This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

7703

Vol. 66, No. 17

Thursday, January 25, 2001

FEDERAL RESERVE SYSTEM

12 CFR Part 268

[Docket No. R–1096]

Rules Regarding Equal Opportunity

AGENCY: Board of Governors of the

Federal Reserve System.

ACTION: Interim Rule with request for

comments.

SUMMARY: The Board of Governors of the

Federal Reserve System (the Board) has

revised and reissued its Rules Regarding

Equal Opportunity (rule) in order to

continue its practice of conforming that

rule as closely as possible to the

‘‘Federal Sector Equal Employment

Opportunity,’’ regulation of the Equal

Employment Opportunity Commission

(Commission), which the Commission

revised effective November 9, 1999.

The revised Board regulation is issued

as an immediately effective interim rule,

with opportunity for public comment, to

ensure that all complaints currently

pending at the Board, and which may in

the near future be filed, are processed

under procedures consistent with those

in the Commission’s regulation for

agencies subject to its jurisdiction,

which was issued following notice and

public comment.

DATES: This interim rule is effective

January 25, 2001.

Applicability Date: This interim rule

is applicable to all Board equal

employment opportunity (EEO)

complaints pending at any stage of the

administrative process as of January 25,

2001.

Comment Date: Submit comments on

or before March 26, 2001.

ADDRESSES: Comments should refer to

docket number R–1096 and should be

mailed to Ms. Jennifer J. Johnson,

Secretary, Board of Governors of the

Federal Reserve System, 20th and

Constitution Avenue, NW., Washington,

DC 20551 or mailed electronically to

regs.comments@federalreserve.gov.

Comments addressed to Ms. Johnson

also may be delivered to the Board’s

mailroom between 8:45 a.m. and 5:15

p.m. and, outside those hours, to the

Board’s security control room. Both the

mailroom and the security control room

are accessible from the Eccles Building

courtyard entrance, located on 20th

Street between Constitution Avenue and

C Street, N.W. Members of the public

may inspect comments in room MP–500

of the Martin Building between 9:00

a.m. and 5:00 p.m. on weekdays.

FOR FURTHER INFORMATION CONTACT:

Stephen L. Siciliano, Assistant General

Counsel (202–452–3920), or Alicia S.

Foster, Counsel (202–452–5289), Legal

Division, Board of Governors of the

Federal Reserve System. For the hearing

impaired only, Telecommunication

Device for the Deaf (TDD), Janice Simms

(202–872–4984), Board of Governors of

the Federal Reserve System, 20th Street

and Constitution Avenue N.W.,

Washington, D.C., 20551.

SUPPLEMENTARY INFORMATION: Section

10(4) of the Federal Reserve Act (Act),

12 U.S.C. 244, provides that the

‘‘employment, compensation, leave, and

expenses’’ of Board employees is

governed solely by that Act rather than

by the laws governing federal employers

generally. See, for example, In the

Matter of the Federal Reserve BoardApplicability of Senior Executive

Service, 58 Comp. Gen. 687 (1979). The

Board’s EEO regulation ‘‘Rules

Regarding Equal Opportunity,’’ 12 CFR

part 268, adopted under the Federal

Reserve Act, requires the Board to

maintain a workplace free of

discrimination based on race, color,

religion, sex, national origin, age,

physical or mental disability, or

retaliation and, among other things, sets

out the procedure applicable to the

processing of EEO complaints of

discrimination. The Board’s EEO

regulation is substantially similar to the

Commission’s regulation ‘‘Federal

Sector Equal Employment

Opportunity,’’ 29 CFR part 1614. Thus,

when the Commission has modified its

EEO regulation, the Board has followed

with an appropriate revision of its EEO

regulation. Recently, the Commission

has modified 29 CFR part 1614, which

changes were effective November 9,

1999, to revise the procedures

throughout the complaint process. 64

FR 37644 (July 12, 1999).

In order to incorporate the most

recent changes made by the Commission

to its regulation, which the Commission

has stated apply to all complaints at any

stage of the administrative EEO process

as of November 9, 1999, the Board is

updating part 268. The Board’s revised

EEO rule incorporates substantially

verbatim the Commission’s November 9,

1999, amendments to the Commission’s

EEO regulation.

In addition, although it generally is

substantially similar to the

Commission’s EEO regulation, the

Board’s regulation, in a number of

instances, uses language that differs

from the text of the counterpart

provision in the Commission’s

regulation. Except as described below,

the interim revised rule conforms the

language in the Board’s regulation to

that in the corresponding provision in

the Commission regulation.

To more closely follow the

Commission’s regulation, the Board’s

regulation, as a whole, also has been

renumbered so that the order and

numbering of the provisions follow that

of the Commission to the extent

possible. This has meant that provisions

in the Board’s regulation having no

counterpart in the Commission’s rule,

i.e., the section on employment of

noncitizens and the subpart prohibiting

discrimination in Board programs and

activities on the basis of disability, have

also been renumbered. The authority

and scope section, previously § 268.101,

and the definitions section, previously

§ 268.102, have been moved to §§ 268.1

and 268.2, respectively.

To conform to the Commission’s

regulation, the definitions in the Board’s

regulation applicable to particular

sections, for example, those concerning

class actions and complaints under the

Rehabilitation Act, have been moved

out of the separate definitions section

and into the respective section within

the regulation to which the definition

corresponds. Also, the internal equal

employment designations of authority,

which described the particular

functions of each Board office to act on

complaints, and which were previously

contained in § 268.103, have been

removed. The internal designations of

authority will be revised and published

in an internal policy statement, as they

concern only the internal administration

of the Board. In addition, typographical

errors in part 268 have also been

7704 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

corrected, and outdated citations to

other sections in this rule or other Board

rules have been revised.

Language in three sections present in

the Commission’s regulation that

currently has no counterpart in the

Board’s regulation but that has

applicability to employment at the

Board has been added to the Board’s

revised regulation. One new section

addresses the processing of grievances

that cover the same matter as a

complaint of discrimination in order to

assure that appropriate procedures for

these complaints exist. The appropriate

paragraph in the corresponding

provision of the Commission’s

regulation has been added to the Board’s

regulation. The second new section

covers mixed cases, which are

complaints that raise both a

discrimination issue and an issue

appealable to the Merit System

Protection Board (MSPB). The section

differs in language from the language in

the corresponding section of the

Commission’s regulation because only a

Board employee who is a preference

eligible employee, as defined by the

Veterans Preference Act, can file a

mixed case complaint with the Board or

a mixed case appeal with the MSPB.

The section provides that the

procedures set forth in the

Commission’s regulation (set out at 29

CFR 1614.302 to 1614.310) as to the

processing of mixed case complaints

and mixed case appeals will be applied

by the Board to the processing of mixed

cases filed by Veterans Preference

eligible employees against the Board.

The third section that has been added

incorporates verbatim the Commission’s

provision on delegation of authority for

equal opportunity functions.

Sections in the Commission’s

regulation that are not present in the

Board’s regulation but which do not

have applicability to Board employment

have not been added. Moreover, the

revised regulation does not change

certain provisions in the Board

regulation that differ from their

counterpart in the Commission

regulation because these provisions

represent areas in which the

Commission’s authority is inconsistent

with the Board’s authority under the

more specific provisions of the Federal

Reserve Act. Thus, the distinctions in

the Board’s rule regarding the audit and

review by the Commission of the

Board’s EEO Program and how

information is submitted to the

Commission about the Board’s EEO

program have been continued.

Similarly, the Board’s rule retains the

authority of the Board with respect to

decisions of the Commission.

Finally, revisions have also been

made to the provisions of the Board’s

regulation prohibiting discrimination in

Board programs and activities on the

basis of disability (designated subpart H

in the interim rule) and to provisions

addressing employment of noncitizens

(§ 268.205 of the interim regulation),

both of which are provisions addressing

matters that are not administered by the

Commission. Citations in the subpart on

programs and activities to the EEO

processing portion of the Board’s

regulation have been changed to reflect

the revisions. Non-substantive editorial

changes have also been made to this

subpart. In addition, the definitions

applicable to this subpart, which are

patterned after the corresponding

regulation of the Department of Justice,

28 CFR part 39, prohibiting

discrimination in programs and

activities on the basis of disability have

been moved into this subpart. Thus, this

subpart has been renumbered

accordingly. As for the section on

employment of noncitizens, a citation to

the Board’s Rules Regarding Availability

of Information (12 CFR part 261) has

been updated to reflect the appropriate

provision of that rule.

Pursuant to the Administrative

Procedures Act (APA), 5 U.S.C.

553(d)(3), the Board has determined that

it is unnecessary, and would be

impracticable, to defer the effective date

of this action until after notice and after

public comments have been received

and considered, although the Board will

consider all public comments received

and make changes in its procedures

based on those comments where

appropriate. The Board has determined,

pursuant to 5 U.S.C. 553(d)(3), that good

cause exists to make this action effective

immediately rather than to defer its

effective date for 30 days. Further,

pursuant to the Congressional Review

Act (CRA), 5 U.S.C. 808(2), the Board

has determined that it would also be

impractical and unnecessary to defer the

effective date of this action until the

notice and comment period under the

CRA has expired.

Under both the APA and the CRA,

issuance of this rule as an interim rule

is appropriate because the Board will be

applying in substance the Commission’s

regulation, which was adopted by the

Commission after notice and full public

comment. Further, having an updated

regulation in place and in effect

regarding equal opportunity will insure

that the Board’s EEO Programs Office

processes all complaints currently

pending at the Board, and which may in

the near future be filed, under the

Board’s revised regulation without

additional delay. The Board believes

that issuance of the regulation as an

interim rule should thus help to avoid

confusion among management and staff.

Regulatory Flexibility Act Analysis

Pursuant to section 605(b) of the

Regulatory Flexibility Act (Pub. L. 96–

354, 5 U.S.C. 601, et seq.), the Board

certifies that this rule will not have a

significant economic impact on a

substantial number of small entities.

This rule governs the Board’s dealings

with its employees, applicants for

employment, and others affected in a

like manner.

List of Subjects in 12 CFR Part 268

Administrative practice and

procedure, Aged, Civil rights, Equal

employment opportunity, Federal

buildings and facilities, Federal Reserve

System, Government employees,

Individuals with disabilities, Religious

discrimination, Sex discrimination,

Wages.

For the reasons set out in the

preamble, the Board revises 12 CFR part

268 to read as follows:

PART 268—RULES REGARDING

EQUAL OPPORTUNITY

Subpart A—General Provisions and

Administration

Sec.

268.1 Authority, purpose and scope.

268.2 Definitions.

Subpart B—Board Program To Promote

Equal Opportunity

268.101 General policy for equal

opportunity.

268.102 Board program for equal

employment opportunity.

268.103 Complaints of discrimination

covered under this part.

268.104 Pre-complaint processing.

268.105 Individual complaints.

268.106 Dismissals of complaints.

268.107 Investigation of complaints.

268.108 Hearings.

268.109 Final action by the Board.

Subpart C—Provisions Applicable to

Particular Complaints

268.201 Age Discrimination in Employment

Act.

268.202 Equal Pay Act.

268.203 Rehabilitation Act.

268.204 Class complaints.

268.205 Employment of noncitizens.

Subpart D—Related Processes

268.301 Negotiated grievance procedure.

268.302 Mixed case complaints.

Subpart E—Appeals to the Equal

Employment Opportunity Commission

268.401 Appeals to the Equal Employment

Opportunity Commission.

268.402 Time limits for appeals to the

Equal Employment Opportunity

Commission.

Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations 7705

268.403 How to appeal.

268.404 Appellate Procedure.

268.405 Decisions on appeals.

268.406 Civil action: Title VII, Age

Discrimination in Employment Act and

Rehabilitation Act.

268.407 Civil action: Equal Pay Act.

268.408 Effect of filing a civil action.

Subpart F—Remedies and Enforcement

268.501 Remedies and relief.

268.502 Compliance with final Commission

decisions.

268.503 Enforcement of final EEOC

decisions.

268.504 Compliance with settlement

agreements and final actions.

268.505 Interim relief.

Subpart G—Matters of General Applicability

268.601 EEO group statistics.

268.602 Reports to the Commission.

268.603 Voluntary settlement attempts.

268.604 Filing and computation of time.

268.605 Representation and official time.

268.606 Joint processing and consolidation

of complaints.

268.607 Delegation of authority.

Subpart H—Prohibition Against

Discrimination in Board Programs and

Activities Because of a Physical or Mental

Disability

268.701 Purpose and application.

268.702 Definitions.

268.703 Notice.

268.704 Prohibition against discrimination.

268.705 Employment.

268.706 Program accessibility:

Discrimination prohibited.

268.707 Program accessibility: Existing

facilities.

268.708 Program accessibility: New

construction and alterations.

268.709 Communications.

268.710 Compliance procedures.

Authority: 12 U.S.C. 244 and 248(i), (k)

and (l).

Subpart A—General Provisions and

Administration

§ 268.1 Authority, purpose and scope.

(a) Authority. The regulations in this

part (12 CFR part 268) are issued by the

Board of Governors of the Federal

Reserve System (Board) under the

authority of sections 10(4) and 11(i), (k),

and (l) of the Federal Reserve Act

(partially codified in 12 U.S.C. 244 and

248(i), (k) and (l)).

(b) Purpose and scope. This part sets

forth the Board’s policy, program and

procedures for providing equal

opportunity to Board employees and

applicants for employment without

regard to race, color, religion, sex,

national origin, age, or physical or

mental disability. It also sets forth the

Board’s policy, program and procedures

for prohibiting discrimination on the

basis of physical or mental disability in

programs and activities conducted by

the Board. It also specifies the

circumstances under which the Board

will hire or decline to hire persons who

are not citizens of the United States,

consistent with the Board’s operational

needs and applicable law.

§ 268.2 Definitions.

The definitions contained in this

section shall have the following

meanings throughout this part unless

otherwise stated.

(a) Commission or EEOC means the

Equal Employment Opportunity

Commission.

(b) Title VII means Title VII of the

Civil Rights Act (42 U.S.C. 2000e et

seq.).

Subpart B—Board Program to Promote

Equal Opportunity

§ 268.101 General policy for equal

opportunity.

(a) It is the policy of the Board to

provide equal opportunity in

employment for all persons, to prohibit

discrimination in employment because

of race, color, religion, sex, national

origin, age or disability, and to promote

the full realization of equal opportunity

in employment through a continuing

affirmative program.

(b) No person shall be subject to

retaliation for opposing any practice

made unlawful by Title VII of the Civil

Rights Act (title VII) (42 U.S.C. 2000e et

seq.), the Age Discrimination in

Employment Act (ADEA) (29 U.S.C. 621

et seq.), the Equal Pay Act (29 U.S.C.

206(d)), or the Rehabilitation Act (29

U.S.C. 791 et seq.) or for participating in

any stage of administrative or judicial

proceedings under those statutes.

§ 268.102 Board program for equal

employment opportunity.

