FNS Instruction 113-1

1. FNS Instruction 113-1 Civil Rights Compliance and Enforcement Nutrition Programs and Activities Issued: November 8, 2005 SERO-Civil Rights Office

2. Prior policy was conveyed through a series of 8 FNS Instructions which designated the: • 113-1, Civil Rights Compliance and Enforcement (issued May 1982), as the overarching instruction; and • sequentially numbered instructions were program-specific.

3. The recently issued FNS Instruction 113-1 • merges all of the previously independent instructions into 1 document; and • includes 4 appendices that provide program-specific guidance.

4. The Appendices are: • Appendix A: Food Stamp Program • Appendix B: Child Nutrition Programs • Appendix C: Food Distribution Programs • Appendix D: WIC and WIC Farmers’ Market Nutrition Program (FMNP) • Appendix E: Sample Complaint Forms • Appendix F: Complaint Processing and Procedures Flowchart

5. What does the recently issued 113 change? • amends certain procedures; • affords equal opportunity for religious organizations; • clearly establishes complaint handling procedures; and • is a single reference for civil rights compliance and enforcement.

6. Common Areas in Former and Current Versions • Purpose • Authority • Policy • Applicability

7. Common Areas in Former and Current Versions (continued) • Definitions • Responsibilities • Public Notification • Assurances • Civil Rights Training

8. Common Areas in Former and Current Versions (continued) • Data Collection and Reporting • Compliance Reviews • Resolution of Noncompliance • Complaints of Discrimination

9. New Sections • Limited English Proficiency (LEP) • Equal Opportunity for Religious Organizations • Appendices

10. I. PURPOSE • Establishes and conveys policy • Provides guidance and direction to USDA, FNS and its recipients and customers • Ensures compliance with and enforcement of the prohibition against discrimination in all FNS programs and activities, whether federally funded in whole or not.

11. II. AUTHORITY • Title VI of the Civil Rights of 1964 – race, color, and national origin • American with Disabilities Act – disability • Title IX of the Education Amendments of 1972 – sex • Section 504 of the Rehabilitation Act of 1973 – disability • Age Discrimination Act of 1975 – age

12. II. AUTHORITY (continued) • The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, and DOJ Memorandum dated 1/28/99, entitled, “Policy Guidance Document – Enforcement of Title VI of the Civil Rights Act of 1964 and Related Statutes in Block Grant Type Programs.” • Civil Rights Restoration Act of 1987 – clarifies the scope of the Civil Rights Act of 1964. • Food Stamp Act of 1977 – added religious creed and political beliefs as protected classes in the Food Stamp Program.

13. II. AUTHORITY (continued) • Executive Order 13166 – enforces National Origin discrimination for persons with Limited English Proficiency. • USDA Departmental Regulation 4330-2 – prohibits discrimination in programs and activities funded by USDA. • 7 CFR Part 16, Equal Opportunity for Religious Organizations – religiously affiliated organizations should be able to compete on an equal footing with other organizations for USDA assistance.

14. III. POLICYProtected Bases for FNS Programs • Race • Color • National Origin • Age • Sex • Disability • Religion (FSP) (FDPIR) • Political Beliefs (FSP) (FDPIR)

15. III. POLICY (continued) • The U.S. Department of Agriculture prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal or because all or part of an individual’s income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA’s TARGET Center at (202) 720-2600 (voice and TTY).

16. III. POLICY (continued) • Although it is the policy of the USDA to provide fair and equitable treatment to every employee and customer, there are specific laws and regulations that provide for the protected bases for each nutritional assistance program. • For this reason, sexual orientation, marital or family status, parental status, and protected genetic information are not protected bases in FNS federally assistance programs.

17. IV. APPLICABILITY • This Instruction is applicable to all programs and activities of a recipient of Federal financial assistance, whether those programs and activities are federally funded in whole or not.

