FR Doc E6-12432

\[Federal Register: August 2, 2006 (Volume 71, Number 148)\]

\[Rules and Regulations\]

\[Page 43643-43652\]

From the Federal Register Online via GPO Access \[wais.access.gpo.gov\]

\[DOCID:fr02au06-2\]

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AA74

Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

SUMMARY: The Equal Employment Opportunity Commission (EEOC or

Commission) is issuing a final rule implementing the posting

requirements set forth in Title III of the Notification and Federal

Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act),

Pub. L. 107-174. The No FEAR Act requires a Federal agency to post on

its public Web site summary statistical data pertaining to complaints

of employment discrimination filed under 29 CFR part 1614 by employees,

former employees and applicants for employment. Title III authorizes

EEOC to issue rules concerning the \`\`time, form and manner\'\' of the

postings, to define the terms \`\`issue\'\' and \`\`basis,\'\' and to
issue any

other \`\`rules necessary to carry out\'\' Title III.

DATES: Effective Date: August 2, 2006.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal

Counsel, Gary John Hozempa, Senior General Attorney, or Mona Papillon,

Senior General Attorney at (202) 663-4669 (voice) or (202) 663-7026

(TTY). This final rule also is available in the following alternative

formats: large print, braille, audiotape and electronic file on

computer disk. Requests for the final rule in an alternative format

should be made to EEOC\'s Publication Center at 1-800-669-3362 (voice),

1-800-800-3302 (TTY), or 703-821-2098 (FAX\--this is not a toll free

number).

SUPPLEMENTARY INFORMATION:

Introduction

On January 26, 2004, EEOC published in the Federal Register an

interim final rule setting forth the time, form and manner in which an

agency shall post summary statistical EEO complaint data. 69 FR 3483

(2004). The interim rule included a 60-day comment period, which

subsequently was extended an additional 30 days. 69 FR 13473 (2004).

EEOC received over 140 comments on the interim rule. One hundred

and nine comments were submitted by persons identifying themselves as

members of the \`\`No FEAR Coalition.\'\' Sixteen comments were
submitted

by Federal agencies and departments. Four comments were submitted by

civil rights groups composed of Federal employees, one was submitted by

a national civil rights group, one by an association of Federal EEO

executives, one by a Member of Congress, and one was submitted by an

association of Federal agency Web content managers. EEOC also received

seventeen comments from individuals, most of whom identified themselves

as Federal or former Federal employees.

The Commission has considered carefully all of the comments and has

made some changes to the interim rule in response to the comments. The

comments EEOC received and the changes made to the interim rule are

discussed in more detail below.

Amendments to Complaints

When EEOC circulated its first draft of the interim rule under

Executive Order 12067, the regulation required that, when posting

information about the bases and issues raised in a complaint, agencies

include bases and issues added by amendment. Agencies commenting on

this provision argued that if bases and issues added by amendment were

to be included among the data, withdrawals of issues and bases likewise

should be reflected. When

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EEOC issued its interim final rule it decided to drop the requirement

that agencies track amendments.

Based on comments received on the interim final rule, both from

agencies and members of the public, EEOC has reconsidered its approach

and now believes that bases and issues added by amendment should be

included among the posted data. EEOC is particularly concerned that the

number of times retaliation is alleged will not be portrayed accurately

if amendments are not tracked. As a number of commenters noted,

complainants often allege that they have been retaliated against for

having filed an earlier, pending complaint. These claims of retaliation

are considered like and related to the initial complaint and therefore

must be treated as amendments to the initial complaint rather than as

separate complaints. See EEOC Management Directive 110, Chapter 5,

Example 6 at page 5-11. Since EEOC believes amendments adding a claim

of retaliation need to be captured, EEOC also believes it is best to

capture all issues and bases that are added.

Tracking amendments requires that an agency post the basis or issue

raised in the amendment when it is time to post quarterly or year-end

data for the current fiscal year, whichever posting period occurs first

after a complaint is amended. Where the amendment of a complaint filed

in a prior fiscal year occurs in the current fiscal year, an agency

shall not go back and modify prior fiscal year data regarding issues

and bases since prior year data in these categories is unaffected by

amendments occurring in subsequent fiscal years.

Bases and Issues

The interim rule requires that an agency post the number of

complaints raising each basis of alleged discrimination and the number

of complaints raising each challenged employment action. A few agencies

opined that this will make it appear as if more complaints have been

filed than is actually the case.

Given that sections 301(b)(4) and (5) of the No FEAR Act

specifically require that this information be posted, EEOC does not

have the discretion to change this part of the rule. Moreover, agencies

must post the total number of complaints filed. Persons viewing all

three data categories will be able to ascertain that the total number

of times a basis or issue is asserted does not correspond to the number

of complaints actually filed. Therefore, there is no basis for concern

that the number of complaints filed will appear inflated.

Other commenters objected to the requirement that an agency post a

complaint as having been filed even if it raises a basis not protected

by one of the Federal EEO statutes. One objection was that such a

complaint is not really an EEO complaint and therefore should not be

counted. Another objection was that the inclusion of complaints raising

a non-EEO basis unintentionally could convey the message that an EEO

complaint can be maintained regardless of the basis alleged.

The very designation \`\`non-EEO\'\' basis will alert a viewer that the

complaint falls outside the scope of the EEO laws. Thus, EEOC does not

believe that requiring agencies to post this information will mislead

the public into believing that employment discrimination laws protect

an employee or applicant from non-covered forms of discrimination.

Complaints raising a non-EEO basis, such as whistle blowing, will be

dismissed. EEOC believes, however, that it is important to know how

many claims filed under part 1614 do not belong in that process because

it may indicate that employees need to be better informed of their

rights and the correct forums in which to pursue their allegations of

wrongdoing, or that persons are misusing the EEO complaint process.

A few commenters were concerned about bases that are mislabeled by

a complainant. Where a complainant appears to misidentify a basis

(e.g., the complainant alleges race discrimination and identifies her

race as \`\`Danish\'\') and the agency determines that the
complainant\'s

intent is to raise a national origin claim, the agency shall post only

the corrected basis.

Counseling

A few commenters objected to the absence of counseling data in the

posting requirements, arguing that counseling is an important part of

the process. EEOC\'s initial decision not to have agencies post

counseling activity was based on its conclusion that the No FEAR Act

does not address pre-complaint activity, which would include

counseling. Nothing proffered in the comments convinces EEOC that its

initial interpretation was in error.

That EEO counseling activity will not be tracked under the No FEAR

Act does not lessen its importance or minimize EEOC\'s belief that

counseling is a vital component of the Federal sector complaint

process. Many matters brought to a counselor\'s attention are resolved

before they become formal complaints. Counselors further perform the

very valuable function of assisting complainants to accurately define

the matters about which they wish to complain. EEOC requires agencies

to report counseling activity on the Form 462 (\`\`Annual Federal Equal

Employment Opportunity Statistical Report of Discrimination

Complaints\'\') because it believes the counseling function is

significant.