(a) The Board shall maintain a

continuing affirmative program to

promote equal opportunity and to

identify and eliminate discriminatory

practices and policies. In support of this

program, the Board shall:

(1) Provide sufficient resources to its

equal opportunity program to ensure

efficient and successful operation;

(2) Provide for the prompt, fair and

impartial processing of complaints in

accordance with this part and the

instructions contained in the

Commission’s Management Directives;

(3) Conduct a continuing campaign to

eradicate every form of prejudice or

discrimination from the Board’s

personnel policies, practices and

working conditions;

(4) Communicate the Board’s equal

employment opportunity policy and

program and its employment needs to

all sources of job candidates without

regard to race, color, religion, sex,

national origin, age or disability, and

solicit their recruitment assistance on a

continuing basis;

(5) Review, evaluate and control

managerial and supervisory

performance in such a manner as to

insure a continuing affirmative

application and vigorous enforcement of

the policy of equal opportunity, and

provide orientation, training and advice

to managers and supervisors to assure

their understanding and

implementation of the equal

employment opportunity policy and

program;

(6) Take appropriate disciplinary

action against employees who engage in

discriminatory practices;

(7) Make reasonable accommodation

to the religious needs of employees and

applicants for employment when those

accommodations can be made without

undue hardship on the business of the

Board;

(8) Make reasonable accommodation

to the known physical or mental

limitations of qualified applicants and

employees with a disability unless the

accommodation would impose an

undue hardship on the operations of the

Board’s program;

(9) Reassign, in accordance with

§ 268.203(g), nonprobationary

employees who develop physical or

mental limitations that prevent them

from performing the essential functions

of their positions even with reasonable

accommodation;

(10) Provide recognition to

employees, supervisors, managers and

units demonstrating superior

accomplishment in equal employment

opportunity;

(11) Establish a system for

periodically evaluating the effectiveness

of the Board’s overall equal employment

opportunity effort;

(12) Provide the maximum feasible

opportunity to employees to enhance

their skills through on-the-job training,

work-study programs and other training

measures so that they may perform at

their highest potential and advance in

accordance with their abilities;

(13) Inform its employees and

recognized labor organizations of the

Board’s affirmative equal opportunity

policy and program and enlist their

cooperation; and

(14) Participate at the community

level with other employers, with

schools and universities and with other

public and private groups in cooperative

action to improve employment

opportunities and community

conditions that affect employability.

(b) In order to implement its program,

the Board shall:

7706 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

(1) Develop the plans, procedures and

regulations necessary to carry out its

program;

(2) Establish or make available an

alternative dispute resolution program.

Such program must be available for both

the precomplaint process and the formal

complaint process.

(3) Appraise its personnel operations

at regular intervals to assure their

conformity with the Board’s program,

this part 268 and the instructions

contained in the Commission’s

management directives;

(4) Designate a Director for Equal

Employment Opportunity (EEO

Programs Director), EEO Officer(s), and

such Special Emphasis Program

Managers/Coordinators (e.g., People

with Disabilities Program, Federal

Women’s Program and Hispanic

Employment Program), clerical and

administrative support as may be

necessary to carry out the functions

described in this part in all

organizational units of the Board and at

all Board installations. The EEO

Programs Director shall be under the

immediate supervision of the Chairman.

(5) Make written materials available to

all employees and applicants informing

them of the variety of equal employment

opportunity programs and

administrative and judicial remedial

procedures available to them and

prominently post such written materials

in all personnel and EEO offices and

throughout the workplace;

(6) Ensure that full cooperation is

provided by all Board employees to EEO

Counselors and Board EEO personnel in

the processing and resolution of precomplaint matters and complaints

within the Board and that full

cooperation is provided to the

Commission in the course of appeals,

including, granting the Commission

routine access to personnel records of

the Board when required in connection

with an investigation;

(7) Publicize to all employees and

post at all times the names, business

telephone numbers and business

addresses of the EEO Counselors (unless

the counseling function is centralized,

in which case only the telephone

number and address need be publicized

and posted), a notice of the time limits

and necessity of contacting a Counselor

before filing a complaint and the

telephone numbers and addresses of the

EEO Programs Director, EEO Officer(s)

and the Special Emphasis Program

Managers/Coordinators.

(c) The EEO Programs Director shall

be responsible for:

(1) Advising the Board of Governors

with respect to the preparation of

national and regional equal employment

opportunity plans, procedures,

regulations, reports and other matters

pertaining to the policy in § 268.101 and

the Board’s program;

(2) Evaluating from time to time the

sufficiency of the total Board program

for equal employment opportunity and

reporting to the Board of Governors with

recommendations as to any

improvement or correction needed,

including remedial or disciplinary

action with respect to managerial,

supervisory or other employees who

have failed in their responsibilities;

(3) When authorized by the Board of

Governors, making changes in programs

and procedures designed to eliminate

discriminatory practices and to improve

the Board’s program for equal

employment opportunity;

(4) Providing for counseling of

aggrieved individuals and for the receipt

and processing of individual and class

complaints of discrimination; and

(5) Assuring that individual

complaints are fairly and thoroughly

investigated and that final action is

taken in a timely manner in accordance

with this part.

(d) Directives, instructions, forms and

other Commission materials referenced

in this part may be obtained in

accordance with the provisions of 29

CFR 1610.7.

§ 268.103 Complaints of discrimination

covered by this part.

(a) Individual and class complaints of

employment discrimination and

retaliation prohibited by title VII

(discrimination on the basis of race,

color, religion, sex and national origin),

the ADEA (discrimination on the basis

of age when the aggrieved person is at

least 40 years of age), the Rehabilitation

Act (discrimination on the basis of

disability), or the Equal Pay Act (sexbased wage discrimination) shall be

processed in accordance with this part.

Complaints alleging retaliation

prohibited by these statutes are

considered to be complaints of

discrimination for purposes of this part.

(b) This part applies to all Board

employees and applicants for

employment at the Board, and to all

employment policies or practices

affecting Board employees or applicants

for employment.

(c) This part does not apply to Equal

Pay Act complaints of employees whose

services are performed within a foreign

country or certain United States

territories as provided in 29 USC 213(f).

§ 268.104 Pre-complaint processing.

(a) Aggrieved persons who believe

they have been discriminated against on

the basis of race, color, religion, sex,

national origin, age or disability must

consult a Counselor prior to filing a

complaint in order to try to informally

resolve the matter.

(1) An aggrieved person must initiate

contact with a Counselor within 45 days

of the date of the matter alleged to be

discriminatory or, in the case of a

personnel action, within 45 days of the

effective date of the action.

(2) The Board or the Commission

shall extend the 45-day time limit in

paragraph (a)(1) of this section when the

individual shows that he or she was not

notified of the time limits and was not

otherwise aware of them, that he or she

did not know and reasonably should not

have known that the discriminatory

matter or personnel action occurred,

that despite due diligence he or she was

prevented by circumstances beyond his

or her control from contacting the

counselor within the time limits, or for

other reasons considered sufficient by

the Board or the Commission.

(b)(1) At the initial counseling

session, Counselors must advise

individuals in writing of their rights and

responsibilities, including the right to

request a hearing or an immediate final

decision after an investigation by the

Board in accordance with § 268.107(f),

election rights pursuant to § 268.302,

the right to file a notice of intent to sue

pursuant to § 268.201(a) and a lawsuit

under the ADEA instead of an

administrative complaint of age

discrimination under this part, the duty

to mitigate damages, administrative and

court time frames, and that only the

claims raised in precomplaint

counseling (or issues or claims like or

related to issues or claims raised in precomplaint counseling) may be alleged in

a subsequent complaint filed with the

Board. Counselors must advise

individuals of their duty to keep the

Board and the Commission informed of

their current address and to serve copies

of appeal papers on the Board. The

notice required by paragraphs (d) or (e)

of this section shall include a notice of

the right to file a class complaint. If the

aggrieved person informs the Counselor

that he or she wishes to file a class

complaint, the Counselor shall explain

the class complaint procedures and the

responsibilities of a class agent.

(2) Counselors shall advise aggrieved

persons that, where the Board agrees to

offer ADR in the particular case, they

may choose between participation in the

alternative dispute resolution program

and the counseling activities provided

for in paragraph (c) of this section.

(c) Counselors shall conduct

counseling activities in accordance with

instructions contained in Commission

Management Directives. When advised

Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations 7707

that a complaint has been filed by an

aggrieved person, the Counselor shall

submit a written report within 15 days

to the EEO Programs Director and the

aggrieved person concerning the issues

discussed and actions taken during

counseling.

(d) Unless the aggrieved person agrees

to a longer counseling period under

paragraph (e) of this section, or the

aggrieved person chooses an alternative

dispute resolution procedure in

accordance with paragraph (b)(2) of this

section, the Counselor shall conduct the

final interview with the aggrieved

person within 30 days of the date the

aggrieved person contacted the Board’s

EEO Programs Office to request

counseling. If the matter has not been

resolved, the aggrieved person shall be

informed in writing by the Counselor,

not later than the thirtieth day after

contacting the Counselor, of the right to

file a discrimination complaint with the

Board. This notice shall inform the

complainant of the right to file a

discrimination complaint within 15

days of receipt of the notice, of the

appropriate official with whom to file a

complaint and of the complainant’s

duty to assure that the EEO Programs

Director is informed immediately if the

complainant retains counsel or a

representative.

(e) Prior to the end of the 30-day

period, the aggrieved person may agree

in writing with the Board to postpone

the final interview and extend the

counseling period for an additional

period of no more than 60 days. If the

matter has not been resolved before the

conclusion of the agreed extension, the

notice described in paragraph (d) of this

section shall be issued.

(f) Where the aggrieved person

chooses to participate in an alternative

dispute resolution procedure in

accordance with paragraph (b)(2) of this

section, the pre-complaint processing

period shall be 90 days. If the claim has

not been resolved before the 90th day,

the notice described in paragraph (d) of

this section shall be issued.

(g) The Counselor shall not attempt in

any way to restrain the aggrieved person

from filing a complaint. The Counselor

shall not reveal the identity of an

aggrieved person who consulted the

Counselor, except when authorized to

do so by the aggrieved person, or until

the Board has received a discrimination

complaint under this part from that

person involving the same matter.

§ 268.105 Individual complaints.

(a) A complaint must be filed with the

agency that allegedly discriminated

against the complainant.

(b) A complaint must be filed within

15 days of receipt of the notice required

by § 268.104(d), (e) or (f).

(c) A complaint must contain a signed

statement from the person claiming to

be aggrieved or that person’s attorney.

This statement must be sufficiently

precise to identify the aggrieved

individual and the Board and to

describe generally the action(s) or

practice(s) that form the basis of the

complaint. The complaint must also

contain a telephone number and address

where the complainant or the

representative can be contacted.

(d) A complainant may amend a

complaint at any time prior to the

conclusion of the investigation to

include issues or claims like or related

to those raised in the complaint. After

requesting a hearing, a complainant may

file a motion with the administrative

judge to amend a complaint to include

issues or claims like or related to those

raised in the complaint.

(e) The Board shall acknowledge

receipt of a complaint or an amendment

to a complaint in writing and inform the

complainant of the date on which the

complaint or amendment was filed. The

Board shall advise the complainant in

the acknowledgment of the EEOC office

and its address where a request for a

hearing shall be sent. Such

acknowledgment shall also advise the

complainant that:

(1) The complainant has the right to

appeal the final action on or dismissal

of a complaint; and

(2) The Board is required to conduct

an impartial and appropriate

investigation of the complaint within

180 days of the filing of the complaint

unless the parties agree in writing to

extend the time period. When a

complaint has been amended, the Board

shall complete its investigation within

the earlier of 180 days after the last

amendment to the complaint or 360

days after the filing of the original

complaint, except that the complainant

may request a hearing from an

administrative judge on the

consolidated complaints any time after

180 days from the date of the first filed

complaint.

§ 268.106 Dismissals of complaints.

(a) Prior to a request for a hearing in

a case, the Board shall dismiss an entire

complaint:

(1) That fails to state a claim under

§ 268.103 or § 268.105(a), or states the

same claim that is pending before or has

been decided by the Board or the

Commission;

(2) That fails to comply with the

applicable time limits contained in

§§ 268.104, 268.105 and 268.204(c),

unless the Board extends the time limits

in accordance with § 268.604(c), or that

raises a matter that has not been brought

to the attention of a Counselor and is

not like or related to a matter that has

been brought to the attention of a

Counselor;

(3) That is the basis of a pending civil

action in a United States District Court

in which the complainant is a party

provided that at least 180 days have

passed since the filing of the

administrative complaint, or that was

the basis of a civil action decided by a

United States District Court in which

the complainant was a party;

(4) Where a complainant has raised

the matter in an appeal to the Merit

Systems Protection Board and § 268.302

indicates that the complainant has

elected to pursue the non-EEO process;

(5) That is moot or alleges that a

proposal to take a personnel action, or

other preliminary step to taking a

personnel action, is discriminatory;

(6) Where the complainant cannot be

located, provided that reasonable efforts

have been made to locate the

complainant and the complainant has

not responded within 15 days to a

notice of proposed dismissal sent to his

or her last known address;

(7) Where the Board has provided the

complainant with a written request to

provide relevant information or

otherwise proceed with the complaint,

and the complainant has failed to

respond to the request within 15 days of

its receipt or the complainant’s response

does not address the Board’s request,

provided that the request included a

notice of the proposed dismissal.

Instead of dismissing for failure to

cooperate, the complaint may be

adjudicated if sufficient information for

that purpose is available;

(8) That alleges dissatisfaction with

the processing of a previously filed

complaint; or

(9) Where the Board, strictly applying

the criteria set forth in Commission

decisions, finds that the complaint is

part of a clear pattern of misuse of the

EEO process for a purpose other than

the prevention and elimination of

employment discrimination. A clear

pattern of misuse of the EEO process

requires:

(i) Evidence of multiple complaint

filings; and

(ii) Allegations that are similar or

identical, lack specificity or involve

matters previously resolved; or

(iii) Evidence of circumventing other

administrative processes, retaliating

against the Board’s in-house

administrative processes or

overburdening the EEO complaint

system.

7708 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

(b) Where the Board believes that

some but not all of the claims in a

complaint should be dismissed for the

reasons contained in paragraphs (a)(1)

through (9) of this section, the Board

shall notify the complainant in writing

of its determination, the rationale for

that determination and that those claims

will not be investigated, and shall place

a copy of the notice in the investigative

file. A determination under this

paragraph is reviewable by an

administrative judge if a hearing is

requested on the remainder of the

complaint, but is not appealable until

final action is taken on the remainder of

the complaint.

§ 268.107 Investigation of complaints.

(a) The investigation of complaints

filed against the Board shall be

conducted by the Board.

(b) In accordance with instructions

contained in Commission Management

Directives, the Board shall develop an

impartial and appropriate factual record

upon which to make findings on the

claims raised by the written complaint.

An appropriate factual record is one that

allows a reasonable fact finder to draw

conclusions as to whether

discrimination occurred. The Board may

use an exchange of letters or

memoranda, interrogatories,

investigations, fact-finding conferences

or any other fact-finding methods that

efficiently and thoroughly address the

matters at issue. The Board may

incorporate alternative dispute

resolution techniques into its

investigative efforts in order to promote

early resolution of complaints.

(c) The procedures in paragraphs

(c)(1) through (3) of this section apply

to the investigation of complaints:

(1) The complainant, the Board, and

any employee of the Board shall

produce such documentary and

testimonial evidence as the investigator

deems necessary.

(2) Investigators are authorized to

administer oaths. Statements of

witnesses shall be made under oath or

affirmation or, alternatively, by written

statement under penalty of perjury.

(3) When the complainant, or the

Board or its employees fail without good

cause shown to respond fully and in

timely fashion to requests for

documents, records, comparative data,

statistics, affidavits or the attendance of

witness(es), the investigator may note in

the investigative record that the

decisionmaker should, or the

Commission on appeal may, in

appropriate circumstances:

(i) Draw an adverse inference that the

requested information, or the testimony

of the requested witness, would have

reflected unfavorably on the party

refusing to provide the requested

information;

(ii) Consider the matters to which the

requested information or testimony

pertains to be established in favor of the

opposing party;

(iii) Exclude other evidence offered by

the party failing to produce the

requested information or witness;

(iv) Issue a decision fully or partially

in favor of the opposing party; or

(v) Take such other actions as it

deems appropriate.

(d) Any investigation will be

conducted by investigators with

appropriate security clearances.

