Agency employee serves as an EEO representative for an individual who is not employed by NRCS or represents an applicant for employment who is not an NRCS employee, the representative is not entitled to official time.  The granting of official time for purposes of this policy applies only to representation of Agency employees.

(4)  No Change in Schedules, Wages, or Travel Expenses

The Agency is not obligated to change work schedules, incur overtime wages, or pay travel expenses to facilitate an employee’s choice of a specific representative or to allow the complainant and representative to confer.

401.70  Official Time for Employee as Witness in Administrative Proceeding Before EEOC

An NRCS employee who is a witness, either in person before the EEOC, by deposition in an administrative employment discrimination proceeding, or by sworn affidavit or declaration in an administrative employment discrimination proceeding, shall be in duty status and afforded official time when his or her testimony is authorized or required by Agency officials or by the EEOC.  Employees who are witnesses may have a reasonable amount of official time for the time spent preparing to testify.  Further, any employee testifying at an administrative employment discrimination hearing is entitled to a reasonable amount of official time for travel to and from the hearing.

401.71  Official Time to Prepare for Title VII Litigation in United States District Court

While EEOC regulations require the granting of reasonable official time for preparation of an administrative EEO complaint, the Commission defers to the policies of the Agency with respect to granting official time to prepare for Title VII litigation in a United States District Court.  The policy of NRCS is that no official time will be granted for preparation for Title VII litigation in District Court.  In the event that an employee has filed an EEO action in Federal court and requested time to prepare and present his or her case in court, a supervisor may only approve annual leave or leave without pay.  The Office of Personnel Management and the Human Resources Management Division provide guidance on granting official time for court leave.  An NRCS employee called as a witness, who is served with a subpoena or asked to attend by an appropriate USDA official, to attend a trial or other event in Title VII litigation against NRCS, is entitled to official time for attendance at such trial or event.

401.72  Determining Reasonable Amount of Official Time

The amount of official time that is reasonable for a given activity in any given matter must be considered on a case-by-case basis.  NRCS will not reject the amount of official time requested as unnecessary without making efforts to ascertain why the employee believes the time is required.  “Reasonable” is defined as whatever is appropriate, under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to Agency requests for information, EEOC Management Directive 110 (MD-110), Chap. 6, Sec. VIII(C)(1).  The actual number of hours to which a complainant and his or her representative will be entitled will vary, depending upon the nature and complexity of the complaint, and considering the mission of the Agency and the Agency’s need to have its employees available to perform their normal duties on a regular basis.  The complainant and the Agency should arrive at a mutual understanding as to the amount of official time to be used prior to use of such time.

401.73  Meeting and Hearing Time

Most of the time spent by complainants and their representatives during the processing of a typical complaint is spent in meetings requested by Agency officials or EEOC Administrative Judges and in the hearing.  Whatever time is spent in such meetings and hearings is automatically deemed reasonable.  EEOC MD-110, Chap. 6, Sec. VIII(C) (2).  NRCS will, to the extent practical, schedule meetings and request hearing times during the complainants’ working hours. 

401.74  Preparation Time

Because presentation of a complaint of employment discrimination involves preparation for meetings and hearings, as well as attendance at such meetings and hearings, complainants and their representatives are also afforded a reasonable amount of official time, as defined above, to prepare for such meetings and hearings.  However, because investigations are not conducted by Agency or Commission personnel, the regulation entitling employees and their representatives to official time “does not envision large amounts of official time for preparation purposes” (EEOC MD-110, Chap. 6, Sec. VIII(C)(3)). Consequently, “reasonable,” with respect to preparation time, is generally defined in terms of hours, not in terms of days, weeks, or months.

401.75  Employee’s Consultation with Representative

Although an employee is entitled to a reasonable amount of time to consult with his or her representative, the employee is not necessarily entitled to official time to meet personally with the representative.  NRCS may restrict reasonable official time to telephone contact with the representative if the circumstances are warranted.

401.76  Aggregate Time Spent on EEO Matters

EEOC considers it reasonable for the Agency to expect its employees to spend most of their time doing the work for which they are employed.  Therefore, NRCS may restrict the overall hours of official time afforded to a representative, for both preparation purposes and for attendance at meetings and hearings, to a certain percentage of that representative’s duty hours in any given month, quarter, or year.  Such overall restrictions will depend on the nature of the position occupied by the representative, the relationship of that position to the mission of the Agency, and the degree of hardship imposed on the mission of the Agency by the representative’s absence from his or her normal duties.  The Agency will notify each of the complainants who have designated the representative of any overall restrictions on the amount of official time to be utilized by the representative.

401.77  Procedure for Requesting Official Time for Complainants and Representatives

In order to receive official time for participation in the EEO process, an NRCS employee must properly request official time.  The Agency cannot be deemed to have denied a request that it never received.  Supervisors must contact the NRCS Civil Rights Staff Director upon receipt of any request for official time to ensure that the employee has an ongoing complaint and to be apprised of the status of the complaint. 

401.78  Request to Supervisor

A.  An NRCS employee seeking official time, to pursue his or her own administrative complaint of employment discrimination, or to represent another NRCS employee in this pursuit, must make a request for official time with their supervisor, at least 48 hours prior to the need for such official time.  Such requests should include the specific time needed, the date of such official time, the reasons for the requested official time, and any further information the NRCS employee deems necessary for the Agency to make a determination of whether such official time is authorized, and whether it is reasonable under guidance from EEOC.

B.  When official time has been requested, the attached Request for Official Time form should be completed by the employee who is requesting official time.

401.79  Determination by Supervisor to Civil Rights Director

Within 24 hours from receipt of the written request for official time, the supervisor will make a determination as to whether such time is approved or disapproved, or modified in any way.  The determination of whether the request for official time is “reasonable” will be made based upon guidance as set forth above, which will include the complexity of the complaint of employment discrimination.  As stated above, the amount of official time for preparation of a complaint of employment discrimination is generally defined in terms of hours, not in terms of days, weeks or months.  The determination is made on a case-by-case basis, as mandated by EEOC.  The supervisor will work with the Civil Rights Director to come to an agreement on the amount of reasonable official time to be afforded.

401.80  Process if Request for Official Time is Denied

If the Agency denies a request for official time, either in whole or in part, the Agency will include a written statement in the complaint file noting the reason for the denial.  If the Agency’s denial of official time is made before the complaint is filed, the Agency will provide the complainant or his/her representative with a written explanation for the denial, which it will include in the complaint file if the complainant subsequently files a formal complaint of employment discrimination.

401.81  Use of Government Property

An employee’s use of government property (i.e. telephones, computers, supplies, etc.) in the processing of a complaint must be authorized by the Agency.  The employee should be informed that privacy during the use of such forms of communication cannot be guaranteed.

EEO COMPLAINT REQUEST FOR OFFICIAL TIME

Name:  ________________________________

Area:   ________________________________

Address:  ______________________________

Telephone:  ______________   Fax:  ________________   E-mail: _______________

Approved Working Hours (Example: 8:00am to 4:30pm)

Request for ______________________ hours for:  ___________________________

________ Preparation/Meeting with Counselor

________ Preparation/Meeting with EEOC, Attorney, Agency Official, etc.

Statement:

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

Approved: _________________________________   Denied: _____________________________
                              Name                                                                             Name

If denied, please state reasons:

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

                                                                                                                                                 May 2007

[GM_230_401_F - Amendment 22 - June 2007]

Subpart G - NRCS Anti-Harassment Policy

401.90  Purpose and Scope

This policy and guidance on prevention and elimination of harassment in the workplace is provided by the Natural Resources Conservation Service (NRCS).  For the purpose of this policy, employee refers to any person employed directly, or through a contract, or a memorandum of understanding with NRCS, customer refers to any person who comes in the office for assistance, and applicants refers to any person who applies for a position with NRCS.  This policy statement supersedes all previous sexual harassment polices.

401.91  Policy

A.  NRCS is committed to providing a working environment that is free from all forms of harassment based on race, color, national origin, sex, religion, age, disability, sexual orientation, marital status, familial status, political beliefs, parental status, protected genetic information, reprisal, or because all or part of an individual’s income is derived from public assistance programs.  Harassment in any form is inappropriate, unacceptable, and will not be tolerated.  In addition to being unlawful, harassment jeopardizes employee relationships, reduces productivity, and is harmful to the well-being of employees, customers, and applicants.  This policy serves as a reminder to all employees to eliminate and prevent harassment in the workplace, and to take immediate and appropriate action when it is noticed, before it becomes severe or pervasive.

B.  This policy is designed to:

(1)  Provide a work environment free from harassment;

(2)  Inform all employees and applicants for employment of the procedures available for addressing, investigating, and resolving harassment complaints; and

(3)  Prevent retaliation against persons alleging harassment, or against persons cooperating in an investigation.

401.92  Authorities

The following authorities guide the implementation of NRCS Anti-Harassment Policy:

(1)  Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16;

(2)  Age Discrimination in Employment Act, 29 U.S.C. § 721; and

(3)  Executive Order 11478, as amended.

401.93  Definitions

A.  Harassment is defined as any unwelcome verbal or physical conduct, which has the effect of creating an intimidating, hostile, or offensive work environment, based on any characteristic protected by law when:

(1)  The behavior can reasonably be considered to affect adversely the work environment, which includes employees’ performance;

(2)  An employment decision which is based on the employee’s or applicant’s acceptance or rejection of such conduct; and

(3)  The conduct culminates in a negative or adverse employment action (i.e., a supervisor’s harassment results in a significant change in employment status or benefits, such as demotion, termination, failure to promote.)

B.  Harassment includes slurs, jokes, negative stereotyping, or threatening, intimidating or hostile acts, as well as written, electronic or graphic material that denigrates or reflects on an individual or group because of race, color, national origin, age, disability, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual’s income is derived from public assistance programs.  The victim or the harasser may be a woman or man, and may be the same or opposite sex.

401.94  Responsibilities

A.  Any employee or applicant for employment who is subjected to, or witnesses conduct which is unwelcome and perceived to be harassment, or receives a report of alleged harassment should immediately report the incident(s) to his/her supervisor, or to any NRCS supervisor or manager, and/or the NRCS Civil Rights Division (CRD). 

B.  NRCS managers and supervisors are responsible for the prevention of harassment in the workplace and will take immediate and appropriate action if harassment occurs.  Managers/supervisors who fail to respond immediately and appropriately to harassment allegations may face disciplinary action. 

C.  All claims of harassment may be expressed by an employee, applicant, or customer without fear of retaliation.  All acts of retaliation or reprisal must be reported and investigated.  Individuals found to have violated prohibitions on reprisals will be subject to disciplinary action. 

401.95  Enforcement

A.  All employees are responsible for implementing the NRCS Anti-Harassment Policy. 

B.  Supervisors and Managers will:

(1)  Ensure the dissemination of the anti-harassment policy statement to all employees upon issuance, via electronic mail, and annually via new employee orientation programs, and leadership training seminars, thereafter;

(2)  Provide oversight, technical assistance, and support to NRCS employees to assure compliance with this policy;

(3)  Receive reports of alleged harassment, and be responsible for initiating preliminary inquiries into such reports; and

(4)  Take immediate and appropriate corrective action to stop harassment, if found.

C.  NRCS may separate the parties involved until the inquiry has been completed.  All parties are required to fully cooperate and participate in the investigation process.

401.96  Statutory Claims

This policy is in addition to statutory prohibitions against harassment.  Filing a report under this policy does not satisfy the requirements to initiate those procedures and obtain remedies pursuant to them, nor does it delay the time limits for initiating those procedures.  An employee who chooses to pursue statutory or collective bargaining remedies for unlawful harassment must:

(1)  Contact an Equal Employment Opportunity counselor with the NRCS Civil Rights Division (or your Collective Bargaining Agreement Union Representative, if applicable,) within 45 days from the date of the alleged harassment or personnel action, if one is involved, pursuant to 29 C.F.R. § 1614.

(2)  Initiate an appeal to the Merit Systems Protection Board (MSPB) within 30 days of an appealable adverse action, as defined in 5 C.F.R. § 1201.3.

401.97  Other Violations of the Anti-Harassment Policy

To make deliberate, false accusations of harassment violates this policy.  In such instances, the complainant will be subject to disciplinary action; however, failure to prove a claim of harassment does not constitute proof of a false and/or malicious accusation.

401.98  Education and Training

NRCS CRD will provide education and training programs to promote awareness and prevention of harassment.  These programs include informational materials about the Agency’s Anti-Harassment Policy, as well as training for responsible personnel.

[GM_230_401_G - Amendment 23 - January 2008]

Subpart H - Reserved
[GM_230_401_H - January 2008]

Part 402 - Civil Rights Policies

Subpart A – Civil Rights Accountability Procedures

402.0 Purpose and Scope
402.1 Policy
402.2 Major Authorities
402.3 Covered Actions
402.4 Reported Actions
402.5 Responsibilities and Procedures
402.6 Office of Civil Rights Accountability Case Record
402.7 NRCS Staff Office Case Report

Subpart B – Civil Rights Impact Analysis

402.10  Purpose
402.11  Background
402.12  Definitions
402.13  Objectives
402.14  Responsibilities
402.15  Actions Requiring CRIAs
402.16  Civil Rights Impact Analysis Procedures
402.17  Contents of Agency CRIA Submissions
402.18  Waivers
402.19  Monitoring and Evaluation
402.20  CRIA Certification
402.21  Sample Format for CRIA Waiver

Subpart C – Settlement Agreements

402.30  Purpose
402.31  Policy
402.32  Authorization
402.33  Administrative Proceedings
402.34  Responsibilities
402.35  Funding 

Subpart D – Filing Requirements

402.40  Purpose
402.41  Policy 





[GM_230_402 - ]

Part 403 - Special Emphasis Programs

Subpart A - Introduction

403.0  Purpose

The purpose of this subpart is to provide guidance and direction on the establishment and administration of special emphasis programs (SEPs) throughout NRCS.  SEPs address the unique concerns of members of the following groups in achieving diversity, inclusion, and equal opportunity in employment activities: 

(1)  People with disabilities

(2)  Women

(3)  Hispanics

(4)  Asian Americans and Pacific Islanders

(5)  American Indians and Alaska Natives

(6)  Black/African Americans

(7)  Gay, lesbian, bisexual, and transgender individuals

(8)  Veterans

403.1  References

A.  The following laws, rules, Executive orders, and regulations provide authority and guidance in carrying out SEPs:

(1)  Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, Equal Employment Opportunity

(2)  The Americans with Disabilities Act of 1990 and the Rehabilitation Act amendments of 1992

(3)  The Americans with Disabilities Act amendments of 2008

(4)  Section 501 of the Rehabilitation Act of 1973, as amended

(5)  The Equal Opportunity Act of 1972

(6)  The Fair Labor Standards Act (The Equal Pay Act of 1963) and 1974 amendments

(7)  The Age Discrimination in Employment Act of 1967, as amended

(8)  The Civil Service Reform Act of 1978 (requires “fair and equitable” treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or disabling condition)

(9)  The Architectural Barriers Act of 1987

(10)  The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (38 U.S.C. Section 4212)

(11)  The Veterans Education and Employment Program Amendments of 1991 (requires expanded job opportunities for veterans and disabled veterans through the (VRA), 38 U.S.C. Section 4314)

(12)  The Farm Bills of 2002 and 2008

(13)  29 CFR Part 1614, Federal Sector Equal Employment Opportunity

(14)  Executive Order 11478, Equal Employment Opportunity in Federal Government (August 12, 1969) (superseded Executive Order 11246 and parts of Executive Order 11375 applicable to the Federal Government), as amended by Executive Orders 13087 (May 28, 1998) and 13152 (May 2, 2000)

(15)  Executive Order 11701, Employment of Veterans by Federal Agencies and Government Contractors and Subcontractors (January 24, 1973)

(16)  Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency (August 11, 2000)

(17)  Executive Order 13145 (February 8, 2000) (prohibits discrimination in Federal employment based on genetic information)

(18)  Executive Order 13087 (provides that, as a matter of Federal policy, an individual’s sexual orientation may not be the basis for the denial of an employment or promotional opportunity)

(19)  Executive Order 13152 (provides for a uniform policy within the Federal Government to prohibit discrimination based on an individual’s status as a parent)

(20)  U.S. Equal Employment Opportunity Commission Management Directive 110

(21)  U.S. Equal Employment Opportunity Commission Management Directive 715

(22)  Departmental Regulation 4230-002, Special Emphasis Programs (June 4, 2009)

(23)  USDA Civil Rights Policy Statement

(24)  NRCS Civil Rights Policy Statement

B.  NRCS does not retain enforcement authority for all items listed, but they provide guidance on how the agency conducts its employment activities and informs agency actions.

403.2  Background

The term “special emphasis program” (SEP) refers to those programs that focus special attention on certain specific groups as a result of a particular law, regulation, or Executive order.  SEPs were established to address the employment-related concerns of groups not specifically included in other programs where a need for special emphasis or employment concerns of such groups has been demonstrated.  NRCS SEPs include the following:

(1)  Disability Emphasis Program

(2)  Federal Women’s Program

(3)  Hispanic Emphasis Program

(4)  Asian American/Pacific Islander Emphasis Program

(5)  American Indian/Alaska Native Emphasis Program

(6)  Black Emphasis Program

(7)  Gay, Lesbian, Bisexual, and Transgender Emphasis Program

(8)  Veterans Emphasis Program

403.3  Training

In order to manage their programs effectively, special emphasis program managers (SEPMs) must be properly trained in their roles and responsibilities. SEPMs should receive training at least within 1 year after assuming their SEPM duties.

403.4  Internal Partners

National and collateral duty SEPMs will work with internal partners (e.g., human resources, civil rights, public affairs, outreach) to obtain necessary data and information to achieve agency SEP goals. 

[GM_230_403_A - Amend. 27 - September 2010]

Subpart B - Disability Emphasis Program

403.10  Purpose

This subpart provides guidance and direction to NRCS organizational units on the development and implementation of the Disability Emphasis Program (DEP).  The purpose of the program is to provide focus on issues such as employment, retention, promotion, training, career development, and advancement opportunities affecting disabled applicants and employees in NRCS.

403.11  Policy

It is NRCS policy to conduct a positive and continuing DEP that provides equal employment opportunity for persons with disabilities in all personnel management policies and practices and in NRCS-sponsored programs and activities.

403.12  Authorities

A.  Section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 791), prohibits discrimination on the basis of disability in Federal employment and requires the Federal Government to engage in affirmative action for people with disabilities.

B.  Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 794d).

C.  Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (38 U.S.C. Section 4212).

D.  Civil Service Reform Act of 1978 requires “fair and equitable” treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or disabling condition.

E.  Americans with Disabilities Act (ADA) of 1990 covers employers in the private sector and State and local governments.  The substantive employment stands of the ADA, which are applicable to the Federal Government through the Rehabilitation Act, can be found at 42 U.S.C. Section 1211,et seq., and 42 U.S.C. Sections 12201 to 12204 and 12210.

F.  Veterans Education and Employment Program Amendments of 1991, requires expanded job opportunities for veterans and disabled veterans through the (VRA), 38 U.S.C. Section 4314.

G.  Architectural Barriers Act.

H.  Pregnancy Discrimination Act amended title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy, childbirth, or related medical conditions.

I.  Executive Order 13078, Increasing Employment of Adults with Disabilities, established the National Task Force on Employment of Adults with Disabilities (now referred to as the Presidential Task Force).

J.  Executive Order 13145 (February 8, 2000) prohibits discrimination in Federal employment based on genetic information.

K.  Executive Order 13163, Increasing the Opportunity for Individuals with Disabilities to be employed in the Federal Government, promotes an increase in the opportunities for individuals with disabilities to be employed at all levels and occupations of the Federal Government.

L.  Title VII of the Civil Rights Act of 1964, as amended and Civil Rights Act of 1991, Equal Employment Opportunity.

M.  29 CFR Part 1614, “Federal Sector Equal Employment Opportunity.”

N.  Executive Order 11478, Equal Employment Opportunity in Federal Government (August 12, 1969) (superseded Executive Order 11246 and parts of Executive Order 11375 applicable to the Federal Government), as amended by Executive Orders 13087 (May 28, 1998) and  13152 (May 2, 2000).

O.  U.S. Equal Employment Opportunity Commission Management Directive 110.

P.  U.S. Equal Employment Opportunity Commission Management Directive 715.

Q.  USDA Departmental Regulation 4230-002, Special Emphasis Programs (June 4, 2009).

403.13  Policy Objectives

The Disability Emphasis Program is an integral part of the overall equal employment opportunity (EEO) program and is designed to—

(1)  Ensure that persons with disabilities receive equal treatment in all aspects of employment.

(2)  Increase the number of persons with disabilities employed in all professional, administrative, technical, clerical, and other categories, series, and grade levels.

(3)  Provide opportunities to persons with disabilities to participate in training, career development, and leadership programs.

(4)  Encourage the participation of persons with disabilities in all NRCS-sponsored programs and activities.

(5)  Provide a network of professional support for persons with disabilities.

(6)  Provide mentoring support to persons with disabilities in the workforce.

(7)  Educate all NRCS employees by raising the level of awareness of persons with disabilities workplace issues and concerns.

403.14  Organization Structure

The DEP is an integral part of the overall equal opportunity program in NRCS.  It is coordinated through the National Disability Emphasis Program manager, who is assigned to the Outreach and Advocacy (O&A) Division and serves as the principal staff advisor to the director of the O&A Division on legislation, policies, employment, and program issues impacting persons with disabilities.

403.15  Appointment of the National DEPM

The national DEPM position is filled through competitive appointment on a permanent full-time basis.

403.16  Duties and Responsibilities of National DEPM

The national DEPM provides program leadership and direction for agencywide activities related to the DEP.  Specifically, the national DEPM—

(1)  Formulates and implements the general direction of the overall NRCS Disability Emphasis Program and evaluates the effectiveness of activities and programs toward achieving DEP objectives.

(2)  Provides training, guidance, information, and assistance to National Headquarters, regions, State managers, supervisors, and collateral duty DEPMs concerning their DEP responsibilities. In addition, the national DEPM serves as the principal resource person and staff advisor on legislation, affirmative employment programs, and unique concerns and problems related to equal opportunities for employees with disabilities.

(3)  Analyzes and evaluates employment policies, practices, procedures, and workforce profile data to determine if barriers or potential barriers to full participation exist and reports findings to the appropriate officials with recommendations for corrective action.  This includes participation in the development and monitoring of the agency’s civil rights program, plans, and reports (e.g., EEOC’s MD-715, EEO Program Status Report, and reports relating to employees with disabilities in the Federal Government).

(4)  Establishes and strengthens relationships with organizations and groups representing persons with disabilities.

(5)  Maintains relationships with DEPMs from other agencies and organizations that represent people with disabilities for the mutual exchange of ideas, advice, best practices, and information.

(6)  Serves as the NRCS representative on the Department’s DEP committee.

(7)  Participates in studies and reviews to identify possible forms of discrimination and barriers to equal opportunity in employment activities (e.g., recruitment, hiring, development, promotion, development, recognition and awards, and retention).

(8)  Serves as the principal resource for the director of the O&A Division by providing assistance on national reporting requirements and tasks related to special emphasis programs and provides training, guidance, and assistance to collateral duty national special emphasis program managers.

403.17  Appointment of Collateral Duty DEPMs

A.  Deputy equal opportunity officers (DEOOs) appoint collateral duty DEPMs within their jurisdictional areas.  The collateral duty DEPMs report directly to the DEOOs on issues impacting employees or applicants with disabilities.

B.  A collateral duty DEPM should devote 20 percent of his or her time to the program.  It is recommended that the DEPM serve on a collateral duty basis for a 3-year term.  At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term.

C.  Criteria for selection should include sensitivity to disability issues, ability to function effectively under pressure, and commitment to EEO and the DEP.

403.18  Duties and responsibilities of Collateral Duty DEPMs


Collateral duty DEPMs provide program leadership and support the national DEPM in implementing a viable DEP agencywide.  The national DEPM provides technical guidance and the collateral duty DEPM and ensures that DEP activities are integrated into the overall equal opportunity program in the organizational unit.  In their organizational units, the collateral duty DEPMs—

(1)  Advise the directors and State Conservationists on matters affecting the employment and advancement of persons with disabilities.

(2)  Serve as members to the civil rights committee in their organizational units to ensure that all NRCS activities are free from discrimination and that barriers to the recruitment, employment, and advancement of persons with disabilities are addressed.  DEPMs assist in evaluating the effectiveness of the overall equal opportunity program in their organizational units and assist in identifying new and changing program needs.

(3)  Coordinate or conduct educational programs (e.g., workshops, seminars, or other types of programs, such as DEP observances).

(4)  Maintain close contact with community organizations for possible job referrals of applicants with disabilities and stay attuned to concerns of persons with disabilities in the community.