Definitions

Based on some of the comments EEOC received, there appears to be

some confusion regarding the definition of \`\`appeal\'\' under Sec.

1614.702(i). The appeal step of the process is to be distinguished from

the request for reconsideration stage. Consequently, when posting data

pursuant to Sec. 1614.704(l)(2)(ii) (pending complaints filed in prior

fiscal years) agencies need not track a complaint that is awaiting a

decision on a request for reconsideration because it is not pending at

the appeal stage.

EEOC Form 462

A few agencies opined that, now that they must post EEO data under

Title III (and report EEO data under Title II), EEOC should discontinue

the use of EEOC Form 462. As an alternative, a few agencies suggested

that they be allowed to consolidate EEOC Form 462 with the information

they must post under the No FEAR Act.

Form 462 seeks more, and in many cases different, information than

is required to be posted under the No FEAR Act. While the posting of No

FEAR data is primarily for use by the public, Form 462 data is intended

for EEOC use and is delivered directly to EEOC for this reason. In

addition to reporting consolidated Form 462 data to Congress, EEOC

reviews each agency\'s report to assess that agency\'s compliance with

its EEO obligations under part 1614. These roles, reporting to Congress

and assessing an agency\'s EEO program, are not responsibilities given

to EEOC under the No FEAR Act. As a result, EEOC does not regard an

agency\'s posting obligations under the No FEAR Act as serving the same

purpose as its Form 462 reporting requirements. For these reasons, EEOC

will not discontinue the use of Form 462.

Enforcement

A number of comments focused on the fact that the interim rule does

not contain an enforcement mechanism in the event an agency fails to

post its EEO data. Some commenters want EEOC to fashion a scheme in

which EEOC can sanction agencies and agency managers for non-

compliance. While directing the

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Commission to establish the \`\`time, form, and manner\'\' in which an

agency must post its EEO data, the statute does not specify what

action, if any, EEOC may take in the event an agency does not fulfill

its posting obligations. Since the statute neither authorizes EEOC to

sanction agency non-compliance nor sets forth the means by which EEOC

can compel compliance, EEOC has not created an enforcement mechanism.

Government-Wide Data

A few commenters suggested that EEOC post government-wide EEO

statistics on its Web site, using each agency\'s posted data as the

source material. Since the statute does not require EEOC to post

consolidated data and given that EEOC already consolidates Form 462

data, which overlaps somewhat with the No FEAR data, EEOC has decided

not to consolidate government-wide No FEAR data.

In a similar vein, commenters suggested that EEOC post on its Web

site a regularly updated listing indicating which agencies fully are in

compliance with the posting requirements, partially are in compliance,

or have not posted data. Again, this is beyond the responsibilities

imposed by the statute and EEOC therefore will not implement the

suggestion.

Issuance of the Interim Final Rule

Some commenters questioned EEOC\'s reasons for issuing an interim

final rule rather than a final rule. EEOC\'s implementation of this rule

as an interim final rule with provision for post-promulgation public

comment was based upon the exceptions found at 5 U.S.C. 553(b)(A),

(b)(B) and (d). Agency posting obligations under Title III of the No

FEAR Act began in the first quarter of FY 2004. It was essential that

agencies understood their responsibilities regarding the posting

requirements so that they could begin capturing EEO data immediately.

EEOC determined under 5 U.S.C. 553(b)(A) that this regulation, which

covers the time, form and manner of agency postings under Title III of

the No FEAR Act, affects agency organization, procedure, or practice

and has no effect on the substantive rights of non-agency parties. In

addition, it was feared that the absence of rules or the later

promulgation of rules would result in confusion concerning the posting

requirements, to the detriment of the public. EEOC therefore determined

under 5 U.S.C. 553(b)(B) that it would be contrary to the public

interest to delay promulgation of these rules by issuing a notice of

proposed rule making rather than the interim final rule that was

issued. For the same reasons, EEOC determined under 5 U.S.C. 553(d)(3)

that there was good cause for the rule to become effective immediately

upon publication with provision for post-promulgation public comment.

An additional advantage to this approach was that agencies were able to

try out the rules, and the public was able to observe how agencies

sought to comply with them, thus informing the comments they submitted

to EEOC.

Link Location, Link Name, Search Engines and URLs

Section 1614.703(d) of the interim rule requires an agency to title

its posted EEO information \`\`Equal Employment Opportunity Data Posted

Pursuant to the No Fear Act.\'\' This section further requires an agency

to prominently place a hyperlink to the data on the homepage of its

public Web site. There was some objection both to the location of the

hyperlink and its name.

As for the location, agencies argue that their homepages already

are well populated with hyperlinks which primarily are mission-

specific. Adding another hyperlink, thereby producing crowding, may in

fact be counter-productive. Moreover, many people visiting an agency

Web site do so through hyperlinks from other non-agency Web sites or

search engines that bypass an agency\'s homepage. Some agencies allow

internet users to compose a personal homepage, which again bypasses the

agency\'s standard homepage. For these and other reasons, the agencies

that commented uniformly were of the opinion that a hyperlink on an

agency\'s homepage is not the best way to ensure the public\'s assess to

an agency\'s posted EEO data. These agencies therefore suggested that

each agency decide itself where to place its EEO data and hyperlinks to

that data since each agency best knows where a target audience goes to

look for certain information. A number of agencies offered suggestions

where the hyperlink would be better placed, such as on the \`\`About the

Agency\'\' or \`\`Working for the Agency/Employment\'\' pages.

The Commission is concerned that without a uniform hyperlink

location members of the public seeking EEO data from more than one

agency will have trouble finding the data. If one agency\'s hyperlink is

on the \`\`About the Agency\'\' page, another\'s is on the
\`\`Employment

Opportunities\'\' page, another\'s is on a page entitled \`\`Civil
Rights,\'\'

and another\'s is on the homepage, locating the data for multiple

agencies could well end up as an exercise in trial and error. Even

assuming that the homepage is not the best or most intuitive location

for the hyperlink, EEOC is convinced that it would not be in the public

interest to allow each agency to decide where on its Web site it will

place the hyperlink. Thus, if not the homepage, EEOC must dictate

another uniform location. The problem is that there are no other

locations common to all agency public Web sites. Agencies do not label

their \`\`About the Agency\'\' and \`\`Employment\'\' pages identically.
Not

every agency has an \`\`Employment Opportunities page. Thus, there is no

way to standardize through a rule an alternative location for the link.

This leaves only the homepage as the one Web page all agencies possess

in common, and therefore it is the homepage which shall house the link.

