[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]

REVIEW OF THE OFFICE OF THE INSPECTOR
GENERAL REPORT ON USDA OVERSIGHT OF
CIVIL RIGHTS COMPLAINTS

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HEARING

BEFORE THE

SUBCOMMITTEE ON NUTRITION, OVERSIGHT, AND DEPARTMENT OPERATIONS

OF THE

COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTEENTH CONGRESS

SECOND SESSION

__________

FEBRUARY 15, 2022

__________

Serial No. 117-30

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

Printed for the use of the Committee on Agriculture
agriculture.house.gov

__________

U.S. GOVERNMENT PUBLISHING OFFICE
47-549 PDF WASHINGTON : 2022

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COMMITTEE ON AGRICULTURE

DAVID SCOTT, Georgia, Chairman

JIM COSTA, California GLENN THOMPSON, Pennsylvania,
JAMES P. McGOVERN, Massachusetts Ranking Minority Member
FILEMON VELA, Texas AUSTIN SCOTT, Georgia
ALMA S. ADAMS, North Carolina, Vice ERIC A. ``RICK'' CRAWFORD,
Chair Arkansas
ABIGAIL DAVIS SPANBERGER, Virginia SCOTT DesJARLAIS, Tennessee
JAHANA HAYES, Connecticut VICKY HARTZLER, Missouri
ANTONIO DELGADO, New York DOUG LaMALFA, California
SHONTEL M. BROWN, Ohio RODNEY DAVIS, Illinois
BOBBY L. RUSH, Illinois RICK W. ALLEN, Georgia
CHELLIE PINGREE, Maine DAVID ROUZER, North Carolina
GREGORIO KILILI CAMACHO SABLAN, TRENT KELLY, Mississippi
Northern Mariana Islands DON BACON, Nebraska
ANN M. KUSTER, New Hampshire DUSTY JOHNSON, South Dakota
CHERI BUSTOS, Illinois JAMES R. BAIRD, Indiana
SEAN PATRICK MALONEY, New York JIM HAGEDORN, Minnesota
STACEY E. PLASKETT, Virgin Islands CHRIS JACOBS, New York
TOM O'HALLERAN, Arizona TROY BALDERSON, Ohio
SALUD O. CARBAJAL, California MICHAEL CLOUD, Texas
RO KHANNA, California TRACEY MANN, Kansas
AL LAWSON, Jr., Florida RANDY FEENSTRA, Iowa
J. LUIS CORREA, California MARY E. MILLER, Illinois
ANGIE CRAIG, Minnesota BARRY MOORE, Alabama
JOSH HARDER, California KAT CAMMACK, Florida
CYNTHIA AXNE, Iowa MICHELLE FISCHBACH, Minnesota
KIM SCHRIER, Washington JULIA LETLOW, Louisiana
JIMMY PANETTA, California
SANFORD D. BISHOP, Jr., Georgia

______

Anne Simmons, Staff Director

Parish Braden, Minority Staff Director

______

Subcommittee on Nutrition, Oversight, and Department Operations

JAHANA HAYES, Connecticut, Chairwoman

JAMES P. McGOVERN, Massachusetts DON BACON, Nebraska, Ranking
ALMA S. ADAMS, North Carolina Minority Member
SHONTEL M. BROWN, Ohio ERIC A. ``RICK'' CRAWFORD,
BOBBY L. RUSH, Illinois Arkansas
GREGORIO KILILI CAMACHO SABLAN, SCOTT DesJARLAIS, Tennessee
Northern Mariana Islands VICKY HARTZLER, Missouri
SALUD O. CARBAJAL, California JAMES R. BAIRD, Indiana
AL LAWSON, Jr., Florida CHRIS JACOBS, New York
ANN M. KUSTER, New Hampshire MICHAEL CLOUD, Texas
JIMMY PANETTA, California KAT CAMMACK, Florida
JULIA LETLOW, Louisiana

Katherine Stewart, Subcommittee Staff Director

(ii)

C O N T E N T S

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Page
Bacon, Hon. Don, a Representative in Congress from Nebraska,
opening statement.............................................. 3
Hayes, Hon. Jahana, a Representative in Congress from
Connecticut, opening statement................................. 1
Prepared statement........................................... 3
Submitted report............................................. 25
Thompson, Hon. Glenn, a Representative in Congress from
Pennsylvania, opening statement................................ 4

Witness

Fong, Hon. Phyllis K., Inspector General, Office of Inspector
General, U.S. Department of Agriculture, Washington, D.C.;
accompanied by Gil H. Harden, Assistant Inspector General for
Audit, OIG, USDA............................................... 5
Prepared statement........................................... 6
Supplementary material....................................... 65
Submitted question........................................... 67

REVIEW OF THE OFFICE OF THE INSPECTOR GENERAL REPORT ON USDA OVERSIGHT
OF CIVIL RIGHTS COMPLAINTS

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TUESDAY, FEBRUARY 15, 2022

House of Representatives,
Subcommittee on Nutrition, Oversight, and Department
Operations,
Committee on Agriculture,
Washington, D.C.
The Subcommittee met, pursuant to call, at 12:00 p.m., via
Zoom, Hon. Jahana Hayes [Chairwoman of the Subcommittee]
presiding.
Members present: Representatives Hayes, McGovern, Adams,
Brown, Rush, Sablan, Lawson, Bishop, Bacon, Baird, Jacobs,
Cloud, Letlow, and Thompson (ex officio).
Staff present: Lyron Blum-Evitts, Chu-Yuan Hwang, Katherine
Stewart, Ricki Schroeder, Patricia Straughn, Jennifer Tiller,
and Dana Sandman.

OPENING STATEMENT OF HON. JAHANA HAYES, A REPRESENTATIVE IN
CONGRESS FROM CONNECTICUT

The Chairwoman. I now call to order the hearing of the
Subcommittee on Nutrition, Oversight, and Department
Operations.
Good afternoon, everyone. This hearing of the Subcommittee
on Nutrition, Oversight, and Department Operations entitled,
Review of the Office of Inspector General Report on USDA
Oversight of Civil Rights Complaints, will come to order.
Welcome, and thank you all for joining us here today.
After brief opening remarks, Members will receive testimony
from our witness today, and then the hearing will be open to
questions. In consultation with the Ranking Member and pursuant
to Rule XI(e), I want to make Members of the Subcommittee aware
that other Members of the full Committee may join us today.
Thank you to the Inspector General, accompanied by the
Assistant Inspector General for Audit, for joining us today to
provide testimony and answer our questions. I appreciate you
taking time out of your schedules to provide us with this
expertise. I look forward to a productive conversation about
the USDA Office of the Inspector General report on the USDA
Office of the Assistant Secretary for Civil Rights' (OASCR)
oversight of the civil rights complaint process.
The mission of OASCR is to provide leadership and direction
for the fair and equitable treatment of all USDA customers and
employees while ensuring the enforcement of civil rights.
However, as we know, USDA has a documented history of race- and
gender-based discrimination in its role as an administrator of
Federal programs, an employer, and processor of civil rights
complaints. Discriminatory actions have resulted in several
class action lawsuits and settlements over the years.
While the USDA's civil rights complaints process should
provide recourse for employees and program participants who
face discrimination in hiring, employment, and program
delivery, serious issues have plagued the Department's
complaint processing for more than half a century and
undermined the ability to timely and effectively resolve civil
rights complaints.
And, while these problems are not new, OIG's September 2021
report on USDA Oversight of Civil Rights Complaints, which
reviewed complaints processed between October 2016 and June
2019 had some very concerning findings. OIG's findings show
that, under the previous Administration, USDA regressed in
terms of the timeliness of its civil rights complaint
processing. Of the complaints OIG sampled, more than 85 percent
took longer than 180 days to process. In Fiscal Year 2019, it
took 799 days on average, or more than 2 years, to process
complaints.
We are also aware that, at that time, massive cuts were
requested for OASCR's budget, almost $3.5 million in cuts in
Fiscal Year 2021, for example, and [the Administration was]
realigning the office in 2018 to eliminate redundancies.
Among other concerning changes, as part of the 2018
reorganization of the Office of the Assistant Secretary for
Civil Rights, Secretary Perdue proposed eliminating Deputy
Assistant Secretary for Civil Rights at OASCR, and eliminating
the Policy Division within OASCR because it was: ``no longer
necessary in an era of decreased regulations.''
Furthermore, the budget proposed by the Trump
Administration repeatedly proposed that they would not fill
critical vacancies in the program and employment complaint
areas. As a result, between 2016 and 2020, OASCR lost a
substantial portion of their workforce.
The OIG report * makes clear that the Biden Administration
has their work cut out for them in the area of civil rights at
USDA, both--I am sorry--because of USDA's historic struggle to
appropriately process and adjudicate civil rights complaints.
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* The report referred to is located on p. 25.
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I am hopeful that today's hearing will help us better
understand OIG's findings and recommendations for complaint
processing at USDA. Further, I am hopeful that this hearing
brings forth productive solutions to ensure that this process
works and that OASCR has the staffing and support necessary to
meet its mission.
Thank you again to our Members and to OIG for joining us
today. I look forward to today's conversation.
[The prepared statement of Mrs. Hayes follows:]

Prepared Statement of Hon. Jahana Hayes, a Representative in Congress
from Connecticut
Thank you to the Inspector General, accompanied by the Assistant
Inspector General for Audit, for joining us today to provide testimony
and answer our questions. I appreciate you taking time out of your
schedules to provide us with your expertise.
I look forward to a productive conversation about the USDA Office
of the Inspector General (OIG) report on the USDA Office of the
Assistant Secretary for Civil Rights' (OASCR) oversight of the civil
rights complaints process.
The mission of OASCR is `to provide leadership and direction for
the fair and equitable treatment of all USDA customers and employees
while ensuring the enforcement of civil rights.'
However, as we know, USDA has a long history of race- and gender-
based discrimination in its role as an administrator of Federal
programs, an employer, and processor of civil rights complaints.
Discriminatory actions against program participants, as well as against
its own employees, have resulted in several class action lawsuits and
settlements over the years.
While USDA's civil rights complaints process should provide
recourse for employees and program participants who face discrimination
in hiring, employment, and program delivery, serious issues have
plagued the Department's complaint processing for more than half a
century and undermined its ability to timely and effectively resolve
civil rights complaints.
And, while these problems are not new, OIG's September 2021 report
on USDA Oversight of Civil Rights Complaints, which reviewed complaints
processed between October 2016 and June 2019 had some very concerning
findings.
OIG's findings show that, under the Trump Administration, USDA
regressed in terms of the timeliness of its civil rights complaint
processing.
Of the complaints OIG sampled, more than 85 percent took longer
than 180 days to process. In Fiscal Year 2019, it took 799 days on
average--or more than 2 years--to process complaints.
We are also aware that, at the same time, the Trump Administration
was undermining OASCR by requesting massive cuts in its annual budget--
by $3.5 million in Fiscal Year 2021 alone, for example--and realigning
the office in 2018 to supposedly `eliminate redundancies.'
Among other concerning changes, as part of the 2018 reorganization
of the Office of the Assistant Secretary for Civil Rights, Secretary
Perdue proposed eliminating OASCR's Deputy Assistant Secretary for
Civil Rights position, with little to no justification, and eliminating
the Policy Division within OASCR because it was `no longer necessary in
an era of decreased regulations.'
Furthermore, the Trump Administration's budget repeatedly proposed
that they would `not fill critical vacancies . . . in the program and
employment complaint area.' As a result, between 2016 and 2020, OASCR
lost a substantial portion of its workforce.
The OIG report makes clear that the Biden Administration has their
work cut out for them in righting the ship on civil rights at USDA,
both because of USDA's historic struggle to appropriately process and
adjudicate civil rights complaints, and because of the actions of the
prior Administration.
I am hopeful that today's hearing will help us better understand
OIG's findings and recommendations and the decades of issues that have
plagued civil rights complaint processing at USDA.
Further, I am hopeful that this hearing helps us come together
around productive solutions to ensure that this process works and that
OASCR has the staffing and support necessary to meet its mission.
Thank you again to our Members and to OIG for joining us today. I
look forward to today's conversation.

The Chairwoman. I now would like to welcome the
distinguished Ranking Member, the gentleman from Nebraska, Mr.
Bacon, for any opening remarks he would like to give.

OPENING STATEMENT OF HON. DON BACON, A REPRESENTATIVE IN
CONGRESS FROM NEBRASKA

Mr. Bacon. Thank you, Chairwoman Hayes. I appreciate your
comments, and also your comments on OASCR and what has happened
in the past. I also want to thank our witness today. I welcome
Inspector General Fong to the Subcommittee, and I look forward
to your discussion and learning from you. I also look forward
to the opportunity to bring in the Office of the Assistant
Secretary for Civil Rights at OASCR, even if it involves a
second panel.
After years of issues--and I agree, it has crossed multiple
Administrations--it would be beneficial to question Deputy
Assistant Secretary Rainge about our agency, its future, how it
is going to work to ensure the program and employee complaints
are processed timely and with integrity.
OASCR provides the overall leadership, coordination, and
direction of USDA's civil rights programs, including matters
related to program delivery, compliance, equal employment
opportunity, [inaudible] provides leadership and direction for
the fair and equitable treatment of all USDA customers and
employees, ensuring the delivery of quality programs and
enforcement of civil rights. So, it is indeed one of the more
important agencies of the Department. So, I hope we get an
opportunity to talk to Deputy Assistant Secretary Rainge as
well.
Also, if you may indulge me for just a moment, I also hope
to, sometime soon we can bring up the business of oversight
with the 2018 Farm Bill. I would like to hear from our FNS
personnel publicly regarding implementation or pandemic-related
policies and spending, and of course, the $256 billion baseline
update done by this Administration.
So, with that, I thank the Inspector General for joining us
today, and thank you, Chairwoman Hayes, for leading this
Subcommittee. I yield back.
The Chairwoman. Thank you, Representative Bacon.
I now would like to recognize the Ranking Member of the
full Committee, Representative Thompson, who has joined us
today, for any opening remarks he would like to make.

OPENING STATEMENT OF HON. GLENN THOMPSON, A REPRESENTATIVE IN
CONGRESS FROM PENNSYLVANIA

Mr. Thompson. Madam Chairwoman, thank you so much. Good
afternoon, everybody, and much appreciation to you, Madam
Chairwoman and Ranking Member Bacon.
Welcome, Inspector General Fong. Thank you for being with
us today. I would like to associate myself with the comments of
the Ranking Member. OASCR should be with us today, and I hope
we will have the chance to speak with them soon about this, and
other matters, including how employee complaints are handled.
The September 2021 report under discussion today highlights
longstanding issues within OASCR. Regardless of the
Administration, it appears the office has an outdated and
inefficient approach to program complaints. I look forward to
the discussion and any updates Inspector General Fong may have
relating to her recommendations. And again, I do hope this
Subcommittee starts to contemplate the 2023 Farm Bill. My
colleagues and I have many questions about the 2018 Farm Bill
implementation, including issues related to quality control.
And on the heels of billions of pandemic-related spending, an
additional $256 billion over 10 years in new spending.
Everything in this space requires intense scrutiny and
engagement.
Once again, thank you so much for the opportunity to join
this Subcommittee hearing. With that, I yield back.
The Chairwoman. Thank you, Representative Thompson. The
chair would request that other Members submit their opening
statements for the record so the witnesses may begin their
testimony, and to ensure that there is ample time for our
questions.
Our witness today is the Honorable Phyllis K. Fong, the
Inspector General of the U.S. Department of Agriculture. Ms.
Fong was nominated to serve as Inspector General for USDA by
President George W. Bush and was subsequently confirmed by the
U.S. Senate and sworn in as Inspector General for USDA in 2002.
As Inspector General, Ms. Fong is responsible for audits,
investigations, and other oversight activities related to USDA
programs and operations. In addition to her work for USDA, Ms.
Fong has also served as the acting Inspector General for the
Federal Housing Finance Agency since July 2021. Prior to her
appointment at USDA, Ms. Fong was nominated and confirmed as
Inspector General of the Small Business Administration, where
she served as Inspector General from April 1999 to December of
2002.
Ms. Fong is accompanied today by Mr. Gil Harden, the
Assistant Inspector for Audit at the U.S. Department of
Agriculture. In his role as Assistant Inspector for Audit, Mr.
Harden is responsible for all audits of USDA, and its
operations and programs.
Welcome to both Ms. Fong and Mr. Harden. We will now
proceed to hearing testimony from Ms. Fong. You will have 5
minutes to give your testimony. The timer should be visible for
you on your screen and will count down to 0, at which point
your time has expired.
Ms. Fong, if you are ready, please begin your testimony.

STATEMENT OF HON. PHYLLIS K. FONG, INSPECTOR
GENERAL, OFFICE OF INSPECTOR GENERAL, U.S.
DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C.;
ACCOMPANIED BY GIL H. HARDEN, ASSISTANT INSPECTOR GENERAL FOR
AUDIT, OIG, USDA

Ms. Fong. Thank you very much, Chairwoman Hayes, Ranking
Member Bacon, and Ranking Member Thompson. We really appreciate
the opportunity to be here today to talk about our recent
report, as you all have mentioned. With me today is Gil Harden,
whose office performed the audit work that we will be
discussing today. So, he's got a good grasp of all the details.
As you know, our mission in the IG's office is to help the
Department deliver its programs effectively and with integrity.
We do that through audits, investigations, and other reviews,
and we make recommendations to help the Department improve
program delivery. In the end, however, it is the Department
itself and program officials who must take the necessary
corrective actions. We do not have the authority to do that.
My written statement provides a detailed description of our
report, so I would like to just spend a few minutes talking
about some of the key themes that we have seen in over 20
years, 20 years of oversight work involving the Department's
civil rights programs.
Our work has focused on three broad areas. We have looked
at various USDA programs and outreach activities to underserved
communities. The second area we have looked at is USDA's
handling of the claims resolution process for class action
litigation filed by various groups, as alluded to in the
Chairwoman's opening remarks, and the third area that we have
focused on is USDA's handling of program and EEO employment
complaints under the Civil Rights Acts and other legislation,
and it is this third area relating to the importance of a
timely and responsive complaint process that we believe is
critical to addressing perceived discrimination in USDA
programs and building public trust and confidence that the
Department can serve all the people.
Our most recent report found that the Office of the
Assistant Secretary for Civil Rights, that their program
complaint process has fallen short of their goals. The report
underscores a number of longstanding challenges, as many of you
have pointed out today, that must be addressed if the
Department is to move forward. We have identified these same
themes 14 years ago in testimony to Congress, and civil rights
and outreach activities have been a management challenge on our
list of key challenges facing the Department for 20 years now.
The themes that we have seen are as follows: strong
leadership is essential to make it a priority to process
complaints in a timely fashion; adequate resources need to be
brought to bear, including sufficient staffing and an effective
information technology system; monitoring and oversight of
partnerships with other agencies is necessary to ensure that
all are doing their part; and finally, clear performance
measures need to be set and used so that success can be
measured and reported.
These challenges are not new. They will take concerted
effort to address. I do want to acknowledge publicly that under
the current OASCR leadership, Deputy Assistant Secretary Monica
Rainge has agreed to act on all of our recommendations in the
audit report, and we have accepted OASCR's proposed actions to
address our recommendations.
So, in closing, I want to thank this Committee for your
interest in our work, and we look forward to discussing our
report with you and answering your questions.
[The prepared statement of Ms. Fong follows:]

Prepared Statement of Hon. Phyllis K. Fong, Inspector General, Office
of Inspector General, U.S. Department of Agriculture, Washington, D.C.
Introduction
Good afternoon, Chairwoman Hayes, Ranking Member Bacon, and Members
of the Subcommittee. Thank you for inviting me to testify before you
today to discuss the Office of Inspector General's (OIG) audit of the
Office of the Assistant Secretary for Civil Rights' (OASCR) oversight
of the civil rights complaints process.
As you know, OIG's mission is to promote the economy, efficiency,
and integrity of the United States Department of Agriculture's (USDA)
programs and operations. OIG performs audits, inspections,
investigations, data analyses, and other reviews to address fraud,
waste, and abuse, and makes recommendations that we believe will help
improve how USDA's programs operate. In OIG's USDA Management
Challenges--OIG's annual report on the most critical management
challenges facing USDA--we have noted that, due to public attention
concerning how USDA has historically treated members of socially
disadvantaged groups, the Department is continually challenged to find
effective ways to encourage and support all citizens in their
agribusiness endeavors, especially those within underrepresented
groups.\1\ Since noting this management challenge, OIG has conducted
audits to make recommendations designed to improve the Department's
civil rights programs and processing of civil rights complaints.
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\1\ USDA-OIG, Management Challenges (Feb. 4, 2021), https://
www.usda.gov/oig/reports/management-challenges.
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For instance, in 2012, OIG published an audit report evaluating
OASCR's decision-making process for settling with complainants who were
found to have a high probability of experiencing discrimination in USDA
programs. Specifically, this report: (1) assessed the adequacy of
OASCR's procedures for determining whether settling with complainants
was the appropriate course of action; (2) determined whether settlement
amounts were appropriate and supported; and (3) assessed OASCR's
controls to ensure USDA agencies met the terms agreed upon in program
complaint settlement and conciliation agreements. In addition, this
report followed up on prior OIG audit recommendations relating to
settlement agreements. OIG has also assessed the Department's actions
to implement legal decisions, publishing audit reports in 2015 and
2016.2-3 Finally, we have conducted audits assessing the
grants the Department gives through the Office of Partnerships and
Public Engagement's (OPPE) 2501 Program, to ensure their outreach is
appropriate.4-6
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\2\ Audit Report 50601-0003-21, In re Black Farmers Discrimination
Litigation, Sept. 2015.
\3\ Audit Report 50601-0002-21, Hispanic and Women Farmers and
Ranchers Claims Resolution Process, Mar. 2016.
\4\ Audit Report 91099-0001-21, Controls Over the Grant Management
Process of the Office of Advocacy and Outreach, Feb. 2013.
\5\ Audit Report 91099-0003-21, Section 2501 Program Grants Awarded
FYs 2010-2011, Mar. 2015.
\6\ Audit Report 91601-0001-21, Outreach and Assistance for
Socially Disadvantaged Farmers and Ranchers and Veteran Farmers and
Ranchers Program (2501 Program) in Fiscal Years 2018 and 2019, Nov.
2021.
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USDA Oversight of Civil Rights Complaints
While OIG has conducted numerous reviews over the years designed to
improve the Department's civil rights programs and processing of civil
rights complaints, the main focus of my statement today is our recent
audit of OASCR's oversight of the civil rights complaints process,
specifically OASCR's processing of program complaints. Program
complaints are complaints of discrimination filed by any person or
group of persons who believe they have been subjected to prohibited
discrimination in a USDA program. Within USDA, OASCR is responsible for
making final determinations on program complaints.
In October 2018, OASCR reorganized to streamline the delivery of
program complaint services at the mission area level and ensure that
USDA projects a unified voice on all civil rights issues. Within OASCR,
the Center for Civil Rights Enforcement supports OASCR's mission
largely through its program directorates--the Program Complaints
Division and the Program Adjudication Division. The program complaint
process begins in the Program Complaints Division's Intake Division,
which receives complaints from persons alleging discrimination in
USDA's Federally conducted or assisted programs. The Program Complaints
Division then determines which Federal civil rights laws, regulations,
and policies the complaint pertains to, and chooses one of the
following courses of action: administrative closure, programmatic
referral, or investigation.
The first process, administrative closure, can occur at any stage
in the process if OASCR determines that procedural grounds exist
warranting administrative closure. The second process, programmatic
referral, occurs if the complaint pertaining to a USDA agency does not
include a jurisdictional basis of discrimination covered under the
civil rights statutes; in those instances, the complaint is forwarded
to the respective agency for review and processing. The third process,
investigation, results in OASCR assigning an investigator to determine
the facts and evidence surrounding the complaint. After the
investigation has been completed, an assigned adjudicator reviews the
investigative report, analyzes the evidence, applies the applicable
laws, and drafts a final agency decision. If OASCR determines that
discrimination occurred--or if the issue is resolved through a
settlement--the Compliance Division monitors to ensure all parties
comply with the agreements and implement corrective actions.
OASCR does not evaluate and process all complaints for USDA and it
relies on the assistance of two organizations: USDA's Food and
Nutrition Service (FNS) and the United States Department of Housing and
Urban Development (HUD). USDA used Memoranda of Understanding to
establish agreements to coordinate civil rights program complaint
processing with FNS and HUD. OASCR refers program complaints relating
to FNS programs to FNS officials to evaluate and process the
complaints. Similarly, USDA refers any complaints alleging a potential
Fair Housing Act violation to HUD. USDA's Rural Development serves as
an intermediary between OASCR and HUD.
OASCR's oversight of complaint resolution is critical to ensuring
that complaints are resolved in accordance with Departmental and
Federal requirements. Furthermore, it is essential that OASCR resolve
complaints timely; when complaints are not resolved timely, individuals
who have a legitimate claim of discrimination and would otherwise be
eligible for USDA programs may not continue pursuing their complaint.
Additionally, lengthy processing times could discourage potential
complainants from filing a complaint.
Why OIG Performed the Audit
In 2012, we reported that OASCR needed to strengthen its procedures
for settlement agreements so that it could support its decisions,
process cases timely, and report them accurately. Specifically, we
identified control weaknesses surrounding timeliness, data accuracy,
and supporting documentation.\7\ Additionally, in 2008, the Government
Accountability Office (GAO) reported that OASCR needed to address
several fundamental concerns about resolving discrimination
complaints.\8\
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\7\ Audit Report 60601-0001-23, Report Review of the Office of the
Assistant Secretary for Civil Rights' Oversight of Agreements Reached
in Program Complaints, Aug. 2012.
\8\ GAO, Recommendations and Options to Address Management
Deficiencies in the Office of the Assistant Secretary for Civil Rights,
GAO-09-62 (Oct. 2008).
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Building on these earlier reports, we completed our 2021 audit to
evaluate OASCR's controls over the civil rights complaints process to
ensure that program complaints were being processed in accordance with
requirements and timely and efficiently resolved. In this audit, we
also followed up on all five recommendations from our 2012 audit report
and three of the six recommendations from GAO's 2008 audit report.\9\
Although OASCR agreed to take corrective action to address all
recommendations at the time of each audit report's publication, our
2021 audit report noted that control weaknesses continue to exist.\10\
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\9\ OIG follows up on audit recommendations to evaluate the
adequacy and effectiveness of the corrective actions taken by
management.
\10\ Audit Report 60601-0001-21, USDA Oversight of Civil Rights
Complaints, Sept. 2021.
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What We Found
Overall, we found that OASCR needs to develop a stronger internal
control environment over its civil rights program complaints processing
to ensure that complaints are timely and appropriately handled, and
that OASCR achieves established goals and objectives.\11\
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\11\ Due to the age of the prior audit recommendations provided by
OIG and GAO, we did not report on the follow up of prior audit
recommendations separately in a specific finding or section of this
report. Rather, similar issues identified within prior audit reporting
and addressed by prior audit recommendations were incorporated into our
current findings and recommendations where applicable.
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More specifically, OASCR did not timely process civil rights
program complaints. OASCR officials processed program complaints using
the 540-day timeframe established in an internal 2013 policy memorandum
rather than using the 180-day timeframe set forth in the publicly
available Departmental manual. From October 1, 2016, through June 30,
2019, USDA processed 911 program complaints. Of these complaints, more
than 85 percent of our sample took longer than 180 days to process.\12\
Furthermore, more than 67 percent of sampled program complaints took
longer than 540 days to process. The average processing time of program
complaints in our sample was over 630 days; overall, for all program
complaints in FY 2019, OASCR processed program complaints within an
average of 799 days. This is an increase from OACSR's average
processing time for program complaints in FY 2018, which was 594 days
and is an increase from OACSR's average processing time for program
complaints in FY 2017, which was 571 days.
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\12\ Of the 911 complaints, we non-statistically selected a sample
of 28 complaints to review.
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Similarly, because OASCR did not implement or update effective
processes to monitor and track complaints, FNS and HUD did not timely
resolve referred program civil rights complaints. Based on established
agreements, FNS and HUD process civil rights program complaints for
select areas of purview. Although program complaint processing is
coordinated with these agencies, OASCR retains responsibility,
oversight, and final authority for these complaints. Specifically, we
found that between October 1, 2016, and June 30, 2019, FNS took an
average of more than 220 days and HUD took an average of more than 600
days to process complaints referred to them by OASCR. Furthermore,
there were two cases--one each from FNS and HUD--that were not resolved
until after 1,700 days.
Federal regulations require agencies to establish and make public
procedures for the ``prompt processing and disposition of civil rights
program complaints.'' \13\ Operating on timeframes that are different
from those outlined in public guidance could diminish public confidence
that USDA is carrying out its responsibility to process complaints in a
timely manner. Additionally, without adequate oversight, OASCR cannot
ensure that FNS and HUD promptly resolve referred program complaints in
compliance with relevant directives and guidance. When faced with
lengthy timeframes to process their complaints, individuals who have a
legitimate claim of discrimination and would otherwise be eligible for
USDA programs may not continue to pursue their complaint, and potential
complainants may not file a complaint.
---------------------------------------------------------------------------
\13\ Department of Justice 28 CFR 42.408.
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Additionally, although OASCR developed its Strategic Plan FY 2016-
2020, we found that it did not use the plan to measure or assess its
progress toward established goals and objectives relating to program
complaints because OASCR's management did not establish specific ways
to: (1) monitor performance measures and indicators, (2) perform
periodic reviews and regularly update the plan, and (3) report on
actual performance compared to its goals and objectives. Using the
performance measures provided in the strategic plan could have helped
OASCR avoid shortcomings we identified in our audit; however, because
OASCR has not established and implemented such measures, OASCR
officials cannot determine whether they are achieving the Strategic
Plan's intended goals and objectives. This further hinders OASCR's
ability to improve the program complaint process.
In our report, we made 21 recommendations intended to help OASCR
improve its processing of civil rights program complaints. For example,
we recommended that OASCR evaluate the timeframe to process program
complaints and, based on this analysis, develop and implement
timeframes and a success rate to ensure program complaints are
processed in a prompt and timely manner. We further recommended that
based on this analysis, OASCR update Departmental guidance outlining
timeframes for processing program complaints and publish the updated
Departmental guidance on OASCR's public website. Additionally, we
recommended that OASCR use this analysis to revise and update the
Memoranda of Understanding with FNS and HUD with timeframes for
processing complaints to ensure program complaints are processed in a
timely manner. We have reached agreement with OASCR on its proposed
corrective actions for all of the report's 21 recommendations.
Upcoming Civil Rights Work
In addition to our completed work, we have an audit planned that
focuses on OASCR's Equal Employment Opportunity complaint process.
Specifically, this audit will: (1) evaluate OASCR's Equal Employment
Opportunity civil rights complaints process to ensure complaints are
processed in a timely manner and in accordance with applicable
procedures; and (2) ensure applicable corrective actions taken in
response to prior audit recommendations remain effective.
Conclusion
This concludes my statement. I want to again thank the
Chair[woman], the Ranking Member, and Members of the Subcommittee for
the opportunity to testify today. I welcome any questions you may have.