(5)  Attend job fairs or other functions at local high schools, colleges, and universities to obtain names of applicants and provide information on job opportunities; send recruitment literature to schools and community groups; sponsor workshops and speakers, information booths at conferences, career days, and other training programs.

(6)  Keep the national DEPM informed of field activities affecting persons with disabilities.

(7)  Serve as local representative at national, regional, and State meetings concerning persons with disabilities.

(8)  Serve as communication link between employees and the national DEPM, keeping State employees aware of DEP activities and developmental opportunities through electronic messages, memos, bulletins, newsletters, and other appropriate means.

(9)  Perform other duties related to the DEP as identified by the DEOO, national DEPM, and DEP committees, as appropriate.

403.19  Documenting DEPM Collateral Assignments

A.  The DEPM’s collateral duty will be described in writing as part of his or her position description and show—

(1)  Scope of responsibility.

(2)  Supervisory roles of DEOO, equal opportunity liaison officer and the immediate supervisor.

(3)  Percentage of official time to be spent on the DEP.

(4)  Specific duties and responsibilities of the collateral assignment.

B.  In addition, the DEOO, equal opportunity liaison officer, and the immediate supervisor will prepare a memorandum of understanding (see subpart J) that responds to the following questions regarding working conditions:

(1)  How and when will the appointee receive DEP assignments?

(2)  What percentage of official time will be spent on the DEP, and how will adjustments be made to meet DEP objectives?

(3)  Who will appraise the appointee’s performance and how will the appraisals be completed?

(4)  Who will provide clerical support and office facilities, if needed?

403.20  Annual Business Plan of Operation

A.  Annual business plans of operation are important management tools that are effective in gauging progress in meeting short- and long-term goals and in scheduling annual program activities.  They also provide the basis for determining the performance of managers in specific areas of responsibility.

B.  Collateral duty DEPMs will develop results-oriented annual business plan of operations.  The annual plan should contain realistic and achievable action items in accordance with this subpart.

403.21  Reports

A.  Collateral duty State DEPMs will submit quarterly activity reports to the national DEPM.

B.  Collateral duty State DEPMs will submit an annual report to the national DEPM highlighting major accomplishments during the fiscal year.

[GM_230_403_B - Amend. 27 - October 2010]

Subpart C - Federal Women's Program

403.30  Purpose

This subpart provides guidance and direction to NRCS organizational units on the development and implementation of the Federal Women’s Program (FWP).  The purpose of the program is to provide focus on issues such as employment, retention, promotion, training, career development, and advancement opportunities affecting female employees and applicants in NRCS.

403.31  Policy

It is NRCS policy to conduct a positive and continuing FWP that provides equal employment opportunity for women in all personnel management policies and practices and in NRCS sponsored programs and activities.

403.32  Authorities

A.  The Federal Women's Program (FWP).—This program was established to implement a recommendation of the President's Committee on the Status of Women and was later integrated into the Federal Equal Employment Opportunity (EEO) Program after the issuance of Executive Order 11478 (August 1969).  The activities of the FWP focus on employment needs and problems of women as they relate to Federal personnel policies and practices.

B.  Executive Order 11375 (October 1967) added sex to other prohibited forms of discrimination in the Federal Government.

C.  Executive Order 11478 (August 1969) integrated the FWP into the overall EEO Program and placed the FWP under the directors of EEO. Federal Personnel Manual 713 was issued to carry out Executive Order 11478, and Federal Personnel Manual 713.9, dated May 29, 1970, directed directors of EEO to have a manager for the Federal Women’s Program on staff.

D.  The Civil Rights Act of 1964 was amended in March 1972 to apply equal opportunity protection in employment to the Federal Government.  The designation of a Federal Women’s Program manager was codified in 29 CFR Section 1614.102 as appropriate for carrying out equal employment opportunity functions in all organizational units of an agency and at all agency installations.

E.  Title VII of the Civil Rights Act of 1964, as amended and Civil Rights Act of 1991, Equal Employment Opportunity.

F.  The Civil Service Reform Act of 1978 requires “fair and equitable” treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or disabling condition.

G.  29 CFR Part 1614, Federal Sector Equal Employment Opportunity.

H.  Executive Order 11478, Equal Employment Opportunity in Federal Government (August 12, 1969) (superseded Executive Orders 11246 and parts of 11375 applicable to the Federal Government) as amended by Executive Orders 13087 (May 28, 1998) and 13152, of May 2, 2000.

I.  U.S. Equal Employment Opportunity Commission Management Directive 110.

J.  U.S. Equal Employment Opportunity Commission Management Directive 715.

K.  USDA Departmental Regulation 4230-002, Special Emphasis Programs (June 4, 2009).

403.33  Policy Objectives

The Federal Women’s Program is an integral part of the overall EEO program and is designed to—

(1)  Ensure that the women receive equal treatment in all aspects of employment.

(2)  Increase the number of women employed in all professional, administrative, technical, clerical, and other categories, series, and grade levels.

(3)  Provide opportunities to participate in training, career development, and leadership programs.

(4)  Encourage the participation of women in all NRCS-sponsored programs and activities.

(5)  Provide a network of professional support for women.

(6)  Provide mentoring support to women in the workforce.

(7)  Educate all NRCS employees by raising the level of awareness of women’s workplace issues and concerns.

403.34  Organizational Structure

The FWP is an integral part of the overall equal opportunity program in NRCS.  It is coordinated through the national Federal Women’s Program manager (national FWPM), who is assigned to the Outreach and Advocacy (O&A) Division and serves as the principal staff advisor to the director of the O&A Division on legislation, policies, employment, and program issues impacting women.

403.35  Appointment of the National FWPM

The national FWPM position is filled through competitive appointment on a permanent full-time basis.

403.36  Duties and Responsibilities of National FWPM

The national FWPM is responsible for providing program leadership and direction for agency-wide activities related to the FWP.  Specifically, the National FWPM—

(1)  Formulates and implements the general direction of the overall NRCS Federal Women’s Program and evaluates the effectiveness of activities and programs toward achieving FWP objectives.

(2)  Provides training, guidance, information, and assistance to National Headquarters, regions, State managers, supervisors, and collateral duty FWPMs concerning their FWP responsibilities. In addition, the national FWPM serves as the principal resource person and staff advisor on legislation, affirmative employment programs, and unique concerns and problems related to equal opportunities for women employees.

(3)  Analyzes and evaluates employment policies, practices, procedures, and workforce profile data to determine if barriers or potential barriers to full participation exist and reports findings to the appropriate officials with recommendations for corrective action.  This includes participation in the development and monitoring of the agency’s civil rights program, plans, and reports (e.g., EEOC’s MD-715, EEO Program Status Report, and reports relating to women in the Federal Government).

(4)  Establishes and strengthens relationships with organizations and groups representing women.

(5)  Maintains relationships with FWPMs from other agencies and women’s organizations for the mutual exchange of ideas, advice, best practices, and information.

(6)  Serves as the NRCS representative on the Department’s FWP committee.

(7)  Participates in studies and reviews to identify possible forms of discrimination and barriers to equal opportunity in employment activities (e.g., recruitment, hiring, development, promotion, recognition and awards, and retention).

(8)  Serves as the principal resource for the director of the O&A Division by providing assistance on national reporting requirements and tasks related to special emphasis programs and provides training, guidance, and assistance to collateral duty national special emphasis program managers.

403.37  Appointment of Collateral Duty FWPMs

A. Deputy equal opportunity officers (DEOOs) appoint collateral duty FWPMs within their jurisdictional areas.  The collateral duty FWPMs report directly to the DEOOs on issues impacting women.

B. A collateral duty FWPM should devote 20 percent of his or her time to the program.  It is recommended that the FWPM serve on a collateral duty basis for a 3-year term. At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term.

C. Criteria for selection should include sensitivity to women’s workplace issues, ability to function effectively under pressure, and commitment to EEO and the FWP.

403.38  Duties and Responsibilities of Collateral Duty FWPMs

Collateral duty FWPMs provide program leadership and support the national FWPM in implementing a viable FWP agencywide.  The national FWPM provides technical guidance and the collateral duty FWPM and ensures that FWP activities are integrated into the overall equal opportunity program in the organizational unit.  In their organizational units, the collateral duty FWPMs—

(1)  Advise the directors and State Conservationists on matters affecting the employment and advancement of women in the workplace.

(2)  Serve as members to the civil rights committee in their organizational units to ensure that all NRCS activities are free from discrimination and that barriers to the recruitment, employment, and advancement of women are addressed.  FWPMs assist in evaluating the effectiveness of the overall equal opportunity program in their organizational units and assist in identifying new and changing program needs.

(3)  Coordinate or conduct educational programs (e.g., workshops, training seminars, or other types of programs such as FWP history observances).

(4)  Maintain close contact with community organizations for possible job referrals of women applicants and stay attuned to concerns of women producers in the community.

(5)  Attend job fairs or other functions at local high schools, colleges, and universities to obtain names of applicants and provide information on job opportunities; send recruitment literature to schools and community groups; sponsor workshops and speakers, information booths at conferences, career days, and other training programs.

(6)  Keep the national FWPM informed of field activities affecting women in the workplace.

(7)  Serve as local representatives at national, regional, and State meetings concerning women’s workplace issues.

(8)  Serve as communication link between employees and the national FWPM, keeping State employees aware of FWP activities and developmental opportunities through electronic messages, memos, bulletins, newsletters, and other appropriate means.

(9)  Perform other duties related to the FWP as identified by the DEOO, national FWPM, and FWP committees, as appropriate.

403.39  Documenting FWPM Collateral Assignments

A.  The FWPM’s collateral duty will be described in writing as part of his or her position description and show—

(1)  Scope of responsibility.

(2)  Supervisory roles of DEOO, equal opportunity liaison officer, and the immediate supervisor.

(3)  Percentage of official time to be spent on the FWP.

(4)  Specific duties and responsibilities of the collateral assignment.

B.  In addition, the DEOO, equal opportunity liaison officer, and the immediate supervisor will prepare a memorandum of understanding (see subpart J) that responds to the following questions regarding working conditions:

(1)  How and when will the appointee receive FWP assignments?

(2)  What percentage of official time will be spent on the FWP, and how will adjustments be made to meet FWP objectives?

(3)  Who will appraise the appointee’s performance, and how will the appraisals be completed?

(4)  Who will provide clerical support and office facilities, if needed?

403.40  Annual Business Plan of Operation

A.  Annual business plans of operation are important management tools that are effective in gauging progress in meeting short- and long-term goals and in scheduling annual program activities.  They also provide the basis for determining the performance of managers in specific areas of responsibility.

B.  Collateral duty FWPMs will develop results-oriented annual business plan of operations.  The annual plan should contain realistic and achievable action items in accordance with this subpart.

403.41  Reports

A.  Collateral duty State FWPMs will submit quarterly activity reports to the national Federal Women’s Program manager.

B.  Collateral duty State FWPMs will submit an annual report to the national Women’s Program manager highlighting major accomplishments during the fiscal year.

m manager highlighting major accomplishments during the fiscal year.

[GM_230_403_C - Amend. 27 - October 2010]

Subpart D - Hispanic Emphasis Program

403.50  Purpose

This subpart provides guidance and direction to NRCS organizational units on the development and implementation of the Hispanic Emphasis Program (HEP).  The purpose of the program is to provide focus on issues such as employment, retention, promotion, training, career development, and advancement opportunities affecting Hispanic applicants and employees at NRCS.

403.51  Policy

It is NRCS policy to conduct a positive and continuing HEP that provides equal employment opportunity for Hispanics in all personnel management policies and practices and in NRCS-sponsored programs and activities.

403.52  Authorities

A.  In 1970, President Nixon issued a comprehensive 16-Point Federal employment plan aimed at increasing employment of Hispanic in the Federal workforce.  In 1973, the program was renamed “Spanish-Speaking Program” to emphasize bilingual skills, and in 1978, the program was again renamed to what it is known as today, the “Hispanic Employment Program.”

B.  Additional authorities and guidance on HEP and establishing HEPM positions appear in Federal Personnel Manual (FPM) Letters 713-18 and 713-23.

C.  In 1997, the Office of Personnel Management (OPM) launched its nine-point plan to recruit qualified Hispanics for Government service and improve their opportunities to advance.

D.  In October 2000, President Clinton issued Executive Order 13171, Hispanic Employment in the Federal Government.  This order instructed Federal agencies to ameliorate disparities in Hispanic employment in the Federal government.

E.  In furtherance of Executive Order 13171, OPM has issued annual reports to the President on the progress of efforts to increase Hispanic employment in the Federal government.

F.  Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, Equal Employment Opportunity.

G.  The Civil Service Reform Act of 1978 requires “fair and equitable” treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or disabling condition.

H.  29 CFR Part 1614, Federal Sector Equal Employment Opportunity.

I.  Executive Order 11478, Equal Employment Opportunity in Federal Government (August 12, 1969) (superseded Executive Order 11246 and parts of Executive Order 11375 applicable to the Federal Government), as amended by Executive Orders 13087 (May 28, 1998) and  13152 (May 2, 2000).

J.  U.S. Equal Employment Opportunity Commission Management Directive 110.

K.  U.S. Equal Employment Opportunity Commission Management Directive 715.

L.  Departmental Regulation 4230-002, Special Emphasis Programs (June 4, 2009).

403.53  Program Objectives

The Hispanic Emphasis Program is an integral part of the overall equal employment opportunity (EEO) program and is designed to—

(1)  Ensure that Hispanics receive equal treatment in all aspects of employment.

(2)  Increase the number of Hispanics employed in all professional, administrative, technical, clerical, and other categories, series, and grade levels.

(3)  Provide opportunities to participate in training, career development, and leadership programs.

(4)  Encourage the participation of Hispanics in all NRCS-sponsored programs and activities.

(5)  Provide a network of professional support for Hispanics.

(6)  Provide mentoring support to Hispanics in the workforce.

(7)  Educate all NRCS employees by raising the level of awareness of Hispanic workplace issues and concerns.

403.54  Organizational Structure

The HEP is an integral part of the overall equal opportunity program in NRCS.  It is coordinated through the national Hispanic Emphasis Program manager (HEPM), who is assigned to the Outreach and Advocacy (O&A) Division and serves as the principal staff advisor to the director of the O&A Division on legislation, policies, employment, and program issues impacting Hispanics.

403.55  Appointment of the National HEPM

The national HEPM position is filled through competitive appointment on a permanent full-time basis.

403.56  Duties and Responsibilities of National HEPM

The national HEPM provides program leadership and direction for agencywide activities related to the HEP.  Specifically, the national HEPM—

(1)  Formulates and implements the general direction of the overall NRCS Hispanic Emphasis Program and evaluates the effectiveness of activities and programs toward achieving HEP objectives.

(2)  Provides training, guidance, information, and assistance to National Headquarters, regions, State managers, supervisors, and collateral duty HEPMs concerning their HEP responsibilities. In addition, the national HEPM serves as the principal resource person and staff advisor on legislation, affirmative employment programs, and unique concerns and problems related to equal opportunities for Hispanic employees.

(3)  Analyzes and evaluates employment policies, practices, procedures, and workforce profile data to determine if barriers or potential barriers to full participation exist and reports findings to the appropriate officials with recommendations for corrective action.  This includes participation in the development and monitoring of the agency’s civil rights program, plans, and reports (e.g., EEOC’s MD-715, EEO Program Status Report, and reports relating to Hispanics in the Federal Government).

(4)  Establishes and strengthens relationships with organizations and groups representing the Hispanic community.

(5)  Maintains relationships with HEPMs from other agencies and Hispanic organizations for the mutual exchange of ideas, advice, best practices, and information.

(6)  Serves as the NRCS representative on the Department’s HEP committee.

(7)  Participates in studies and reviews to identify possible forms of discrimination and barriers to equal opportunity in employment activities (e.g., recruitment, hiring, development, promotion, recognition and awards, and retention).

(8)  Serves as the principal resource for the director of the O&A Division by providing assistance on national reporting requirements and tasks related to special emphasis programs and provides training, guidance, and assistance to the collateral duty national special emphasis program managers.

403.57  Appointment of Collateral Duty HEPMs

A.  Deputy equal opportunity officers (DEOOs) appoint collateral duty HEPMs within their jurisdictional areas.  The collateral duty HEPMs report directly to the DEOOs on issues impacting Hispanics.

B.  A collateral duty HEPM should devote 20 percent of his or her time to the program. It is recommended that the HEPM serve on a collateral duty basis for a 3-year term. At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term.

C.  Criteria for selection should include bilingual or bicultural background (where possible), sensitivity to the Hispanic community, ability to function effectively under pressure, and commitment to EEO and the HEP.

403.58  Duties and Responsibilities of Collateral Duty HEPM

Collateral duty HEPMs provide program leadership and support the national HEPM in implementing a viable HEP agencywide.  The national HEPM provides technical guidance, and the collateral duty HEPM ensures that HEP activities are integrated into the overall equal opportunity program in the organizational unit.  In their organizational units, the collateral duty HEPMs—

(1)  Advise the directors and State Conservationists on matters affecting the employment and advancement of Hispanics.

(2)  Serve as members to the civil rights committee in their organizational units to ensure that all NRCS activities are free from discrimination and that barriers to the recruitment, employment, and advancement of Hispanics are addressed.  HEPMs assist in evaluating the effectiveness of the overall equal opportunity program in their organizational units and assist in identifying new and changing program needs.

(3)  Coordinate or conduct educational programs (e.g., workshops, seminars, or other types of programs, such as HEP observances).

(4)  Maintain close contact with community organizations for possible job referrals of Hispanic applicants and stay attuned to concerns of the Hispanic population.

(5)  Attend job fairs or other functions at local high schools, colleges, and universities to obtain names of applicants and provide information on job opportunities; send recruitment literature to schools and community groups; sponsor workshops and speakers, information booths at conferences, career days, and other training programs.

(6)  Keep the national HEPM informed of field activities affecting Hispanics.

(7)  Serve as local representative at national, regional, and State meetings concerning Hispanic issues.

(8)  Serve as a communication link between employees and the national HEPM, keeping State employees aware of HEP activities and developmental opportunities through electronic messages, memos, bulletins, newsletters, and other appropriate means.

(9)  Perform other duties related to the HEP as identified by the DEOO, national HEPM, and HEP committees, as appropriate.

403.59  Documenting HEPM Collateral Assignments

A.  The HEPM’s collateral duty will be described in writing as part of his or her position description and show—

(1)  Scope of responsibility.

(2)  Supervisory roles of DEOO, equal opportunity liaison officer, and the immediate supervisor.

(3)  Percentage of official time to be spent on the HEP.

(4)  Specific duties and responsibilities of the collateral assignment.

B. In addition, the DEOO, equal opportunity liaison officer, and the immediate supervisor will prepare a memorandum of understanding (see subpart J) that responds to the following questions regarding working conditions:

(1)  How and when will the appointee receive HEP assignments?

(2)  What percentage of official time will be spent on the HEP, and how will adjustments be made to meet HEP objectives?

(3)  Who will appraise the appointee’s performance, and how will the appraisals be completed?

(4)  Who will provide clerical support and office facilities, if needed?

403.60  Definition

A Hispanic, Latino, or Latina is a person of Mexican, Puerto Rican, Cuban, South or Central American, or other Spanish culture or origin, regardless of race.  People who identify their origin as Spanish, Hispanic, or Latino may be of any race or color.

403.61  Annual Business Plan of Operation

A.  Annual business plans of operation are important management tools that are effective in gauging progress in meeting short- and long-term goals and in scheduling annual program activities.  They also provide the basis for determining the performance of managers in specific areas of responsibility.

B.  Collateral duty HEPMs will develop results-oriented annual business plan of operations.  The annual plan should contain realistic and achievable action items in accordance with this subpart.

403.62  Reports

A.  Collateral duty HEPMs will submit quarterly activity reports to the national Hispanic Emphasis Program manager.

B. Collateral duty HEPMs will submit an annual report to the national Hispanic Emphasis Program manager highlighting major accomplishments during the fiscal year.

[GM_230_403_D - Amend. 27 - October 2010]

Subpart E - Asian American/Pacific Islander Emphasis Program

403.70  Purpose

This subpart provides guidance and direction to NRCS organizational units on the development and implementation of the Asian American/Pacific Islander Emphasis Program (AA/PIEP). The purpose of the program is to provide focus on such issues as employment, retention, promotion, training, career development, and advancement opportunities affecting Asian American and Pacific Islander applicants and employees at NRCS.

403.71  Policy

It is NRCS policy to conduct a positive and continuing AA/PIEP that provides equal employment opportunity for Asian Americans and Pacific Islanders in all personnel management policies and practices and in NRCS-sponsored programs and activities.

403.72  Authorities

A.  Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, Equal Employment Opportunity.

B.  The Civil Service Reform Act of 1978 requires “fair and equitable” treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or disabling condition.

C.  29 CFR Part 1614, Federal Sector Equal Employment Opportunity.

D.  Executive Order 11478, Equal Employment Opportunity in Federal Government (August 12, 1969) (superseded Executive Order 11246 and parts of Executive Order 11375 applicable to the Federal Government), as amended by Executive Orders 13087 (May 28, 1998) and  13152 (May 2, 2000).

E.  U.S. Equal Employment Opportunity Commission Management Directive 110.

F.  U.S. Equal Employment Opportunity Commission Management Directive 715.

G.  USDA Departmental Regulation 4230-002, Special Emphasis Programs (June 4, 2009).

403.73  Program Objectives

The Asian American/Pacific Islander Emphasis Program is an integral part of the overall equal employment opportunity (EEO) program and is designed to—

(1)  Ensure that Asian Americans and Pacific Islanders receive equal treatment in all aspects of employment.

(2)  Increase the number of Asian Americans and Pacific Islanders employed in all professional, administrative, technical, clerical, and other categories, series, and grade levels.

(3)  Provide opportunities to participate in training, career development, and leadership programs.

(4)  Encourage the participation of Asian Americans and Pacific Islanders in all NRCS-sponsored programs and activities.

(5)  Provide a network of professional support for Asian Americans and Pacific Islanders in the workplace.

(6)  Provide mentoring support to Asian Americans and Pacific Islanders in the workforce.

(7)  Educate all NRCS employees by raising the level of awareness of Asian American and Pacific Islander workplace issues and concerns.

403.74  Organizational Structure

The AA/PIEP is an integral part of the overall equal opportunity program in NRCS.  It is coordinated through the collateral duty national Asian American/Pacific Islander Emphasis Program manager (AA/PIEPM), who is assigned to the Outreach and Advocacy (O&A) Division and serves as the principal staff advisor to the director of the O&A Division on legislation, policies, employment, and program issues impacting Asian Americans and Pacific Islanders.

403.75  Appointment of the Collateral Duty National AA/PIEPM

A.  The collateral duty national AA/PIEPM vacancy is announced every 3 years, or on an as-needed basis, through a national bulletin and filled through a competitive process.  The position is a collateral assignment and appointed by the director of the Outreach and Advocacy Division. 

B.  The national AA/PIEPM serves on a collateral duty basis for a 3-year term.  At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term. 

C.  The collateral duty national AA/PIEPM is required to dedicate 20 percent of his or her official time to performing national AA/PIEPM-related assignments.

403.76  Duties and Responsibilities of the Collateral Duty National AA/PIEPM

The collateral duty national AA/PIEPM is responsible for providing program leadership and direction for agencywide activities related to the AA/PIEP.  Specifically, the collateral duty national AA/PIEPM—

(1)  Formulates and implements the general direction of the overall NRCS Asian American/Pacific Islander Emphasis Program and evaluates the effectiveness of activities and programs toward achieving AA/PIEP objectives.

(2)  Provides training, guidance, information, and assistance to National Headquarters, regions, State managers, supervisors, and collateral duty State and center AA/PIEPMs concerning their AA/PIEP responsibilities.  In addition, the collateral duty national AA/PIEPM serves as the principal resource person and staff advisor on legislation, affirmative employment programs, and unique concerns and problems related to equal opportunities for Asian American and Pacific Islander employees.

(3)  Analyzes and evaluates employment policies, practices, procedures, and workforce profile data to determine if barriers or potential barriers to full participation exist and report findings to the appropriate officials with recommendations for corrective action. 

(4)  Establishes and strengthens relationships with organizations and groups representing the Asian American and Pacific Islander agriculture communities.

(5)  Maintains relationships with AA/PIEPMs from other agencies and Asian American and Pacific Islander organizations for the mutual exchange of ideas, advice, best practices, and information.

(6)  Serves as the NRCS representative on the Department’s AA/PIEP committee.

(7)  Participates in studies and reviews to identify possible forms of discrimination and barriers to equal opportunity in employment activities (e.g., recruitment, hiring, development, promotion, recognition and awards, retention).

403.77  Appointment of Collateral Duty State and Center AA/PIEPMs

A.  Deputy equal opportunity officers (DEOOs) appoint collateral duty State and center AA/PIEPMs within their jurisdictional areas.  Collateral duty AA/PIEPMs report directly to the DEOOs on issues impacting Asian Americans and Pacific Islanders.

