Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 43643 

AMS is committed to compliance 

with the Government Paperwork 

Elimination Act (GPEA), which requires 

Government agencies in general to 

provide the public the option of 

submitting information or transacting 

business electronically to the maximum 

extent possible. 

In addition, USDA has not identified 

any relevant Federal rules that 

duplicate, overlap or conflict with this 

rule. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/ 

fv/moab.html. Any questions about the 

compliance guide should be sent to Jay 

Guerber at the previously mentioned 

address in the FOR FURTHER INFORMATION

CONTACT section. 

This rule invites comments on 

relaxation of the minimum grade 

requirement under the Washington 

apricot marketing order. Any comments 

received will be considered prior to 

finalization of this rule. 

After consideration of all relevant 

material presented, including the 

Committee’s recommendation, and 

other information, it is found that the 

minimum grade requirement in 

§ 922.321 should be temporarily relaxed 

from Washington No. 1 grade to 

Washington No. 2 grade in order to 

effectuate the declared policy of the Act. 

Pursuant to 5 U.S.C. 553, it is also 

found and determined upon good cause 

that it is impracticable, unnecessary, 

and contrary to the public interest to 

give preliminary notice prior to putting 

this rule into effect and that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because: (1) This rule relaxes the 

minimum grade requirement for 

Washington apricots for the 2006 

shipping season; (2) Washington apricot 

handlers are aware of this 

recommendations and need no 

additional time to comply with the 

relaxed requirements; (3) this rule 

should be in effect as close as possible 

to July 1, 2006, the date shipments of 

the 2006 Washington apricot crop are 

expected to begin; and (4) this rule 

provides a 60-day comment period, and 

any comments received will be 

considered prior to finalization of this 

rule. 

List of Subjects in 7 CFR Part 922 

Apricots, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, 7 CFR Part 922 is amended as 

follows: 

PART 922—APRICOTS GROWN IN 

DESIGNATED COUNTIES IN 

WASHINGTON 

■ 1. The authority citation for 7 CFR 

Part 922 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

§ 922.321 [Amended] 

■ 2. Section 922.321 is amended by 

revising paragraph (a)(1) to read as 

follows: 

(a) * * * 

(1) Minimum grade and maturity 

requirements. Such apricots that grade 

not less than Washington No. 1 and are 

at least reasonably uniform in color: 

Provided, That during the period July 1, 

2006, through March 31, 2007, the 

minimum grade requirement for such 

apricots shall be not less than 

Washington No. 2; Provided further, 

That such apricots of the Moorpark 

variety in open containers shall be 

generally well matured: and 

* * * * * 

Dated: July 27, 2006. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E6–12410 Filed 8–1–06; 8:45 am] 

BILLING CODE 3410–02–P 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 

29 CFR Part 1614 

RIN 3046–AA74 

Federal Sector Equal Employment 

Opportunity 

AGENCY: Equal Employment 

Opportunity Commission. 

ACTION: Final rule. 

SUMMARY: The Equal Employment 

Opportunity Commission (EEOC or 

Commission) is issuing a final rule 

implementing the posting requirements 

set forth in Title III of the Notification 

and Federal Employee 

Antidiscrimination and Retaliation Act 

of 2002 (No FEAR Act), Pub. L. 107–

174. The No FEAR Act requires a 

Federal agency to post on its public Web 

site summary statistical data pertaining 

to complaints of employment 

discrimination filed under 29 CFR part 

1614 by employees, former employees 

and applicants for employment. Title III 

authorizes EEOC to issue rules 

concerning the ‘‘time, form and 

manner’’ of the postings, to define the 

terms ‘‘issue’’ and ‘‘basis,’’ and to issue 

any other ‘‘rules necessary to carry out’’

Title III. 

DATES: Effective Date: August 2, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Thomas J. Schlageter, Assistant Legal 

Counsel, Gary John Hozempa, Senior 

General Attorney, or Mona Papillon, 

Senior General Attorney at (202) 663–

4669 (voice) or (202) 663–7026 (TTY). 

This final rule also is available in the 

following alternative formats: large 

print, braille, audiotape and electronic 

file on computer disk. Requests for the 

final rule in an alternative format 

should be made to EEOC’s Publication 

Center at 1–800–669–3362 (voice), 1–

800–800–3302 (TTY), or 703–821–2098 

(FAX—this is not a toll free number). 

