29 Cfr 1614

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

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AMS is committed to compliance
with the Government Paperwork
Elimination Act (GPEA), which requires
Government agencies in general to
provide the public the option of
submitting information or transacting
business electronically to the maximum
extent possible.
In addition, USDA has not identified
any relevant Federal rules that
duplicate, overlap or conflict with this
rule.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: http://www.ams.usda.gov/
fv/moab.html. Any questions about the
compliance guide should be sent to Jay
Guerber at the previously mentioned
address in the FOR FURTHER INFORMATION
CONTACT section.
This rule invites comments on
relaxation of the minimum grade
requirement under the Washington
apricot marketing order. Any comments
received will be considered prior to
finalization of this rule.
After consideration of all relevant
material presented, including the
Committee’s recommendation, and
other information, it is found that the
minimum grade requirement in
§ 922.321 should be temporarily relaxed
from Washington No. 1 grade to
Washington No. 2 grade in order to
effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also
found and determined upon good cause
that it is impracticable, unnecessary,
and contrary to the public interest to
give preliminary notice prior to putting
this rule into effect and that good cause
exists for not postponing the effective
date of this rule until 30 days after
publication in the Federal Register
because: (1) This rule relaxes the
minimum grade requirement for
Washington apricots for the 2006
shipping season; (2) Washington apricot
handlers are aware of this
recommendations and need no
additional time to comply with the
relaxed requirements; (3) this rule
should be in effect as close as possible
to July 1, 2006, the date shipments of
the 2006 Washington apricot crop are
expected to begin; and (4) this rule
provides a 60-day comment period, and
any comments received will be
considered prior to finalization of this
rule.
List of Subjects in 7 CFR Part 922
Apricots, Marketing agreements,
Reporting and recordkeeping
requirements.
■ For the reasons set forth in the
preamble, 7 CFR Part 922 is amended as
follows:

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PART 922—APRICOTS GROWN IN
DESIGNATED COUNTIES IN
WASHINGTON
1. The authority citation for 7 CFR
Part 922 continues to read as follows:

■

Authority: 7 U.S.C. 601–674.
§ 922.321

[Amended]

2. Section 922.321 is amended by
revising paragraph (a)(1) to read as
follows:
(a) * * *
(1) Minimum grade and maturity
requirements. Such apricots that grade
not less than Washington No. 1 and are
at least reasonably uniform in color:
Provided, That during the period July 1,
2006, through March 31, 2007, the
minimum grade requirement for such
apricots shall be not less than
Washington No. 2; Provided further,
That such apricots of the Moorpark
variety in open containers shall be
generally well matured: and
*
*
*
*
*

■

Dated: July 27, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. E6–12410 Filed 8–1–06; 8:45 am]
BILLING CODE 3410–02–P

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
29 CFR Part 1614
RIN 3046–AA74

Federal Sector Equal Employment
Opportunity
Equal Employment
Opportunity Commission.
ACTION: Final rule.
AGENCY:

SUMMARY: The Equal Employment
Opportunity Commission (EEOC or
Commission) is issuing a final rule
implementing the posting requirements
set forth in Title III of the Notification
and Federal Employee
Antidiscrimination and Retaliation Act
of 2002 (No FEAR Act), Pub. L. 107–
174. The No FEAR Act requires a
Federal agency to post on its public Web
site summary statistical data pertaining
to complaints of employment
discrimination filed under 29 CFR part
1614 by employees, former employees
and applicants for employment. Title III
authorizes EEOC to issue rules
concerning the ‘‘time, form and
manner’’ of the postings, to define the
terms ‘‘issue’’ and ‘‘basis,’’ and to issue
any other ‘‘rules necessary to carry out’’
Title III.

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DATES:

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Effective Date: August 2, 2006.