B.  A collateral duty AA/PIEPM should devote 20 percent of his or her time to the program. It is recommended that the AA/PIEPM serve on a collateral duty basis for a 3-year term.  At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term.

C.  Criteria for selection should include sensitivity to the Asian American and Pacific Islander community, ability to function effectively under pressure, and commitment to EEO and the AA/PIEP.

403.78  Duties and Responsibilities of Collateral Duty State and Center AA/PIEPMs

Collateral duty State and center AA/PIEPMs provide program leadership and support the collateral duty national AA/PIEPM in implementing a viable AA/PIEP agencywide.  The collateral duty national AA/PIEPM provides technical guidance and the collateral duty State or center AA/PIEPM ensures that AA/PIEP activities are integrated into the overall equal opportunity program in the organizational unit.  In their organizational units, the collateral duty State and center AA/PIEPMs—

(1)  Advise the directors and State Conservationists on matters affecting the employment and advancement of Asian Americans and Pacific Islanders.

(2)  Serve as members to the civil rights committee in their organizational units to ensure that all NRCS activities are free from discrimination and that barriers to the recruitment, employment, and advancement of Asian Americans and Pacific Islanders are addressed. AA/PIEPMs assist in evaluating the effectiveness of the overall equal opportunity program in their organizational units and assist in identifying new and changing program needs.

(3)  Coordinate or conduct educational programs (e.g., workshops, seminars, or other types of programs, such as AA/PIEP observances).

(4)  Maintain close contact with community organizations for possible job referrals of Asian American and Pacific Islander applicants and stay attuned to concerns of the Asian American and Pacific Islander populations.

(5)  Attend job fairs or other functions at local high schools, colleges, and universities to obtain names of applicants and provide information on job opportunities; send recruitment literature to schools and community groups; sponsor workshops and speakers, information booths at conferences, career days, and other training programs.

(6)  Keep the national AA/PIEPM informed of field activities affecting Asian Americans and Pacific Islanders.

(7)  Serve as local representative at national, regional, and State meetings concerning Asian American and Pacific Islander issues.

(8)  Serve as a communication link between employees and the national AA/PIEPM, keeping State employees aware of AA/PIEP activities and developmental opportunities through electronic messages, memos, bulletins, newsletters, and other appropriate means.

(9)  Perform other duties related to the AA/PIEP as identified by the DEOO, national AA/PIEPM, and AA/PIEP committees, as appropriate.

403.79  Documenting State and Center AA/PIEPM Assignments

A.  The State or center AA/PIEPM’s collateral duty will be described in writing as part of his or her position description and show—

(1)  Scope of responsibility.

(2)  Supervisory roles of DEOO, equal opportunity liaison officer, and the immediate supervisor.

(3)  Percentage of official time to be spent on the AA/PIEP.

(4)  Specific duties and responsibilities of the collateral assignment.

B.  In addition, the DEOO, equal opportunity liaison officer, and the immediate supervisor will prepare a memorandum of understanding (see subpart J) that responds to the following questions regarding working conditions:

(1)  How and when will the appointee receive AA/PIEP assignments?

(2)  What percentage of official time will be spent on the AA/PIEP, and how will adjustments be made to meet AA/PIEP objectives?

(3)  Who will appraise the appointee’s performance, and how will the appraisals be completed?

(4)  Who will provide clerical support and office facilities, if needed?

403.80  Definition 

An Asian American or Pacific Islander is a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent (for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam).

403.81  Annual Business Plan of Operation

A.  Annual business plans of operation are important management tools that are effective in gauging progress in meeting short- and long-term goals and in scheduling annual program activities.  They also provide the basis for determining the performance of managers in specific areas of responsibility.

B.  Collateral duty State and center AA/PIEPMs will develop results-oriented annual business plan of operations.  The annual plan should contain realistic and achievable action items in accordance with this subpart.

403.82  Reports

A.  Collateral duty State and center AA/PIEPMs will submit quarterly activity reports to the collateral duty national Asian American/Pacific Islander Program manager.

B.  Collateral State and center duty AA/PIEPMs will submit an annual report to the collateral duty national Asian American/Pacific Islander Emphasis Program manager highlighting major accomplishments during the fiscal year.

[GM_230_403_E - Amend. 27 - October 2010]

Subpart F - American Indian/Alaska Native Emphasis Program

403.90  Purpose

This subpart provides guidance and direction to NRCS organizational units on the development and implementation of the American Indian/Alaska Native Emphasis Program (AI/ANEP).  The purpose of the program is to provide focus on such issues as employment, retention, promotion, training, career development, and advancement opportunities affecting American Indian and Alaska Native employees and applicants at NRCS.

403.91  Policy

It is NRCS policy to conduct a positive and continuing AI/ANEP that provides equal employment opportunity for American Indians and Alaska Natives in all personnel management policies and practices and in NRCS-sponsored programs and activities.

403.92  Authorities

A.  Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, Equal Employment Opportunity

B.  The Civil Service Reform Act of 1978 (requires “fair and equitable” treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or disabling condition)

C.  29 CFR Part 1614, “Federal Sector Equal Employment Opportunity”

D.  Executive Order 11478, Equal Employment Opportunity in Federal Government (August 12, 1969) (superseded Executive Order 11246 and parts of Executive Order 11375 applicable to the Federal Government), as amended by Executive Orders 13087 (May 28, 1998) and  13152 (May 2, 2000)

E.  U.S. Equal Employment Opportunity Commission Management Directive 110

F.  U.S. Equal Employment Opportunity Commission Management Directive 715

G.  Departmental Regulation 4230-002, Special Emphasis Programs (June 4, 2009)

403.93  Program Objectives

The American Indian/Alaska Native Emphasis Program is an integral part of the overall equal employment opportunity (EEO) program and is designed to—

(1)  Ensure that American Indians and Alaska Natives receive equal treatment in all aspects of employment.

(2)  Increase the number of American Indians and Alaska Natives employed in all professional, administrative, technical, clerical, and other categories, series, and grade levels.

(3)  Provide opportunities to participate in training, career development, and leadership programs.

(4)  Encourage the participation of American Indians and Alaska Natives in all NRCS-sponsored programs and activities.

(5)  Provide a network of professional support for American Indians and Alaska Natives.

(6)  Provide mentoring support to American Indians and Alaska Natives in the workforce.

(7)  Educate all NRCS employees by raising the level of awareness of American Indian and Alaska Native workplace issues and concerns.

403.94  Organizational Structure

The AI/ANEP is an integral part of the overall equal opportunity program in NRCS.  It is coordinated through the collateral duty national American Indian/Alaska Native Emphasis Program manager (AI/ANEPM), who is assigned to the Outreach and Advocacy (O&A) Division and serves as the principal staff advisor to the director of the O&A Division on legislation, policies, employment, and program issues impacting American Indians and Alaska Natives.

403.95  Appointment of the Collateral Duty National AI/ANEPM

A.  The collateral duty national AI/ANEPM vacancy is announced every 3 years, or on an as-needed basis, through a national bulletin and filled through a competitive process.  The position is a collateral assignment and appointed by the director of the O&A Division. 

B.  The national AI/ANEPM serves on a collateral duty basis for a 3-year term.  At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term. 

C.  The collateral duty national AI/ANEPM is required to dedicate 20 percent of his or her official time to performing national AI/ANEPM-related assignments.

403.96  Duties and Responsibilities of the Collateral Duty National AI/ANEPM

The collateral duty national AI/ANEPM is responsible for providing program leadership and direction for agencywide activities related to the AI/ANEP.  Specifically, the collateral duty national AI/ANEPM—

(1)  Formulates and implements the general direction of the overall NRCS American Indian/Alaska Native Emphasis Program and evaluates the effectiveness of activities and programs toward achieving AI/ANEP objectives.

(2)  Provides training, guidance, information, and assistance to National Headquarters, regions, State managers, supervisors, and collateral duty State and center AI/ANEPMs concerning their AI/ANEP responsibilities.  In addition, the collateral duty national AI/ANEPM serves as the principal resource person and staff advisor on legislation, affirmative employment programs, and unique concerns and problems related to equal opportunities for American Indian and Alaska Native employees.

(3)  Analyzes and evaluates employment policies, practices, procedures, and workforce profile data to determine if barriers or potential barriers to full participation exist and report findings to the appropriate officials with recommendations for corrective action. 

(4)  Establishes and strengthens relationships with organizations and groups representing the American Indian and Alaska Native communities.

(5)  Maintains relationships with AI/ANEPMs from other agencies and American Indian and Alaska Native organizations for the mutual exchange of ideas, advice, best practices, and information.

(6)  Serves as the NRCS representative on the Department’s AI/ANEP committee.

(7)  Participates in studies and reviews to identify possible forms of discrimination and barriers to equal opportunity in employment activities (e.g., recruitment, hiring, development, promotion, recognition and awards, and retention).

403.97  Appointment of Collateral Duty State and Center AI/ANEPMs

A.  Deputy equal opportunity officers (DEOOs) appoint collateral duty State and center AI/ANEPMs within their jurisdictional areas.  Collateral duty AI/ANEPMs report directly to the DEOOs on issues impacting American Indians and Alaska Natives.

B.  A collateral duty AI/ANEPM should devote 20 percent of his or her time to the program.  It is recommended that the AI/ANEPM serve on a collateral duty basis for a 3-year term.  At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term.

C.  Criteria for selection should include sensitivity to the American Indian and Alaska Native communities, ability to function effectively under pressure, and commitment to EEO and the AI/ANEP.

403.98  Duties and Responsibilities of Collateral Duty State and Center AI/ANEPMs

Collateral duty State and center AI/ANEPMs provide program leadership and support the collateral duty national AI/ANEPM in implementing a viable AI/ANEP agencywide.  The collateral duty national AI/ANEPM provides technical guidance, and the collateral duty State or center AI/ANEPM ensures that AI/ANEP activities are integrated into the overall equal opportunity program in the organizational unit.  In their organizational units, the collateral duty State and center AI/ANEPMs—

(1)  Advise the directors and State Conservationists on matters affecting the employment and advancement of American Indians and Alaska Natives.

(2)  Serve as members to the civil rights committee in their organizational units to ensure that all NRCS activities are free from discrimination and that barriers to the recruitment, employment, and advancement of American Indians and Alaska Natives are addressed.  AI/ANEPMs assist in evaluating the effectiveness of the overall equal opportunity program in their organizational units and assist in identifying new and changing program needs.

(3)  Coordinate or conduct educational programs (e.g., workshops, seminars, or other types of programs, such as AI/ANEP observances).

(4)  Maintain close contact with community organizations for possible job referrals of American Indian and Alaska Native applicants and stay attuned to concerns of the American Indian and Alaska Native populations.

(5)  Attend job fairs or other functions at local high schools, colleges, and universities to obtain names of applicants and provide information on job opportunities; send recruitment literature to schools and community groups; sponsor workshops and speakers, information booths at conferences, career days, and other training programs.

(6)  Keep the national AI/ANEPM informed of field activities affecting American Indians and Alaska Natives.

(7)  Serve as local representative at national, regional, and State meetings concerning American Indian and Alaska Native issues.

(8)  Serve as a communication link between employees and the national AI/ANEPM, keeping State employees aware of AI/ANEP activities and developmental opportunities through electronic messages, memos, bulletins, newsletters, and other appropriate means.

(9)  Perform other duties related to the AI/ANEP as identified by the DEOO, national AI/ANEPM, and AI/ANEP committees, as appropriate.

403.99  Documenting State and Center AI/ANEPM Collateral Assignments

A.  The State or center AI/ANEPM’s collateral duty will be described in writing as part of his or her position description and show—

(1)  Scope of responsibility.

(2)  Supervisory roles of DEOO, equal opportunity liaison officer, and the immediate supervisor.

(3)  Percentage of official time to be spent on the AI/ANEP.

(4)  Specific duties and responsibilities of the collateral assignment.

B.  In addition, the DEOO, equal opportunity liaison officer, and the immediate supervisor will prepare a memorandum of understanding (see subpart J) that responds to the following working conditions:

(1)  How and when will the appointee receive AI/ANEP assignments?

(2)  What percentage of official time will be spent on the AI/ANEP, and how will adjustments be made to meet AI/ANEP objectives?

(3)  Who will appraise the appointee’s performance, and how will the appraisals be completed?

(4)  Who will provide clerical support and office facilities, if needed?

403.100  Definition

An American Indian or Alaska Native is a person having origins in any of the original peoples of North and South American (including Central America) who maintains tribal affiliation or community attachment. 

403.101  Annual Business Plan of Operation

A.  Annual business plans of operation are important management tools that are effective in gauging progress in meeting short- and long-term goals and in scheduling annual program activities.  They also provide the basis for determining the performance of managers in specific areas of responsibility.

B. Collateral duty State and center AI/ANEPMs will develop results-oriented annual business plan of operations.  The annual plan should contain realistic and achievable action items in accordance with this subpart.

403.102  Reports

A. Collateral duty State and center AI/ANEPMs will submit quarterly activity reports to the collateral duty national American Indian/Alaska Native Program manager.

B. Collateral duty State and center AI/ANEPMs will submit an annual report to the collateral duty national American Indian/Alaska Native Emphasis Program manager highlighting major accomplishments during the fiscal year.

 

[GM_230_403_F - Amend. 27 - October 2010]

Subpart G - Black Emphasis Program

403.110  Purpose

This subpart provides guidance and direction to NRCS organizational units on the development and implementation of the Black Emphasis Program (BEP).  The purpose of the program is to provide focus on such issues as employment, retention, promotion, training, career development, and advancement opportunities affecting African American/Black applicants and employees at NRCS.

403.111  Policy

It is NRCS policy to conduct a positive and continuing BEP that provides equal employment opportunity for African Americans/Blacks in all personnel management policies and practices and in NRCS-sponsored programs and activities.

403.112  Authorities

A.  Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, Equal Employment Opportunity.

B.  The Civil Service Reform Act of 1978 requires “fair and equitable” treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or disabling condition.

C.  29 CFR Part 1614, “Federal Sector Equal Employment Opportunity.”

D.  Executive Order 11478, Equal Employment Opportunity in Federal Government (August 12, 1969) (superseded Executive Order 11246 and parts of Executive Order 11375 applicable to the Federal Government), as amended by Executive Orders 13087 (May 28, 1998) and  13152 (May 2, 2000).

E.  U.S. Equal Employment Opportunity Commission Management Directive 110.

F.  U.S. Equal Employment Opportunity Commission Management Directive 715.

G.  USDA Departmental Regulation 4230-002, Special Emphasis Programs (June 4, 2009).

403.113  Program Objectives

The Black Emphasis Program is an integral part of the overall equal employment opportunity (EEO) program and is designed to—

(1)  Ensure that African Americans/Blacks receive equal treatment in all aspects of employment.

(2)  Increase the number of African Americans/Blacks employed in all professional, administrative, technical, clerical, and other categories, series, and grade levels.

(3)  Provide opportunities to participate in training, career development, and leadership programs.

(4)  Encourage the participation of African Americans/Blacks in all NRCS-sponsored programs and activities.

(5)  Provide a network of professional support for African Americans/Blacks.

(6)  Provide mentoring support to African Americans/Blacks in the workforce.

(7)  Educate all NRCS employees by raising the level of awareness of African American/Black workplace issues and concerns.

403.114  Organizational Structure

The BEP is an integral part of the overall equal opportunity program in NRCS. It is coordinated through the collateral duty national Black Emphasis Program manager (BEPM), who is assigned to the Outreach and Advocacy (O&A) Division and serves as the principal staff advisor to the director of the O&A Division on legislation, policies, employment, and program issues impacting African Americans/Blacks.

403.115  Appointment of the Collateral Duty National BEPM

A.  The collateral duty national BEPM vacancy is announced every 3 years, or on an as-needed basis, through a national bulletin and filled through a competitive process.  The position is a collateral assignment and appointed by the director of the O&A Division. 

B.  The national BEPM serves on a collateral duty basis for a 3-year term.  At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term. 

C.  The collateral duty national BEPM is required to dedicate 20 percent of his or her official time performing national BEPM-related assignments.

403.116  Duties and Responsibilities of the Collateral Duty National BEPM

The collateral duty national BEPM is responsible for providing program leadership and direction for agencywide activities related to the BEP.  Specifically, the collateral duty national BEPM—

(1)  Formulates and implements the general direction of the overall NRCS Black Emphasis Program and evaluates the effectiveness of activities and programs toward achieving BEP objectives.

(2)  Provides training, guidance, information, and assistance to National Headquarters, regions, State managers, supervisors, and collateral duty State and center BEPMs concerning their BEP responsibilities.  In addition, the collateral duty national BEPM serves as the principal resource person and staff advisor on legislation, affirmative employment programs, and unique concerns and problems related to equal opportunities for African American/Black employees.

(3)  Analyzes and evaluates employment policies, practices, procedures, and workforce profile data to determine if barriers or potential barriers to full participation exist and reports findings to the appropriate officials with recommendations for corrective action. 

(4)  Establishes and strengthens relationships with organizations and groups representing the African American/Black community.

(5)  Maintains relationships with BEPMs from other agencies and African American/Black organizations for the mutual exchange of ideas, advice, best practices, and information.

(6)  Serves as the NRCS representative on the Department’s BEP committee.

(7)  Participates in studies and reviews to identify possible forms of discrimination and barriers to equal opportunity in employment activities (e.g., recruitment, hiring, development, promotion, recognition and awards, and retention).

403.117  Appointment of Collateral Duty State and Center BEPMs

A.  Deputy equal opportunity officers (DEOOs) appoint collateral duty State and center BEPMs within their jurisdictional areas.  The collateral duty BEPMs report directly to the DEOOs on issues impacting African Americans/Blacks.

B.  A collateral duty BEPM should devote 20 percent of his or her time to the program.  It is recommended that the BEPM serve on a collateral duty basis for a 3-year term.  At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term.

C.  Criteria for selection should include sensitivity to the African American/Black community, ability to function effectively under pressure, and commitment to EEO and the BEP.

403.118  Duties and Responsibilities of Collateral Duty State and Center BEPMs

Collateral duty State and center BEPMs provide program leadership and support the collateral duty national BEPM in implementing a viable BEP agencywide. The collateral duty national BEPM provides technical guidance and the collateral duty State and center BEPM ensures that BEP activities are integrated into the overall equal opportunity program in the organizational unit.  In their organizational units, the collateral duty State and center BEPMs—

(1)  Advise the directors and State Conservationists on matters affecting the employment and advancement of African Americans/Blacks.

(2)  Serve as members to the civil rights committee in their organizational units to ensure that all NRCS activities are free from discrimination and that barriers to the recruitment, employment, and advancement of African Americans/Blacks are addressed.  BEPMs assist in evaluating the effectiveness of the overall equal opportunity program in their organizational units and assist in identifying new and changing program needs.

(3)  Coordinate or conduct educational programs (e.g., workshops, training seminars, or other types of programs such as BEP historical observances).

(4)  Maintain close contact with community organizations for possible job referrals of African American/Black applicants and stay attuned to concerns of the African American/Black producer population.

(5)  Attend job fairs or other functions at local high schools, colleges, and universities to obtain names of applicants and provide information on job opportunities; send recruitment literature to schools and community groups; sponsor workshops and speakers, information booths at conferences, career days, and other training programs.

(6)  Keep the national BEPM informed of field activities affecting African Americans/Blacks in the workplace.

(7)  Serve as local representative at national, regional, and State meetings concerning African American/Black workplace issues.

(8)  Serve as a communication link between employees and the national BEPM, keeping State employees aware of BEP activities and developmental opportunities through electronic messages, memos, bulletins, newsletters, and other appropriate means.

(9)  Perform other duties related to the BEP as identified by the DEOO, national BEPM, and BEP committees, as appropriate.

403.119  Documenting State and Center BEPM Collateral Assignments

A.  The State or center BEPM’s collateral duty will be described in writing as part of his or her position description and show—

(1)  Scope of responsibility.

(2)  Supervisory roles of the DEOO, equal opportunity liaison officer and the immediate supervisor.

(3)  Percentage of official time to be spent on the BEP.

(4)  Specific duties and responsibilities of the collateral assignment.

B.  In addition, the DEOO, equal opportunity liaison officer, and the immediate supervisor will prepare a memorandum of understanding (see subpart J) that responds to the following questions regarding working conditions:

(1)  How and when will the appointee receive BEP assignments?

(2)  What percentage of official time will be spent on the BEP, and how will adjustments be made to meet BEP objectives?

(3)  Who will appraise the appointee’s performance, and how will the appraisals be completed?

(4)  Who will provide clerical support and office facilities, if needed?

403.120  Definition

A Black or African American is a person having origins in any of the black racial groups of Africa.

403.121  Annual Business Plan of Operation

A.  Annual business plans of operation are important management tools that are effective in gauging progress in meeting short- and long-term goals and in scheduling annual program activities.  They also provide the basis for determining the performance of managers in specific areas of responsibility.

B.  Collateral duty State and center BEPMs will develop results-oriented annual business plan of operations.  The annual plan should contain realistic and achievable action items in accordance with this subpart.

403.122  Reports

A.  Collateral duty State and center BEPMs will submit quarterly activity reports to the collateral duty national Black Emphasis Program manager.

B.  Collateral duty State and center BEPMs will submit an annual report to the collateral duty national Black Emphasis Program manager highlighting major accomplishments during the fiscal year.

[GM_230_403_G - Amend. 27 - October 2010]

Subpart H - Gay, Lesbian, Bisexual, and Transgender Emphasis Program

403.130  Purpose

This subpart provides guidance and direction to NRCS organizational units on the development and implementation of the Gay, Lesbian, Bisexual, and Transgender (GLBT) Emphasis Program. The purpose of the program is to provide GLBT awareness and education to NRCS employees and partners while focusing on such issues as employment, retention, promotion, training, career development, and advancement opportunities affecting GLBT applicants and employees at NRCS.

403.131  Policy

It is NRCS policy to conduct a positive and continuing GLBT Emphasis Program that provides equal employment opportunity for GLBT persons in all personnel management policies, practices, and in NRCS-sponsored programs and activities.

403.132  Authorities

A.  In April 1993, USDA Secretary Mike Espy issued the Department’s EEO and Civil Rights Policy Statement, which specifically prohibited discrimination and harassment based on sexual orientation.

B.  Executive Order 13087, amending Executive Order 11478, provides that, as a matter of Federal policy, an individual’s sexual orientation may not be the basis for the denial of an employment or promotional opportunity.

C.  In Fall 2000, USDA established a Secretary’s Advisory Council on sexual orientation: Gay & Lesbian Employee Advisory Council (GLEAC).

D.  In June 2009, Secretary Tom Vilsack signed Departmental Regulation 4230-002 creating a special emphasis program for GLBT employees.

403.133  Program Objectives

The GLBT Emphasis Program is an integral part of the overall equal employment opportunity (EEO) program and is designed to—

(1)  Ensure that gays, lesbians, bisexuals, and transgender people receive equal treatment in all aspects of employment.

(2)  Increase the number of GLBT people employed in all professional, administrative, technical, clerical, and other categories, series, and grade levels.

(3)  Provide opportunities to participate in training, career development, and leadership programs.

(4)  Encourage the participation of GLBT populations in all NRCS-sponsored programs and activities.

(5)  Provide a network of professional support for GLBT.

(6)  Provide mentoring support to GLBT in the workforce.

(7)  Educate all NRCS employees by raising the level of awareness of GLBT workplace issues and concerns.

403.134  Organizational Structure

The national GLBT Emphasis Program is an integral part of the overall equal opportunity program in NRCS.  It is coordinated through the national GLBT Emphasis Program manager, who is assigned to the Outreach and Advocacy (O&A) Division and serves as the principal staff advisor to the director of the O&A Division on legislation, policies, employment, and program issues impacting GLBT people.

403.135  Appointment of the Collateral Duty National GLBT Emphasis Program Manager

A.  The collateral duty national GLBT Emphasis Program manager vacancy is announced every 3 years, or on an as-needed basis, through a national bulletin and filled through a competitive process.  The position is a collateral assignment and appointed by the director of the O&A Division. 

B.  The national GLBT Emphasis Program Manager serves on a collateral duty basis for a three-year term.  At the end of the three-year term, the incumbent may reapply, and if selected, may be renewed for an additional three-year term. 

C.  The collateral duty national GLBT Emphasis Program manager is required to dedicate 20 percent of his or her official time performing national GLBT Emphasis Program manager-related assignments.

403.136  Duties and Responsibilities of the Collateral Duty National GLBT Emphasis Program Manager

The collateral duty national GLBT Emphasis Program manager is responsible for providing program leadership and direction for agencywide activities related to the GLBT Emphasis Program.  Specifically, the collateral duty national GLBT Emphasis Program manager—

(1)  Formulates and implements the general direction of the overall NRCS GLBT Emphasis Program and evaluates the effectiveness of activities and programs toward achieving GLBT Emphasis Program objectives.