SUPPLEMENTARY INFORMATION: 

Introduction 

On January 26, 2004, EEOC published 

in the Federal Register an interim final 

rule setting forth the time, form and 

manner in which an agency shall post 

summary statistical EEO complaint data. 

69 FR 3483 (2004). The interim rule 

included a 60-day comment period, 

which subsequently was extended an 

additional 30 days. 69 FR 13473 (2004). 

EEOC received over 140 comments on 

the interim rule. One hundred and nine 

comments were submitted by persons 

identifying themselves as members of 

the ‘‘No FEAR Coalition.’’ Sixteen 

comments were submitted by Federal 

agencies and departments. Four 

comments were submitted by civil 

rights groups composed of Federal 

employees, one was submitted by a 

national civil rights group, one by an 

association of Federal EEO executives, 

one by a Member of Congress, and one 

was submitted by an association of 

Federal agency Web content managers. 

EEOC also received seventeen 

comments from individuals, most of 

whom identified themselves as Federal 

or former Federal employees. 

The Commission has considered 

carefully all of the comments and has 

made some changes to the interim rule 

in response to the comments. The 

comments EEOC received and the 

changes made to the interim rule are 

discussed in more detail below. 

Amendments to Complaints 

When EEOC circulated its first draft of 

the interim rule under Executive Order 

12067, the regulation required that, 

when posting information about the 

bases and issues raised in a complaint, 

agencies include bases and issues added 

by amendment. Agencies commenting 

on this provision argued that if bases 

and issues added by amendment were to 

be included among the data, 

withdrawals of issues and bases 

likewise should be reflected. When 

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43644 Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 

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 noncovered 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 precomplaint 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 § 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 

§ 1614.704(l)(2)(ii) (pending complaints 

filed in prior fiscal years) agencies need 

not track a complaint that is awaiting a 

decision on a request for 

reconsideration because it is not 

pending at the appeal stage. 

EEOC Form 462 

A few agencies opined that, now that 

they must post EEO data under Title III 

(and report EEO data under Title II), 

EEOC should discontinue the use of 

EEOC Form 462. As an alternative, a few 

agencies suggested that they be allowed 

to consolidate EEOC Form 462 with the 

information they must post under the 

No FEAR Act. 

Form 462 seeks more, and in many 

cases different, information than is 

required to be posted under the No 

FEAR Act. While the posting of No 

FEAR data is primarily for use by the 

public, Form 462 data is intended for 

EEOC use and is delivered directly to 

EEOC for this reason. In addition to 

reporting consolidated Form 462 data to 

Congress, EEOC reviews each agency’s 

report to assess that agency’s 

compliance with its EEO obligations 

under part 1614. These roles, reporting 

to Congress and assessing an agency’s 

EEO program, are not responsibilities 

given to EEOC under the No FEAR Act. 

As a result, EEOC does not regard an 

agency’s posting obligations under the 

No FEAR Act as serving the same 

purpose as its Form 462 reporting 

requirements. For these reasons, EEOC 

will not discontinue the use of Form 

462. 

Enforcement 

A number of comments focused on 

the fact that the interim rule does not 

contain an enforcement mechanism in 

the event an agency fails to post its EEO 

data. Some commenters want EEOC to 

fashion a scheme in which EEOC can 

sanction agencies and agency managers 

for non-compliance. While directing the 

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Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 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 postpromulgation 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 counterproductive. Moreover, many people 

visiting an agency Web site do so 

through hyperlinks from other nonagency Web sites or search engines that 

bypass an agency’s homepage. Some 

agencies allow internet users to 

compose a personal homepage, which 

again bypasses the agency’s standard 

homepage. For these and other reasons, 

the agencies that commented uniformly 

were of the opinion that a hyperlink on 

an agency’s homepage is not the best 

way to ensure the public’s assess to an 

agency’s posted EEO data. These 

agencies therefore suggested that each 

agency decide itself where to place its 

EEO data and hyperlinks to that data 

since each agency best knows where a 

target audience goes to look for certain 

information. A number of agencies 

offered suggestions where the hyperlink 

would be better placed, such as on the 

‘‘About the Agency’’ or ‘‘Working for the 

Agency/Employment’’ pages. 