Regarding the title of the hyperlink, EEOC agrees that it is too

wordy. EEOC, however, does not agree that the label \`\`No FEAR\'\' will
be

widely misunderstood by members of the public. On the contrary, the

term \`\`No FEAR Act\'\' has attained familiarity among employees and
those

involved in EEO matters. Accordingly, the final rule provides that the

hyperlink shall be called \`\`No FEAR Act Data.\'\' However, agencies
will

be required to title the page where its data appears as follows:

\`\`Equal Employment Opportunity Data Posted Pursuant to Title III of
the

Notification and Federal Employee Antidiscrimination and Retaliation

Act of 2002 (No FEAR Act), Pub. L. 107-174.\'\'

In furtherance of making every agency\'s No FEAR Act data easily

accessible, it was suggested that agencies maintain their posted data

so that it is readily retrievable by commercial search engines. EEOC

agrees and has added a subsection setting forth this requirement.

Finally, some commenters suggested that each agency provide EEOC

with the hyperlink to its No FEAR data and that EEOC post the agency

hyperlinks in one location on EEOC\'s public Web site. EEOC has decided

to adopt this suggestion. Therefore, the final rule contains the

requirement that an agency provide EEOC with the URL for the location

of its No FEAR data and provide URL updates as necessary. Agencies can

e-mail their URLs to EEOC at NoFEAR.URLS@eeoc.gov.

Other Data

Some commenters disagreed with EEOC\'s position that EEO data not

required to be posted by the statute cannot be posted with No FEAR data

but may appear elsewhere. Commenters argued that by excluding other,

related

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data, agencies are forced to present an incomplete view of their EEO

performance. Commenters especially believed data regarding complaints

found to be without merit by an administrative judge or EEOC should be

posted along with the No FEAR Act data.

Other commenters wanted additional information posted because they

believe it would indicate whether an agency is engaging in a pattern of

discrimination, or is unfairly processing complaints, or obstructing

the EEO complaint process. It was suggested, for example, that agencies

post the grade levels of persons filing complaints, the number of

complaints that allege unfair processing, the number of work hours an

agency expends on EEO complaint processing, the number of days beyond

the regulatory time frame it takes an agency to complete an

investigation in a specific case, and the number of terminations,

including constructive discharges, for each protected group.

Admittedly, the categories of data set forth in the statute do not

present a complete view of an agency\'s EEO compliance. But the

categories represent the information Congress deems most important and

EEOC believes this information should not be obscured or rendered less

prominent through juxtaposition with other non-required data.

Consequently, the final rule specifically prohibits an agency from co-

mingling other data with that required to be posted under the statute.

An agency may, however, include a link on the No FEAR data page to any

additional or related data it posts on another Web page.

Pending Complaints Filed in Prior Fiscal Years

As explained in the preamble to the Interim Final Rule, section

301(b)(10) of the No FEAR Act \`\`specifies that an agency must look at

all complaints pending in a current fiscal year and post the number

that were filed before the start of that fiscal year \* \* \* The Act

further requires an agency to post the number of individuals who filed

the complaints that were filed before the start of the current fiscal

year \* \* \* \[O\]f the complaints that were filed prior to the current

fiscal year and are still pending, the agency shall specify how many of

the complaints are at each specific processing step.\'\'

Section 1614.704(k) of the Interim Final Rule was intended to

implement sections 301(b)(10)(A) and (B) of the Act. As one commentor

pointed out, subsections 1614.704(k)(2) and (3) as contained in the

Interim Final Rule can be read as applying to all pending complaints

and not just those that were filed in prior fiscal years. The

Commission agrees that the language of these provisions is overbroad

and has redrafted them in re-designated subsections 1614.704(l)(2)(i)

and (ii) to make clear that they apply only to pending complaints filed

in prior fiscal years.

Posting by Subelements

The interim final rule provides that an agency must post on its

public Web page separate data pertaining to its subelements. The

interim final rule defines a subelement as \`\`any organizational sub-

unit directly below the agency or department level which has 1,000 or

more employees.\'\' A few persons commented that the 1,000 employee

threshold is too low. Others argued that it is too high. EEOC chose the

1,000 employee figure because that was the figure EEOC was planning to

use for reporting under EEOC Management Directive 715 (affirmative

programs of equal employment opportunity). After the interim final rule

was published, EEOC issued instructions for compliance with EEOC

Management Directive 715 (MD-715). These instructions require that, of

those subordinate components having 1,000 or more employees, only those

\`\`enjoying a certain amount of autonomy\'\' constitute subordinate

components for purposes of reporting under MD-715.

In order to maintain consistency, the final rule adopts the

distinction used in reporting under MD-715. As a result, the final rule

substitutes the term \`\`subordinate component\'\' for
\`\`subelement.\'\' The

definition of \`\`subordinate component\'\' is the same as the
definition

of \`\`second level reporting component\'\' used in the instructions to
MD-

715\. The change to the definition will mean that there will be fewer

subordinate components for which separate data must be posted. More

importantly, requiring agencies to report on subordinate components

based on functional criteria, such as operating autonomy from the

parent agency, will result in more meaningful data.

The concept of subordinate components is discussed in Question and

Answer No. 5 in EEOC\'s publication, \`\`Frequently Asked Questions
About

Management Directive-715,\'\' which can be accessed at
http://www.eeoc.gov/federal/qanda-md715.html.

A list of the second level

subordinate components can be accessed at
http://www.eeoc.gov/federal/715instruct/agencylist.html

.

Some commenters objected to the fact that EEOC is not requiring

agency subordinate components to post component data on their

respective public Web pages. The final rule requires that an agency

with a qualifying subordinate component post on the parent agency\'s

public Web site both consolidated, agency-wide, EEO data (i.e., data

deriving from the entire parent agency including any subordinate

components) and separate data for each of its subordinate components.

The physical location of where this data is posted, whether on the

agency\'s public Web page or the component\'s, should not matter to the

end-user. The final rule requires that subordinate components that have

their own Web sites shall post a link on their homepages to their

component-specific data. So long as a link to the component\'s data can

be found on both the component\'s and parent agency\'s Web homepages,
the

data can be accessed from either Web site. In short, being able to

access the data is what is important, not where in cyberspace the data

is stored.

Posting Format

In the preamble to the interim rule, EEOC stated that it had not

decided whether to mandate a uniform posting format and layout but

would revisit the issue when promulgating the final rule. No agency

stated that EEOC should not develop a standard format. Thirteen

agencies, on the other hand, asked EEOC to develop a standardized form

or format for posting data. The rationale most often cited was that a

uniform template would make it easier for interested parties to compare

data among agencies. Interestingly, some agencies favoring a template

nevertheless wanted to be able to choose whether to use EEOC\'s template

or another one.

In the Commission\'s view, there is no point in making a template

available if its use is not mandatory. A random review of agency Web

sites indicates that there are a variety of formats in use. Some

agencies, for example, present data in ascending chronological order

while others do the opposite. Some agencies use formats that omit

certain categories of data. Having given the matter careful

consideration, EEOC has decided that a uniform template will make it

easier to compare agency data and help agencies to post all required

data. Accordingly, we have created a standard format that must be used

by all agencies having 100 or more employees and all subordinate

components. Two smaller agencies suggested that agencies having minimal

EEO complaint activity use a modified posting format appropriate to the

amount of data being

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reported. EEOC agrees. Therefore, agencies having fewer than 100

employees have the option of using any posting format that provides all

required information for those complaints.