(e)(1) The Board shall complete its

investigation within 180 days of the

date of filing of an individual complaint

or within the time period contained in

an order from the Office of Federal

Operations on an appeal from a

dismissal pursuant to § 268.106. By

written agreement within those time

periods, the complainant and the Board

may voluntarily extend the time period

for not more than an additional 90 days.

The Board may unilaterally extend the

time period or any period of extension

for not more than 30 days where it must

sanitize a complaint file that may

contain information classified pursuant

to Executive Order No. 12356, or

successor orders, as secret in the interest

of national defense or foreign policy,

provided the Board notifies the

complainant of the extension.

(2) Confidential supervisory

information, as defined in 12 CFR

261.2(c), and other confidential

information of the Board may be

included in the investigative file by the

investigator, the EEO Programs Director,

or another appropriate officer of the

Board, where such information is

relevant to the complaint. Neither the

complainant nor the complainant’s

personal representative may make

further disclosure of such information,

however, except in compliance with the

Board’s Rules Regarding Availability of

Information, 12 CFR part 261, and

where applicable, the Board’s Rules

Regarding Access to Personal

Information under the Privacy Act of

1974, 12 CFR part 261a.

(f) Within 180 days from the filing of

the complaint, or where a complaint

was amended, within the earlier of 180

days after the last amendment to the

complaint or 360 days after the filing of

the original complaint, within the time

period contained in an order from the

Office of Federal Operations on an

appeal from a dismissal, or within any

period of extension provided for in

paragraph (e) of this section, the Board

shall provide the complainant with a

copy of the investigative file, and shall

notify the complainant that, within 30

days of receipt of the investigative file,

the complainant has the right to request

a hearing and decision from an

administrative judge or may request an

immediate final decision pursuant to

§ 268.109(b) from the Board.

(g) Where the complainant has

received the notice required in

paragraph (f) of this section or at any

time after 180 days have elapsed from

the filing of the complaint, the

complainant may request a hearing by

submitting a written request for a

hearing directly to the EEOC office

indicated in the Board’s

acknowledgment letter. The

complainant shall send a copy of the

request for a hearing to the Board’s EEO

Programs Office. Within 15 days of

receipt of the request for a hearing, the

Board’s EEO Programs Office shall

provide a copy of the complaint file to

EEOC and, if not previously provided,

to the complainant.

§ 268.108 Hearings.

(a) When a complainant requests a

hearing, the Commission shall appoint

an administrative judge to conduct a

hearing in accordance with this section.

Upon appointment, the administrative

judge shall assume full responsibility

for the adjudication of the complaint,

including overseeing the development

of the record. Any hearing will be

conducted by an administrative judge or

hearing examiner with appropriate

security clearances.

(b) Dismissals. Administrative judges

may dismiss complaints pursuant to

§ 268.106, on their own initiative, after

notice to the parties, or upon the

Board’s motion to dismiss a complaint.

(c) Offer of resolution. (1) Any time

after the filing of the written complaint

but not later than the date an

administrative judge is appointed to

conduct a hearing, the Board may make

an offer of resolution to a complainant

who is represented by an attorney.

(2) Any time after the parties have

received notice that an administrative

judge has been appointed to conduct a

hearing, but not later than 30 days prior

to the hearing, the Board may make an

offer of resolution to the complainant,

whether represented by an attorney or

not.

(3) The offer of resolution shall be in

writing and shall include a notice

explaining the possible consequences of

failing to accept the offer. The Board’s

offer, to be effective, must include

attorney’s fees and costs and must

specify any non-monetary relief. With

regard to monetary relief, the Board may

make a lump sum offer covering all

Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations 7709

forms of monetary liability, or it may

itemize the amounts and types of

monetary relief being offered. The

complainant shall have 30 days from

receipt of the offer of resolution to

accept it. If the complainant fails to

accept an offer of resolution and the

relief awarded in the administrative

judge’s decision, the Board’s final

decision, or the Commission’s decision

on appeal is not more favorable than the

offer, then, except where the interest of

justice would not be served, the

complainant shall not receive payment

from the Board of attorney’s fees or costs

incurred after the expiration of the 30-

day acceptance period. An acceptance

of an offer must be in writing and will

be timely if postmarked or received

within the 30-day period. Where a

complainant fails to accept an offer of

resolution, the Board may make other

offers of resolution and either party may

seek to negotiate a settlement of the

complaint at any time.

(d) Discovery. The administrative

judge shall notify the parties of the right

to seek discovery prior to the hearing

and may issue such discovery orders as

are appropriate. Unless the parties agree

in writing concerning the methods and

scope of discovery, the party seeking

discovery shall request authorization

from the administrative judge prior to

commencing discovery. Both parties are

entitled to reasonable development of

evidence on matters relevant to the

issues raised in the complaint, but the

administrative judge may limit the

quantity and timing of discovery.

Evidence may be developed through

interrogatories, depositions, and

requests for admissions, stipulations or

production of documents. It shall be

grounds for objection to producing

evidence that the information sought by

either party is irrelevant,

overburdensome, repetitious, or

privileged.

(e) Conduct of hearing. The Board

shall provide for the attendance at a

hearing of all employees approved as

witnesses by an administrative judge.

Attendance at hearings will be limited

to persons determined by the

administrative judge to have direct

knowledge relating to the complaint.

Hearings are part of the investigative

process and are thus closed to the

public. The administrative judge shall

have the power to regulate the conduct

of a hearing, limit the number of

witnesses where testimony would be

repetitious, and exclude any person

from the hearing for contumacious

conduct or misbehavior that obstructs

the hearing. The administrative judge

shall receive into evidence information

or documents relevant to the complaint.

Rules of evidence shall not be applied

strictly, but the administrative judge

shall exclude irrelevant or repetitious

evidence. The administrative judge or

the Commission may refer to the

Disciplinary Committee of the

appropriate Bar Association any

attorney or, upon reasonable notice and

an opportunity to be heard, suspend or

disqualify from representing

complainants or agencies in EEOC

hearings any representative who refuses

to follow the orders of an administrative

judge, or who otherwise engages in

improper conduct.

(f) Procedures. (1) The complainant,

the Board and any employee of the

Board shall produce such documentary

and testimonial evidence as the

administrative judge deems necessary.

The administrative judge shall serve all

orders to produce evidence on both

parties.

(2) Administrative judges are

authorized to administer oaths.

Statements of witnesses shall be made

under oath or affirmation or,

alternatively, by written statement

under penalty of perjury.

(3) When the complainant, or the

Board, or its employees fail without

good cause shown to respond fully and

in timely fashion to an order of an

administrative judge, or requests for the

investigative file, for documents,

records, comparative data, statistics,

affidavits, or the attendance of

witness(es), the administrative judge

shall, in appropriate circumstances:

(i) Draw an adverse inference that the

requested information, or the testimony

of the requested witness, would have

reflected unfavorably on the party

refusing to provide the requested

information;

(ii) Consider the matters to which the

requested information or testimony

pertains to be established in favor of the

opposing party;

(iii) Exclude other evidence offered by

the party failing to produce the

requested information or witness;

(iv) Issue a decision fully or partially

in favor of the opposing party; or

(v) Take such other actions as

appropriate.

(g) Decisions without hearing. (1) If a

party believes that some or all material

facts are not in genuine dispute and

there is no genuine issue as to

credibility, the party may, at least 15

days prior to the date of the hearing or

at such earlier time as required by the

administrative judge, file a statement

with the administrative judge prior to

the hearing setting forth the fact or facts

and referring to the parts of the record

relied on to support the statement. The

statement must demonstrate that there is

no genuine issue as to any such material

fact. The party shall serve the statement

on the opposing party.

(2) The opposing party may file an

opposition within 15 days of receipt of

the statement in paragraph (g)(1) of this

section. The opposition may refer to the

record in the case to rebut the statement

that a fact is not in dispute or may file

an affidavit stating that the party cannot,

for reasons stated, present facts to

oppose the request. After considering

the submissions, the administrative

judge may order that discovery be

permitted on the fact or facts involved,

limit the hearing to the issues remaining

in dispute, issue a decision without a

hearing or make such other ruling as is

appropriate.

(3) If the administrative judge

determines upon his or her own

initiative that some or all facts are not

in genuine dispute, he or she may, after

giving notice to the parties and

providing them an opportunity to

respond in writing within 15 calendar

days, issue an order limiting the scope

of the hearing or issue a decision

without holding a hearing.

(h) Record of hearing. The hearing

shall be recorded and the Board shall

arrange and pay for verbatim transcripts.

All documents submitted to, and

accepted by, the administrative judge at

the hearing shall be made part of the

record of the hearing. If the Board

submits a document that is accepted, it

shall furnish a copy of the document to

the complainant. If the complainant

submits a document that is accepted,

the administrative judge shall make the

document available to the Board’s

representative for reproduction.

(i) Decisions by administrative judges.

Unless the administrative judge makes a

written determination that good cause

exists for extending the time for issuing

a decision, an administrative judge shall

issue a decision on the complaint, and

shall order appropriate remedies and

relief where discrimination is found,

within 180 days of receipt by the

administrative judge of the complaint

file from the Board. The administrative

judge shall send copies of the hearing

record, including the transcript, and the

decision to the parties. If the Board does

not issue a final order within 40 days of

receipt of the administrative judge’s

decision in accordance with

§ 268.109(a), then the decision of the

administrative judge shall become the

final action of the Board.

§ 268.109 Final action by the Board.

(a) Final action by the Board following

a decision by an administrative judge.

When an EEOC administrative judge has

issued a decision under §§ 268.108(b),

7710 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

(g), or (i), the Board shall take final

action on the complaint by issuing a

final order within 40 days of receipt of

the hearing file and the administrative

judge’s decision. The final order shall

notify the complainant whether or not

the Board will fully implement the

decision of the administrative judge and

shall contain notice of the

complainant’s right to appeal to the

Equal Employment Opportunity

Commission, the right to file a civil

action in federal district court, the name

of the proper defendant in any such

lawsuit and the applicable time limits

for appeals and lawsuits. If the final

order does not fully implement the

decision of the administrative judge,

then the Board shall simultaneously file

an appeal in accordance with § 268.403

and append a copy of its appeal to the

final order. A copy of EEOC Form 573

shall be attached to the final order.

(b) Final action by the Board in all

other circumstances. When the Board

dismisses an entire complaint under

§ 268.106, receives a request for an

immediate final decision or does not

receive a reply to the notice issued

under § 268.107(f), the Board shall take

final action by issuing a final decision.

The final decision shall consist of

findings by the Board on the merits of

each issue in the complaint, or, as

appropriate, the rationale for dismissing

any claims in the complaint and, when

discrimination is found, appropriate

remedies and relief in accordance with

subpart F of this part. The Board shall

issue the final decision within 60 days

of receiving notification that a

complainant has requested an

immediate decision from the Board, or

within 60 days of the end of the 30-day

period for the complainant to request a

hearing or an immediate final decision

where the complainant has not

requested either a hearing or a decision.

The final action shall contain notice of

the right to appeal the final action to the

Equal Employment Opportunity

Commission, the right to file a civil

action in federal district court, the name

of the proper defendant in any such

lawsuit and the applicable time limits

for appeals and lawsuits. A copy of

EEOC Form 573 shall be attached to the

final action. The Board may issue a final

decision within 30 days after receiving

a decision of the Commission pursuant

to § 268.405(c) of this part.

Subpart C—Provisions Applicable to

Particular Complaints

§ 268.201 Age Discrimination in

Employment Act.

(a) As an alternative to filing a

complaint under this part, an aggrieved

individual may file a civil action in a

United States district court under the

ADEA against the Chairman of the

Board of Governors after giving the

Commission not less than 30 days’

notice of the intent to file such an

action. Such notice must be filed in

writing with EEOC, at P.O. Box 19848,

Washington, DC 20036, or by personal

delivery or facsimile within 180 days of

the occurrence of the alleged unlawful

practice.

(b) The Commission may exempt a

position from the provisions of the

ADEA if the Commission establishes a

maximum age requirement for the

position on the basis of a determination

that age is a bona fide occupational

qualification necessary to the

performance of the duties of the

position.

(c) When an individual has filed an

administrative complaint alleging age

discrimination that is not a mixed case,

administrative remedies will be

considered to be exhausted for purposes

of filing a civil action:

(1) 180 days after the filing of an

individual complaint if the Board has

not taken final action and the individual

has not filed an appeal or 180 days after

the filing of a class complaint if the

Board has not issued a final decision;

(2) After final action on an individual

or class complaint if the individual has

not filed an appeal; or

(3) After the issuance of a final

decision by the Commission on an

appeal or 180 days after the filing of an

appeal, if the Commission has not

issued a final decision.

§ 268.202 Equal Pay Act.

Complaints alleging violations of the

Equal Pay Act shall be processed under

this part.

§ 268.203 Rehabilitation Act.

(a) Definitions.—For the purposes of

this section:

(1) Individual with a disability is

defined as one who:

(i) Has a physical or mental

impairment which substantially limits

one or more of such person’s major life

activities;

(ii) Has a record of such an

impairment; or

(iii) Is regarded as having such an

impairment.

(2) Physical or mental impairment

means:

(i) Any physiological disorder or

condition, cosmetic disfigurement, or

anatomical loss affecting one or more of

the following body systems:

Neurological, musculoskeletal, special

sense organs, cardiovascular,

reproductive, digestive, respiratory,

genitourinary, hemic and lymphatic,

skin, and endocrine; or

(ii) Any mental or psychological

disorder, such as mental retardation,

organic brain syndrome, emotional or

mental illness, and specific learning

disabilities.

(3) Major life activities means

functions, such as caring for one’s self,

performing manual tasks, walking,

seeing, hearing, speaking, breathing,

learning and working.

(4) Has a record of such an

impairment means has a history of, or

has been classified (or misclassified) as

having, a mental or physical impairment

that substantially limits one or more

major life activities.

(5) Is regarded as having such an

impairment means has a physical or

mental impairment that does not

substantially limit major life activities

but is treated by the Board as

constituting such a limitation; has a

physical or mental impairment that

substantially limits major life activities

only as a result of the attitude of the

Board toward such impairment; or has

none of the impairments defined in

paragraph (a)(2) of this section but is

treated by the Board as having such an

impairment.

(6) Qualified individual with a

disability means with respect to

employment, an individual with a

disability who, with or without

reasonable accommodation, can perform

the essential functions of the position in

question without endangering the health

and safety of the individual or others

and who:

(i) Meets the experience or education

requirements (which may include

passing a written test) of the position in

question; or

(ii) Meets the criteria for appointment

under a Board special program for

hiring individuals with a disability.

(b) The Board shall become a model

employer of individuals with a

disability. The Board shall give full

consideration to the hiring, placement,

and advancement of qualified

individuals with a mental or physical

disability. The Board shall not

discriminate against a qualified

individual with a physical or mental

disability.

(c) Reasonable accommodation. (1)

The Board shall make reasonable

accommodation to the known physical

or mental limitations of an applicant or

employee who is a qualified individual

with a disability unless the Board can

demonstrate that the accommodation

would impose an undue hardship on

the operations of its program.

(2) Reasonable accommodation may

include, but shall not be limited to:

Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations 7711

(i) Making facilities readily accessible

to and usable by individuals with a

disability; and

(ii) Job restructuring, part-time or

modified work schedules, acquisition or

modification of equipment or devices,

appropriate adjustment or modification

of examinations, the provision of

readers and interpreters, and other

similar actions.

(3) In determining whether, pursuant

to paragraph (c)(1) of this section, an

accommodation would impose an

undue hardship on the operation of the

Board, factors to be considered include:

(i) The overall size of the Board’s

program with respect to the number of

employees, number and type of facilities

and size of budget;

(ii) The type of Board operation,

including the composition and structure

of the Board’s work force; and

(iii) The nature and the cost of the

accommodation.