The Commission is concerned that 

without a uniform hyperlink location 

members of the public seeking EEO data 

from more than one agency will have 

trouble finding the data. If one agency’s 

hyperlink is on the ‘‘About the Agency’’

page, another’s is on the ‘‘Employment 

Opportunities’’ page, another’s is on a 

page entitled ‘‘Civil Rights,’’ and 

another’s is on the homepage, locating 

the data for multiple agencies could 

well end up as an exercise in trial and 

error. Even assuming that the homepage 

is not the best or most intuitive location 

for the hyperlink, EEOC is convinced 

that it would not be in the public 

interest to allow each agency to decide 

where on its Web site it will place the 

hyperlink. Thus, if not the homepage, 

EEOC must dictate another uniform 

location. The problem is that there are 

no other locations common to all agency 

public Web sites. Agencies do not label 

their ‘‘About the Agency’’ and 

‘‘Employment’’ pages identically. Not 

every agency has an ‘‘Employment 

Opportunities page. Thus, there is no 

way to standardize through a rule an 

alternative location for the link. This 

leaves only the homepage as the one 

Web page all agencies possess in 

common, and therefore it is the 

homepage which shall house the link. 

Regarding the title of the hyperlink, 

EEOC agrees that it is too wordy. EEOC, 

however, does not agree that the label 

‘‘No FEAR’’ will be widely 

misunderstood by members of the 

public. On the contrary, the term ‘‘No 

FEAR Act’’ has attained familiarity 

among employees and those involved in 

EEO matters. Accordingly, the final rule 

provides that the hyperlink shall be 

called ‘‘No FEAR Act Data.’’ However, 

agencies will be required to title the 

page where its data appears as follows: 

‘‘Equal Employment Opportunity Data 

Posted Pursuant to Title III of the 

Notification and Federal Employee 

Antidiscrimination and Retaliation Act 

of 2002 (No FEAR Act), Pub. L. 107–

174.’’

In furtherance of making every 

agency’s No FEAR Act data easily 

accessible, it was suggested that 

agencies maintain their posted data so 

that it is readily retrievable by 

commercial search engines. EEOC 

agrees and has added a subsection 

setting forth this requirement. 

Finally, some commenters suggested 

that each agency provide EEOC with the 

hyperlink to its No FEAR data and that 

EEOC post the agency hyperlinks in one 

location on EEOC’s public Web site. 

EEOC has decided to adopt this 

suggestion. Therefore, the final rule 

contains the requirement that an agency 

provide EEOC with the URL for the 

location of its No FEAR data and 

provide URL updates as necessary. 

Agencies can e-mail their URLs to EEOC 

at NoFEAR.URLS@eeoc.gov. 

Other Data 

Some commenters disagreed with 

EEOC’s position that EEO data not 

required to be posted by the statute 

cannot be posted with No FEAR data 

but may appear elsewhere. Commenters 

argued that by excluding other, related 

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43646 Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 

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 comingling 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 Directive715,’’ which can be accessed at http:// 

www.eeoc.gov/federal/qandamd715.html. A list of the second level 

subordinate components can be 

accessed at http://www.eeoc.gov/ 

federal/715instruct/agencylist.html. 

Some commenters objected to the fact 

that EEOC is not requiring agency 

subordinate components to post 

component data on their respective 

public Web pages. The final rule 

requires that an agency with a 

qualifying subordinate component post 

on the parent agency’s public Web site 

both consolidated, agency-wide, EEO 

data (i.e., data deriving from the entire 

parent agency including any 

subordinate components) and separate 

data for each of its subordinate 

components. The physical location of 

where this data is posted, whether on 

the agency’s public Web page or the 

component’s, should not matter to the 

end-user. The final rule requires that 

subordinate components that have their 

own Web sites shall post a link on their 

homepages to their component-specific 

data. So long as a link to the 

component’s data can be found on both 

the component’s and parent agency’s 

Web homepages, the data can be 

accessed from either Web site. In short, 

being able to access the data is what is 

important, not where in cyberspace the 

data is stored. 

Posting Format 

In the preamble to the interim rule, 

EEOC stated that it had not decided 

whether to mandate a uniform posting 

format and layout but would revisit the 

issue when promulgating the final rule. 

No agency stated that EEOC should not 

develop a standard format. Thirteen 

agencies, on the other hand, asked 

EEOC to develop a standardized form or 

format for posting data. The rationale 

most often cited was that a uniform 

template would make it easier for 

interested parties to compare data 

among agencies. Interestingly, some 

agencies favoring a template 

nevertheless wanted to be able to choose 

whether to use EEOC’s template or 

another one. 