(2)  Provides training, guidance, information, and assistance to National Headquarters, regions, State managers, supervisors, and collateral duty State and center GLBT Emphasis Program managers concerning their responsibilities.  In addition, the national GLBT Emphasis Program manager serves as the principal resource person and staff advisor on legislation, affirmative employment programs, and unique concerns and problems related to equal opportunities for gay, lesbian, bisexual, and transgender employees.

(3)  Analyzes and evaluates employment policies, practices, procedures, and workforce profile data to determine if barriers or potential barriers to full participation exist and reports findings to the appropriate officials with recommendations for corrective action. 

(4)  Establishes and strengthens relationships with organizations and groups representing the GLBT community.

(5)  Maintains close liaison with GLBT Emphasis Program managers from other agencies and organizations for the mutual exchange of ideas, advice, best practices, and information.

(6)  Serves as the NRCS representative on the Department’s GLBT committee.

(7)  Participates in studies and reviews to identify possible forms of discrimination and barriers to equal opportunity in employment activities (e.g., recruitment, hiring, development, promotion, recognition and awards, and retention).

403.137  Appointment of Collateral Duty State and Center GLBT Emphasis Program Managers

A.  Deputy equal opportunity officers (DEOO’s) appoint collateral duty GLBT Emphasis Program managers within their jurisdictional areas.  The collateral duty GLBT Emphasis Program managers report directly to the DEOOs on issues impacting GLBT people.

B.  A collateral duty GLBT Emphasis Program manager should devote 20 percent of his or her time to the program.  It is recommended that the GLBT Emphasis Program manager serve on a collateral duty basis for a 3-year term.  At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term.

C.  Criteria for selection should include knowledge and familiarity with the GLBT community along with its employment issues and concerns; sensitivity to the GLBT community; ability to function effectively under pressure; and commitment to EEO and the GLBT Special Emphasis Program.

403.138  Duties and Responsibilities of Collateral Duty State and Center GLBT Emphasis Program Managers

Collateral Duty State and center GLBT Emphasis Program managers provide program leadership and support the national GLBT Emphasis Program manager in implementing a viable program agencywide.  The national GLBT Emphasis Program manager provides technical guidance and the collateral duty State and center GLBT Emphasis Program managers ensure that program activities are integrated into the overall equal opportunity program in the organizational unit.  In their organizational units, the collateral duty GLBT Emphasis Program managers—

(1)  Advise the directors and State Conservationists on matters affecting the employment and advancement of GLBT persons.

(2)  Serve as members to the civil rights committee in their organizational units to ensure that all NRCS activities are free from discrimination and that barriers to the recruitment, employment, and advancement of GLBT persons are addressed.  GLBT Emphasis Program managers assist in evaluating the effectiveness of the overall equal opportunity program in their organizational units and assist in identifying new and changing program needs.

(3)  Coordinate or conduct educational programs (e.g., workshops, seminars, or other types of programs, such as pride observances).

(4)  Maintain close contact with community organizations for possible job referrals of GLBT applicants and stay attuned to concerns of the GLBT population.

(5)  Attend job fairs or other functions at community centers, colleges, and universities to obtain names of potential applicants and provide information on job opportunities; send recruitment literature to schools and GLBT community groups; sponsor workshops and speakers, information booths at conferences, career days, and other training programs.

(6)  Keep the national GLBT Emphasis Program manager informed of field activities affecting gays, lesbians, bisexuals and transgender people.

(7)  Serve as local representative at national, regional, and State meetings concerning GLBT issues.

(8)  Serve as a communication link between employees and the national GLBT Emphasis Program manager, keeping employees aware of GLBT Emphasis Program activities and developmental opportunities through electronic messages, memos, bulletins, newsletters, and other appropriate means.

(9)  Perform other duties related to the GLBT Emphasis Program as identified by the DEOO, national GLBT Emphasis Program manager, and GLBT Emphasis Program committees, as appropriate.

403.139  Documenting State and Center GLBT SEPM Collateral Assignments

A.  The GLBT Emphasis Program manager’s collateral duty will be described in writing as part of his or her position description and show—

(1)  Scope of responsibility.

(2)  Supervisory roles of DEOO, equal opportunity liaison officer, and the immediate supervisor.

(3)  Percentage of official time to be spent on the SEP.

(4)  Specific duties and responsibilities of the collateral assignment.

B.  In addition, the DEOO, equal opportunity liaison officer, and the immediate supervisor will prepare a memorandum of understanding (see subpart J) that responds to the following questions regarding working conditions:

(1)  How and when the appointee will receive GLBT Emphasis Program assignments?

(2)  What percentage of official time will be spent on the GLBT Emphasis Program, and how will adjustments be made to meet GLBT Emphasis Program objectives?

(3)  Who will appraise the appointee’s performance, and how will the appraisals be completed?

(4)  Who will provide clerical support and office facilities, if needed?

403.140  Definition

GLBT (or LGBT) refers collectively to gay, lesbian, bisexual, and transgender people.  The term “GLBT” is intended to emphasize a diversity of sexuality and gender identity-based cultures and is sometimes used to refer to anyone who is not heterosexual instead of exclusively to people who are homosexual, bisexual, or transgender.

403.141  Annual Business Plan of Operation

A.  Annual business plans of operation are important management tools that are effective in gauging progress in meeting short- and long-term goals and in scheduling annual program activities.  They also provide the basis for determining the performance of managers in specific areas of responsibility.

B.  Collateral duty GLBT Emphasis Program managers will develop results-oriented annual business plan of operations.  The annual plan should contain realistic and achievable action items in accordance with this subpart.

403.142  Reports

A.  Collateral duty State and center GLBT Special Emphasis Program managers will submit quarterly activity reports to the collateral duty national GLBT Emphasis Program manager.

B.  Collateral duty State and center GLBT Emphasis Program managers will submit an annual report to the collateral duty national GLBT Emphasis Program manager highlighting major accomplishments during the fiscal year.

[GM_230_403_H - Amend. 27 - October 2010]

Subpart I - Veterans Emphasis Program


403.150  Purpose

This subpart provides guidance and direction to NRCS organizational units on the development and implementation of the Veterans Emphasis Program (VEP).  The purpose of the program is to provide focus on issues such as employment, retention, promotion, training, career development, and advancement opportunities affecting veteran applicants and employees at NRCS.

403.151  Policy

It is NRCS policy to conduct a positive and continuing VEP that provides equal employment opportunity for veterans in all personnel management policies and practices and in NRCS-sponsored programs and activities.

403.152  Authorities

A.  Executive Order 11701, Employment of Veterans by Federal Agencies and Government Contractors and Subcontractors (January 24, 1973)

B.  The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (38 U.S.C. Section 4212) and Veterans’ Recruitment Appointment (VRA)

C.  Veterans Education and Employment Program Amendments of 1991 (requires expanded job opportunities for veterans and disabled veterans through the (VRA), 38 U.S.C. Section 4314)

D.  Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, Equal Employment Opportunity

E.  The Civil Service Reform Act of 1978 (requires “fair and equitable” treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or disabling condition)

F.  29 CFR Part 1614, Federal Sector Equal Employment Opportunity

G.  Executive Order 11478, Equal Employment Opportunity in Federal Government (August 12, 1969) (superseded Executive Order 11246 and parts of Executive Order 11375 applicable to the Federal Government), as amended by Executive Orders 13087 (May 28, 1998) and  13152 (May 2, 2000)

H.  U.S. Equal Employment Opportunity Commission Management Directive 110

I.  U.S. Equal Employment Opportunity Commission Management Directive 715

J.  Departmental Regulation 4230-002, Special Emphasis Programs (June 4, 2009)

403.153  Program Objectives

The Veterans Emphasis Program is an integral part of the overall equal employment opportunity (EEO) program and is designed to—

(1)  Ensure that veterans receive equal treatment in all aspects of employment.

(2)  Increase the number of veterans employed in all professional, administrative, technical, clerical, and other categories, series, and grade levels.

(3)  Provide opportunities to participate in training, career development, and leadership programs.

(4)  Encourage the participation of veterans in all NRCS-sponsored programs and activities.

(5)  Provide a network of professional support for veterans.

(6)  Provide mentoring support to veterans in the workforce.

(7)  Educate all NRCS employees by raising the level of awareness of veteran issues and concerns.

403.154  Organizational Structure

The VEP is an integral part of the overall equal opportunity program in NRCS.  It is coordinated through the collateral duty national Veterans Emphasis Program manager (VEPM), who is assigned to the Outreach and Advocacy (O&A) Division and serves as the principal staff advisor to the director of the O&A Division on legislation, policies, employment, and program issues impacting veterans.

403.155  Appointment of the Collateral Duty National VEPM

A.  The collateral duty national VEPM vacancy is announced every 3 years, or on an as-needed basis, through a national bulletin and filled through a competitive process. The position is a collateral assignment and appointed by the director of the O&A Division. 

B.  The national VEPM serves on a collateral duty basis for a 3-year term. At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term. 

C.  The collateral duty national VEPM is required to dedicate 20 percent of his or her official time performing national VEPM-related assignments.

403.156  Duties and Responsibilities of the Collateral Duty National VEPM

The collateral duty national VEPM is responsible for providing program leadership and direction for agencywide activities related to the VEP.  Specifically, the collateral duty national VEPM—

(1)  Formulates and implements the general direction of the overall NRCS Veterans Emphasis Program and evaluates the effectiveness of activities and programs toward achieving VEP objectives.

(2)  Provides training, guidance, information, and assistance to National Headquarters, regions, State managers, supervisors, and collateral duty State and center VEPMs concerning their VEP responsibilities.  In addition, the collateral duty national VEPM serves as the principal resource person and staff advisor on legislation, affirmative employment programs, and unique concerns and problems related to equal opportunities for veteran employees.

(3)  Analyzes and evaluates employment policies, practices, procedures, and workforce profile data to determine if barriers or potential barriers to full participation exist and reports findings to the appropriate officials with recommendations for corrective action. 

(4)  Participates in establishing and strengthening relationships with organizations and groups representing the veteran community.

(5)  Maintains relationships with VEPMs from other agencies and veteran organizations for the mutual exchange of ideas, advice, best practices, and information.

(6)  Serves as the NRCS representative on the Department’s VEP committee.

(7)  Participates in studies and reviews to identify possible forms of discrimination and barriers to equal opportunity in employment activities (e.g., recruitment, hiring, development, promotion, recognition and awards, and retention).

403.157  Appointment of Collateral Duty State and Center VEPMs

A.  Deputy equal opportunity officers (DEOOs) appoint collateral duty State and center VEPMs within their jurisdictional areas.  The collateral duty VEPMs report directly to the DEOOs on issues impacting veterans.

B.  A collateral duty VEPM should devote 20 percent of his or her time to the program.  It is recommended that the VEPM serve on a collateral duty basis for a 3-year term.  At the end of the 3-year term, the incumbent may reapply and if selected may be renewed for an additional 3-year term.

C. Criteria for selection should include sensitivity to veterans, ability to function effectively under pressure, and commitment to EEO and the VEP.

403.158  Duties and Responsibilities of Collateral Duty State and Center VEPMs

Collateral duty State and center VEPMs provide program leadership and support the collateral duty national VEPM in implementing a viable VEP agencywide.  The collateral duty national VEPM provides technical guidance and the collateral duty State or center VEPM ensures that VEP activities are integrated into the overall equal opportunity program in the organizational unit.  In their organizational units, the collateral duty State and center VEPMs—

(1)  Advise the directors and State Conservationists on matters affecting the employment and advancement of veterans.

(2)  Serve as members to the civil rights committee in their organizational units to ensure that all NRCS activities are free from discrimination and that barriers to the recruitment, employment, and advancement of veterans are addressed.  VEPMs assist in evaluating the effectiveness of the overall equal opportunity program in their organizational units and assist in identifying new and changing program needs.

(3)  Coordinate or conduct educational programs (e.g., workshops, seminars, or other types of programs, such as VEP observances).

(4)  Maintain close contact with community organizations for possible job referrals of veteran applicants and to stay attuned to concerns of the veteran population.

(5)  Attend job fairs or other functions at local colleges and universities to obtain names of applicants and provide information on job opportunities; send recruitment literature to schools and community groups; sponsor workshops and speakers, information booths at conferences, career days, and other training programs.

(6)  Keep the national VEPM informed of field activities affecting veterans.

(7)  Serve as local representative at national, regional, and State meetings concerning veteran issues.

(8)  Serve as communication link between employees and the national VEPM, keeping State employees aware of VEP activities and developmental opportunities through electronic messages, memos, bulletins, newsletters, and other appropriate means.

(9)  Perform other duties related to the VEP as identified by the DEOO, national VEPM, and VEP committees, as appropriate.

403.159  Documenting State and Center VEPM Collateral Assignments

A.  The State or center VEPM’s collateral duty will be described in writing as part of his or her position description and show—

(1)  Scope of responsibility.

(2)  Supervisory roles of the DEOO, equal opportunity liaison officer, and the immediate supervisor.

(3)  Percentage of official time to be spent on the VEP.

(4)  Specific duties and responsibilities of the collateral assignment.

B.  In addition, the DEOO, equal opportunity liaison officer, and the immediate supervisor will prepare a memorandum of understanding (see subpart J) that responds to the following questions regarding working conditions:

(1)  How and when will the appointee receive VEP assignments?

(2)  What percentage of official time will be spent on the VEP, and how will adjustments be made to meet VEP objectives?

(3)  Who will appraise the appointee’s performance, and how will the appraisals be completed?

(4)  Who will provide clerical support and office facilities, if needed?

403.160  Annual Business Plan of Operation

A.  Annual business plans of operation are important management tools that are effective in gauging progress in meeting short- and long-term goals and in scheduling annual program activities.  They also provide the basis for determining the performance of managers in specific areas of responsibility.

B. Collateral duty State and center VEPMs will develop results-oriented annual business plan of operations.  The annual plan should contain realistic and achievable action items in accordance with this subpart.

403.161  Reports

A.  Collateral duty State and center VEPMs will submit quarterly activity reports to the collateral duty national Veterans Program manager.

B.  Collateral State and center duty VEPMs will submit an annual report to the collateral duty national Veterans Emphasis Program manager highlighting major accomplishments during the fiscal year.

[GM_230_403_I - Amend. 27 - October 2010]

Subpart J - Exhibits


403.170  Memorandum of Understanding

The purpose of this memorandum of understanding is to clarify the relationship that exists between the employee, the employee's supervisor, the equal opportunity (EO) liaison officer, and the deputy equal opportunity officer (DEOO) while the employee is performing collateral duties as program manager.

It is understood and agreed that these collateral duties will require approximately 20 percent of the employee's official time.  It is further understood and agreed that—

While administrative supervision will remain the same in the primary assignment, the incumbent will receive program manager work assignments directly from the DEOO.  Clerical support will be provided by the administrative assistant assigned to the DEOO.  The incumbent will report directly to the DEOO and will brief the DEOO on new program initiatives, special projects, and all other matters affecting their special emphasis program area or program management on a quarterly basis.  Technical guidance and assistance will be provided by the EO liaison officer and the national special emphasis program manager, who will ensure that special emphasis activities are integrated into the overall equal opportunity program.

The incumbent's duties with regard to the special emphasis program area will become a performance element.  The DEOO will appraise the incumbent's performance of special emphasis duties annually.

Before performing these collateral duties, the employee will notify his or her immediate supervisor before leaving the primary assigned duties and will keep the supervisor informed of his or her assignment schedule and estimated time of return to primary duties.

In case of any disagreement between the employee and immediate supervisor as to the priority of these collateral duties, the DEOO will resolve these differences to ensure a harmonious work relationship.

Acknowledgment and understanding of this memorandum is attested to by affixing my signature below.

______________________________    _________________________  _____________
Name (Collateral Duty Program Manager)         Title                                Grade

______________________________    _________________________  _____________
Name (Supervisor)                                         Title                                Grade

_____________________________    _________________________  ______________
Name (EO Liaison Officer)                               Title                                Grade

_____________________________    _________________________  ______________
Name (Deputy EO Officer)                              Title                                Grade

[GM_230_403_J - Amend. 27 - October 2010]

Part 404 – Civil Rights Advisory Committee

404.0 Purpose and Scope

A. The Chief of NRCS serves as the Equal Opportunity Officer (EOO) for the Natural Resources Conservation Service and delegates the overall responsibility of administering its civil rights program to the Director of Civil Rights Division (CRD). The NRCS civil rights program encompasses all equal employment opportunity and program delivery-related matters. The Deputy Chiefs, State Conservationists, and Directors of the Caribbean and Pacific Basin areas, in coordination with the Director, CRD, will serve as the Deputy Equal Opportunity Officer (DEOO) for their respective jurisdictional areas.

B. Each DEOO will establish a Civil Rights Advisory Committee (CRAC) which advises them on all matters related to equal employment opportunity and program delivery by ensuring equity and participation in all NRCS programs, activities, and initiatives in their respective jurisdictional areas.

C. The CRAC is designed to provide management officials and employees with a vehicle that enhances and fulfills their equal employment opportunity and program delivery responsibilities. Members of the CRAC will carry out their responsibilities consistent with USDA policies, procedures, and practices regarding employment and program delivery, which are nondiscriminatory with regard to race, color, national origin, sex, religion, age, disability, sexual orientation, marital or familial status, political beliefs, parental status, protected genetic information, or because all or a part of an individual's income is derived from any public assistance program. The CRAC provides assistance in the areas of policy formulation, program direction and administration.

404.1 Composition of Civil Rights Advisory Committee (CRAC)

A. Civil Rights Advisory Committees are established by DEOOs to assist and advise on all matters related to civil rights.

B. The CRAC’s membership will be representative of the unit’s workforce by occupations, grade levels, race, sex, national origin, disability status, sexual orientation, and geographical location. Members can either be selected or appointed at the discretion of the DEOO.

C. Special Emphasis Program Managers (SEPMs) will serve as members of the CRAC and provide leadership in their areas of responsibility.

D. Human Resources Managers and Outreach Coordinators will serve as advisors to the CRAC. Members of the unit’s leadership team may also serve as advisors.

E. CRAC appointments are made for a minimum of three (3) years and may be extended/reappointed at the discretion of the DEOO so that no more than one-third to one-half of the membership is replaced each year.

F. The CRAC Chairperson may be selected or appointed by the DEOO.

404.2 Role of Civil Rights Advisory Committee

The Committee serves as an advisory body to the DEOO by:

A. Identifying and bringing to management’s attention any trends, problems, issues, or concerns.

B. Monitoring recruitment practices and making recommendations for ensuring that under-represented groups are made aware of employment opportunities for career positions, temporary summer employment, or special appointment.

C. Focusing the attention of management on specific personnel practices or problems of an EEO nature that are producing or could produce dissension and dissatisfaction among employees (e.g., merit promotion procedures; selection for training and assignments; criteria, nomination, and distribution of awards; etc.).

D. Monitoring the policies and overall effectiveness of the Affirmative employment Plan (AEP) with regard to recruitment, hiring, promotion, and retention.

E. Providing training resources for various civil rights workshops, seminars, and meetings.

F. Acting as a forum for an exchange of ideas and action proposals on sensitive issues, matters, or concerns of a civil rights nature.

G. Encouraging, supporting, or assisting in the development of projects or activities associated with civil rights needs or opportunities.

H. Contributing to the development and implementation of strategies designed to improve and increase awareness of and participation in NRCS programs and activities by under-served groups, individuals, and communities.

I. Promoting and communicating the efforts of management to achieve and operate a realistic and ongoing civil rights program.

J. Participating and taking an active role in the development and implementation of the Affirmative Employment Plan.

K. Participating in civil rights compliance reviews.

404.3 Responsibility of Civil Rights Advisory Committee

A. In addition to serving as advisor to the DEOO, the CRAC establishes lines of communication between employees and management through which employees’ views on civil rights issues may be brought to the attention of management, providing management with feedback on the performance of the civil rights program, identifying weaknesses, and recommending ways in which the program can be improved. All recommendations are to be reported in writing to the DEOO for appropriate consideration and follow-up action.

B. The CRAC does not receive, investigate, and/or in any way adjudicate individual or class complaints of discrimination.

C. The CRAC will maintain copies of the minutes of each meeting and forward a copy to the DEOO.

D. The CRAC will meet as often as necessary, and at least, quarterly.

404.4 Documenting and Evaluating Collateral Assignments

A. The CRAC membership should be documented in each member’s official position description. A memorandum of understanding (MOU) must be signed by the employee, the employee’s immediate supervisor, and the DEOO (refer to sample in GM 230, Part 403, Subpart H (Exhibits)). Employee’s contributions to the CRAC will be noted in their individual performance appraisals and rated by the DEOO.

B. Each CRAC Chairperson’s performance appraisal must contain a stand alone critical element addressing his or her committee responsibilities. Their civil rights responsibilities will be evaluated and rated by the DEOO.

404.5 CRAC Guidelines

A. The CRAC members must receive training within six (6) months of their initial selection in order to become familiar with the various aspects of equal employment opportunity, personnel policies and procedures, and civil rights compliance in program delivery. For a list of training courses that will enhance the effectiveness and performance of the committee members’ duties and responsibilities, refer to GM 230, Part 403, Subpart A (General).

B. CRAC members must have complete access to all regulations governing equal employment opportunity and program delivery policies and practices, including Government-wide regulations and internal Agency rules and procedures, and the Agency’s Statistical Data Report. Members should jointly establish the CRAC bylaws, operating procedures, and strategic guidelines deemed appropriate.

C. The CRAC is required to develop business plans which include long term goals, objectives, and actions.

404.6 National Civil Rights Committee (NCRC)

The National Civil rights Committee (NCRC) is responsible to the Chief of NRCS. The Committee performs the following functions:

A. Serves as an advisory body to the NRCS Chief to promote and assist in meaningful and effective affirmative action consistent with the goals and objectives set forth by management.

B. Provides feedback on the performance in equal opportunity and civil rights compliance, by identifying areas of weakness, and making recommendations for improvement.

C. Identifies emerging areas needing special attention by the Chief and NRCS top management.

D. Makes recommendations to the Chief regarding policies, practices, and procedures as they affect equal opportunity NRCS-wide.

404.7 Composition of the National Civil Rights Committee (NCRC)

A. The NCRC Chairperson is appointed by the Chief of NRCS and serves at his or her discretion. The NCRC members are to be representative of all Agency employees in various occupations, grade levels, race, sex, national origin, disability status, sexual orientation, and geographical locations within the organizational unit. Members can either be selected or appointed at the discretion of the Chief of NRCS, keeping in mind the above factors, and the diversity of the Agency’s workforce.

B. The NCRC Chairperson shall consist of a State Conservationist, a Director of a National Technology Support Center (NTSC), a Director of the Pacific Basin or Caribbean Area, a Deputy Chief, a Regional Assistant Chief, or a National Headquarters Division Director. The NCRC membership shall consist of a male and female from each of the following groups: White, Black, Hispanic, American Indian/Alaska Native, Asian American/Pacific Islanders, and Persons with Disabilities.

C. The NCRC will distribute a list of their current membership annually and announce any vacancies that may occur.

404.8 Role of the National Civil Rights Committee

The NCRC is appointed by the NRCS Chief to:

A. Assess and advise top management on the effectiveness of the NRCS civil rights program.

B. Establish and maintain contact with NRCS employees in order to receive and address concerns.

C. Identify civil rights issues, develop solutions, and make recommendations to NRCS management for appropriate courses of action.

D. Interact with NRCS employee organizations and other Federal agency representatives.

[GM_230_404 - Amendment 19 - October 2006]

Part 405 – Civil Rights Compliance in Program Delivery

Subpart A - General

405.0  Purpose and Scope

This subpart provides policy and guidance on Civil Rights (CR) requirements in administering program activities provided by the Natural Resources Conservation Service (NRCS).  Minorities, women, and persons with disabilities are provided equal access and equal opportunity to participate in programs receiving Federal financial assistance.  All persons eligible to participate in NRCS programs must be informed of NRCS’ equal opportunity policy and encouraged to participate.

405.1  Policy

A.  It is the policy of NRCS that all Department of Agriculture (USDA) federally-assisted and federally-conducted programs are to be administered in accordance with the requirements of Title VI of the CR Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, the Equal Credit Opportunity Act, Executive Order (EO)s, Department of Justice (DOJ) regulations enforcing nondiscrimination requirements, and Departmental rules and regulations.  Compliance with the policies ensures access of program delivery to customers without regard to their race, color, national origin, sex, religion, age, disability, sexual orientation, marital and family status, political beliefs, parental status, or because all or a part of an individual's income is derived from any public assistance program.