(d) Employment criteria. (1) The

Board shall not make use of any

employment test or other selection

criterion that screens out or tends to

screen out qualified individuals with a

disability or any class of individuals

with a disability unless:

(i) The Board demonstrates that the

test score or other selection criterion is

job-related for the position in question

and consistent with business necessity;

and

(ii) The Board shows that job-related

alternative tests or criteria that do not

screen out or tend to screen out as many

individuals with a disability are

unavailable.

(2) The Board shall select and

administer tests concerning

employment so as to insure that, when

administered to an applicant or

employee who has a disability that

impairs sensory, manual, or speaking

skills, the test results accurately reflect

the applicant’s or employee’s ability to

perform the position or type of positions

in question rather than reflecting the

applicant’s or employee’s impaired

sensory, manual, or speaking skill

(except where those skills are the factors

that the test purports to measure).

(e) Preemployment inquiries. (1)

Except as provided in paragraphs (e)(2)

and (e)(3) of this section, the Board may

not conduct a preemployment medical

examination and may not make

preemployment inquiry of an applicant

as to whether the applicant is an

individual with a disability or as to the

nature or severity of a disability. The

Board may, however, make

preemployment inquiry into an

applicant’s ability to meet the essential

functions of the job, or the medical

qualification requirements if applicable,

with or without reasonable

accommodation, of the position in

question, i.e., the minimum abilities

necessary for safe and efficient

performance of the duties of the

position in question.

(2) Nothing in this section shall

prohibit the Board from conditioning an

offer of employment on the results of a

medical examination conducted prior to

the employee’s entrance on duty,

provided that: all entering employees

are subjected to such an examination

regardless of disability or when the

preemployment medical questionnaire

used for positions that do not routinely

require medical examination indicates a

condition for which further examination

is required because of the job-related

nature of the condition, and the results

of such an examination are used only in

accordance with the requirements of

this part. Nothing in this section shall

be construed to prohibit the gathering of

preemployment medical information for

the purpose of hiring individuals with

a disability under a special Board

program.

(3) To enable and evaluate affirmative

action to hire, place or advance

individuals with a disability, the Board

may invite applicants for employment

to indicate whether and to what extent

they are disabled, if:

(i) The Board states clearly on any

written questionnaire used for this

purpose or makes clear orally if no

written questionnaire is used, that the

information requested is intended for

use solely in conjunction with

affirmative action; and

(ii) The Board states clearly that the

information is being requested on a

voluntary basis, that refusal to provide

it will not subject the applicant or

employee to any adverse treatment, and

that it will be used only in accordance

with this part.

(4) Information obtained in

accordance with this section as to the

medical condition or history of the

employee or applicant shall be kept

confidential except that:

(i) Managers, selecting officials, and

others involved in the selection process

or responsible for affirmative action may

be informed that the applicant is eligible

under a special Board program for

hiring individuals with a disability;

(ii) Supervisors and managers may be

informed regarding necessary

accommodations;

(iii) First aid and safety personnel

may be informed, where appropriate, if

the condition might require emergency

treatment;

(iv) Government officials investigating

compliance with laws, regulations, and

instructions relevant to equal

employment opportunity and

affirmative action for individuals with a

disability shall be provided information

upon request; and

(v) Statistics generated from

information obtained may be used to

manage, evaluate, and report on equal

employment opportunity and

affirmative action programs.

(f) Physical access to buildings. (1)

The Board shall not discriminate against

applicants or employees who are

qualified individuals with a disability

due to the inaccessibility of its facility.

(2) For the purposes of this subpart,

a facility shall be deemed accessible if

it is in compliance with, the

Architectural Barriers Act of 1968 (42

U.S.C. 4151 et seq.) and the Americans

with Disabilities Act of 1990 (42 U.S.C.

12183 and 12204).

(g) Reassignment. When a

nonprobationary employee becomes

unable to perform the essential

functions of his or her position even

with reasonable accommodation due to

a disability, the Board shall offer to

reassign the individual to a funded

vacant position located in the same

commuting area and at the same grade

or level, the essential functions of which

the individual would be able to perform

with reasonable accommodation if

necessary unless the Board can

demonstrate the reassignment would

impose an undue hardship on the

operation of the Board’s program. In the

absence of a position at the same grade

or level, an offer of reassignment to a

vacant position at the highest available

grade or level below the employee’s

current grade or level shall be required,

but availability of such a vacancy shall

not affect the employee’s entitlement, if

any, to disability retirement pursuant to

any retirement plan in which the

employee is enrolled. If the Board has

already posted a notice or

announcement seeking applications for

a specific vacant position at the time the

Board has determined that the

nonprobationary employee is unable to

perform the essential functions of his or

her position even with reasonable

accommodation, then the Board does

not have an obligation under this

section to offer to reassign the

individual to that position, but the

Board must consider the individual on

an equal basis with those who applied

for the position.

(h) Exclusion from definition of

‘‘individual(s) with a disability(ies)’’. (1)

The term ‘‘individual with a disability’’

shall not include an individual who is

currently engaging in the illegal use of

drugs, when the Board acts on the basis

of such use. The term ‘‘drug’’ means a

controlled substance, as defined in

7712 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

schedules I through V of section 202 of

the Controlled Substances Act (21

U.S.C. 812). The term ‘‘illegal use of

drugs’’ means the use of drugs, the

possession or distribution of which is

unlawful under the Controlled

Substances Act, but does not include

the use of a drug taken under

supervision by a licensed health care

professional, or other uses authorized by

the Controlled Substances Act or other

provisions of Federal law. This

exclusion, however, does not exclude an

individual with a disability who:

(i) Has successfully completed a

supervised drug rehabilitation program

and is no longer engaging in the illegal

use of drugs, or has otherwise been

rehabilitated successfully and is no

longer engaging in such use;

(ii) Is participating in a supervised

rehabilitation program and is no longer

engaging in such use; or

(iii) Is erroneously regarded as

engaging in such use, but is not

engaging in such use.

(2) Except that it shall not violate this

section for the Board to adopt or

administer reasonable policies or

procedures, including but not limited to

drug testing, designed to ensure that an

individual described in paragraphs

(h)(1)(i) and (ii) of this section is no

longer engaging in the illegal use of

drugs.

(3) Alcoholism. The term ‘‘individual

with a disability’’ does not include an

employee who is an alcoholic whose

current use of alcohol prevents the

employee from performing the duties of

his or her job, or whose employment by

reason of such current alcohol use,

would constitute a direct threat to the

property or safety of others. In this

regard, alcoholics shall meet the same

performance and conduct standards to

which all other Board employees must

satisfy, even if an unsatisfactory

performance is related to the alcoholism

of the employee.

(4) Infectious and communicable

diseases. If an individual with a

disability has one of the listed diseases

as determined by the Secretary of Health

and Human Services under the

Americans with Disabilities Act (42

U.S.C. 12113(d)(1)) and works in or

applies for a position at the Board in

food handling, the Board will seek

reasonable accommodation under

paragraph (c) of this section to eliminate

the risk of transmitting the disease

through the handling of food. If the

individual with a disability is a

nonprobationary employee and a

reasonable accommodation cannot be

made, the provisions contained in

paragraph (g) of this section shall apply.

§ 268.204 Class complaints.

(a) Definitions. For the purposes of

this section:

(1) Class is a group of Board

employees, former employees or

applicants for employment who, it is

alleged, have been or are being

adversely affected by a Board personnel

management policy or practice that

discriminates against the group on the

basis of their race, color, religion, sex,

national origin, age or disability.

(2) Class complaint is a written

complaint of discrimination filed on

behalf of a class by the agent of the class

alleging that:

(i) The class is so numerous that a

consolidated complaint of the members

of the class is impractical;

(ii) There are questions of fact

common to the class;

(iii) The claims of the agent of the

class are typical of the claims of the

class;

(iv) The agent of the class, or, if

represented, the representative, will

fairly and adequately protect the

interests of the class.

(3) An agent of the class is a class

member who acts for the class during

the processing of the class complaint.

(b) Pre-complaint processing. An

employee or applicant who wishes to

file a class complaint must seek

counseling and be counseled in

accordance with § 268.104. A

complainant may move for class

certification at any reasonable point in

the process when it becomes apparent

that there are class implications to the

claim raised in an individual complaint.

If a complainant moves for class

certification after completing the

counseling process contained in

§ 268.104, no additional counseling is

required. The administrative judge shall

deny class certification when the

complainant has unduly delayed in

moving for certification.

(c) Filing and presentation of a class

complaint. (1) A class complaint must

be signed by the agent or representative

and must identify the policy or practice

adversely affecting the class as well as

the specific action or matter affecting

the class agent.

(2) The complaint must be filed with

the Board not later than 15 days after

the agent’s receipt of the notice of right

to file a class complaint.

(3) The complaint shall be processed

promptly; the parties shall cooperate

and shall proceed at all times without

undue delay.

(d) Acceptance or dismissal. (1)

Within 30 days of the Board’s receipt of

a complaint, the Board shall: Designate

an agency representative who shall not

be one of the individuals referenced in

§ 268.102(b)(4), and forward the

complaint, along with a copy of the

Counselor’s report and any other

information pertaining to timeliness or

other relevant circumstances related to

the complaint, to the Commission. The

Commission shall assign the complaint

to an administrative judge or complaints

examiner with a proper security

clearance when necessary. The

administrative judge may require the

complainant or the Board to submit

additional information relevant to the

complaint.

(2) The administrative judge may

dismiss the complaint, or any portion,

for any of the reasons listed in § 268.106

or because it does not meet the

prerequisites of a class complaint under

§ 268.204(a)(2).

(3) If an allegation is not included in

the Counselor’s report, the

administrative judge shall afford the

agent 15 days to state whether the

matter was discussed with the

Counselor and, if not, explain why it

was not discussed. If the explanation is

not satisfactory, the administrative

judge shall dismiss the allegation. If the

explanation is satisfactory, the

administrative judge shall refer the

allegation to the Board for further

counseling of the agent. After

counseling, the allegation shall be

consolidated with the class complaint.

(4) If an allegation lacks specificity

and detail, the administrative judge

shall afford the agent 15 days to provide

specific and detailed information. The

administrative judge shall dismiss the

complaint if the agent fails to provide

such information within the specified

time period. If the information provided

contains new allegations outside the

scope of the complaint, the

administrative judge shall advise the

agent how to proceed on an individual

or class basis concerning these

allegations.

(5) The administrative judge shall

extend the time limits for filing a

complaint and for consulting with a

Counselor in accordance with the time

limit extension provisions contained in

§§ 268.104(a)(2) and 268.604.

(6) When appropriate, the

administrative judge may decide that a

class be divided into subclasses and that

each subclass be treated as a class, and

the provisions of this section then shall

be construed and applied accordingly.

(7) The administrative judge shall

transmit his or her decision to accept or

dismiss a complaint to the Board and

the agent. The Board shall take final

action by issuing a final order within 40

days of receipt of the hearing record and

administrative judge’s decision. The

final order shall notify the agent

Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations 7713

whether or not the Board will

implement the decision of the

administrative judge. If the final order

does not implement the decision of the

administrative judge, the Board shall

simultaneously appeal the

administrative judge’s decision in

accordance with § 268.403 and append

a copy of the appeal to the final order.

A dismissal of a class complaint shall

inform the agent either that the

complaint is being filed on that date as

an individual complaint of

discrimination and will be processed

under subpart B of this part or that the

complaint is also dismissed as an

individual complaint in accordance

with § 268.106. In addition, it shall

inform the agent of the right to appeal

the dismissal of the class complaint to

the Equal Employment Opportunity

Commission or to file a civil action and

shall include EEOC Form 573, Notice of

Appeal/Petition.

(e) Notification. (1) Within 15 days of

receiving notice that the administrative

judge has accepted a class complaint or

a reasonable time frame specified by the

administrative judge, the Board shall

use reasonable means, such as delivery,

mailing to last known address or

distribution, to notify all class members

of the acceptance of the class complaint.

(2) Such notice shall contain:

(i) An identification of the Board as

the named agency, its location, and the

date of acceptance of the complaint;

(ii) A description of the issues

accepted as part of the class complaint;

(iii) An explanation of the binding

nature of the final decision or resolution

of the class complaint on class

members; and

(iv) The name, address and telephone

number of the class representative.

(f) Obtaining evidence concerning the

complaint. (1) The administrative judge

shall notify the agent and the Board’s

representative of the time period that

will be allowed both parties to prepare

their cases. This time period will

include at least 60 days and may be

extended by the administrative judge

upon the request of either party. Both

parties are entitled to reasonable

development of evidence on matters

relevant to the issues raised in the

complaint. Evidence may be developed

through interrogatories, depositions,

and requests for admissions,

stipulations or production of

documents. It shall be grounds for

objection to producing evidence that the

information sought by either party is

irrelevant, overburdensome, repetitious,

or privileged.

(2) If mutual cooperation fails, either

party may request the administrative

judge to rule on a request to develop

evidence. If a party fails without good

cause shown to respond fully and in

timely fashion to a request made or

approved by the administrative judge

for documents, records, comparative

data, statistics or affidavits, and the

information is solely in the control of

one party, such failure may, in

appropriate circumstances, cause the

administrative judge:

(i) To draw an adverse inference that

the requested information would have

reflected unfavorably on the party

refusing to provide the requested

information;

(ii) To consider the matters to which

the requested information pertains to be

established in favor of the opposing

party;

(iii) To exclude other evidence offered

by the party failing to produce the

requested information;

(iv) To recommend that a decision be

entered in favor of the opposing party;

or (v) To take such other actions as the

administrative judge deems appropriate.

(3) During the period for development

of evidence, the administrative judge

may, in his or her discretion, direct that

an investigation of facts relevant to the

class complaint or any portion be

conducted by an agency certified by the

Commission.

(4) Both parties shall furnish to the

administrative judge copies of all

materials that they wish to be examined

and such other material as may be

requested.

(g) Opportunity for resolution of the

complaint. (1) The administrative judge

shall furnish the agent and the Board’s

representative a copy of all materials

obtained concerning the complaint and

provide opportunity for the agent to

discuss the materials with the Board’s

representative and attempt resolution of

the complaint.

(2) The complaint may be resolved by

agreement of the Board and the agent at

any time pursuant to the notice and

approval procedure contained in

paragraph (g)(4) of this section.

(3) If the complaint is resolved, the

terms of the resolution shall be reduced

to writing and signed by the agent and

the Board.

(4) Notice of the resolution shall be

given to all class members in the same

manner as notification of the acceptance

of the class complaint and to the

administrative judge. It shall state the

relief, if any, to be granted by the Board

and the name and address of the EEOC

administrative judge assigned to the

case. It shall state that within 30 days

of the date of the notice of resolution,

any member of the class may petition

the administrative judge to vacate the

resolution because it benefits only the

class agent, or is otherwise not fair,

adequate and reasonable to the class as

a whole. The administrative judge shall

review the notice of resolution and

consider any petitions to vacate filed. If

the administrative judge finds that the

proposed resolution is not fair, adequate

and reasonable to the class as a whole,

the administrative judge shall issue a

decision vacating the agreement and

may replace the original class agent

with a petitioner or some other class

member who is eligible to be the class

agent during further processing of the

class complaint. The decision shall

inform the former class agent or the

petitioner of the right to appeal the

decision to the Equal Employment

Opportunity Commission and include

EEOC Form 573, Notice of Appeal/

Petition. If the administrative judge

finds that the resolution is fair, adequate

and reasonable to the class as a whole,

the resolution shall bind all members of

the class.