The Chairwoman. Thank you, Ms. Fong.
At this time, Members will be recognized for questions in
order of seniority, alternating between Majority and Minority
Members. You will be recognized for 5 minutes each in order to
allow us to get to as many questions as possible. Please keep
your microphones muted until you are recognized in order to
minimize background noise.
I will recognize myself at the end so that we can get to
our Members first, so I now recognize Representative Bacon, the
Ranking Member of the Subcommittee.
Mr. Bacon. Thank you, Madam Chairwoman, I appreciate that.
Inspector General Fong, has the President provided any
indication as to when he will appoint a permanent Inspector
General for the Federal Housing Finance Agency, a role in which
you have been in acting capacity since August of 2021,
simultaneous to your current role in the Department? Thank you.
Ms. Fong. Thank you for that question. I have a great
personal interest in that, and, actually, the President has
nominated a candidate who is going through the confirmation
process. The most recent status is that he has made it out of
the Banking, Housing, and Urban Affairs Committee and is
awaiting a Senate vote. So, it could be soon.
Mr. Bacon. Thank you.
One more question. For the OIG 2022 annual plan, three
factors were identified that could hamper your ability to meet
objectives, factor one, relating to hiring including challenges
recruiting and maintaining sufficient personnel to meet
stakeholder demands. Has this factor become a reality, and if
so, what are the challenges you are currently facing, and is
there a plan in motion to help mitigate those issues? Thank
you.
Ms. Fong. Yes, thank you for that question.
Capacity is a key issue for us, and last year, we lost a
number of people due to normal attrition. We have had
challenges filling those positions, and that is probably our
top internal management priority right now--to fill our
vacancies. We are down about 40 or 50 positions--not positions,
but people in those positions, and so, we are very much focused
on filling them. We need auditors and investigators to do our
work.
Thank you.
Mr. Bacon. And with that, I will just say I know how
important the Inspector General is. I did 30 years in the Air
Force. I need a very good IG team to hear complaints and be a
neutral sounding board, so I appreciate the role that you play.
And with that, Madam Chairwoman, I will yield back and
allow others to have their turn. Thank you.
The Chairwoman. Thank you, Ranking Member Bacon.
I now recognize the gentlelady from Ohio, Representative
Brown. You have 5 minutes for questions.
Ms. Brown. Thank you, Chairwoman Hayes and Ranking Member
Bacon, for holding this important hearing, and thank you, Ms.
Fong and Mr. Harden, for being here today and for your many
years of service and dedication to supporting this Department.
The Department of Agriculture has a longstanding track
record of controversy on civil rights, from inconsistent access
to farm programs for minority farmers and ranchers, to unfair
treatment of minority, women, and disabled employees. So, it is
no secret that the Department must do better.
So, my question is: in your report, you raised concerns
that, when faced with lengthy timeframes to process their
complaints, individuals who have had a legitimate claim of
discrimination and would otherwise be eligible for USDA
programs may not continue to pursue their complaint. Ms. Fong,
how will your recommendations help to rebuild public confidence
in the USDA Office of Civil Rights and ensure that wrongdoers
in the Agency are held accountable?
Ms. Fong. Yes, thank you for that question.
I think it is essential that the Department have an
effective and timely process to deal with incoming complaints
from employees and program participants who are concerned that
they may have legitimate grievances, and as a complainant, if
you file a complaint and it is not appropriately investigated
and adjudicated within a reasonable amount of time, the concern
is that you could lose confidence in the Department's ability
to address your needs and to give you the assistance that you
need, and that is just a very critical issue of credibility.
Ms. Brown. So, is it your opinion that additional oversight
will be needed?
Ms. Fong. Well, our report found that the Office of the
Assistant Secretary needs to really oversee these activities,
both within its own program as well as within the agencies
within the Department. And of course, it is our responsibility
to also do oversight work to make sure that our recommendations
are implemented.
Ms. Brown. Okay, thank you.
Chairman Bacon--Ranking Member Bacon, I am sorry--touched
on the Assistant Secretary for Civil Rights at USDA which
requires Senate confirmation and remained vacant for the
entirety of the previous Administration. President Biden has
nominated a candidate who is still waiting for Senate
confirmation. Can you speak to the importance of confirming
this position to all of the Department, the USDA?
Ms. Fong. Yes, I think it is essential that whenever a
position is designated as one requiring a Presidential
appointee, there is a reason for that. That person sets a
certain tone, has leadership responsibilities, and sets
policies at the highest level, which all sets the tone for the
organization. And so, we believe that it is critical that these
positions be filled, and I think our work led a number of years
ago to the creation of the position of a Presidentially
appointed Assistant Secretary for Civil Rights. So, we are very
supportive of that.
Ms. Brown. Thank you so much.
And as we move into appropriations season, the previous
Administration requested decreases in appropriations for the
Office of Civil Rights, including a cut of $3.5 million in
Fiscal Year 2021. Conversely, the Biden Administration has
requested an increase of $6.5 million in this fiscal year. Do
you think that President Biden's budget request is sufficient
to carry out all the recommendations your office has presented,
Ms. Fong?
Ms. Fong. We have not done that analysis. We do understand
that the Deputy Assistant Secretary has agreed to implement all
of our recommendations, and, so, we believe in giving her that
opportunity.
Ms. Brown. Well, let me ask you this. What would be your
top three recommendations that the Agency should prioritize?
Ms. Fong. For the Office of Civil Rights?
Ms. Brown. Yes.
Ms. Fong. Well, in our set of recommendations there were 21
of them. I think it is key that the Office be very clear about
its time for processing complaints, and then come up with a
plan to actually achieve those goals, whether it is through
staffing or IT resources or other means.
They also need to revisit their strategic plan to make sure
that they are focused on what they need to do and they set it
out very clearly, and they measure their performance. And
third, they need to focus on making sure they have the data to
actually report back on how well they are doing.
Ms. Brown. Well, thank you, Ms. Fong.
As I expressed, I have some concerns about the findings in
the report, and Chairwoman Hayes, if I have any additional
questions, I will submit them for the record.
Thank you, Madam Chairwoman, and I yield back.
The Chairwoman. Thank you, Representative Brown.
I now recognize the Ranking Member of the full Committee,
Representative Thompson. You have 5 minutes for questioning.
Mr. Thompson. Madam Chairwoman, thank you so much, and once
again, Inspector General Fong, thank you for your service. You
play a critical role within USDA, and you and your colleagues,
we appreciate what you do.
Last week, USDA announced a $1 billion pilot program for
climate-smart commodities. It is my understanding this money
will not go directly to farmers, but rather be doled out to
companies or other entities who will, in turn, pay farmers for
certain practices. So, I am concerned with the lack of
transparency at this point. It is certainly concerning to me.
Do you intend to audit the Partnership for Climate-Smart
Commodities pilot and its financing by the Commodity Credit
Corporation? That would be my first question, I guess.
Ms. Fong. We don't have current plans to do that audit. We
just became aware of the program announcement, and we are
keeping an eye on it. We know that there are a number of
concerns that are being expressed about it, and we need to
learn a little bit more about the situation. But we will
definitely consider that in our planning process.
Mr. Thompson. Well, I appreciate that. I appreciate your
due diligence of learning more about it. There is just a real
lack of transparency, and to me, that those types of situations
always lend themselves to audits. I find them helpful. I know
our Members--all of our Members would. So, I appreciate that.
Inspector General Fong, are you aware of a complaint filed
with FNS Civil Rights Division alleging discrimination in FNS
SNAP retailer administrative enforcement system, and, if so,
has there been a formal investigation? Has a formal
investigation been opened?
Ms. Fong. Okay. We receive, as you know, a lot of
allegations through our hotline and through whistleblowers.
Mr. Thompson. Right.
Ms. Fong. I can't really discuss anything that is an open
and ongoing investigation, but we do work very closely with
FNS. When they have concerns, they know that they can come to
us to request assistance and we will give it every
consideration and evaluation.
If there is a particular situation that you would like to
discuss, we would be happy to reach out to your staff and
coordinate further.
Mr. Thompson. Oh, I would appreciate that. If that is the
case, I would be curious to know what the expected timeline for
completion might be estimated to be. So, I appreciate those
future communications.
I think with that, Madam Chairwoman, I just once again
thank you and the Ranking Member, and more specifically,
Inspector General Fong, for joining us here today, and I yield
back the balance of my time.
The Chairwoman. Thank you, Representative Thompson.
We have another Member from the full Committee joining us
today, the Representative from Georgia, Mr. Bishop, and the
Members of the Committee have agreed to let him ask questions
out of order, because he cannot stay with us for the entirety
of this hearing. So, I now recognize the gentleman from
Georgia, Representative Bishop, for 5 minutes for questioning.
Mr. Bishop. Thank you, Madam Chairwoman, and thank you to
the Members of the Committee for allowing me to speak out of
turn. Thank you so much for this hearing. It is very timely and
let me welcome Ms. Fong and thank her and her staff for her
decades of extraordinary work in the Office of Inspector
General.
Ms. Brown of Ohio referenced earlier the efforts by the
Administration, and you commented on the fact that the new
director of that office has agreed to the recommendations to
try to implement them. And I think Ms. Brown referenced and
asked you whether or not the--you thought that the budget
requests would allow them to comply with the recommendations.
And of course, you indicated that you had not had an
opportunity to analyze them.
But as a Member of the Appropriations Committee, in fact,
as Chair of that Subcommittee, I noticed that there were
several, several requests that were made which we proposed to
fund in the Fiscal Year 2022 bill. That is an increase for
staff of 128 to 191, which is a cost of about $11 billion that
would allow the office to reestablish alternative dispute
resolution center, new program adjudicators to work exclusively
with the Heirs Property Lending Program, new equal employment
specialists and assistants to ensure that all of the employment
complaints are handled in a timely manner, new employment
specialists in the conflict complaints division to ensure that
this model, which was set by the Equal Employment Opportunity
Commission Program, would be able to process sensitive
complaints efficiently, and additional hires would enhance
their audit functions, increasing the program investigators for
face-to-face investigations, enhance collaborative efforts with
community-based organizations, increasing funding for
employment investigation contract support, and replacing the
current Civil Rights Enterprise System for processing the
complaints. And of course, those proposed to be funded and both
the House and the Senate seem favorably disposed to it.
If, in fact, those provisions are all funded in the
appropriations bill, will that give an opportunity, do you
think, give them the resources that they need to comply with
the recommendations that you made?
Ms. Fong. Thank you for that information. A number of
things that you said caught my ear. If, in fact, they receive
that appropriation and are able to hire an additional 60+
people, that should make a significant difference in their
ability to investigate and adjudicate claims.
I also heard you say that they are planning to replace
their CRES system, which sounds like a tremendous step forward
in terms of getting an effective management information system
to manage their caseload and keep track of what is going on and
all the deadlines. So, that sounds very promising, and I hope
to hear good things.
Mr. Bishop. Thank you very much, Ms. Fong, and I understand
that in the previous Administration, there were drastic cuts in
that agency, and of course, that resulted in an exacerbation of
what was already a bad problem. And so, I think that this
Administration, as you have recognized, is trying to move
forward to remediate that and to take steps forward, and I
think the authorizing committee and the appropriations
committees on both sides of the Capitol, I should say, appear
to be supportive of that. And so, thank you for your
consistency in highlighting the failure to comply with the
recommendations, and we hope that in this instance we will be
able to provide the resources that will allow those
recommendations to be followed.
So, thank you very much, and with that, Madam Chairwoman, I
will yield back my time and I thank you again for allowing me
to go out of turn.
The Chairwoman. Thank you, and thank you for joining us
today.
I now recognize the gentleman from Indiana, Representative
Baird. You have 5 minutes for questioning. Please begin.
Mr. Baird. Well, thank you, Madam Chairwoman, and thank you
and the Ranking Member for holding this important session.
I appreciate Inspector General Fong for being here and
sharing her perspective on this office.
I am curious. I am kind of curious. It looks like that we
reported 911 complaints from 2016 to 2019. That would appear to
me to be almost 1 a day in that 3 year period. I also am kind
of curious about why we focused on the previous Administration
and those 3 years. And so, what is your perspective on how we
might move forward in analyzing this data and as we implement
the suggestions that OASCR has suggested?
Ms. Fong. Yes. Let me offer a few comments. We, as you
pointed out, designed this review to focus on the 3 years of
data that were available at the time. It was not intended to
focus on any particular Administration, and we have done work
throughout the 20 years that I have been at USDA. We have done
work every few years on these issues. We had done work in 2014
and 2015 on similar issues through our investigative side, and
found similar processing delays with complaints. And so, it was
again time to go back in. And so, this covered the next group
of years. And I think, we just are here to report the data as
we found it, and I think that the facts are set out in our
report.
Mr. Baird. Well, thank you. I am really glad to hear that,
and I appreciate your perspective and I appreciate your
comments in that regard.
I would like to understand the relationship between the OIG
or the OASCR and the Department through Memoranda of
Understanding, and I would just like to understand that
relationship and how that relates to the process of handling
these complaints. And then I would like to have your idea on
how long you think what period of time is sufficient for
handling these complaints.
Ms. Fong. Yes, those are very insightful questions, and I
will take the second question first in terms of the appropriate
timeframe for handling complaints. There is no Federal
regulation that sets out an appropriate timeframe for program
complaints. The Justice Department just says you have to do it
in a prompt way. And so, our recommendation to OASCR is that
they should figure out, do an assessment, perhaps do some
benchmarking, think about what an appropriate timeframe might
be, and then be very clear about communicating that to the
public as well as to their own people. We have seen the
timeframes expand over the years from 180 days until where it
currently is. There has to be a standard that would be
appropriate that they can adopt and hold themselves to.
In terms of the relationships between OASCR and the
Department and the MOUs, my understanding--and Gil might be
able to step in here--is that OASCR basically oversees the
handling of complaints within the Department, but with respect
to two program areas, because of the expertise that resides in
FNS for the nutrition programs, and with HUD for the housing
programs, that there is an agreement there to have those two
entities handle those program complaints, and OASCR is
responsible for then overseeing the timeliness and the
effectiveness of those processes, and they do that through an
MOU.
And Gil, I will turn the microphone over to you if you have
any additional things to offer on that.
Mr. Harden. Thanks, Phyllis.
I think the only thing that I would add is, it really goes
back to their oversight and monitoring of the process. They had
agreements in place that they just weren't effectively
overseeing, and they needed to update those agreements. So,
renewed efforts there, there could be better processing times
for both of those entities.
I will also point out just in the report, the number or the
percentage of cases processed by FNS and HUD of that 911 for
that time period was 59 percent, so they processed a
significant portion during that time period of the complaints
to be processed. And so, having a good relationship with those
entities and providing effective oversight is critical.
Mr. Baird. Thank you, and I have overrun my time, but
anyway, I appreciate those answers very much.
So, Madam Chairwoman, I yield back.
The Chairwoman. Thank you. It was a very important
question, so I wanted to hear the answer. You are forgiven.
Mr. Baird. Thank you.
The Chairwoman. I now recognize the gentleman from the
Northern Mariana Islands. Mr. Sablan, you are recognized for 5
minutes for questioning.
Mr. Sablan. Yes, thank you, Madam Chairwoman, for holding
this hearing. I want to welcome our witness, Inspector General
Fong, and of course, her assistant.
Inspector General Fong, I will eventually reach out to your
office for an issue with operations in my district in the
Northern Mariana Islands, and it is sometimes a difficult
relationship with the region office in Hawaii, but for today,
in your report on the USDA Office of the Assistant Secretary
for Civil Rights, OASCR, would you confirm whether civil rights
complaints from the U.S. Territories were examined?
Ms. Fong. I do not know the answer to that, whether we had
any of those complaints in our sample. If I had to say, I would
say that USDA's jurisdiction would--OASCR's jurisdiction would
extend to any USDA programs, wherever they are offered so that
the jurisdiction and the authority is there, but I don't know
if we looked at any complaints specifically from your district.
Mr. Sablan. Okay, and how do we get your office to look at
complaints, if there are any out there that have not been
looked at? We are just so isolated, so remote, and we get
looked over so many times.
Ms. Fong. We would be happy to reach out to your staff and
discuss the most effective way to do that.
Mr. Sablan. Okay, thank you.
Ms. Fong. And if you have anything else to offer, Gil,
please comment.
Mr. Harden. Yes, I was just going to offer that we can
first take a look at the 28 complaints that are in our sample
just to confirm where they are and if there are any complaints
from the Northern Mariana Islands, and also reach out and have
a discussion about concerns with complaints in that area.
[The information referred to is located on p. 66.]
Mr. Sablan. Yes. Mr. Harden, when you are looking for it,
look for the Northern Mariana Islands and Guam, because we are
an outpost that are several times removed from the region
office. But thank you for that. I appreciate it.
And so, Inspector General, in your testimony, you state
that the OASCR does not evaluate and process all complaints for
USDA, and it relies on the assistance of two organizations, FNS
and HUD, these two organizations completed 59 percent of USDA's
civil rights complaints during the period that your OIG
evaluated and processed complaints more quickly than OASCR,
more than 600 days and more than 200 days on average
respectively in Fiscal Year 2019, as compared to 799 days on
average for all complaints. Why do you believe that FNS and HUD
processed complaints more quickly than OASCR?
And are there lessons from the processes that could be
applied to OASCR's process itself?
Ms. Fong. Well, I think you make a very interesting point,
that the complaints handled by FNS and HUD were handled in a
more timely manner than some of the others. I think what we
would be concerned about is that none of those timeframes
really comport with the timeframes that the agency was holding
itself to, and were much too lengthy. But Gil may have some
further insight on that.
Mr. Harden. I agree, it is a very interesting question that
I would have to go back and talk to the team and see if we have
any information that would inform discussion in that area, and
if we do, we can get back to the Congressman, either way,
whether we do or we don't.
[The information referred to is located on p. 67.]
Mr. Sablan. Thank you again for that.
Madam Chairwoman, I have no other questions. I thank the
witness and I yield my time. Thank you.
The Chairwoman. Thank you, Mr. Sablan.
I am looking. I don't see any of my Republican colleagues,
so I will now recognize, I see Mr. Rush has joined us. I now
recognize the gentleman from Illinois, Mr. Rush, for 5 minutes
if you have questions.
Mr. Rush, you are muted.
Mr. Rush. I am unmuted now.
The Chairwoman. Yes. Please begin. Thank you.
Mr. Rush. Thank you, Madam Chairwoman. I am so delighted to
be here with you this morning, and thank you for today's
oversight hearing.
This oversight hearing is critical for ensuring that the
civil rights complaints brought by farmers are taken seriously,
that they are met in a timely manner, and that they are
resolved in such a way that Black and minority farmers receive
both the justice and the assistance that they need in order to
prosper.
I am somewhat, I am very disheartened, Madam Chairwoman, by
how often the Federal Government and the Department of
Agriculture are falling short over the years at the expense of
Black farmers, their livelihood, their property, and their
trust. At the same time, I am also hopeful that under the
leadership of the Biden Administration and the bright spotlight
provided by the Office of Inspector General, we can regain the
public's confidence.
Madam Chairwoman, I am a descendant. My grandfather was a
Georgia farmer on the farm, and my grandfather's farm was--we
lost the farm under what I think are some very, very
questionable circumstances.
My question is to Ms. Fong. Ms. Fong, can you expand on how
the USDA is addressing their history of failing to review
complaints in a timely manner. What initial steps should the
Department take to increase buy-in from minority farmers?
Ms. Fong. Yes, I think it is critical that the Department
exercise leadership in this arena, and we have made a number of
recommendations where the Office of the Assistant Secretary for
Civil Rights could exercise leadership to start addressing some
of these longstanding issues. It was very good to hear from
Chairman Bishop about the resources that he hopes Congress will
appropriate to enable OASCR to have the staff that it needs to
move forward. And I think we have a commitment from the current
leadership of the Office of the Assistant Secretary for Civil
Rights to take action on all of our recommendations, and that
is a very encouraging sign.
Mr. Rush. Ms. Fong, I have also heard multiple reports of
outright hostility at local ag field offices toward Black
farmers. Did the OIG's report drill down into the geographic
distribution of complaints, and if so, were there any specific
recommendations that were made by state or regional offices?
And if not, is that something that will be possible for the
Department to research and issue a report on? I think we might
create a bright light on the attitudinal obstacles to fairness
that Black farmers, particularly, are experiencing at the local
level.
Ms. Fong. That is a very interesting question. I don't know
if in the sample of cases that we looked at in our audit if we
have geographical data on the distribution. I think we could
certainly take a look at that and get back to you and your
staff on that to see if we have data by state or region. And I
think you also raised a very interesting question looking
forward as we plan our future work, whether there is any way to
address that question if the data exists. So, we will think
about that and get back to your staff on that.
[The information referred to is located on p. 66.]
Mr. Rush. Last thing, quickly. What is the appeal process
for rulings by field offices?
Ms. Fong. The appeal process for--I think that would lie
with the program agencies. My office, what we do is we audit
and we investigate allegations of wrongdoing or fraud, and
people are free to come to us at any time. We have public
hotlines and intake mechanisms, and if there are issues that we
see, we will either investigate or audit them, or we will work
with the agencies on that.
Mr. Rush. Thank you, Madam Chairwoman. You have been
magnificent. Thank you so very much.
The Chairwoman. Thank you so much for your questions,
Representative Rush.
I now recognize the--oh, I am sorry. Seeing none of my
Republican colleagues on the platform, I will now recognize the
gentlelady from North Carolina, Representative Adams. You have
5 minutes for questions.
Ms. Adams. Thank you, Chairwoman Hayes and Ranking Member
Bacon, for hosting the hearing today, and to Inspector General
Fong, thank you for your testimony as well.
The USDA's history of discrimination, discriminatory
actions against employees and program participants,
particularly socially disadvantaged farmers and ranchers, is
well-documented. It is critical that USDA employees and
participants in USDA programs have confidence in the
Department's ability to properly resolve complaints in a timely
manner.
So, my question has to do with processing. Processing times
for complaints steadily increased from Fiscal Year 2017, 571
days, to Fiscal Year 2018, 594 days, Fiscal Year 2019, 799
days. What do you believe were the factors behind these
increases?
Ms. Fong. Well, when we did our work and we talked with the
employees of the Office of the Assistant Secretary for Civil
Rights, they identified insufficient resources as a key reason
for the delays, insufficient staff resources, the need for a
really good IT system, and I think that's probably a good place
to start in terms of addressing the issues.
Ms. Adams. Okay. So, the decreasing staff levels during the
last Administration, was that, in your opinion, a contributing
force?
Ms. Fong. We did not specifically address that issue, but
the fact that the staff of that office indicated that it was a
force would seem to be credible.
Ms. Adams. Okay.
Ms. Fong. And, any office that loses staff is going to lose
capacity to do what it needs to do.
Ms. Adams. Okay. So, do you have any thoughts about why the
action was not taken at USDA as the processing time increased
year after year after year to address the issue?
Ms. Fong. I don't know, and part of it may be, and Gil,
please comment on this. Part of it may be that the data may not
have been either available or wasn't being reviewed to really
identify the fact that these delays were growing.
Ms. Adams. Okay. So, let me ask, has OIG looked at the
impact to the civil rights apparatus in the Department since
the Trump Administration ended the assessment process, and why
has the Department conducted or why hasn't the Department
conducted any compliance reviews since 2017?
Ms. Fong. Yes, that is one of our findings and the source
of our recommendations. We recommended that the Office of Civil
Rights really missed an opportunity here by not conducting
those assessments and compliance reviews. That would be a
tremendous source of data for OASCR to determine whether its
programs are working or not, and we recommend that they find a
way to obtain and do that kind of oversight.
Ms. Adams. Okay. Your office reviewed a sample of 48 case
files, 28 of which were part of the 911 complaints closed
between October 1, 2016, and June 30 of 2019. What kinds of
cases were these? Race, gender, disability, discrimination, and
what agencies? Was it Farm Service, Food and Nutrition, were
these 48 cases for?
Ms. Fong. I do not have that data specifically. Gil, would
you like to comment, or should we get that information for you?
Mr. Harden. What I was going to ask is if you would allow
us to pull that data from our work. We can give you a very
specific answer as to what made up the cases that we looked at.
[The information referred to is located on p. 65.]
Ms. Adams. Okay, fine.
Mr. Harden. We can get back to you on that.
Ms. Adams. Okay, if you would do that.
Your office identified five settlements, six findings of
discrimination in the sample of cases. What kinds of cases, in
terms of race, gender, disability, discrimination--were these?
Mr. Harden. And similarly, I would like to gather the
specific information on that and get that back to you. The
report itself focuses on the process as opposed to the
individual cases, so I don't have that right in front me.
[The information referred to is located on p. 65.]
Ms. Adams. Okay. Well, thank you very much. I appreciate
your responses.
Madam Chairwoman, I am going to yield back.
The Chairwoman. Thank you, Representative Adams.
Seeing none of my Republican colleagues on the platform, I
now recognize the gentleman from Florida for 5 minutes. Mr.
Lawson, if you would like to ask your questions?
Mr. Lawson. Am I unmuted? Can you hear me?
The Chairwoman. We can hear you, sir. We can hear you, sir.
Mr. Lawson. Okay. Thank you very much, Madam Chairwoman.
Ms. Fong, welcome too. Let me see if I can put my glasses on
here.
Ms. Fong, my statement is: according to 2017 Census of
Agriculture, my district in Florida, District 5 ranked 29th out
of 435 Congressional districts in the population of self-
reported Black farmers. Therefore, the adequate processing of
civil rights complaints is a major priority for me.
The question is, are the actions outlined in your
recommendation where the Office of Inspector General has
identified a role for Congress in addressing some of the
actions in the Office of the Assistant Secretary for Civil
Rights issues, have these been taken care of? You mentioned
something about it earlier, but I just want to know what has
been done in the--with the Assistant Secretary of Civil Rights
on these issues?
Ms. Fong. Yes. We, as you point out, we made a number of
recommendations to the Assistant Secretary's office. They have
reviewed those recommendations and given thought to how to
address them, and I am pleased to testify that very recently,
their office has agreed to take responsive action on all of the
recommendations we have made. They have set different
timeframes for doing that, but they have agreed to take action.
And so, we look forward to seeing the action that they
take.
Mr. Lawson. Okay. Ms. Fong, in your testimony you mentioned
that in 2021, the audit followed up on five recommendations for
the 2012 and 2008 audit reports. Although corrective action was
taken by the Office of the Assistant Secretary of Civil Rights,
the OASCR, to address these recommendations, weaknesses still
exist. Is there any reason why so many of those recommendations
would still exist?
Ms. Fong. I will offer some general comments, and then Gil
may have some additional insights.
We have, over the course of the last 20 or 30 years, made a
significant number of recommendations. The problems remain, and
I think if we look at the course of the program over the years,
at times there is progress and then at other times, due to
change in priorities or change in focus, other priorities take
precedence, and then we come back in and review it again. We
have done reviews every few years. I think the current report
documents the current state of affairs, and I am looking
forward to working with the Assistant Secretary's office as
they make progress in addressing our newest set of
recommendations.
Gil, is there anything that you might want to add to that?
Mr. Harden. Yes, I would just build on comments that you
have made throughout the hearing that this has been a sensitive
area and one that we have worked on with the Department for 20+
years. It has gone through a rise and fall in terms of things
were implemented and there may have been some backsliding.
Because of this issue, that is why the Office of Inspector
General does periodically review this area, because we have
seen that history and we want to continue to keep it in the
forefront to make sure that they have a very good quality
program.
Mr. Lawson. Thanks for that information.
One other thing I would like to ask, do you feel that you
are adequately staffed? Because I know that Congressman Bishop
kind of mentioned something like that in the appropriations
process, in order to get a lot of these things resolved. Do you
feel like the Department [inaudible] can you speak on that?
Ms. Fong. Okay. I will just say a few things.
I appreciate Rep. Sanford Bishop's information today. It
was very helpful, and with respect to the resources that he
hopes that Congress will appropriate to the Office of the
Assistant Secretary, I think that could go a long way to
addressing some of the recommendations we have made.
Until it actually--the funds are actually appropriated and
the Office has a chance to invest in the resources it needs and
they can actually set their goals and objectives and their
measures, and we see how they do at meeting their program
intent, then I think we will be able to see how that is going.
Mr. Lawson. Okay, thank you.
Madam Chairwoman, with that, I yield back.
The Chairwoman. Thank you, Representative Lawson.
Seeing no other Republican colleagues on the platform, I
now recognize myself for 5 minutes of questioning.
Just a few things. First of all, I am very happy to hear--
thank you for joining us today. I am very happy to hear that
this position will soon be filled on a permanent basis. I am
deeply concerned by the fact that this position has not been
filled, especially as we have heard at this hearing, there are
so many challenges with addressing civil rights complaints. So,
I am happy that we are moving forward in that direction.
There have been troubling reports about the failure to
adequately investigate discrimination complaints. In fact,
several OASCR employees have alleged that there is a focus on
closing complaints to meet processing timeframes, rather than
investigating and assessing the substance of complaints. The
report also found that OASCR did not adequately support or
process half of the final agency decisions sampled by OIG.
My question, I guess I have changed my question based on
what Representative Adams asked and then subsequently Mr.
Lawson. It seems so obvious that if there is a decrease in
staffing and that there is an increase in the times to process,
Ms. Fong, you said that you didn't specifically address
staffing or look at that. I don't understand that. If you
didn't address staffing, then what did you address? I read
through [the report] and one of the recommendations was to
develop and implement a strategy to routinely evaluate and
address OASCR staffing and funding resources to ensure program
complaints are processed in a timely manner. If staffing levels
wasn't one of the things that was considered in that
recommendation, I guess my question is how did you come to that
conclusion?
Ms. Fong. I think I will defer to Gil on that, because he
has probably got a more precise formulation on it.
Mr. Harden. Yes. It is not that we didn't consider
staffing. I guess the way that I would say it is that I am not
in a position and my team is not in a position to say you need
x number of staffing. One of the things that fed into that
recommendation was a recognition on the Assistant Secretary of
Civil Rights Office's part. If they needed to look at their
staffing levels and they had made a commitment internally to
themselves to do that and then they did not act on that. And
so, when we came in and saw that they didn't process things
timely, they had very outdated guidance that they were
following and it was inconsistent, that was just another piece
that they need to internally look at to see where they needed
to be as experts in the field as to what should happen.
The Chairwoman. Thank you. Is there a plan to look into any
of the allegations involving failure to adequately investigate
discrimination complaints as opposed to just closing them out
in the essence of time?
Mr. Harden. I do not have anything specific that I am
working on at this point in time. I know that later this year
we are wanting to look at, and some of that is driven by
priorities and risk and the different things that the
Department does. I don't mean to do that as a push away answer,
but we also want to look at the processing of EEO complaints. I
know that when we have looked at settlement agreements in the
past we raised similar questions, and had recommendations
because they were not adequately supported.
The Chairwoman. Thank you.
I am also deeply concerned about the effects of
reorganization on capacity. In March of 2018, former Secretary
Perdue published a notice announcing a realignment of OASCR,
which would consolidate civil rights resources at the mission
area level through reducing staffing and functions. OIG
submitted a comment that it planned to consider looking at the
effectiveness of this realignment as part of its future audit
planning.
Based on that review, how did the 2018 realignment impact
the effectiveness and efficiency of USDA's civil rights
activities, namely the processing of complaints?
Mr. Harden. I would have to go back and look at the--go
ahead, Phyllis.
Ms. Fong. Go ahead, Gil.
Mr. Harden. No, I would have to go back and look at the
timing of when we made that comment and if we were already
looking at--if we were in the midst of the review that was
reported on that September. We would be talking about a future
review, and so, I would say that that may still be on the table
to look at.
Ms. Fong. And let me just add to Gil's comments. My
recollection at the time was that there was an interest in
having us look at the proposed reorganization and do an audit
of that, and it wasn't ready or ripe for audit work. And so,
what we were trying to communicate was that we would look at
the results of the reorganization, the impact on program
activities, and whether or not there is an effective delivery
of programs. And in effect, that is what this audit is doing.
The reorganization took effect, and then we did our review and
looked at several years of data, and we found a number of
issues, as reported in our report. Which, due to the change in
priority and the reorganization, led to OASCR's admission that
their strategic plan was no longer effective, that they were no
longer going to do oversight and compliance reviews and agency
head reviews, and a number of other things like that, which I
think answers the question [of] what happened as a result of
the reorganization.
The Chairwoman. Well, thank you for that answer. My time
has expired, but I will make sure I follow up to get some of
the answers to these questions, because it is clear that there
is a challenge with investigating civil rights complaints, and
we have the information, and, as we plan to go forward, we have
to come up with some solutions to close these loops and address
these problems. It is unacceptable that this has gone on for
this long with no clear end in sight.
I think that is all we have for Member questions. Before we
adjourn today, I invite the Ranking Member, Mr. Bacon, to share
any closing comments that you may have.
Mr. Bacon. Thank you, Madam Chairwoman. I have no further
questions. I appreciate, Inspector General Fong, your comments
today, and being with us. Thank you.
The Chairwoman. Thank you, Mr. Bacon, and thank you to Ms.
Fong and Mr. Harden for joining us today. Our Committee deeply
values OIG's important work and the insight it provides, and I
particularly want to thank you for your continued work to
oversee and improve the civil rights complaint process at USDA.
Thank you as well to our Members who joined us here today.
I am hopeful that today's hearing will lead us towards
productive solutions in this critical area. I am committed to
ensuring that those participating and applying to USDA programs
have confidence that they will be treated fairly, and, in the
unfortunate event that a civil rights violation does occur,
that they have appropriate and timely recourse. Thank you all
again for your time and attention to this matter.
Under the Rules of the Committee, the record of today's
hearing will remain open for 10 calendar days to receive
additional materials and supplementary written responses from
the witness to any questions posed by a Member.
This hearing of the Subcommittee on Nutrition, Oversight,
and Department Operations is adjourned. Thank you all for your
time.
[Whereupon, at 1:11 p.m., the Subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
Submitted Report by Hon. Jahana Hayes, a Representative in Congress
from Connecticut