The Commission has devised a format setting forth the manner in

which agencies must present their No FEAR data on their public Web

sites. The format is intended to give agencies a visual indication of

how data is to be presented. This format can be viewed on EEOC\'s public

Web site at http://www.eeoc.gov/stats/nofear/index.html.

As can be seen, prior fiscal year and cumulative quarterly data

shall be presented in vertical columns. The current cumulative

quarterly data shall appear in the right-most column for which data is

entered (the last column reading left to right), and the most recent

prior fiscal year data shall appear in the column immediately to the

left of the cumulative quarterly data. The data for the remaining

fiscal years shall appear in each succeeding column to the left, so

that the oldest fiscal year data appears in the left-most column for

which data is posted.

The categories of data that must be posted shall appear in the

horizontal rows. The first row for which data is posted shall contain

the number of complaints filed for that particular reporting period.

The remaining rows shall, reading top to bottom, contain the data set

forth in subsections 1614.704(a)-(m) in the order in which each

subsection occurs in the regulation.

While developing the standard format, we noted some inconsistencies

between the bases listed in Sec. 1614.702(j) and reported on EEOC Form

462\. First, the interim rule uses the term \`\`retaliation\'\' whereas
Form

462 uses the term \`\`reprisal.\'\' Second, Form 462 lists the Equal Pay

Act as a basis while interim 702(j) does not. Finally, the order of the

bases as listed in interim 702(j) differs slightly from that on Form

462\. In order to regularize an agency\'s reporting burdens, while at
the

same time enhancing the degree of detail available to the public

through the posting of No FEAR data, we have decided to conform the

bases in the final version of section 702(j) to that on Form 462.

Accordingly, we have added the Equal Pay Act basis, changed the term

\`\`retaliation\'\' to \`\`reprisal,\'\' and listed the bases in the
manner in

which they appear on the Form 462. The term \`\`reprisal\'\' as used in

this subpart should not be construed to include the type of reprisal

covered by the Federal whistleblower protection laws. Rather, it refers

to any action taken against an individual either because that

individual opposed any practice made unlawful by the Federal employment

discrimination laws or participated in any manner in any proceeding

under those laws.

Public Hearings

Seventy-eight percent (78%) of the comments were received from the

No FEAR Coalition or persons identifying themselves as members of the

No FEAR Coalition. The No FEAR Coalition members submitted their

comments using an identical or nearly identical letter. The Coalition

requested that EEOC convene public hearings in different parts of the

country in order to address the issues of employment discrimination and

EEOC\'s rule making under the No FEAR Act. The Coalition requested that

EEOC establish a citizens\' advisory board that would oversee EEOC\'s

promulgation of this final rule. The Coalition made suggestions that

have been raised by other commenters, such as developing a rule that

will ensure managers found to have engaged in discrimination are

appropriately disciplined, that these manager\'s names be provided to

Congress, that counseling data be among that required to be posted,

that amendments to complaints be tracked, and that data pertaining to

agency subordinate components be posted.

Those comments provided by the Coalition and which also were raised

by others are discussed both above and below. With respect to holding

public hearings as part of the rule making process, EEOC is required by

the Administrative Procedure Act to \`\`give interested persons an

opportunity to participate in the rule making through submission of

written data, views, or arguments with or without opportunity for oral

presentation.\'\' 5 U.S.C. 553(c). Thus, although an agency is permitted

to accept comments through oral presentations, it is not required to do

so. There is certainly no requirement in the Act for a public hearing.

EEOC believes that the written comment process has provided meaningful

public participation in this rule making.

In this regard, EEOC extended the initial 60-day public comment

period and additional 30 days at the request of the No FEAR Coalition.

As noted, many members of the Coalition submitted comments which the

Commission carefully has considered. Additionally, during the public

comment period the Chair of the Commission met with members of the No

FEAR Coalition to discuss the substance of EEOC\'s rule making. We

believe the public, including the No FEAR coalition, have had a

meaningful opportunity to participate in the Title III No FEAR rule

making process.

Moreover, EEOC\'s rule making duties under Title III of the No FEAR

Act are straightforward. Title III requires an agency to post on its

public Web site summary statistical data pertaining to complaints of

employment discrimination filed with the agency. The statistics that

shall be posted are set forth specifically in the statute. EEOC\'s only

role is to issue rules establishing the \`\`time, form and manner\'\' in

which the statistics are posted. In such a narrow context, public

hearings as an adjunct to written comments would not better inform

EEOC\'s rule making process in any appreciable manner. It is unlikely

that ideas as to when or how pre-defined statistics should be posted on

an agency Web site could or would be better communicated orally than in

writing. Accordingly, EEOC concludes that holding the suggested

regional public hearings will not significantly aid the rule making

process. Similarly, EEOC does not believe it would be advantageous to

convene a citizens\' advisory board. Finally, as noted above, holding

public hearings or convening a citizens advisory committee is not

required by the No FEAR or Administrative Procedure Acts.

Remands

A number of complaints are dismissed by agencies on procedural

grounds (e.g., failure to comply with the applicable time limits,

failure to state a claim). The complainant can appeal the dismissal to

EEOC. If EEOC finds the complaint was dismissed improperly, EEOC

remands the complaint to the agency for further processing. A few

commenters inquired how these complaints should be handled once they

are returned to the agency for processing.

Once the complaint is remanded, the agency will have to track its

status for posting purposes but only with respect to subsequent

information applicable to the remanded complaint. Thus, for example,

information previously posted about the issues and bases raised in the

complaint shall not be changed regardless of whether the remanded

complaint is returned to the agency with more, less, or different

issues and bases. All pertinent information applicable to the

subsequent processing of the complaint (e.g., whether it was timely

investigated following remand, whether it subsequently involves a

finding of discrimination with or without a hearing) shall be posted.

With respect to remanded complaints where the investigation was not

completed prior to the agency\'s dismissal of the complaint,

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the investigative period for purposes of Sec. 1614.704(f) will include

both the period between the dates the complaint initially was filed and

dismissed and the period between the dates the EEOC\'s remand becomes

final and the investigation is completed. For purposes of posting data

under Sec. 1614.704(l) (pending complaints filed in prior fiscal

years), a remanded complaint will retain its original filing date.

Settlements

A few commenters noted that the interim final rule is silent on the

issue of settlements and asked how settlement information should be

tracked. The No FEAR Act does not require an agency to post settlement

information (e.g., how many complaints were settled, when or where in

the process settlement took place, the bases and issues that were

settled, etc.) and consequently neither the interim nor the final rule

deal with settlements. Prior to settlement, an agency shall post all

required information (e.g., a complaint was filed, the number of

persons who filed the complaint, the issues and bases raised in the

complaint, whether the investigation was completed within the

applicable period if settlement occurred after the investigative step).