(h) Hearing. On expiration of the

period allowed for preparation of the

case, the administrative judge shall set

a date for hearing. The hearing shall be

conducted in accordance with

§ 268.108(a) through (f).

(i) Report of findings and

recommendations. (1) The

administrative judge shall transmit to

the Board a report of findings and

recommendations on the complaint,

including a recommended decision,

systemic relief for the class and any

individual relief, where appropriate,

with regard to the personnel action or

matter that gave rise to the complaint.

(2) If the administrative judge finds no

class relief appropriate, he or she shall

determine if a finding of individual

discrimination is warranted and, if so,

shall recommend appropriate relief.

(3) The administrative judge shall

notify the agent of the date on which the

report of findings and recommendations

was forwarded to the Board.

(j) Board decision. (1) Within 60 days

of receipt of the report of findings and

recommendations issued under

§ 268.204(i), the Board shall issue a final

decision, which shall accept, reject, or

modify the findings and

recommendations of the administrative

judge.

(2) The final decision of the Board

shall be in writing and shall be

transmitted to the agent by certified

mail, return receipt requested, along

with a copy of the report of findings and

recommendations of the administrative

judge.

(3) When the Board’s final decision is

to reject or modify the findings and

recommendations of the administrative

7714 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

judge, the decision shall contain

specific reasons for the Board’s action.

(4) If the Board has not issued a final

decision within 60 days of its receipt of

the administrative judge’s report of

findings and recommendations, those

findings and recommendations shall

become the final decision. The Board

shall transmit the final decision to the

agent within five days of the expiration

of the 60-day period.

(5) The final decision of the Board

shall require any relief authorized by

law and determined to be necessary or

desirable to resolve the issue of

discrimination.

(6) The final decision on a class

complaint shall, subject to subpart E of

this part, be binding on all members of

the class and the Board.

(7) The final decision shall inform the

agent of the right to appeal or to file a

civil action in accordance with subpart

E of this part and of the applicable time

limits.

(k) Notification of decision. The Board

shall notify class members of the final

decision and relief awarded, if any,

through the same media employed to

give notice of the existence of the class

complaint. The notice, where

appropriate, shall include information

concerning the rights of class members

to seek individual relief, and of the

procedures to be followed. Notice shall

be given by the Board within 10 days of

the transmittal of its final decision to

the agent.

(l) Relief for individual class

members. (1) When discrimination is

found, the Board must eliminate or

modify the employment policy or

practice out of which the complaint

arose and provide individual relief,

including an award of attorney’s fees

and costs, to the agent in accordance

with § 268.501.

(2) When class-wide discrimination is

not found, but it is found that the class

agent is a victim of discrimination,

§ 268.501 shall apply. The Board shall

also, within 60 days of the issuance of

the final decision finding no class-wide

discrimination, issue the

acknowledgment of receipt of an

individual complaint as required by

§ 268.105(d) and process in accordance

with the provisions of subpart B of this

part, each individual complaint that was

subsumed into the class complaint.

(3) When discrimination is found in

the final decision and a class member

believes that he or she is entitled to

individual relief, the class member may

file a written claim with the Board or

the Board’s EEO Programs Director

within 30 days of receipt of notification

by the Board of its final decision.

Administrative judges shall retain

jurisdiction over the complaint in order

to resolve any disputed claims by class

members. The claim must include a

specific, detailed showing that the

claimant is a class member who was

affected by the discriminatory policy or

practice, and that this discriminatory

action took place within the period of

time for which the Board found classwide discrimination in its final

decision. Where a finding of

discrimination against a class has been

made, there shall be a presumption of

discrimination as to each member of the

class. The Board must show by clear

and convincing evidence that any class

member is not entitled to relief. The

administrative judge may hold a hearing

or otherwise supplement the record on

a claim filed by a class member. The

Board or the Commission may find

class-wide discrimination and order

remedial action for any policy or

practice in existence within 45 days of

the agent’s initial contact with the

Counselor. Relief otherwise consistent

with this Part may be ordered for the

time the policy or practice was in effect.

The Board shall issue a final decision on

each such claim within 90 days of filing.

Such decision must include a notice of

the right to file an appeal or a civil

action in accordance with subpart E of

this part and the applicable time limits.

§ 268.205 Employment of noncitizens.

(a) Definitions. The definitions

contained in this paragraph (a) shall

apply only to this section.

(1) Intending citizen means a citizen

or national of the United States, or a

noncitizen who:

(i) Is a protected individual as defined

in 8 U.S.C. 1324b(a)(3); and

(ii) Has evidenced an intention to

become a United States citizen.

(2) Noncitizen means any person who

is not a citizen of the United States.

(3) Sensitive information means:

(i)(A) Information that is classified for

national security purposes under

Executive Order No. 12356 (3 CFR, 1982

Comp., p. 166), including any

amendments or superseding orders that

the President of the United States may

issue from time to time;

(B) Information that consists of

confidential supervisory information of

the Board, as defined in 12 CFR

261.2(c); or

(C) Information the disclosure or

premature disclosure of which to

unauthorized persons may be

reasonably likely to impair the

formulation or implementation of

monetary policy, or cause unnecessary

or unwarranted disturbances in

securities or other financial markets,

such that access to such information

must be limited to persons who are

loyal to the United States.

(ii) For purposes of paragraph

(a)(3)(i)(C) of this section, information

may not be deemed sensitive

information merely because it would be

exempt from disclosure under the

Freedom of Information Act (5 U.S.C.

552) but sensitive information must be

information the unauthorized disclosure

or premature disclosure of which may

be reasonably likely to impair important

functions or operations of the Board.

(4) Sensitive position means any

position of employment in which the

employee will be required to have

access to sensitive information.

(b) Prohibitions—(1) Unauthorized

aliens. The Board shall not hire any

person unless that person is able to

satisfy the requirements of Section 101

of the Immigration Reform and Control

Act of 1986.

(2) Employment in sensitive positions.

The Board shall not hire any person to

a sensitive position unless such person

is a citizen of the United States or, if a

noncitizen, is an intending citizen.

(3) Preference. Consistent with the

Immigration Reform and Control Act of

1986, and other applicable law,

applicants for employment at the Board

who are citizens of the United States

shall be preferred over equally qualified

applicants who are not United States

citizens.

(c) Exception. The prohibition of

paragraph (b)(2) of this section does not

apply to hiring for positions for which

a security clearance is required under

Executive Order No. 10450, including

any subsequent amendments or

superseding orders that the President of

the United States may issue from time

to time, where the noncitizen either has

or can obtain the necessary security

clearance. Any offer of employment

authorized by this paragraph (c) shall be

contingent upon receipt of the required

security clearance in the manner

prescribed by law.

(d) Applicability. This section applies

to employment in all positions at the

Board and to employment by Federal

Reserve Banks of examiners who must

be appointed, or selected and approved

by the Board pursuant to 12 U.S.C. 325,

326, 338, or 625.

Subpart D—Related Processes

§ 268.301 Negotiated grievance procedure.

When an employee of the Board,

which is not an agency subject to 5

U.S.C. 7121(d), is covered by a

negotiated grievance procedure,

allegations of discrimination shall be

processed as complaints under this part,

except that the time limits for

Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations 7715

processing the complaint contained in

§ 268.105 and for appeal to the

Commission contained in § 268.402 may

be held in abeyance during processing

of a grievance covering the same matter

as the complaint if the Board notifies

the complainant in writing that the

complaint will be held in abeyance

pursuant to this section.

§ 268.302 Mixed case complaints.

A mixed case complaint is a

complaint of employment

discrimination filed with the Board

based on race, color, religion, sex,

national origin, age or disability related

to or stemming from an action that can

be appealed to the Merit System

Protection Board (MSPB). The

complaint may contain only an

allegation of employment

discrimination or it may contain

additional allegations that the MSPB has

jurisdiction to address. A mixed case

appeal is an appeal filed with the MSPB

that alleges that an appealable Board

action was effected, in whole or in part,

because of discrimination on the basis

of race, color, religion, sex, national

origin, disability or age. Only a Board

employee who is a preference eligible

employee as defined by the Veterans

Preference Act can file a mixed case

complaint with the Board or a mixed

case appeal with the MSPB. A mixed

case complaint or mixed case appeal

may only be filed for action(s) over

which the MSPB has jurisdiction. The

Board will apply 29 CFR 1614.302

through 1614.310 to the processing of a

mixed case complaint or mixed case

appeal.

Subpart E—Appeals to the Equal

Employment Opportunity Commission

§ 268.401 Appeals to the Equal

Employment Opportunity Commission.

(a) A complainant may appeal the

Board’s final action or dismissal of a

complaint.

(b) The Board may appeal as provided

in § 268.109(a).

(c) A class agent or the Board may

appeal an administrative judge’s

decision accepting or dismissing all or

part of a class complaint; a class agent

may appeal a final decision on a class

complaint; a class member may appeal

a final decision on a claim for

individual relief under a class

complaint; and a class member, a class

agent or the Board may appeal a final

decision on a petition pursuant to

§ 268.204(g)(4).

(d) A complainant, agent of the class

or individual class claimant may appeal

to the Commission the Board’s alleged

noncompliance with a settlement

agreement or final decision in

accordance with § 268.504.

§ 268.402 Time limits for appeals to the

Equal Employment Opportunity

Commission.

(a) Appeals described in § 268.401 (a)

and (c) must be filed within 30 days of

receipt of the dismissal, final action or

decision. Appeals described in

§ 268.401(b) must be filed within 40

days of receipt of the hearing file and

decision. Where a complainant has

notified the Board’s EEO Programs

Director of alleged noncompliance with

a settlement agreement in accordance

with § 268.504, the complainant may

file an appeal 35 days after service of

the allegations of noncompliance, but

no later than 30 days after receipt of the

Board’s determination.

(b) If the complainant is represented

by an attorney of record, then the 30-day

time period provided in paragraph (a) of

this section within which to appeal

shall be calculated from the receipt of

the required document by the attorney.

In all other instances, the time within

which to appeal shall be calculated from

the receipt of the required document by

the complainant.

§ 268.403 How to appeal.

(a) The complainant, the Board, agent

or individual class claimant (hereinafter

appellant) must file an appeal with the

Director, Office of Federal Operations,

Equal Employment Opportunity

Commission, at P.O. Box 19848,

Washington, DC 20036, or by personal

delivery or facsimile. The appellant

should use EEOC Form 573, Notice of

Appeal/Petition, and should indicate

what is being appealed.

(b) The appellant shall furnish a copy

of the appeal to the opposing party at

the same time it is filed with the

Commission. In or attached to the

appeal to the Commission, the appellant

must certify the date and method by

which service was made on the

opposing party.

(c) If an appellant does not file an

appeal within the time limits of this

subpart, the appeal shall be dismissed

by the Commission as untimely.

(d) Any statement or brief on behalf

of a complainant in support of the

appeal must be submitted to the Office

of Federal Operations within 30 days of

filing the notice of appeal. Any

statement or brief on behalf of the Board

in support of its appeal must be

submitted to the Office of Federal

Operations within 20 days of filing the

notice of appeal. The Office of Federal

Operations will accept statements or

briefs in support of an appeal by

facsimile transmittal, provided they are

no more than 10 pages long.

(e) The Board must submit the

complaint file to the Office of Federal

Operations within 30 days of initial

notification that the complainant has

filed an appeal or within 30 days of

submission of an appeal by the Board.

(f) Any statement or brief in

opposition to an appeal must be

submitted to the Commission and

served on the opposing party within 30

days of receipt of the statement or brief

supporting the appeal, or, if no

statement or brief supporting the appeal

is filed, within 60 days of receipt of the

appeal. The Office of Federal Operations

will accept statements or briefs in

opposition to an appeal by facsimile

provided they are no more than 10

pages long.

§ 268.404 Appellate Procedure.

(a) On behalf of the Commission, the

Office of Federal Operations shall

review the complaint file and all written

statements and briefs from either party.

The Commission may supplement the

record by an exchange of letters or

memoranda, investigation, remand to

the Board or other procedures.

(b) If the Office of Federal Operations

requests information from one or both of

the parties to supplement the record,

each party providing information shall

send a copy of the information to the

other party.

(c) When either party to an appeal

fails without good cause shown to

comply with the requirements of this

section or to respond fully and in timely

fashion to requests for information, the

Office of Federal Operations shall, in

appropriate circumstances:

(1) Draw an adverse inference that the

requested information would have

reflected unfavorably on the party

refusing to provide the requested

information;

(2) Consider the matters to which the

requested information or testimony

pertains to be established in favor of the

opposing party;

(3) Issue a decision fully or partially

in favor of the opposing party; or

(4) Take such other actions as

appropriate.

§ 268.405 Decisions on appeals.

(a) The Office of Federal Operations,

on behalf of the Commission, shall issue

a written decision setting forth its

reasons for the decision. The

Commission shall dismiss appeals in

accordance with §§ 268.106, 268.403(c)

and 268.408. The decision on an appeal

from the Board’s final action shall be

based on a de novo review, except that

the review of the factual findings in a

7716 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

decision by an administrative judge

issued pursuant to § 268.108(i) shall be

based on a substantial evidence

standard of review. If the decision

contains a finding of discrimination,

appropriate remedy(ies) shall be

included and, where appropriate, the

entitlement to interest, attorney’s fees or

costs shall be indicated. The decision

shall reflect the date of its issuance,

inform the complainant of his or her

civil action rights, and be transmitted to

the complainant and the Board by first

class mail.

(b) A decision issued under paragraph

(a) of this section is final, subject to

paragraph (c) of this section, within the

meaning of § 268.406 unless the

Commission reconsiders the case. A

party may request reconsideration

within 30 days of receipt of a decision

of the Commission, which the

Commission in its discretion may grant,

if the party demonstrates that:

(1) The appellate decision involved a

clearly erroneous interpretation of

material fact or law; or

(2) The decision will have a

substantial impact on the policies,

practices or operations of the Board.

(c) The Board, within 30 days of

receiving the decision of the

Commission, shall issue a final decision

based upon that decision.

§ 268.406 Civil action: Title VII, Age

Discrimination in Employment Act and

Rehabilitation Act.

A complainant who has filed an

individual complaint, an agent who has

filed a class complaint or a claimant

who has filed a claim for individual

relief pursuant to a class complaint is

authorized under title VII, the ADEA

and the Rehabilitation Act to file a civil

action in an appropriate United States

District Court:

(a) Within 90 days of receipt of the

final action on an individual or class

complaint if no appeal has been filed;

(b) After 180 days from the date of

filing an individual or class complaint

if an appeal has not been filed and final

action has not been taken;

(c) Within 90 days of receipt of the

Commission’s final decision on an

appeal; or

(d) After 180 days from the date of

filing an appeal with the Commission if

there has been no final decision by the

Commission.

§ 268.407 Civil action: Equal Pay Act.

A complainant is authorized under

section 16(b) of the Fair Labor Standards

Act (29 U.S.C. 216(b)) to file a civil

action in a court of competent

jurisdiction within two years or, if the

violation is willful, three years of the

date of the alleged violation of the Equal

Pay Act regardless of whether he or she

pursued any administrative complaint

processing. Recovery of back wages is

limited to two years prior to the date of

filing suit, or to three years if the

violation is deemed willful; liquidated

damages in an equal amount may also

be awarded. The filing of a complaint or

appeal under this part shall not toll the

time for filing a civil action.

§ 268.408 Effect of filing a civil action.

Filing a civil action under §§ 268.406

or 268.407 shall terminate Commission

processing of the appeal. If private suit

is filed subsequent to the filing of an

appeal, the parties are requested to

notify the Commission in writing.

Subpart F—Remedies and

Enforcement

§ 268.501 Remedies and relief.