USDA Oversight of Civil Rights Complaints

Audit Report 60601-0001-21

September 2021

Office of Inspector General
Important Notice
This report contains sensitive information that has been redacted
for public release due to concerns about the risk of circumvention of
the law.
USDA Oversight of Civil Rights Complaints
Audit Report 60601-0001-21
OIG evaluated OASCR's oversight of the civil rights complaints
process.
Objective
We evaluated OASCR's controls over the civil rights complaints
process to ensure that program complaints are processed in accordance
with requirements and timely and efficiently resolved. We also followed
up on prior audit recommendations from Government Accountability Office
Audit GAO-09-62 and Office of Inspector General Audit 60601-0001-23
related to the program complaint process.
Reviewed
We reviewed 28 of the 911 complaints that OASCR closed between
October 1, 2016, and June 30, 2019.
Recommends
We made 21 recommendations, including: (1) updating guidance to
improve complaint resolution timeliness, (2) [Redacted] (3) reviewing
processes to ensure sufficient documentation and support, (4) requiring
agencies and OASCR to review and assess compliance with USDA civil
rights regulations and policies, and (5) reviewing and updating the
strategic plan.
What OIG Found
The United States Department of Agriculture's (USDA) Office of the
Assistant Secretary for Civil Rights (OASCR) is responsible for making
final determinations on complaints of discrimination filed by any
persons who believe they have been subjected to prohibited
discrimination in a USDA program.
We concluded that, overall, OASCR needs to develop a stronger
internal control environment over its civil rights program complaints
processing to ensure that complaints are timely and appropriately
handled, and that OASCR achieves established goals and objectives.
First, OASCR did not timely process civil rights program complaints.
Specifically, in Fiscal Year (FY) 2019, OASCR averaged 799 days to
process program complaints compared to the 180 day standard.
Furthermore, two other agencies that OASCR coordinated with to resolve
complaints took more than 220 days and more than 600 days,
respectively, to process complaints.
[Redacted] We also determined that 9 of 28 complaint determinations
and closures were not adequately supported and processed. Additionally,
OASCR missed an opportunity to track and measure USDA's progress in
achieving the Department's civil rights goals and objectives. Finally,
these issues could have been identified and better rectified had OASCR
used its strategic plan to measure or assess its progress toward
established goals and objectives relating to program complaints.
We accepted management decision on 10 of the 21 recommendations.
Further action from the agency is needed before management decision can
be reached on the remaining recommendations.

Date: September 22, 2021
Audit Number: 60601-0001-21
To: Monica Rainge, Deputy Assistant Secretary for Civil Rights,
Office of the Assistant Secretary for Civil Rights
Attn: Winona L. Scott, Associate Assistant Secretary for Civil
Rights, Office of the Assistant Secretary for Civil Rights
Name

From: Gil H. Harden, Assistant Inspector General for Audit
Subject: USDA Oversight of Civil Rights Complaints

This report presents the results of the subject review. Your
written response to the official draft is included in its entirety at
the end of the report. We have incorporated excerpts from your
response, and the Office of Inspector General's (OIG) position, into
the relevant sections of the report. Based on your written response, we
are accepting management decision for 10 of the 21 audit
recommendations in the report. However, we are unable to reach
management decision on Recommendations 2, 3, 4, 8, 9, 10, 12, 13, 15,
16 and 20. The information needed to reach management decision is set
forth in the OIG Position section following the recommendation.
In accordance with Departmental Regulation 1720-1, please furnish a
reply within 60 days describing the corrective actions taken or
planned, and timeframes for implementing the recommendations for which
management decisions have not been reached. Please note that the
regulation requires management decision to be reached on all
recommendations within 6 months from report issuance, and final action
needs to be taken within 1 year of each management decision to prevent
being listed in the Department's annual Agency Financial Report. Please
follow your internal agency procedures in forwarding final action
correspondence to the Office of the Chief Financial Officer.
We appreciate the courtesies and cooperation extended to us by
members of your staff during our audit fieldwork and subsequent
discussions. This report contains publicly available information and
only publicly available information will be posted to our website
(http://www.usda.gov/oig) in the near future.
Table of Contents
Background and Objectives
Finding 1: OASCR Needs to Timely Process Civil Rights Program
Complaints

Recommendation 1
Recommendation 2
Recommendation 3
Recommendation 4

Finding 2: OASCR Needs to Strengthen Oversight of Civil Rights
Complaint Processing by FNS and Rural Development

Recommendation 5
Recommendation 6
Recommendation 7
Recommendation 8

Finding 3: [Redacted]

Recommendation 9
Recommendation 10
Recommendation 11
Recommendation 12
Recommendation 13

Finding 4: OASCR Needs to Strengthen Its Procedures to Ensure Complaint
Determinations and Closures Are Adequately Supported and Processed

Recommendation 14
Recommendation 15
Recommendation 16

Finding 5: OASCR Needs to Strengthen its Oversight Efforts of USDA
Agencies

Recommendation 17
Recommendation 18
Recommendation 19

Finding 6: OASCR Needs to Assess Progress Towards Established Goals and
Objectives

Recommendation 20
Recommendation 21

Scope and Methodology
Abbreviations
Exhibit A: Summary of OASCR's Performance Indicators and Strategies
Agency's Response
Background and Objectives
Background
The United States Department of Agriculture's (USDA) Office of the
Assistant Secretary for Civil Rights (OASCR) is responsible for making
final determinations on complaints of discrimination filed by any
person or group of persons who believe they have been subjected to
prohibited discrimination in a USDA program.\1\ The Secretary of
Agriculture established the position of the Assistant Secretary for
Civil Rights to comply with the Farm Security and Rural Investment Act
of 2002.\2\
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\1\ Discrimination in Federal programs is prohibited by a number of
statutes, including Title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000(d) et seq.), the Rehabilitation Act of 1973 (Pub. L. No. 93-
112), and the Equal Credit Opportunity Act of 1974 (ECOA) (15 U.S.C.
1691 et seq.). Program discrimination complaints are governed by 7 Code
of Federal Regulations (CFR), pt. 15. ECOA prohibits creditors from
discriminating against applicants with respect to any aspect of a
credit transaction[.]
\2\ Pub. L. No. 107-171, 116 Stat. 518. Prior to establishing the
position of the Assistant Secretary for Civil Rights and OASCR, USDA's
Office of Civil Rights processed complaints of discrimination under the
leadership of Departmental Administration. The first USDA Assistant
Secretary for Civil Rights was sworn in during April 2003.
---------------------------------------------------------------------------
In October 2018, OASCR realigned and reorganized to streamline the
delivery of program complaint services at the mission area level and
ensure USDA projects a unified voice on all civil rights issues
affecting program recipients, customers, and applicants. Within OASCR,
the Center for Civil Rights Enforcement supports OASCR's mission
largely through its program directorates--the Program Complaints
Division (PCD) \3\ and the Program Adjudication Division (PAD).
---------------------------------------------------------------------------
\3\ In 2009, the Intake and Investigations Divisions were combined
into one division, PCD.
---------------------------------------------------------------------------
Program Complaint Process
The program complaint process begins in PCD's Intake Division,
which receives complaints from persons alleging discrimination in
USDA's Federally conducted or assisted programs.\4\ PCD determines
which Federal civil rights laws, regulations, and policies the
complaint pertains to, and chooses a course of action as discussed
below.
---------------------------------------------------------------------------
\4\ Federally conducted programs and activities are program
services, benefits, or resources delivered directly to the public by
USDA. Federally assisted programs involve Federal financial assistance
to a recipient, who in turn provides the benefit or service to the
beneficiary.

Administrative Closure
OASCR can administratively close a complaint at any stage in
the process if it determines that procedural grounds exist
warranting administrative closure, such as: untimely filing of
a complaint, lack of jurisdiction, failure to state a claim,
failure of the complainant to pursue the complaint, settlement,
or voluntary withdrawal. If PCD's Investigations Division
proposes to close a complaint administratively, the
investigator will prepare a recommendation for closure (RFC),
which is then provided to the Adjudication Division to approve
and close the complaint.
Programmatic Referral
If the complaint states an issue pertaining to a USDA agency,
but does not include a jurisdictional basis of discrimination
covered under the civil rights statutes, the complaint is
forwarded to the respective agency for review and processing as
a programmatic referral.
Investigation
If a complaint is accepted for investigation,\5\ PCD's Intake
Division converts the case file to a complaint and issues an
acceptance letter to the complainant conveying the issues OASCR
will investigate based on the allegations. PCD's Investigation
Division then obtains an agency position statement \6\ and
conducts an investigation to gather the facts and evidence that
will be used in OASCR's determination.
---------------------------------------------------------------------------
\5\ To be accepted, the complaint must: (1) be timely, (2) pertain
to a USDA program, and (3) state an issue and basis of discrimination
under OASCR's jurisdiction with the dates of each alleged incident.
\6\ For accepted complaints in conducted programs, the agency
position statement is a written statement providing the agency's
position that binds the agency responding to the allegations made by
the complainant in the complaint.
---------------------------------------------------------------------------
The assigned investigator determines the facts and evidence
surrounding the complaint and establishes a fact-based and
evidence-supported record of the accepted allegations. After
the investigation has been completed, the investigator prepares
a report of investigation (ROI).
After PCD transmits the ROI to PAD, the assigned adjudicator
within PAD reviews the ROI, analyzes the evidence, applies the
applicable laws, and drafts a final agency decision (FAD) on
whether discrimination was present.\7\ If OASCR determines that
discrimination occurred--or if the issue is resolved through a
settlement--the Compliance Division monitors to ensure all
parties comply with the agreements and implement corrective
actions.
---------------------------------------------------------------------------
\7\ An FAD is a written statement signed by the Assistant Secretary
for Civil Rights setting forth the issues and allegations, related
facts, evidence, findings, and legal conclusions identified by OASCR in
response to a complaint.
---------------------------------------------------------------------------
Program Complaints Relating to the Food and Nutrition Service and Rural
Development-Assisted Programs
Through Memoranda of Understanding (MOU), USDA established
agreements to coordinate civil rights program complaint processing with
the Food and Nutrition Service (FNS) and the United States Department
of Housing and Urban Development (HUD).\8\ According to the MOU with
FNS, OASCR refers any program complaints relating to FNS programs to
FNS officials to evaluate and process the complaints. A similar MOU
with HUD states that USDA will refer any complaints alleging a
potential Fair Housing Act (FHA) violation in an assisted program to
HUD.\9\ Investigations and resolutions of FHA-related complaints are
coordinated with HUD, with Rural Development serving as an intermediary
between OASCR and HUD. Although program complaint processing was
coordinated with these agencies, OASCR retains responsibility,
oversight, and final authority for these complaints.
---------------------------------------------------------------------------
\8\ The MOU with FNS was established in December 2014. The MOU with
HUD was established in July 1998.
\9\ Title VIII of the Civil Rights Act of 1968, as amended by the
Fair Housing Amendments Act of 1988 (42 U.S.C. 3601-3619). Under the
MOU, when USDA receives a claim or complaint alleging a violation of
FHA, USDA forwards a copy to HUD for determination of jurisdiction and
further processing over the FHA-related allegation. HUD is responsible
for enforcing FHA.
---------------------------------------------------------------------------
Program Complaints Management System
OASCR processes all program complaints in its Program Complaints
Management System (PCMS). PCMS is a web-based database that allows
OASCR to track, process, and manage complaints. Users can process,
store, and view complaints, including case events, contact information,
electronic documents, and any other associated correspondence. PCMS
allows each user to be given a role with specific permissions regarding
data entry, updating, deleting, and queries. OASCR also uses PCMS to
develop internal and external reports, including OASCR's annual farm
bill report to Congress, regarding civil rights complaints,
resolutions, and actions.
Prior Audits
In 2012, we reported that OASCR needed to strengthen its procedures
for settlement agreements so that it could support its decisions,
process cases timely, and report them accurately. Specifically, we
determined that:

OASCR needed to develop operating procedures that would
allow it to complete cases in a timely manner;

data contained in PCMS did not accurately depict the
Department's activities regarding complaints that resulted in
settlement agreements; and

OASCR's official case files did not always contain the
documentation needed to support the decisions made by its
officials when reaching settlement agreements in civil rights
cases.\10\
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\10\ Audit Report 60601-0001-23, Report Review of the Office of the
Assistant Secretary for Civil Rights' Oversight of Agreements Reached
in Program Complaints, Aug. 2012.

To address these concerns, we issued a total of five
recommendations. We determined that all five recommendations made in
this report were related to our current audit objective. Although OASCR
agreed to take corrective action to address all five prior Office of
Inspector General (OIG) recommendations in August 2012, we note in the
findings of this report that control weaknesses continue to exist.
In 2008, the Government Accountability Office (GAO) reported that
OASCR needed to address several fundamental concerns about resolving
discrimination complaints. Specifically:

OASCR lacked specified time frames and management controls
for resolving complaints;

OASCR lacked credible data on the numbers, status, and
management of complaints;

GAO questioned the quality of complaint investigations;

GAO questioned the integrity of final decision preparation;

Much of the data that USDA reported to Congress and the
public on the participation of minority farmers in USDA
programs was unreliable, according to USDA; and

OASCR's strategic planning did not address key steps needed
to ensure USDA provided fair and equitable services to all
customers and upheld the civil rights of its employees.\11\
---------------------------------------------------------------------------
\11\ GAO, Recommendations and Options to Address Management
Deficiencies in the Office of the Assistant Secretary for Civil Rights,
GAO-09-62 (Oct. 2008).