18. VII. LIMITED ENGLISH PROFICIENCY (LEP) Definition: • Individuals who do not speak English as their primary language and who have a limited ability to read, speak, write, or understand English. • Recipients of Federal financial assistance have a responsibility to take reasonable steps to ensure meaningful access to their programs and activities by persons with limited English proficiency.

19. VII. LEP (continued): Factors to consider in addressing LEP: • Number or proportion of LEP persons served or encountered in the eligible population. • Frequency with which LEP individuals come in contact with the program. • Nature and importance of the program, activity, or service provided by the program. • Resources available to the recipient and costs.

20. VII. LEP (continued) For further information: www.LEP.gov

21. VIII. EQUAL OPPORTUNITY FOR RELIGIOUS ORGANIZATIONS • Ensures a level playing field for the participation of faith-based organizations and other community organizations in USDA programs.

22. VIII. EQUAL OPPORTUNITY FOR RELIGIOUS ORGANIZATIONS (continued) This is accomplished by: • prohibiting discrimination on the basis of religion, religious belief, or religious character in the administration of Federal funds; • allowing a religious organization that participates in USDA programs to retain its independence and continue to carryout its mission, provided that direct USDA funds do not support any inherently religious activities such as worship, religious instruction, or proselytization;

23. VIII. EQUAL OPPORTUNITY FOR RELIGIOUS ORGANIZATIONS (continued) • clarifying that faith-based organizations can use space in their facilities to provide USDA-funded service without removing religious art, icons, scriptures, or other religious symbols; and • ensuring that no organization that receives direct financial assistance from the USDA can discriminate against a program beneficiary, on the basis of religion or religious belief.

24. For further information: www.fbci.gov

25. IX. PUBLIC NOTIFICATION • All FNS assistance programs must include a public notification system. • The purpose of this system is to inform applicants, participants, and potentially eligible persons of: • program availability, • program rights and responsibilities, • the policy of nondiscrimination and • the procedure for filing a complaint.

26. 3 Elements of Public Notification 1. Program Availability 2. Complaint Information 3. Nondiscrimination Statement

27. 3 Elements of Public Notification 1. Program Availability Inform applicants, participants, and potentially eligible persons of their program rights and responsibilities and the steps necessary for participation. 2. Complaint Information Advise applicants and participants at the service delivery point of their right to file a complaint, how to file a complaint, and the complaint procedures.

28. 3. Nondiscrimination Statement All information materials and sources, including Web sites, used by FNS, State agencies, local agencies, or other subrecipients to inform the public about FNS programs must contain a nondiscrimination statement. The statement is not required to be included on every page of the program Web site. At a minimum the nondiscrimination statement or a link to it must be included on the home page of the program information.

29. Nondiscrimination Statement • FSP and FDPIR State or local agencies and their subrecipients must use the following statement*: “In accordance with Federal law and U.S. Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age, religion, political beliefs, or disability. To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9410 or call (800) 795-3272 (voice) or (202) 720-6382 (TTY). USDA is an equal opportunity provider and employer.” * Exception provided for the use of a joint application for FSP/HHS—see Instruction for approved language

30. Nondiscrimination Statement • All other FNS Programs, State or local agencies, and their subrecipients, must use the following statement: “In accordance with Federal law and U.S. Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age or disability. To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW, Washington, D.C. 20250-9410 or call (800) 795-3272 or (202) 720-6382 (TTY). USDA is an equal opportunity provider and employer.”

31. Methods of Public Notification • Prominently display the “And Justice for All” poster. • Inform potentially eligible persons, applicants, participants and grassroots organizations of programs or changes in programs. • Provide appropriate information in alternative formats for persons with disabilities. • Include the required nondiscrimination statement on all appropriate FNS and agency publications, Web sites, posters and informational materials. • Convey the message of equal opportunity in all photos and other graphics that are used to provide program or program-related information.

33. X. ASSURANCES • To qualify for Federal financial assistance, an application must be accompanied by a written assurance that the entity to receive financial assistance will be operated in compliance with all nondiscrimination laws, regulations, instructions, policies, and guidelines;

34. FNS will obtain a written assurance from each State agency and will ensure that State agencies obtain assurance from local agencies; and • a civil rights assurance must be incorporated in all agreements between State agencies and local agencies.

