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###### Equal Employment Opportunity Commission

          - 29 CFR Part 1602
          - RIN 3046-AB28

# AGENCY:

Equal Employment Opportunity Commission.

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is proposing to amend its regulations regarding recordkeeping and reporting requirements to delegate authority for making determinations on hardship exemption applications, to set forth the procedure for applying for exemptions, and to provide a non-exhaustive list of criteria for considering exemption applications. These actions are necessary for administrative efficiency and transparency.

# DATES:

Comments on the notice of proposed rulemaking (hereinafter “NPRM”) must be received on or before December 10, 2024.

# ADDRESSES:

You may submit comments, identified by RIN Number 3046-AB28, by any of the following methods:
      -  Federal eRulemaking Portal: https://www.regulations.gov . Follow the instructions for submitting comments.                    
      -  Fax:                          (202) 663-4114. Only comments of six or fewer pages will be accepted via FAX transmittal, in order to assure access to the equipment. Receipt of FAX transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 921-2815 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL video phone).                    
      -  Mail:                          Ray Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.                    
      -  Hand Delivery/Courier:                          Ray Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.                    

*Instructions:*                         The Commission invites comments from all interested parties. All comment submissions must include the Regulatory Information Number (RIN) for this rulemaking. Comments need to be submitted in only one of the above-listed formats. All comments received will be posted without change to                         *https://www.regulations.gov,*                         including any personal information you provide. However, the EEOC reserves the right to refrain from posting libelous or otherwise inappropriate comments, including those that contain obscene, indecent, or profane language; that contain threats or defamatory statements; that contain hate speech directed at race, color, sex, national origin, age, religion, disability, or genetic information; or that promote or endorse services or products.                    

*Docket:*                         For access to comments received, go to                         *https://www.regulations.gov*. Copies of the received comments also will be available for review at the Commission's library, 131 M Street NE, Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and 4:30 p.m., from December 10, 2024, until the Commission publishes the rule in final form. Members of the public may schedule a library appointment by sending an email to                         *OEDA@eeoc.gov*.                    

# FOR FURTHER INFORMATION CONTACT:

                        Kathleen Oram, Assistant Legal Counsel, at (202) 921-2665 or                         *Kathleen.Oram@eeoc.gov,*                         or Lynn Dickinson, Senior Attorney, at (202) 921-2559 or                         *Lynn.Dickinson@eeoc.gov,*                         Office of Legal Counsel, U.S. Equal Employment Opportunity Commission. Requests for this document in an alternative format should be made to the EEOC's Office of Communications and Legislative Affairs at (202) 921-3191 (voice), (800) 669-6820 (TTY), or (844) 234-5122 (ASL video phone).                    

# SUPPLEMENTARY INFORMATION:

                    Title VII requires covered entities to “make and keep . . . records relevant to the determinations of whether unlawful                           ( print page 82541)                        employment practices have been or are being committed.” 42 U.S.C. 2000e-8(c). Pursuant to its rulemaking authority in sections 709(c) and 713(a) of Title VII,                     *see*42 U.S.C. 2000e-8(c); 2000e-12(a), in 1966 the EEOC issued regulations requiring covered employers, joint labor-management committees, labor organizations, political jurisdictions, school systems or districts, and institutions of higher education subject to these laws (collectively “filers”) to report specified information to the Commission to aid in the administration and enforcement of federal employment discrimination law.                     *See*29 CFR 1602.7 (EEO-1 report), 1602.15 (EEO-2 report), 1602.22 (EEO-3 report), 1602.32 (EEO-4 report), 1602.41 (EEO-5 report), 1602.50 (EEO-6 report).[1]                                          Section 709(c) allows filers to apply to the Commission for an exemption from the reporting requirements if the filers believe application of these requirements would result in undue hardship. Accordingly, the EEOC's regulations allow filers to apply for exemptions from the reporting requirements.                     *See*29 CFR 1602.10 (EEO-1 report exemption), 1602.18 (EEO-2 report exemption), 1602.25 (EEO-3 report exemption), 1602.35 (EEO-4 report exemption), 1602.44 (EEO-5 report exemption), and 1602.53 (EEO-6 report exemption).                

The EEOC is issuing this notice of proposed rulemaking (NPRM) to revise 29 CFR part 1602 by creating a new subpart addressing applications for exemptions that will be applicable to all EEO reports. This new subpart would replace the existing separate provisions addressing undue hardship applications for the six EEO reports; therefore, this NPRM also proposes to remove and reserve 29 CFR 1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and 1602.53. Providing a single procedure to address all hardship exemption applications will enhance administrative efficiency and streamline the regulation. This new subpart would apply to all EEO reports as now constituted or subsequently modified.

                    In addition, the Commission proposes to revise its regulations to: (1) delegate to its Chief Data Officer (CDO) or the CDO's designee [2]                                          the authority to make determinations on exemption applications; (2) establish express procedures for exemption applications; and (3) delineate the criteria that are used for assessing exemption applications.                