We determined that three of six recommendations made in this report
were related to our current audit objective. Although OASCR agreed to
take corrective action to address GAO's concerns in October 2008, we
note in the findings of this report that control weaknesses continue to
exist.
Objectives
Our objective was to evaluate OASCR's oversight of the civil rights
complaints process. Specifically, we evaluated OASCR's controls to
ensure that program complaints are processed in accordance with
applicable regulations, policies, and procedures and resolved in a
timely and efficient manner. Additionally, we followed up on prior
audit recommendations related to the program complaint process.
Due to the age of the prior audit recommendations provided by OIG
and GAO, we did not report on the follow up of prior audit
recommendations separately in a specific finding or section of this
report. Rather, similar issues identified within prior audit reporting
and addressed by prior audit recommendations were incorporated into our
current findings and recommendations where applicable. (See Findings 1,
2, 4, and 6.)
Finding 1: OASCR Needs to Timely Process Civil Rights Program
Complaints
OASCR did not timely process civil rights program complaints.\12\
In FY 2019, OASCR processed program complaints within 799 days on
average--significantly in excess of its 180-day goal stated within
Departmental guidance.\13\ Furthermore, OASCR's processing time of 799
days greatly exceeded even its more liberal 540-day goal stated in its
internal pilot policy.\14\ This occurred because the Departmental
guidance is inconsistent and outdated--and does not accurately reflect
best practices or OASCR staffing limitations. OASCR officials noted
that limited staffing has caused delays in processing program
complaints. When faced with lengthy timeframes to process their
complaints, individuals who have a legitimate claim of discrimination
and would otherwise be eligible for USDA programs may not continue to
pursue their complaint or not file a complaint at all. This, in turn,
diminishes public confidence that the Department can appropriately and
expeditiously resolve complaints.
---------------------------------------------------------------------------
\12\ Similarly, in 2012, OIG recommended that OASCR develop
operating procedures that would allow it to complete cases in a timely
manner. See Audit Report 60601-0001-23, Report Review of the Office of
the Assistant Secretary for Civil Rights' Oversight of Agreements
Reached in Program Complaints, Aug. 2012.
\13\ USDA, Procedures for Processing Program Complaints and
Conducting Civil Rights Compliance Reviews in USDA Conducted Programs
and Activities, Departmental Manual (DM) 4330-001 (Oct. 18, 2000); and
USDA Departmental Regulation 4330-002, Nondiscrimination in Programs
and Activities Receiving Federal Financial Assistance from USDA (Mar.
3, 1999).
\14\ USDA OASCR, 2013 Office of the Assistant Secretary for Civil
Rights Policy Memorandum (Sept. 18, 2013).
---------------------------------------------------------------------------
Federal regulation states that agencies shall establish and publish
guidelines and procedures for the prompt processing and disposition of
complaints.\15\ Accordingly, two Departmental directives--issued in
1999 and 2000--established 180-day timeframes for processing program
complaints.\16\ In September 2013, OASCR expanded this timeframe to 540
days on a pilot basis through an internal policy memorandum that was
never made public.\17\ OASCR still operates under the 2013 pilot
timeframes and has not updated the two Departmental directives that
officially outline the timeframes for processing program complaints.
---------------------------------------------------------------------------
\15\ Department of Justice 28 CFR 42.408.
\16\ USDA, Procedures for Processing Program Complaints and
Conducting Civil Rights Compliance Reviews in USDA Conducted Programs
and Activities, DM 4330-001 (Oct. 18, 2000); and USDA Departmental
Regulation 4330-002, Nondiscrimination in Programs and Activities
Receiving Federal Financial Assistance from USDA (Mar. 3, 1999).
\17\ USDA OASCR, 2013 Office of the Assistant Secretary for Civil
Rights Policy Memorandum (Sept. 18, 2013).
---------------------------------------------------------------------------
We concluded that OASCR does not timely resolve program complaints
in compliance with Federal and Departmental guidance. From October 1,
2016, through June 30, 2019, USDA processed 911 program complaints. Of
the 911 complaints, we non-statistically sampled 28 and determined that
24 program complaints (more than 85 percent) took longer than 180 days
to process--the timeframe established in the Departmental directives.
Furthermore, 19 of the 28 program complaints (more than 67 percent)
took longer than the 540 days outlined in OASCR's 2013 internal policy
memorandum. The 28 program complaints in our sample had an average
processing time of over 630 days, and in FY 2019, OASCR processed
program complaints within 799 days on average.
Of the 24 program complaints that took longer than 180 days to
process, ten had considerable periods when progress halted between
steps in the process. This occurred because OASCR officials had not
assigned the complaints to an investigator or adjudicator, or the
individual assigned was not yet ready to work on the complaint due to a
backlog of complaints. This led to further delays. For example, of the
830 days it took OASCR to process one complaint, more than 330 days
elapsed between PCD receiving the agency position statement and the
next step in the process--completing the investigative plan. Once PCD
completed the investigation and forwarded it to PAD, the complaint sat
idle for more than 180 days before an adjudicator was assigned to the
complaint. We identified multiple, similar instances with complaints
that ranged from 645 to 1,024 days to process. Furthermore, as Figure 1
below demonstrates, OASCR's average processing time for program
complaints increased between FY 2017 and FY 2019.\18\
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\18\ According to data from PCMS.
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Figure 1. Average OASCR Program Complaint Processing Time, FYs 2017-
2019

This occurred because guidance concerning timeframes for resolving
program complaints is inconsistent and does not reflect best practices
for prompt complaint resolution. First, Departmental and agency
guidance provided different timeframes for processing program
complaints. For example, the Departmental manual states that a FAD will
be issued within 180 days of OASCR's receipt of the program
complaint.\19\ However, the Departmental regulation states that a
program complaint investigation, which occurs prior to the issuance of
an FAD, will be finalized within 180 days following complaint
acceptance.\20\ Furthermore, the 2013 internal policy memorandum states
that a program complaint should be processed within 540 days from
OASCR's receipt of the program complaint. To illustrate the
inconsistencies even more, a 2014 MOU between OASCR and FNS requires
that FNS process all accepted program complaints within 180 days. (See
Finding 2.) In our view, inconsistent and conflicting timeframes lead
to unclear expectations for personnel processing program complaints and
for complainants filing them.
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\19\ USDA, Procedures for Processing Program Complaints and
Conducting Civil Rights Compliance Reviews in USDA Conducted Programs
and Activities, DM 4330-001 (Oct. 18, 2000).
\20\ USDA Departmental Regulation (DR) 4330-002, Nondiscrimination
in Programs and Activities Receiving Federal Financial Assistance from
USDA (Mar. 3, 1999).
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OASCR officials explained that they were operating exclusively
under the 540-day timeframe established in the 2013 policy memorandum--
not the 180-day timeframe set forth in the Departmental manual.
However, we question whether the 540-day timeframe serves as a suitable
best practice for the Department. OASCR officials could not provide
support for how they determined 540 days to be an adequate timeframe.
Federal regulations require agencies to establish and make public in
their guidelines procedures for the ``prompt [emphasis added]
processing and disposition of civil rights program complaints.'' \21\
During the course of our audit, OASCR officials agreed that 540 days is
a lengthy time to process program complaints. OASCR should consider
assessing its program complaint process, benchmarking with similar
departments, documenting its assessment, and sharing its decision with
the public of what may be a reasonable complaint processing time for
USDA.
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\21\ Department of Justice 28 CFR 42.408.
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We also consider the 2013 pilot guidance temporary and not a long-
term replacement for permanent Departmental guidance because OASCR did
not update and make available to the public its directive outlining
timeframes for processing program complaints. The Departmental
directives establishing civil rights complaint processing timeframes
are in effect until canceled.\22\ Because there was no evidence that
OASCR officials canceled the directives, OASCR would be expected to
follow them. Additionally, because the directives are publicly
available on USDA's website, the public may reasonably expect that USDA
officials are following the 180-day timeframes when processing program
complaints. OASCR's decision to operate differently than established
timeframes outlined in guidance would further diminish public
confidence that USDA is carrying out its responsibility to process
complaints in a timely manner. Processing times of such a lengthy
nature could discourage complainants from following up on their
complaint, or simply not file a complaint at all. Any delay in
resolving complaints could potentially lead to the exclusion of
otherwise eligible individuals from rightfully benefitting from USDA
programs.
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\22\ USDA Departmental Regulation 0100-001, Department Directive
System (Sept. 2011). Although this directive was updated in January
2018, the September 2011 Departmental Regulation was the policy in
effect at the time OASCR issued its 2013 policy memorandum expanding
its timeframes.
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Because these directives are 20 years old, they should be assessed
to determine if revisions and updates are needed. OASCR officials
acknowledged that the outdated directives are still enforceable, and
added that they are in the process of updating them. This is a
necessary step, and we encourage OASCR officials to strategically
assess how best to meet requirements for prompt complaint resolution.
OASCR officials previously committed to performing such an assessment,
but did not conduct it. Specifically, the 2013 policy memorandum states
that an analysis would be conducted to determine the success rate of
the new timeframes and whether to keep them or adjust them based on the
results. However, OASCR officials stated they were unaware of any
analysis or report on the results of the pilot guidance. Such an
assessment becomes even more crucial considering OASCR's current
difficulties with staffing levels. OASCR officials stated that
insufficient staffing was the primary cause of the prolonged complaint
processing. Specifically, delays in assigning program complaints to
personnel were a direct result of low staffing levels combined with
backlogged inventory.
We similarly concluded that OASCR needs to take steps to assess its
staffing levels in order to appropriately and timely resolve program
complaints. OASCR's FY 2016-2020 Strategic Plan includes a goal to
``strengthen resource management'' by annually establishing core
requirements for staffing and funding of all organizational functions
and annually obtaining adequate resources to address program complaints
immediately upon receipt. However, OASCR had not adequately addressed
this goal within its strategic plan. (See Finding 6.) When we asked
OASCR officials if they had completed an assessment that looked at
staffing levels, they provided a June 2020 approved staffing list of
full-time employees that would be added to each division. According to
this document, OASCR would add one full-time employee to PCD and one to
PAD. Based on previous staff reductions and the current complaint
processing time, this minimal increase in staffing levels does not
appear to address the actual needs of these divisions.\23\
Additionally, because the document did not offer any justification as
to why only two employees would be added, we do not consider this list
an adequate assessment.
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\23\ PAD had six adjudicators in FY 2018 and had only four
adjudicators in FY 2020.
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We acknowledge the challenges of processing program complaints in a
timely manner with limited staffing resources. As such, we recommend
that OASCR implement a strategy to routinely evaluate and address its
staffing and funding resources to improve the timeliness of processing
complaints. This evaluation should not be limited to staff and funding,
but can include alternative ways to improve timeliness, such as
updating the information technology (IT) system. Given its current
staffing levels, we also recommend that OASCR strategically assess and
determine its timeframe to better fit best practices and staffing
levels. Specifically, to ensure program complaints are processed in a
prompt and timely manner, OASCR needs to evaluate, develop, and
implement complaint processing timeframes and establish a success rate.
In our view, the new timeframe should be comparable to guidance and
goals of similar Federal agencies responsible for processing civil
rights program complaints. These steps would set a standard by which
OASCR could operate its program complaint processing in a more
efficient manner. However, until new timeframes have been developed and
implemented, OASCR should adhere to the 180-day timeframe established
within the Departmental guidance.
Recommendation 1
Evaluate the timeframe to process program complaints and, based on
this analysis, develop and implement timeframes and a success rate to
ensure program complaints are processed in a prompt and timely manner.
Agency Response
In its June 11, 2021, response, OASCR stated:

In FY 20, OASCR designed and implemented a pilot
program to expand effectiveness of policies that ensure
compliance with, and enforcement of, USDA's prohibition
against discrimination in its conducted programs or
activities of recipients of Federal financial
assistance from USDA. Under the pilot, the Alternative
Dispute Resolution (ADR) process moved from post
acceptance to pre-acceptance of a complaint.
Additionally, agencies have 30 days to attempt
resolution by counseling the complaint. OASCR will
finalize and fully implement this process at the
beginning of FY 22.
Additionally, OASCR will reevaluate the timeframes to
process program complaints by September 30, 2021. As
suggested in the audit findings, OASCR will evaluate
the timeframes based on historical average processing
times and current staffing levels. OASCR will also
query other Federal agencies regarding complaint
processing times, best practices, and quantitative
metrics for measuring success.

OASCR provided a completion date of September 30, 2021, for
this action.
OIG Position
We accept management decision for this recommendation.
Recommendation 2
Based on the analysis performed in Recommendation 1, update
Departmental guidance outlining timeframes for processing program
complaints. Once updated, publish the Departmental guidance on OASCR's
public website.
Agency Response
In its June 11, 2021, response, OASCR stated:

In June of FY 21, OASCR will conduct a 6-month review
and update of Departmental Manual 4330-001 to ensure
consistent and adequate language is provided within all
Departmental Directives. As OASCR informed OIG during
the Exit Conference, Departmental Regulation 4330-002
and 4330-003 have been updated and are going through
Departmental clearance, which is outside of the purview
of OASCR. OASCR is anticipating clearance of the
updated guidance by the end of this fiscal year.
The latest known iterations of the updates of DR-
4330-002 and DR-4330-003 (circulated on February 4,
2021) do not include timeframes for complaint
processing. The prior language in DR-4330-002 providing
a 180-day timeframe for a civil rights investigation to
be conducted was removed from the updated regulation.
OIG Position
We do not accept management decision for this recommendation.
We agree with OASCR's proposed corrective action to conduct a
6-month review and update of the Departmental Manual 4330-001
to ensure consistent and adequate language is provided within
all Departmental Directives. However in its response, OASCR did
not state whether the Departmental guidance will: (1) include
new timeframes for processing program complaints, based on the
analysis performed in Recommendation 1, and (2) be published on
OASCR's website once the guidance is updated. To achieve
management decision, OASCR needs to update its Departmental
guidance with new timeframes to process program complaints,
publish the updated Departmental guidance on OASCR's public
website, and provide an estimated completion date for these
actions.
Recommendation 3
Develop and implement a strategy to routinely evaluate and address
OASCR's staffing and funding resources to ensure that program
complaints are processed in a timely manner.
Agency Response
In its June 11, 2021, response, OASCR stated:

The OASCR Program Directorate routinely evaluates
staffing needs to ensure timely processing of program
complaints. Each budget formulation cycle, OASCR
management provides proposed justifications for
increases in staffing and funding based upon a need for
improved efficiency, change in demand, policy direction
changes, improved customer service and reduced risks.
OASCR has a limited discretional budget from which to
add additional resources. OASCR is optimistic Congress
will favorably approve a request to increase the
office's appropriated funding for FY2022 by September
30, 2021.
OIG Position
We do not accept management decision for this recommendation.
As noted in our report, this evaluation should not be limited
to proposing additional staffing and funding, but should also
include identifying alternative strategies to improve
timeliness, such as evaluating if efficiencies can be achieved
through updates to their IT system. To achieve management
decision, OASCR needs to develop and implement a strategy to
routinely evaluate and address OASCR's staffing and funding
limitations to ensure that program complaints are processed in
a timely manner. In addition, OASCR needs to provide an
estimated completion date for this action.
Recommendation 4
Adhere to the 180-day timeframe established within the Departmental
guidance until new timeframes have been developed and implemented.
Agency Response
In its June 11, 2021, response, OASCR stated:

Without a significant increase in staffing, OASCR
will not maintain a 180-day timeframe for all phases of
program complaint processing to include Intake,
Investigation, and Adjudication. OASCR acknowledges the
inconsistent language regarding timeframes between the
Departmental Manual (stating that a Final Agency
Decision will be issued within 180 days of OASCR's
receipt of the program complaint) and the Departmental
Regulation (stating that a program complaint
investigation, which occurs prior to the issuance of a
Final Agency Decision, will be finalized within 180
days following complaint acceptance).
OIG Position
We do not accept management decision for this recommendation.
In Recommendation 1, OASCR committed to evaluating the 180-day
timeframe and establish a timeframe to process complaints that
are more suitable to the resources they have available by
September 30, 2021. However, until those actions are complete,
OASCR leadership should instruct its personnel to work toward
adhering to Departmental guidance, to the extent possible or at
a minimum, to process program complaints more timely. To
achieve management decision, OASCR needs to instruct its
personnel to adhere to Departmental guidance, to the extent
possible, to process program complaints more timely until new
timeframes have been developed and implemented. In addition,
OASCR needs to provide an estimated completion date for this
action.
Finding 2: OASCR Needs to Strengthen Oversight of Civil Rights
Complaint Processing by FNS and Rural Development
Based on established agreements, FNS and HUD process certain civil
rights program complaints.\24\ However, similar to Finding 1, these
agencies did not timely resolve program complaints.\25\ Specifically,
between October 1, 2016, and June 30, 2019, FNS took an average of more
than 220 days and HUD took an average of more than 600 days to process
complaints referred to them by OASCR--including two cases that were not
resolved until after 1,700 days. This occurred because OASCR did not
implement or update effective processes to monitor and track the
referred complaints. Without adequate oversight, OASCR cannot ensure
that agencies promptly or appropriately resolve complaints in
compliance with relevant directives and guidance. When complaints are
not resolved timely, complainants potentially miss opportunities to
participate in or receive program benefits, which in turn can diminish
the public's confidence in USDA programs.
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\24\ HUD receives relevant USDA civil rights complaints through
Rural Development.
\25\ Similarly, in 2012, OIG identified the issue of OASCR untimely
processing program complaints and recommended that OASCR develop
operating procedures that would allow it to complete cases in a timely
manner. See Audit Report 60601-0001-23, Report Review of the Office of
the Assistant Secretary for Civil Rights' Oversight of Agreements
Reached in Program Complaints, Aug. 2012.
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USDA entered into agreements to coordinate program complaint
processing activities with FNS and HUD for select areas of purview.\26\
According to the agreement with FNS, OASCR refers any program
complaints relating to FNS programs to FNS officials to evaluate and
process the complaints within 180 days.\27\ Similarly, USDA's agreement
with HUD states that USDA will refer any complaints relating to
potential FHA violations to HUD,\28\ with Rural Development serving as
an intermediary between OASCR and HUD. However, USDA's agreement with
HUD did not include any complaint processing timeframes. This
coordination allows subject matter experts to process complaints
pertaining to their respective areas. From the beginning of FY 2017 to
June 30, 2019, USDA closed a total of 911 program complaints. FNS
processed, investigated, and closed 332 of the 911 program complaints.
Additionally, OASCR referred 208 of the 911 program complaints to HUD
for processing during this time. Therefore, more than 59 percent of all
civil rights program complaints closed during this time were processed
under the agreements with FNS and HUD.
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\26\ USDA entered into its agreement with FNS in December 2014 and
with HUD in July 1998.
\27\ This 2014 MOU between OASCR and FNS expired in December 2019.
However, both parties agreed to extend the terms and conditions of the
agreement until June 2021.
\28\ Title VIII of the Civil Rights Act of 1968, as amended by the
Fair Housing Amendments Act of 1988 (42 U.S.C. 3601-3619). Under the
Act, HUD is required to complete its investigation of any alleged
discriminatory housing violations within 100 days of the filing of the
complaint.
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Although OASCR coordinates complaint processing with FNS and HUD,
OASCR retains responsibility, oversight, and final authority for these
complaints. Therefore, as part of these agreements, OASCR is required
to conduct audits, reviews, and evaluations of FNS. The agreements also
state that OASCR must have annual meetings with HUD, maintain a
cumulative list of FHA-related allegations, and monitor the status of
these complaints. These oversight activities help ensure that all
complaints are handled and resolved in accordance with statutory,
regulatory, and policy requirements.
During our audit period, we determined that FNS and HUD did not
timely resolve complaints.\29\ OASCR's agreement states that FNS must
process, investigate, and resolve referred program complaints within
180 days. However, according to PCMS, FNS processed and resolved its
complaints, on average, within 222 days--one complaint took 1,777 days
to resolve.\30\ Unlike its agreement with FNS, USDA's agreement with
HUD does not include any timeframes for resolving program complaints.
However, we still identified complaints that were not resolved
timely.\31\ According to PCMS, these complaints were resolved on
average within 604 days--and one complaint was not resolved for 1,722
days.
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\29\ Our audit period was between October 1, 2016, and June 30,
2019.
\30\ FNS closed 332 complaints between October 1, 2016, and June
30, 2019.
\31\ OIG concluded that complaints referred to HUD were not
resolved timely based on timeframes OASCR established for similar
complaints (such as 180 days and 540 days. See Finding 1).
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In our view, FNS' processing times could improve with OASCR
oversight. OASCR is responsible for ensuring that all program
complaints are resolved in accordance with requirements--including
promptness.\32\ However, OASCR stopped conducting audits, reviews, and
evaluations of FNS in October 2017--the same year that OASCR also
discontinued assessments of agency heads and compliance reviews for all
USDA agencies. (See Finding 6.) According to an OASCR official, rather
than implement a formal oversight mechanism, OASCR informally met with
the FNS civil rights director in conjunction with OASCR's monthly
meetings that are attended by all other Departmental civil rights
directors. However, the OASCR official was not able to provide evidence
of discussions specifically related to oversight of FNS.
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\32\ 28 CFR 42.408.
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USDA's ability to accurately and timely resolve complaints
involving housing-related programs and activities is dependent on Rural
Development's processes. OASCR does not communicate directly with HUD.
Rather, Rural Development's Civil Rights Office acts as an intermediary
between OASCR and HUD. OASCR officials acknowledged that processing
times for these complaints were untimely due to its lack of oversight
of Rural Development. To improve processing and complaint resolution,
OASCR officials told us they implemented quarterly meetings in 2017
with Rural Development and obtained quarterly status reports of the
civil rights complaints USDA had referred to HUD. While we agree that
this line of communication and these reports are important oversight
tools, it is still insufficient on its own; as Figure 2 indicates, we
did not see considerable improvement in processing times for complaints
referred to HUD through Rural Development after OASCR officials
implemented the quarterly status updates.\33\
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\33\ According to data from PCMS.
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Figure 2. Average Processing Time for Complaints Referred to HUD
Through Rural Development, FYs 2017-2019

We understand that some complaints are more complex and may take
longer to resolve--particularly with an inter-departmental arrangement.
Based on OASCR's results of the analysis recommended in Finding 1,
OASCR should update the complaint processing timeframes in the
agreements with FNS and HUD to accommodate challenges in timely
resolving complaints. Additionally, the agreement with HUD should
specify OASCR's responsibilities to oversee Rural Development's role in
processing complaints. In the event of any revised timeframe, OASCR
should resume its oversight role as established in the agreement by
reviewing FNS' and HUD's complaint processing through audits, reviews,
or evaluations. OASCR's oversight of complaint resolution is critical
to ensuring that complaints are resolved in accordance with
Departmental and Federal requirements. Additionally, with regular
oversight, OASCR should be able to identify developing issues better--
such as untimely resolution--and work with FNS, HUD, and Rural
Development to take corrective action.
FNS and HUD processed more than 59 percent of all USDA civil rights
complaints (540 of 911) during the period of our audit. In light of
this high volume, there is a strong need for OASCR to oversee FNS',
HUD's, and Rural Development's civil rights processing activities in a
more formal manner. Ultimately, OASCR is responsible for ensuring
equitable and fair treatment in USDA programs. When complaints are not
resolved timely, complainants potentially miss opportunities to
participate in or receive program benefits, which in turn can diminish
the public's confidence in USDA programs and the Department's
commitment to resolve complaints in a timely manner. By establishing
timeframes in the agreements and implementing effective controls over
FNS', Rural Development's, and HUD's complaint processing
responsibilities, OASCR can help ensure complaints are handled
appropriately and timely.
Recommendation 5
Revise and update the Memorandum of Understanding with FNS with
timeframes for processing complaints based on OASCR's analysis (see
Recommendation 1) to ensure program complaints are processed in a
timely manner.
Agency Response
As part of its June 11, 2021, response, OASCR provided a copy
of the revised MOU, dated June 2, 2021. However, since the MOU
is voluminous, we will not be including it in the agency
response section of this report.
OASCR provided a completion date of June 2, 2021, for this
action.
OIG Position
We accept management decision for this recommendation.
Recommendation 6
Revise and update the Memorandum of Understanding with HUD with
timeframes for processing complaints based on OASCR's analysis (see
Recommendation 1) to ensure program complaints are processed in a
timely manner.
Agency Response
In its June 11, 2021, response, OASCR stated:

The current MOU with HUD was executed on July 11,
1998. USDA and OASCR have undergone significant
organizational changes since that time, which
necessitates revisiting the HUD MOU. OASCR will
implement a process to exact timely completed housing
complaints referred to HUD and update the MOU
accordingly.