(a) When the Board, or the

Commission, in an individual case of

discrimination, finds that an applicant

or an employee has been discriminated

against, the Board shall provide full

relief which shall include the following

elements in appropriate circumstances:

(1) Notification to all employees of the

Board in the affected facility of their

right to be free of unlawful

discrimination and assurance that the

particular types of discrimination found

will not recur;

(2) Commitment that corrective,

curative or preventive action will be

taken, or measures adopted, to ensure

that violations of the law similar to

those found unlawful will not recur;

(3) An unconditional offer to each

identified victim of discrimination of

placement in the position the person

would have occupied but for the

discrimination suffered by that person,

or a substantially equivalent position;

(4) Payment to each identified victim

of discrimination on a make whole basis

for any loss of earnings the person may

have suffered as a result of the

discrimination; and

(5) Commitment that the Board shall

cease from engaging in the specific

unlawful employment practice found in

the case.

(b) Relief for an applicant. (1)(i) When

the Board, or the Commission, finds that

an applicant for employment has been

discriminated against, the Board shall

offer the applicant the position that the

applicant would have occupied absent

discrimination or, if justified by the

circumstances, a substantially

equivalent position unless clear and

convincing evidence indicates that the

applicant would not have been selected

even absent the discrimination. The

offer shall be made in writing. The

individual shall have 15 days from

receipt of the offer within which to

accept or decline the offer. Failure to

accept the offer within the 15-day

period will be considered a declination

of the offer, unless the individual can

show that circumstances beyond his or

her control prevented a response within

the time limit.

(ii) If the offer is accepted,

appointment shall be retroactive to the

date the applicant would have been

hired. Back pay, computed in the

manner prescribed in 5 CFR 550.805,

shall be awarded from the date the

individual would have entered on duty

until the date the individual actually

enters on duty unless clear and

convincing evidence indicates that the

applicant would not have been selected

even absent discrimination. Interest on

back pay shall be included in the back

pay computation where sovereign

immunity has been waived. The

individual shall be deemed to have

performed service for the Board during

this period for all purposes except for

meeting service requirements for

completion of a required probationary

or trial period.

(iii) If the offer of employment is

declined, the Board shall award the

individual a sum equal to the back pay

he or she would have received,

computed in the manner prescribed in

5 CFR 550.805, from the date he or she

would have been appointed until the

date the offer was declined, subject to

the limitation of paragraph (b)(3) of this

section. Interest on back pay shall be

included in the back pay computation.

The Board shall inform the applicant, in

its offer of employment, of the right to

this award in the event the offer is

declined.

(2) When the Board, or the

Commission, finds that discrimination

existed at the time the applicant was

considered for employment but also

finds by clear and convincing evidence

that the applicant would not have been

hired even absent discrimination, the

Board shall nevertheless take all steps

necessary to eliminate the

discriminatory practice and ensure it

does not recur.

(3) Back pay under this paragraph (b)

for complaints under title VII or the

Rehabilitation Act may not extend from

a date earlier than two years prior to the

date on which the complaint was

initially filed by the applicant.

(c) Relief for an employee. When the

Board, or the Commission, finds that an

employee of the Board was

discriminated against, the Board shall

provide relief, which shall include, but

Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations 7717

need not be limited to, one or more of

the following actions:

(1) Nondiscriminatory placement,

with back pay computed in the manner

prescribed in 5 CFR 550.805, unless

clear and convincing evidence

contained in the record demonstrates

that the personnel action would have

been taken even absent the

discrimination. Interest on back pay

shall be included in the back pay

computation where sovereign immunity

has been waived. The back pay liability

under title VII or the Rehabilitation Act

is limited to two years prior to the date

the discrimination complaint was filed.

(2) If clear and convincing evidence

indicates that, although discrimination

existed at the time the personnel action

was taken, the personnel action would

have been taken even absent

discrimination, the Board shall

nevertheless eliminate any

discriminatory practice and ensure it

does not recur.

(3) Cancellation of an unwarranted

personnel action and restoration of the

employee.

(4) Expunction from the Board’s

records of any adverse materials relating

to the discriminatory employment

practice.

(5) Full opportunity to participate in

the employee benefit denied (e.g.,

training, preferential work assignments,

overtime scheduling).

(d) The Board has the burden of

proving by a preponderance of the

evidence that the complainant has failed

to mitigate his or her damages.

(e) Attorney’s fees or costs—(1)

Awards of attorney’s fees or costs. The

provisions of this paragraph relating to

the award of attorney’s fees or costs

shall apply to allegations of

discrimination prohibited by title VII

and the Rehabilitation Act. In a decision

or final action, the Board, administrative

judge, or Commission may award the

applicant or employee reasonable

attorney’s fees (including expert witness

fees) and other costs incurred in the

processing of the complaint.

(i) A finding of discrimination raises

a presumption of entitlement to an

award of attorney’s fees.

(ii) Any award of attorney’s fees or

costs shall be paid by the Board.

(iii) Attorney’s fees are allowable only

for the services of members of the Bar

and law clerks, paralegals or law

students under the supervision of

members of the Bar, except that no

award is allowable for the services of

any employee of the Federal

Government.

(iv) Attorney’s fees shall be paid for

services performed by an attorney after

the filing of a written complaint,

provided that the attorney provides

reasonable notice of representation to

the Board, administrative judge or

Commission, except that fees are

allowable for a reasonable period of

time prior to the notification of

representation for any services

performed in reaching a determination

to represent the complainant. The Board

is not required to pay attorney’s fees for

services performed during the precomplaint process, except that fees are

allowable when the Commission affirms

on appeal an administrative judge’s

decision finding discrimination after the

Board takes final action by not

implementing an administrative judge’s

decision. Written submissions to the

Board that are signed by the

representative shall be deemed to

constitute notice of representation.

(2) Amount of awards. (i) When the

Board, administrative judge or the

Commission determines an entitlement

to attorney’s fees or costs, the

complainant’s attorney shall submit a

verified statement of attorney’s fees

(including expert witness fees) and

other costs, as appropriate, to the Board

or administrative judge within 30 days

of receipt of the decision and shall

submit a copy of the statement to the

Board. A statement of attorney’s fees

and costs shall be accompanied by an

affidavit executed by the attorney of

record itemizing the attorney’s charges

for legal services. The Board may

respond to a statement of attorney’s fees

and costs within 30 days of its receipt.

The verified statement, accompanying

affidavit and any Board response shall

be made a part of the complaint file.

(ii)(A) The Board or administrative

judge shall issue a decision determining

the amount of attorney’s fees or costs

due within 60 days of receipt of the

statement and affidavit. The decision

shall include a notice of right to appeal

to the EEOC along with EEOC Form 573,

Notice of Appeal/Petition and shall

include the specific reasons for

determining the amount of the award.

(B) The amount of attorney’s fees shall

be calculated using the following

standards: The starting point shall be

the number of hours reasonably

expended multiplied by a reasonable

hourly rate. There is a strong

presumption that this amount

represents the reasonable fee. In limited

circumstances, this amount may be

reduced or increased in consideration of

the degree of success, quality of

representation, and long delay cause by

the Board.

(C) The costs that may be awarded are

those authorized by 28 U.S.C. 1920 to

include: Fees of the reporter for all or

any of the stenographic transcript

necessarily obtained for use in the case;

fees and disbursements for printing and

witnesses; and fees for exemplification

and copies necessarily obtained for use

in the case.

(iii) Witness fees shall be awarded in

accordance with the provisions of 28

U.S.C. 1821, except that no award shall

be made for a Federal employee who is

in a duty status when made available as

a witness.

§ 268.502 Compliance with final

Commission decisions.

(a) Relief ordered in a final

Commission decision, if accepted

pursuant to § 268.405(c) as a final

decision, or not acted upon the Board

within the time periods of § 268.405(c),

is mandatory and binding on the Board

except as provided in this section.

Failure to implement ordered relief

shall be subject to judicial enforcement

as specified in § 268.503(f).

(b) Notwithstanding paragraph (a) of

this section, when the Board requests

reconsideration and the case involves

removal, separation, or a suspension

continuing beyond the date of the

request for reconsideration, and when

the decision orders retroactive

restoration, the Board shall comply with

the decision to the extent of the

temporary or conditional restoration of

the employee to duty status in the

position specified by the Commission,

pending the outcome of the Board’s

request for reconsideration.

(1) Service under the temporary or

conditional restoration provisions of

this paragraph (b) shall be credited

toward the completion of a probationary

or trial period or the completion of the

service requirement for career tenure, if

the Commission upholds its decision

after reconsideration.

(2) When the Board requests

reconsideration, it may delay the

payment of any amounts ordered to be

paid to the complainant until after the

request for reconsideration is resolved.

If the Board delays payment of any

amount pending the outcome of the

request to reconsider and the resolution

of the request requires the Board to

make the payment, then the Board shall

pay interest from the date of the original

appellate decision until payment is

made.

(3) The Board shall notify the

Commission and the employee in

writing at the same time it requests

reconsideration that the relief it

provides is temporary or conditional

and, if applicable, that it will delay the

payment of any amounts owed but will

pay interest as specified in paragraph

(b)(2) of this section. Failure of the

7718 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

Board to provide notification will result

in the dismissal of the Board’s request.

(c) When no request for

reconsideration is filed or when a

request for reconsideration is denied,

the Board shall provide the relief

ordered and there is no further right to

delay implementation of the ordered

relief. The relief shall be provided in

full not later than 60 days after receipt

of the final decision unless otherwise

ordered in the decision.

§ 268.503 Enforcement of final EEOC

decisions.

(a) Petition for enforcement. A

complainant may petition the

Commission for enforcement of a

decision issued under the Commission’s

appellate jurisdiction. The petition shall

be submitted to the Office of Federal

Operations. The petition shall

specifically set forth the reasons that

lead the complainant to believe that the

Board is not complying with the

decision.

(b) Compliance. On behalf of the

Commission, the Office of Federal

Operations shall take all necessary

action to ascertain whether the Board is

implementing the decision of the

Commission. If the Board is found not

to be in compliance with the decision,

efforts shall be undertaken to obtain

compliance.

(c) Clarification. On behalf of the

Commission, the Office of Federal

Operations may, on its own motion or

in response to a petition for enforcement

or in connection with a timely request

for reconsideration, issue a clarification

of a prior decision. A clarification

cannot change the result of a prior

decision or enlarge or diminish the

relief ordered but may further explain

the meaning or intent of the prior

decision.

(d) Referral to the Commission. Where

the Director, Office of Federal

Operations, is unable to obtain

satisfactory compliance with the final

decision, the Director shall submit

appropriate findings and

recommendations for enforcement to the

Commission, or, as directed by the

Commission, refer the matter to another

appropriate agency.

(e) Commission notice to show cause.

The Commission may issue a notice to

the Chairman of the Board to show

cause why there is noncompliance.

Such notice may request the Chairman

of the Board or a representative to

appear before the Commission or to

respond to the notice in writing with

adequate evidence of compliance or

with compelling reasons for

noncompliance.

(f) Notification to complainant of

completion of administrative efforts.

Where the Commission has determined

that the Board is not complying with a

prior decision, or where the Board has

failed or refused to submit any required

report of compliance, the Commission

shall notify the complainant the right to

file a civil action for enforcement of the

decision pursuant to title VII, the ADEA,

the Equal Pay Act or the Rehabilitation

Act and to seek judicial review of the

Board’s refusal to implement the

ordered relief pursuant to the

Administrative Procedures Act, 5 U.S.C.

701 et seq., and the mandamus statute,

28 U.S.C. 1361, or to commence de novo

proceedings pursuant to the appropriate

statutes.

§ 268.504 Compliance with settlement

agreements and final actions.

(a) Any settlement agreement

knowingly and voluntarily agreed to by

the parties, reached at any stage of the

complaint process, shall be binding on

both parties. Final action that has not

been the subject of an appeal or a civil

action shall be binding on the Board. If

the complainant believes that the Board

has failed to comply with the terms of

a settlement agreement or decision, the

complainant shall notify the Board’s

EEO Programs Director, in writing, of

the alleged noncompliance within 30

days of when the complainant knew or

should have known of the alleged

noncompliance. The complainant may

request that the terms of the settlement

agreement be specifically implemented

or, alternatively, that the complaint be

reinstated for further processing from

the point processing ceased.

(b) The Board shall resolve the matter

and respond to the complainant, in

writing. If the Board has not responded

to the complainant, in writing, or if the

complainant is not satisfied with the

Board’s attempt to resolve the matter,

the complainant may appeal to the

Commission for a determination as to

whether the Board has complied with

the terms of the settlement agreement or

decision. The complainant may file

such an appeal 35 days after he or she

has served the Board with the

allegations of noncompliance, but must

file an appeal within 30 days of his or

her receipt of the Board’s determination.

The complainant must serve a copy of

the appeal on the Board and the Board

may submit a response to the

Commission within 30 days of receiving

notice of the appeal.

(c) Prior to rendering its

determination, the Commission may

request that the parties submit whatever

additional information or

documentation it deems necessary or

may direct that an investigation or

hearing on the matter be conducted. If

the Commission determines that the

Board is not in compliance and the

noncompliance is not attributable to

acts or conduct of the complainant, it

may order such compliance or it may

order that the complaint be reinstated

for further processing from the point

processing ceased. Allegations that

subsequent acts of discrimination

violate a settlement agreement shall be

processed as separate complaints under

§§ 268.105 or 268.204, as appropriate,

rather than under this section.

§ 268.505 Interim relief.

(a)(1) When the Board appeals and the

case involves removal, separation, or

suspension continuing beyond the date

of the appeal, and when the

administrative judge orders retroactive

restoration, the Board shall comply with

the decision to the extent of the

temporary or conditional restoration of

the employee to duty status in the

position specified in the decision,

pending the outcome of the Board

appeal. The employee may decline the

offer of interim relief.

(2) Service under the temporary or

conditional restoration provisions of

paragraph (a)(1) of this section shall be

credited toward the completion of a

probationary or trial period, eligibility

for a within-grade increase, or the

completion of the service requirement

for career tenure, if the Commission

upholds the decision on appeal. Such

service shall not be credited toward the

completion of any applicable

probationary or trial period or the

completion of the service requirement

for career tenure if the Commission

reverses the decision on appeal.

(3) When the Board appeals, it may

delay the payment of any amount, other

than prospective pay and benefits,

ordered to be paid to the complainant

until after the appeal is resolved. If the

Board delays payment of any amount

pending the outcome of the appeal and

the resolution of the appeal requires the

Board to make the payment, then the

Board shall pay interest from the date of

the original decision until payment is

made.

(4) The Board shall notify the

Commission and the employee in

writing at the same time it appeals that

the relief it provides is temporary or

conditional and, if applicable, that it

will delay the payment of any amounts

owed but will pay interest as specified

in paragraph (b)(2) of this section.

Failure of the Board to provide

notification will result in the dismissal

of the Board’s appeal.

Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations 7719

(5) The Board may, by notice to the

complainant, decline to return the

complainant to his or her place of

employment if it determines that the

return or presence of the complainant

will be unduly disruptive to the work

environment. However, prospective pay

and benefits must be provided. The

determination not to return the

complainant to his or her place of

employment is not reviewable. A grant

of interim relief does not insulate a

complainant from subsequent

disciplinary or adverse action.

(b) If the Board files an appeal and has

not provided required interim relief, the

complainant may request dismissal of

the Board’s appeal. Any such request

must be filed with the Office of Federal

Operations within 25 days of the date of

service of the Board’s appeal. A copy of

the request must be served on the Board

at the same time it is filed with EEOC.

The Board may respond with evidence

and argument to the complainant’s

request to dismiss within 15 days of the

date of service of the request.

Subpart G—Matters of General

Applicability

§ 268.601 EEO group statistics.