Once a complaint is settled, subsequent information about the complaint

does not have to be tracked (but see next paragraph). An allegation by

a complainant, pursuant to 29 CFR 1614.504, that the agency has

breached a settlement agreement does not constitute a complaint for

purposes of this subpart and therefore information about a breach

allegation is not information that must be posted.

In certain breach situations, a previously settled complaint can be

reinstated by EEOC and the agency ordered to process the complaint from

the point processing ceased at the time of settlement. See 29 CFR

1614.504(c). All pertinent information applicable to the subsequent

processing of the reinstated complaint shall be posted. An agency shall

ignore, however, the period between the settlement date and the date

EEOC\'s reinstatement decision becomes final when posting data under

Sec. 1614.704(f) and (m).

It should be noted that while Title III of the No FEAR Act does not

require an agency to post data regarding settlements, the reporting

provisions under Title II of the Act apply to certain agreements made

in settlement of claims brought under Federal antidiscrimination and

whistleblower protection laws. In reporting the amounts reimbursed to

the Judgment Fund, an agency must include any payments made as part of

a settlement agreement in connection with litigation in Federal court.

Also in connection with cases brought in Federal court, including those

that are settled, an agency must report the number of employees

disciplined and the types of disciplinary actions taken for conduct

inconsistent with Federal antidiscrimination and whistleblower

protection laws.

Short Form Title

Some commenters objected to EEOC\'s use of the term \`\`No FEAR Act\'\'

as a shorthand method of referring to the Notification and Federal

Employee Antidiscrimination and Retaliation Act of 2002. These

commenters opined that the term does not appear in the statute, use of

the phrase in the Library of Congress\'s Thomas search engine does not

lead to the statute, members of the public may confuse the term with

matters having to do with homeland security, and members of the public

will not associate the term with employment discrimination.

The term \`\`No FEAR\'\' is, like most shorthand titles for statutes,

an acronym: Notification and Federal Employee Antidiscrimination and

Retaliation Act. It is the popular name by which this statute is known

and it is commonly and widely used in the media and throughout the

Federal government. The full name of the statute appears at the

beginning of this preamble and the regulation. EEOC believes this

provides the public with information sufficient both to know under what

statute these rules are being promulgated and to find the statute

should members of the public wish to read it.

Title II Issues

While Title III of the No FEAR Act requires an agency to post EEO

complaint data on its public Web site, Title II imposes other

requirements. With respect to Federal employment discrimination and

whistleblower protection laws, Title II mandates, among other things,

that an agency: (1) Reimburse the Judgment Fund for payments concerning

violations or alleged violations of Federal employment discrimination

laws, Federal whistleblower protections laws, and retaliation claims

arising from the assertion of rights under these laws; (2) notify

covered individuals of their rights and protections under the Federal

EEO laws; and (3) submit an annual report to Congress, EEOC, the Office

of Personnel Management, and the Attorney General detailing, among

other information, disciplinary actions taken against employees for

conduct inconsistent with Federal antidiscrimination and whistleblower

protections laws. Title II empowers the President or the President\'s

designee to issue rules necessary to carry out that Title. The

President delegated this rule making authority to the Office of

Personnel Management (OPM).

It appears that a number of commenters did not distinguish between

EEOC\'s rule making authority under Title III and OPM\'s authority under

Title II. Thus, for example, commenters urged EEOC to write rules

ensuring that there would be management accountability for

discriminating against employees, comprehensive training for employees

(and managers) concerning the protections afforded them and the

obligations imposed upon them under the various Federal statutes, and

accurate agency reporting to Congress. As explained, however, these

issues do not fall within the rule making authority applicable to Title

III of the No FEAR Act and EEOC therefore has no authority to address

them.

Withdrawn Complaints

In conjunction with comments received on whether amendments to

complaints should be tracked, certain commenters suggested that the

posted data track the number of complaints that are withdrawn by

complainants. EEOC agrees. Therefore, EEOC has added the requirement in

a new subsection 1614.704(h) that an agency post the number of

complaints that are withdrawn in a given fiscal year. An agency shall

track a withdrawn complaint in the same manner it tracks a complaint

that is dismissed. That is, in tracking withdrawals, an agency shall

not revise posted data pertaining to the number of complaints that have

been filed in order to reflect the withdrawal. Rather, the withdrawal,

like a dismissal, shall be accounted for in a separate data column.

Miscellaneous Comments

A few commenters discussed provisions not included in the No FEAR

Act which they believe should have been included; for example,

authority for EEOC to sue agencies directly and award punitive damages

to Federal employees. Others called for EEOC to promulgate rules beyond

the posting requirements set forth in Title III, arguing that to do so

would make the posting requirements more effective. Suggestions

included: Requiring agencies to post the names of agency employees

found to have engaged in prohibited discrimination; referring

\[\[Page 43649\]\]

such persons to the Office of Special Counsel for possible disciplinary

action; adding specific notations to such persons\' Official Personnel

Files indicating that they had been found to have engaged in prohibited

discrimination; requiring agencies to review their posted EEO data in

order to determine whether there were problem areas or managers. Other

comments addressed the need for sanctions for the posting of false or

incomplete data. One commentor wanted EEOC to clarify both the

authority of EEOC administrative judges under part 1614 and the hearing

process in general. All of these suggestions are beyond the scope of

EEOC\'s authority under the No FEAR Act.

Matters of General Applicability

A few commenters wondered how to calculate percentages required by

the rule. The percentage components under Sec. 1614.704(i)(2) and (3),

(j)(1), and (k)(1) are to be based on the number of final actions

rendered in that fiscal year which involve findings of discrimination,

and not the total number of final actions rendered in that fiscal year

regardless of whether a finding of discrimination is involved. With

respect to Sec. 1614.704(j)(2) and (3) and Sec. 1614.704(k)(2) and

(3), the percentage figure shall be based on the total number of

findings for that particular subcategory.

Example: An agency issues 100 final actions in a given fiscal year,

25 of which involve findings of discrimination. Of those 25 cases

involving findings of discrimination, 15 were rendered after a hearing

and 10 were rendered without a hearing. Of the 15 rendered after a

hearing, 10 involve findings of race discrimination and 5 involve

findings of sex discrimination. Of the 10 rendered without a hearing, 5

involve findings of race discrimination and 5 involve findings of age

discrimination. In posting its percentage data under Sec.

