43498 Federal Register / Vol. 77, No. 143 / Wednesday, July 25, 2012 / Rules and Regulations 

Drug Coverage; 93.774 Medicare 

Supplementary Medical Insurance; 96.002 

Social Security—Retirement Insurance.) 

List of Subjects in 20 CFR Part 418 

Administrative practice and 

procedure, Aged, Blind, Disability 

benefits, Public assistance programs, 

Reporting and recordkeeping 

requirements, Supplemental Security 

Income (SSI), Medicare subsidies. 

Michael J. Astrue, 

Commissioner of Social Security. 

Accordingly, the interim final rule 

amending 20 CFR chapter III, part 418, 

subpart B and adding subpart C that was 

published at 75 FR 75884 on December 

7, 2010, is adopted as a final rule 

without change. 

[FR Doc. 2012–17935 Filed 7–24–12; 8:45 am] 

BILLING CODE 4191–02–P 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 

29 CFR Part 1614 

RIN Number 3046–AA73 

Federal Sector Equal Employment 

Opportunity 

AGENCY: Equal Employment 

Opportunity Commission. 

ACTION: Final rule. 

SUMMARY: The Equal Employment 

Opportunity Commission (‘‘EEOC’’ or 

‘‘Commission’’) is issuing this final rule 

to revise its regulations for processing 

equal employment opportunity 

complaints by federal sector employees 

and job applicants. The revisions 

implement those recommendations of 

the Commission’s Federal Sector 

Workgroup which require regulatory 

changes. The revisions include: 

reaffirming the existing statutory 

requirement that agencies comply with 

EEOC regulations, Management 

Directives, and Bulletins; providing for 

EEOC notices to non-compliant 

agencies; permitting pilot projects for 

EEO complaint processing; requiring 

agencies to issue a notice of rights to 

complainants when the investigation 

will not be timely completed; requiring 

agencies to submit complaint files and 

appeals documents to EEOC in digital 

formats; and making administrative 

judge decisions on the merits of class 

complaints final with both parties 

having the right to appeal to EEOC. The 

Commission is engaged in further 

review of the Federal sector EEO 

complaint process in order to improve 

its quality and efficiency. The current 

rulemaking constitutes the 

Commission’s initial step in that review. 

The Commission will consider 

additional reforms, including, but not 

limited to, regulatory changes. 

DATES: Effective September 24, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Thomas J. Schlageter, Assistant Legal 

Counsel, Kathleen Oram, Senior 

Attorney, or Gary Hozempa, Senior 

Attorney, Office of Legal Counsel, 202– 

663–4640 (voice), 202–663–7026 (TTY). 

(These are not toll free numbers.) This 

notice is also available in the following 

formats: Large print, braille, audio tape, 

and electronic file on computer disk. 

Requests for this notice in an alternative 

format should be made to EEOC’s 

Publications Center at 1–800–669–3362 

(voice) or 1–800–800–3302 (TTY). 

SUPPLEMENTARY INFORMATION: 

Introduction 

EEOC enforces the statutes that 

prohibit workplace discrimination in 

the federal government. These statutes 

include: section 717 of Title VII of the 

Civil Rights Act of 1964, which 

prohibits discrimination against 

applicants and employees based on 

race, color, religion, sex, and national 

origin; section 501 of the Rehabilitation 

Act of 1973, which prohibits 

employment discrimination on the basis 

of disability; section 15 of the Age 

Discrimination in Employment Act of 

1967, which prohibits employment 

discrimination on the basis of age; the 

Equal Pay Act of 1963, which prohibits 

sex-based wage discrimination; and the 

Genetic Information Nondiscrimination 

Act of 2008, which prohibits 

employment discrimination on the basis 

of genetic information. EEOC is 

responsible under these statutes for 

processing equal employment 

opportunity (EEO) complaints by 

Federal employees and applicants. 

The EEO complaint process is 

initiated when a federal employee or job 

applicant contacts an EEO counselor to 

allege discrimination. If the allegation is 

not resolved in counseling, the 

individual may file a formal EEO 

complaint with the employing agency 

and that agency investigates the 

complaint. At the conclusion of the 

investigation, the complainant may 

request a hearing before an EEOC 

administrative judge or a final decision 

by the agency. After the hearing or final 

decision, the complainant may appeal to 

EEOC. Complainants also have the right 

to sue the alleged discriminating agency 

in federal district court if they are not 

satisfied with the administrative 

resolution of their complaints. 

In 2004, former EEOC Chair Cari M. 

Dominguez asked Commissioner Stuart 

J. Ishimaru to lead a workgroup to 

develop consensus recommendations 

from the Commissioners for 

improvements to the EEO complaint 

process. The Federal Sector Workgroup 

considered testimony and submissions 

from the November 12, 2002 

Commission meeting on federal sector 

reform, draft staff proposals for federal 

sector reform, and numerous 

submissions from internal and external 

stakeholders with suggestions for 

improvements to the federal sector 

process. The Workgroup determined 

that it did not have internal consensus 

for large scale revision of the federal 

sector EEO complaint process at the 

time, but that there was agreement on 

several discrete changes to the existing 

regulations that would clarify or build 

on the improvements made by the last 

major revisions to 29 CFR Part 1614 in 

1999. The EEOC plans to accompany 

this final rule with the issuance of 

additional guidance in Management 

Directive 110 and other program 

changes at EEOC. This final rule is part 

of an ongoing review by the 

Commission of the federal sector EEO 

complaint process in which the 

Commission is examining 

recommendations regarding the 

investigative function, including 

perceived conflicts of interest in the 

way investigations are conducted and 

alternatives to the current investigation 

process, and the hearings and appellate 

review process. 

A notice of proposed rulemaking 

(NPRM) was circulated to all agencies 

for comment pursuant to Executive 

Order 12067 and subsequently 

published in the Federal Register on 

December 21, 2009. 74 FR 67839 (2009). 

The notice proposed changes to the 

Commission’s federal sector EEO 

complaint processing regulations at 29 

CFR Part 1614 to implement the 

recommendations of the Federal Sector 

Workgroup. It sought public comment 

on those proposals. 

The Commission received thirty-five 

public comments on the NPRM: 

fourteen comments from federal 

agencies; five comments from civil 

rights groups; five comments from 

unions and other groups; five comments 

from attorneys; and six comments from 

individuals. The Commission has 

carefully considered all of the 

comments and has made several 

changes to the NPRM in response to the 

comments. The comments on the NPRM 

and the changes made are discussed 

more fully below. 

Agency Process 

The Workgroup considered many 

recommendations for improvement to 


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the parts of the federal sector EEO 

complaint process for which the 

agencies bear responsibility— 

counseling, investigations, and final 

actions. The Workgroup made a number 

of non-regulatory and regulatory 

recommendations to improve the agency 

process. This final rule contains the 

following changes to the agency EEO 

complaint process in part 1614. 