(a) The Board shall establish a system

to collect and maintain accurate

employment information on the race,

national origin, sex and disability(ies) of

its employees.

(b) Data on race, national origin and

sex shall be collected by voluntary selfidentification. If an employee does not

voluntarily provide the requested

information, the Board shall advise the

employee of the importance of the data

and of the Board’s obligation to report

it. If the employee still refuses to

provide the information, the Board must

make a visual identification and inform

the employee of the data it will be

reporting. If the Board believes that

information provided by an employee is

inaccurate, the Board shall advise the

employee about the solely statistical

purpose for which the data is being

collected, the need for accuracy, the

Board’s recognition of the sensitivity of

the information and the existence of

procedures to prevent its unauthorized

disclosure. If, thereafter, the employee

declines to change the apparently

inaccurate self identification, the Board

must accept it.

(c) Subject to applicable law, the

information collected under paragraph

(b) of this section shall be disclosed

only in the form of gross statistics. The

Board shall not collect or maintain any

information on the race, national origin

or sex of individual employees except in

accordance with applicable law and

when an automated data processing

system is used in accordance with

standards and requirements prescribed

by the Commission to insure individual

privacy and the separation of that

information from personnel records.

(d) The Board’s system is subject to

the following controls:

(1) Only those categories of race and

national origin prescribed by the

Commission may be used;

(2) Only the specific procedures for

the collection and maintenance of data

that are prescribed or approved by the

Commission may be used.

(e) The Board may use the data only

in studies and analyses which

contribute affirmatively to achieving the

objectives of the Board’s equal

employment opportunity program. The

Board shall not establish a quota for the

employment of persons on the basis of

race, color, religion, sex, or national

origin.

(f) Data on disabilities shall also be

collected by voluntary selfidentification. If an employee does not

voluntarily provide the requested

information, the Board shall advise the

employee of the importance of the data

and of the Board’s obligation to report

it. If an employee who has been

appointed pursuant to a special Board

program for hiring individuals with a

disability still refuses to provide the

requested information, the Board must

identify the employee’s disability based

upon the records supporting the

appointment. If any other employee still

refuses to provide the requested

information or provides information

that the Board believes to be inaccurate,

the Board should report the employee’s

disability status as unknown.

(g) The Board shall report to the

Commission on employment by race,

national origin, sex, and disability in the

form and at such times as the Board and

Commission shall agree.

§ 268.602 Reports to the Commission.

(a) The Board shall report to the

Commission information concerning

pre-complaint counseling and the

status, processing, and disposition of

complaints under this part at such times

and in such manner as the Board and

Commission shall agree.

(b) The Board shall advise the

Commission whenever it is served with

a Federal court complaint based upon a

complaint that is pending on appeal at

the Commission.

(c) The Board shall submit annually

for the review and approval of the

Commission written equal employment

opportunity plans of action. Plans shall

be submitted in the format prescribed by

the Commission and shall include, but

not be limited to:

(1) Provision for the establishment of

training and education programs

designed to provide maximum

opportunity for employees to advance

so as to perform at their highest

potential;

(2) Description of the qualifications,

in terms of training and experience

relating to equal employment

opportunity, of the principal and

operating officials concerned with

administration of the Board’s equal

employment opportunity program; and

(3) Description of the allocation of

personnel and resources proposed by

the Board to carry out its equal

employment opportunity program.

§ 268.603 Voluntary settlement attempts.

The Board shall make reasonable

efforts to voluntarily settle complaints

of discrimination as early as possible in,

and throughout, the administrative

processing of complaints, including the

pre-complaint counseling stage. Any

settlement reached shall be in writing

and signed by both parties and shall

identify the claims resolved.

§ 268.604 Filing and computation of time.

(a) All time periods in this part that

are stated in terms of days are calendar

days unless otherwise stated.

(b) A document shall be deemed

timely if it is received or postmarked

before the expiration of the applicable

filing period, or, in the absence of a

legible postmark, if it is received by

mail within five days of the expiration

of the applicable filing period.

(c) The time limits in this part are

subject to waiver, estoppel and

equitable tolling.

(d) The first day counted shall be the

day after the event from which the time

period begins to run and the last day of

the period shall be included, unless it

falls on a Saturday, Sunday or Federal

holiday, in which case the period shall

be extended to include the next

business day.

§ 268.605 Representation and official time.

(a) At any stage in the processing of

a complaint, including the counseling

stage under § 268.104, the complainant

shall have the right to be accompanied,

represented, and advised by a

representative of complainant’s choice.

(b) If the complainant is an employee

of the Board, he or she shall have a

reasonable amount of official time, if

otherwise on duty, to prepare the

complaint and to respond to Board and

EEOC requests for information. If the

complainant is an employee of the

Board and he designates another

7720 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

employee of the Board as his or her

representative, the representative shall

have a reasonable amount of official

time, if otherwise on duty, to prepare

the complaint and respond to Board and

EEOC requests for information. The

Board is not obligated to change work

schedules, incur overtime wages, or pay

travel expenses to facilitate the choice of

a specific representative or to allow the

complainant and representative to

confer. The complainant and the

representative, if employed by the Board

and otherwise in a pay status, shall be

on official time, regardless of their tour

of duty, when their presence is

authorized or required by the Board or

the Commission during the

investigation, informal adjustment, or

hearing on the complaint.

(c) In cases where the representation

of a complainant or the Board would

conflict with the official or collateral

duties of the representative, the

Commission or the Board may, after

giving the representative an opportunity

to respond, disqualify the

representative.

(d) Unless the complainant states

otherwise in writing, after the Board has

received written notice of the name,

address and telephone number of a

representative for the complainant, all

official correspondence shall be with

the representative with copies to the

complainant. When the complainant

designates an attorney as representative,

service of all official correspondence

shall be made on the attorney and the

complainant, but time frames for receipt

of material shall be computed from the

time of receipt by the attorney. The

complainant must serve all official

correspondence on the designated

representative of the Board.

(e) The complainant shall at all times

be responsible for proceeding with the

complaint whether or not he or she has

designated a representative.

(f) Witnesses who are Board

employees shall be in a duty status

when their presence is authorized or

required by Commission or Board

officials in connection with a complaint.

§ 268.606 Joint processing and

consolidation of complaints.

Complaints of discrimination filed by

two or more complainants consisting of

substantially similar allegations of

discrimination or relating to the same

matter may be consolidated by the

Board or the Commission for joint

processing after appropriate notification

to the parties. Two or more complaints

of discrimination filed by the same

complainant shall be consolidated by

the Board for joint processing after

appropriate notification to the

complainant. When a complaint has

been consolidated with one or more

earlier filed complaints, the Board shall

complete its investigation within the

earlier of 180 days after the filing of the

last complaint or 360 days after the

filing of the original complaint, except

that the complainant may request a

hearing from an administrative judge on

the consolidated complaints any time

after 180 days from the date of the first

filed complaint. Administrative judges

or the Commission may, in their

discretion, consolidate two or more

complaints of discrimination filed by

the same complainant.

§ 268.607 Delegation of authority.

The Board of Governors may delegate

authority under this part, to one or more

designees.

Subpart H—Prohibition Against

Discrimination in Board Programs and

Activities Because of Physical or

Mental Disability

§ 268.701 Purpose and application.

(a) Purpose. The purpose of this

subpart H is to prohibit discrimination

on the basis of a disability in programs

or activities conducted by the Board.

(b) Application. (1) This subpart H

applies to all programs and activities

conducted by the Board. Such programs

and activities include:

(i) Holding open meetings of the

Board or other meetings or public

hearings at the Board’s office in

Washington, DC;

(ii) Responding to inquiries, filing

complaints, or applying for employment

at the Board’s office;

(iii) Making available the Board’s

library facilities; and

(iv) Any other lawful interaction with

the Board or its staff in any official

matter with people who are not

employees of the Board.

(2) This subpart H does not apply to

Federal Reserve Banks or to financial

institutions or other companies

supervised or regulated by the Board.

§ 268.702 Definitions.

For purposes of this subpart, the

following definitions apply:

(a) Auxiliary aids means services or

devices that enable persons with

impaired sensory, manual, or speaking

skills to have an equal opportunity to

participate in, and enjoy the benefits of,

programs or activities conducted by the

Board. For example, auxiliary aids

useful for persons with impaired vision

include readers, Brailled materials,

audio recordings, telecommunications

devices and other similar services and

devices. Auxiliary aids useful for

persons with impaired hearing include

telephone handset amplifiers,

telephones compatible with hearing

aids, telecommunication devices for

deaf persons (TDD’s), interpreters,

notetakers, written materials, and other

similar services and devices.

(b) Complete complaint means a

written statement that contains the

complainant’s name and address and

describes the Board’s alleged

discriminatory action in sufficient detail

to inform the Board of the nature and

date of the alleged violation. It shall be

signed by the complainant or by

someone authorized to do so on his or

her behalf. Complaints filed on behalf of

classes or third parties shall describe or

identify (by name, if possible) the

alleged victims of discrimination.

(c) Facility means all or any portion

of buildings, structures, equipment,

roads, walks, parking lots, rolling stock

or other conveyances, or other real or

personal property.

(d) Person with a disability means any

person who has a physical or mental

impairment that substantially limits one

or more major life activities, has a

record of such an impairment, or is

regarded as having such an impairment.

As used in this definition, the phrase:

(1) Physical or mental impairment

includes—

(i) Any physiological disorder or

condition, cosmetic disfigurement, or

anatomical loss affecting one of more of

the following body systems:

Neurological; musculoskeletal; special

sense organs; respiratory, including

speech organs; cardiovascular;

reproductive; digestive; genitourinary;

hemic and lymphatic; skin; and

endocrine; or

(ii) Any mental or psychological

disorder, such as mental retardation,

organic brain syndrome, emotional or

mental illness, and specific learning

disabilities. The term physical or mental

impairment includes, but is not limited

to, such diseases and conditions as

orthopedic, visual, speech, and hearing

impairments, cerebral palsy, epilepsy,

muscular dystrophy, multiple sclerosis,

cancer, heart disease, diabetes, mental

retardation, emotional illness, and drug

addiction and alcoholism.

(2) Major life activities includes

functions such as caring for one’s self,

performing manual tasks, walking,

seeing, hearing, speaking, breathing,

learning, and working.

(3) Has a record of such an

impairment means has a history of, or

has been misclassified as having, a

mental or physical impairment that

substantially limits one or more major

life activities.

Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations 7721

(4) Is regarded as having an

impairment means—

(i) Has a physical or mental

impairment that does not substantially

limit major life activities but is treated

by the Board as constituting such a

limitation;

(ii) Has a physical or mental

impairment that substantially limits

major life activities only as a result of

the attitudes of others toward such

impairment; or

(iii) Has none of the impairments

defined in paragraph (d)(1) of this

section but is treated by Board as having

such an impairment.

(e) Qualified person with a disability

means—

(1) With respect to any Board program

or activity under which a person is

required to perform services or to

achieve a level of accomplishment, a

person with a disability who meets the

essential eligibility requirements and

who can achieve the purpose of the

program or activity without

modifications in the program or activity

that the Board can demonstrate would

result in a fundamental alteration in its

nature; or

(2) With respect to any other program

or activity, a person with a disability

who meets the essential eligibility

requirements for participation in, or

receipt of benefits from, that program or

activity.

(3) Qualified individual with a

disability is defined for purposes of

employment in § 268.203(a)(6) of this

part, which is made applicable to this

subpart by § 268.705.

§ 268.703 Notice.

The Board shall make available to

employees, applicants for employment,

participants, beneficiaries, and other

interested persons information

regarding the provisions of this subpart

and its applicability to the programs and

activities conducted by the Board, and

make this information available to them

in such manner as the Board finds

necessary to apprise such persons of the

protections against discrimination

assured them by this subpart.

§ 268.704 General prohibitions against

discrimination.

(a) No qualified individual with a

disability shall, on the basis of a

disability, be excluded from

participation in, be denied the benefits

of, or otherwise be subjected to

discrimination in any program or

activity conducted by the Board.

(b)(1) The Board, in providing any

aid, benefit, or service, may not, directly

or through contractual, licensing, or

other arrangements, on the basis of a

disability:

(i) Deny a qualified individual with a

disability the opportunity to participate

in or benefit from the aid, benefit, or

service that is not equal to that provided

to others;

(ii) Afford a qualified individual with

a disability an opportunity to participate

in or benefit from the aid, benefit, or

service that is not equal to that afforded

others;

(iii) Provide a qualified individual

with a disability with an aid, benefit, or

service that is not as effective in

affording equal opportunity to obtain

the same result, to gain the same benefit,

or to reach the same level of

achievement as that provided to others;

(iv) Provide different or separate aid,

benefits, or services to individuals with

a disability or to any class of individuals

with a disability than is provided to

others unless such action is necessary to

provide qualified individuals with a

disability with aid, benefits, or services

that are as effective as those provided to

others;

(v) Deny a qualified individual with a

disability the opportunity to participate

as a member of planning or advisory

boards; or

(vi) Otherwise limit a qualified

individual with a disability in the

enjoyment of any right, privilege,

advantage, or opportunity enjoyed by

others receiving the aid, benefit, or

service.

(2) The Board may not deny a

qualified individual with a disability

the opportunity to participate in

programs or activities that are not

separate or different, despite the

existence of permissibly separate or

different programs or activities.

(3) The Board may not, directly or

through contractual or other

arrangements, utilize criteria or methods

of administration, the purpose or effect

of which would:

(i) Subject qualified individuals with

a disability to discrimination on the

basis of a disability; or

(ii) Defeat or substantially impair

accomplishment of the objectives of a

program or activity with respect to

individuals with a disability.

(4) The Board may not, in determining

the site or location of a facility, make

selections the purpose or effect of which

would:

(i) Exclude individuals with a

disability from, deny them the benefits

of, or otherwise subject them to

discrimination under any program or

activity conducted by the Board; or

(ii) Defeat or substantially impair the

accomplishment of the objectives or a

program or activity with respect to

individuals with a disability.

(5) The Board, in the selection of

procurement contractors, may not use

criteria that subject qualified

individuals with a disability to

discrimination on the basis of a

disability.

(6) The Board may not administer a

licensing or certification program in a

manner that subjects qualified

individuals with a disability to

discrimination on the basis of a

disability, nor may the Board establish

requirements for the programs and

activities of licensees or certified

entities that subject qualified

individuals with a disability to

discrimination on the basis of a

disability. However, the programs and

activities of entities that are licensed or

certified by the Board are not,

themselves, covered by this subpart.

(c) The exclusion of individuals who

do not have a disability from the

benefits of a program limited by Federal

statute or Board order to individuals

with a disability or the exclusion of a

specific class of individuals with a

disability from a program limited by

Federal statute or Board order to a

different class of individuals with a

disability is not prohibited by this

subpart.

(d) The Board shall administer

programs and activities in the most

integrated setting appropriate to the

needs of qualified individuals with a

disability.

§ 268.705 Employment.

No qualified individual with a

disability shall, on the basis of a

disability, be subjected to

discrimination in employment under

any program or activity conducted by

the Board. The definitions, requirements

and procedures of § 268.203 of this part

shall apply to discrimination in

employment in federally conducted

programs or activities.

§ 268.706 Program accessibility:

Discrimination prohibited.

Except as otherwise provided in

§ 268.707 of this subpart, no qualified

individual with a disability shall,

because the Board’s facilities are

inaccessible to or unusable by

individuals with a disability, be denied

the benefits of, be excluded from

participation in, or otherwise be

subjected to discrimination under any

program or activity conducted by the

Board.

§ 268.707 Program accessibility: Existing

facilities.

