Supplement No. 1
August 12, 1992
Subject: DOE Form, Assurance of Compliance-Nondiscrimination in Federally Assisted
In Contract and Grant Memo No. 91-13 (December 12, 1991) we advised you that the revised DOE Form F1600.5, Assurance of Compliance--Nondiscrimination in Federally Assisted Programs, was not acceptable, did not have OMB approval, and should not be signed. We promised to update you on developments as we worked toward a resolution of this matter.
Our first step was to write to Bill Reed, who has responsibility for coordinating OMB clearances for DOE (see Enclosure 1). Mr. Reed's response over the phone was that the originating DOE office (Equal Opportunity) was insisting that the form is not an information collection and was not going to send the form through Mr. Reed's office. Apparently Mr. Reed's office processes requests but does not initiate them.
Next, on April 28, 1992, we wrote to Silas Fisher, the director of DOE's procurement office (see Enclosure 2). In a follow-up telephone conversation with G.L. Allen in that office, we were told that while the people in procurement sympathize with universities on this issue the Equal Opportunity Office does not report to procurement. We were advised to write to higher authority within DOE, i.e. to the Under Secretary.
Accordingly we sent a copy of our letter to Mr. Fisher to Tom Hendrickson, Acting Under Secretary for the Department of Energy (see Enclosure 3). On July 14 we received an "interim" response from John Pagano in the Office of Civil Rights, telling us that our letter had been referred to DOE Office of General Counsel (see Enclosure 4). We will now have to wait for a response from that office.
In the meantime, the University's position continues to be that the revised DOE form F1600.5 (dated 5/90) is not an approved form and any denial of a benefit (e.g. DOE's refusal to make a grant award) based on the University' s refusal to sign the form is illegal under the Paperwork Reduction Act (44 USC Chapter 35), as implemented in 5 CFR 1320.
We also maintain that the new requirements added to the revised form are overly broad, vague, and inconsistent with applicable Federal regulations. The University is not in compliance with these requirements. Thus campuses are only authorized to sign the old form dated 5/85. When asked for a signed assurance, campuses should first sign and submit the 5/85 form (see Exhibit 1 to Enclosure 2 of this C& G Memo if you need an extra copy). If an award is threatened simply because the revised form is not submitted, then the revised form may be signed, under protest, if it is explicitly understood that the University is certifying compliance only with requirements that have been previously approved by OMB. This understanding should be noted either on the form itself or in a cover letter to the agency.
The procedure described in the previous paragraph has been discussed with and verbally agreed to by Mr. Pagano in DOE's Office of Civil Rights, pending the outcome of their review of the matter by DOE General Counsel. We have also coordinated this Memo with the OP Affirmative Action
Refer: Bill Sellers (510) 987-9847
Subject Index: 02, 14
Organization Index: F-275
David F. Mears
Research Administration Office
February 14, 1992
Office of Policy, Planning & Oversight
19901 Germantown Rd., Rm. F-310
Germantown, MD 20585
Thanks for agreeing to look into the following matter, as we discussed today on the phone. Here are the forms you requested:
Enclosure 1 is a copy of a form DOE F1600.5, Assurance of Compliance-Nondiscrimination in Federally Assisted Programs, that we have been signing for over eight years in connection with DOE grants. It has been reviewed and approved by OMB and is consistent with DOE's regulations at 10 CFR 1040.4 ff.
Enclosure 2 is a revised form F1600.5 that would require two signatures and add a final paragraph that goes beyond DOE's own requirements. For example, 10 CFR 1040.5(c) states that:
Where a significant number or proportion of the population eligible to be served or likely to be directly affected by a federally assisted program requires service or information in a language other than English in order to be informed of or to participate in the program, the recipient shall take reasonable steps, considering the scope of the program and size and concentration of such population, provide information in appropriate languages (including braille) to such persons.
In contrast, the revised form simply requires the applicant organization to certify, without limit or qualification, that it has or will:
. . . (d) Provide(d) program information in languages other than English (including braille) in a manner to make it accessible to sight impaired persons.
The form has not received OMB clearance. Indeed, it has not even been submitted to OMB for approval because, according to Barry Haley in DOE's Office of Equal Opportunity, the form does not constitute a collection of information.