Compliance 

The final rule adds two new 

paragraphs to § 1614.102. One 

paragraph, § 1614.102(e), requires that 

agency EEO programs comply with part 

1614 and the Management Directives 

and Bulletins issued by EEOC 

(hereinafter ‘‘compliance proposal’’) to 

carry out section 717 of Title VII of the 

Civil Rights Act of 1964, as amended, 42 

U.S.C. 2000e–16, and indicates that the 

Commission will review programs for 

compliance. The final rule further 

provides that, as part of EEOC’s 

compliance efforts, the Chair may issue 

notices to agencies when noncompliance is found, and may publicly 

identify non-compliant agencies 

(hereinafter ‘‘program review 

proposal’’). With these provisions, the 

Commission intends to re-emphasize all 

agencies’ obligations to comply with 

EEOC’s ‘‘rules, regulations, orders, and 

instructions,’’ as required by section 717 

of Title VII, 42 U.S.C 2000e–16(b), and 

to provide some additional mechanisms 

for reviewing and seeking compliance 

from agencies that fail to comply with 

the requirements of Part 1614, 

Management Directive 110, 

Management Directive 715, and 

Management Bulletin 100–1, or any 

Management Directives or Bulletins that 

may be issued in the future to carry out 

section 717 of Title VII of the Civil 

Rights Act of 1964, as amended, 42 

U.S.C 2000e–16. 

The majority of comments, including 

those submitted by several agencies, 

supported both proposals, with more 

than a third of them recommending that 

EEOC adopt stronger provisions, such as 

making reports of non-compliance 

public and providing for sanctions 

against non-complying agencies. A 

handful of agencies objected to the 

compliance proposal, arguing that it is 

duplicative of Title VII’s requirement 

that agencies comply with EEOC 

guidance and instructions, and that, if 

enacted, the compliance proposal will 

give regulatory effect to EEOC 

Management Directives and Bulletins 

without notice and comment, in 

violation of the Administrative 

Procedure Act (APA). With respect to 

the program review proposal, several 

agencies requested that the regulation 

specifically provide for agency 

opportunity to comply or provide an 

explanation for non-compliance before 

EEOC issues a notice of noncompliance. 

EEOC has slightly modified the 

proposed language of the NPRM to 

remove a reference to the Chair 

identifying non-compliant agencies in 

the Annual Report on the Federal 

Workforce, and has replaced it with a 

more general provision stating that, if 

the Office of Federal Operation’s (OFO) 

attempts at compliance are not 

successful, the Chair may publicly 

identify non-compliant agencies. The 

compliance proposal derives from 

section 717(b) of Title VII, 42 U.S.C. 

2000e–16(b), which requires an agency 

to comply with EEOC rules and 

directives pertaining to federal sector 

EEO programs (‘‘the Equal Employment 

Opportunity Commission shall have 

authority to enforce the provisions of 

subsection (a) of this paragraph through 

appropriate remedies * * * and shall 

issue such rules, regulations, orders and 

instructions as it deems necessary and 

appropriate to carry out its 

responsibilities under this section 

* * *. The head of each such 

department, agency, or unit shall 

comply with such rules, regulations, 

orders, and instructions * * *).’’ 

Similarly, Executive Order 12067 

authorizes EEOC to develop rules, 

policies, and guidelines to administer 

the federal sector EEO program and 

requires agencies to comply with those 

directives. While the compliance 

proposal, as some agencies noted, 

reiterates the authority given to EEOC 

under Title VII, it has been EEOC’s 

experience that not all agencies 

understand that they are required to 

comply not only with the rules set forth 

in 29 CFR part 1614, but also with the 

compulsory instructions in EEOC’s 

Directives and Bulletins, such as MD– 

110. Therefore, the compliance proposal 

is necessary to underscore both EEOC’s 

authority over the federal sector EEO 

program and an agency’s duty to 

maintain its EEO program consistent 

with EEOC’s mandatory directives. 

Agency concerns that the compliance 

proposal will deny them an opportunity 

to comment upon orders and procedures 

that EEOC may issue in the future are 

misplaced. Under Executive Order 

12067, before EEOC issues a new rule, 

directive, or bulletin about the federal 

sector EEO program, it must first afford 

each federal agency an opportunity to 

comment, advise and consult. As a 

result, any new rule, directive, or 

bulletin contemplated by EEOC will go 

through this interagency coordination 

process and therefore no EEOC rule, 

directive, or bulletin, will be issued 

without agency notice and comment. 

With respect to those agency 

objections that specifically rely on the 

APA, the National Employment Lawyers 

Association (NELA), in its comments, 

argues that ‘‘the relationship between 

the EEOC and federal agencies is not 

governed by the APA, which allows a 

challenge to agency action only by a 

‘person suffering legal wrong.’ ’’ See 5 

U.S.C. 702. Under the APA, a ‘‘person’’ 

includes entities ‘‘other than agencies.’’ 

5 U.S.C. 551(2). Therefore, NELA 

argues, an agency is not an entity 

afforded the protection an individual 

enjoys under the APA. Even assuming 

that an agency lacks standing under the 

APA to complain about APA 

protections, EO 12067 provides agencies 

the notice and comment protections 

about which the agencies expressed 

concerns in their comments. As noted 

above, agencies will have the 

opportunity to review and comment 

upon future EEOC rules, directives, and 

bulletins before they are issued. 

EEOC’s intent is to assist agencies in 

perfecting their EEO programs and to 

persuade agencies whose EEO programs 

fall short of EEOC standards to correct 

any noted deficiencies. There will not 

be a single process for determining noncompliance. Each situation will depend 

upon the nature of the alleged noncompliance, how the non-compliance 

comes to EEOC’s attention, and how the 

agency responds to EEOC’s inquiries 

and attempts to obtain compliance. 

Therefore, it is not feasible to explain 

how EEOC will determine in every 

instance whether an agency is in 

compliance with 29 CFR part 1614 or 

the mandatory language in EEOC’s 

Directives and Bulletins. In all 

instances, however, before the Chair 

issues an agency a notice of noncompliance, the agency will be given a 

reasonable opportunity to justify its 

non-compliance or persuade EEOC that 

it is in compliance with EEOC’s 

regulation or the mandatory sections of 

EEOC’s Directives and Bulletins. As 

appropriate, EEOC may also make the 

Chair’s notice of non-compliance 

public. The program review procedures 

will be set out in MD–110. 

Pilot Projects 

The second new paragraph in 

§ 1614.102 permits EEOC to grant 

agencies variances from particular 

provisions of part 1614 to conduct pilot 

projects for processing complaints in 

ways other than those prescribed in part 

1614. The NPRM provided that pilots 

would be subject to EEOC approval by 

vote of the Commissioners and that 

approval would usually not be granted 


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43500 Federal Register / Vol. 77, No. 143 / Wednesday, July 25, 2012 / Rules and Regulations 

for more than 12 months. The 

Commission supports pilot projects 

because they can provide helpful data 

for future recommendations regarding 

changes to the federal sector EEO 

complaint process. 

All of the agencies and several other 

commenters supported the pilot projects 

proposal. In the NPRM, the Commission 

specifically requested comments on the 

proposed 12 month maximum 

timeframe for pilot projects. Comments 

on the appropriate timeframe for pilot 

projects were mixed, with some noting 

that a year is sufficient, and others 

arguing that a two year timeframe would 

be preferable. The majority of 

commenters on the timeframe 

recommended that EEOC permit 

extensions of whatever timeframe is 

adopted. In addition, several comments 

suggested that agencies be permitted to 

keep pilot projects in place until all 

complaints that have entered the pilot 

project are fully processed. About a 

third of the commenters expressed 

concerns about the pilot project 

proposal. Some recommended that pilot 

projects be limited to the investigative 

stage only. Some suggested that pilot 

projects should be entirely voluntary 

with an opt-out feature. Others 

recommended that EEOC include in the 

regulation criteria that will ensure the 

protection of complainants’ rights in 

pilot projects. Finally, some 

commenters noted that federal 

employee unions should be involved in 

the development of agency pilot 

projects. 