B.  NRCS is to use positive examples of program participation by minorities, women, persons with disabilities, and other individuals protected by Federal nondiscrimination law.  This may be in the form of pictures and other visual and audio public information materials.

C.  No person shall be subjected to reprisal or harassment because he or she filed a discrimination complaint, participated in or contributed to the identification, investigation, prosecution, or resolution of a CR violation.

D.  Any person or specific class of individuals or minority groups who believes that he or she has been discriminated against in any NRCS program or activity may personally, or through a designated representative, file a complaint.

405.2  Major Authorities

A.  Statutory

(1)  Title VI of the CR Act of 1964, 42 U.S.C. 2000d-2000d-4, which prohibits discrimination based on race, color, or national origin.

(2)  Title IX of the Education Amendments of 1972, 20 U.S.C. 1681-1686, which prohibits discrimination based on sex.

(3)  Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, which prohibits discrimination based on disability.

(4)  Age Discrimination Act of 1975, 42 U.S.C. 6101-6107, which prohibits discrimination based on age.

(5)  Equal Credit Opportunity Act of 1974, Title VII of the Consumer Protection Act of 1974 (as amended), Section 701 of the Equal Credit Opportunity Act of 1974, Public Law 93-49, 15 U.S.C. 1691.

(6)  CR Restoration Act of 1987, Public Law (PL) 100-259, as amended, CR Act of 1991, PL 102-166.

(7)  Americans with Disabilities Act of 1990, 42 U.S.C. 12101.

(8)  Title VIII of the CR Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601.

(9)  Food Stamp Act of 1977, as amended by the Food Stamp Improvement Act of 1994, 7 U.S.C. 2011.

B.  Regulatory and Executive Order (EO)s

(1)  7 C.F.R. Part 2, Subpart P, Delegation of Authority by the Assistant Secretary of the Department of Agriculture.

(2)  7 C.F.R. Part 15, Nondiscrimination in Federally Assisted Programs of the Department of Agriculture – Effectuation of Title VII of the CR Act of 1964.

(3)  7 C.F.R. Part 15a, Education Programs or Activities Receiving or Benefiting from Federal Financial Assistance.

(4)  7 C.F.R. Part 15b, Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving Federal Financial Assistance.

(5)  7 C.F.R. Part 15d, Nondiscrimination in Programs or Activities Conducted by the Department of Agriculture.

(6)  7 C.F.R. Part 15e, Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by the Department of Agriculture.

(7)  12 C.F.R. Part 202, Equal Credit Opportunity Regulation B.

(8)  28 C.F.R. Part 35, Nondiscrimination on the Basis of Disability in State or Local Government Services.

(9)  28 C.F.R. Part 35, Subpart F, Compliance Procedures.

(10)  28 C.F.R. Part 41, Implementation of Executive Order (EO) 12250, Nondiscrimination on the Basis of Handicap in Federally-Assisted Programs.

(11)  28 C.F.R. Part 42, Subpart F, Coordination of Enforcement of Nondiscrimination in Federally-Assisted Programs.

(12)  28 C.F.R. Part 42, Subpart H, Procedures for Complaints of Employment Discrimination Against Recipients of Federal Financial Assistance.

(13)  28 C.F.R. 50.3, Guidelines for the Enforcement of Title VI, CR Act of 1964.

(14)  45 C.F.R. Part 90, Nondiscrimination on the Basis of Age in Programs and Activities Receiving Federal Financial Assistance.

(15)  EO 12250, Leadership and Coordination of Nondiscrimination Laws.

(16)  EO 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.

(17)  EO 13125, Increasing Participation of Asian Americans and Pacific Islanders in Federal Programs.

(18)  EO 13145, To Prohibit Discrimination in Federal Employment Based on Genetic Information.

(19)  EO 13160, Nondiscrimination on the Basis of Race, Sex, Color, National Origin, Disability, Religion, Age, Sexual Orientation, and Status as a Parent in Federally Conducted Education and Training Programs.

(20)  EO 13166, Improving Access to Services for Persons with Limited English Proficiency (LEP).

C.  Departmental Regulations (DR) Policy

(1)  DR 4330-1, Nondiscrimination in USDA-Conducted Programs and Activities, dated October 18, 2000.

(2)  DR 4300-3, Equal Opportunity Public Notification Policy, dated November 16, 1999.

(3)  DR 4300-5, Agency CR Programs, dated January 14, 1998.

(4)  DR 4300-6, CR Policy for USDA, dated June 30, 2000.

(5)  DR 4360-3, Communicating with Under-Served Communities, dated January 14, 1998.

(6)  Secretary's Memorandum 1010-4, Restructuring Departmental Administration, dated May 16, 1997.

405.3  Definitions

A.  Allegation – An assertion, declaration, or statement made in a complaint by the alleging party.

B.  Applicant – A landowner, land user, group, individual applicant, or other potential program beneficiary who has made a verbal or written request for assistance.

C.  Beneficiary – A person or group of persons with an entitlement to receive or enjoy benefits, services, resources, and information or participate in the activities and programs assisted in whole or in part by USDA.

D.  Bilingual Capability – A measure of bilingual personnel and materials available in an area where there is a concentration of persons with limited or no English language communicating ability.

E.  CR Compliance Review – A systematic evaluation of measured compliance in program delivery and Title VII NRCS programs.

F.  CR Compliance Review Report – A summary of the findings, recommendations, and corrective actions resulting from a periodic review of NRCS programs and activities.

G.  Complainant – An individual, group, or organization that alleges discrimination in program delivery of benefits or related services provided by NRCS.

H.  Complaint – A verbal or written statement alleging discrimination which indicates that NRCS program or activity is administered or operated in such a manner that it results in unequal treatment or services being provided to persons or groups of persons because of their race, color, national origin, religion, sex, age, or disability status.

I.  Contractor – A person or entity who agrees to perform NRCS-assisted, program-related services at a specified price, and abide by Agency rules and regulations.

J.  Conservation District – A subdivision of a State that is organized pursuant to the applicable State soil conservation district law.  In some States, it is called a conservation district, soil conservation district, soil and water conservation district, natural resource district, resource conservation district (RC&D), land conservation commission, or natural resource conservation district.  The members of governing bodies of these organizations are known as supervisors, directors, or commissioners.

K.  Cooperator – An individual, group, organization, or government agency that has an understanding, working arrangement, or agreement to cooperate with a conservation district in planning and carrying out natural resource conservation programs.

L.  Decision Maker – An owner, manager, or partner who is primarily responsible for the business in its dealings with NRCS.

M.  Director, CR Division (CRD) – Develops and coordinates CR policy for the Agency, and advises the Chief of NRCS on all matters that relate to CR compliance.

N.  Disabled Beneficiary – A program participant who has a physical or mental impairment that substantially limits one or more major life activities, has a history of such impairment, or is regarded as having such impairment.

O.  Discrimination – Unequal treatment of a person or persons because of their race, color, national origin, sex, religion, age, disability, sexual orientation, marital and family status, political beliefs, parental status, or because all or part of an individual's income is derived from a public assistance program.  This treatment may involve quantity and quality of assistance, timing of assistance, or the method used to provide a benefit.  Discrimination may have occurred if any beneficiary is:

(1)  Denied benefits provided under the program;

(2)  Provided any benefit that is different or is provided in a different manner from that provided to others under the program;

(3)  Subjected to segregation or disparate treatment; or

(4)  Restricted from taking part in or enjoying any benefit that is enjoyed by others.

P.  District Board – Governing body of locally-elected and/or appointed officials responsible for governing a Conservation District.

Q.  Facility – Owned, leased, or free portions of buildings, structures, equipment, roads, walkways, or parking lots of either real or personal property.

R.  Federally-assisted Programs – Programs/activities for which Federal financial assistance is provided, directly or through another recipient.  The recipient may be a State, its instrumentality, or political subdivision (including the District of Columbia and any territories and possessions), public or private agency, institution, or organization. 

Note:  Most of NRCS annually statutory funded programs are "federally-conducted programs.”  They become federally-assisted programs when financial assistance is extended through sub agreements, contracts, etc. with recipients as defined above.  Example:  If NRCS National Headquarters (NHQ) contributes $25,000 to a university communications department to produce a foreign language video on conservation practices, this would be a federally-assisted program.

S.  Federally-Conducted Programs – Programs or activities that include the day-to-day operations of NRCS.  These programs or activities result in or contribute to the availability or delivery of services, benefits, or resources to customers.  Example:  If NRCS NHQ routes $25,000 to a State office for their public affairs specialist to produce a foreign language video, this would be a federally-conducted program.

T.  Federal Financial Assistance – A grant, a local contract other than a procurement contract, a contract of insurance or guarantee, or other arrangement by which NRCS provides or otherwise makes the following available:

(1)  Grants and loans of Federal funds; 

(2)  The sale and lease of real or personal property, including transfers or leases of such property, and proceeds from subsequent transfers or leases of such property;

(3)  Direct assistance from NRCS employees; and 

(4)  In the cooperative program, relationships that NRCS provides through conservation districts to resource partners, it is construed as providing Federal financial assistance under Title VI of the CR Act of 1964 with the loan of Federal personnel or having Federal personnel providing training.

U.  Individuals with Disability – Any persons who have physical or mental impairments that substantially limit one or more major life activities, or have a history of such impairments.  As used in this definition, the phrase physical or mental impairment includes:

(1)  Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the human body systems; and/or

(2)  Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.  The term "physical or mental impairment" includes, but is not limited to, such diseases and conditions as orthopedic; visual, speech, and hearing impairments; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; mental retardation; emotional illness; drug addiction; and alcoholism.

V.  Language Minority Area – A service-delivery area in which potential beneficiaries have little or no English language proficiency, or an area identified by the Bureau of the Census as falling into this category.

W.  Limited English Proficiency (EO 13166) – To improve access to federally-conducted and federally-assisted programs and activities for persons whom, as a result of national origin, are limited in their English proficiency.

X.  Major Life Activities – Functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, and learning.

Y.  Minority – A person or group of persons belonging to the protected classes covered by the CR Act of 1964.  They are:

(1)  Blacks – not of Hispanic origin.  A person having origins in the black racial groups of Africa;

(2)  Hispanic – A person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race;

(3)  Asian – A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent, including for example:  Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam;

(4)  Native Hawaiian or other Pacific Islander – A person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands; and

(5)  American Indian or Alaska Native - A person having origins in any of the original peoples of North and South America (including Central America) and who maintains cultural identification through tribal affiliation or communication recognition (includes Aleuts and Eskimos).

Z.  Parity – Defined as providing service to minority groups within 10 percent of service provided to White, non-Hispanic males.

(1)  Program – Any activity or project for which NRCS provides financial assistance, technical assistance, or other benefits to individuals or provides the facilities for furnishing such assistance or benefits.  This definition applies even if the assistance and benefits are provided directly or through employees of the recipient of Federal financial assistance, or are provided by others through contracts or other arrangements with the recipient, including work opportunities, cash, or a loan.

(2)  Racial/Ethnic/National Origin Category – Identifies applicants and program participants by race, color, national origin, and ethnicity for the purpose of collecting and reporting racial/ethnic data.  For progress reporting purposes, the categories include race, color, national origin, ethnicity, and White, not of Hispanic origin (a person having origins in any of the original peoples of Europe, North Africa, or the Middle East).

(3)  Recipient – Any State, political subdivision of a State, or instrumentality of a State or political subdivision; a public or private agency, institution, organization, or other entity; or any individual in any State to whom Federal financial assistance is extended, directly or through another recipient, for any program or activity, including any successor, assignee, or transferee thereof.  Such terms does not include any ultimate beneficiary under such program.

(4)  Secondary Recipient – Any entity receiving Federal financial assistance through an intermediary, such as a recipient; for example, a construction contractor who receives funding through an NRCS sponsor.

(5)  Service Delivery Area – The area served by a service delivery point in the administration of NRCS-assisted programs.

(6)  Service Delivery Point – The place in which NRCS-assisted program services or benefits are administered to the public, usually a field office/service center serving a conservation district or districts, or an RC&D office supporting an RC&D council.

(7)  Technical Assistance – Assistance designed to help individuals, groups, organizations, and units of government to conserve soil, water, and related resources.

405.4  Responsibilities

The Secretary of Agriculture has delegated the responsibility to administer and enforce CR laws and regulations to the Assistant Secretary for CR (ASCR).  The Assistant Secretary for CR has further delegated this responsibility to the Chief of NRCS.

(1)  Chief—

(i)  Establish, implement, and maintain an effective, proactive, and comprehensive CR program to ensure that the intent of the different nondiscrimination laws and the Department's rules and regulations are effectively carried out in all programs and activities.  The program will provide evaluation, monitoring, and quality assurance in accordance with USDA and other CR policies;

(ii)  Ensure that adequate and appropriately trained and qualified staff and other resources are available to carry out the Agency's CR laws and regulations;

(iii)  Inform the USDA, Office of CR (OCR) of indications of program irregularities; and

(iv)  Ensure NRCS personnel are provided with the needed training to carry out CR responsibilities, and to be sensitive to all possible instances of discrimination.

(2)  Director, CRD—

(i)  Develop and coordinate the implementation of a comprehensive CR program to ensure compliance with nondiscrimination provisions as outlined in Section 405.2, "Major Authorities;"

(ii)  Serve as principal advisor and counsel to the Chief and other senior staff in regard to policy and operations covering nondiscrimination with respect to equal opportunity in conservation program delivery, and act as liaison for the Chief with governmental, community, minority, and grass roots organizations or groups;

(iii)  Develop standards and criteria for program activities that directly or indirectly involve NRCS equal opportunity and CR efforts such as, but not limited to, delivery of services, eligibility, compliance, monitoring, and data collection.  Review program regulations, directives, procedures, and guidelines to ensure that they meet equal opportunity and CR requirements;

(iv)  Ensure that all NRCS employees receive CR training on program discrimination complaint process, know how to recognize a program discrimination complaint, and be able to direct USDA applicants and participants to information regarding their right to file and how to file a complaint;

(v)  Act as CR Liaison for NRCS with OCR, USDA Office of the General Counsel, DOJ, and the U.S. Commission on CR;

(vi)  Conduct CR reviews and related inquiries of program administration at NHQ, the National Technical Service Centers, and the States to monitor and ensure compliance with CR laws and policies.  The review will be based on the CR Compliance Review Guide (Revised May 4, 2001), and the Director of CRD approves the report at the completion of the review.  The findings shall be discussed with State Conservationists (STC) or other appropriate NRCS managers in a close out session following each review.  Any NRCS unit found to be in noncompliance will implement corrective actions designed to achieve compliance with Federal CR requirements;

(vii)  Develop national standards, policies, and procedures for NRCS CR compliance reviews, and review other program appraisal guidelines and directives that directly or indirectly affect compliance and program delivery;

(viii)  Assist in the development and implementation of public notification policy;

(ix)  Ensure the nondiscrimination statement is on all national NRCS-initiated leaflets, pamphlets, and brochures;

(x)  Assist in the review and development of NRCS data collection and progress reporting systems to ensure that such systems provide adequate data for analyzing participation by all beneficiaries in NRCS programs and activities.  Ensure that the products generated by the collection systems satisfy needs of managers, the compliance review process, and the requirements of USDA.;

(xi)  Provide technical assistance to program managers in preparing CR Impact Analyses (CRIA) to examine CR implications of proposed Agency actions related to program development and delivery and decision making requirements;

(xii)  Forward all written complaints of discrimination in NRCS programs based on their race, color, national origin, sex, religion, age, disability, sexual orientation, marital and family status, political beliefs, parental status, protected genetic information, or because all or a part of an individual's income is derived from any public assistance program to OCR;

(xiii)  Monitor and evaluate progress to ensure equity in all program activities that directly or indirectly involve NRCS CR efforts such as delivery of services, collection of program eligibility data, evaluation of parity in program participation, and monitoring compliance in CR activities;

(xiv)  Provide guidance to STCs on the implementation of USDA and NRCS CR directives, rules, regulations, guidelines, policies, and procedures to ensure that CR objectives are met;

(xv)  Coordinate, collate, and prepare the State responses for the bi-annual CR performance report for NRCS;

(xvi)  Provide investigative or fact-finding assistance as needed;

(xvii)  Provide assistance, as requested, to ensure that NRCS employees who have contact with the public are trained in both program and employment discrimination complaint processes; and

(xviii)  Provide training, guidance, and assistance to individual State CR committees and SEPMs related to programs, projects, and activities.  Attend meetings of the National CR Committee.

(3)  Regional Assistant Chiefs, Deputy Chiefs, Division Directors, and Managers—

(i)  Implement CR policy through directives in consultation with the CRD Director in their areas of responsibility; and

(ii)  Consult and coordinate with the CRD Director regarding development of CRIAs.

(4)  STCs and Directors of the Caribbean and Pacific Islands Areas—

(i)  Implement CR policy through directives in consultation with the CRD Director in their areas of responsibility;

(ii)  Consult and coordinate with the CRD Director regarding development of CRIAs;

(iii)  Direct and coordinate program activities to reflect the nondiscrimination requirements and provisions of this General Manual (GM) and other program regulations.  Submit activity reports to the CRD Director to assist with the preparation of CR reports;

(iv)  Coordinate and monitor recipients’ compliance with contractual agreements and memorandums of understanding to ensure that their procedures and practices conform to NRCS CR policies and requirements;

(v)  Ensure that States and field offices maintain files and related documentation on CR compliance in program delivery;

(vi)  Promote the representation of women, minorities, and persons with disabilities on local boards, councils, and committees so that the natural resource interests and needs of such groups are received and addressed as conservation decisions are made and implemented;

(vii)  Ensure that Agency responses to discrimination complaints referred by the OCR are prepared by the appropriate STC and completed within the timeframe requested.  Information and findings related to the complaints, along with recommendations for corrective actions, are reported to the Director of OCR;

(viii)  Include CR compliance goals, objectives, and action items in strategic, business, or other operating plans; and

(ix)  Ensure that all employees receive annual CR training and that they fully understand their CR responsibilities.

405.5  Public Notification Procedures

A.  In compliance with DR 4300-3, “Equal Opportunity Public Notification Policy,” the Chief of NRCS shall establish programs to ensure that all persons know about the availability of and how to use NRCS program services effectively and are encouraged to participate.

B.  NRCS must implement a public notification program that meets the following requirements:

(1)  Include the appropriate nondiscrimination statement on all materials produced by USDA or NRCS and its recipients for public information, public education, or public distribution.  If the material is too small to permit the full statement, the material will, at minimum, include “The USDA is an equal opportunity provider and employer,” in print size no smaller than the text;

(2)  Ensure through review processes that recipients are complying with public notification requirements;

(3)  Ensure that notices of the USDA nondiscrimination statement are prominently posted in NRCS’ and its recipients’ offices.  The USDA posters “And Justice for All” (Form AD-475A for NRCS offices and Form AD-475C for recipient offices) and the Secretary’s nondiscrimination poster will be used for this purpose.  The nondiscrimination statement shall be posted in languages appropriate for the local population;

(4)  Include appropriate reference to USDA equal opportunity policy in public speeches and meetings.  Do not participate in meetings with the knowledge that the meetings were convened to avoid compliance with applicable nondiscrimination statements; and

(5)  Provide materials in alternative means of communication (Braille, large print, audiotape, etc.) upon request.

405.6  Limited English Proficiency (LEP)

A.  Pursuant to EO 13166, “Improving Access to Services for Persons with Limited English Proficiency,” NRCS is committed to providing equal access to its programs and services by persons with LEP. 

B.  The key to providing equal access for persons with LEP is to ensure that the individual is aware of NRCS programs and services and can communicate effectively with the service provider.  The service provider must ensure that the person with LEP is given adequate information, is able to understand the services and benefits available, and is able to receive those services and benefits for which he or she is eligible.  NRCS also must ensure that the person with LEP can effectively communicate the relevant circumstances of his or her situation to the service provider.

C.  In reviewing complaints and conducting compliance reviews, NRCS will consider a program or activity to be in compliance with LEP requirements when the service provider effectively incorporates and implements the following four elements:

(1)  Assessment – Conducts a thorough annual assessment of the language needs of the population to be served.

(2)  Development and implementation of a written policy on language access - Develops and implements a comprehensive written policy that will ensure meaningful communication.  This plan is amended on an annual basis, as needed, depending on the local service population.

(3)  Training of staff – Takes steps to ensure that staff understands the policy and is capable of carrying it out.

(4)  Monitoring – Conducts regular oversight of the language assistance program to ensure that LEP persons can meaningfully access the program or activity.  The failure to implement one or more of these measures does not necessarily mean noncompliance with Title VI.  If implementation of one or more of these options would be so financially burdensome as to defeat the legitimate objectives of a service provider's program or activity, and if there are equally effective alternatives for ensuring that persons with LEP have meaningful access to programs and services, the service provider will not be determined or considered to be in noncompliance.  However, in reviewing the service provider’s compliance, NRCS will seek the documentation and evidence that the service provider considered and, when appropriate, incorporate these elements into their LEP programs.

D.  Barriers and Concerns in LEP

(1)  Providing services to LEP persons which are more limited in scope or lower in quality than those provided to other persons;

(2)  Subjecting LEP persons to unreasonable delays;

(3)  Limiting participation in a program or activity on the basis of English proficiency;

(4)  Providing services to LEP persons that are not as effective as those provided to persons proficient in English; and

(5)  Failing to inform LEP person of the right to receive free interpreter services or requiring them to provide their own interpreter.

405.7  Data Collection and Reporting

A.  The 28 C.F.R. Part 42.406 authorizes agencies to collect information on race, sex, national origin, and disability (RSNOD), as appropriate, to determine compliance in program delivery.

B.  Each STC will be responsible for collecting and reporting participation and eligibility data from each NRCS program office.  The data will be analyzed each year to measure delivery of program benefits in order that the benefits and services delivered to protected groups can be documented, evaluated, and compared to benefits delivered to non-minority groups.  The analysis shall be used to determine disparities in delivery or program benefits by RSNOD categories and to identify areas of outreach efforts, provide status reports at the field office level, and measure progress made regarding program delivery on a nondiscriminatory basis.

C.  The reporting system that will collect and report data to measure program participation shall be the Agency's official database.  The system will be used to identify:

(1)  The composition of customers serviced by RSNOD;

(2)  The total number of applicants and participants in programs, activities, and specific services or benefits, as appropriate, by RSNOD;

(3)  Memberships on local and national planning and advisory boards and committees by RSNOD; and

(4)  Data on service areas where persons with LEP reside by race and national origin.  This data also should include the primary language of each group, estimated number of persons in each group, and the number of Agency staff who are bilingual in the identified languages.

405.8  Representation on Boards, Councils, and Committees

A.  The NRCS policy is to encourage, support, provide training, and assist all conservation boards, councils, and committees to achieve diverse representation of customer groups on such boards, councils, and committees.  It is the responsibility of NRCS managers and supervisors to provide support, training, and assistance to Agency employees that identify and assist with this diversity effort.

B.  To implement the NRCS policy, the STC will continue discussions with NRCS partners to promote an atmosphere of mutual understanding and cooperation and to address the issues of representation of minorities, women, and persons with disabilities on boards, councils, and committees.  Such discussions should emphasize that diversity is in the best interest of their organization.

C.  The STC shall take appropriate actions relative to the NRCS Plan of Action for representation on boards, councils, and committees, as contained in Section 405.19, Sample Plan of Action.  This plan will remain in force until NRCS policy on the subject is revised or changed.

405.9  CR Compliance Reviews

A.  Onsite and desk audit compliance reviews in program delivery shall be conducted periodically to ensure that NRCS programs are operated in compliance with nondiscrimination requirements.  Such reviews shall cover NRCS operations in all organizational units and recipients.  It is NRCS policy to inform every recipient of the requirement to participate in CR compliance reviews.  These reviews may be conducted separately, or as part of a routine program appraisal.

B.  The CRD Director will develop annual and long-term schedules for CR compliance reviews of NRCS administrative units, including States and other NRCS units.  The annual schedule will identify the locations and dates of compliance reviews to be conducted during the upcoming fiscal year.  The long-term schedule will ensure compliance with DOJ and Departmental rules and regulations that mandate reviews be conducted every 3 to 5 years.  The compliance reviews will evaluate and monitor progress in program delivery and assure continuous compliance with nondiscrimination regulations.  Reports from reviews conducted by CRD will contain the signature of the CRD Director.

C.  STCs shall conduct periodic (every 3 to 5 years) compliance reviews of area, field, and project offices to evaluate and monitor progress in program delivery compliance with nondiscrimination regulations.

D.  The office performing compliance reviews will prepare and issue a report on the findings, noncompliance, recommendations, and commendable items.  Review reports will be provided to the appropriate NRCS official of the location being reviewed upon completion of the review.  The report should be completed within 10 working days following the review.

