[Federal Register Volume 89, Number 198 (Friday, October 11, 2024)]
[Proposed Rules]
[Pages 82540-82543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23327]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1602

RIN 3046-AB28


Recordkeeping and Reporting Requirements Under Title VII, the 
ADA, GINA, and the PWFA

AGENCY: Equal Employment Opportunity Commission.

ACTION: Notice of proposed rulemaking.

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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:
    <bullet> Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> 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).
    <bullet> Mail: Ray Windmiller, Executive Officer, Executive 
Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street 
NE, Washington, DC 20507.
    <bullet> 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 <a href="/cdn-cgi/l/email-protection#c48b81808584a1a1aba7eaa3abb2"><span class="__cf_email__" data-cfemail="2f606a6b6e6f4a4a404c01484059">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal 
Counsel, at (202) 921-2665 or <a href="/cdn-cgi/l/email-protection#f9b2988d91959c9c97d7b68b9894b99c9c969ad79e968f"><span class="__cf_email__" data-cfemail="f5be94819d9990909bdbba879498b590909a96db929a83">[email protected]</span></a>, or Lynn 
Dickinson, Senior Attorney, at (202) 921-2559 or 
<a href="/cdn-cgi/l/email-protection#3e72475050107a575d5557504d51507e5b5b515d10595148"><span class="__cf_email__" data-cfemail="bcf0c5d2d292f8d5dfd7d5d2cfd3d2fcd9d9d3df92dbd3ca">[email protected]</span></a>, 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

[[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).
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    \1\ The EEOC does not currently collect the EEO-2 or EEO-6 
reports.
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    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.
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    \2\ References to the CDO in this NPRM include the CDO's 
designee.
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    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.
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    \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.
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    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

[[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

0
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.


Sec. Sec.  1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and 
1602.53  [Removed and Reserved]

0
2. Remove and reserve Sec. Sec.  1602.10, 1602.18, 1602.25, 1602.35, 
1602.44, and 1602.53.
0
3. Add subpart S, consisting of Sec. Sec.  1062.57 and 1602.58, to read 
as follows:
Subpart S--Exemption From Reporting Requirements
Sec.
1602.57 Procedures.
1602.58 Consideration of exemption requests.

Subpart S--Exemption From Reporting Requirements


Sec.  1602.57  Procedures.

    (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.


Sec.  1602.58  Consideration of exemption requests.

    (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;

[[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.
[FR Doc. 2024-23327 Filed 10-10-24; 8:45 am]
BILLING CODE 6570-01-P


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