We have amended § 1614.102(f) to 

extend the maximum timeframe for 

variances from the requirements of part 

1614 for pilot projects to 24 months. We 

believe that the proposed 12 month 

maximum timeframe was too short for 

some pilot projects to provide 

meaningful data for analysis of 

alternatives to the part 1614 process. We 

note, however, that the timeframe is a 

maximum only, not a minimum, and 

that agencies may develop pilot projects 

that last less than 24 months as 

appropriate. We have also added a 

provision giving the Director of the 

Office of Federal Operations authority to 

grant, for good cause shown, requests 

for extensions of variances for up to 12 

months. We note as well that the 24 

month maximum timeframe for pilot 

projects will permit agencies to accept 

complaints into pilot projects for up to 

24 months, and that agencies may 

conclude processing those complaints 

in the pilot project for a reasonable 

period thereafter. 

We have also added a sentence to the 

regulation stating that pilot projects 

must require that complainants 

knowingly and voluntarily opt-in to the 

pilot project. It was always the 

Commission’s intention that 

complainants must affirmatively choose 

to participate in pilot projects, and that, 

if they do not opt-in, their complaints 

would be processed under the part 1614 

process. We note that the Commission 

plans to issue guidance in its 

Management Directive 110 on 

additional criteria that the Commission 

will consider for pilot projects, e.g., 

requirements that such projects are not 

a subterfuge for diminishing 

complainants’ rights, that plans for 

publicizing the pilot among agency 

employees should be detailed, that 

criteria for evaluating the success of the 

pilot should be adequate, that interim 

evaluations will be done, that the 

proposed length of the pilot is justified, 

and that anticipated start and end dates 

are reasonable. Guidance will also be 

included on the timeframes for pilot 

projects and requests for extensions. 

Agencies may need to consult or 

negotiate with their unions about pilot 

project proposals and, if that is the case, 

they must do so before submitting 

proposals to EEOC for approval. 

The Commission believes that it is 

preferable that EEOC provide oversight 

of pilot projects rather than having 

agencies secure independent authority 

to operate pilot projects that deviate 

from the requirements of part 1614, as 

has occurred in the past. Commission 

approval of pilot projects will ensure 

that agency management does not have 

unfettered discretion and that pilots will 

not disadvantage complainants. 

Notice of Rights 

The final rule adds a new paragraph 

to § 1614.108 Investigation of 

complaints, that requires agencies that 

have not completed an investigation 

within the 180-day time limit for 

investigations (or up to 360 days if the 

complaint has been amended) to send a 

notice to the complainant indicating 

that the investigation is not complete, 

providing the date by which it will be 

completed, and explaining that the 

complainant has the right to request a 

hearing or file a lawsuit. 

The majority of agencies that 

commented opposed the notice 

proposal, arguing variously that it is 

unnecessary, duplicative, and would 

not add value to the complaint process. 

A few agencies, however, agreed with 

the proposal. All other commenters 

supported the notice proposal, with half 

of them recommending that it should 

include stronger provisions, including 

sanctions against agencies that fail to 

complete an investigation in 180 days. 

The Commission is retaining the 

notice requirement in the final rule. The 

Commission believes that it is important 

that agencies issue a notice to 

complainants about their rights in the 

EEO process at the conclusion of the 

180-day investigation period so that 

they can make informed decisions about 

whether to wait for completion of the 

investigation, request an immediate 

hearing, or file a lawsuit. In addition, 

the Commission believes that requiring 

such a notice may shorten delays in 

agency investigations by providing an 

incentive for agencies to timely 

complete their investigations. The 

notice must be in writing, must describe 

the hearing process and include a 

simple explanation of discovery and 

burdens of proof, and must contain an 

estimated investigation completion date. 

The Commission further notes that a full 

range of sanctions are available should 

an agency not complete its investigation 

within the required time period. See, 

Royal v. Dept. of Veterans Affairs, EEOC 

Request No. 0520080052 (Sept. 25, 

2009); Reading v. Dept. of Veterans 

Affairs, EEOC Appeal No. 07A40125 

(October 12, 2006); Talahongva-Adams 

v. Dept. of the Interior, EEOC Appeal 

No. 0120081694 (May 28, 2010). Nor 

does a complainant waive his right to 

seek sanctions when an agency fails to 

complete its investigation within the 

required timeframe simply because a 

notice is issued by the agency. 

Sanctions may be warranted even if the 

complainant elects not to request a 

hearing but instead waits for the 

completion of the investigation, unless 

a specific extension of time has been 

sought from, and granted by, the 

complainant, or for other good cause 

shown. 

Rehabilitation Act Coverage 

In the NPRM, the Commission 

proposed to amend § 1614.103(b)(6) to 

comport with the coverage provisions of 

the Rehabilitation Act and state that part 

1614 applies to EEO complaints against 

the Government Printing Office, except 

for complaints under the Rehabilitation 

Act. We received only two comments on 

the proposal, both favorable. The final 

rule contains this revision. 

Retaliation 

EEOC proposed in the NPRM to 

amend § 1614.107(a)(5) to clarify that 

complaints alleging discrimination in 

proposals to take personnel actions or 

other preliminary steps to taking 

personnel actions should be dismissed 

unless the complaint alleges that the 

proposal or preliminary step is 

retaliatory. After explaining its rationale 

for this change, EEOC also discussed 


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Federal Register / Vol. 77, No. 143 / Wednesday, July 25, 2012 / Rules and Regulations 43501 

1Additionally, under 29 CFR 1614.105(a)(1), an 

aggrieved person is required to contact a counselor 

within 45 days of the date of the alleged 

discriminatory action unless that time period is 

extended pursuant to 29 CFR 1614.105(a)(2). 

Failure to contact a counselor within 45 days may 

result in dismissal under 29 CFR 1614.107(a)(2). An 

aggrieved person who wants to challenge a 

proposed or preliminary action, whether alone or in 

conjunction with a final action, should be mindful 

of the applicable time limits. In order to ensure that 

a retaliation claim based on a proposal or 

preliminary step will not be dismissed as untimely, 

the aggrieved person should contact a counselor 

within 45 days of that preliminary step or proposal. 

alternative language that had been 

suggested by an agency during the E.O. 

12067 interagency coordination. The 

alternative language provided that 

complaints alleging discrimination 

regarding a proposal to take a personnel 

action, or other preliminary step to 

taking a personnel action, shall be 

dismissed ‘‘except that with regard to a 

claim of retaliation, allegations of severe 

or repeated threats of adverse action 

may state a claim of a hostile work 

environment that is not subject to 

dismissal on such basis.’’ 

The majority of comments supported 

EEOC’s proposal. Non-agency comments 

were overwhelmingly supportive, and a 

handful of them specifically rejected the 

alternative discussed in the preamble. 

The Leadership Conference on Civil and 

Human Rights (LCCHR), for example, 

argued that the alternative has no basis 

in law and that there is no plausible 

rationale for requiring a different 

standard for federal employees. Agency 

comments were mixed, with some 

supporting EEOC’s proposal, several 

supporting the alternative, and others 

simply criticizing EEOC’s proposal 

without mentioning the alternative. The 

agencies opposing EEOC’s proposal 

generally argued that the change would 

encourage premature complaints. 