E.  If a review discloses noncompliance that results in required actions or recommendations, corrective actions must be taken, or a plan to correct the deficiencies must be completed within 30 days after issuance of the review report.  States also are required to respond to the recommendations and include them in their corrective action plan.  An update status of the corrective actions must be provided quarterly to CRD until the deficiency is corrected.  When all required actions are satisfactorily completed, the review will be closed.  Copies of the last two CR reviews shall be retained in the reviewed office.  This information shall be made available to all authorized personnel in NRCS, USDA, and DOJ upon request.  All reports will include the statement “For Official Use Only.”

F.  Special on-site or desk audit reviews will be conducted by the CRD Director, or when required, by OCR.  The selection of a particular State or area for a special compliance review is based on, but not limited to, such factors as:

(1)  The number of discrimination complaints filed;

(2)  When NRCS receives an allegation that reflects prima facie evidence of noncompliance;

(3)  When NRCS determines that there is sufficient evidence of discrimination that requires immediate action;

(4)  When a review of NRCS statistical data reveals a disparity of 10 percent or more in program participation for two or more consecutive years; and

(5)  When it is reported to NRCS and USDA that a protected class is being discriminated against in a specific program in a particular location.

G.  For State-level compliance reviews, USDA’s service center agencies, which include the Farm Service Agency, NRCS, and Rural Development will have created an Inter-Agency Accessibility Review Team (ART) that will conduct State-level accessibility reviews of service centers and State offices.  The duties will be shared between ART members on the reviews.  ART will be established in each State. 

H.  ART will annually plan office reviews; each office will be reviewed every 5 years coinciding with the upcoming date of the lease renewal.  For those service centers where only one or two agencies are represented, only the applicable agencies’ representatives will conduct the review.  Notification of the reviews will be sent out using a joint letter.  Upon completion of the reviews, the State Food and Agricultural Council will approve/disapprove the reviews and the corrective actions. 

I.  The accessibility review will be conducted using AD-2056.  If the lease was entered into before February 6, 2007, under the Uniform Federal Accessibility Standards, then the corrections may be delayed until the lease is renewed under the Architectural Barriers Accessibility Standards.  Upon the completion of the review and the concurrence of all the agencies, copies of the signed review will be forwarded to each Agency’s office in the service center, and the agency’s national CR office no later than September 15 annually.  NRCS’ copy should be forwarded to CRD. 

405.10  CR Compliance by Recipients of Federal Financial Assistance

A.  Pre-Award

(1)  Compliance with applicable CR laws is a prerequisite for approval of an application for Federal financial assistance.  In making decisions to render Federal financial assistance, NRCS will ensure that prospective recipients meet the following requirements:

(i)  Assurances.  Each applicant for Federal financial assistance must execute an assurance of compliance as a condition for receiving assistance.  If the applicant refuses to sign the required assurance, NRCS will send a notice of noncompliance to the applicant and provide the applicant with an opportunity for a hearing or other statutory procedural options.  If the applicant refuses its rights to a hearing or does not prevail at the hearing, then NRCS may exercise one of two options:

    • Defer the decision on the provision of Federal financial assistance until such time as the applicant signs the assurance; or
    • Deny the applicant’s request for Federal financial assistance.  At no time during this stage of the process does NRCS have to allege or offer evidence of noncompliance; they only have to show a failure to sign the required assurance.

(ii)  Assurance Nondiscrimination Clause Included in Agreement.  The program or activities conducted under the agreement will be in compliance with the nondiscrimination provisions contained in Titles VI and VII of the CR Act of 1964, as amended; the CR Restoration Action of 1987 (PL 100-259); and other nondiscrimination statutes namely, Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Americans with Disabilities Act of 1990.  They will also be in accordance with regulations of the Secretary of Agriculture (7 C.F.R. 15 (15a and 15b)), which provide that no person in the United States shall, on the grounds of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or familial status, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from USDA or any Agency thereof.

(iii)  Pre-Award Data Collection.  In addition to providing an assurance of compliance, applicants for Federal financial assistance must also disclose, in writing, to NRCS a description of:

    • All lawsuits and complaints filed against it;
    • Assistance applications pending in other Federal agencies and other Federal assistance being provided;
    • Any CR compliance reviews it has undergone during the preceding 2 years; and
    • Any findings of noncompliance with any relevant CR requirements.

(2)  Recipients of Federal financial assistance from NRCS are required to obtain assurances of compliance and pre-award data from sub-recipients, maintain the assurances and data on file, and make them available to NRCS funding officials.

(3)  If sub-recipients refuse or fail to execute an assurance of compliance or provide pre-award data, recipients are authorized to defer a decision on the sub-recipient’s application; seek a voluntary resolution; or if no resolution is reached, refuse to award assistance (after complying with statutory procedural requirements).  In such situations, the recipient is required to provide notice of its actions to NRCS.

B.  Post-Award

(1)  Scope.  It is within the discretion of the Chief or CRD Director to determine the scope of any post-award compliance review.  A post-award compliance review may be a comprehensive onsite investigation or a desk audit, which is a limited review of the documentation submitted to NRCS or CRD by the recipient.  Desk audits may include onsite visits.

(2)  Targeting Requirements.  NRCS has a broad discretion in determining which recipients and sub-recipients will be targeted for post-award compliance; the selection of recipients and sub-recipients for such reviews must be:

(i)  Authorized by statute(s) to which the recipient is subject;

(ii)  Properly limited in scope; and

(iii)  Pursuant to evidence of an existing violation or an administrative plan containing specific neutral criteria.

(3)  Establishing Criteria.  In establishing criteria for targeting recipients and sub-recipients for post-award compliance reviews, NRCS will consider:

(i)  Objectives and initiatives targeted in NRCS strategic plans;

(ii)  Issues frequently identified as problems faced by program beneficiaries;

(iii)  Geographic areas where problems have been identified or geographic areas in which there has been little compliance activity;

(iv)  Issues raised in complaints or identified during complaint investigations that could not be fully covered within the scope of the complaint investigation process;

(v)  Problems and concerns identified by community groups, advocates, and others representing beneficiaries and protected groups;

(vi)  Issues flagged to the recipient by its block grant recipients; and

(vii)  Issues and problems identified by other Federal, State, or local CR agencies.

(4)  Recipient Compliance Obligations.  State agencies administering a continuing program which receives Federal financial assistance will establish a compliance program for themselves and other recipients that obtain Federal assistance through them.  Each such program must provide for the assignment of CR responsibilities as they relate to federally-assisted programs to designated State personnel and comply with the standards set for USDA agencies.  All recipients will submit:

(i)  Periodic compliance reports to NRCS from which they receive Federal financial assistance;

(ii)  Where appropriate, reports of conducted field reviews of a representative number of its major sub-recipients; and

(iii)  Records and data necessary to self-monitor and to permit NRCS officials to determine their compliance status.

405.11  Resolution of Non-Compliance Reviews

A.  A determination of noncompliance will result when any CR compliance reviewer of NRCS offices finds that a CR guideline, instruction, directive, regulation, or issuance is not being adhered to in respect to program delivery.  The CRD Director will make determinations of noncompliance under the nondiscrimination statutory provisions enumerated in this issuance.  For reviews, the effective date of a finding of probable noncompliance is the date of issuance of the compliance review report.

B.  Departmental regulations require the resolution of noncompliance by voluntary means whenever possible.  The CRD Director is responsible for notifying STCs or other program managers, in writing, of the noncompliance status and to take appropriate actions to achieve compliance through voluntary means within 30 days.  Direct contacts, correspondence, and meetings should be used to assist in achieving voluntary compliance.

C.  If all reasonable efforts fail to achieve compliance through voluntary means, the CRD Director will notify the Chief of NRCS, who in turn, will take appropriate action.

405.12  Complaints of Program Discrimination

A.  All written program discrimination complaints must be forwarded to the Secretary of Agriculture within 24 hours at the point of receipt.  The Department will prepare and issue the acknowledgement letter to the complainant(s).

B.  When a potential beneficiary alleges discrimination informally, it is important to determine the exact problem or cause.  NRCS employees should use a common sense approach to manage these issues, and attempt to resolve the problem at the local level.  Supervisors and managers are required to provide training and assistance on the management of these and other written complaints.

C.  In response to notification of formal discrimination complaints from the OCR, the CRD Director will:

(1)  Facilitate the Agency’s response to allegations raised by the discrimination complaint and will submit to the Director of OCR the official response within 24 days after receipt of the complaint.  The response will contain:

(i)  Admission of all statements/allegations in the complaint with which the Agency agrees;

(ii)  Denials of all statements/allegations in the complaint with which the Agency does not agree;

(iii)  Explanation of the Agency's inability to agree or disagree with statements/allegations in the complaint;

(iv)  Explanation from the Agency's perspective of the event(s) that led to filing the complaint.  Include any possible misunderstanding/miscommunication that occurred.  The Agency's answer to each of the complainant's allegations of discrimination, along with suggested recommendations for corrective actions where appropriate;

(v)  A statement of the law, policy, or other basis on which the Agency relied to justify the decision, action, or inaction;

(vi)  The Agency's interpretation of such pertinent law, policy, or other basis;

(vii)  Copies of pertinent laws, regulations, and policies;

(viii)  Comparative data/information, if available, relating to situations similar to the complainants which involved other customers of the Agency;

(ix)  Additional material facts not mentioned in the complaint;

(x)  A photocopy of the customer's file; and

(xi)  Other documents related to the complainant's allegations.  Signed statements from Agency personnel may be included; however, no statements (written or oral) shall be taken from the complainant or anyone who may be sympathetic to the complainant.  Any such contact could be considered to be reprisal.

(2)  Attempt to resolve program complaints, where appropriate, using conciliation and other methods of early intervention;

(3)  Review relevant data and related information with STCs to substantiate suggested recommendations and/or corrective actions required;

(4)  Monitor progress relative to corrective actions taken to achieve compliance;

(5)  Conduct CR investigative reports as required; and

(6)  Act in a timely manner to follow through on CR investigative reports and recommendations, assist States in developing a corrective action plan, and submit periodic progress reports to the Director of OCR as required.

405.13  Reprisal, Intimidation, or Retaliatory Acts

No agency, officer, or employee of USDA, including persons representing USDA and its programs, shall intimidate, threaten, harass, coerce, discriminate against, commit, or seek reprisal against anyone who participates in any aspect of the discrimination complaint process.

405.14  Agency Contact with Complainant

The Agency is only permitted to contact the complainant with an offer of resolution.  If the complainant refuses such contact, the Agency will not persist.  Additionally, no contact is allowed with the complainant or anyone sympathetic to the complainant.

405.15  Agency Resolution Efforts

During the 24-day Agency response period:

(1)  The Agency should attempt to resolve the complaint;

(2)  If the complainant refuses such contact/attempt, the Agency shall not persist; and

(3)  If a resolution is reached, the Agency shall promptly forward the resolution to OCR for review.

405.16  Adverse Inference

If the Agency fails to submit a resolution or a response signed by the CRD Director within 24 days:

(1)  USDA, OCR will infer that the Agency agrees with all allegations in the complaint.

(2)  The Agency may not thereafter challenge any facts alleged in the complaint.

405.17  Agency Implementation of Decision or Settlement

A.  Implementation must be within 10 business days following notification to the Agency from OCR.

B.  The Agency is to notify OCR, in writing, when implementation has taken place.

C.  If OCR has not received notification of implementation within 10 business days, the Agency head will be notified and given 3 additional days to comply.

D.  If the Agency does not notify OCR of implementation within a 3-day period, the Director of OCR will implement.

405.18  Training

A.  All employees assigned or having program delivery responsibilities will receive CR compliance training within 6 months after assuming such responsibilities.

B.  All employees at all levels will receive periodic training in CR compliance as an effective means to reinforce awareness, knowledge, and understanding of the Agency's overall CR mission.  Each NRCS planning and reporting unit or entity is required to provide CR training for its staff.  The date, place, name, number of participants, and the content of the training provided and/or received.

C.  All supervisors and managers will include CR as a topic in their staff meetings.

D.  All employees will receive CR training to ensure that persons responsible for CR in program delivery understand those responsibilities.  NRCS’ recipient officials and their employees will be provided the opportunity for CR training.  This training will include information regarding their roles and responsibilities with respect to CR.

E.  Training in CR laws and regulations will be an integral part of NRCS management training.  Training will include the employee's responsibility for delivery and/or supervision of NRCS program benefits to potential beneficiaries.  CR training will include, but is not limited to, the following:

(1)  A discussion of laws, rules, and regulations which are pertinent to the delivery of NRCS programs and services;

(2)  The identification of specific supervisory and employee responsibilities and duties in the accomplishment of CR compliance in program delivery, consequences of any noncompliance status, the provisions of this GM issuance, and related DRs;

(3)  The improvement in the operation of the CR compliance functions within NRCS;

(4)  The information needed to gain an understanding of programs subject to CR compliance, and to recognize examples of compliance and noncompliance with nondiscrimination provisions in a program or activity;

(5)  The identification of specific actions which are essential to eliminate or reduce possible discrimination in the delivery of NRCS programs and services;

(6)  The development of skills for conducting CR compliance reviews, giving attention to data needs, documentation, determining noncompliance or compliance, accomplishments, etc. that may surface during the course of a CR compliance review.

(7)  The discussion of positive benefits of CR compliance reviews as a management tool, and the commitment of staffs to the review function as an integral part of program administration;

(8)  The development of knowledge and skills in implementing program outreach initiatives as required under the Public Notification Plan;

(9)  The development of knowledge and skills in fully responding to the NRCS Compliance Review Guide;

(10)  The development of a clear concept of program participation data and its significance to achieve parity of program participation both in providing technical assistance and extending program benefits;

(11)  The development of an understanding in handling and processing potential formal program complaints of discrimination; and

(12)  The development of skills to evaluate the compliance posture of recipient groups or organizations for NRCS’ assistance prior to the approval of that assistance.

[GM_230_405_A - Amendment 26 - September 2008]

Subpart B - Exhibits

405.21

DEPARTMENTAL REGULATION NUMBER:
4330-1
SUBJECT:
DEPARTMENTAL POLICY FOR PROGRAM
DATE:
June 27, 1986
COMPLIANCE REVIEWS OPI:
Office of Advocacy and Enterprise

 

Section Page
1 Purpose 1
2 Cancellation 1
3 Policy 2
4 Abbreviation 2
5 Definitions 2
6 References 2
7 Responsibilities 3
8 Types of Program Compliance Review 4
9 Compliance Review Report and Distribution 8
10 Follow up Action on Findings of Noncompliance 9
11 Referrals and Interagency Cooperation 9
12 Annual Implementation Plan 10

Appendix A

1 General Compliance Requirements
2 Specific Compliance Requirements

Appendix B

1 Securing Voluntary Compliance
2 Formal Enforcement Procedures
3 Post Termination Proceedings

1 PURPOSE

The purpose of this regulation is to establish policy, provide guidance, and unify compliance review systems for all USDA agencies.

2 CANCELLATION

This regulation replaces Chapter 2, Section 1, of 9AR.

3 POLICY

USDA agencies are required to have a compliance review system. Compliance reviews at all levels of administration are reliable means of identifying compliance and noncompliance in each program's delivery of benefits and services. The civil rights laws and USDA nondiscrimination regulations are the standards by which compliance reviews measure the overall effectiveness of program delivery of Federal assistance. See Appendix A for Compliance Requirements.

4 ABBREVIATIONS

OAE-EO-Office of Advocacy and Enterprise-Equal Opportunity.

5 DEFINITIONS

Compliance reviews. Regular, systematic inspections and evaluations of USDA program and services delivery systems to determine compliance with civil rights laws and Department nondiscrimination regulations.

6 REFERENCES

A. Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-2000d-4, which prohibits discrimination based on race, color, or national origin.

B. Title IX of the Education Amendments of 1972, 20 U.S.C. 1681-1686, which prohibits discrimination based on sex or blindness in educational programs.

C. Section 504 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. 794, which prohibits discrimination based on handicap.

D. Age Discrimination Act of 1975 (42 U.S.C. 6101-6107), which prohibits discrimination based on age.

E. Section 701 of the Equal Credit Opportunity Act, 15 U.S.C., 1691, and implementing regulations of the Board of Governors of the Federal Reserve System, 12 CFR Part 202, which prohibits discrimination on the basis of race, color, religion, national origin or marital status or age in credit transactions.

F. Title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3601-3619 which prohibits discriminatory housing practices.

G. Executive Order 12250, Leadership and coordination of nondiscrimination laws.

H. Department of Justice Guidelines for the Enforcement of Title VI, Civil Rights Act of 1964, 28 CFR 50.3.

I.  Department of Justice Regulations for the Coordination of Enforcement of Nondiscrimination in Federally Assisted Programs 28 CFR 42.401 to 42.415.

J. USDA Nondiscrimination regulations, 7 CFR Part 15.

7 RESPONSIBILITIES

A. OAE-EO will:

(1) Provide leadership and coordination for the Department's civil rights program to ensure agency compliance with civil rights laws and USDA nondiscrimination regulations.

(2) Revise and develop, with agency assistance, Departmental standards for conducting compliance reviews.

(3) Provide guidance to agencies regarding technical assistance and compliance review procedures.

(4) Provide training to agencies on Department civil rights policies and, upon request, assist the agencies to develop training materials.

(5) Evaluate the provision of services to recipients and/or beneficiaries by monitoring the compliance activities of agencies.

B. Agencies will:

(1) Develop and maintain systems to implement the Department's policy for conducting compliance reviews.

(2) Provide adequate resources and personnel to support the established compliance systems.

(3) Collect and maintain the required records and data necessary to determine compliance or noncompliance in their programs.

(4) Follow-up on findings of noncompliance to ensure that corrective action is taken.

(5) Refer and exchange noncompliance information when a recipient is found in noncompliance and is the recipient of financial assistance from another Federal agency.

(6) Provide civil rights compliance training for their program staffs and recipients who conduct reviews.

(7) Prepare and follow its Annual Implementation Plan.

(8) Make available records of compliance review activities for evaluation by OAE-EO.

8 TYPES OF PROGRAM COMPLIANCE REVIEWS

There are three types of reviews used to determine a program's compliance. They are: Required Reviews by Agencies; Assessment Reviews by Agencies and OAE-EO; and, Special Reviews by Agencies and/or OAE-EO.

A. Required Reviews by Agencies. USDA Agencies which provide Federal assistance are required to review their programs for continuous compliance with civil rights laws and USDA nondiscrimination regulations. This is to be accomplished by conducting pre-award and post-award reviews.

These reviews may be conducted separately or as part of a program review.

(1) A pre-award review is an evaluation of the compliance posture of an applicant for USDA assistance prior to the approval of that assistance. Applicants likely to be approved for USDA assistance are subject to a pre-award review.

(2) A post-award review is an inspection and/or evaluation of the program's delivery system after USDA assistance has been provided or extended. The agency's system for conducting post-award reviews may be cyclic, in that all programs will be reviewed within a set period of time, or, the reviews may be based on a priority system. Review priorities should be based on agency determinations of the potential for noncompliance problems within individual assistance programs.

(3) Some programs may require annual reviews, others may require a review every three to five years. The Agencies will determine which method best serves their objectives and reflect their decision in the Annual Implementation Plan submitted to OAE-EO.

B. Assessment Reviews by Agencies and OAE-EO

(1) Agencies have many levels of administration. Policy decisions, directives and guidelines flow from the National Office to the various levels of field and recipient offices. Assessment reviews are inspections and/or evaluations based on the following suggested criteria. The criteria will be used by agencies and OAE-EO to determine the need for an assessment review and the particular geographical area of a given program to be reviewed. The criteria are not all-inclusive and agencies may include other criteria as necessity requires. They are as follows:

(a) Receipt of a disproportionate number of complaints in a particular program or geographical area.

(b) Program data which indicates an unexplained decrease in minority participation in an agency program.

(c) Referral by an outside source of a complaint about a USDA program involving any part of USDA, e.g., U. S. Commission on Civil Rights.

(d) Disclosure through an Office of Inspector General investigation of civil rights irregularities to OAE-EO or program agencies for follow-up action.

(e) Recommendations or special requests, e.g., Congress, Secretary of Agriculture, Office of Inspector General, Agency Administrator.

(f) Information indicating lack of basic civil rights enforcement conditions, e.g., no valid assurances, no system of public notification.

(g) Media reports of possible civil rights violations in USDA programs.

(h) Participation data which indicates inequitable distribution of benefits and services based on the economic and demographic profiles of a program area.

(i) Complaint findings of discrimination that indicate the need for a compliance review of the program area.

(j) Information from a required agency review that warrants a more in-depth field review of a program office.

(k) Random selection of desk reviews which reveal that agency review reports are consistently inadequate and poorly executed.

(2) Assessment Reviews are of two kinds. On-site field reviews and desk reviews. On-site field reviews are regularly conducted by the program agencies of their tiers of responsibility and periodically by OAE-EO.

(a) OAE-EO may review a single agency or conduct, with agency assistance, a multi-agency review of many agency programs in a larger geographical area. Field reviews require coordination with National, Regional, State and local program officials. A written report showing the compliance status of the program reviewed is normally generated as a result of field reviews.

(b) In addition to field assessment reviews, agencies and OAE-EO are responsible for desk assessment reviews of civil rights activity at all levels of agency operations. These desk reviews may be systematically scheduled or chosen at random. Agencies are to respond to OAE-EO's request for particular reviews and information within a specified time. OAE-EO will report its findings to the agencies within a specific time.

C. Special Field Reviews. Special field reviews are unscheduled and may be conducted by either an agency and/or OAE-EO. The OAE-EO criteria for initiating a special field review are:

(1) When an agency of USDA receives an allegation that reflects prima facie evidence of noncompliance, an immediate review is to be conducted to determine the validity of the allegation.

(2) When it is reported to USDA that a protected class is being discriminated against in a specific program in a particular location, either the agency or OAE-EO is to review the program project area immediately to resolve the class action conflict.

(3) When an agency determines that there is sufficient evidence of discrimination which requires immediate action.

(4) Whenever an agency conducts a special field review the agency will forward a copy of the review report to OAE-EO. When OAE-EO conducts the review, they will forward a copy of the review report to the agency.

9 PROGRAM COMPLIANCE REVIEW REPORT AND DISTRIBUTION

A. Each agency's report will reflect, at a minimum, civil rights laws and compliance requirements. A suggested reporting format follows:

(1) Table of Contents. The table of contents includes sections of the report for each program or project reviewed and supporting documents.

(2) Background. The background includes the subject and reason for the review; a brief profile of the recipient; the scope of the program operation; the time period covered by the review; and, the names of the reviewers.

(3) Summary. The summary is a brief resume containing the specific program area reviewed and the results of the review with an explanation given for noncompliance.

(4) Recommendations. This section indicates specific corrective actions required to resolve situations in which the program operation denies equal opportunity of participation. Recommendations can be made to improve program operations.

(5) Details of Findings. This section sets forth facts in a clear and concise manner to include those findings that require corrective action.

B. Although a narrative report is suggested, reports are acceptable in which yes or no answers are given to specific questions.

C. Report distribution will be governed on a need to know basis. However, distribution must be made to ensure that corrective action is defined and implemented as required.

D. While agencies have the latitude to determine the internal routing for distribution of the report, OAE-EO suggests that the office positioned one level above the unit reviewed also receive a copy of the report, where appropriate.

E. Distribution of the report will also include referrals to other Federal agencies as necessary.

10 FOLLOW-UP ACTION ON FINDINGS OF NONCOMPLIANCE

A. In all findings of noncompliance, agencies are responsible for ensuring that corrective action is taken to resolve known equal opportunity problems and discriminatory practices. The agency is responsible for notifying the recipient in writing of the corrective action needed and the 30-day period given for the recipient to respond with a plan of corrective action.

B. Agencies have the responsibility of reporting to OAE-EO all cases pending for more than 60 days in which voluntary compliance has not been achieved. OAE-EO has the responsibility of determining the efficiency of the corrective action. When further corrective action is necessary, OAE-EO, with the assistance of the program agency, will determine what additional corrective action is needed to achieve voluntary compliance. OAE-EO has the additional responsibility, in those cases where compliance has not been achieved within a 60 day period, to report the facts of the noncompliance to the Department of Justice in accordance with 28 CFR 42.411. See Appendix B for Enforcement Procedures.

11 REFERRALS AND INTERAGENCY COOPERATION

A. When OAE-EO or an agency acquires information concerning a recipient's noncompliance that does not fall within the jurisdiction of USDA programs, the information is to be promptly referred to the appropriate Federal agency.

B. When an agency conducts a compliance review or investigates a discrimination complaint against a recipient and discovers the recipient to have received financial assistance or has an application pending from another Federal agency, the agency will notify the other agency of the review or investigation and refer the findings of the review and/or investigation.