In the Commission’s view, there is no 

point in making a template available if 

its use is not mandatory. A random 

review of agency Web sites indicates 

that there are a variety of formats in use. 

Some agencies, for example, present 

data in ascending chronological order 

while others do the opposite. Some 

agencies use formats that omit certain 

categories of data. Having given the 

matter careful consideration, EEOC has 

decided that a uniform template will 

make it easier to compare agency data 

and help agencies to post all required 

data. Accordingly, we have created a 

standard format that must be used by all 

agencies having 100 or more employees 

and all subordinate components. Two 

smaller agencies suggested that agencies 

having minimal EEO complaint activity 

use a modified posting format 

appropriate to the amount of data being 

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Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 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 § 1614.702(j) 

and reported on EEOC Form 462. First, 

the interim rule uses the term 

‘‘retaliation’’ whereas Form 462 uses the 

term ‘‘reprisal.’’ Second, Form 462 lists 

the Equal Pay Act as a basis while 

interim 702(j) does not. Finally, the 

order of the bases as listed in interim 

702(j) differs slightly from that on Form 

462. In order to regularize an agency’s 

reporting burdens, while at the same 

time enhancing the degree of detail 

available to the public through the 

posting of No FEAR data, we have 

decided to conform the bases in the 

final version of section 702(j) to that on 

Form 462. Accordingly, we have added 

the Equal Pay Act basis, changed the 

term ‘‘retaliation’’ to ‘‘reprisal,’’ and 

listed the bases in the manner in which 

they appear on the Form 462. The term 

‘‘reprisal’’ as used in this subpart should 

not be construed to include the type of 

reprisal covered by the Federal 

whistleblower protection laws. Rather, 

it refers to any action taken against an 

individual either because that 

individual opposed any practice made 

unlawful by the Federal employment 

discrimination laws or participated in 

any manner in any proceeding under 

those laws. 

Public Hearings 

Seventy-eight percent (78%) of the 

comments were received from the No 

FEAR Coalition or persons identifying 

themselves as members of the No FEAR 

Coalition. The No FEAR Coalition 

members submitted their comments 

using an identical or nearly identical 

letter. The Coalition requested that 

EEOC convene public hearings in 

different parts of the country in order to 

address the issues of employment 

discrimination and EEOC’s rule making 

under the No FEAR Act. The Coalition 

requested that EEOC establish a citizens’

advisory board that would oversee 

EEOC’s promulgation of this final rule. 

The Coalition made suggestions that 

have been raised by other commenters, 

such as developing a rule that will 

ensure managers found to have engaged 

in discrimination are appropriately 

disciplined, that these manager’s names 

be provided to Congress, that counseling 

data be among that required to be 

posted, that amendments to complaints 

be tracked, and that data pertaining to 

agency subordinate components be 

posted. 

Those comments provided by the 

Coalition and which also were raised by 

others are discussed both above and 

below. With respect to holding public 

hearings as part of the rule making 

process, EEOC is required by the 

Administrative Procedure Act to ‘‘give 

interested persons an opportunity to 

participate in the rule making through 

submission of written data, views, or 

arguments with or without opportunity 

for oral presentation.’’ 5 U.S.C. 553(c). 

Thus, although an agency is permitted 

to accept comments through oral 

presentations, it is not required to do so. 

There is certainly no requirement in the 

Act for a public hearing. EEOC believes 

that the written comment process has 

provided meaningful public 

participation in this rule making. 

In this regard, EEOC extended the 

initial 60-day public comment period 

and additional 30 days at the request of 

the No FEAR Coalition. As noted, many 

members of the Coalition submitted 

comments which the Commission 

carefully has considered. Additionally, 

during the public comment period the 

Chair of the Commission met with 

members of the No FEAR Coalition to 

discuss the substance of EEOC’s rule 

making. We believe the public, 

including the No FEAR coalition, have 

had a meaningful opportunity to 

participate in the Title III No FEAR rule 

making process. 

Moreover, EEOC’s rule making duties 

under Title III of the No FEAR Act are 

straightforward. Title III requires an 

agency to post on its public Web site 

summary statistical data pertaining to 

complaints of employment 

discrimination filed with the agency. 