EEOC agrees with the comments 

favoring its proposed change and has 

retained it in the final rule. The change 

to § 1614.107(a)(5) is consistent with 

EEOC policy guidance on retaliation as 

applied in the private sector. See 2 

EEOC Compliance Manual § 8–II.D.3 

(1998) (‘‘[A]ny adverse treatment that is 

based on a retaliatory motive and is 

reasonably likely to deter the charging 

party or others from engaging in 

protected activity’’ is prohibited 

retaliation). Moreover, the amendment 

codifies EEOC appellate decision 

precedent in the federal sector. See, e.g., 

Lorina D. Goodwin v. F. Whitten Peters, 

Secretary, Department of the Air Force, 

EEOC Appeal Nos. 01991301 & 

01A01796, 2000 WL 1616337 (October 

18, 2000) (holding that the 

complainant’s challenge of a proposed 

dismissal as being retaliatory stated a 

claim because ‘‘proposed actions can be 

considered adverse actions in the 

reprisal context if they are reasonably 

likely to deter protected activity’’). 

A number of commenters, such as the 

National Treasury Employees Union 

(NTEU), point out that it is possible that 

a supervisor might place an employee 

on a performance improvement plan or 

propose an adverse action against an 

employee with the intent of deterring 

that employee from filing or proceeding 

with an EEO complaint. And it is not 

difficult to imagine that the employee 

could be deterred. A proposed 

personnel action is not an empty gesture 

which an employee can ignore without 

fear of consequences. For example, 

when a manager proposes a removal for 

purported performance deficiencies, any 

employee not wanting to be fired 30 

days later must answer the proposal and 

attempt to refute the agency’s 

allegations of specific performance 

deficiencies. See generally 5 CFR 

432.105. Defending against a proposal 

can be a daunting task, even if the 

allegations are untrue. Knowing this, an 

unscrupulous manager who has been 

accused of employment discrimination 

could initiate a trumped-up proposed 

removal in order to cause the employee 

to drop the complaint and avoid 

termination. If this occurs, the manager 

would have engaged in prohibited 

retaliation under EEOC guidance and 

precedent, and under the Supreme 

Court’s holding in Burlington Northern 

& Santa Fe Railway Co. v. White, 548 

U.S. 53, 68 (2006) (Title VII’s antiretaliation provision protects 

individuals from a retaliatory action that 

a reasonable person would have found 

‘‘materially adverse,’’ which in the 

retaliation context means that the action 

might have deterred a reasonable person 

from opposing discrimination or 

participating in the EEO complaint 

process). Therefore, EEOC believes it is 

vitally important that an employee be 

able to challenge as retaliatory a 

preliminary step to a personnel action 

or a proposed action that is reasonably 

likely to deter that employee from 

engaging in protected activity. 

This revision to the dismissal 

provision does not change the standard 

for stating a claim of retaliation under 

Title VII. Agencies should dismiss 

retaliation complaints filed by 

complainants who have not engaged in 

prior EEO activity or opposed unlawful 

employment practices. Also, while 

agencies would no longer be able to 

dismiss a claim alleging that a proposal 

or preliminary step was retaliatory 

under 29 CFR 1614.107(a)(5), they 

would still evaluate the claim under the 

failure to state a claim dismissal 

provision in 29 CFR 1614.107(a)(1). 

Agencies should dismiss complaints of 

allegedly retaliatory proposals and other 

preliminary steps under 29 CFR 

1614.107(a)(1) if the alleged retaliatory 

actions are not materially adverse: that 

is, if the alleged retaliatory proposal or 

preliminary step would not dissuade a 

reasonable worker in the complainant’s 

circumstances from engaging in 

protected EEO activity.1

Not all preliminary steps or proposals 

are materially adverse. As noted in 

Burlington Northern, ‘‘[a]n employee’s 

decision to report discriminatory 

behavior cannot immunize that 

employee from those petty slights or 

minor annoyances that often take place 

at work and that all employees 

experience.’’ 548 U.S. at 68; see also 2 

EEOC Compliance Manual section 8– 

II.D.3 (1998) (‘‘[P]etty slights and trivial 

annoyances are not actionable, as they 

are not likely to deter protected 

activity.’’). Therefore, the challenged 

preliminary step or proposed action 

must be likely to deter a reasonable 

employee from protected activity. Given 

all the circumstances, a threatened letter 

of warning may not deter a reasonable 

complainant from filing a complaint, 

whereas a proposed suspension may 

have a deterring effect. ‘‘Context matters 

* * * for an ‘act that would be 

immaterial in some situations is 

material in others.’ ’’ Burlington 

Northern, 548 U.S. at 69 (quoting 

Washington v. Illinois Dept. of Revenue, 

420 F.3d 658, 661 (7th Cir. 2005)). 

The alternative language discussed in 

the preamble of the NPRM regarding 29 

CFR 1614.107(a)(5) limits actionable 

complaints alleging that a proposal or 

preliminary step is retaliatory to those 

containing allegations of ‘‘severe or 

repeated threats of adverse action’’ that 

‘‘state a claim of a hostile work 

environment.’’ The commenters 

opposed to the alternative, such as 

NTEU, Leadership Conference on Civil 

and Human Rights, and the NAACP 

Legal Defense & Educational Fund 

(LDEF), were concerned that the burden 

of proof necessary to establish a hostile 

work environment is greater than that 

necessary to show that a reasonable 

employee has been deterred from 

engaging in protected activity, 

especially in the context of threatened 

actions. These commenters noted that, 

under the alternative language, 

retaliation involving only a single or a 

few threats would not rise to the 

pervasive level necessary to establish a 

hostile environment and thus would be 

permitted unless the actions are 

sufficiently severe. They expressed 

concern that only a threat pertaining to 


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43502 Federal Register / Vol. 77, No. 143 / Wednesday, July 25, 2012 / Rules and Regulations 

an ultimate employment action, such as 

a removal, would suffice to establish 

severity under the alternative standard 

and thus state an actionable claim for 

retaliation. Under EEOC’s proposal, on 

the other hand, the inquiry focuses more 

on the context in which the threat is 

made and the effect that threat would 

have on a reasonable employee. It is 

highly unlikely that a threat to transfer 

an employee’s assigned duties without 

loss of pay or position, as occurred in 

Burlington Northern, would rise to the 

requisite level of pervasiveness or 

severity under the alternative approach, 

but it could reasonably deter protected 

activity and thus state a claim under 

EEOC’s proposal. 

The Commission believes the 

concerns expressed in the comments 

about the alternative proposal are well 

founded. Burlington Northern states that 

the anti-retaliation provisions of Title 

VII do not mirror the antidiscrimination provisions and that this 

difference must be given weight when 

interpreting the statute. 548 U.S. 53, at 

62–63. As discussed in Martinelli v. 

Penn Millers Ins. Co., 269 Fed.Appx. 

226, 230, 2008 WL 723973 (3d Cir. 

March 18, 2008), after Burlington 

Northern, an employee claiming 

‘‘retaliation by workplace harassment’’ 

is ‘‘no longer required to show that the 

harassment was severe or pervasive 

* * *.’’ See also Thomas v. Atmos 

Energy Corp., 223 Fed.Appx. 369, 376 

n.2, 2007 WL 866709 (5th Cir. March 21, 

2007) (‘‘Burlington Northern set a lower 

threshold for finding an adverse 

employment action’’ and thus the 

employee need not show that he was 

retaliated against with respect to an 

‘‘ultimate employment action’’ such as a 

removal). As noted by the LDEF, the 

alternative language ignores this 

distinction between the anti-retaliation 

and anti-discrimination provisions and 

therefore would require a higher 

threshold both to state a claim and to 

prevail on claims of retaliation. 