35. XI. CIVIL RIGHTS TRAINING • State agencies are responsible for training local agencies on an annual basis. • Local agencies are responsible for training their subrecipients, including “frontline staff” who interact with applicants or participants on an annual basis.

36. XI. CIVIL RIGHTS TRAINING(continued) Specific subject matter required, but not limited to: • Collection and use of data; • Effective public notification systems, • Complaint procedures, • Compliance review techniques, • Resolution of noncompliance, • Requirements for reasonable accommodation of persons with disabilities, • Requirements for language assistance, • Conflict resolution, and • Customer service.

37. XII. DATA COLLECTION AND REPORTING The purpose is to: • determine how effectively FNS programs are reaching potential eligible persons and beneficiaries, • identify areas where additional outreach is needed, • assist in the selection of locations for compliance reviews, and • complete reports, as required.

38. Collecting and Reporting Participation Data • State agencies, local agencies and other subrecipients are required to obtain data by race and ethnic category on potentially eligible populations, applicants, and participants in their program service area. • Systems for collecting actual racial and ethnic data must be established and maintained for FNS programs with the exception of certain Food Distribution Programs listed in Appendix C. • Ask all program applicants and participants to identify all racial categories that apply (per OMB guidance). • Self-identification or self-reporting is the preferred method of obtaining data.

39. In instances were racial/ethnic data is collected via online, provisions must be made for applicants/ participants to self-identify. The ability to verify this data by some manner of signing a printout, etc., must be available. Data must be collected/retained by the service delivery point for each program as specified in the program regulations, instructions, policies and guidelines. Records must be maintained for 3 years. Access restricted only to authorized personnel. Submitted, as requested to FNS. Collecting and Reporting Participation Data (continued)

40. Race and Ethnic Categories Two Question Format 1. Ethnicity: • Hispanic or Latino • Not Hispanic or Latino

41. Race and Ethnic Categories Two Question Format 2. Race • American Indian or Alaskan Native • Asian • Black or African American • Native Hawaiian or Other Pacific Islander • White

42. Race and Ethnic Categories Two Question Format • State agency may have categories for race in addition to the ones required by FNS; however, the additional categories must be mapped and extracted to the required categories. • Program applicants may not be required to furnish race or ethnicity. • Visual observation will be used when the applicant does not self-identify.

43. Examines activities to determine adherence with civil rights requirements for: State agencies, local agencies, and other subrecipients. XIII. COMPLIANCE REVIEWS

44. Compliance Reviews • State agencies review local agencies. • Local agencies review their subrecipients. • State agency must report significant findings to the reviewed entity and FNS.

45. Compliance Reviews 3 Types of Compliance Reviews: • Pre-approval or Pre-award • Post-award or Routine • Special

46. No federal funds shall be made available to a State agency or local agency until a Pre-award Compliance Review has been conducted and the applicant is determined to be in compliance with civil rights requirements. Pre-approval or Pre-award Compliance Reviews

47. Pre-approval or Pre-award • May be a desk or onsite review • Used to identify issues such as lawsuits on the basis of race, color or national origin, or civil rights complaints • An onsite review must be conducted, if warranted • Written report is required

48. Pre-approval or Pre-awardData and Information Required • Manner in which services will be provided • Demographics of population to evaluate program access • Data regarding covered employment, including use of bilingual public-contact employees serving LEP beneficiaries of the program

49. Pre-approval or Pre-awardData and Information Required • The location of existing or proposed facilities connected with the program and whether access would be unnecessarily denied because of their locale • Makeup of planning or advisory board • A civil rights impact analysis where relocation is involved

50. Post-Award or Routine Compliance Review Frequency -- defined in the Appendices • FNS: Part of Management Evaluation (ME) Process • State Agencies: In accordance with Program Regulations • WIC State agency reviews include vendors • FMNP State agency reviews include farmers, farmers’ markets and roadside stands