(a) General. The Board shall operate

each program or activity so that the

program or activity, when viewed in its

7722 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

entirety, is readily accessible to and

usable by individuals with a disability.

This paragraph (a) does not:

(1) Necessarily require the Board to

make each of its existing facilities

accessible to and usable by individuals

with a disability; or

(2) Require the Board to take any

action that it can demonstrate would

result in a fundamental alteration in the

nature of a program or activity or in

undue financial and administrative

burdens. In those circumstances where

the Board believes that the proposed

action would fundamentally alter the

program or activity or would result in

undue financial and administrative

burdens, the Board has the burden of

proving that compliance with this

paragraph (a) would result in such

alterations or burdens. The decision that

compliance would result in such

alterations or burdens shall be made by

the Board of Governors or their designee

after considering all Board resources

available for use in the funding and

operation of the conducted program or

activity, and must be accompanied by a

written statement of the reasons for

reaching that conclusion. If an action

would result in such an alteration or

such burdens, the Board shall take any

other action that would not result in

such an alteration or such burdens but

would nevertheless ensure that

individuals with a disability receive the

benefits and services of the program or

activity.

(b) Methods. The Board may comply

with the requirements of this subpart H

through such means as redesign of

equipment, reassignment of services to

accessible buildings, assignment of

aides to individuals with a disability,

home visits, delivery of service at

alternate accessible sites, alteration of

existing facilities and construction of

new facilities, use of accessible rolling

stock, or any other methods that result

in making its programs or activities

readily accessible to and usable by

individuals with a disability. The Board

is not required to make structural

changes in existing facilities where

other methods are effective in achieving

compliance with this section. In

choosing among available methods for

meeting the requirements of this

section, the Board shall give priority to

those methods that offer programs and

activities to qualified individuals with a

disability in the most integrated setting

appropriate.

(c) Time period for compliance. The

Board shall comply with any obligations

established under this section as

expeditiously as possible.

§ 268.708 Program accessibility: New

construction and alterations.

Each building or part of a building

that is constructed or altered by, on

behalf of, or for the use of the Board

shall be designed, constructed, or

altered so as to be readily accessible to

and usable by individuals with a

disability.

§ 268.709 Communications.

(a) The Board shall take appropriate

steps to ensure effective communication

with applicants, participants, personnel

of other Federal entities, and members

of the public.

(1) The Board shall furnish

appropriate auxiliary aids where

necessary to afford an individual with a

disability an equal opportunity to

participate in, and enjoy the benefits of,

a program or activity conducted by the

Board.

(i) In determining what type of

auxiliary aid is necessary, the Board

shall give primary consideration to the

requests of the individual with a

disability.

(ii) The Board need not provide

individually prescribed devices, readers

for personal use or study, or other

devices of a personal nature.

(2) Where the Board communicates

with employees and others by

telephone, telecommunication devices

for deaf persons (TDD’s) or equally

effective telecommunication systems

shall be used.

(b) The Board shall ensure that

interested persons, including persons

with impaired vision or hearing, can

obtain information as to the existence

and location of accessible services,

activities, and facilities.

(c) The Board shall provide signage at

a primary entrance to each of its

inaccessible facilities, directing users to

a location at which they can obtain

information about accessible facilities.

The international symbol for

accessibility shall be used at each

primary entrance of an accessible

facility.

(d) This section does not require the

Board to take any action that would

result in a fundamental alteration in the

nature of a program or activity or in

undue financial and administrative

burdens. In those circumstances where

the Board believes that the proposed

action would fundamentally alter the

program or activity or would result in

undue financial and administrative

burdens, the Board has the burden of

proving that compliance with § 268.709

would result in such alterations or

burdens. The determination that

compliance would result in such

alteration or burdens must be made by

the Board of Governors or their designee

after considering all Board resources

available for use in the funding and

operation of the conducted program or

activity, and must be accompanied by a

written statement of the reasons for

reaching that conclusion. If an action

required to comply with this section

would result in such an alteration or

such burdens, the Board shall take any

other action that would not result in

such an alteration or such burdens but

would nevertheless ensure that, to the

maximum extent possible, individuals

with a disability receive the benefits and

services of the program or activity.

§ 268.710 Compliance procedures.

(a) Applicability. Except as provided

in paragraph (b) of this section, this

section, rather than subpart B and

§ 268.203 of this part, applies to all

allegations of discrimination on the

basis of a disability in programs or

activities conducted by the Board.

(b) Employment complaints. The

Board shall process complaints alleging

discrimination in employment on the

basis of a disability in accordance with

subparts A through G of this part.

(c) Responsible official. The EEO

Programs Director shall be responsible

for coordinating implementation of this

section.

(d) Filing the complaint—(1) Who

may file. Any person who believes that

he or she has been subjected to

discrimination prohibited by this

subpart may, personally or by his or her

authorized representative, file a

complaint of discrimination with the

EEO Programs Director.

(2) Confidentiality. The EEO Programs

Director shall not reveal the identity of

any person submitting a complaint,

except when authorized to do so in

writing by the complainant, and except

to the extent necessary to carry out the

purposes of this subpart, including the

conduct of any investigation, hearing, or

proceeding under this subpart.

(3) When to file. Complaints shall be

filed within 180 days of the alleged act

of discrimination. The EEO Programs

Director may extend this time limit for

good cause shown. For the purpose of

determining when a complaint is timely

filed under this paragraph (d), a

complaint mailed to the Board shall be

deemed filed on the date it is

postmarked. Any other complaint shall

be deemed filed on the date it is

received by the Board.

(4) How to file. Complaints may be

delivered or mailed to the

Administrative Governor, the Staff

Director for Management, the EEO

Programs Director, the Federal Women’s

Program Manager, the Hispanic Program

Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations 7723

Coordinator, or the Disabled Persons

Program Coordinator. Complaints

should be sent to the EEO Programs

Director, Board of Governors of the

Federal Reserve System, 20th and C

Street NW., Washington, DC 20551. If

any Board official other than the EEO

Programs Director receives a complaint,

he or she shall forward the complaint to

the EEO Programs Director.

(e) Acceptance of complaint. (1) The

EEO Programs Director shall accept a

complete complaint that is filed in

accordance with paragraph (d) of this

section and over which the Board has

jurisdiction. The EEO Programs Director

shall notify the complainant of receipt

and acceptance of the complaint.

(2) If the EEO Programs Director

receives a complaint that is not

complete, he or she shall notify the

complainant, within 30 days of receipt

of the incomplete complaint, that

additional information is needed. If the

complainant fails to complete the

complaint within 30 days of receipt of

this notice, the EEO Programs Director

shall dismiss the complaint without

prejudice.

(3) If the EEO Programs Director

receives a complaint over which the

Board does not have jurisdiction, the

EEO Programs Director shall notify the

complainant and shall make reasonable

efforts to refer the complaint to the

appropriate government entity.

(f) Investigation/conciliation. (1)

Within 180 days of the receipt of a

complete complaint, the EEO Programs

Director shall complete the investigation

of the complaint, attempt informal

resolution of the complaint, and if no

informal resolution is achieved, the EEO

Programs Director shall forward the

investigative report to the Staff Director

for Management.

(2) The EEO Programs Director may

request Board employees to cooperate in

the investigation and attempted

resolution of complaints. Employees

who are requested by the EEO Programs

Director to participate in any

investigation under this section shall do

so as part of their official duties and

during the course of regular duty hours.

(3) The EEO Programs Director shall

furnish the complainant with a copy of

the investigative report promptly after

completion of the investigation and

provide the complainant with an

opportunity for informal resolution of

the complaint.

(4) If a complaint is resolved

informally, the terms of the agreement

shall be reduced to writing and made a

part of the complaint file, with a copy

of the agreement provided to the

complainant. The written agreement

may include a finding on the issue of

discrimination and shall describe any

corrective action to which the

complainant has agreed.

(g) Letter of findings. (1) If an informal

resolution of the complaint is not

reached, the EEO Programs Director

shall transmit the complaint file to the

Staff Director for Management. The Staff

Director for Management shall, within

180 days of the receipt of the complete

complaint by the EEO Programs

Director, notify the complainant of the

results of the investigation in a letter

sent by certified mail, return receipt

requested, containing:

(i) Findings of fact and conclusions of

law;

(ii) A description of a remedy for each

violation found;

(iii) A notice of right of the

complainant to appeal the letter of

findings under paragraph (k) of this

section; and

(iv) A notice of right of the

complainant to request a hearing.

(2) If the complainant does not file a

notice of appeal or does not request a

hearing within the times prescribed in

paragraph (h)(1) and (j)(1) of this

section, the EEO Programs Director shall

certify that the letter of findings under

this paragraph (g) is the final decision

of the Board at the expiration of those

times.

(h) Filing an appeal. (1) Notice of

appeal, with or without a request for

hearing, shall be filed by the

complainant with the EEO Programs

Director within 30 days of receipt from

the Staff Director for Management of the

letter of findings required by paragraph

(g) of this section.

(2) If the complainant does not

request a hearing, the EEO Programs

Director shall notify the Board of

Governors of the appeal by the

complainant and that a decision must be

made under paragraph (k) of this

section.

(i) Acceptance of appeal. The EEO

Programs Director shall accept and

process any timely appeal. A

complainant may appeal to the

Administrative Governor from a

decision by the EEO Programs Director

that an appeal is untimely. This appeal

shall be filed within 15 calendar days of

receipt of the decision from the EEO

Programs Director.

(j) Hearing. (1) Notice of a request for

a hearing, with or without a request for

an appeal, shall be filed by the

complainant with the EEO Programs

Director within 30 days of receipt from

the Staff Director for Management of the

letter of findings required by paragraph

(g) of this section. Upon a timely request

for a hearing, the EEO Programs Director

shall request that the Board of

Governors, or its designee, appoint an

administrative law judge to conduct the

hearing. The administrative law judge

shall issue a notice to the complainant

and the Board specifying the date, time,

and place of the scheduled hearing. The

hearing shall be commenced no earlier

than 15 calendar days after the notice is

issued and no later than 60 days after

the request for a hearing is filed, unless

all parties agree to a different date.

(2) The hearing, decision, and any

administrative review thereof shall be

conducted in conformity with 5 U.S.C.

554–557. The administrative law judge

shall have the duty to conduct a fair

hearing, to take all necessary actions to

avoid delay, and to maintain order. He

or she shall have all powers necessary

to these ends, including (but not limited

to) the power to:

(i) Arrange and change the dates,

times, and places of hearings and

prehearing conferences and to issue

notice thereof;

(ii) Hold conferences to settle,

simplify, or determine the issues in a

hearing, or to consider other matters

that may aid in the expeditious

disposition of the hearing;

(iii) Require parties to state their

positions in writing with respect to the

various issues in the hearing and to

exchange such statements with all other

parties;

(iv) Examine witnesses and direct

witnesses to testify;

(v) Receive, rule on, exclude, or limit

evidence;

(vi) Rule on procedural items pending

before him or her; and

(vii) Take any action permitted to the

administrative law judge as authorized

by this subpart G or by the provisions

of the Administrative Procedures Act (5

U.S.C. 554–557).

(3) Technical rules of evidence shall

not apply to hearings conducted

pursuant to this paragraph (j), but rules

or principles designed to assure

production of credible evidence and to

subject testimony to cross-examination

shall be applied by the administrative

law judge wherever reasonably

necessary. The administrative law judge

may exclude irrelevant, immaterial, or

unduly repetitious evidence. All

documents and other evidence offered

or taken for the record shall be open to

examination by the parties, and

opportunity shall be given to refute facts

and arguments advanced on either side

of the issues. A transcript shall be made

of the oral evidence except to the extent

the substance thereof is stipulated for

the record. All decisions shall be based

upon the hearing record.

7724 Federal Register / Vol. 66, No. 17 / Thursday, January 25, 2001 / Rules and Regulations

(4) The costs and expenses for the

conduct of a hearing shall be allocated

as follows:

(i) Employees of the Board shall, upon

the request of the administrative law

judge, be made available to participate

in the hearing and shall be on official

duty status for this purpose. They shall

not receive witness fees.

(ii) Employees of other Federal

agencies called to testify at a hearing, at

the request of the administrative law

judge and with the approval of the

employing agency, shall be on official

duty status during any absence from

normal duties caused by their

testimony, and shall not receive witness

fees.

(iii) The fees and expenses of other

persons called to testify at a hearing

shall be paid by the party requesting

their appearance.

(iv) The administrative law judge may

require the Board to pay travel expenses

necessary for the complainant to attend

the hearing.

(v) The Board shall pay the required

expenses and charges for the

administrative law judge and court

reporter.

(vi) All other expenses shall be paid

by the parties incurring them.

(5) The administrative law judge shall

submit in writing recommended

findings of fact, conclusions of law, and

remedies to the complainant and the

EEO Programs Director within 30 days,

after the receipt of the hearing

transcripts, or within 30 days after the

conclusion of the hearing if no

transcripts are made. This time limit

may be extended with the permission of

the EEO Programs Director.

(6) Within 15 calendar days after

receipt of the recommended decision of

the administrative law judge, the

complainant may file exceptions to the

recommended decision with the EEO

Programs Director. On behalf of the

Board, the EEO Programs Director may,

within 15 calendar days after receipt of

the recommended decision of the

administrative law judge, take exception

to the recommended decision of the

administrative law judge and shall

notify the complainant in writing of the

Board’s exception. Thereafter, the

complainant shall have 10 calendar

days to file reply exceptions with the

EEO Programs Director. The EEO

Programs Director shall retain copies of

the exceptions and replies to the Board’s

exception for consideration by the

Board. After the expiration of the time

to reply, the recommended decision

shall be ripe for a decision under

paragraph (k) of this section.

(k) Decision. (1) The EEO Programs

Director shall notify the Board of

Governors when a complaint is ripe for

decision under this paragraph (k). At the

request of any member of the Board of

Governors made within 3 business days

of such notice, the Board of Governors

shall make the decision on the

complaint. If no such request is made,

the Administrative Governor, or the

Staff Director for Management if he or

she is delegated the authority to do so,

shall make the decision on the

complaint. The decision shall be made

based on information in the

investigative record and, if a hearing is

held, on the hearing record. The

decision shall be made within 60 days

of the receipt by the EEO Programs

Director of the notice of appeal and

investigative record pursuant to

paragraph (h)(1) of this section or 60

days following the end of the period for

filing reply exceptions set forth in

paragraph (j)(6) of this section,

whichever is applicable. If the decisionmaker under this paragraph (k)

determines that additional information

is needed from any party, the decisionmaker shall request the information and

provide the other party or parties an

opportunity to respond to that

information. The decision-maker shall

have 60 days from receipt of the

additional information to render the

decision on the appeal. The decisionmaker shall transmit the decision by

letter to all parties. The decision shall

set forth the findings, any remedial

actions required, and the reasons for the

decision. If the decision is based on a

hearing record, the decision-maker shall

consider the recommended decision of

the administrative law judge and render

a final decision based on the entire

record. The decision-maker may also

remand the hearing record to the

administrative law judge for a fuller

development of the record.

(2) The Board shall take any action

required under the terms of the decision

promptly. The decision-maker may

require periodic compliance reports

specifying:

(i) The manner in which compliance

with the provisions of the decision has

been achieved;

(ii) The reasons any action required

by the final Board decision has not been

taken; and

(iii) The steps being taken to ensure

full compliance.

(3) The decision-maker may retain

responsibility for resolving disputes that

arise between parties over interpretation

of the final Board decision, or for

specific adjudicatory decisions arising

out of implementation.

By order of the Board of Governors of the

Federal Reserve System, January 9, 2001.

Jennifer J. Johnson,

Secretary of the Board.

[FR Doc. 01–1073 Filed 1–24–01; 8:45 am]

BILLING CODE 6210–01–P