Additionally, the alternative does not 

account for threats or actions not related 

to the workplace, which also is 

inconsistent with the Court’s ruling in 

Burlington Northern. 548 U.S. 53, at 63. 

Adopting the alternative language 

would impose a higher threshold upon 

federal employees than exists for 

employees in the private sector and 

would therefore permit a federal agency 

to take actions against its employees 

that would be retaliatory if committed 

by a private employer. It also would 

depart from EEOC’s own federal sector 

precedent regarding retaliation and 

threatened actions. In short, there is no 

legitimate reason for requiring that only 

federal employees be subject to the more 

stringent ‘‘severe or pervasive’’ standard 

applicable to hostile work environment 

claims. The alternative approach would 

make it harder for federal employees to 

prove retaliation than their privatesector counterparts and would result in 

significantly less enforcement of the 

anti-retaliation protections afforded 

federal employees. 

EEOC Process 

Electronic Filing 

In the NPRM, the Commission 

proposed to require that agencies submit 

appellate records and complaint files to 

the Commission electronically. The 

NPRM provided that complainants 

would be encouraged, but not required, 

to submit appeals and other 

documentation electronically. The 

majority of commenters expressed 

concerns about the electronic filing 

proposal. The agencies noted that they 

are concerned about confidentiality of 

the records and the security of whatever 

system EEOC employs, noting that all 

documents would have to be encrypted. 

They also expressed concerns about 

costs and the need to budget for the 

requirement. A handful of other 

commenters supported the proposal, 

while others noted that EEOC needs to 

study security measures, and that the 

Commission should ensure that there is 

no adverse impact on complainants who 

continue to submit paper documents. 

Several commenters suggested that 

EEOC model its electronic filing system 

on the system used by the Merit 

Systems Protection Board, which 

permits electronic filing after a party has 

registered, but does not require it. 

We wish to reassure agencies and the 

public that EEOC will comply with all 

federal electronic information security 

requirements with respect to accepting 

digital records. EEOC has launched a 

pilot Web site portal electronic filing 

system that is available to all agencies. 

In addition, EEOC currently accepts 

digital complaint files from a number of 

agencies. Some agencies place scanned 

files in a secure location on their own 

Web sites that EEOC accesses with a 

password. Other agencies submit 

password-protected CDs containing 

digital complaint files to EEOC. We 

have revised the regulation to require 

the submission of digital records rather 

than electronic filing. This will allow 

agencies and others to use the EEOC’s 

portal (when available) or any of the 

other means described above to submit 

digital appeals, complaint files, and 

other filings. The final rule requires that 

agencies submit these records in an 

acceptable format to the Office of 

Federal Operations, absent a showing of 

good cause why the agency cannot do 

so. We do not anticipate that cost will 

constitute good cause in most cases 

since the cost of scanning equipment is 

relatively inexpensive and the staff time 

required to scan documents will 

probably be the same or less than the 

staff time required to make paper 

photocopies of documents. 

Complainants will be encouraged, but 

not required, to submit digital appellate 

records to the Office of Federal 

Operations. EEOC will provide more 

detailed guidance regarding acceptable 

digital formats and what constitutes a 

showing of good cause in Management 

Directive 110. 

Filing Date for Opposition Briefs 

In the NPRM, the Commission 

proposed to revise § 1614.403(f) to 

require that briefs in opposition to 

appeals be submitted to the Commission 

and served on the opposing party within 

35 days of service of the statement or 

brief supporting the appeal (as opposed 

to the existing requirement that they be 

filed within 30 days of receipt of the 

statement or brief supporting the 

appeal.) We requested additional 

comments on irradiation-based mail 

delay experience. Nearly all of the 

agencies that commented reported that 

they often have significant delays in 

receiving mail because of the irradiation 

process. They noted that delays can 

range from ten days to three or four 

weeks. If the deadline for filing 

opposition briefs is tied to service, 

rather than receipt, of the supporting 

brief, agencies experiencing irradiation 

mail delays will have fewer days to 

prepare and submit opposition briefs. 

Because of the frequency and length of 

irradiation delays, the Commission can 

anticipate many motions for extension 

or apparently untimely briefs with 

consequent increase in the number of 

motions for default, which would 

unnecessarily burden the parties and 

Commission staff. Accordingly, we have 

removed the proposed amendment from 

this final rule, and the current 

regulation providing that statements or 

briefs in opposition must be filed within 

30 days of receipt of the statement or 

brief supporting the appeal will remain 

in effect. 

Reconsideration 

The final rule amends § 1614.405(b) 

(redesignated as § 1614.405(c)) to 

provide that decisions under the section 

are final for purposes of filing a civil 

action in federal court, unless a timely 

request for reconsideration is filed by a 

party to the case. We received only two 

comments on this proposal, both 

favorable. 


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Federal Register / Vol. 77, No. 143 / Wednesday, July 25, 2012 / Rules and Regulations 43503 

Breach 

In the NPRM, the Commission 

proposed to revise § 1614.504(c) to 

differentiate the remedies available for 

breach of settlement agreements and 

breach of final decisions. We received 

only a handful of comments on the 

proposal; most were positive. The final 

rule retains the provision. For breach of 

a settlement, the regulation continues to 

state that the Commission may order 

compliance or reinstatement of the 

complaint for further processing from 

the point processing ceased, whereas for 

breach of a final decision, the regulation 

states that compliance is the only 

remedy. The Commission is making 

final its proposed editorial changes to 

§§ 1614.402, 1614.405(a), and 1614.409 

to correct errors and omissions. 

Class Complaints 

The Workgroup carefully considered 

the class complaint process and made a 

number of recommendations to improve 

its effectiveness. As a result of those 

recommendations, in the NPRM the 

Commission proposed to revise the class 

complaint regulations to make an 

administrative judge’s decision on the 

merits of a class complaint a final 

decision, which the agency can fully 

implement or appeal in its final action. 

Currently, the administrative judge 

issues final decisions on the acceptance 

of class complaints, and the merits of 

individual complaints, but only issues 

recommended findings and conclusions 

on the merits of class complaints, which 

the agency may accept, reject, or modify 

in its final decision. Previously, in a 

1999 rulemaking, the Commission 

changed the administrative judge’s 

recommended decisions on the merits of 

individual complaints and on the 

acceptance of class complaints to final 

decisions that must be fully 

implemented or appealed by the agency 

in its final action. With the current 

change, all administrative judge 

decisions will be final decisions which 

the agency can either implement in full 

or appeal. If the agency does not fully 

implement the administrative judge’s 

decision, it only has to appeal the parts 

of the decision that it wishes to contest. 

For example, if an administrative judge 

finds that the agency discriminated 

against the class and awards 

reinstatement and backpay, and if the 

agency disagrees with the award of 

reinstatement, the agency’s appeal need 

only challenge the reinstatement award. 