OASCR provided an estimated completion date of September 30,
2022, for this action.
OIG Position
We accept management decision for this recommendation.
Recommendation 7
Revise and update the Memorandum of Understanding with FNS to
implement effective controls over FNS, such as conducting audits or
compliance reviews, on a recurring basis to evaluate FNS' complaint
process and improve the timeliness of complaints referred to FNS.
Agency Response
As part of its June 11, 2021, response, OASCR provided a copy
of the revised MOU, dated June 2, 2021. However, since the MOU
is voluminous, we will not be including it in the agency
response section of this report.
OASCR provided a completion date of June 2, 2021, for this
action.
OIG Position
We accept management decision for this recommendation.
Recommendation 8
Revise and update the Memorandum of Understanding with HUD to
implement effective controls over Rural Development, such as conducting
audits or compliance reviews of Rural Development, on a recurring basis
to evaluate Rural Development's complaint process and improve the
timeliness of complaints referred to Rural Development.
Agency Response
In its June 11, 2021, response, OASCR stated:

During the timeframe reviewed by OIG, OASCR's Program
Complaints Division (PCD) monitored HUD referred
complaints with limited accountability in
communications with Rural Development (RD). In FY 2019,
PCD shifted priorities and established a quarterly
review with RD of all complaints maintained with HUD.
PCD provides an excel report of HUD referred complaints
from PCMS to the RD Civil Rights Director who in turn
updates the status of HUD complaints.
OASCR's beginning FY 2020 HUD referral inventory
(PCMS Fact-Finding) was 94 complaints (Average Age 388
days). Over the last year this inventory has been
reduced by \1/3\ (60). The average age of these
complaints is 297 days (<1yr) and continues to decrease
each month. OASCR will continue to monitor and
prioritize communication with RD for accountability
purposes. While PCD has not been tasked with monitoring
the status of HUD complaints, it will ensure these
matters are handled timely and in accordance with the
MOU requirements. In addition, OASCR will collaborate
with the Rural Development Civil Rights Director to
amend the existing MOU to be compliant with processing
and data entry requirements for housing complaints.
OIG Position
We agree with the actions taken by PCD to monitor and
prioritize communication with Rural Development but are unable
to accept management decision at this time. As noted in our
report, this line of communication and these reports are
important oversight tools, but they are still insufficient on
their own. The agreement with HUD should specify OASCR's
oversight responsibilities of Rural Development's role to
process complaints, including actions OASCR intends to
implement to evaluate Rural Development's complaint process and
improve the timeliness of complaints referred to Rural
Development. To achieve management decision, OASCR needs to
amend the existing MOU with HUD and document its oversight
controls of Rural Development's complaint process within the
MOU. These controls can include actions to audit Rural
Development to ensure complaints are processed timely and
accurately. In addition, OASCR needs to provide an estimated
completion date for this action.
Finding 3: [Redacted]
[Redacted].*
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* Editor's note: the redactions encompass pages 17-23, as well as
footnotes 34-49.
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Finding 4: OASCR Needs to Strengthen Its Procedures to Ensure Complaint
Determinations and Closures Are Adequately Supported and
Processed
OASCR did not ensure that complaint determinations and closures
were adequately supported and processed for 9 of the 28 complaints of
discrimination we reviewed in our sample.50-51 This
occurred because, although OASCR performs second-level reviews at
several stages in the complaints process, Departmental guidance did not
include adequate procedures to document the results of these reviews.
Therefore, OASCR officials cannot demonstrate that they have provided
effective oversight to ensure that complaint determinations and
closures are appropriate, which can erode public trust in USDA's
complaint resolution process.
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\50\ As part of our sample, we reviewed 48 total case files--28 of
which OASCR closed. FNS processed 19 case files, and OASCR determined 1
case file was a programmatic referral.
\51\ In 2012, OIG found a similar issue. Specifically, OASCR's
official case files did not always contain the documentation needed to
support the decisions made by its officials when reaching settlement
agreements in civil rights cases. See Audit Report 60601-0001-23,
Report Review of the Office of the Assistant Secretary for Civil
Rights' Oversight of Agreements Reached in Program Complaints, Aug.
2012.
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OASCR is responsible for investigating, making determinations for
all discrimination complaints, and notifying the complainant of their
final determination.\52\ OASCR's PCD receives complaints from persons
alleging discrimination in USDA programs, and, based on Federal civil
rights laws and regulations, PCD will determine whether to:
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\52\ 7 CFR 2.25(a) and 7 CFR 15d(5).

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administratively close the complaint,

refer the matter to the respective agency for review and
processing as a programmatic referral, or

investigate the issues raised in the allegation of
discrimination.

When a complaint is accepted, an investigation will result in
either an ROI or RFC.\53\ For matters that are investigated,
investigators gather facts and evidence--which are compiled into the
case file--and summarize the results of the investigation in an ROI.
Once the Investigations Division Chief reviews and approves the ROI for
completeness, the ROI is forwarded to the Adjudication personnel to
develop its FAD as to whether discrimination occurred based on the
merits of the allegations. (See the Background section of this report
for a more detailed explanation of OASCR's discrimination complaint
processing.) For each allegation, Adjudication personnel must weigh the
information contained in the ROI and develop a FAD of whether
discrimination occurred based solely on the record of evidence and
facts presented in the ROI. Therefore, the ROI must support the FAD's
analysis and conclusions.\54\
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\53\ Under certain circumstances, it may be appropriate to close a
case before completing an investigation, such as when a complainant
voluntary withdraws or fails to pursue the complaint.
\54\ USDA, Procedures for Processing Program Complaints and
Conducting Civil Rights Compliance Reviews in USDA Conducted Programs
and Activities, DM 4330-001 (Oct. 18, 2000).
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However, our analysis disclosed that actions pertaining to 9 of the
28 complaints of discrimination in our sample were not adequately
supported or processed.\55\ For these nine complaints, we identified
issues with five FADs and four administrative closures.
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\55\ Of the 28 complaints of discrimination in our sample, ten
resulted in a FAD and 18 were administrative closures.
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Final Agency Decisions
We concluded that OASCR did not adequately support or process
five of the ten FADs in our sample in accordance with
Departmental guidance. For example, for two of the five FADs,
we determined the analysis OASCR personnel performed to support
its determinations was incorrect, specifically documentation
did not support the conclusion noted in the FAD. In each of the
two instances we identified, OASCR performed multiple second-
level reviews of the FAD. However, the reviews did not identify
the erroneous analysis performed. When we discussed these
errors with OASCR officials, they acknowledged the errors in
the analysis. However, OASCR concluded that there was
sufficient evidence to support the overall determinations, when
considered in totality. We acknowledge that OASCR based its
determinations on the totality of evidence and make no
assessment to the correctness of OASCR's determinations.
However, OASCR must also ensure that the analyses that justify
determinations are accurately presented and supported by the
ROI, as required.
Second, OASCR inadequately processed three of the five FADs.
For example, in some instances, we discovered that OASCR
allowed the introduction of new issues at the adjudication
stage that were not cleared as part of OASCR's investigation.
We acknowledge that internal procedures allow the Adjudication
staff to return a case file for supplemental investigative work
on a case-by-case basis. However, to ensure the integrity of
its determinations are not questioned, it is important that
OASCR adequately process its complaints and collect sufficient
evidence to support agency determinations. As such, when a new
issue is introduced, OSCAR should return the complaint to the
Investigations Division to investigate the complaint and obtain
sufficient facts and evidence. By allowing Investigations staff
the opportunity to ensure sufficient evidence has been
collected to support both the complainant and the agency, OASCR
can ensure its processes maintain the appearance and actuality
of neutrality, independence, and objectivity.
Administrative Closures
We also determined that 4 of 18 administrative closures were
not adequately supported or processed. Specifically, we noted
that key documentation included in the case file was incorrect
or missing. These discrepancies were missed, even though they
should have been identified during the second-level review of
the case files. For example, while discussing one case file
with officials, OASCR acknowledged that personnel used the
wrong letter template when notifying the complainant and that
the error should have been identified during the second-level
review of the RFC. However, in this second-level review, PAD is
only required to review the recommendation for closure to
evaluate if PAD agreed with the decision to close the
complaint. OASCR officials agreed that the statements used to
support its determinations needed to be adequately supported by
the evidence in the case file so that their decisions are not
challenged or questioned.

These issues occurred due to the lack of consistency and depth of
the second-level reviews being performed. OASCR has procedures to
conduct second-level reviews at each stage of the complaint process to
ensure complaints are adequately supported and processed.\56\ OASCR
instituted these reviews based on recommendations from previous OIG
reports.\57\ However, it was unclear: (1) whether OASCR consistently
implemented these reviews, (2) how OASCR documented the reviews, or (3)
how effective the reviews have been. To address these shortcomings,
OASCR needs to evaluate its current review process and procedures
performed within the case files to: (1) identify and address why
reviews are not discovering the discrepancies noted within this
finding, and (2) ensure OASCR properly processes case files.
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\56\ Intake staff review the complaint determinations,
Investigations staff review Investigation Plans, ROIs and
recommendations for closure, Adjudication staff and OASCR leadership
review determinations and findings, and at times, the Office of the
General Counsel (OGC) reviews OASCR's findings and FADs at OASCR's
request.
\57\ Audit Report 60601-0001-23, Report Review of the Office of the
Assistant Secretary for Civil Rights' Oversight of Agreements Reached
in Program Complaints, Aug. 2012.
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A prior GAO audit recommended that OASCR obtain an expert,
independent, and objective legal examination of the basis, quality, and
adequacy of a sample of USDA's prior investigations and decisions on
civil rights complaints, along with suggestions for improvement.\58\ In
response, USDA created a task force in 2009 that reviewed a large
number of previous case files; this task force identified that further
processing was warranted for about 3,800 complaints.59-60
While the task force's large-scale quality control review evaluated
cases at that time, OASCR should incorporate ongoing, periodic quality
control reviews of a sample of case files.
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\58\ GAO, U.S. Department of Agriculture: Recommendations and
Options to Address Management Deficiencies in the Office of the
Assistant Secretary for Civil Rights, GAO-09-62 (Oct. 2008).
\59\ GAO, U.S. Department of Agriculture: Progress Toward
Implementing GAP's Civil Rights Recommendations, GAO-12-976R (Aug. 29,
2012).
\60\ The 2009 task force reviewed more than 17,000 program
complaints filed with OASCR from FYs 2000-2008.
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We recommend that OASCR evaluate the procedures for documenting
reviews performed at each stage of the complaint process to ensure
facts and events are presented accurately and appropriately.
Considering USDA's long history of discrimination complaints, it is
critical that OASCR adequately support its determinations.\61\ When
OASCR administratively closes a case file without proper documentation
to support the action taken, complainants may not receive the
appropriate consideration from the Department on their complaint of
discrimination. By improving OASCR's review process to ensure
documentation appropriately justifies the actions taken, OASCR can
better build up public trust and ensure that complainants are given
fair consideration in the resolution of their complaints.
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\61\ Audit Report 60601-0001-23, Report Review of the Office of the
Assistant Secretary for Civil Rights' Oversight of Agreements Reached
in Program Complaints, Aug. 2012.
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Recommendation 14
Evaluate procedures for documenting reviews performed at each stage
of the complaint process to ensure facts and events are presented
accurately and appropriately.
Agency Response
In its June 11, 2021, response, OASCR stated:

Unlike other Federal agencies, USDA provides
approximately 300 programs to the public ranging from
nutrition, farm subsidies, rural housing and utilities,
forest management, conservation practices, etc. It is
OASCR's responsibility to ensure these programs are not
administered discriminately and are accessible to all--
not to supplant or supersede calculations and/or
technical determinations made by agency subject matter
experts. Currently, division specific checklists are
utilized throughout the Program Directorate (see
attached PAD Checklist). However, these checklists are
utilized on an individualized case by case basis for
each specialist prior to producing a work product. The
proposed checklist would identify what should be
included in each acceptance letter, ROI, and FAD for an
end user to audit annually. The checklists are
currently in place for manual implementation of data
integrity verification. This process will also be
automated within CRMS to support accuracy and
consistency and both the checklist and CRMS will be
implemented by September 30, 2021.

OASCR provided a completion date of September 30, 2021, for
this action.
OIG Position
We accept management decision for this recommendation.
Recommendation 15
Revise internal procedures to require that case files are returned
to Investigations to document the review of the ROI by PCD for
sufficient facts and evidence collected by Investigations when a new
issue is introduced after the investigation is completed and the ROI
has been approved.
Agency Response
In its June 11, 2021, response, OASCR stated:

At present, OASCR has determined if additional issues
are identified during the course of the investigation,
the Program Complaints Division will issue an amended
acceptance letter. In accordance with Departmental
Manual 4330-001, the Program Adjudication Division will
make determinations with respect to each allegation
identified in the Report of Investigation. If the
Program Adjudication Division determines the ROI
contains sufficient facts/evidence to introduce a new
issue, the Program Adjudication Division will seek
concurrence from the Program Complaints Division
Director. If there are insufficient facts/evidence to
address the new issue, the Program Adjudication
Division will return the complaint to the Program
Complaints Division for a supplemental investigation.
OIG Position
We do not accept management decision for this recommendation.
We agree with OASCR's proposed corrective actions to work with
and seek concurrence from the PCD Director when a new issue is
introduced after the investigation is completed and the ROI has
been approved.
However, OASCR needs to document the actions taken by PAD
when additional issues are introduced at the Adjudication
stage. To achieve management decision, OASCR needs to revise
its internal procedures to document its process when a new
issue is introduced after the investigation is completed and
the ROI has been approved and provide a proposed completion
date for this action.
Recommendation 16
Establish and maintain a system of quality control that is designed
to periodically review a sample of case files to ensure evidence to
support OASCR's determinations and closures is adequate, accurate, and
documented.
Agency Response
In its June 11, 2021, response, OASCR stated:

OASCR accepts this recommendation. A second-level
review of data is currently conducted by each division.
To further ensure the complaints are being processed as
efficiently as possible, a comprehensive ``end-of-
case'' checklist will be developed, and a random
sampling of cases will occur on an annual basis,
starting in the 4th quarter of this fiscal year. OASCR
will incorporate an in-depth quality control system
into its process pending additional staffing resources
allocated to the Program Directorate. OASCR management
provided proposed justifications for increases in
staffing and funding based upon a need for improved
efficiency, change in demand, policy direction changes,
improved customer service and reduced risks in the FY
2023 budget cycle.
OASCR prefers keeping the review process within the
organization as to limit ceding any delegated
authority. However, the independent review process
could be delegated to the new Equity Commission to be
done quarterly.
OIG Position
Although OASCR agrees with this recommendation, we are unable
to accept management decision at this time. We agree with
OASCR's proposed actions to develop a comprehensive ``end-of-
case'' checklist, and periodically review a sample of case
files to further ensure the complaints are being processed as
efficiently as possible. However, OASCR needs to provide more
clarity as to how it will improve its review process to ensure
proper documentation adequately supports OASCR's
determinations. To achieve management decision, OASCR needs to
implement a strategy to establish and maintain a system of
quality control to ensure evidence to support OASCR's
determinations and closures is adequate, accurate, and
documented and provide an estimated completion date for this
action.
Finding 5: OASCR Needs to Strengthen its Oversight Efforts of USDA
Agencies
OASCR missed an opportunity to track and measure USDA's civil
rights progress. There are two oversight tools to help assess agencies'
compliance with civil rights requirements: agency head assessments and
compliance reports. These require input from both agencies and OASCR.
However, these reviews were not being completed. This occurred because
OASCR directed USDA agencies to stop completing required reports and
stopped reviewing agency compliance reports due to limited resources,
but did not implement alternative controls. These civil rights reports
are intended to provide OASCR with vital data concerning whether
agencies are fairly and equally administering USDA programs. Without
them, OASCR cannot effectively fulfill its oversight role, or identify
and correct areas of concern in how USDA agencies handle civil rights
issues.
Federal regulations require that OASCR oversee USDA agencies'
efforts to conduct USDA programs fairly and equally by monitoring two
reports--agency head assessments and agency compliance reports. OASCR
is required to review agencies' annual civil rights performance plan
and accomplishment reports and rate their accomplishments through an
agency head assessment. In addition, OASCR is required to review
agencies' compliance reviews and issue compliance reports that monitor
agency compliance efforts.\62\ These assessments, when implemented
properly, are designed to help OASCR determine if agencies are adhering
to the Department's civil rights regulations and policies.\63\
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\62\ 7 CFR 15(d).
\63\ Ibid.
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Despite these requirements, OASCR did not fulfill its oversight
responsibilities to ensure that agencies were fairly and equally
administering USDA programs.
Agency Head Assessment
Agencies are required annually to review their civil rights
activities and accomplishments by assessing objectives such as
accountability, and non-discriminatory program delivery, and
submitting a civil rights performance plan and accomplishment
report to OASCR. The report establishes civil rights goals,
objectives, and measurable outcomes which agencies use to
assess their activities. OASCR is then required to review
agencies' reports and assessments before providing agencies
with a civil rights accomplishment rating. Both agencies' and
OASCR's reviews constitute the agency head assessment.\64\
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\64\ Ibid.
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Agencies' civil rights performance plan and accomplishment
reports are divided into goals, performance objectives, and
related indicators--or actions that agencies should take to
measure progress towards each objective and address USDA's
regulations, policies, and strategic goals. This report
provides agencies with measurable milestones that can help them
accomplish their goals--such as timely resolution. See below
for an example of a goal, performance objective, and related
indicator.

Compliance Reports
Like agency head assessments, compliance reports need to
occur at both the agency and Departmental level. Unlike the
agency head assessments, which evaluate the agency's overall
compliance with civil rights requirements, compliance reports
focus on targeted, potential areas of concern at the local
office level. First, according to Departmental regulations,
agencies must conduct compliance reviews to ensure that they
are managing and administering programs and activities without
discrimination.\65\ Second, Federal regulation states that
OASCR must: (1) oversee the compliance reviews and evaluations,
and issue compliance reports that monitor compliance efforts,
and (2) monitor all findings of non-compliance to ensure they
are corrected.\66\ Similarly, OASCR must conduct its own
compliance reviews of agencies and their programs and
activities, and monitor compliance review activity within
agencies.\67\
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\65\ USDA, Procedures for Processing Discrimination Complaints and
Conducting Civil Rights Compliance Reviews in USDA Conducted Programs
and Activities, DM 4330-0001 (Oct. 18, 2000).
\66\ 7 CFR 5(d).
\67\ USDA, Procedures for Processing Discrimination Complaints and
Conducting Civil Rights Compliance Reviews in USDA Conducted Programs
and Activities, DM 4330-0001 (Oct. 18, 2000).
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We identified deficiencies during the period of our review at
both the agency and OASCR level. First, we determined that
agencies did not always take the necessary action to submit
reviews; and second, OASCR did not track whether agencies were
conducting compliance reviews. For example, agencies did not
submit proposed compliance review schedules--a preliminary step
in the compliance report process--the majority of the time.
However, even when agencies did submit schedules, OASCR did not
follow up with agencies to determine if the agencies had
conducted the scheduled reviews. In addition, OASCR has not
conducted its own compliance reviews or issued any compliance
reports since 2017. Although OASCR officials stated that they
would develop standard operating procedures and begin
conducting compliance reviews in calendar year (CY) 2020, as of
February 2021, OASCR had not conducted any compliance reviews.

This occurred because, in October 2017, in an effort to reduce
redundancies and inefficiencies, OASCR directed agencies to stop
conducting agency head assessments. OASCR also ended its review of
agency compliance reports. According to an FNS official, completing the
agency head assessment was ``extremely resource-intensive,'' and OASCR
wanted to allow agencies to focus their efforts on achieving civil
rights compliance rather than reporting on it. OASCR officials also
stated that the compliance reviews required considerable resources and
time but agreed that, in some capacity, OASCR needs to conduct
compliance reviews. OASCR officials stated that, because OASCR already
reviewed existing reports such as the MD-715,\68\ Form 462,\69\ and No
FEAR reports,\70\ it was assessing the agencies' compliance and
performance. However, because these existing reports only assess
agencies' internal employment civil rights activities performance, they
are not a replacement for assessing agencies' program civil rights
practices with external stakeholders.
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\68\ EEOC Management Directive 715 requires each agency to report
annually on the status of activities pursuant to its equal employment
opportunity program.
\69\ EEOC Form 462 provides data to produce an annual report on the
Federal workforce that includes, among other data, information on
Federal equal employment opportunity complaints and alternative dispute
resolution activities.
\70\ This is an annual report mandated by Pub. L. No. 107-174,
Notification and Federal Employee Anti-discrimination and Retaliation
Act of 2002 (NO FEAR Act).
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While we acknowledge time and resource constraints, OASCR needs to
identify alternative methods and implement these critical oversight
controls over USDA agencies. Ultimately, OASCR is responsible for
overseeing USDA agencies' efforts to conduct USDA programs fairly and
equally. Agency-submitted assessments and reports contain valuable
performance information that OASCR could have used to ensure agencies
are achieving program goals and objectives set by the Department's
civil rights regulations and policies. If OASCR does not require
agencies to assess and report on their civil rights compliance, the
responsibility for gathering oversight information falls upon OASCR.
However, if OASCR were to require agencies to submit civil rights
reports and assessments, OASCR could develop a methodology to regularly
review agencies based on program complaints, settlements or findings of
discrimination, and other risk factors identified in agency
assessments. OASCR officials agreed that it was necessary to implement
an effective method to assess agencies' compliance with program civil
rights activities.
Ultimately, by effectively implementing oversight controls, such as
agency head assessments and compliance reviews, OASCR can move from a
reactive to a proactive position in addressing potential civil rights
violations. For example, OASCR's compliance division currently is
required to follow up on corrective actions after individual complaints
are resolved. By assessing agencies' civil rights activities
performance, in addition to individual allegations presented in
complaints, OASCR could further evaluate and monitor other civil rights
processing activities to see if this was a widespread or repeated
occurrence and potentially prevent future non-compliances. Furthermore,
with information collected from agency head assessments and compliance
reviews, OASCR can provide the Department with valuable information to
help USDA take steps towards improving civil rights activities, when
necessary.
Recommendation 17
Require agencies to assess their program effectiveness and
compliance with the Department's civil rights regulations and policies
and, furthermore, oversee these agency assessments.
Agency Response
It its June 11, 2021, response, OASCR stated:

From 2005 to 2017, OASCR conducted annual assessments
of agency civil rights performance to determine the
effectiveness and adherence to the Department's civil
rights policies and regulations by each USDA agency in
accordance with 7 CFR Part 15d (Nondiscrimination in
programs or activities conducted by the USDA and
Departmental Regulation 4300-010, Civil Rights
Accountability Policy and Procedures). In 2017, the
Office of the Secretary directed OASCR to end the
annual assessment process so as to allow USDA agencies
to focus on their civil rights efforts. OASCR is
revising the agency head assessment request to be less
cumbersome and focused on civil rights accomplishments
and challenges within the agencies. OASCR will
implement this new process by September 30, 2021.

OASCR provided a completion date of September 30, 2021, for
this action.
OIG Position
We accept management decision for this recommendation.
Recommendation 18
Develop new controls to review the agency assessments and identify
factors that could warrant further review of agencies and their civil
rights practices.
Agency Response
It its June 11, 2021, response, OASCR stated:

OASCR will ensure any new agency assessment procedure
incorporates quality and quality review methodologies.

Based on its response for Recommendation 17, OASCR provided a
completion date of September 30, 2021, for this action.
OIG Position
We accept management decision for this recommendation based
on OASCR's response for Recommendation 17.
Recommendation 19
Develop and implement a process to select USDA agencies and program
offices for compliance reviews (on a recurring basis) based on program
complaint activity, settlements or findings of discrimination, and
other risk factors identified in agency assessments.
Agency Response
It its June 11, 2021, response, OASCR stated:

OASCR led a task force designed to amend USDA's
Departmental Regulation (DR) which provides guidance
and instructions on Civil Rights Compliance Reviews.
The team consisted of representation from Mission
Areas, agencies, and key staff offices. The DR
specifically establishes USDA's policies and procedures
for conducting civil rights compliance reviews of all
USDA Federally conducted and Federally assisted
programs and employment activities. The DR has been
submitted to the Department for review and clearance.
Once cleared by the Department, the following criteria
will be required of OASCR, Mission Areas, agencies, and
staff offices.
CCRO will reignite its compliance review program by
serving as embeds with mission area and agency civil
rights directors. One compliance review with the Food
and Nutrition Service will be completed by September
30, 2021. The decision to conduct a compliance review
will be based on neutral criteria or evidence of a
violation.

OASCR provided a completion date of September 30, 2021, for
this action.
OIG Position
We accept management decision for this recommendation.
Finding 6: OASCR Needs to Assess Progress Towards Established Goals and
Objectives
Although OASCR developed its Strategic Plan FY 2016-2020, it did
not use the plan to measure or assess its progress toward established
goals and objectives relating to program complaints.\71\ This occurred
because OASCR management did not establish specific ways to: (1)
monitor performance measures and indicators, (2) perform periodic
reviews and regularly update the plan, and (3) report on actual
performance compared to its goals and objectives. Using the performance
measures provided in the strategic plan could have helped OASCR avoid
shortcomings identified in this report. Because OASCR has not
established measurable and implementable measures, OASCR officials
cannot determine whether they are achieving intended goals and
objectives. This further hinders OASCR's ability to make well-informed
decisions and improve the program complaint process.
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\71\ USDA OASCR, Strategic Plan FY 2016-2020 (2015).
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The Government Performance and Results Act (GPRA) requires agencies
to develop a strategic plan, set performance goals, and annually report
on actual performance compared to goals.\72\ GPRA also requires
agencies to use performance indicators to measure or assess progress
toward established goals. Similarly, GAO states that management should
establish activities to monitor performance measures and
indicators.\73\
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\72\ Government Performance and Results Act of 1993, Pub. L. No.
103-62, 107 Stat. 287 and 288.
\73\ GAO, Standards for Internal Control in the Federal Government,
GAO-14-704G (Sept. 2014).
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OASCR's Strategic Plan FY 2016-2020 encourages periodic performance
review sessions as an essential part of strategic planning--at least
quarterly. Management can use the results of these performance reviews
to assess and analyze how the agency is doing and, if necessary, make
decisions and reprioritize due to changing resources, evolving
stakeholder needs, or other new realities.
In 2008, GAO reported that OASCR's strategic planning was limited
and did not address key steps needed to achieve its mission. According
to GAO, results-oriented organizations follow three key steps in their
strategic planning: (1) they define a clear mission and desired
outcomes, (2) they measure performance to gauge progress, and (3) they
use performance information for identifying performance gaps and making
program improvements. Accordingly, GAO recommended that OASCR develop a
results-oriented, Department-level strategic plan for civil rights that
unifies USDA's approach with OASCR. GAO specified that the plan should
be transparent about USDA's efforts to address stakeholder
concerns.74-75
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\74\ GAO, Recommendations and Options to Address Management
Deficiencies in the Office of the Assistant Secretary for Civil Rights,
GAO-09-62 (Oct. 2008).
\75\ Following the 2008 GAO Report, OASCR developed the Strategic
Plan FY 2011-2015. We did not include this strategic plan in our review
because it was outside the scope of our audit.
---------------------------------------------------------------------------
In response, OASCR developed a strategic plan that provides goals,
outcomes, and performance indicators that monitor the programs,
policies, and services that OASCR administers in an effort to produce
results and improve the organization's performance. In addition, the
performance indicators measure performance against the strategies for
each outcome, and inform management whether it is achieving the desired
result. OASCR's Strategic Plan FY 2016-2020 included three strategic
goals, two of which were relevant to our audit:

Goal 1. Improve civil rights complaints processing for
internal and external customers in keeping with Federal laws,
mandates, and Departmental Regulations and guidelines.
Goal 3. Demonstrate effective engagement within USDA by
ensuring all USDA employees have the necessary resources to
support the civil rights of all employees and customers of
USDA.\76\
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\76\ For the purpose of this finding, we will only report on
outcomes and performance indicators relative to the program civil
rights complaint processing. We plan to conduct a similar review of
OASCR's EEO civil rights complaint process in the near future.