                    Currently, the Commission's regulations state that filers may apply to the Commission for an exemption from the reporting requirements.                     *See*29 CFR 1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and 1602.53. Filers now submit applications for undue hardship exemptions to the EEOC's Office of Enterprise Data and Analytics (OEDA), which is led by the CDO, and OEDA prepares each application for submission to the Commission. The Commissioners subsequently review and then vote on each application. The Commission's determination is returned to OEDA, which then conveys the result to the filer.                

The Commission proposes to delegate to the CDO, or the CDO's designee, authority to make determinations on applications for exemptions from reporting requirements. The CDO, as Director of OEDA, administers the Commission's EEO data collections, addresses questions and concerns filers raise as they prepare their submissions, and works closely with data collected in EEO reports. Allowing the CDO to consider and make determinations on filers' exemption applications will allow the CDO to bring this knowledge and information directly to bear in assessing applications and will increase efficiencies for both filers and the Commission.

Section 709(c) of Title VII directs the Commission to accept applications for undue hardship exemptions, and section 713(a), 42 U.S.C. 2000e-12, grants the Commission authority to issue procedural regulations “to carry out the provisions of this subchapter,” which includes section 709. Over the course of the many years during which the Commission has implemented section 709, the Commission has worked with numerous filers and has accepted and decided many applications for undue hardship exemptions. The purpose of this procedural rulemaking is to establish and publicize express procedures and to delineate and publicize the criteria the CDO will follow in making determinations on filers' hardship exemption applications. The criteria are a necessary component of this procedural regulation and are not new; rather, they are drawn from the Commission's decades of experience implementing section 709. Finally, publishing the procedures and criteria will provide greater transparency to filers and the public.

                    The deadlines for requesting exemptions, as well as the steps for submitting exemption applications, are provided in each collection's accompanying instructions.[3]                                          Upon receipt of an exemption application, the CDO will expeditiously issue a written determination that will notify the filer of the disposition of the application, and in the event the application is denied, the determination will notify the filer of the deadline for filing the report, which shall be at least 30 calendar days following the determination. While an application for exemption is pending before the CDO, the filer must continue diligently to collect and prepare the data required for the report in case the exemption request is denied. A filer's failure to exercise such diligence is not cause for additional time to file a report if their exemption request is denied.                

                    The regulation identifies a non-exhaustive list of criteria for the CDO, or the CDO's designee, to consider in making undue hardship determinations, drawn from the Commission's experience working with filers over many years. These criteria include the nature and extent of the filer's efforts to collect and retain the required information; the degree to which the filer attempted to anticipate and preempt any problems in collecting and retaining the required information; the filer's prior data reporting history, including whether the filer previously failed to submit a report or requested an exemption, and if so, whether such exemption was granted; the degree to which the circumstances are beyond the filer's control or are extraordinary; and, the degree to which compliance has been rendered impracticable or impossible (                    *e.g.,*                     due to natural disaster or data loss).                

                    Title VII requires employers to preserve their records. 42 U.S.C. 2000e-8(c). Nevertheless, through the determination criteria, the Commission acknowledges that under certain extreme circumstances,                     *e.g.,*                     where a filer, through no fault of its own, loses its data via security breach, natural disaster, or other significant disruption, compliance with the filing requirement may be rendered impossible or impracticable.                

                    Ultimately, the general expectation is compliance with the Commission's reporting requirements. Exemptions should be needed only in rare, extreme circumstances. The Commission expects filers to comply with Title VII and these regulations by properly maintaining records and submitting the applicable                           ( print page 82542)                        EEO reports when required. To that end, the regulation also includes a non-exhaustive list of factors that will                     *not*                     serve as a basis for finding that undue hardship exists: A filer's number of establishments alone; lack of knowledge about the reporting requirements; routine or purposeful data expungement by the filer or a third party; and failure to plan for adequate data security, maintenance, or transfer (                    *e.g.,*                     data loss due to a change in vendor or employee succession where the filer or vendor failed to back up the data). Permitting filers to avoid submitting data based on these grounds would thwart the statutory purpose of the data collection by incentivizing failure to reasonably maintain employment records.                

## Regulatory Procedures

### Executive Order 12866

The Commission has complied with the principles in section 1(b) of Executive Order 12866, Regulatory Planning and Review. This NPRM is not a “significant regulatory action” under section 3(f) of the order and does not require an assessment of potential costs and benefits under section 6(a)(3) of the order.

### Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to rulemakings in which an agency creates a new paperwork burden on regulated entities or modifies an existing burden. This proposed rule imposes no new information collection requirements on the public, and therefore it will create no new paperwork burdens or modifications to existing burdens that are subject to review by the Office of Management and Budget under the PRA.