C. Agencies are to cooperate with the lead Federal agency in resolving issues of noncompliance.

12 ANNUAL IMPLEMENTATION PLAN

A. Each agency is responsible for preparing an Annual Implementation Plan. Agencies may use data developed for submission of the OMB A-11 Report to respond to items needed for the Annual Implementation Plan. The plan will identify by program, the agency program offices, recipients, local project areas, and subrecipients, the number of and dates of review, locations of all required and assessment reviews to be conducted during the year of the plan. The frequency and location of the assessment compliance reviews may be based on the criteria and conditions presented earlier.

B. The implementation plan will also include all training plans, staff allocations, and plans for the development of regulations and/or amendments for the year of the plan. The plans must be submitted to OAE-EO fifteen days prior to the beginning of the fiscal year.

 

APPENDIX A
COMPLIANCE REQUIREMENTS

1 GENERAL REQUIREMENTS

A. Laws and Regulations

All USDA programs will be administered in accordance with the requirements of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, the Equal Credit Opportunity Act, the Fair Housing Act, Executive Orders, Department of Justice's regulations enforcing nondiscrimination requirements, and Departmental and Agency regulations. Compliance ensures equal opportunity in all aspects of delivery of benefits and services to the public without regard to race, color, national origin, sex, age, and handicap.

B. Definitions

(1) The word Minority is used to designate a person or group of persons belonging to the protected classes covered by the Civil Rights Act of 1964. They are the following:

(a) American Indian or Alaskan Native. A person having origins in any of the original peoples of North America, and who maintains cultural identification through tribal affiliation or community recognition (includes Aleuts and Eskimos).

(b) Asian or Pacific Islander. A person having origins in any of the original peoples of the Far East, Southeast Asia, and Indian Subcontinent, or the Pacific Islands. This area includes, for example, China, Japan, Korea, the Philippines Islands and Samoa.

(c) Black (Not of Hispanic Origin). A person having origins in the black racial groups of Africa.

(d) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race.

(2) The racial/ethnic category identifies applicants and program participants by race, color, national origin and sex for the purpose of collecting and reporting racial/ethnic/sex data. For reporting purposes the categories include the four above, and White (Not of Hispanic Origin), person having origins in any of the original peoples of Europe, North Africa, or the Middle East.

2 SPECIFIC REQUIREMENTS

The following is a listing of items that should be addressed in a compliance system:

(1) Public Notification

The purpose of public notification is to inform participants and applicants (minority and non-minority) of their program rights and responsibilities, the policy of nondiscrimination and the procedures for filing a complaint. Agencies are responsible for ensuring that all programs include a public notification system. Effective public notification ensures:

(a) That each recipient or program office takes action to inform program applicants and participants, particularly non-English speaking minorities, of their program rights and responsibilities and the steps necessary for participation;

(b) That each recipient or program office advises applicants and participants at the service delivery points, of their right to file a complaint, how to file, and the complaint procedures;

(c) That all information used by the agency or program recipients to inform the public about the program will contain the appropriate nondiscrimination statement;

(d) That each recipient or program office provide bilingual services and information as appropriate;

(e) That each recipient or program office provide information services to applicants and participants who are visually or hearing impaired as appropriate;

(f) That each recipient or program office take specific action to inform the general public, community leaders, grass roots organizations, and referral sources about the Agencies' programs and applicable civil rights requirements; and

(g) That each recipient or program office displays in its photographs and other graphics used to provide program related information, participants of different races, colors, sexes, and national origins to convey the message of equal opportunity.

(2) Data Collection and Reporting. The purpose of collecting racial/ethnic/sex participation data is to assist in determining both quantitatively and qualitatively how effectively agency programs are reaching covered groups, assist in the selection of locations for special field reviews, provide input for the annual evaluation report for OAE-EO and input for agency management analysis. Each agency is responsible for maintaining the required racial/ethnic/sex data. Agency responsibilities include:

(a) Ensuring that each recipient or program office has a system for collecting racial/ethnic/sex participation data and eligibility data for their program, e.g., governing and advisory boards and covered employment.

(b) Ensuring that the data is maintained for three fiscal years, under safeguards which will limit access of records to authorized personnel.

(3) Compliance Review. The purpose of compliance review is to determine, through program monitoring, if programs are operated in compliance with civil rights requirements and regulations of the Department. Compliance review includes required, assessment, and special reviews. Agency responsibilities include:

(a) Ensuring that all potential recipients are in compliance with civil rights requirements prior to approval of Federal program assistance;

(b) Notifying the recipients in writing immediately of any noncompliance situation and giving them an opportunity to take corrective action prior to further action.

(c) Conducting required and assessment compliance reviews of their tiers of program responsibility.

(d) Ensuring that Departmental civil rights standards are part of the required and assessment review coverage.

(e) Ensuring that corrective action is implemented on noncompliance findings and reports are forwarded to OAE-EO in noncompliance situations not corrected within 60 days.

(f) Conducting special reviews pursuant to criteria stated in Departmental regulations.

(4) Noncompliance Resolution. In a noncompliance situation, civil rights regulations require that efforts be made to the fullest extent practical to obtain voluntary compliance. Agencies are required to provide assistance and guidance to help achieve full compliance. Agency responsibilities include:

(a) Providing appropriate notice of noncompliance;

(b) Taking proper action when voluntary corrective action cannot be achieved by negotiation with the recipient agency; and

(c) Advising OAE when voluntary compliance cannot be achieved by negotiation and appropriate documentation.

(5) Complaints of Discrimination. The purpose of this requirement system is to ensure that complaints are accepted and handled in accordance with Departmental regulations. Agency responsibilities include:

(a) Forwarding all complaints alleging discrimination to the National Office, for processing;

(b) Performing preliminary inquiries on complaints referred by OAE-EO, as required;

(c) Preparing inquiry reports and reporting findings with suggested recommendations;

(d) Reviewing all tiers of agency complaint procedures to determine if the procedures meet regulatory requirements; and

(e) Ensuring that corrective action is taken on any noncompliance situation disclosed during an inquiry.

(6) Assurances. The purpose of this requirement is to ensure that written assurance agreements are obtained from all recipient agencies applying for Federal financial assistance, and to ensure that current assurance agreements are maintained. Agency's responsibilities include:

(a) Obtaining written assurance of nondiscrimination agreements from recipients;

(b) Ensuring that primary recipients obtain the assurance from local recipient agencies who extend program services and benefits; and

(c) Reviewing, approving, and monitoring the assurance agreements.

(7) Civil Rights Training. The purpose of the civil rights training requirement is to ensure that persons responsible for civil rights compliance monitoring understand their responsibilities. Agency responsibilities include:

(a) Training appropriate agency staffs:

(b) Providing training as ongoing technical assistance to all tiers of responsibility; and

(c) Ensuring coverage of specific civil rights areas in the training program.

(8) Access to Sources of Information. Agencies, recipients, and program offices are required to keep records and compliance review reports. In addition, access either by the agency or OAE-EO to books, records, accounts, and other sources of information pertinent to ascertaining compliance must be permitted upon reasonable request.

(9) Civil Rights Reports. Annual Civil Rights Reports are required by the Office of Management and Budget and the Department of Justice to assess agency civil rights compliance efforts and achievements. Agency's responsibilities include: Ensuring that comprehensive and accurate reports are submitted in a timely manner.

(10) Section 504 of the Rehabilitation Act of 1973. The purpose of this requirement is to ensure that agency program services and benefits are accessible and available to handicapped individuals. Agency responsibilities include:

(a) Advising recipients and program offices of their responsibilities in accordance with Departmental regulations;

(b) Ensuring that recipients and program offices complete self-evaluations as required;

(c) Ensuring that the protected class of handicap is incorporated into assurance agreements;

(d) Advising recipient and program offices of the need to designate a Section 504 Coordinator; and

(e) Ensuring that complaints alleging discrimination on the basis of handicap are processed in accordance with agency procedures.

(11) The Age Discrimination Act of 1975. The purpose of this requirement is to ensure that no person is denied participation in agency programs because of age. The requirement does not apply where age distinctions are established under the authority of any law that provides benefits or establishes criteria for participation on the basis of age. Agency responsibilities include:

(a) Advising the recipient and program offices of their responsibilities in accordance with Departmental regulations;

(b) Ensuring that recipient and program offices complete self evaluations as required;

(c) Ensuring that age as a protected class is incorporated in assistance agreements and included in the standard agency nondiscrimination statement as appropriate;

(d) Ensuring that complaints alleging age discrimination are processed in accordance with Departmental regulations; and

(e) Ensuring that grievance procedures have been developed for processing complaints alleging age discrimination.

(12) Title IX of the Education Amendments of 1972. The purpose of this requirement is to ensure that no individual is denied participation in agency education programs because of sex. Agency responsibilities include, where applicable:

(a) Advising the recipient and program offices of their responsibilities in accordance with Departmental regulations;

(b) Ensuring that recipients and program offices complete self-evaluations as required;

(c) Ensuring that sex as a protected class is incorporated into assurance agreements and included in the standard Agency nondiscrimination statement;

(d) Ensuring that complaints alleged on the basis of sex are handled in accordance with Departmental regulations;

(e) Ensuring that a person has been designated as the Title IX Coordinator; and

(f) Ensuring that grievance procedures have been developed for handling complaints alleging discrimination based on sex.

(13) The Equal Credit Opportunity Act. This act prohibits an agency that extends credit from discriminating against an applicant on certain prohibited bases during any aspect of a credit transaction. This act adds "income from public assistance," and "exercised right under the Consumer Protection Act", as other bases of prohibited discrimination. Agency responsibilities includes, where applicable:

(a) Not discouraging applicants for credit on a prohibited basis.

(b) Requesting only the information about the applicant and applicant's spouse or former spouse as permitted by the Act.

(c) Not considering any information prohibited by the Act when evaluating an applicant for credit.

(d) Not making an applicant meet unnecessary requirements, e.g., not letting a female applicant use her desired name; or unnecessarily requiring a co-signer, or the signature of a spouse on credit instruments.

(e) Notifying applicants of the action taken on their application within the required period of time, and including the ECOA Notice on notices of adverse action.

(f) Retaining records on applicants containing only the allowable information for the specified time period.

(g) Maintaining the required information on applicants for monitoring purposes and informing them that such information is needed for monitoring compliance with the Federal statutes prohibiting discrimination.

(14) Title VIII of the Civil Rights Act of 1968. This act prohibits discrimination in the sale, rental or financing of housing. Agencies having housing programs are required to carry out the fair housing policy in Title VIII. Agency responsibilities include where applicable:

(a) Financing or operating housing according to fair housing policy.

(b) Assuring that any housing financed is sold or rented according to fair housing policy. This includes assuring that any subdivision or multi-family housing project financed by the program agency is marketed in accordance with an Affirmative Fair Housing Marketing Plan.

 

APPENDIX B
NONCOMPLIANCE REMEDIES AND FORMAL SANCTIONS

1 EFFORTS TO SECURE VOLUNTARY COMPLIANCE

A. POLICY

When a recipient of USDA assistance is found to be in noncompliance, the Department's regulations require the responsible agency to make efforts to the fullest extent practicable to obtain voluntary compliance by the recipient. Also, the agency shall provide assistance and guidance to the recipient to help achieve full compliance.

B.  DEFINITIONS

(1) Noncompliance. Failure or refusal to comply with civil rights laws and Departmental regulations.

(2) A Determination of Noncompliance. A decision based on evidence that a recipient has failed or refused to comply with civil rights laws and regulations. The noncompliance may be disclosed by way of compliance reviews, complaint investigations or other information which supports the determination. Determinations of noncompliance shall be made either by the Office of Advocacy and Enterprise (OAE) or the USDA program agency administering a program of assistance.

C. INFORMAL REMEDY

(1) The Department's regulations require the resolution of noncompliance by informal means whenever possible. The responsible agency must work with the noncomplying recipient and assist in any way to bring the recipient into compliance. Direct contacts, correspondence, and meetings should be used in developing plans of action and identifying the discriminatory practices. The resources of OAE are available and should be used as necessary in this effort. The agency Civil Rights Director or comparable position is required to keep OAE currently informed about progress toward compliance.

(2) Sixty days following the date of determination that a recipient is in noncompliance, the Director of OAE is required to notify the Civil Rights Division, Department of Justice (DOJ). This notification will identify the recipient and program, the extent and nature of noncompliance, the type and degree of action which has been taken, and whether further efforts at voluntary compliance are planned or justified.

(3) When all reasonable efforts fail, the agency must so inform the recipient by registered mail, return receipt requested, and refer the case to OAE with recommendations for formal action.

2 FORMAL ENFORCEMENT PROCEDURES

A. POLICY

DOJ must be notified after a finding of noncompliance in which negotiations to achieve compliance exceed 60 days. Agencies are required to make every reasonable effort to secure the voluntary compliance of noncomplying recipients. If all efforts to achieve voluntary compliance fail, formal enforcement action may be commenced which may lead to termination of Federal assistance or may take the form of securing compliance by other means authorized by law. Rules of practice and procedure for administrative hearings are contained in 7 CFR 15.60 - 15.143.

B. Procedures Leading to Termination of Assistance

Before an action to suspend or terminate assistance can become effective, the following steps must be taken:

(1) The Agency will: Notify the recipient that all efforts at achieving voluntary compliance have failed and that the case will be referred to the OAE for formal enforcement action. The record of referral to OAE shall include:

(a) Copies of all correspondence with the recipient.

(b) Copies of all compliance reviews of the recipient.

(c) A list of known witnesses, including their addresses, telephone numbers, and their official titles, with a brief statement of the matters about which they can testify.

(d) Eight copies of each relevant contract and agreement with the Department of Agriculture and, where appropriate, each relevant contract between the State and agency and the recipient. Included should be current and past agreements and copies of the recipient's civil rights assurances.

(e) A list of names, titles, mailing addresses and telephone numbers of parties involved, including the chief official of the recipient, where a State agency is involved, and the State administrative official responsible for the program.

(f) A report of the specific dates and amounts of assistance provided and the programs under which the assistance was extended, citing legal and regulatory references for the program.

(g) Documentation that the agency has met all administrative and legal requirements of the Department's regulations 7 CFR 15 by advising the recipient that it has failed to comply, that compliance cannot be secured by voluntary means, and that the case has been referred to the Office of Advocacy and Enterprise for enforcement action.

(h) A brief statement of the affirmative allegations of discrimination which can be factually supported by the records.

(i) A statement of all actions taken to achieve voluntary compliance.

(j) A statement of the defenses the recipient may be expected to raise.

(2) The Office of Advocacy and Enterprise will:

(a) Evaluate records for sufficiency.

(b) Determine in conjunction with the Office of General Counsel (OGC) whether the case warrants termination proceedings.

(c) Issue a ten-day letter to the recipient restating that voluntary compliance has not been achieved, identifying acts, areas, practices and locations of noncompliance, and offering to assist the recipient to come into compliance. In termination actions, the letter will also offer opportunity for formal hearing. All ten-day letters are sent by registered mail return receipt requested. During the ten-day period, OAE will contact responsible officials of the recipient by telephone or telegraph to again offer assistance to correct the noncompliance.

(3) The Secretary of USDA will approve the action to. suspend or terminate assistance if the results of the hearing support a decision of noncompliance, or if such a decision is supported by the evidence where a hearing was not held.

(4) The appropriate congressional committees will be notified of the decision to terminate assistance. Termination will not become effective until 30 days after the date of such notification.

3 SECURING COMPLIANCE BY OTHER MEANS AUTHORIZED BY LAW

A recipient may be compelled to comply with civil rights laws and Department Regulations through judicial enforcement. However, before any action to enforce compliance is taken, the following steps must be taken:

A. The program agency will notify the recipient that all efforts to achieve compliance have been exhausted and that the case will be referred to OAE.

B. OAE will send a ten-day letter, which is registered with return receipt requested, to the recipient describing the findings of noncompliance with an offer to assist. Additional contacts and offers of assistance must be made during the ten-day period.

C. If the recipient fails to come into compliance during the ten days, the case will be referred to (OGC). A complete record of the case will be forwarded along with eight copies.

D. After determining legal sufficiency of the record, OGC will refer the case to DOJ recommending appropriate legal action.


405.22 - NRCS Plan of Action for Representation on Boards Councils and Committees.



Mission:

The overall mission of the Natural Resources Conservation Service (NRCS) civil rights program is to provide national leadership in planning, developing, and implementing the intent of nondiscrimination laws, the U.S. Department of Agriculture's equal opportunity policies, and NRCS directives that have implications for the conservation and wise use of soil, water, and related resources, and improves those resources. This broad mission is designed to ensure that through cooperative efforts with district boards all conservation programs and related assistance are available to land users without regard to race, color, national origin, sex, age, handicap, or religion.

Objective:To improve the representation of minorities and females on Soil and Water Conservation District Boards, Councils, and Committees.
A. Goal: In cooperation with states and districts inform public including farmers/producers about the right to representation and procedures for membership election or appointment for district boards, councils, and committees.
Actions: When Who Progress
1. Develop brochure in concert with state conservation agencies/organizations to inform public about membership election or appointment procedures. 4/88 STC ASTC(P)
2. Develop a poster focusing on what women and minorities can offer to conservation programs. 6/88 Director,
PID, NHQ

3. Include success stories in Soil and Water Conservation News contributions made by women and minorities as representatives of locals boards, councils, and committees to conservation efforts. Continuing STC PAS
4. Include the significance of women and minority representation on district boards, councils, and committees as part of the message from the Chief in Soil and Water Conservation News. Continuing Chief
Director,
PID, NHQ

5. Key officials use speech inserts to emphasize the significance of women and minority representation on district boards, councils, and committees. Continuing Chief
Associate Chief Assistant Chiefs
Deputy Chiefs STC's

6. Encourage local district boards to contact and utilize the services of local minority mass media and television stations for outreach to disseminate information regarding election/ selection of district boards, council and committee members. Continuing STC
PAS

B. Goal: Encourage head of each state conservation agency review election laws of that state pertaining to election/appointment of local district boards and suggest changes that are necessary, to ensure equal representation.
Actions: When Who Progress
7. Review with state agencies district election laws to facilitate changes to provide for representation of all eligible voters in district elections. Continuing STC
C. Goal:Jointly explore and formulate initiatives to increase minority and female representation on district boards, councils, and committees and report progress annually.
Actions: When Who Progress
8. Review current board membership data with state conservation agencies and discuss the opportunities and benefits of having minority and female representatives in local boards/ councils who are impacted by the board's/ council's decisions regarding conservation programs. Annually STC
9. Assist state conservation agencies/ committees to identify persons including minorities and females for appointment to the local boards, when requested. Continuing STC
ASTC(P)
AC's
DC's

10. Discuss the civil rights responsibilities of the districts and NRCS during the annual review of the supplemental Memorandum Of Understanding (MOU). Continuing STC
AC's
DC's

11. Identify and recommend to district boards names of females and minorities to serve as associate advisory board members. Continuing STC
AC's
DC's

12. Initiate a joint letter signed by Chief, NRCS, and the leadership of the National Association of State Conservation Administrators (NASCA) to jointly identify actions that will help improve female and minority representation on boards/councils. 2/88 Chief
Deputy Chief
for Programs

D. Goal: Establish a monitoring system to track minority and female representation on boards, councils, and committees and report progress annually.
Action:
13. Document any resultant changes relative to board/council membership composition and report progress to the state conservationist annually. Continuing STC
AC's
DC's

14. Maintain and report progress of membership composition of boards, councils, and committees as part of the annual Civil Rights Implementation Plan update. Continuing STC
15. Review efforts during on site civil rights compliance reviews relative to outreach and other appropriate actions for increased representation of minorities and females on district boards, councils, and committees. Continuing STC
Director,
Civil Rights Div.

[GM_230_405_B - March 2007]

Subpart C - Section 504 Nondiscrimination on the Basis of Persons with Disabilities

                             Part 405 – Civil Rights Compliance in Program Delivery

         Subpart C – Section 504 Nondiscrimination on the Basis of Persons with Disabilities

405.30  Purpose

A.  This subpart implements Section 504 of the Rehabilitation Act of 1973, as amended, to ensure that no qualified individual with disabilities in the United States shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any federally-assisted or federally-conducted program or activity of NRCS.  Section 504 of the Rehabilitation Act of 1973 provides that:

No otherwise qualified individual with disabilities in the United States, shall, solely by reason of that disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.  The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978.

B.  A qualified individual with a disability means:

(1)  With respect to any Commission program or activity (except employment), an individual with a disability who, with, or without modifications or aids required by this part, meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and

(2)  With respect to employment, a qualified individual with a disability as defined in 29 C.F.R. 1630.2(m), which is made applicable to this part by Section 1615.140.

C.  This section applies to all federally-assisted and federally-conducted programs or activities conducted by NRCS.  Under this section, a federally-conducted program or activity is anything NRCS does.  Aside from employment, there are two major categories of federally-conducted programs or activities covered by this directive:

(1)  Those involving general public contact as part of ongoing NRCS operations; and

(2)  Those directly administered by NRCS for program beneficiaries and participants.

(3)  Activities in the first category include communications with the public (telephone contacts, office walk-ins, or interviews) and the public’s use of NRCS facilities.  Activities in the second category include all programs that provide Federal services or benefits.

D.  “Federal financial assistance” or “financial assistance” includes:

(1)  The grants and loans of Federal funds;

(2)  The grant or donation of Federal property and interests in property;

(3)  The detail of Federal personnel;

(4)  The sale and lease of, and the permission to use (on other than a casual or transient basis) Federal property or interest in such property; the furnishing of services without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient; or in recognition of the public interest to be served by such sale, lease, or furnishing of services to the recipient; and

(5)  A Federal agreement, arrangement, or other contract which has, as one of its purposes, the provision of assistance.

405.31  Agency Policy

A.  Qualified individuals with disabilities shall not, on the basis of disability, be denied the benefits of or excluded from participation in programs or activities receiving assistance from NRCS, nor shall that individual otherwise be subjected to discrimination under any program or activity receiving assistance from NRCS.

B.  General Prohibitions against Discrimination ¾

This section provides NRCS policy and guidelines to ensure equal access and equal opportunity to all potential beneficiaries with disabilities regarding the receipt of all Agency programs and services in soil and water conservation and related activities.  In accordance with this policy, discriminatory actions are prohibited as follows:

(i)  Denying a qualified individual with disabilities the opportunity to participate in, or benefit from technical assistance (TA), program benefits, or services;

(ii)  Affording a qualified individual with disabilities an opportunity to participate in, or benefit from services that is not equal to that afforded others;

(iii)  Providing a qualified individual with disabilities with TA, program benefits, or services that is not as effective in affording equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement in the most integrated setting appropriate as that provided to others;

(iv)  Providing different or separate TA, program benefits, or services to individuals with disabilities or class of individuals with disabilities, unless such action is necessary to provide qualified persons with disabilities with TA, program benefits, or services that are as effective as those provided to others;

(v)  Condoning or perpetuating discrimination against a qualified individual with disabilities by providing assistance to an agency, organization, or person that discriminates on the basis of disabilities in providing TA, program benefits, or services to beneficiaries of NRCS’ programs;

(vi)  Denying a qualified individual with disabilities the opportunity to participate as a member of planning or advisory boards; and

(vii)  Limiting a qualified individual with disabilities in the enjoyment of the right, privilege, advantage, or opportunity enjoyed by others receiving TA, program benefits, or services.

405.32  Authorities

    A.  Section 504 of the Rehabilitation Act of 1973, as amended.

    B.  USDA regulations under Title VI of the Civil Rights Act of 1964, and Section 504 of the Rehabilitation Act   of  1973,  7 C.F.R. 15b.

C.  USDA regulations under Section 504 of the Rehabilitation Act of 1973, 7 C.F.R. 15e.

D.  Coordination of Enforcement of Nondiscrimination in Federally-Assisted Programs, DOJ regulation, 28 C.F.R. 42.402-42.415 (42 F.R. 52269-52672, December 1, 1976).

E.  Pertinent sections of the Americans with Disabilities Act of 1990 and pertinent sections of the Architectural Barriers Act of 1968.

405.33  Definitions

A.  Disability - Any condition or characteristic that results in a person qualifying as a person with a disability as defined in 7 C.F.R. 15b.3(h)(i).

B.  Individual with Disabilities – A person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment.  “Individual with disabilities” is the preferred term to the definition of “handicapped person” appearing in 7 C.F.R. 15b.3.

C.  Physical or Mental Impairment – A physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the human body systems:

Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.  The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, mental retardation, emotional illness, drug addiction, and alcoholism.

D.  Major Life Activities – Includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

E.  Has a Record of Such Impairment – Has a history of, or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities.

F.  Facility – All or any (owned, leased, or free) portions of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.

G.  Qualified Person with a Disability (used synonymously with otherwise qualified individual with a disability):

(1)  With respect to employment, a person with a disability who, with reasonable accommodation, can perform the essential functions of the job in question, but the term does not include an individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others; and

(2)  With respect to other services, a person with a disability who meets the essential eligibility requirements for the receipt of such services.