The Commission also proposed in the 

NPRM to provide for expedited 

processing of appeals of decisions to 

accept or dismiss class complaints 

(certification decisions) to shorten the 

class certification process. Specifically, 

the Commission proposed to amend 

§ 1614.405 to provide that decisions on 

appeals of decisions to accept or dismiss 

class complaints will be issued within 

90 days of receipt of the appeal. We 

received uniform comments supporting 

both class complaint process proposals. 

Therefore, the final rule retains both 

provisions. 

We note that, with respect to the class 

proposals, several commenters 

recommended additional changes to the 

class complaint process involving issues 

such as: Holding individual complaints 

in abeyance and subsuming individual 

complaints, permitting complainants to 

opt-out of a class complaint, changing 

the requirement that agencies notify 

class members of certification before 

appeal, mandating pre-certification 

discovery, and ensuring that certified 

cases are promptly assigned and 

processed. While these other comments 

fall outside of the scope of the changes 

proposed in the NPRM, the Commission 

will consider them for a future 

rulemaking. In addition, some of the 

recommendations for additional 

changes not proposed in the NPRM are 

not regulatory, and the Commission will 

separately consider whether any of them 

should be implemented independently 

from the final rule. 

Other Changes 

The final rule amends § 1614.109(g) to 

rename the section ‘‘Summary 

Judgment’’ instead of ‘‘Decision without 

a hearing.’’ This change is intended to 

convey more clearly the Commission’s 

policy that the standards of Rule 56 of 

the Federal Rules of Civil Procedure 

governing summary judgments apply in 

the EEOC hearings process, except 

insofar as Commission decision 

precedent has held or holds otherwise. 

This change is not intended, however, 

to alter existing Commission policy or 

practice; Commission decisions on the 

summary judgment process will 

continue to apply. 

The final rule includes an editorial 

change to § 1614.204(f)(1) to correct the 

omission of the word ‘‘shall.’’ 

The final rule also amends 

§ 1614.302(c)(2) to correct an erroneous 

cross reference. The section now refers 

to § 1614.107(a)(4). 

Finally, the Commission proposed in 

the NPRM to revise § 1614.502(c) to 

change the time frame within which 

agencies must provide the relief ordered 

from 60 days to 120 days. The 

regulation currently requires an agency 

to pay an administrative complainant 

who prevails before the EEOC within 60 

days of EEOC’s final decision. Since 

1991, however, complainants have had 

up to 90 days to file suit in United 

States district court if they are 

dissatisfied with EEOC’s decision. 

Public comments were mixed on this 

proposal. While a couple of agencies 

supported it, individual commenters 

strongly opposed it, recommending that 

relief be provided immediately, and that 

remedial orders should be binding 

regardless of whether suit is filed. Other 

commenters suggested that EEOC 

should allow complainants to certify 

that they will not file suit, and then 

require agencies to provide relief within 

30 or 60 days of certification. The 

Commission is sympathetic to the 

commenters’ concerns about receiving 

relief in a timely fashion, but also 

recognizes that it is difficult in many 

instances for agencies to provide relief 

within the current 60 day timeframe. 

More importantly, the Commission 

believes that agencies should not be 

required to provide relief before the 

expiration of the complainants’ 90-day 

right to file suit period. In the final rule, 

the Commission is adopting the 

proposal to extend the timeframe for 

providing relief to 120 days. 

Regulatory Procedures 

Executive Orders 13563 and 12866 

This final rule has been drafted and 

reviewed in accordance with Executive 

Order (‘‘E.O.’’) 12866, ‘‘Regulatory 

Planning and Review,’’ as recently 

reaffirmed and supplemented by E.O. 

13563, ‘‘Improving Regulation and 

Regulatory Review.’’ This final rule is a 

‘‘significant regulatory action’’ under 

E.O. 12866, section 3(f)(1), and 

accordingly was submitted to the Office 

of Management and Budget for 

interagency review. In promulgating this 

final rule, the Commission has adhered 

to the regulatory philosophy and 

applicable principles set forth in E.O. 

13563, which directs agencies to 

propose or adopt a regulation only upon 

a reasoned determination that its 

benefits justify its cost (recognizing that 

some benefits and costs are difficult to 

quantify); tailor its regulations to 

impose the least burden on society, 

consistent with obtaining regulatory 

objectives; and select, in choosing 

among alternative regulatory 

approaches, those approaches that 

maximize net benefits (including 

potential economic, environmental, 

public health and safety, and other 

advantages; distributive impacts; and 

equity). 

Based on the information currently 

available, we anticipate that most of the 

changes involve no or negligible cost 

and will benefit the agencies or users of 

the process by clarifying obligations, 


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43504 Federal Register / Vol. 77, No. 143 / Wednesday, July 25, 2012 / Rules and Regulations 

correcting cross references, providing 

earlier appellate review, and providing 

quicker decisions from EEOC. Most 

agencies, for example, already comply 

with Part 1614 and EEOC’s Management 

Directives and Bulletins, as required by 

section 717(b) of Title VII of the Civil 

Rights Act of 1964, as amended. 

Therefore, continued compliance will 

not require additional expenditures. The 

compliance proposal may actually 

reduce costs, e.g., to the extent that the 

agency’s compliance obligation is 

clarified, it may save the agencies, 

complainants, and EEOC the time and 

costs of attempting to secure agency 

compliance. 

With respect to monitoring 

compliance, EEOC already engages in 

compliance activities with its Directives 

and Bulletins. Therefore, no new 

personnel will need to be hired and 

EEOC’s compliance efforts will not have 

to be increased. The only new provision 

is that the EEOC Chair may issue a 

notice of non-compliance that may be 

made public. The clarification of an 

agency’s compliance responsibilities 

and the possibility of a public notice 

will eliminate some non-compliance 

and shorten other instances of noncompliance. 

The cost that comes with most of the 

remaining changes is relatively small, 

and all costs are justified by the 

expected benefit and would only be 

borne by the federal government. 

Requiring an agency to notify the 

complainant when it will not complete 

an investigation in the required 

timeframe will have minimal cost but 

will provide an incentive for completing 

investigations timely while protecting 

the complainant’s rights. Electronic 

filing will reduce costs and time. The 

cost of pilot projects will depend upon 

what the individual agency proposes 

and is likely to be a savings; the benefit 

of such projects is that potential changes 

to the process will be tested before they 

are implemented government-wide. 

Regulatory Flexibility Act 

The Commission certifies under 5 

U.S.C. Sec. 605(b), enacted by the 

Regulatory Flexibility Act (Pub. L. 96– 

354), that this rule will not have a 

significant economic impact on a 

substantial number of small entities, 

because it applies exclusively to 

employees and agencies of the federal 

government. 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 

of the Unfunded Mandates Reform Act 

of 1995. 

Paperwork Reduction Act 

This regulation contains no 

information collection requirements 

subject to review by the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

Congressional Review Act 

This action pertains to agency 

management, personnel and 

organization and does not substantially 

affect the rights or obligations of nonagency 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 18, 2012. 

Jacqueline A. Berrien, 

Chair. 

Accordingly, for the reasons set forth 

in the preamble, the Equal Employment 

Opportunity Commission hereby 

amends chapter XIV of title 29 of the 

Code of Federal Regulations as follows: 

PART 1614—[AMENDED] 

■ 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, 

1969 Comp., p. 133; E.O. 12106, 3 CFR, 1978 

Comp., p. 263; Reorg. Plan No. 1 of 1978, 3 

CFR, 1978 Comp., p. 321. 