OASCR has not prioritized the strategic plan as a resource in
developing strong internal controls, since officials stated that the
strategic plan was outdated due to a 2018 reorganization and changing
priorities. We acknowledge that OASCR's priorities may have changed,
and its strategic plan became outdated. In this instance, officials
should have reprioritized and revised the plan accordingly to include
performance measures to assist the agency in meeting desired outcomes.
OASCR should regularly review its strategic plan and update it to
reflect the current environment and its priorities.
OASCR officials further added that the goals were incorporated into
their everyday processes. However, OASCR management did not establish
specific ways to: (1) monitor performance measures and indicators, (2)
perform periodic reviews and regularly update the plan, and (3) report
on actual performance compared to its goals and objectives. Until OASCR
utilizes the strategic plan as a tool to regularly monitor and achieve
its goals, it may not accurately measure its performance, identify
points of concern, and strategically develop a course of action to
address these issues. A results-oriented strategic plan provides a road
map that clearly describes what an organization is attempting to
achieve. It can also serve as a focal point for communication with
Congress and the public about what OASCR and USDA agencies have
accomplished. By implementing the goals, objectives, and performance
indicators in a plan, OASCR can monitor measurable outcomes, identify
points of weakness, and develop courses of action to address identified
issues.
Recommendation 20
Develop and implement a process to perform periodic reviews of the
strategic plan and regularly update the strategic plan.
Agency Response
In its June 11, 2021, response, OASCR stated:

OASCR has revised its strategic plan for FY 2020-2024
to reflect the goals and priorities of the current
political leadership. The Deputy Assistant Secretary
for Civil Rights and the Associate ASCR are involved in
the drafting of the USDA Strategic Plan to include a
civil rights/racial equity goal. OASCR Strategic Plan
must link to the new USDA plan scheduled for release Q2
of FY 2022 before OASCR can release its separate
strategic plan.
OIG Position
We do not accept management decision for this recommendation.
We acknowledge that OASCR revised its strategic plan for FY
2020-2024 to reflect the goals and priorities of the current
political leadership. However, in its response, OASCR did not
mention how it planned to regularly review its strategic plan
and update it, if necessary, to reflect the current environment
and its priorities, as noted in our report. To achieve
management decision, OASCR needs to develop and implement a
process (guidance) that describes how OASCR will perform
periodic reviews of each strategic plan they establish and
regularly update them, if necessary, based on the changing
environment and priorities. In addition, OASCR needs to provide
an estimated completion date for this action.
Recommendation 21
Establish a mechanism to measure performance against established
goals and report on actual program activity performance data.
Agency Response
In its June 11, 2021, response, OASCR stated:

The revised OASCR Strategic Plan will include key
performance measures and objectives linking directly to
programmatic activity. In addition, by September 30,
2021, OASCR, will launch a Civil Rights dashboard to
provide real-time data to the Secretary on employment
and program complaint activity.

OASCR provided a completion date of September 30, 2021, for
this action.
OIG Position
We accept management decision for this recommendation.
Scope and Methodology
We conducted an audit of OASCR's civil rights program complaint
process. We performed fieldwork from June 2019 through April 2021 at
OASCR's offices in Washington, D.C. During this time, we met with OASCR
leadership officials and staff within PCD, PAD, the Center for Civil
Rights Operations, the Program Alternative Dispute Resolution, the Data
and Records Management Division, the Center for Civil Rights
Enforcement, the Program Planning and Accountability Division, and the
Compliance Division.
According to PCMS records, OASCR closed 2,321 correspondences and
911 complaints between October 1, 2016, and June 30, 2019.\77\ We non-
statistically selected a total of 20 correspondences and 28 complaints
to review based on: (1) correspondence and complainant category
types,\78\ and (2) the percentage the category type represented in the
universe.\79\ Based on the sampling methodology, we would have only
included minimal settlements and zero findings of discrimination.
However, to review the entire program complaint process, we included
all findings of discrimination that occurred during our scope
period.\80\
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\77\ When a complainant submits a complaint of discrimination,
OASCR produces a correspondence number for the incoming communication.
For those accepted as complaints, it is converted to a complaint and
assigned a complaint number for further processing.
\78\ The 13 categories for correspondences include: closed data
entry error, closed duplicate, closed failure to pursue, closed failure
to state a claim, closed issue in court, closed non-jurisdictional
correspondence, closed referral to other government agency, closed res
judicata, closed resolved, closed untimely, closed withdrawn,
programmatic referral, and save correspondence entered. The 15
categories for complaints include: duplicate record, failure to
cooperate, failure to pursue, failure to pursue closed letter/
withdrawal, failure to state a claim, filed in court, finding, HUD
decision, lack of jurisdiction, no finding, programmatic referral,
referral to other government agency, settlement, untimely filing, and
withdrawal.
\79\ For instance, programmatic referrals represented 44 percent of
the universe of correspondences closed during our scope. We then
applied this percentage to 20, the total number determined for the
sample, to select how many from each category to review. Therefore, we
determined that we would review nine programmatic referrals (44 percent
20).
\80\ Within our sample, there were five settlements and six
findings closed between October 1, 2016, and June 30, 2019.
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To accomplish our audit objectives, we:

Reviewed applicable regulations and guidance established for
OASCR's program complaint process.

Reviewed prior audit reports from GAO and OIG and identified
recommendations relative to our current audit work.\81\
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\81\ GAO, Recommendations and Options to Address Management
Deficiencies in the Office of the Assistant Secretary for Civil Rights,
GAO-09-62 (Oct. 2008); and OIG Audit Report 60601-0001-23, Report
Review of the Office of the Assistant Secretary for Civil Rights'
Oversight of Agreements Reached in Program Complaints, Aug. 2012.

Obtained and reviewed OASCR's most recent Strategic Plan FY
2016-2020 to determine whether OASCR established performance
measures related to areas covered by the engagement, and to
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determine if goals were met and adequately supported.

Obtained and reviewed documentation to support OASCR's
implementation of performance measures from Strategic Plan FY
2016-2020.

Interviewed OASCR staff regarding the administration and
oversight of the program complaints process.

Interviewed OASCR staff to obtain an understanding of their
roles and responsibilities as they relate to the program
complaint process at all three stages: intake, investigation,
and adjudication.

Identified and evaluated key controls to ensure program
complaints were processed in compliance with program
requirements at all three stages: intake, investigation, and
adjudication.

Developed a pro forma to review and test OASCR's controls to
ensure that program complaints were processed in accordance
with the requirements outlined in DM4330-0001,\82\ DR4330-
0002,\83\ and OASCR standard operating procedures for our
sampled complaints.
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\82\ USDA, Procedures for Processing Program Complaints and
Conducting Civil Rights Compliance Reviews in USDA Conducted Programs
and Activities, DM 4330-001 (Oct. 2000).
\83\ USDA Departmental Regulation 4330-002, Nondiscrimination in
Programs and Activities Receiving Federal Financial Assistance from
USDA (Mar. 1999).

Identified and evaluated OASCR MOUs with FNS, HUD, and OGC
to determine whether controls were in place to ensure program
complaints are processed timely and accurately and in
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accordance with Departmental guidance.

[Redacted].

To assess the reliability of data, we interviewed agency officials
knowledgeable about OASCR's information system to process program
complaints. Through these interviews, we gained an understanding of the
existence, relationship, impact, and pervasiveness of the information
system. We accessed PCMS to obtain documentation such as complaint
forms, acknowledgement letters, acceptance letters, agency position
statement letters, ROIs, FADs, and closure letters in order to review
program complaint case files. We assessed the reliability of data by
replicating the OASCR-provided universe with a universe obtained from
PCMS by OIG. We determined that the data were sufficiently reliable for
purposes of this report. Because evaluating the effectiveness of PCMS
was not one of our engagement objectives, we did not review, analyze,
or verify the system's general and application controls.
We conducted this audit in accordance with Generally Accepted
Government Auditing Standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to provide
a reasonable basis for our findings and conclusions based on our audit
objective. We believe that the evidence obtained provides a reasonable
basis for our findings and conclusions based on our audit objective.

Abbreviations
------------------------------------------------------------------------

------------------------------------------------------------------------
CFR Code of Federal Regulations
[Redacted] [Redacted]
CY calendar year
DM Departmental Manual
DR Departmental Regulation
ECOA Equal Credit Opportunity Act of 1974
EEO equal employment opportunity
FAD final agency decision
FedRAMP Federal Risk and Authorization
Management Program
FHA Fair Housing Act
FNS Food and Nutrition Service
FY fiscal year
GAO Government Accountability Office
GPRA Government Performance and Results
Act
HUD United States Department of Housing
and Urban Development
IT information technology
MOU Memorandum of Understanding
NIST National Institute of Standards and
Technology
OASCR Office of the Assistant Secretary for
Civil Rights
OGC Office of the General Counsel
OIG Office of Inspector General
OMB Office of Management and Budget
PAD Program Adjudication Division
PCD Program Complaints Division
PCMS Program Complaints Management System
PIA privacy impact assessment
PII personally identifiable information
PTA privacy threshold analysis
RFC recommendation for closure
ROI report of investigation
USDA United States Department of
Agriculture
------------------------------------------------------------------------

Exhibit A: Summary of OASCR's Performance Indicators and Strategies
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
This exhibit summarizes the action taken by OASCR to address its performance indicators and strategies
included in its Strategic Plan for FY 2016-2020.
----------------------------------------------------------------------------------------------------------------
No. Performance Measures \84\ Adequately OIG Conclusion
Implemented?
----------------------------------------------------------------------------------------------------------------
Goal 1: Improve civil rights complaints processing for internal and external customers in keeping with
Federal laws, mandates, and Departmental Regulations and guidelines.
----------------------------------------------------------------------------------------------------------------
1 Performance Indicator: 1.1 Develop No OASCR did not conduct a program
and implement a 5-year Internal complaint processing audit in the
Audit plan within the Office of fourth quarters of 2017 and 2019.
Adjudication. This includes: 1.1.3 OASCR was unable to demonstrate that
Implement a Program Complaint they conducted quarterly quality
Processing Audit in the 4th quarters control assessments of PCMS. See
of 2017 and 2019. 1.1.4 Conduct Findings 3 and 4.
quality control assessments in PCMS
quarterly.
\84\ Each
performance
measure is
listed in
order as it
appears in
OASCR's
Strategic Plan
FY 2016-2020.
OASCR's
Strategic Plan
FY 2016-2020
included three
strategic
goals, two of
which were
relevant to
our audit. For
the purpose of
this report,
we will only
report on
outcomes and
performance
indicators
relative to
program
complaint
processing.
2 Performance Indicator: 1.4 Build No OASCR documentation supports the DOJ
Coalitions with Stakeholders to Title IX, Title VI, and the Civil
Improve Complaint Processes. This Rights Directors meetings. However,
includes: 1.4.1 Conduct Civil Rights there was no evidence to support
Directors Meetings quarterly, 1.4.2 that these meetings occurred
Conduct Agency Partnership Meetings consistently between FYs 2016-2020.
quarterly, and 1.4.3 Implement OASCR officials stated that they
Agency Liaison Initiatives monthly. never implemented the quarterly
agency partnership meetings during
the time period of the strategic
plan. There is also no evidence to
support that OASCR implemented
monthly agency liaison initiatives.
3 Performance Indicator: 1.5 Expand No OASCR officials provided us with
Internal Professional Development training agendas; however, the
and Training. This includes 1.5.1 agendas do not specify which OASCR
Mandate annual specialized training personnel participated in these
on case law updates, recent case trainings or that these trainings
decisions, evidence gathering, were conducted quarterly. OASCR
technology advances and information officials stated that personnel have
security annually, and 1.5.2 taken barrier analyses training, but
Identify career paths and these trainings have not been
progressions, and developmental consistent. OASCR officials could
opportunities to transition staff not provide a documented mandate for
from entry to middle and middle to annual, specialized training on case
senior level positions annually. law updates, recent case decisions,
evidence gathering, technology
advances and information security.
Although OASCR officials mentioned
developmental opportunities for
staff, OASCR does not have a formal
process in place to track this on an
annual basis.
4 Performance Indicator: 1.6 Strengthen No OASCR could not provide supporting
Resource Management. This includes documentation to show what they
1.6.1 Establish core requirements implemented consistently to
for staffing and funding of all OA strengthen resource management.
functions annually, and 1.6.2 Obtain
adequate resources to address
complaints immediately upon receipt
annually.
5 Performance Indicator: Number and No Although OASCR established and
percent reduction in complaint tracked target number of days for
processing time. OASCR established each step in the complaint process
target number of days for 2016-2020 in an effort to reduce complaint
for each step in the program processing time, OASCR did not
complaint process: Programs Intake, provide supporting documentation
Programs Investigation and Programs showing a reduction in complaint
Adjudication.\85\ processing time. In addition, as
reported in Finding 1, OASCR has not
met its 180-day processing
requirement and the complaint
processing time has been increasing
since FY 2017.
\85\ Numbers 5
and 6 in the
exhibit do not
include
performance
indicator
numbers, as
they were the
only
performance
indicators
under a
particular
outcome and
therefore not
numbered.
6 Performance Indicator: Number and Yes According to annual farm bill
percent of reduction in the reports, OASCR decreased its
inventory of complaints. inventory of open complaints from
549 to 392 between FY 2016 and FY
2019.\86\
\86\ Food,
Conservation,
and Energy Act
of 2008
Section 14010
Report of
Civil Rights
Complaints,
Resolutions,
and Actions
for Fiscal
Year 2019,
dated
September
2020, was the
most recent
report
available.
7 Performance Indicator: 4.1 Commit No OASCR dedicated seven positions in
sufficient staff resources to update the Compliance Division to update
OASCR Departmental rules, and revise USDA and civil rights
guidelines, and regulations; 4.2 Departmental regulations, policies,
Create and post manuals on OASCR and Executive Orders, as well as
website; and 4.3 Review and update updated templates. However, we
templates for the Age Discrimination determined that Departmental
Act, No FEAR Act, and annual farm directives related to processing
bill reports. program complaints have not been
updated or published [publicly]
since October 2000. See Finding 1.
----------------------------------------------------------------------------------------------------------------
Goal 3: Demonstrate effective engagement within USDA by ensuring all USDA employees have the necessary
resources to support the civil rights of all employees and customers of USDA.
----------------------------------------------------------------------------------------------------------------
8 Performance Strategy: 2.4: Develop No OASCR did not develop a technology
technology solution for monitoring solution for monitoring and tracking
and tracking settlement agreements, settlement agreements, compliance
compliance reviews, EEOC Orders, reviews, EEOC orders, orders in-
Orders in-agency issued FADs with agency issued FADs with findings of
findings of discrimination, and discrimination, and number of
number of employees who received employees who received agency/office
agency/office civil rights training. civil rights training as it relates
to program complaints.
9 Performance Strategy: 2.5: Recognize No OASCR did not examine best practices
agencies and offices with minimal for supporting civil rights and fair
number of EEO and program complaints treatment.
and examine their best practices for
supporting civil rights and fair
treatment.
10 Performance Strategy: 2.7 Develop No OASCR confirmed that they have not
reporting mechanism for agencies and completely developed reporting
offices with higher number of EEO/ mechanisms for agencies with higher
program complaints and noncompliance program complaints.
with settlement agreements and EEOC
Orders.
11 Performance Indicator: 2.1 Complete No OASCR officials stated that they did
24 compliance reviews in (or by) not conduct any compliance reviews
2020. since 2017. See Finding 5.
12 Performance Indicator: 3.1 Complete No OASCR officials stated that they did
internal audit of annual EEO/program not conduct an internal audit of
evaluations, and establish planning annual EEO/program evaluations or
priorities to eliminate systemic establish planning priorities to
barriers, trends, and programmatic eliminate systemic barriers, trends,
challenges; 3.2 Assign Data & and programmatic challenges.
Records Management Department
responsibility to produce/conduct
program participant civil rights
surveys; and 3.3 Review and analyze
survey response from USDA customers
within 1 week.
13 Performance Indicator: 4.1 Select No In response to this indicator, OASCR
task groups to revise departmental provided a status of eight
civil rights regulations by 2017; Departmental civil rights
4.2 Create bulletins for OASCR staff regulations that indicated that one
regarding possible changes to regulation was revised in April
legislative rulings. 2018, one was scheduled to be
rescinded in the fourth quarter of
2019, five were scheduled to be
revised in 2020 and one in 2021.
14 Performance Indicator: 8.1 Develop, No OASCR officials stated that they did
institutionalize, and lead an not implement a process to review,
ongoing annual process to review, analyze, and report on lessons
analyze, and report on ``lessons learned from program complaints
learned'' from (a) EEO complaints, closed during the year because past
and (b) program complaints, closed leadership did not require that it
during the year. This should include be done.
identification of recurring themes
underlying the analysis of
complaints, results of
investigations (which often turn up
areas for improvement in
communications, training, and other
areas even when there is no finding
of discrimination, and certainly do
so when there is such a finding),
and recommendations for improving
practices to avoid such complaints
in the future. These reports should
be distributed on the intranet to
all employees, and to all USDA
senior officials and managers; 8.2
Create two reports one for program
complaints and the other for
employment complaints that list
complaints by state, agency, issue,
and basis, which will be submitted
to the Office of the Secretary
monthly, quarterly, and annually,
highlighting significant
accomplishments in complaint
processing and resolution,
compliance, policy and training.
----------------------------------------------------------------------------------------------------------------

Agency's Response--OASCR's Response to Audit Report

To: Gil H. Harden, Assistant Inspector General for Audit, Office of
the Inspector General
From: Monica Armster Rainge, /S/ Deputy Assistant Secretary for Civil
Rights
Subject: Response to OIG Audit on ``USDA Oversight of Civil Rights
Complaints, 60601-00012.''

This letter responds to your request for management's response to
the audit recommendations in the draft audit report No. 60601-0001-21.
U.S. Department of Agriculture (USDA) appreciates the Office of
Inspection General's (OIG) review of the civil rights complaint process
within the Office of the Assistant Secretary for Civil Rights (OASCR).
This report, which reviews OASCR's program complaint activity from
October 1, 2016 through June 30, 2019, will help inform and guide our
work moving forward.
As you noted in your report, there were many significant changes to
the program complaint process as it relates to OASCR from FY October 1,
2016-June 30, 2019, and although you identified some issues, OASCR has
taken action to rectify many issues identified.
Again, we thank OIG for your attention to the matter of OASCR's
program complaint process. These recommendations, in part, underscore
the work underway at USDA to enhance, modernize, and provide meaningful
assistance to OASCR and USDA as a whole.
If you have any questions or need additional information, please
contact my office at (202) 720-3808.
Attachment(s)
Office of the Assistant Secretary for Civil Rights Response To Audit
Number: 60601-0001-21 Executive Summary
What OIG Found
The U.S. Department of Agriculture's (USDA) Office of the Assistant
Secretary for Civil Rights (OASCR) is responsible for making final
determinations on complaints of discrimination filed by any persons who
believe they have been subjected to prohibited discrimination in a USDA
program.
We concluded that, overall, OASCR needs to develop a stronger
internal control environment over its civil rights program complaints
processing to ensure that complaints are timely and appropriately
handled, and that OASCR achieves established goals and objectives.
First, OASCR did not timely process civil rights program complaints.
Specifically, in Fiscal Year 2019, OASCR averaged 799 days to process
program complaints compared to the 180-day standard. Furthermore, two
other agencies that OASCR coordinated with to resolve complaints took
more than 220 days and more than 600 days respectively to process
complaints.
[Redacted] . . . We also determined that 9 of 28 complaint
determinations and closures were not adequately supported and
processed.
Additionally, OASCR missed an opportunity to track and measure
USDA's progress in achieving the Department's civil rights goals and
objectives. Finally, these issues could have been identified and better
rectified had OASCR used its strategic plan to measure or assess its
progress toward established goals and objectives relating to program
complaints.
OASCR'S Response
OASCR has historically responded favorably to most OIG audits as a
way to improve the organization's efficiency and effectiveness in
meeting its mission goals and objectives. The responses below provide
OIG with progress made by OASCR during the time in question while
identifying challenges in meeting specific internal control objectives.
Finding 1: ASCR Needs to Timely Process Civil Rights Program Complaints
OASCR did not timely process civil rights program complaints. In
Fiscal Year (FY) 2019, OASCR processed program complaints within 799
days on average--significantly in excess of its 180-day goal stated
within Departmental guidance. Furthermore, OASCR's processing time of
799 days greatly exceeded even its more liberal 540-day goal stated in
its internal pilot policy. This occurred because the Departmental
guidance is inconsistent and outdated--and does not accurately reflect
best practices or OASCR staffing limitations. OASCR officials noted
that limited staffing has caused delays in processing program
complaints. When faced with lengthy timeframes to process their
complaints, individuals who have a legitimate claim of discrimination
and would otherwise be eligible for USDA programs may not continue to
pursue their complaint or not file a complaint at all. This, in turn,
diminishes public confidence that the Department can appropriately and
expeditiously resolve complaints.
Federal regulation states that agencies shall establish and publish
guidelines and procedures for the prompt processing and disposition of
complaints. Accordingly, two Departmental directives--issued in 1999
and 2000--established 180-day timeframes for processing program
complaints. In September 2013, OASCR expanded this timeframe to 540
days on a pilot basis through an internal policy memorandum that was
never made public. OASCR still operates under the 2013 pilot timeframes
and has not updated the two Departmental directives that officially
outline the timeframes for processing program complaints.
We concluded that OASCR does not timely resolve program complaints
in compliance with Federal and Departmental guidance. From October 1,
2016, through June 30, 2019, USDA processed 911 program complaints. Of
the 911 complaints, we non-statistically sampled 28 and determined that
24 program complaints (more than 85 percent), took longer than 180 days
to process--the timeframe established in the Departmental directives.
Furthermore, 19 of the 28 program complaints (more than 67 percent)
took longer than the 540 days outlined in OASCR's 2013 internal policy
memorandum. The 28 program complaints in our sample had an average
processing time of over 630 days, and in FY 2019, OASCR processed
program complaints within 799 days on average.
Of the 24 program complaints that took longer than 180 days to
process, ten had considerable periods when progress halted between
steps in the process. This occurred because OASCR officials had not
assigned the complaints to an investigator or adjudicator, or the
individual assigned was not yet ready to work on the complaint due to a
backlog of complaints. This led to further delays. For example, of the
830 days it took OASCR to process one complaint, more than 330 days
elapsed between PCD receiving the agency position statement and the
next step in the process--completing the investigative plan. Once PCD
completed the investigation and forwarded it to PAD, the complaint sat
idle for more than 180 days before an adjudicator was assigned to the
complaint. We identified multiple, similar instances with complaints
that ranged from 645 to 1,024 days to process. Furthermore, as Figure 1
below demonstrates, OASCR's average processing time for program
complaints increased between FY 2017 and FY 2019.
This occurred because guidance concerning timeframes for resolving
program complaints is inconsistent and does not reflect best practices
for prompt complaint resolution. First, Departmental and agency
guidance provided different timeframes for processing program
complaints. For example, the Departmental manual states that a FAD will
be issued within 180 days of OASCR's receipt of the program complaint.
However, the Departmental regulation states that a program complaint
investigation, which occurs prior to the issuance of an FAD, will be
finalized within 180 days following complaint acceptance. Furthermore,
the 2013 internal policy memorandum states that a program complaint
should be processed within 540 days from OASCR's receipt of the program
complaint. To illustrate the inconsistencies even more, a 2014 MOU
between OASCR and FNS requires that FNS process all accepted program
complaints within 180 days. (See Finding 2.) In our view, inconsistent
and conflicting timeframes lead to unclear expectations for personnel
processing program complaints and for complainants filing them.
OASCR officials explained that they were operating exclusively
under the 540-day timeframe established in the 2013 policy memorandum--
not the 180-day timeframe set forth in the Departmental manual.
However, we question whether the 540-day timeframe serves as a suitable
best practice for the Department. OASCR officials could not provide
support for how they determined 540 days to be an adequate timeframe.
Federal regulations require agencies to establish and make public in
their guideline's procedures for the ``prompt [emphasis added]
processing and disposition of civil rights program complaints.'' During
the course of our audit, OASCR officials agreed that 540 days is a
lengthy time to process program complaints. OASCR should consider
assessing its program complaint process, benchmarking with similar
departments, documenting its assessment, and sharing its decision with
the public of what may be a reasonable complaint processing time for
USDA.
We also consider the 2013 pilot guidance temporary and not a long-
term replacement for permanent Departmental guidance because OASCR did
not update and make available to the public its directive outlining
timeframes for processing program complaints. The Departmental
directives establishing civil rights complaint processing timeframes
are in effect until canceled. Because there was no evidence that OASCR
officials canceled the directives, OASCR would be expected to follow
them. Additionally, because the directives are publicly available on
USDA's website, the public may reasonably expect that USDA officials
are following the 180-day timeframes when processing program
complaints. OASCR's decision to operate differently than established
timeframes outlined in guidance would further diminish public
confidence that USDA is carrying out its responsibility to process
complaints in a timely manner. Processing times of such a lengthy
nature could discourage complainants from following up on their
complaint, or simply not file a complaint at all. Any delay in
resolving complaints could potentially lead to the exclusion of
otherwise eligible individuals from rightfully benefitting from USDA
programs.
Because these directives are 20 years old, they should be assessed
to determine if revisions and updates are needed. OASCR officials
acknowledged that the outdated directives are still enforceable, and
added that they are in the process of updating them. This is a
necessary step, and we encourage OASCR officials to strategically
assess how best to meet requirements for prompt complaint resolution.
OASCR officials previously committed to performing such an assessment,
but did not conduct it. Specifically, the 2013 policy memorandum states
that an analysis would be conducted to determine the success rate of
the new timeframes and whether to keep them or adjust them based on the
results. However, OASCR officials stated they were unaware of any
analysis or report on the results of the pilot guidance. Such an
assessment becomes even more crucial considering OASCR's current
difficulties with staffing levels.
OASCR officials stated that insufficient staffing was the primary
cause of the prolonged complaint processing. Specifically, delays in
assigning program complaints to personnel were a direct result of low
staffing levels combined with backlogged inventory.
We similarly concluded that OASCR needs to take steps to assess its
staffing levels in order to appropriately and timely resolve program
complaints. OASCR's FY 2016-2020 Strategic Plan includes a goal to
``strengthen resource management'' by annually establishing core
requirements for staffing and funding of all organizational functions
and annually obtaining adequate resources to address program complaints
immediately upon receipt. However, OASCR had not adequately addressed
this goal within its strategic plan. (See Finding 6.) When we asked
OASCR officials if they had completed an assessment that looked at
staffing levels, they provided a June 2020 approved staffing list of
full-time employees that would be added to each division. According to
this document, OASCR would add one full-time employee to PCD and one to
PAD. Based on previous staff reductions and the current complaint
processing time, this minimal increase in staffing levels does not
appear to address the actual needs of these divisions. Additionally,
because the document did not offer any justification as to why only two
employees would be added, we do not consider this list an adequate
assessment.
We acknowledge the challenges of processing program complaints in a
timely manner with limited staffing resources. As such, we recommend
that OASCR implement a strategy to routinely evaluate and address its
staffing and funding resources to improve the timeliness of processing
complaints. This evaluation should not be limited to staff and funding,
but can include alternative ways to improve timeliness, such as
updating the information technology (IT) system. Given its current
staffing levels, we also recommend that OASCR strategically assess and
determine its timeframe to better fit best practices and staffing
levels. Specifically, to ensure program complaints are processed in a
prompt and timely manner, OASCR needs to evaluate, develop, and
implement complaint processing timeframes and establish a success rate.
In our view, the new timeframe should be comparable to guidance and
goals of similar Federal agencies responsible for processing civil
rights program complaints. These steps would set a standard by which
OASCR could operate its program complaint processing in a more
efficient manner. However, until new timeframes have been developed and
implemented, OASCR should adhere to the 180-day timeframe established
within the Departmental guidance.
OIG Recommendation 1
Evaluate the timeframe to process program complaints and, based on
this analysis, develop and implement timeframes and a success rate to
ensure program complaints are processed in a prompt and timely manner.
OASCR Response to Recommendation 1
In FY 20, OASCR designed and implemented a pilot program to expand
effectiveness of policies that ensure compliance with, and enforcement
of, USDA's prohibition against discrimination in its conducted programs
or activities of recipients of Federal financial assistance from USDA.
Under the pilot, the Alternative Dispute Resolution (ADR) process moved
from post acceptance to pre-acceptance of a complaint. Additionally,
agencies have 30 days to attempt resolution by counseling the
complaint.
Previously, ADR was offered after complaint acceptance and
contributed significantly to increased timeframes for complaint
processing by 205 days between FY 2019 and FY 2020. The chart below
highlights the reduction in average processing time based on this
process improvement. OASCR will finalize and fully implement this
process at the beginning of FY 22.
Additionally, OASCR will reevaluate the timeframes to process
program complaints by the end of calendar year 2021. As suggested in
the audit findings, OASCR will evaluate the timeframes based on
historical average processing times and current staffing levels. OASCR
will also query other Federal agencies regarding complaint processing
times, best practices, and quantitative metrics for measuring success.
Though USDA is a large Federal agency with significantly different and
wider ranging programs than other Federal agencies, OASCR has
determined such efforts are appropriate. It is noteworthy that OASCR
has significantly reduced the inventory of discrimination complaints
from FY 2016-FY 2020.