405.34  Accessibility to Programs and Existing Facilities

A.  This guideline adopts the program accessibility concept found in the existing Section 504 coordination regulation for programs or activities receiving Federal financial assistance (28 C.F.R. 41.57) and 7 C.F.R. 15c.50 with certain modifications.  This requires that each program or activity should be readily accessible to and usable by individuals with disabilities.  Likewise, this does not necessarily require NRCS to make each of its existing facilities accessible to the physically disabled. Under circumstances where an NRCS program office does not have an accessible facility, it must ensure that program needs of disabled beneficiaries are met.

B.  For additional guidance on accessibility to facilities and meetings, refer to the following NRCS policy documents:  NRCS Property Management Regulations (104I-17-101) and GM-250, Part 406, Meetings.  All new lease contracts and renewals shall conform to the requirement for provisions of facilities for persons with disabilities under the Architectural Barriers Act of 1968.

C.  Methods of Compliance – To overcome a status of noncompliance of existing facilities, NRCS may comply through such means as delivering services at alternate accessible sites, altering existing (owned, leased, or free) facilities, and constructing facilities to make its programs or activities accessible to qualified individuals with disabilities.  In choosing among available methods, NRCS shall give priority to those methods that offer programs and activities to qualified individuals with disabilities in the most integrated setting appropriate to obtain the full benefits of the program.

D.  Time period – Each NRCS program office shall comply with the requirements of this directive within 60 days of the effective date of this Part, except where structural changes in facilities are necessary.  Such changes shall be made within 3 years of the effective date of this Part and as expeditiously as possible.

E.  Transition Plan – In the event that structural changes to facilities (owned, leased, or free) are necessary to meet the requirement of this section, the NRCS program office shall develop, within one year of the effective date of this Part, a transition plan setting forth the steps necessary to complete such changes.

F.  A plan shall be developed with the assistance of interested persons, including individuals with disabilities or organizations representing such groups.  A copy of the transition plan shall be made available for administrative inspection.  The plan shall, at a minimum:

(1)  Identify physical obstacles in NRCS facilities that limit the accessibility of its programs or activities to individuals with disabilities;

(2)  Describe in detail the methods that will be used to make the facility accessible to individuals with disabilities;

(3)  Specify the schedule for taking steps necessary to achieve full program accessibility, and if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and

(4)  Identify the person responsible for implementation of the plan.

405.35  New Construction

All new construction must be in accordance with Architectural Barriers Act accessibility standards.

405.36  Meeting Facilities

NRCS policy (GM-250, Part 406, Meetings) requires a “barrier assessment” be made before selecting a meeting facility to host an NRCS meeting.  Items to be considered are parking, walks, ramps, access/entrances, drinking fountains, restrooms, interior doors, and elevators.  If one of these items appears to restrict access by individuals with disabilities, reasonable accommodations should be made.  Final selection is based upon the willingness to make reasonable accommodations prior to the meeting.  Where necessary, NRCS funds are legally available to provide portable ramps and other non-permanent accommodations to render a facility accessible for an NRCS meeting.

[GM_230_405_C - Amendment 26 - September 2008]

Subpart D – Section 508 Nondiscrimination on the Basis of Persons with Disabilities

405.40  Purpose

This subpart establishes NRCS policies, procedures, and responsibilities for the implementation and administration of Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), as amended. Section 508 was enacted to eliminate barriers in Electronic and Information Technology (EIT), create new opportunities for people with disabilities, and encourage development of technologies that will achieve these goals. 

405.41  Authority

This implements NRCS policy in accordance with Title 36, C.F.R. Part 1194, and Federal Acquisition Regulations (FAR) Subpart 39.2, as amended by Federal Acquisition Circular (FAC) 97-27.  The Rehabilitation Act requires Federal agencies to ensure that employees and members of the public who have disabilities have access and use of information that is comparable to the access and use of information by individuals without disabilities, unless an undue burden would be imposed on the Agency.  The Act also requires that all EIT developed, procured, maintained, or used by all Federal agencies on or after June 21, 2001, must meet the accessibility standards developed by the Architectural and Transportation Barriers Compliance Board (U.S. Access Board) and comply with FAR as they relate to Section 508, with limited exceptions.

405.42  Policy

It is NRCS policy to make our information and services accessible to employees and the public to the greatest extent possible, in accordance with the provisions and spirit of Section 508 of the Rehabilitation Act, as amended.

405.43  References

A.  FAR, Subpart 39.2, as amended by FAC 97-27 and 48 C.F.R. 2, 7, 10, 11, 12, and 39.

B.  PL 105-220, Amendment to Section 508 of the Rehabilitation Act (29 USC 794d).

C.  PL 106-246, Amendment to Section 508 of the Rehabilitation Act.

D.  36 C.F.R. 1194, U.S. Access Board.  Standards available at:  http://www.access-board.gov/.

E.  Office of Management and Budget Circular A-130, “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies.”

405.44  General Exceptions

General exceptions to Section 508 requirements are set forth in the U.S. Access Board regulation at 36 C.F.R. 1194.3 and in FAR 39.204.  The regulations exempt the following acquisitions from application of the standards:

(1)  EIT purchased prior to October 1, 2004, using micro-purchase procedures ($2,500 or less);

(2)  EIT for a national security system;

(3)  EIT acquired by a contractor incidental to a contract; and

(4)  EIT located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment.

405.45  Definitions

A.  EIT – Includes information technology, equipment, or interconnected system that is used in the creation, conversion, or duplication of data or information.  EIT includes, but is not limited to, telecommunications products (such as telephones), information kiosks, transaction machines, Internet Web sites, multimedia products, office equipment (such as copiers and fax machines), computers, ancillary equipment, software, firmware, services (including support services), and related resources (such as help desks and documentation).  See FAR 2.101 or Section 1194.4 of the U.S. Access Board standards.

B.  Undue Burden – Means significant difficulty or expense.  In determining whether an action would result in an undue burden, NRCS shall consider all resources available to the program or component for which the product is being developed, procured, maintained, or used.

C.  Person with a Disability – Person who has a physical or mental impairment that substantially limits one or more major life activities or has a record of such impairment.  In general, this includes individuals with a significant vision, hearing, dexterity, cognitive, or mobility impairment.

D.  Alternate Methods – Different means of providing information, including product documentation, to people with disabilities.  Alternate methods may include, but are not limited to, voice, facsimile, relay service, TTY, Internet posting, captioning, Braille, text-to-speech synthesis, and audio description.

E.  Telecommunications – The transmission of information, between points specified by the user, without change in the form or content of the information as sent and received.

F.  Accessibility – Allows individuals with disabilities to have access and use of information that is comparable to the access and use of information by individuals who do not have disabilities.

405.46  Equivalent Facilitation

Equivalent facilitation refers to EIT that does not meet the applicable technical provisions in U.S. Access Board standards, but provides substantially equivalent or greater access to and use of the product.  Equivalent facilitation is not considered an exception or variance.  Nothing in 36 C.F.R. 1194.5 is intended to prevent the use of designs or technologies as alternatives to those chosen, provided they result in substantially equivalent or greater access and use of a product for people with disabilities.

405.47  Requirements

A.  Documents posted on the NRCS Internet and Intranet will comply with U. S. Access Board technical standards for Web pages.  These standards are available at http://www.access-board.gov/ or from the Agency Section 508 coordinator.

B.  Acquisitions will comply with the accessibility requirements of FAR 39.2 and applicable U.S. Access Board standards.  The U.S. Access Board standards and guidelines for interpreting and applying the standards are available at http://www.access-board.gov/.

C.  When compliance with U.S. Access Board standards would pose an undue burden, the information or data provided by that product or service will be made available in an alternative format that allows individuals with disabilities access to the information or data.

D.  NRCS must comply with accessibility standards that can be met within the commercial marketplace when acquiring commercial items.  Agencies are not required to fundamentally alter their needs in order to comply with Section 508, nor waive required delivery times waiting for more compliant solutions.  Before acquiring commercial items that do not meet one or more aspects of the standards, the commercial non-availability of fully compliant items must be documented by the requiring office.  This determination must include a description of market research performed and identification of specific standards that cannot be met.  The determination will be provided to the contracting officer for retention in the contract file.

E.  One or more aspects of the applicable U.S. Access Board standards may be waived when the Agency determines that compliance would pose an undue burden [FAR 29.204(e)].  This waiver must be supported by a written determination explaining the significant difficulty or expense, describing the program resources available, and demonstrating why compliance creates an undue burden.  The undue burden determination must be signed by the Agency head or his/her designee.  The original will be retained in the contract file.

F.  NRCS will make all reasonable efforts to ensure that software applications, multimedia productions, and training developed or produced in-house meets Section 508 accessibility standards, including EIT developed for or by other Federal agencies.

405.48  Procedures

A.  All requisitions for EIT shall include a signed and dated Section 508 compliance checklist of specific U.S. Access Board standards applicable to that acquisition.  The checklist is available on their Web site at http://www.access-board.gov/.

B.  All EIT acquired by NRCS shall meet applicable U.S. Access Board standards or provide equivalent facilitation, unless the file is documented to demonstrate the non-availability of fully compliant commercial products or contains an undue burden determination.

C.  NRCS shall revise policies and procedures under its control, as necessary, when revisions are made to technical standards set forth in 36 C.F.R. 1194 and 48 C.F.R. Parts 2, 7, 10, 11, 12, and 39.

405.49  Responsibilities

A.  USDA’s OCR will have primary responsibility for the oversight and administration of Section 508.

B.  The NRCS Section 508 coordinator is responsible for the implementation and administration of the Section 508 program throughout the Agency.  The NRCS Section 508 coordinator will:

(1)  Develop an effective and realistic strategy for implementing the requirements of Section 508;

(2)  Coordinate Section 508 training throughout the Agency;

(3)  Assist with all inquiries or complaints relating to Section 508;

(4)  Perform liaison duties between NRCS, the Department, and other Federal agencies on Section 508 matters;

(5)  Prepare the NRCS response to the biannual DOJ survey;

(6)  Brief the NRCS Executive Leadership Team on the status of compliance with Section 508; and

(7)  Establish and coordinate an NRCS Section 508 team of subject matter experts who are responsible for developing function-specific policy; disseminating appropriate information throughout the function or component; and providing input for Agency reports, briefings, and training, as needed.

C.  Managers who oversee the design, development, procurement, or use of EIT are responsible for ensuring that the applicable technical standards and procedural requirements of Section 508 are met.

D.  NRCS employees involved in the design, development, procurement, or use of EIT are responsible for meeting the applicable technical standards and procedural requirements of Section 508.

E.  NRCS employees should understand the requirements of Section 508 and how they may apply to their business operations and processes.

405.50  Enforcement

A.  Individuals with a disability can file a complaint alleging that a Federal department or agency has not complied with Section 508 in a procurement of EIT.

B.  Individuals with a disability may file a complaint alleging that a Federal department or agency has failed to comply with Section 508 (29 U.S.C. § 794)(d), Subsection (a)(i) in providing accessible EIT.

C.  All Section 508 complaints shall be submitted in writing to CRD.

D.  Complaints filed under Section 508 will be the same as described in 43 C.F.R. 17.570c for complaints filed under Section 504 for resolving allegations of discrimination in a federally-conducted program or activity, except that complaints under Section 508 must be filed with CRD. 

E.  The complaint process provides injunctive relief and attorney’s fees to the prevailing party, but does not include compensatory or punitive damages.

F.  CRD will respond within 15 working days upon receipt of an official complaint submitted through the NRCS complaint process.  The response will include a plan to remedy the complaint, or provide comparable access through alternate methods.

405.51  General Services Administration Buy Accessible Web site

This Web site (http://www.buyaccessible.gov/) assists in determining products that are Section 508 compliant.  Using this Web site, Federal employees and the public can access resources for understanding and implementing the requirements of Section 508.  A Web-based tool helps users determine and document Section 508 requirements that apply to a particular EIT acquisition.

[GM_230_405_D - Amendment 26 - September 2008]

Part 406 – National Outreach Policy

Subpart A - General

406.0  Purpose

This policy provides guidance and direction in implementing a comprehensive outreach process for NRCS. This policy directly supports and assists with implementing program outreach activities in the agency public notification procedures, Title 230, General Manual (GM), Part 405, Subpart A, Section 405.5.  The process will utilize existing partnerships, formulate new ones, and engage the entire agency to facilitate full implementation.

406.1  Authorities

Outreach policy and procedures will be institutionalized within the agency as a means of conducting business. The following authorize this directive:

(1)  Secretary’s Memorandum 1064-001, Establishment of the Office of  Advocacy and Outreach November 3, 2009)

(2)  Title VI of the Civil Rights Act of 1964, (42 U.S.C. Sections 2000 (d) – 2000 (d)(1) Section 2501 of Public Law 104-624, the Food, Agriculture, Conservation, and Trade Act of 1990

(3)  Public Law 107-171, Farm Security and Rural Investment Act of 2002 Public Law 110-246, Food, Conservation and Energy Act of 2008

(4)  Executive Orders 12898, 13230, 13515, and 13532

(5)  Departmental Regulation 9700-001, Small Farms and Beginning Farmers and Ranchers Policy (August 3, 2006)

(6)  Section 622 of Public Law 100-133, the Small or Limited Resource Farmer Initiative, Agricultural Act of 1987 (101 Stat 1985)

(7)  Departmental Regulation 1071-001, Memorandum of Understanding on Environmental Justice and Executive Order 12898, (July 15, 2011)

(8)  Departmental Regulation 4370-001, Sections 14007 and 14007 of the Food, Conservation and Energy Act of 2008 (7 U.S.C. 2279-1(a) – (d) (October 11, 2011)

406.2  Definitions

A. Community-Based Organizations (CBOs).—Recognized groups concerned with improving the quality of life for residents within local communities.  Such organizations serve as project initiators and managers, thereby providing avenues for involvement with and access to locally led processes and activities.  These groups include nonprofit, nongovernmental organizations with well-defined constituencies that include all or part of a particular community.  Faith-based organizations, women’s groups, environmental groups, farm or woodlands groups, trade and professional associations, educational associations, and schools are all examples.

B.  Limited-Resource Farmer or Rancher.—A person with direct or indirect gross farm sales of not more than $146,000 in each of the previous 2 years (this figure has been modified beginning in fiscal year 2004 to adjust for inflation using the Prices Paid by Farmer Index as compiled by National Agricultural Statistics Service).  A limited-resource producer has a total household income at or below the national poverty level for a family of four or less than 50 percent of the county median household income in each of the previous 2 years (to be determined annually using Commerce Department data).

C.  Indian Tribes.—Indian Tribe means any Indian Tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C Section 1601 et seq.) that is federally recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

D.  NRCS Partners.—Groups and organizations that share common concerns and goals that help carry out the NRCS mission.  They can help appropriately and clearly explain the mission and programs of the agency, provided they are equipped with the appropriate outreach tools and details.

E.  Outreach.—Conducting business to ensure that NRCS programs and services are made accessible to all customers, with emphasis on the historically underserved.  Outreach also involves crafting messages and informational materials with language and services that speaks to particular groups and populations and aids them in understanding the mission, processes, goals, obligations and eligibility issues inherent in the work of the agency and the Farm Bill.

F.  Small Farmer or Rancher.—A person who has a farm having less than $250,000 in gross receipts annually.  In 1995, the Economic Research Service (ERS) identified five primary groups of small farms. These groups are as follows:

(1)  Limited-Resource.—A person with direct or indirect gross farm sales of not more than $146,000  in each of the previous 2 years (this figure has been modified beginning in fiscal year 2004 to adjust for inflation using the Prices Paid by Farmer Index as compiled by National Agricultural Statistics Service). A limited-resource producer has a total household income at or below the national poverty level for a family of four or less than 50 percent of the county median household income in each of the previous 2 years (to be determined annually using Commerce Department data).

(2)  Retirement.—Small farms whose operators report they are retired.

(3)  Residential or Lifestyle.—Small farms whose operators report a major occupation other than farming.

(4)  Farming Occupation and Lower Sales.—Small farms with sales less than $100,000 whose operators report farming as their major occupation.

(5)  Farming Occupation and Higher Sales.—Small farms with sales between $100,000 and $249,000, whose operators report farming as their major occupation.

G.  Socially Disadvantaged Farmer or Rancher.—A farmer or rancher who is a member of a socially disadvantaged group.

H.  Socially Disadvantaged Group.—A group whose members have been subjected to racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities. These groups consist of the following:

 

(1)  American Indians or Alaskan Natives

(2)  Asians

(3)  Blacks or African Americans

(4)  Native Hawaiians or other Pacific Islanders

(5)  Hispanics

I.  Underserved.—Individuals or groups who have not participated in or have received limited benefits from USDA or NRCS programs.  Historically, the underserved include Tribes, minorities, women, the disabled, limited-resource farmers and ranchers, and small-scale farmers.

J.  Beginning Farmer or Rancher.—An applicant who has not operated a farm or ranch, or who has operated a farm or ranch for not more than 10 consecutive years.  This requirement applies to all members of a legal entity.

406.3  Policy

A.  Outreach is an integral part of the overall delivery of NRCS programs and services to customers and potential beneficiaries.  NRCS will conduct business to ensure that all programs and services are made equally accessible to all customers, with emphasis on the underserved.

B.  To that end, NRCS will—

(1)  Conduct outreach to serve a diverse clientele.

(2)  Inform and educate existing and potential customers about NRCS and USDA conservation programs and services, including details regarding program sign ups, application procedures, eligibility requirements, and contractual obligations of Farm Bill programs.

(3)  Provide leadership and guidance, including print, electronic, and audio visual tools, to conduct outreach activities and initiatives.

(4)  Incorporate outreach tracking into the existing integrated accountability system to ensure outreach is part of NRCS’s way of doing business, not a separate activity.   This needs to be developed at the national level for consistency, must be broad based, (e.g., for all programs and services), and be mission driven.

(5)  Engage partners in the outreach process by providing them with accurate, timely, and easily-accessible communication tools.

(6)  Integrate a process that includes feedback and recommendations from clients at the grassroots level, the local level and up, in order to gain new insights.

[GM_230_406_A - Amend. 29 - March 2012]

Subpart B - Responsibilities

406.10  Responsibilities

A.  The Chief is responsible for—

(1)  Providing leadership to ensure outreach efforts support the agency’s mission.

(2)  Working at the national level to ensure collaboration with diverse partners and stakeholders.

(3)  Allocating the financial, technical, and human resources needed to carry out outreach initiatives and activities.

(4)  Ensuring that all employees are held accountable for providing outreach services in a fair and equitable manner.

(5)  Recognizing and, as appropriate, rewarding exceptional outreach initiatives and accomplishments.

(6)  Including outreach in the agency strategic and business plans.

(7)  Ensuring that employees are trained to conduct effective outreach assistance and have the necessary tools to deliver targeted messages to underserved groups.

B.  The Deputy Chief for Management is responsible for—

(1)  Integrating outreach in his or her functional areas and business plans.

(2)  Ensuring accountability and providing outreach direction to division directors and other staffs.

(3)  Informing the Chief and NRCS Outreach and Advocacy Division director of outreach barriers and recommending resolutions.

(4)  Supporting partnerships to enhance outreach initiatives.

(5)  Designating appropriate resources (including staffing and funding) for effective outreach implementation.

(6)  Providing oversight and evaluation and ensuring accountability for outreach.

C.  The Regional Conservationists are responsible for—

(1)  Integrating outreach in their functional areas and business plans.

(2)  Ensuring accountability and providing outreach direction to state conservationists and other staffs.

(3)  Informing the Chief, the Deputy Chief for Management, and the director of the Outreach a Advocacy Division of outreach barriers and recommending resolutions.

(4)  Providing leadership and guidance to State Conservationists on outreach.

(5)  Supporting partnerships and multistate approaches to enhance outreach initiatives.

(6)  Designating appropriate resources (including mobilization of staff, allocating enough time and funding) for effective outreach implementation.

(7)  Providing oversight and evaluation and ensuring accountability for outreach.

(8)  Ensuring State business operations have outreach incorporated.

D.  The Deputy Chiefs are responsible for—

(1)  Integrating outreach in their functional areas and business plans.

(2)  Ensuring accountability and providing outreach direction to their staffs.

(3)  Informing the Chief, the Deputy Chief for Management, and the director of the Outreach and Advocacy Division of outreach barriers and recommending resolutions.

(4)  Supporting partnerships to enhance outreach initiatives.

(5)  Designating appropriate resources (including mobilization of staff, allocating enough time and funding) for effective outreach implementation.

(6)  Providing oversight and evaluation and ensuring accountability for outreach.

E.  Director of the Outreach and Advocacy Division is responsible for—

(1)  Providing leadership and guidance on the implementation of the national outreach policy.

(2)  Representing the agency on departmental outreach initiatives.

(3)  Networking and partnering with other Federal agencies, national community-based organizations, and institutions of higher learning to expand the agency outreach initiative.

(4)  Coordinating and communicating outreach efforts within the agency.

(5)  Making recommendations to the Deputy Chief for Management on improving outreach initiatives.

(6)  Providing leadership to conduct outreach quality assurance reviews in support of the agency oversight and evaluation review process.

(7)  Recommending the necessary allocation of resources to carry out the outreach policy.

(8)  Providing outreach coordination between National Headquarters and State offices to support  and facilitate development and use of outreach tools and other resources and requesting specific resources to implement State outreach processes.

(9)  Providing outreach training, tools, and guidance to the States.  Outreach training will include but not be limited to knowledge of demographic data, interpretation of diverse communities groups, understanding culture and language barriers, customer service, and program outreach reporting. 

(10)  Providing regular, scheduled outreach communications through committees with representation from all levels of NRCS to share, coordinate, and identify needs and opportunities. 

F.  State Conservationists and the Directors, Pacific Basin and Caribbean Areas, are responsible for—

(1)  Providing leadership and guidance on outreach expectations and vision.

(2)  Ensuring that training is provided to personnel within the State.

(3)  Identifying underserved customers and developing outreach strategies to serve them.

(4)  Designating appropriate resources and allocating sufficient funds for effective outreach implementation.

(5)  Establishing outreach responsibilities for appropriate employees within the State and holding those employees accountable for the assigned responsibilities.

(6)  Including outreach in State business operations.

(7)  Coordinating outreach efforts with State and local partners, community-based organizations, and other interested partners.

(8)  Institutionalizing outreach as a way of doing business and encouraging all employees within a State to embrace outreach as an essential part of their daily work.

(9)  Providing oversight and evaluation and ensuring accountability and reporting for outreach within the State.

(10)  Recognizing and rewarding employees within a State for engaging in outstanding outreach efforts.

(11)  Informing National Headquarters of specific needs regarding resources needed to implement priority, critical, and targeted outreach activities.

(12)  Identifying barriers and opportunities and making quality improvement recommendations to enhance and improve outreach goals, fairness, and equitability in program availability and delivery.

[GM_230_406_B - Amend. 29 - March 2012]

Subpart C - Measurability and Accountability

406.20  Evaluation

NRCS will—

(1)  Incorporate outreach into the national measurement and accountability system.

(2)  Ensure that strategic, business operations, and performance plans at all levels include outreach goals.

(3)  Develop national outreach performance standards and elements at all levels.

(4)  Develop and use appropriate measurement tools for capturing diverse outreach efforts and accomplishments that support national, State, and local outreach goals.

406.21  Reporting

NRCS will identify opportunities and barriers to successful outreach.  Analysis of this information will be used to institute changes or modifications to policy, outreach activities, strategies and methodologies, etc.

406.22  Oversight

Outreach will be integrated into quality assurance reviews to monitor effectiveness and to ensure that NRCS policy is being carried out as intended.  External customers may be included in quality assurance reviews to ensure overall program effectiveness.

[GM_230_406_C - Amend. 29 - March 2012]

Subpart D - Exhibits

406.30 Definitions

(1) Outreach is conducting business to ensure that NRCS programs and services are made accessible to all customers, with emphasis on the underserved.

(2) NRCS Partners are groups and organizations that share common concerns and goals, which will help carry out the NRCS mission.

(3) Underserved are individuals or groups who have not participated in, or have received limited benefits from, USDA or NRCS programs. Historically, the underserved include tribes, minorities, women, the disabled, limited resource farmers/ranchers and small-scale farmers.

(4) Community Based Organizations (CBO) are recognized groups concerned with improving the quality of life for residents within local communities. Such organizations serve as project initiators and managers, thereby providing avenues for involvement with and access to locally-led processes and activities. These groups include non-profit, non-government organizations with well-defined constituencies that include all or part of a particular community. For example, faith-based organizations, women’s groups, environmental groups, farm or woodlands groups, trade and professional associations, educational associations and schools.

(5) Small Farmer/Rancher -- refer to GM 180, Part 410.

(6) Limited Resource Producer -- refer to GM 180, Part 406.

[GM_230_406_D - Amendment 16 - October 2006]