1614.704(i)(2) and (3), the agency will report that 40% (10 of 25) of

the final actions involving discrimination were rendered without a

hearing and that 60% (15 of 25) were rendered after a hearing. (The

agency also will post under Sec. 1614.704(i)(1) that there were 25

final actions involving findings of discrimination). In posting

percentage data under Sec. 1614.704(j)(1), the agency will post that

15 and 60% (15 of 25) of the final actions involving a finding of

discrimination were based on race discrimination, 5 and 20% (5 of 25)

were based on sex discrimination, and 5 and 20% (5 of 25) were based on

age discrimination. Under Sec. 1614.704(j)(2), the agency will post

that 5 and 33% (5 of 15) of the final actions involving race

discrimination were rendered without a hearing and that 5 and 100% (5

of 5) of the final actions involving age discrimination were rendered

without a hearing. The agency further will post that 10 and 66% (10 of

15\) of the final actions involving race discrimination were rendered

after a hearing and that 5 and 100% (5 of 5) of the final actions

involving sex discrimination were rendered after a hearing.

EEOC\'s explanatory comments in the preamble to the interim final

rule applicable to those provisions that have not been changed in the

final rule should continue to be used as guidance. That language can be

found at 69 FR 3483 (2004).

Regulatory Procedures

Executive Order 12866

Pursuant to Executive Order 12866, EEOC has coordinated this final

rule with the Office of Management and Budget. Under section 3(f)(1) of

Executive Order 12866, EEOC has determined that the regulation will not

have an annual effect on the economy of \$100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State or local tribal governments or communities.

The posting requirements contained in Title III of The No FEAR Act

apply only to Federal executive agencies, the United States Postal

Service, and the Postal Rate Commission. All of these agencies,

including EEOC, are required by the No FEAR Act to post statistical

data on their public Web sites pertaining to EEO complaints filed with

them. In addition, EEOC has to post government-wide data pertaining to

requests for EEO hearings and appeals of EEO complaints.

Much of the information that will be used as source material to

post the statistical data required by Title III already is collected

and maintained by the agencies in connection with their pre-existing

reporting obligations. All affected agencies currently maintain public

Web sites. Consequently, the Congressional Budget Office estimated that

the total cost for all agencies to comply with The No FEAR Act\'s

posting requirements will not exceed \$5 million annually. House Rept.

107-101 Part 1, June 14, 2001, p 11-12. Also, according to the CBO, it

will cost EEOC \$500,000 annually to post the additional government-wide

data required by Sec. 302. Id. Thus, the total cost of Title III of

the No FEAR Act should be less than \$5.5 million annually.

The benefits of posting EEO data will flow not just to the Federal

agencies but to the public. An agency will be able to compare its EEO

program statistics against prior quarters and years to determine if

there are trends that need to be addressed or whether progress is being

made. An agency can also compare its statistics against those of other

agencies. Both types of analyses should be useful to the agency in

monitoring its own compliance with 29 CFR part 1614 and ensuring equal

opportunity in the agency\'s employment programs. Public posting will

ensure that members of the public will have access to this information

and will be able to make independent assessments of agencies\'

compliance and progress. Agency employees will be able to assess the

degree to which their agency provides equal employment opportunity.

Likewise, potential job applicants will be able to judge the relative

desirability of each agency\'s working environment. The public display

of this information should provide agencies with added incentives to

improve their EEO programs and to prevent discrimination proactively so

that they can demonstrate that they are true equal employment

opportunity employers. Increased monitoring and improved compliance

through public posting of EEO statistics should lead to a decline in

incidents of employment discrimination, which is the primary goal of

the No FEAR Act.

Paperwork Reduction Act

This regulation contains no new information collection requirements

subject to review by the Office of Management and Budget under the

Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

The Commission certifies under 5 U.S.C. 605(b) that this rule will

not have a significant economic impact on a substantial number of small

entities, because it does not affect any small business entities. The

regulation affects only Federal Government entities. For this reason, a

regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

This final rule will not result in the expenditure by State, local,

or tribal governments, in the aggregate, or by the private sector, of

\$100 million or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions

\[\[Page 43650\]\]

of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

This action pertains to agency management, personnel and

organization and does not substantially affect the rights or

obligations of non-agency parties and, accordingly, is not a
\`\`rule\'\'

as that term is used by the Congressional Review Act (Subtitle E of the

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).

Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 29 CFR Part 1614

Administrative practice and procedure, Age discrimination, Equal

employment opportunity, Government employees, Individuals with

disabilities, Race discrimination, Religious discrimination, Sex

discrimination.

For the Commission.

Dated: July 27, 2006.

Cari M. Dominguez,

Chair.

0

Accordingly, for the reasons set forth in the preamble, EEOC amends 29

CFR part 1614 as follows:

PART 1614\--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

0

1\. The authority citation for part 1614 continues to read as follows:

Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.

2000e-16; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3

CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR, 1069 Comp., p. 133;

E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg. Plan No. 1 of 1978, 3

CFR, 1978 Comp., p. 321.

0

2\. Subpart G is revised to read as follows:

Subpart G\--Procedures Under the Notification and Federal Employee

Antidiscrimination and Retaliation Act of 2002 (No FEAR Act)

Sec.

1614.701 Purpose and scope.

1614.702 Definitions.

1614.703 Manner and format of data.

1614.704 Information to be posted\--all Federal agencies.

1614.705 Comparative data\--all Federal agencies.

1614.706 Other data.

1614.707 Data to be posted by EEOC.

Authority: Sec. 303, Pub. L. 107-174, 116 Stat. 574.

Subpart G\--Procedures Under the Notification and Federal Employee

Antidiscrimination and Retaliation Act of 2002 (No FEAR Act)

Sec. 1614.701 Purpose and scope.

This subpart implements Title III of the Notification and Federal

Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act),

Pub. L. 107-174. It sets forth the basic responsibilities of Federal

agencies and the Commission to post certain information on their public

Web sites.

Sec. 1614.702 Definitions.

The following definitions apply for purposes of this subpart.

\(a\) The term Federal agency or agency means an Executive agency (as

defined in 5 U.S.C. 105), the United States Postal Service, and the

Postal Rate Commission.

\(b\) The term Commission means the Equal Employment Opportunity

Commission and any subdivision thereof authorized to act on its behalf.

\(c\) The term investigation refers to the step of the federal sector

EEO process described in 29 CFR 1614.108 and 1614.106(e)(2) and, for

purposes of this subpart, it commences when the complaint is filed and

ceases when the complainant is given notice under Sec. 1614.108(f) of

the right to request a hearing or to receive an immediate final

decision without a hearing.

\(d\) The term hearing refers to the step of the federal sector EEO

process described in 29 CFR 1614.109 and, for purposes of Sec.

1614.704(l)(2)(ii), it commences on the date the agency is informed by

the complainant or EEOC, whichever occurs first, that the complainant

has requested a hearing and ends on the date the agency receives from

the EEOC notice that the EEOC Administrative Judge (AJ) is returning

the case to the agency to take final action. For all other purposes

under this subpart, a hearing commences when the AJ receives the

complaint file from the agency and ceases when the AJ returns the case

to the agency to take final action.