We believe this to be an attempt to make new regulation without adhering to the principles of the Administrative Procedures Act, and a clear imposition of an information collection in violation of the Paperwork Reduction Act. We have advised University of California campuses not to sign this form but to use the form in Enclosure 1 instead.
Enclosure 3 is a copy of a form that we recently received from the Berkeley campus. It appears to be a form F1600.5 dated 11/90 bearing a valid OMB Control Number. The language is identical with the form in Enclosure 1. When I asked Mr. Haley if this form superseded the form in Enclosure 2, he said no, that the form in Enclosure 3 was a "bootleg" form made up by someone at DOE. He went on say that grant applications with this form would not be approved until the applicant organization signed the form in Enclosure 2. Needless to say, this is very confusing!
Any light you can shed on this matter would be most appreciated. I can be reached at 510-987-9847.
Contract and Grant Officer
Mona Litrownik/Affirmative Action
April 28, 1992
Mr. Silas B. Fisher, Director
Office of Procurement, Assistance, and Program Management
U.S. Department of Energy
1000 Independence Avenue, SW, Room 5B-080
Washington, DC 20585
Dear Mr. Fisher:
The Department- of Energy's Office of Equal Opportunity has issued a revised form, "Assurance of Compliance -- Nondiscrimination in Federally Assisted Programs," that prospective DOE grantees must complete if they are to be eligible for grant funds. The revision was issued unilaterally by DOE, without obtaining input from affected grantee institutions.
A valid revision of this assurance form requires DOE compliance with the following:
--Consistency with applicable DOE regulations;
--Publication of the proposed change in the Federal Register.
--OMB clearance under the Paperwork Reduction Act; and
--Review and approval by the Department of Justice.
The revision did not comply with any of the foregoing requirements. We have made extensive efforts to resolve this issue at lower levels within the Department, but have had no success. Accordingly, we respectfully request that you look into this matter and direct appropriate staff to reissue the assurance form in compliance with applicable laws and regulations.
David F. Mears
Research Administration Office
Between 1980 and 1990, the Department of Energy required applicants for research grants to sign an Assurance of Compliance form (Exhibit I) certifying compliance with various civil rights and nondiscrimination statutes and regulations. In 1984 the form was submitted to OMB for approval under the Paperwork Reduction Act and was subsequently cleared (OMB Control No. 1910-0400) with an expiration date of April 30, 1986.
In December 1984, the University of California wrote to DOE inquiring about the paperwork burdens associated with the form. The response from Howard Raiken, Director of Management Systems Analysis, in a letter dated January 3, 1985 (Exhibit 2) explicitly acknowledged the form as a "paperwork requirement" and indicated that "we plan to explore with your office several possible means of reducing the data collection, access to records and other elements of this assurance- certification."
No exploration ever took place. Instead, DOE revised the form in May 1990 and in 1992 it began requiring grant applicants to sign the new form (Exhibit 3) as a condition for obtaining certain DOE grants. The new form was not submitted to OMB for clearance Under the Paperwork Reduction Act.
The University of California Research Administration Office has been in contact with the following DOE personnel to inquire about the new form:
Barry Haley, Office of Equal Opportunity
James Cavanagh, Business and Financial Policy Division
William Reed, Office of Policy, Planning and Oversight
The consensus within these offices is that the form does not need OMB clearance and that it is consistent with current DOE regulations. The explanation as to why the form was revised is apparently simply to heighten awareness of applicable nondiscrimination regulations, but no evidence was given that grantee nondiscrimination programs are not working.
Comparison of Old Form (Exhibit D and New Form (Exhibit 3)
The new form is identical to the old form except for the addition of: (1) the final paragraph under the heading Applicant Certification; (2) a second signature line for the institution's Affirmative Action Officer; (3) information on the institution's current affirmative action plan; and (4) information on the institution's most recent onsite Federal Assistance Civil Rights review/audit.
