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.

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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

[[Page 43644]]

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

[[Page 43645]]

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

[[Page 43646]]

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

[[Page 43647]]

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,

[[Page 43648]]

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