■ 2. In § 1614.102, add paragraphs (e) 

and (f) to read as follows: 

§ 1614.102 Agency program. 

* * * * * 

(e) Agency programs shall comply 

with this Part and the Management 

Directives and Bulletins that the 

Commission issues. The Commission 

will review agency programs from time 

to time to ascertain whether they are in 

compliance. If an agency program is 

found not to be in compliance, efforts 

shall be undertaken to obtain 

compliance. If those efforts are not 

successful, the Chair may issue a notice 

to the head of any federal agency whose 

programs are not in compliance and 

publicly identify each non-compliant 

agency. 

(f) Unless prohibited by law or 

executive order, the Commission, in its 

discretion and for good cause shown, 

may grant agencies prospective 

variances from the complaint processing 

procedures prescribed in this Part. 

Variances will permit agencies to 

conduct pilot projects of proposed 

changes to the complaint processing 

requirements of this Part that may later 

be made permanent through regulatory 

change. Agencies requesting variances 

must identify the specific section(s) of 

this Part from which they wish to 

deviate and exactly what they propose 

to do instead, explain the expected 

benefit and expected effect on the 

process of the proposed pilot project, 

indicate the proposed duration of the 

pilot project, and discuss the method by 

which they intend to evaluate the 

success of the pilot project. Variances 

will not be granted for individual cases 

and will usually not be granted for more 

than 24 months. The Director of the 

Office of Federal Operations for good 

cause shown may grant requests for 

extensions of variances for up to an 

additional 12 months. Pilot projects 

must require that participants 

knowingly and voluntarily opt-in to the 

pilot project. Requests for variances 

should be addressed to the Director, 

Office of Federal Operations. 

■ 3. In § 1614.103, revise paragraph 

(b)(6) to read as follows: 

§ 1614.103 Complaints of discrimination 

covered by this part. 

* * * * * 

(b) * * * 

(6) The Government Printing Office 

except for complaints under the 

Rehabilitation Act; and 

* * * * * 

■ 4. In § 1614.107, revise paragraph 

(a)(5) to read as follows: 

§ 1614.107 Dismissals of complaints. 

(a) * * * 

(5) That is moot or alleges that a 

proposal to take a personnel action, or 

other preliminary step to taking a 

personnel action, is discriminatory, 

unless the complaint alleges that the 

proposal or preliminary step is 

retaliatory; 

* * * * * 


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Federal Register / Vol. 77, No. 143 / Wednesday, July 25, 2012 / Rules and Regulations 43505 

■ 5. Amend § 1614.108 by redesignating 

paragraph (g) as paragraph (h), and 

adding a new paragraph (g) to read as 

follows: 

§ 1614.108 Investigation of complaints. 

* * * * * 

(g) If the agency does not send the 

notice required in paragraph (f) of this 

section within the applicable time 

limits, it shall, within those same time 

limits, issue a written notice to the 

complainant informing the complainant 

that it has been unable to complete its 

investigation within the time limits 

required by § 1614.108(f) and estimating 

a date by which the investigation will be 

completed. Further, the notice must 

explain that if the complainant does not 

want to wait until the agency completes 

the investigation, he or she may request 

a hearing in accordance with paragraph 

(h) of this section, or file a civil action 

in an appropriate United States District 

Court in accordance with § 1614.407(b). 

Such notice shall contain information 

about the hearing procedures. 

* * * * * 

§ 1614.109 [Amended] 

■ 6. In § 1614.109, revise the paragraph 

(g) subject heading to read ‘‘Summary 

Judgment’’. 

■ 7. Amend § 1614.204: 

■ a. In paragraph (f)(1), by removing the 

words ‘‘administrative judge notify’’ 

from the first sentence and adding in 

their place the words ‘‘administrative 

judge shall notify’’; 

■ b. By revising paragraphs (i), (j), and 

(k); 

■ c. In paragraph (l)(2), by removing the 

words ‘‘final decision’’ and adding in 

their place the words ‘‘final order’’; 

■ d. In paragraph (l)(3), by removing the 

words ‘‘final decision’’ in the first and 

next to last sentences and adding in 

their place the words ‘‘final order’’ and 

■ e. By revising the third sentence in 

paragraph (l)(3). 

The revisions read as follows: 

§ 1614.204 Class complaints. 

* * * * * 

(i) Decisions: The administrative 

judge shall transmit to the agency and 

class agent a decision on the complaint, 

including findings, systemic relief for 

the class and any individual relief, 

where appropriate, with regard to the 

personnel action or matter that gave rise 

to the complaint. If the administrative 

judge finds no class relief appropriate, 

he or she shall determine if a finding of 

individual discrimination is warranted 

and, if so, shall order appropriate relief. 

(j) Agency final action. (1) Within 60 

days of receipt of the administrative 

judge’s decision on the complaint, the 

agency shall take final action by issuing 

a final order. The final order shall notify 

the class agent whether or not the 

agency will fully implement the 

decision of the administrative judge and 

shall contain notice of the class agent’s 

right to appeal to the Equal Employment 

Opportunity Commission, the right to 

file a civil action in federal district 

court, the name of the proper defendant 

in any such lawsuit, and the applicable 

time limits for appeals and lawsuits. If 

the final order does not fully implement 

the decision of the administrative judge, 

then the agency shall simultaneously 

file an appeal in accordance with 

§ 1614.403 and append a copy of the 

appeal to the final order. A copy of 

EEOC Form 573 shall be attached to the 

final order. 

(2) If an agency does not issue a final 

order within 60 days of receipt of the 

administrative judge’s decision, then the 

decision of the administrative judge 

shall become the final action of the 

agency. 

(3) A final order on a class complaint 

shall, subject to subpart D of this part, 

be binding on all members of the class 

and the agency. 

(k) Notification of final action: The 

agency shall notify class members of the 

final action and relief awarded, if any, 

through the same media employed to 

give notice of the existence of the class 

complaint. The notice, where 

appropriate, shall include information 

concerning the rights of class members 

to seek individual relief, and of the 

procedures to be followed. Notice shall 

be given by the agency within 10 days 

of the transmittal of the final action to 

the agent. 

(l) * * * 

(3) * * * The claim must include a 

specific detailed showing that the 

claimant is a class member who was 

affected by the discriminatory policy or 

practice, and that this discriminatory 

action took place within the period of 

time for which class-wide 

discrimination was found in the final 

order. 

§ 1614.302 [Amended] 

■ 8. In § 1614.302, in paragraph (c)(2), 

remove the words ‘‘§ 1614.107(d)’’ 

wherever they appear and add in their 

place the words ‘‘§ 1614.107(a)(4)’’. 

§ 1614.401 [Amended] 

■ 9. In § 1614.401, in paragraph (c), 

remove the words ‘‘a class agent may 

appeal a final decision on a class 

complaint’’ and add in their place the 

words ‘‘a class agent may appeal an 

agency’s final action or an agency may 

appeal an administrative judge’s 

decision on a class complaint’’. 

■ 10. In § 1614.402, add a sentence to 

paragraph (a) before the last sentence to 

read as follows: 

§ 1614.402 Time for appeals to the 

Commission. 

(a) * * * Appeals described in 

§ 1614.401(d) must be filed within 30 

days of receipt of the final decision of 

the agency, the arbitrator or the Federal 

Labor Relations Authority. 

* * * * * 

■ 11. In § 1614.403, revise the first 

sentence of paragraph (a), and add 

paragraph (g) to read as follows: 

§ 1614.403 How to appeal. 