The new Final paragraph contains the following text:
The Applicant further certifies that it has or, within 90 days of the grant shall:
(a) Designate(d) an individual to serve as Affirmative Action Officer;
(b) Establish(ed) complaint procedures for employees and other beneficiaries of the program;
(c) Prominently display(ed) posters and other written information publicizing the policy of nondiscrimination;
(d) Provide(d) program information in languages other than English (including braille) in a manner to make it accessible to sight impaired persons;
(e) Establish(ed) procedures which enable it to notify DOE on a timely basis of any complaints filed against it and of the disposition of those complaints;
(f) Require(d) any subrecipient (subgrantee/subcontractor) under this award to comply with the above cited laws and regulations;
(g) Require the subrecipient to sign an assurance form, the applicant certifies that it shall monitor subrecipient compliance as appropriate;
(h) Establish(ed) a system capable of collecting racial/ethnic/handicap/sex data in accordance with existing Federal requirements cited in the first paragraph of this assurance.
Items (f) and (g) are essentially identical to the fourth paragraph of both forms, headed Subrecipient Assurance. Items (c), (d), and (h) are similar to topics covered in the fifth paragraph of both forms under the heading Data Collection and Access to Records but go far beyond what used to be required. Items (a), (b), and (e) are new.
Applicability of the Paperwork Reduction Act and OMB Regulations
The Paperwork Reduction Act is implemented in 5 CFR 1320. Basic Federal policy is stated in 5 CFR 1320.5(a):
Notwithstanding any other provision of law, no person shall be subject to any penalty for failure to comply with any collection of information:
(1) That does not display a currently valid OMB control number;...
5 CFR 1320.7(c) states that:
"Collection of information" means the obtaining or soliciting of information by an agency from ten or more persons by means of identical questions, or identical reporting or recordkeeping requirements, whether such collection of information is mandatory, voluntary, or required to obtain a benefit ....
(1) A 'collection of information' includes the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods. Similar methods may include... Standard questionnaires used to monitor compliance with agency requirements. [emphasis added]
Although "certifications" are generally not included in the definition of "information," this exclusion is made "provided that they entail no burden other than that necessary to identify the respondent, the date, the respondent's address, and the nature of the instrument." There is no question that both the new and old forms entail significant recordkeeping requirements; and the new form asks for information concerning affirmative action programs that is not included within the meaning of "name, date, address, or the nature of the instrument."
At 5 CFR 1320.7(m) the word "penalty" is defined as "the imposition by an agency or court of a free or other punishment; judgment for monetary damages or equitable relief; or revocation, suspension, reduction, or denial of a license, privilege, right, grant, or benefit." [emphasis added]
Thus the new form in Exhibit 3, which is part of an application packet and 'constitutes a questionnaire used by DOE to monitor compliance, is clearly a collection of information that requires OMB clearance. DOE's threat to deny grants to applicants who do not sign the form is a violation of the Paperwork Reduction Act and OMB regulations.
Relation to Department of Justice Rules
Pursuant to Executive Order 12250 (November 2, 1980), the Department of Justice is required to monitor and provide guidance and other assistance to Federal executive agencies in the area of civil rights and nondiscrimination. In turn, the Department of Justice has issued regulations entitled "Coordination of Enforcement of Nondiscrimination in Federally Assisted Programs" at 28 CFR 42.401-.415. In accordance with these regulations, amendments to an agency's nondiscrimination regulations are to be submitted to the Assistant Attorney General, Civil Rights Division, for review and approval [28 CFR 42.403(c)(1)]. The amendment must then be published in the Federal Register for comment and ultimately it must be approved by the Attorney General. DOE has not followed these Department of Justice procedures.
Executive Order 12250 delegates to the Attorney General the function, vested in the President by section 602 of Title VI, 42 USC 2000d-l, of approving Title VI regulations and amendments to them. By making this change in its nondiscrimination assurance procedures, DOE is arrogating to itself a function lawfully belonging to the Attorney General.
The DOE assurance of compliance form is required for both new and continuing grant proposals pursuant to DOE regulations which are in turn subject (by Executive Order 12250) to Department of Justice guidance. This guidance is issued at 28 CFR 42.406, "Data and information collection." Thus the Department of Justice recognizes that the submission of the assurance of compliance constitutes an information collection. DOE's claim that the assurance is not an information collection flies in the face of Department of Justice guidance.
The Department of Justice requires agencies that are providing assistance for similar purposes to the same grantee to jointly coordinate compliance with Title VI in the assisted programs. One of the granting agencies is to be delegated the lead agency by a written delegation agreement [28 CFR 42.413(a)(2)]. For most universities, the lead agency is the Department of Education. We have been informed by the Civil Rights Division, Department of Justice, that DOE has not complied with this Department of Justice requirement.