------------------------------------------------------------------------
# of complaints
Fiscal Year USDA APT (days) pending OASCR decision
*
------------------------------------------------------------------------
2016 654 476
2017 571 366
2018 594 333
2019 799 309
2020 545 238
------------------------------------------------------------------------
Editor's note: there is no corresponding table note to the ``*''
annotation.

OIG Recommendation 2
Based on the analysis performed in Recommendation 1, update
Departmental guidance outlining timeframes for processing program
complaints. Once updated, publish the Departmental guidance on OASCR's
public website.
OASCR Response to Recommendation 2
In June of FY 21, OASCR will conduct a 6-month review and update of
Departmental Manual 4330-001 to ensure consistent and adequate language
is provided within all Departmental Directives. As OASCR informed OIG
during the Exit Conference, Departmental Regulation 4330-002 and 4330-
003 have been updated and are going through Departmental clearance,
which is outside of the purview of OASCR. OASCR is anticipating
clearance of the updated guidance by the end of this fiscal year.
The latest known iterations of the updates of DR-4330-002 and DR-
4330-003 (circulated on February 4, 2021) do not include timeframes for
complaint processing. The prior language in DR-4330-002 providing a
180-day timeframe for a civil rights investigation to be conducted was
removed from the updated regulation.
OIG Recommendation 3
Develop and implement a strategy to routinely evaluate and address
OASCR's staffing and funding resources to ensure that program
complaints are processed in a timely manner.
OASCR Response to Recommendation 3
The OASCR Program Directorate routinely evaluates staffing needs to
ensure timely processing of program complaints. Each budget formulation
cycle, OASCR management provides proposed justifications for increases
in staffing and funding based upon a need for improved efficiency,
change in demand, policy direction changes, improved customer service
and reduced risks. OASCR has a limited discretional budget from which
to add additional resources. OASCR is optimistic Congress will
favorably approve a request to increase the office's appropriated
funding for FY 2022.
OIG Recommendation 4
Adhere to the 180-day timeframe established within the Departmental
guidance until new timeframes have been developed and implemented.
OASCR Response to Recommendation 4
Without a significant increase in staffing, OASCR will not maintain
a 180-day timeframe for all phases of program complaint processing to
include Intake, Investigation, and Adjudication. OASCR acknowledges the
inconsistent language regarding timeframes between the Departmental
Manual (stating that a Final Agency Decision will be issued within 180
days of OASCR's receipt of the program complaint) and the Departmental
Regulation (stating that a program complaint investigation, which
occurs prior to the issuance of a Final Agency Decision, will be
finalized within 180 days following complaint acceptance).\1\
---------------------------------------------------------------------------
\1\ Pg. 15 of DR-4330-002, (f)(4) Investigations, establishes 180
days for CR to conduct an investigation. It does not provide a
timeframe for Adjudication.
---------------------------------------------------------------------------
In fact, the Government Accountability Office (GAO) Audit 09-62
made a recommendation for OASCR to prepare and implement an improvement
plan for resolving discrimination complaints that sets time frame goals
and provides management controls for resolving complaints from
beginning to end based on this inconsistency.
In the processing of EEO complaints there are finite types of
personnel issues that are adjudicated. The Program Adjudication
Division is expected to synthesize, analyze, and adjudicate complaints
in all of the approximately 300 programs offered by the USDA to the
public. These programs range from nutrition, farm subsidies, rural
housing and utilities, forest management, and conservation practices,
to name a few. Considering the alleged weaknesses identified in Finding
4, drastically reducing the timeframe from 135 days to 60 days would
likely cause a decrease in the qualitative analysis of Final Agency
Decisions.
Currently, each Adjudicator receives 30 days to produce a written
work product in each complaint. The draft is peer reviewed, reviewed by
the Team Lead, and reviewed and signed by the Division Director.
Additionally, all findings of discrimination are reviewed and signed by
the Assistant Secretary for Civil Rights.
For employment complaint processing, USDA/OASCR staff only conducts
legal sufficiency reviews of ROIs, resulting from investigations
completed by contractors. Furthermore, Federal employees are compelled
to respond timely to inquiries/affidavits. Unlike employment staff,
USDA Program Investigators are required to conduct inquiries and obtain
affidavits from external stakeholders, who are not compelled by EEO
timelines. Additionally, USDA investigators are responsible for
completing an investigation, drafting the ROIs, as well as review of
ROIs to meet legal sufficiency standards. Program investigations often
requires a more extensive implementation in review of practices,
policies, and regulations involving multifaceted USDA programs
available to the public.
Finding 2: OASCR Needs to Strengthen Oversight of Civil Rights
Complaint Processing by FNS and Rural Development
Based on established agreements, FNS and HUD process certain civil
rights program complaints. However, similar to Finding 1, these
agencies did not timely resolve program complaints. Specifically,
between October 1, 2016, and June 30, 2019, FNS took an average of more
than 220 days and HUD took an average of more than 600 days to process
complaints referred to them by OASCR--including two cases that were not
resolved until after 1,700 days. This occurred because OASCR did not
implement or update effective processes to monitor and track the
referred complaints. Without adequate oversight, OASCR cannot ensure
that agencies promptly or appropriately resolve complaints in
compliance with relevant directives and guidance. When complaints are
not resolved timely, complainants potentially miss opportunities to
participate in or receive program benefits, which in turn can diminish
the public's confidence in USDA programs.
USDA entered into agreements to coordinate program complaint
processing activities with FNS and HUD for select areas of purview.
According to the agreement with FNS, OASCR refers any program
complaints relating to FNS programs to FNS officials to evaluate and
process the complaints within 180 days. Similarly, USDA's agreement
with HUD states that USDA will refer any complaints relating to
potential FHA violations to HUD, with Rural Development serving as an
intermediary between OASCR and HUD. However, USDA's agreement with HUD
did not include any complaint processing timeframes. This coordination
allows subject matter experts to process complaints pertaining to their
respective areas. From the beginning of FY 2017 to June 30, 2019, USDA
closed a total of 911 program complaints. FNS processed, investigated,
and closed 332 of the 911 program complaints. Additionally, OASCR
referred 208 of the 911 program complaints to HUD for processing during
this time. Therefore, more than 59 percent of all civil rights program
complaints closed during this time were processed under the agreements
with FNS and HUD.
Although OASCR coordinates complaint processing with FNS and HUD,
OASCR retains responsibility, oversight, and final authority for these
complaints. Therefore, as part of these agreements, OASCR is required
to conduct audits, reviews, and evaluations of FNS. The agreements also
state that OASCR must have annual meetings with HUD, maintain a
cumulative list of FHA-related allegations, and monitor the status of
these complaints. These oversight activities help ensure that all
complaints are handled and resolved in accordance with statutory,
regulatory, and policy requirements.
During our audit period, we determined that FNS and HUD did not
timely resolve complaints. OASCR's agreement states that FNS must
process, investigate, and resolve referred program complaints within
180 days. However, according to PCMS, FNS processed and resolved its
complaints, on average, within 222 days--one complaint took 1,777 days
to resolve.
Unlike its agreement with FNS, USDA's agreement with HUD does not
include any timeframes for resolving program complaints. However, we
still identified complaints that were not resolved timely. According to
PCMS, these complaints were resolved on average within 604 days--and
one complaint was not resolved for 1,722 days.
In our view, FNS' processing times could improve with OASCR
oversight. OASCR is responsible for ensuring that all program
complaints are resolved in accordance with requirements--including
promptness. However, OASCR stopped conducting audits, reviews, and
evaluations of FNS in October 2017--the same year that OASCR also
discontinued assessments of agency heads and compliance reviews for all
USDA agencies. (See Finding 6.) According to an OASCR official, rather
than implement a formal oversight mechanism, OASCR informally met with
the FNS civil rights director in conjunction with OASCR's monthly
meetings that are attended by all other Departmental civil rights
directors. However, the OASCR official was not able to provide evidence
of discussions specifically related to oversight of FNS.
USDA's ability to accurately and timely resolve complaints
involving housing-related programs and activities is dependent on Rural
Development's processes. OASCR does not communicate directly with HUD.
Rather, Rural Development's Civil Rights Office acts as an intermediary
between OASCR and HUD. OASCR officials acknowledged that processing
times for these complaints were untimely due to its lack of oversight
of Rural Development. To improve processing and complaint resolution,
OASCR officials told us they implemented quarterly meetings in 2017
with Rural Development and obtained quarterly status reports of the
civil rights complaints USDA had referred to HUD. While we agree that
this line of communication and these reports are important oversight
tools, it is still insufficient on its own; as Figure 2 indicates, we
did not see considerable improvement in processing times for complaints
referred to HUD through Rural Development after OASCR officials
implemented the quarterly status updates. We understand that some
complaints are more complex and may take longer to resolve--
particularly with an inter-departmental arrangement. Based on OASCR's
results of the analysis recommended in Finding 1, OASCR should update
the complaint processing timeframes in the agreements with FNS and HUD
to accommodate challenges in timely resolving complaints.
Additionally, the agreement with HUD should specify OASCR's
responsibilities to oversee Rural Development's role in processing
complaints. In the event of any revised timeframe, OASCR should resume
its oversight role as established in the agreement by reviewing FNS'
and HUD's complaint processing through audits, reviews, or evaluations.
OASCR's oversight of complaint resolution is critical to ensuring that
complaints are resolved in accordance with Departmental and Federal
requirements. Additionally, with regular oversight, OASCR should be
able to identify developing issues better--such as untimely
resolution--and work with FNS, HUD, and Rural Development to take
corrective action.
FNS and HUD processed more than 59 percent of all USDA civil rights
complaints (540 of 911) during the period of our audit. In light of
this high volume, there is a strong need for OASCR to oversee FNS',
HUD's, and Rural Development's civil rights processing activities in a
more formal manner. Ultimately, OASCR is responsible for ensuring
equitable and fair treatment in USDA programs. When complaints are not
resolved timely, complainants potentially miss opportunities to
participate in or receive program benefits, which in turn can diminish
the public's confidence in USDA programs and the Department's
commitment to resolve complaints in a timely manner. By establishing
timeframes in the agreements and implementing effective controls over
FNS', Rural Development's, and HUD's complaint processing
responsibilities, OASCR can help ensure complaints are handled
appropriately and timely.
OIG Recommendation 5
Revise and update the Memorandum of Understanding with FNS with
timeframes for processing complaints based on OASCR's analysis (see
Recommendation 1) to ensure program complaints are processed in a
timely manner.
OASCR Response to Recommendation 5
OASCR updated and executed the Memorandum of Understanding with FNS
on June 2, 2021 (See attached FNS MOU--OIG Exhibit 1).
OIG Recommendation 6
Revise and update the Memorandum of Understanding with HUD with
timeframes for processing complaints based on OASCR's analysis (see
Recommendation 1) to ensure program complaints are processed in a
timely manner.
OASCR Response to Recommendation 6
The current MOU with HUD (attached OIG Exhibit 2) was executed on
July 11, 1998. USDA and OASCR have undergone significant organizational
changes since that time which necessitate revisiting the HUD MOU. OASCR
will implement a process to exact timely completed housing complaints
referred to HUD and update the MOU accordingly.
OIG Recommendation 7
Revise and update the Memorandum of Understanding with FNS to
implement effective controls over FNS, such as conducting audits or
compliance reviews, on a recurring basis to evaluate FNS' complaint
process and improve the timeliness of complaints referred to FNS.
OASCR Response to Recommendation 7
See attached FNS MOU[.]
OIG Recommendation 8
Revise and update the Memorandum of Understanding with HUD to
implement effective controls over Rural Development, such as conducting
audits or compliance reviews of Rural Development, on a recurring basis
to evaluate Rural Development's complaint process and improve the
timeliness of complaints referred to Rural Development.
OASCR Response to Recommendation 8
During the timeframe reviewed by OIG, OASCR's Program Complaints
Division (PCD) monitored HUD referred complaints with limited
accountability in communications with Rural Development (RD). In FY
2019, PCD shifted priorities and established a quarterly review with RD
of all complaints maintained with HUD. PCD provides an excel report of
HUD referred complaints from PCMS to the RD Civil Rights Director who
in turn updates the status of HUD complaints.
OASCR's beginning FY 2020 HUD referral inventory (PCMS Fact-
Finding) was 94 complaints (Average Age 388 days). Over the last year
this inventory has been reduced by \1/3\ (60). The average age of these
complaints is 297 days (<1yr) and continues to decrease each month.
OASCR will continue to monitor and prioritize communication with RD for
accountability purposes. While PCD has not been tasked with monitoring
the status of HUD complaints it will ensure these matters are handled
timely and in accordance with the MOU requirements. In addition, OASCR
will collaborate with the Rural Development Civil Rights Director to
amend the existing MOU to be compliant with processing and data entry
requirements for housing complaints.
Finding 3: [Redacted]
[Redacted].*
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* Editor's note: the redactions encompass pages 10-14.
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Finding 4: OASCR Needs to Strengthen Its Procedures to Ensure Complaint
Determinations and Closures Are Adequately Supported and
Processed
OASCR did not ensure that complaint determinations and closures
were adequately supported and processed for 9 of the 28 complaints of
discrimination we reviewed in our sample.50-51 ** This
occurred because, although OASCR performs second-level reviews at
several stages in the complaints process, Departmental guidance did not
include adequate procedures to document the results of these reviews.
Therefore, OASCR officials cannot demonstrate that they have provided
effective oversight to ensure that complaint determinations and
closures are appropriate, which can erode public trust in USDA's
complaint resolution process.
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** Editor's note: the OASCR submitted document contained OIG's
original footnote references, it has been reproduced herein as
submitted.
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OASCR is responsible for investigating, making determinations for
all discrimination complaints, and notifying the complainant of their
final determination.\52\ ** OASCR's PCD receives complaints from
persons alleging discrimination in USDA programs, and, based on Federal
civil rights laws and regulations, PCD will determine whether to:

1. administratively close the complaint,

2. refer the matter to the respective agency for review and
processing as a programmatic referral, or

3. investigate the issues raised in the allegation of
discrimination.

When a complaint is accepted, an investigation will result in
either an ROI or recommendation for closure. For matters that are
investigated, investigators gather facts and evidence--which are
compiled into the case file--and summarize the results of the
investigation in an ROI. Once the Investigations Division Chief reviews
and approves the ROI for completeness, the ROI is forwarded to the
Adjudication personnel to develop its FAD as to whether discrimination
occurred based on the merits of the allegations. (See the Background
section of this report for a more detailed explanation of OASCR's
discrimination complaint processing.) For each allegation, Adjudication
personnel must weigh the information contained in the ROI and develop a
FAD of whether discrimination occurred based solely on the record of
evidence and facts presented in the ROI. Therefore, the ROI must
support the FAD's analysis and conclusions.
However, our analysis disclosed that actions pertaining to 9 of the
28 complaints of discrimination in our sample were not adequately
supported or processed. For these nine complaints, we identified issues
with five FADs and four administrative closures.
Final Agency Decisions
We concluded that OASCR did not adequately support or process five
of the ten FADs in our sample in accordance with Departmental guidance.
For example, for two of the five FADs, we determined the analysis OASCR
personnel performed to support its determinations was incorrect,
specifically documentation did not support the conclusion noted in the
FAD. In each of the two instances we identified, OASCR performed
multiple second-level reviews of the FAD. However, the reviews did not
identify the erroneous analysis performed. When we discussed these
errors with OASCR officials, they acknowledged the errors in the
analysis. However, OASCR concluded that there was sufficient evidence
to support the overall determinations, when considered in totality. We
acknowledge that OASCR based its determinations on the totality of
evidence and make no assessment to the correctness of OASCR's
determinations. However, OASCR must also ensure that the analyses that
justify determinations are accurately presented and supported by the
ROI, as required.
Second, OASCR inadequately processed three of the five FADs. For
example, in some instances, we discovered that OASCR allowed the
introduction of new issues at the adjudication stage that were not
cleared as part of OASCR's investigation. We acknowledge that internal
procedures allow the Adjudication staff to return a case file for
supplemental investigative work on a case-by-case basis. However, to
ensure the integrity of its determinations are not questioned, it is
important that OASCR adequately process its complaints and collect
sufficient evidence to support agency determinations. As such, when a
new issue is introduced, OSCAR should return the complaint to the
Investigations Division to investigate the complaint and obtain
sufficient facts and evidence.
By allowing Investigations staff the opportunity to ensure
sufficient evidence has been collected to support both the complainant
and the agency, OASCR can ensure its processes maintain the appearance
and actuality of neutrality, independence, and objectivity.
Administrative Closures
We also determined that 4 of 18 administrative closures were not
adequately supported or processed. Specifically, we noted that key
documentation included in the case file was incorrect or missing. These
discrepancies were missed, even though they should have been identified
during the second-level review of the case file. OASCR acknowledged
that personnel used the wrong letter template when notifying the
complainant and that the error should have been identified during the
second-level review of the recommendation for closure. However, in this
second-level review, PAD is only required to review the recommendation
for closure to evaluate if PAD agreed with the decision to close the
complaint. OASCR officials agreed that the statements used to support
its determinations needed to be adequately supported by the evidence in
the case file so that their decisions are not challenged or questioned.
These issues occurred due to the lack of consistency and depth of
the second-level reviews being performed. OASCR has procedures to
conduct second-level reviews at each stage of the complaint process to
ensure complaints are adequately supported and processed. OASCR
instituted these reviews based on recommendations from previous OIG
reports. However, it was unclear: (1) whether OASCR consistently
implemented these reviews, (2) how OASCR documented the reviews, or (3)
how effective the reviews have been. To address these shortcomings,
OASCR needs to evaluate its current review process and procedures
performed within the case files to: (1) identify and address why
reviews are not discovering the discrepancies noted within this
finding, and (2) ensure OASCR properly processes case files.
A prior GAO audit recommended that OASCR obtain an expert,
independent, and objective legal examination of the basis, quality, and
adequacy of a sample of USDA's prior investigations and decisions on
civil rights complaints, along with suggestions for improvement. In
response, USDA created a task force in 2009 that reviewed a large
number of previous case files; this task force identified that further
processing was warranted for about 3,800 complaints. While the task
force's large-scale quality control review evaluated cases at that
time, OASCR should incorporate ongoing, periodic quality control
reviews of a sample of case files.
We recommend that OASCR evaluate the procedures for documenting
reviews performed at each stage of the complaint process to ensure
facts and events are presented accurately and appropriately.
Considering USDA's long history of discrimination complaints, it is
critical that OASCR adequately support its determinations. When OASCR
administratively closes a case file without proper documentation to
support the action taken, complainants may not receive the appropriate
consideration from the Department on their complaint of discrimination.
By improving OASCR's review process to ensure documentation
appropriately justifies the actions taken, OASCR can better build up
public trust and ensure that complainants are given fair consideration
in the resolution of their complaints.
OIG Recommendation 14
Evaluate procedures for documenting reviews performed at each stage
of the complaint process to ensure facts and events are presented
accurately and appropriately.
OASCR Response to Recommendation 14
Unlike other Federal agencies, USDA provides approximately 300
programs to the public ranging from nutrition, farm subsidies, rural
housing and utilities, forest management, conservation practices, etc.
It is OASCR's responsibility to ensure these programs are not
administered discriminately and are accessible to all--not to supplant
or supersede calculations and/or technical determinations made by
Agency subject matter experts. Currently, division specific checklists
are utilized throughout the Program Directorate (see attached PAD
Checklist). However, these checklists are utilized on an individualized
case by case basis for each specialist prior to producing a work
product. The proposed checklist would identify what should be included
in each acceptance letter, ROI, and FAD for an end user to audit
annually. The checklists are currently in place for manual
implementation of data integrity verification. This process will also
be automated within CRMS to support accuracy and consistency.
OIG Recommendation 15
Revise internal procedures to require that case files are returned
to Investigations to document the review of the ROI by PCD for
sufficient facts and evidence collected by Investigations when a new
issue is introduced after the investigation is completed and the ROI
has been approved.
OASCR Response to Recommendation 15
At present, OASCR has determined if additional issues are
identified during the course of the investigation, the Program
Complaints Division will issue an amended acceptance letter. In
accordance with Departmental Manual 4330-001, the Program Adjudication
Division will make determinations with respect to each allegation
identified in the Report of Investigation. If the Program Adjudication
Division determines the ROI contains sufficient facts/evidence to
introduce a new issue, the Program Adjudication Division will seek
concurrence from the Program Complaints Division Director. If there are
insufficient facts/evidence to address the new issue, the Program
Adjudication Division will return the complaint to the Program
Complaints Division for a supplemental investigation.
OIG Recommendation 16
Establish and maintain a system of quality control that is designed
to periodically review a sample of case files to ensure evidence to
support OASCR's determinations and closures is adequate, accurate, and
documented.
OASCR Response to Recommendation 16
OASCR accepts this recommendation. A second level review of data is
currently conducted by each division. To further ensure the complaints
are being processed as efficiently as possible, a comprehensive ``end-
of-case'' checklist will be developed, and a random sampling of cases
will occur on an annual basis, starting in the 4th quarter of this
fiscal year. OASCR will incorporate an in-depth quality control system
into its process pending additional staffing resources allocated to the
Program Directorate. OASCR management provided proposed justifications
for increases in staffing and funding based upon a need for improved
efficiency, change in demand, policy direction changes, improved
customer service and reduced risks in the FY 2023 budget cycle.
OASCR prefers keeping the review process within the organization as
to limit ceding any delegated authority. However, the independent
review process could be delegated to the new Equity Commission to be
done quarterly.
Finding 5: OASCR Needs to Strengthen its Oversight Efforts of USDA
Agencies
OASCR missed an opportunity to track and measure USDA's civil
rights progress. There are two oversight tools to help assess agencies'
compliance with civil rights requirements: agency head assessments and
compliance reports. These require input from both agencies and OASCR.
However, these reviews were not being completed. This occurred because
OASCR directed USDA agencies to stop completing required reports and
stopped reviewing agency compliance reports due to limited resources,
but did not implement alternative controls. These civil rights reports
are intended to provide OASCR with vital data concerning whether
agencies are fairly and equally administering USDA programs. Without
them, OASCR cannot effectively fulfill its oversight role, or identify
and correct areas of concern in how USDA agencies handle civil rights
issues.
Federal regulations require that OASCR oversee USDA agencies'
efforts to conduct USDA programs fairly and equally by monitoring two
reports--agency head assessments and agency compliance reports. OASCR
is required to review agencies' annual civil rights performance plan
and accomplishment reports and rate their accomplishments through an
agency head assessment. In addition, OASCR is required to review
agencies' compliance reviews and issue compliance reports that monitor
agency compliance efforts. These assessments, when implemented
properly, are designed to help OASCR determine if agencies are adhering
to the Department's civil rights regulations and policies.
Despite these requirements, OASCR did not fulfill its oversight
responsibilities to ensure that agencies were fairly and equally
administering USDA programs.
Agency Head Assessment
Agencies are required annually to review their civil rights
activities and accomplishments by assessing objectives such as
accountability, diversity, and non-discriminatory program delivery, and
submitting a civil rights performance plan and accomplishment report to
OASCR. The report establishes civil rights goals, objectives, and
measurable outcomes which agencies use to assess their activities.
OASCR is then required to review agencies' reports and assessments
before providing agencies with a civil rights accomplishment rating.
Both agencies' and OASCR's reviews constitute the agency head
assessment.
Agencies' civil rights performance plan and accomplishment reports
are divided into goals, performance objectives, and related
indicators--or actions that agencies should take to measure progress
towards each objective and address USDA's regulations, policies, and
strategic goals. This report provides agencies with measurable
milestones that can help them accomplish their goals--such as timely
resolution. See below for an example of a goal, performance objective,
and related indicator.
Compliance Reports
Like agency head assessments, compliance reports need to occur at
both the agency and Departmental level. Unlike the agency head
assessments, which evaluate the agency's overall compliance with civil
rights requirements, compliance reports focus on targeted, potential
areas of concern at the local office level. First, according to
Departmental regulations, agencies must conduct compliance reviews to
ensure that they are managing and administering programs and activities
without discrimination. Second, Federal regulation states that OASCR
must: (1) oversee the compliance reviews and evaluations, and issue
compliance reports that monitor compliance efforts, and (2) monitor all
findings of non-compliance to ensure they are corrected. Similarly,
OASCR must conduct its own compliance reviews of agencies and their
programs and activities, and monitor compliance review activity within
agencies.
We identified deficiencies during the period of our review at both
the agency and OASCR level. First, we determined that agencies did not
always take the necessary action to submit reviews; and second, OASCR
did not track whether agencies were conducting compliance reviews. For
example, agencies did not submit proposed compliance review schedules--
a preliminary step in the compliance report process--the majority of
the time. However, even when agencies did submit schedules, OASCR did
not follow up with agencies to determine if the agencies had conducted
the scheduled reviews. In addition, OASCR has not conducted its own
compliance reviews or issued any compliance reports since 2017.
Although OASCR officials stated that they would develop standard
operating procedures and begin conducting compliance reviews in CY
2020, as of February 2021, OASCR had not conducted any compliance
reviews.
This occurred because, in October 2017, in an effort to reduce
redundancies and inefficiencies, OASCR directed agencies to stop
conducting agency head assessments. OASCR also ended its review of
agency compliance reports. According to an FNS official, completing the
agency head assessment was ``extremely resource-intensive,'' and OASCR
wanted to allow agencies to focus their efforts on achieving civil
rights compliance rather than reporting on it. OASCR officials also
stated that the compliance reviews required considerable resources and
time but agreed that, in some capacity, OASCR needs to conduct
compliance reviews. OASCR officials stated that because OASCR already
reviewed existing reports such as the MD-715, Form 462, and No FEAR
reports, it was assessing the agencies' compliance and performance.
However, because these existing reports only assess agencies' internal
employment civil rights activities performance, they are not a
replacement for assessing agencies' program civil rights practices with
external stakeholders.
While we acknowledge time and resource constraints, OASCR needs to
identify alternative methods and implement these critical oversight
controls over USDA agencies. Ultimately, OASCR is responsible for
overseeing USDA agencies' efforts to conduct USDA programs fairly and
equally. Agency-submitted assessments and reports contain valuable
performance information that OASCR could have used to ensure agencies
are achieving program goals and objectives set by the Department's
civil rights regulations and policies. If OASCR does not require
agencies to assess and report on their civil rights compliance, the
responsibility for gathering oversight information falls upon OASCR.
However, if OASCR were to require agencies to submit civil rights
reports and assessments, OASCR could develop a methodology to regularly
review agencies based on program complaints, settlements or findings of
discrimination, and other risk factors identified in agency
assessments. OASCR officials agreed that it was necessary to implement
an effective method to assess agencies' compliance with program civil
rights activities.
Ultimately, by effectively implementing oversight controls, such as
agency head assessments and compliance reviews, OASCR can move from a
reactive to a proactive position in addressing potential civil rights
violations. For example, OASCR's compliance division currently is
required to follow up on corrective actions after individual complaints
are resolved. By assessing agencies' civil rights activities
performance, in addition to individual allegations presented in
complaints, OASCR could further evaluate and monitor other civil rights
processing activities to see if this was a widespread or repeated
occurrence and potentially prevent future non-compliances. Furthermore,
with information collected from agency head assessments and compliance
reviews, OASCR can provide the Department with valuable information to
help USDA take steps towards improving civil rights activities, when
necessary.
OIG Recommendation 17
Require agencies to assess their program effectiveness and
compliance with the Department's civil rights regulations and policies
and, furthermore, oversee these agency assessments.
OASCR Response to Recommendation 17
From 2005 to 2017, OASCR conducted annual assessments of agency
civil rights performance to determine the effectiveness and adherence
to the Department's civil rights policies and regulations by each USDA
agency in accordance with 7 CFR Part 15d (Nondiscrimination in programs
or activities conducted by the USDA and Departmental Regulation 4300-
010, Civil Rights Accountability Policy and Procedures). In 2017, the
Office of the Secretary directed OASCR to end the annual assessment
process so as to allow USDA agencies to focus on their civil rights
efforts. OASCR is revising the agency head assessment request to be
less cumbersome and focused on civil rights accomplishments and
challenges within the agencies.
OIG Recommendation 18
Develop new controls to review the agency assessments and identify
factors that could warrant further review of agencies and their civil
rights practices.
OASCR Response to Recommendation 18
OASCR will ensure any new agency assessment procedure incorporates
quality and quality review methodologies.
OIG Recommendation 19
Develop and implement a process to select USDA agencies and program
offices for compliance reviews (on a recurring basis) based on program
complaint activity, set elements or findings of discrimination, and
other risk factors identified in agency assessments.
OASCR Response to Recommendation 19
OASCR led a task force designed to amend USDA's Departmental
Regulation (DR) which provides guidance and instructions on Civil
Rights Compliance Reviews. The team consisted of representation from
Mission Areas, agencies, and key staff offices. The DR specifically
establishes USDA's policies and procedures for conducting civil rights
compliance reviews of all USDA federally conducted and federally
assisted programs and employment activities. The DR has been submitted
to the Department for review and clearance. Once cleared by the
Department the following criteria will be required of OASCR, Mission
Areas, agencies and staff offices:
CCRO will reignite its compliance review program by serving as
embeds with mission area and agency civil rights directors. The
decision to conduct a compliance review will be based on neutral
criteria or evidence of a violation. Criteria to be considered in a
compliance review include:

1. Issues identified for special attention in strategic plans,
annual work plans, plans of operations, etc.;

2. Issues frequently identified as problems faced by program
applicants and participants;

3. Geographic areas where problems have been identified or
geographic areas in which there has been little compliance
activity;

4. Issues raised in complaints or identified during examination of
complaints that could not be fully covered within the scope
of the complaint examination process;

5. Issues or problems raised by community groups, advocates,
Congressional inquiries, and fact-finding examinations;

6. Issues flagged by the agency head or regional and state
leadership officials;

7. Issues and problems identified by other Federal, state, or local
civil rights agencies;

8. Routine review cycle driven by the need to review all programs
and activities on a regular schedule; and

9. Required as a result of terms required in a settlement agreement
or a finding of discrimination.

In addition, the DR requires the ASCR, amongst other actions, to:

1. Require Mission Areas, agencies, and staff offices to provide an
annual listing of proposed fiscal year compliance reviews
and/or desk audits. This listing will be provided to OASCR
no later than October 31st each fiscal year;

2. Select by November 30th of each fiscal year two or three Mission
Areas, agencies, or staff offices' compliance activity to
monitor and provide oversight; and

3. Conduct a Mission Area, agency, or staff office compliance
review, desk audit or fact-finding review based on current
events, issues identified through Civil Rights Impact
Analysis, Congressional reviews or items identified in the
criteria cited above.
Finding 6: OASCR Needs to Assess Progress Towards Established Goals and
Objectives
Although OASCR developed its Strategic Plan FY 2016-2020, it did
not use the plan to measure or assess its progress toward established
goals and objectives relating to program complaints. This occurred
because OASCR management did not establish specific ways to: (1)
monitor performance measures and indicators, (2) perform periodic
reviews and regularly update the plan, and (3) report on actual
performance compared to its goals and objectives. Using the performance
measures provided in the strategic plan could have helped OASCR avoid
shortcomings identified in this report. Because OASCR has not
established measurable and implementable measures, OASCR officials
cannot determine whether they are achieving intended goals and
objectives. This further hinders OASCR's ability to make well-informed
decisions and improve the program complaint process.
The Government Performance and Results Act (GPRA) requires agencies
to develop a strategic plan, set performance goals, and annually report
on actual performance compared to goals. GPRA also requires agencies to
use performance indicators to measure or assess progress toward
established goals. Similarly, GAO states that management should
establish activities to monitor performance measures and indicators.
OASCR's Strategic Plan FY 2016-2020 encourages periodic performance
review sessions as an essential part of strategic planning--at least
quarterly. Management can use the results of these performance reviews
to assess and analyze how the agency is doing and, if necessary, make
decisions and reprioritize due to changing resources, evolving
stakeholder needs, or other new realities.
In 2008, GAO reported that OASCR's strategic planning was limited
and did not address key steps needed to achieve its mission. According
to GAO, results-oriented organizations follow three key steps in their
strategic planning: (1) they define a clear mission and desired
outcomes, (2) they measure performance to gauge progress, and (3) they
use performance information for identifying performance gaps and making
program improvements. Accordingly, GAO recommended that OASCR develop a
results-oriented, Department-level strategic plan for civil rights that
unifies USDA's approach with OASCR. GAO specified that the plan should
be transparent about USDA's efforts to address stakeholder concerns.
In response, OASCR developed a strategic plan that provides goals,
outcomes, and performance indicators that monitor the programs,
policies, and services that OASCR administers in an effort to produce
results and improve the organization's performance. In addition, the
performance indicators measure performance against the strategies for
each outcome, and inform management whether it is achieving the desired
result. OASCR's Strategic Plan FY 2016-2020 included three strategic
goals, two of which were relevant to our audit:

We concluded that OASCR did not use the plan as a tool to measure
or assess progress towards Goals 1 and 3 and their respective
objectives, performance indicators, and strategies.
Specifically, OASCR did not adequately address 13 of the 14
performance indicators and strategies to measure or assess progress
toward established goals. (For a full list and explanation, see Exhibit
A.) OASCR personnel explained the processes they have in place that
could be used to satisfy performance measures and indicators in the
strategic plan. However, after reviewing these processes, we found that
they did not completely address indicators and strategies to achieve
specific goals. Overall, the issues we identified in this report could
have been mitigated had OASCR used its strategic plan to monitor
progress and to establish strong internal controls.
Timeframes for Civil Rights Complaint Processing
In Goal 1 of its strategic plan, OASCR established a performance
indicator, baseline, and target data for the number of days to process
program complaints at each stage in the process: intake, investigation,
and adjudication. The expected outcome was that timeframes for civil
rights complaint processing be consistent with statutory and regulatory
requirements. However, as identified in Findings 1 and 2 of this
report, both OASCR and agencies it coordinated with to process
complaints did not meet these timeframes.
[Redacted].
Program Complaint Processing Audits
Goal 1 of OASCR's strategic plan also established a performance
indicator to implement a program complaint processing audit in the
fourth quarters of FYs 2017 and 2019.
OASCR instructed the staff units (Intake, Investigations, and
Adjudication Divisions) to use a checklist to conduct a self-assessment
of all cases on an on-going basis. However, OASCR did not consolidate
the results from each checklist into one overall report. As a result,
we determined that the checklists alone had not constituted a program
complaint processing audit. If OASCR had appropriately conducted
program complaint processing audits, OASCR might have been better
positioned to address the issues we identified in Finding 4.
Compliance Reviews
Within Goal 3 of the strategic plan, OASCR established a
performance indicator to complete 24 compliance reviews in, or by, CY
2020. As stated in Finding 5, OASCR did not conduct any compliance
reviews since 2017.
OASCR has not prioritized the strategic plan as a resource in
developing strong internal controls, since officials stated that the
strategic plan was outdated due to a 2018 reorganization and changing
priorities. We acknowledge that OASCR's priorities may have changed,
and its strategic plan became outdated. In this instance, officials
should have reprioritized and revised the plan accordingly to include
performance measures to assist the agency in meeting desired outcomes.
OASCR should regularly review its strategic plan and update it to
reflect the current environment and its priorities.
OASCR officials further added that the goals were incorporated into
their everyday processes. However, OASCR management did not establish
specific ways to: (1) monitor performance measures and indicators, (2)
perform periodic reviews and regularly update the plan, and (3) report
on actual performance compared to its goals and objectives. Until OASCR
utilizes the strategic plan as a tool to regularly monitor and achieve
its goals, it may not accurately measure its performance, identify
points of concern, and strategically develop a course of action to
address these issues. A results-oriented strategic plan provides a road
map that clearly describes what an organization is attempting to
achieve. It can also serve as a focal point for communication with
Congress and the public about what OASCR and USDA agencies have
accomplished. By implementing the goals, objectives, and performance
indicators in a plan, OASCR can monitor measurable outcomes, identify
points of weakness, and develop courses of action to address identified
issues.
OIG Recommendation 20
Develop and implement a process to perform periodic reviews of the
strategic plan and regularly update the strategic plan.
OASCR Response to Recommendation 20
OASCR has revised its strategic plan for FY 2020-2024 to reflect
the goals and priorities of the current political leadership. The
Deputy Assistant Secretary for Civil Rights and the Associate ASCR are
involved in the drafting of the USDA Strategic Plan to include a civil
rights/racial equity goal. OASCR Strategic Plan must link to the new
USDA plan scheduled for release Q2 of FY 2022 before OASCR can release
its separate strategic plan.
OIG Recommendation 21
Establish a mechanism to measure performance against established
goals and report on actual program activity performance data.
OASCR Response to Recommendation 21
The revised OASCR Strategic Plan will include key performance
measures and objectives linking directly to programmatic activity. In
addition, by the end of FY 2021 OASCR, will launch a Civil Rights
dashboard to provide real-time data to the Secretary on employment and
program complaint activity.

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In accordance with Federal civil rights law and U.S.
Department of Agriculture (USDA) civil rights regulations and
policies, the USDA, its Agencies, offices, and employees, and
institutions participating in or administering USDA programs
are prohibited from discriminating based on race, color,
national origin, religion, sex, gender identity (including
gender expression), sexual orientation, disability, age,
marital status, family/parental status, income derived from a
public assistance program, political beliefs, or reprisal or
retaliation for prior civil rights activity, in any program or
activity conducted or funded by USDA (not all bases apply to
all programs). Remedies and complaint filing deadlines vary by
program or incident.
Persons with disabilities who require alternative means of
communication for program information (e.g., Braille, large
print, audiotape, American Sign Language, etc.) should contact
the responsible Agency or USDA's TARGET Center at (202) 720-
2600 (voice and TTY) or contact USDA through the Federal Relay
Service at (800) 877-8339. Additionally, program information
may be made available in languages other than English.
To file a program discrimination complaint, complete the USDA
Program Discrimination Complaint Form, AD-3027, found online at
How to File a Program Discrimination Complaint and at any USDA
office or write a letter addressed to USDA and provide in the
letter all of the information requested in the form. To request
a copy of the complaint form, call (866) 632-9992. Submit your
completed form or letter to USDA by: (1) mail: U.S. Department
of Agriculture, Office of the Assistant Secretary for Civil
Rights, 1400 Independence Avenue, SW, Washington, D.C. 20250-
9410; (2) fax: (202) 690-7442; or (3) email:
program.intake@usda.gov.
USDA is an equal opportunity provider, employer, and lender.
______

Supplementary Material Submitted by Hon. Phyllis K. Fong, Inspector
General, U.S. Department of Agriculture, Office of Inspector General
Insert 1
Ms. Adams. Okay. Your office reviewed a sample of 48 case
files, 28 of which were part of the 911 complaints closed
between October 1, 2016, and June 30 of 2019. What kinds of
cases were these? Race, gender, disability, discrimination, and
what agencies? Was it Farm Service, Food and Nutrition, were
these 48 cases for?
Ms. Fong. I do not have that data specifically. Gil, would
you like to comment, or should we get that information for you?
Mr. Harden. What I was going to ask is if you would allow us
to pull that data from our work. We can give you a very
specific answer as to what made up the cases that we looked at.

We non-statistically selected a total of 28 complaints to review
based on complainant category types \1\ and the percentage the category
type represented in the universe. In summary, we sampled a total of 28
complaints from the following agencies: Food and Nutrition Service (4),
Forest Service (2), Farm Service Agency (5), Natural Resource
Conservation Service (3), and Rural Development (14). As requested, the
basis for complaint is described below for each complaint:
---------------------------------------------------------------------------
\1\ The 15 categories for complaints include: duplicate record,
failure to cooperate, failure to pursue, failure to pursue closed
letter/withdrawal, failure to state a claim, filed in court, finding,
HUD decision, lack of jurisdiction, no finding, programmatic referral,
referral to other government agency, settlement, untimely filing, and
withdrawal.

------------------------------------------------------------------------
Sample # Agency Protected Bases
------------------------------------------------------------------------
1 Food and Nutrition Service Disability
2 Food and Nutrition Service Age
3 Food and Nutrition Service Disability
4 Food and Nutrition Service Sex, Age, Color
5 Forest Service Race, National Origin
6 Forest Service Disability
7 Farm Service Agency Race
8 Farm Service Agency Race
9 Farm Service Agency Age
10 Farm Service Agency Disability, Race, Sex
11 Farm Service Agency Retaliation
12 Natural Resources Race, Sex, Color, National
Conservation Service Origin
13 Natural Resources Race, Sex, Age
Conservation Service
14 Natural Resources Disability, Retaliation
Conservation Service
15 Rural Development Disability
16 Rural Development Disability
17 Rural Development Income Derived
18 Rural Development Race, Color, National Origin
19 Rural Development Disability, Age
20 Rural Development Race
21 Rural Development Race
22 Rural Development Race
23 Rural Development Sex
24 Rural Development Disability
25 Rural Development National Origin
26 Rural Development Disability
27 Rural Development Disability, Marital Status
28 Rural Development Race
------------------------------------------------------------------------

Insert 2
Ms. Adams. . . .
Your office identified five settlements, six findings of
discrimination in the sample of cases. What kinds of cases, in
terms of race, gender, disability, discrimination--were these?
Mr. Harden. And similarly, I would like to gather the
specific information on that and get that back to you. The
report itself focuses on the process as opposed to the
individual cases, so I don't have that right in front me.

The kinds of cases as bases for the five settlements were:

------------------------------------------------------------------------
Sample # Protected Bases
------------------------------------------------------------------------
15 Disability
18 Race, Color, National Origin
22 Race
23 Sex
24 Disability
------------------------------------------------------------------------

The kinds of cases as far as bases for the six findings were:

------------------------------------------------------------------------
Sample # Protected Bases
------------------------------------------------------------------------
1 Disability
3 Disability
5 Race, National Origin
7 Race
8 Race
14 Disability, Retaliation
------------------------------------------------------------------------

Insert 3
Mr. Rush. Ms. Fong, I have also heard multiple reports of
outright hostility at local ag field offices toward Black
farmers. Did the OIG's report drill down into the geographic
distribution of complaints, and if so, were there any specific
recommendations that were made by state or regional offices?
And if not, is that something that will be possible for the
Department to research and issue a report on? I think we might
create a bright light on the attitudinal obstacles to fairness
that Black farmers, particularly, are experiencing at the local
level.
Ms. Fong. That is a very interesting question. I don't know
if in the sample of cases that we looked at in our audit if we
have geographical data on the distribution. I think we could
certainly take a look at that and get back to you and your
staff on that to see if we have data by state or region. And I
think you also raised a very interesting question looking
forward as we plan our future work, whether there is any way to
address that question if the data exists. So, we will think
about that and get back to your staff on that.

When conducting our audit, the objective was to assess OASCR's
oversight of the civil rights complaint process. Specifically, we
evaluated OASCR's controls to ensure that program complaints were
processed in accordance with applicable regulations, policies, and
procedures and resolved in a timely and efficient manner. Additionally,
we followed up on prior audit recommendations related to the program
complaint process. To address our objectives, we non-statistically
selected a total of 20 correspondences and 28 complaints to review
based on: (1) correspondence and complainant category types and (2) the
percentage the category type represented in the universe. Since the
geographic location was not part of our sampling decision, we did not
make a determination of the geographic distribution of complaints for
the entire universe. Likewise, we did not provide any specific
recommendations to state or regional offices. However, the states
involved included: Alabama, Arizona, California, Georgia, Hawaii,
Illinois, Minnesota, New Jersey, New York, North Carolina, Oklahoma,
Oregon, South Carolina, Tennessee, Texas, Washington, and West
Virginia.
Insert 4
Mr. Sablan. . . .
Inspector General Fong, I will eventually reach out to your
office for an issue with operations in my district in the
Northern Mariana Islands, and it is sometimes a difficult
relationship with the region office in Hawaii, but for today,
in your report on the USDA Office of the Assistant Secretary
for Civil Rights, OASCR, would you confirm whether civil rights
complaints from the U.S. Territories were examined?
Ms. Fong. I do not know the answer to that, whether we had
any of those complaints in our sample. If I had to say, I would
say that USDA's jurisdiction would--OASCR's jurisdiction would
extend to any USDA programs, wherever they are offered so that
the jurisdiction and the authority is there, but I don't know
if we looked at any complaints specifically from your district.
Mr. Sablan. Okay, and how do we get your office to look at
complaints, if there are any out there that have not been
looked at? We are just so isolated, so remote, and we get
looked over so many times.
Ms. Fong. We would be happy to reach out to your staff and
discuss the most effective way to do that.
Mr. Sablan. Okay, thank you.
Ms. Fong. And if you have anything else to offer, Gil, please
comment.
Mr. Harden. Yes, I was just going to offer that we can first
take a look at the 28 complaints that are in our sample just to
confirm where they are and if there are any complaints from the
Northern Mariana Islands, and also reach out and have a
discussion about concerns with complaints in that area.

Our Office of Audit confirmed that none of the 28 complaints in our
sample were from either the Northern Mariana Islands or Guam.
Insert 5
Mr. Sablan. . . .
And so, Inspector General, in your testimony, you state that
the OASCR does not evaluate and process all complaints for
USDA, and it relies on the assistance of two organizations, FNS
and HUD, these two organizations completed 59 percent of USDA's
civil rights complaints during the period that your OIG
evaluated and processed complaints more quickly than OASCR,
more than 600 days and more than 200 days on average
respectively in Fiscal Year 2019, as compared to 799 days on
average for all complaints. Why do you believe that FNS and HUD
processed complaints more quickly than OASCR?
And are there lessons from the processes that could be
applied to OASCR's process itself?
Ms. Fong. Well, I think you make a very interesting point,
that the complaints handled by FNS and HUD were handled in a
more timely manner than some of the others. I think what we
would be concerned about is that none of those timeframes
really comport with the timeframes that the agency was holding
itself to, and were much too lengthy. But Gil may have some
further insight on that.
Mr. Harden. I agree, it is a very interesting question that I
would have to go back and talk to the team and see if we have
any information that would inform discussion in that area, and
if we do, we can get back to the Congressman, either way,
whether we do or we don't.

Comparing FNS and HUD processing methods to OASCR's was not a part
of the objectives of the audit. Our objective was to assess OASCR's
oversight of the civil rights complaint process. Specifically, we
evaluated OASCR's controls to ensure that program complaints were
processed in accordance with applicable regulations, policies, and
procedures and resolved in a timely and efficient manner. Additionally,
we followed up on prior audit recommendations related to the program
complaint process.
______

Submitted Question
Response from Hon. Phyllis K. Fong, Inspector General, U.S. Department
of Agriculture, Office of Inspector General
Question Submitted by Hon. Jahana Hayes, a Representative in Congress
from Connecticut
Question. In March 2018, OIG submitted a comment in response to
USDA's Request for Information outlining the Department's proposed
realignment of the Office of the Assistant Secretary for Civil Rights
(FR Doc. 2018-05051), which indicated that OIG planned to consider
looking at the effectiveness of this realignment as part of our future
audit planning process.
Has OIG determined if such a review is appropriate? If so, please
share the timeline for the review. If not, please share OIG's reasoning
for foregoing a review of the 2018 realignment.
Answer. At this point, we have not specifically assessed USDA's
2018 reorganization of the Office of the Assistant Secretary for Civil
Rights (OASCR). However, the findings in our recent 2021 audit, reflect
that OASCR's operations, during our audit scope period and after the
reorganization, were not effective in terms of processing program
complaints timely. As we start our next engagement in OASCR to assess
the Equal Employment Opportunity Complaint Process, we will assess, as
appropriate, the impact the 2018 reorganization had over OASCR's
ability to process EEO complaints efficiently and timely. We are
scheduled to start this assignment in Fiscal Year 2022.

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