The statistics that shall be posted are set 

forth specifically in the statute. EEOC’s 

only role is to issue rules establishing 

the ‘‘time, form and manner’’ in which 

the statistics are posted. In such a 

narrow context, public hearings as an 

adjunct to written comments would not 

better inform EEOC’s rule making 

process in any appreciable manner. It is 

unlikely that ideas as to when or how 

pre-defined statistics should be posted 

on an agency Web site could or would 

be better communicated orally than in 

writing. Accordingly, EEOC concludes 

that holding the suggested regional 

public hearings will not significantly 

aid the rule making process. Similarly, 

EEOC does not believe it would be 

advantageous to convene a citizens’

advisory board. Finally, as noted above, 

holding public hearings or convening a 

citizens advisory committee is not 

required by the No FEAR or 

Administrative Procedure Acts. 

Remands 

A number of complaints are 

dismissed by agencies on procedural 

grounds (e.g., failure to comply with the 

applicable time limits, failure to state a 

claim). The complainant can appeal the 

dismissal to EEOC. If EEOC finds the 

complaint was dismissed improperly, 

EEOC remands the complaint to the 

agency for further processing. A few 

commenters inquired how these 

complaints should be handled once they 

are returned to the agency for 

processing. 

Once the complaint is remanded, the 

agency will have to track its status for 

posting purposes but only with respect 

to subsequent information applicable to 

the remanded complaint. Thus, for 

example, information previously posted 

about the issues and bases raised in the 

complaint shall not be changed 

regardless of whether the remanded 

complaint is returned to the agency with 

more, less, or different issues and bases. 

All pertinent information applicable to 

the subsequent processing of the 

complaint (e.g., whether it was timely 

investigated following remand, whether 

it subsequently involves a finding of 

discrimination with or without a 

hearing) shall be posted. With respect to 

remanded complaints where the 

investigation was not completed prior to 

the agency’s dismissal of the complaint, 

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the investigative period for purposes of 

§ 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 § 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 

§ 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 

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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 

§ 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 § 1614.704(j)(2) and (3) 

and § 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 § 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 § 1614.704(i)(1) that 

there were 25 final actions involving 

findings of discrimination). In posting 

percentage data under § 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 

§ 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 

§ 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 

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43650 Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 

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 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 27, 2006. 

Cari M. Dominguez, 

Chair. 

■ Accordingly, for the reasons set forth 

in the preamble, EEOC amends 29 CFR 

part 1614 as follows: 

PART 1614—FEDERAL SECTOR 

EQUAL EMPLOYMENT OPPORTUNITY 

■ 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. 

■ 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) 

§ 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. 

§ 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 

§ 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 § 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 § 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 

§ 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 § 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 

§ 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 § 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 § 1614.110(a) following a 

finding of discrimination by an 

administrative judge; and 

(2) A final decision issued by an 

agency pursuant to § 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/ 

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Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 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. 

§ 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 § 1614.704 for the 

current fiscal year. Agencies may not 

post separate quarterly statistics for the 

current fiscal year. 

(f) Data posted pursuant to § 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 § 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 

§ 1614.704(a) through (m). 

(3) When posting data pursuant to 

§ 1614.704(d) and (j), bases of 

discrimination shall be arranged in the 

order in which they appear in 

§ 1614.702(j). The category ‘‘non-EEO 

basis’’ shall be posted last, after the 

basis of ‘‘disability.’’

(4) When posting data pursuant to 

§ 1614.704(e) and (k), issues of 

discrimination shall be arranged in the 

order in which they appear in 

§ 1614.702(k). Only those issues set 

forth in § 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. 

§ 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 nonEEO 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 § 1614.108(e). 

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43652 Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 

§ 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 § 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. 

§ 1614.706 Other data. 

Agencies shall not include or 

otherwise post with the data required to 

be posted under § 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. 

§ 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 § 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 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 362 

[DoD Directive 5105.19] 

Defense Information Systems Agency 

(DISA) 

AGENCY: Department of Defense. 

ACTION: Final rule. 

SUMMARY: This document removes part 

362, ‘‘Defense Information Systems 

Agency (DISA)’’ presently in Title 32 of 

the Code of Federal Regulations. This 

part has served the purpose for which 

it was intended in the CFR and is no 

longer necessary. 

EFFECTIVE DATE: August 2, 2006. 

FOR FURTHER INFORMATION CONTACT: L.M. 

Bynum (703) 696–4970. 

SUPPLEMENTARY INFORMATION: This part 

362 is removed to as a part of a DoD 

exercise to remove organizational 

charters from the CFR because they have 

mstockstill on PROD1PC61 with RULES