Relation to DOE's Own Regulations
We suspect that the real reason the new form has not been submitted to OMB for clearance is that its author(s) know that it would not be approved. Aside from the difficulty of demonstrating the practical utility of the information being collected, the form's author(s) would have trouble showing that the new .requirements are consistent with the Department's own nondiscrimination regulations for grant recipients at 10 CFR 1040:
--Who is to assure compliance?
10 CFR 1040.3(d) defines an "applicant for assistance" as "one who submits an application..." [emphasis added]. Each applicant is required by 10 CFR 1040.4(a) to submit an assurance with every grant application. At 10 CFR 1040.5(a) the applicant is to designate "at least one employee to coordinate its efforts to carry out its responsibilities" with respect to nondiscrimination. Thus the regulations distinguish between applicants and employees of the applicant. The certification is made by the applicant; DOE forms have no business specifying who is to sign on behalf of the applicant.
How many employees should serve as Affirmative Action Officer(s)?
The new form requires the applicant to designate an individual to serve as Affirmative Action Officer. The regulations, as noted above, require at least one employee to serve.
How should complaints be handled?
The new form requires the recipient to establish procedures which enable it to notify DOE of "any complaints" fried against it. Nowhere in 10 CFR 1040 is this a requirement. Indeed, where complaint procedures are discussed, at 10 CFR 1040.89-5, with respect to the Age Discrimination Act, complainants are required to file complaints with DOE, not with the recipient. And again, in 10 CFR 1040.101, compliance reviews with respect to Title VIII are to consider complaints fried against the recipient with DOE. These procedures are limited in scope to complaints fried in connection with charges of discrimination under DOE-funded programs.
How is 'subrecipient' defined?
The new form compels recipients to require their subrecipients to comply with nondiscrimination laws. The word "subrecipients" is followed by "(subgrantee/subcontractor)" presumably to indicate the scope of the term "subrecipient." However, "subrecipient" is not defined in 10 CFR 1040; in 10 CFR 600.3 the terms is defined as "the organization, individual, or other entity that receives a subaward." "Subaward" is in turn defined as "an award of financial assistance by a recipient to an eligible subrecipient when specifically authorized by statute or program rule. The term does not include a contract under a financial assistance award." [emphasis added] Thus DOE regulations are consistent with OMB Circular A-133 which distinguishes between subrecipients and vendors. The new form, in contrast, fails to make this distinction. The new form also does not have a dollar threshold. Consequently any purchase from any vendor, no matter how small, would entail subrecipient monitoring requirements.
When is program information required to be displayed in languages other than English (including braille)?
DOE regulations at 10 CFR 1040.5(c) require recipients to display their nondiscrimination policies and procedures "where a significant number or proportion of the population eligible to be served or likely to be directly affected by a federally-assisted program requires service or information in a language other than English in order to be informed of or to participate in the program" or "if a recipient publishes or uses recruitment materials or publications containing general information that it makes available to participants, beneficiaries, applicants, or employees." These are reasonable and appropriate instances where publication in other languages should be done. The new form, in contrast, requires the recipient, without qualification, to "provide program information in languages other than English (including braille) in a manner to make it accessible to sight impaired persons." This requirement is slightly ridiculous as written because it implies that all sight impaired persons are multi-lingual; it is also completely unrestricted in its intended application.
The DOE Office of Equal Opportunity has issued a revised Assurance of Compliance ..form that imposes an information collection on grant recipients without obtaining clearance from OMB, despite the fact that the earlier version of the form was cleared by OMB and despite the fact that DOE officials have written that the form imposes paperwork burdens on recipients. The new form goes beyond requirements in DOE' s own nondiscrimination regulations and is thus an attempt to make new regulation by fiat and outside of the normal regulatory development process. This is particularly disconcerting at a time when the Federal Government is engaged in a general review of all regulations with a view to reducing administrative burdens. DOE is acting without the advice and consent of the Department of Justice, which is the lead agency for coordinating agency enforcement of Federal nondiscrimination laws, and is arrogating to itself the functions of the Attorney General of the United States.