(a) The complainant, agency, agent, 

grievant or individual class claimant 

(hereinafter appellant) must file an 

appeal with the Director, Office of 

Federal Operations, Equal Employment 

Opportunity Commission, at P.O. Box 

77960, Washington, DC 20013, or 

electronically, or by personal delivery or 

facsimile. * * * 

* * * * * 

(g) Agencies are required to submit 

appeals, complaint files, and other 

filings to the Office of Federal 

Operations in a digital format acceptable 

to the Commission, absent a showing of 

good cause why an agency cannot 

submit digital records. Appellants are 

encouraged, but not required, to submit 

digital appeals and supporting 

documentation to the Office of Federal 

Operations in a format acceptable to the 

Commission. 

■ 12. Amend § 1614.405 by revising the 

second sentence of paragraph (a), 

redesignating paragraph (b) as paragraph 

(c), adding a new paragraph (b), and 

revising the first sentence of newly 

redesignated paragraph (c) introductory 

text to read as follows: 

§ 1614.405 Decisions on appeals. 

(a) * * * The Commission shall 

dismiss appeals in accordance with 

§§ 1614.107, 1614.403(c) and 1614.409. 

* * * 

(b) The Office of Federal Operations, 

on behalf of the Commission, shall issue 

decisions on appeals of decisions to 

accept or dismiss a class complaint 

issued pursuant to § 1614.204(d)(7) 

within 90 days of receipt of the appeal. 

(c) A decision issued under paragraph 

(a) of this section is final within the 

meaning of § 1614.407 unless a timely 

request for reconsideration is filed by a 

party to the case. * * * 

■ 13. In § 1614.409, revise the first 

sentence to read as follows: 

§ 1614.409 Effect of filing civil action. 

Filing a civil action under § 1614.407 

or § 1614.408 shall terminate 


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43506 Federal Register / Vol. 77, No. 143 / Wednesday, July 25, 2012 / Rules and Regulations 

Commission processing of the appeal. 

* * * 

§ 1614.502 [Amended] 

■ 14. In § 1614.502, amend the last 

sentence of paragraph (c) by removing 

the words ‘‘60 days’’ and adding in their 

place add the words ‘‘120 days’’. 

■ 15. In § 1614.504, revise the second 

sentence of paragraph (c) to read as 

follows: 

§ 1614.504 Compliance with settlement 

agreements and final action. 

* * * * * 

(c) * * * If the Commission 

determines that the agency is not in 

compliance with a decision or 

settlement agreement, and the 

noncompliance is not attributable to 

acts or conduct of the complainant, it 

may order such compliance with the 

decision or settlement agreement, or, 

alternatively, for a settlement 

agreement, it may order that the 

complaint be reinstated for further 

processing from the point processing 

ceased. * * * 

[FR Doc. 2012–18134 Filed 7–24–12; 8:45 am] 

BILLING CODE 6570–01–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 223 

[Docket ID: DOD–2010–OS–0108] 

RIN 0790–AI64 

DoD Unclassified Controlled Nuclear 

Information (UCNI) 

AGENCY: Department of Defense. 

ACTION: Final rule. 

SUMMARY: This rule updates policies and 

responsibilities for controlling 

Department of Defense (DoD) 

Unclassified Controlled Nuclear 

Information (UCNI) in accordance with 

the provisions of current U.S. Code. 

This revision streamlines and reflects 

current practices within the Department 

of Defense. This rule may be altered, in 

accordance with applicable statutory 

and regulatory requirements, as 

necessary to align with any future 

direction given in response to on-going 

efforts currently being led by the 

National Archives and Records 

Administration in the implementation 

of Executive Order 13556, ‘‘Controlled 

Unclassified Information,’’ signed on 

November 4, 2010. 

DATES: This rule is effective August 24, 

2012. 

FOR FURTHER INFORMATION CONTACT: 

Linda B. Jones, (757) 229–3866. 

SUPPLEMENTARY INFORMATION: The 

Department of Defense published a 

proposed rule on April 25, 2011 (76 FR 

22849–22854). Comments from two 

submitters were received and are 

addressed below: 

Comment: One submitter suggested 

clarifications and changes to the 

markings specified by sections 223.6(d) 

and 223.6(e). We made the changes 

suggested. 

Comment: One comment suggested a 

change to the placement of the required 

markings for consistency with 32 CFR 

part 2001.21(b). As 32 CFR part 2001 

applies only to classified national 

security information, we have not 

changed the placement requirements in 

the final rule. 

Comment: One comment 

recommended adding a statement 

regarding parenthetical markings for 

classified messages. The change was 

made. 

Comment: Suggestions for clarifying 

the last half of paragraph 223.6(d)(3) 

were made. Changes were incorporated 

in the final rule when we agreed they 

clarified the guidance. 

Comment: One comment questioned 

the scope of the allowable 

dissemination within the U.S. 

Government. A change to the 

dissemination guidance was made. 

Comment: One submitter suggested 

more definitive guidance on identifying 

information that qualifies for 

designation as DoD UCNI and that 

which qualifies for classification. 

Classification of information regarding 

protection of DoD special nuclear 

material, equipment and facilities, is a 

decision made by an authorized 

classification authority based on his or 

her reasoned judgment as to the degree 

of damage that could be caused by 

unauthorized disclosure. As such 

determinations are inherently 

subjective, risk-managed decisions and, 

thus, it is not possible to identify a 

‘‘definitive line where UCNI stops and 

higher classification starts.’’ No changes 

were made as a result of this comment. 

Comment: Additional changes were 

made based on DoD legal and editorial 

review. 

Regulatory Procedures 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

It has been certified that 32 CFR part 

223 does not: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy; a section of the economy; 

productivity; competition; jobs; the 

environment; public health or safety; or 

State, local, or tribunal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another Agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs, or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in this Executive Order. 

It has been certified that 32 CFR part 

223 is not economically significant, and 

32 CFR part 223 has been reviewed by 

the Office of Management and Budget as 

required under the provisions of E.O. 

12866. 

Sec. 202, Public Law 104–4, ‘‘Unfunded 

Mandates Reform Act’’ 

It has been certified that 32 CFR part 

223 does not contain a Federal mandate 

that may result in the expenditure by 

State, local, and tribunal governments, 

in aggregate, or by the private sector, of 

$100 million or more in any one year. 

Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (5 U.S.C. 601) 

It has been certified that 32 CFR part 

223 is not subject to the Regulatory 

Flexibility Act (5 U.S.C. 601) because it 

would not, if promulgated, have a 

significant economic impact on a 

substantial number of small entities. 

Public Law 96–511, ‘‘Paperwork 

Reduction Act’’ (44 U.S.C. Chapter 35) 

It has been certified that 32 CFR part 

223 does not impose reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act of 1995. 

Executive Order 13132, ‘‘Federalism’’ 

It has been certified that 32 CFR part 

223 does not have federalism 

implications, as set forth in Executive 

Order 13132. This rule does not have 

substantial direct effects on: 

(1) The States; 

(2) The relationship between the 

National Government and the States; or 

(3) The distribution of power and 

responsibilities among the various 

levels of Government. 

List of Subjects in 32 CFR Part 223 

National defense, Nuclear energy, 

Reporting and recordkeeping 

requirements, Security measures. 

■ Accordingly, 32 CFR part 223 is 

revised to read as follows. 


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