### Regulatory Flexibility Act

The Commission certifies under 5 U.S.C. 605(b) that this NPRM will not have a significant economic impact on a substantial number of small entities. To the extent that it affects small entities, it merely clarifies the process for requesting exemptions. For this reason, a regulatory flexibility analysis is not required.

### Unfunded Mandates Reform Act of 1995

This NPRM 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. To the extent that it may apply to state or local government reporting requirements, it merely clarifies the process for requesting exemptions. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

### Congressional Review Act

This NPRM 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) because, as a proposal submitted for public comment, it is not a “rule” within the definition of 5 U.S.C. 801. The Congressional Review Act only applies to final rules. Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

# List of Subjects in 29 CFR Part 1602

      - Administrative practice and procedure
      - Equal employment opportunity
      - Reporting and recordkeeping requirements

Accordingly, for the reasons discussed in the preamble, the Equal Employment Opportunity Commission proposes to amend 29 CFR part 1602 as follows:

# PART 1602—RECORDKEEPING AND REPORTING REQUIREMENTS UNDER TITLE VII, THE ADA, GINA, AND THE PWFA

1. The authority citation for 29 CFR part 1602 continues to read as follows:

Authority:42 U.S.C. 2000e-8, 2000e-12; 44 U.S.C. 3501*et seq.;*42 U.S.C. 12117; 42 U.S.C. 2000ff-6; 42 U.S.C. 2000gg-2.                    

§§ 1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and 1602.53

2. Remove and reserve §§ 1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and 1602.53. 

3. Add subpart S, consisting of §§ 1062.57 and 1602.58, to read as follows: 

      Subpart S—Exemption From Reporting Requirements1602.57
Procedures.
1602.58
Consideration of exemption requests.

# Subpart S—Exemption From Reporting Requirements

§ 1602.57

(a) If a filer claims that the preparation or filing of the report would create undue hardship, the filer may apply to the Commission for an exemption from the requirements set forth in this part by submitting a written exemption application according to the applicable collection's accompanying instructions. Filers must demonstrate with specific facts (and supporting documentation, as appropriate) how preparing or filing the report would create undue hardship.

(b) The Commission hereby delegates to its Chief Data Officer (CDO), or the CDO's designee, authority to make determinations on applications for exemptions under this subpart.

(1) The CDO shall expeditiously issue a written determination notifying the filer of the disposition of the exemption application.

(2) If the CDO denies the application for an exemption, the CDO will notify the filer in writing of the following:

(i) The deadline for filing the report, which will be at least 30 calendar days after the CDO's determination; and

(ii) That the filer may bring a civil action in the United States District Court for the district where the filer's records are kept, pursuant to 42 U.S.C. 2000e-8(c).

(c) While an application is pending, the filer must continue to collect and prepare the data required for the report in case the exemption request is denied.

(d) The CDO will report annually to the Commission the number of exemption applications received and the determinations made on those applications and will make the applications and written determinations available to the Commission.

§ 1602.58

(a) The CDO, or the CDO's designee, will consider the facts and circumstances presented in each application, including but not limited to:

(1) The nature and extent of the filer's efforts to collect and retain the required information;

(2) The degree to which the filer attempted to anticipate and preempt any problems in collecting and retaining the required information;

(3) The filer's prior data reporting history, including whether the filer previously failed to submit a report or requested an exemption, and if so, whether such exemption was granted;

(4) The degree to which the circumstances are beyond the filer's control or are extraordinary; and

                            (5) The degree to which compliance has been rendered impracticable or impossible (                            *e.g.,*                             due to natural disaster or data loss).                        

(b) The filer bears the burden to demonstrate that the reporting requirement would result in undue hardship.

(c) Circumstances that generally will not form the basis of a finding of undue hardship include, but are not limited to:

                            (1) A filer's number of establishments alone;                                  ( print page 82543)    

(2) A filer's lack of knowledge about the reporting requirements;

(3) Routine or purposeful data expungement by the filer or a third party; and

                            (4) A filer's failure to plan for adequate data security, maintenance, or transfer (                            *e.g.,*                             data loss due to a change in vendor or employee succession where the filer or vendor failed to back up the data).                        

Charlotte A. Burrows,

Chair, Equal Employment Opportunity Commission.

# Footnotes

1.                             The EEOC does not currently collect the EEO-2 or EEO-6 reports.                    
        Back to Citation      

2.                             References to the CDO in this NPRM include the CDO's designee.                    
        Back to Citation      

3.                             At the opening of each specific year's collection(s), the EEOC provides filers with a web-based “Instruction Booklet” containing the eligibility requirements for the respective collection along with detailed instructions on how to file a report as well as submit a request for an exemption.                    
        Back to Citation      

[FR Doc. 2024-23327 Filed 10-10-24; 8:45 am]

BILLING CODE 6570-01-P