\(e\) For purposes of Sec. 1614.704(i), (j), and (k) the phrase

without a hearing refers to a final action by an agency that is

rendered:

\(1\) When an agency does not receive a reply to a notice issued

under Sec. 1614.108(f);

\(2\) After a complainant requests an immediate final decision;

\(3\) After a complainant withdraws a request for a hearing; and

\(4\) After an administrative judge cancels a hearing and remands the

matter to the agency.

\(f\) For purposes of Sec. 1614.704(i), (j), and (k), the term after

a hearing refers to a final action by an agency that is rendered

following a decision by an administrative judge under Sec.

1614.109(f)(3)(iv), (g) or (i).

\(g\) The phrase final action by an agency refers to the step of the

federal sector EEO process described in 29 CFR 1614.110 and, for

purposes of this subpart, it commences when the agency receives a

decision by an Administrative Judge (AJ), receives a request from the

complainant for an immediate final decision without a hearing or fails

to receive a response to a notice issued under Sec. 1614.108(f) and

ceases when the agency issues a final order or final decision on the

complaint.

\(h\) The phrase final action by an agency involving a finding of

discrimination means:

\(1\) A final order issued by an agency pursuant to Sec. 1614.110(a)

following a finding of discrimination by an administrative judge; and

\(2\) A final decision issued by an agency pursuant to Sec.

1614.110(b) in which the agency finds discrimination.

\(i\) The term appeal refers to the step of the federal sector EEO

process described in 29 CFR 1614.401 and, for purposes of this subpart,

it commences when the appeal is received by the Commission and ceases

when the appellate decision is issued.

\(j\) The term basis of alleged discrimination refers to the

individual\'s protected status (i.e., race, color, religion, reprisal,

sex, national origin, Equal Pay Act, age, or disability). Only those

bases protected by Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. 2000e et seq., the Equal Pay Act of 1963, 29 U.S.C.

206(d), the Age Discrimination in Employment Act of 1967, as amended,

29 U.S.C. 621 et seq., and the Rehabilitation Act of 1973, as amended,

29 U.S.C. 791 et seq., are covered by the federal EEO process.

\(k\) The term issue of alleged discrimination means one of the

following challenged agency actions affecting a term or condition of

employment as listed on EEOC Standard Form 462 (\`\`Annual Federal Equal

Employment Opportunity Statistical Report of Discrimination

Complaints\'\'): Appointment/hire; assignment of duties; awards;

conversion to full time; disciplinary action/demotion; disciplinary

action/reprimand; disciplinary action/suspension; disciplinary action/

removal; duty hours; evaluation/appraisal; examination/test;

harassment/non-sexual; harassment/sexual; medical examination; pay/

overtime; promotion/non-selection; reassignment/denied; reassignment/

\[\[Page 43651\]\]

directed; reasonable accommodation; reinstatement; retirement;

termination; terms/conditions of employment; time and attendance;

training; and, other.

\(l\) The term subordinate component refers to any organizational

sub-unit directly below the agency or department level which has 1,000

or more employees and is required to submit EEOC Form 715-01 to EEOC

pursuant to EEOC Equal Employment Opportunity Management Directive 715.

Sec. 1614.703 Manner and format of data.

\(a\) Agencies shall post their statistical data in the following two

formats: Portable Document Format (PDF); and an accessible text format

that complies with section 508 of the Rehabilitation Act.

\(b\) Agencies shall prominently post the date they last updated the

statistical information on the Web site location containing the

statistical data.

\(c\) In addition to providing aggregate agency-wide data, an agency

shall include separate data for each subordinate component. Such data

shall be identified as pertaining to the particular subordinate

component.

\(d\) Data posted under this subpart will be titled \`\`Equal

Employment Opportunity Data Posted Pursuant to Title III of the

Notification and Federal Employee Antidiscrimination and Retaliation

Act of 2002 (No FEAR Act), Pub. L. 107-174,\'\' and a hyperlink to the

data, entitled \`\`No FEAR Act Data\'\' will be posted on the homepage
of

an agency\'s public Web site. In the case of agencies with subordinate

components, the data shall be made available by hyperlinks from the

homepages of the Web sites (if any exist) of the subordinate components

as well as the homepage of the Web site of the parent agency.

\(e\) Agencies shall post cumulative data pursuant to Sec. 1614.704

for the current fiscal year. Agencies may not post separate quarterly

statistics for the current fiscal year.

\(f\) Data posted pursuant to Sec. 1614.704 by agencies having 100

or more employees, and all subordinate component data posted pursuant

to subsection 1614.703(c), shall be presented in the manner and order

set forth in the template EEOC has placed for this purpose on its

public Web site.

\(1\) Cumulative quarterly and fiscal year data shall appear in

vertical columns. The oldest fiscal year data shall be listed first,

reading left to right, with the other fiscal years appearing in the

adjacent columns in chronological order. The current cumulative

quarterly or year-end data shall appear in the last, or far-right,

column.

\(2\) The categories of data as set forth in Sec. 1614.704(a)

through (m) of this subpart shall appear in horizontal rows. When

reading from top to bottom, the order of the categories shall be in the

same order as those categories appear in Sec. 1614.704(a) through (m).

\(3\) When posting data pursuant to Sec. 1614.704(d) and (j), bases

of discrimination shall be arranged in the order in which they appear

in Sec. 1614.702(j). The category \`\`non-EEO basis\'\' shall be posted

last, after the basis of \`\`disability.\'\'

\(4\) When posting data pursuant to Sec. 1614.704(e) and (k), issues

of discrimination shall be arranged in the order in which they appear

in Sec. 1614.702(k). Only those issues set forth in Sec. 1614.702(k)

shall be listed.

\(g\) Agencies shall ensure that the data they post under this

subpart can be readily accessed through one or more commercial search

engines.

\(h\) Within 60 days of the effective date of this rule, an agency

shall provide the Commission the Uniform Resource Locator (URL) for the

data it posts under this subpart. Thereafter, new or changed URLs shall

be provided within 30 days.

\(i\) Processing times required to be posted under this subpart shall

be recorded using number of days.

Sec. 1614.704 Information to be posted\--all Federal agencies.

Commencing on January 31, 2004 and thereafter no later than 30 days

after the end of each fiscal quarter beginning on or after January 1,

2004, each Federal agency shall post the following current fiscal year

statistics on its public Internet Web site regarding EEO complaints

filed under 29 CFR part 1614.

\(a\) The number of complaints filed in such fiscal year.

\(b\) The number of individuals filing those complaints (including as

the agent of a class).

\(c\) The number of individuals who filed two or more of those

complaints.

\(d\) The number of those complaints, whether initially or through

amendment, raising each of the various bases of alleged discrimination

and the number of complaints in which a non-EEO basis is alleged.

\(e\) The number of those complaints, whether initially or through

amendment, raising each of the various issues of alleged

discrimination.

\(f\) The average length of time it has taken an agency to complete,

respectively, investigation and final action by an agency for:

\(1\) All complaints pending for any length of time during such

fiscal year;

\(2\) All complaints pending for any length of time during such

fiscal year in which a hearing was not requested; and

\(3\) All complaints pending for any length of time during such

fiscal year in which a hearing was requested.

\(g\) The number of complaints dismissed by an agency pursuant to 29

CFR 1614.107(a), and the average length of time such complaints had

been pending prior to dismissal.

\(h\) The number of complaints withdrawn by complainants.

(i)(1) The total number of final actions by an agency rendered in

such fiscal year involving a finding of discrimination and, of that

number,

\(2\) The number and percentage that were rendered without a hearing,

and

\(3\) The number and percentage that were rendered after a hearing.

\(j\) Of the total number of final actions by an agency rendered in

such fiscal year involving a finding of discrimination,

\(1\) The number and percentage of those based on each respective

basis,

\(2\) The number and percentage for each respective basis that were

rendered without a hearing, and

\(3\) The number and percentage for each respective basis that were

rendered after a hearing.

\(k\) Of the total number of final actions by an agency rendered in

such fiscal year involving a finding of discrimination,

\(1\) The number and percentage for each respective issue,

\(2\) The number and percentage for each respective issue that were

rendered without a hearing, and

\(3\) The number and percentage for each respective issue that were

rendered after a hearing.

\(l\) Of the total number of complaints pending for any length of

time in such fiscal year,

\(1\) The number that were first filed before the start of the then

current fiscal year,

\(2\) Of those complaints falling within subsection (l)(1),

\(i\) The number of individuals who filed those complaints, and

\(ii\) The number that are pending, respectively, at the

investigation, hearing, final action by an agency, and appeal step of

the process.

\(m\) Of the total number of complaints pending for any length of

time in such fiscal year, the total number of complaints in which the

agency has not completed its investigation within the time required by

29 CFR 1614.106(e)(2) plus any extensions authorized by that section or

Sec. 1614.108(e).

\[\[Page 43652\]\]

Sec. 1614.705 Comparative data\--all Federal agencies.

Commencing on January 31, 2004 and no later than January 31 of each

year thereafter, each Federal agency shall post year-end data

corresponding to that required to be posted by Sec. 1614.704 for each

of the five immediately preceding fiscal years (or, if not available

for all five fiscal years, for however many of those five fiscal years

for which data are available). For each category of data, the agency

shall post a separate figure for each fiscal year.

Sec. 1614.706 Other data.

Agencies shall not include or otherwise post with the data required

to be posted under Sec. 1614.704 and 1614.705 of this subpart any

other data, whether or not EEO related, but may post such other data on

another, separate, Web page.

Sec. 1614.707 Data to be posted by EEOC.

\(a\) Commencing on January 31, 2004 and thereafter no later than 30

days after the end of each fiscal quarter beginning on or after January

1, 2004, the Commission shall post the following current fiscal year

statistics on its public Internet Web site regarding hearings requested

under this part 1614.

\(1\) The number of hearings requested in such fiscal year.

\(2\) The number of individuals filing those requests.

\(3\) The number of individuals who filed two or more of those

requests.

\(4\) The number of those hearing requests involving each of the

various bases of alleged discrimination.

\(5\) The number of those hearing requests involving each of the

various issues of alleged discrimination.

\(6\) The average length of time it has taken EEOC to complete the

hearing step for all cases pending at the hearing step for any length

of time during such fiscal year.

(7)(i) The total number of administrative judge (AJ) decisions

rendered in such fiscal year involving a finding of discrimination and,

of that number,

\(ii\) The number and percentage that were rendered without a

hearing, and

\(iii\) The number and percentage that were rendered after a hearing.

\(8\) Of the total number of AJ decisions rendered in such fiscal

year involving a finding of discrimination,

\(i\) The number and percentage of those based on each respective

basis,

\(ii\) The number and percentage for each respective basis that were

rendered without a hearing, and

\(iii\) The number and percentage for each respective basis that were

rendered after a hearing.

\(9\) Of the total number of AJ decisions rendered in such fiscal

year involving a finding of discrimination,

\(i\) The number and percentage for each respective issue,

\(ii\) The number and percentage for each respective issue that were

rendered without a hearing, and

\(iii\) The number and percentage for each respective issue that were

rendered after a hearing.

\(10\) Of the total number of hearing requests pending for any length

of time in such fiscal year,

\(i\) The number that were first filed before the start of the then

current fiscal year, and

\(ii\) The number of individuals who filed those hearing requests in

earlier fiscal years.

\(11\) Of the total number of hearing requests pending for any length

of time in such fiscal year, the total number in which the Commission

failed to complete the hearing step within the time required by Sec.

1614.109(i).

\(b\) Commencing on January 31, 2004 and thereafter no later than 30

days after the end of each fiscal quarter beginning on or after January

1, 2004, the Commission shall post the following current fiscal year

statistics on its public Internet Web site regarding EEO appeals filed

under part 1614.

\(1\) The number of appeals filed in such fiscal year.

\(2\) The number of individuals filing those appeals (including as

the agent of a class).

\(3\) The number of individuals who filed two or more of those

appeals.

\(4\) The number of those appeals raising each of the various bases

of alleged discrimination.

\(5\) The number of those appeals raising each of the various issues

of alleged discrimination.

\(6\) The average length of time it has taken EEOC to issue appellate

decisions for:

\(i\) All appeals pending for any length of time during such fiscal

year;

\(ii\) All appeals pending for any length of time during such fiscal

year in which a hearing was not requested; and

\(iii\) All appeals pending for any length of time during such fiscal

year in which a hearing was requested.

(7)(i) The total number of appellate decisions rendered in such

fiscal year involving a finding of discrimination and, of that number,

\(ii\) The number and percentage that involved a final action by an

agency rendered without a hearing, and

\(iii\) The number and percentage that involved a final action by an

agency after a hearing.

\(8\) Of the total number of appellate decisions rendered in such

fiscal year involving a finding of discrimination,

\(i\) The number and percentage of those based on each respective

basis of discrimination,

\(ii\) The number and percentage for each respective basis that

involved a final action by an agency rendered without a hearing, and

\(iii\) The number and percentage for each respective basis that

involved a final action by an agency rendered after a hearing.

\(9\) Of the total number of appellate decisions rendered in such

fiscal year involving a finding of discrimination,

\(i\) The number and percentage for each respective issue of

discrimination,

\(ii\) The number and percentage for each respective issue that

involved a final action by an agency rendered without a hearing, and

\(iii\) The number and percentage for each respective issue that

involved a final action by an agency rendered after a hearing.

\(10\) Of the total number of appeals pending for any length of time

in such fiscal year,

\(i\) The number that were first filed before the start of the then

current fiscal year, and

\(ii\) The number of individuals who filed those appeals in earlier

fiscal years.

\[FR Doc. E6-12432 Filed 8-1-06; 8:45 am\]

BILLING CODE 6570-01-P