FOR FURTHER INFORMATION CONTACT:

Thomas J. Schlageter, Assistant Legal
Counsel, Gary John Hozempa, Senior
General Attorney, or Mona Papillon,
Senior General Attorney at (202) 663–
4669 (voice) or (202) 663–7026 (TTY).
This final rule also is available in the
following alternative formats: large
print, braille, audiotape and electronic
file on computer disk. Requests for the
final rule in an alternative format
should be made to EEOC’s Publication
Center at 1–800–669–3362 (voice), 1–
800–800–3302 (TTY), or 703–821–2098
(FAX—this is not a toll free number).
SUPPLEMENTARY INFORMATION:
Introduction
On January 26, 2004, EEOC published
in the Federal Register an interim final
rule setting forth the time, form and
manner in which an agency shall post
summary statistical EEO complaint data.
69 FR 3483 (2004). The interim rule
included a 60-day comment period,
which subsequently was extended an
additional 30 days. 69 FR 13473 (2004).
EEOC received over 140 comments on
the interim rule. One hundred and nine
comments were submitted by persons
identifying themselves as members of
the ‘‘No FEAR Coalition.’’ Sixteen
comments were submitted by Federal
agencies and departments. Four
comments were submitted by civil
rights groups composed of Federal
employees, one was submitted by a
national civil rights group, one by an
association of Federal EEO executives,
one by a Member of Congress, and one
was submitted by an association of
Federal agency Web content managers.
EEOC also received seventeen
comments from individuals, most of
whom identified themselves as Federal
or former Federal employees.
The Commission has considered
carefully all of the comments and has
made some changes to the interim rule
in response to the comments. The
comments EEOC received and the
changes made to the interim rule are
discussed in more detail below.
Amendments to Complaints
When EEOC circulated its first draft of
the interim rule under Executive Order
12067, the regulation required that,
when posting information about the
bases and issues raised in a complaint,
agencies include bases and issues added
by amendment. Agencies commenting
on this provision argued that if bases
and issues added by amendment were to
be included among the data,
withdrawals of issues and bases
likewise should be reflected. When

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Bases and Issues

Other commenters objected to the
requirement that an agency post a
complaint as having been filed even if
it raises a basis not protected by one of
the Federal EEO statutes. One objection
was that such a complaint is not really
an EEO complaint and therefore should
not be counted. Another objection was
that the inclusion of complaints raising
a non-EEO basis unintentionally could
convey the message that an EEO
complaint can be maintained regardless
of the basis alleged.
The very designation ‘‘non-EEO’’
basis will alert a viewer that the
complaint falls outside the scope of the
EEO laws. Thus, EEOC does not believe
that requiring agencies to post this
information will mislead the public into
believing that employment
discrimination laws protect an
employee or applicant from noncovered forms of discrimination.
Complaints raising a non-EEO basis,
such as whistle blowing, will be
dismissed. EEOC believes, however, that
it is important to know how many
claims filed under part 1614 do not
belong in that process because it may
indicate that employees need to be
better informed of their rights and the
correct forums in which to pursue their
allegations of wrongdoing, or that
persons are misusing the EEO complaint
process.
A few commenters were concerned
about bases that are mislabeled by a
complainant. Where a complainant
appears to misidentify a basis (e.g., the
complainant alleges race discrimination
and identifies her race as ‘‘Danish’’) and
the agency determines that the
complainant’s intent is to raise a
national origin claim, the agency shall
post only the corrected basis.

The interim rule requires that an
agency post the number of complaints
raising each basis of alleged
discrimination and the number of
complaints raising each challenged
employment action. A few agencies
opined that this will make it appear as
if more complaints have been filed than
is actually the case.
Given that sections 301(b)(4) and (5)
of the No FEAR Act specifically require
that this information be posted, EEOC
does not have the discretion to change
this part of the rule. Moreover, agencies
must post the total number of
complaints filed. Persons viewing all
three data categories will be able to
ascertain that the total number of times
a basis or issue is asserted does not
correspond to the number of complaints
actually filed. Therefore, there is no
basis for concern that the number of
complaints filed will appear inflated.

Counseling
A few commenters objected to the
absence of counseling data in the
posting requirements, arguing that
counseling is an important part of the
process. EEOC’s initial decision not to
have agencies post counseling activity
was based on its conclusion that the No
FEAR Act does not address precomplaint activity, which would
include counseling. Nothing proffered
in the comments convinces EEOC that
its initial interpretation was in error.
That EEO counseling activity will not
be tracked under the No FEAR Act does
not lessen its importance or minimize
EEOC’s belief that counseling is a vital
component of the Federal sector
complaint process. Many matters
brought to a counselor’s attention are
resolved before they become formal
complaints. Counselors further perform
the very valuable function of assisting

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EEOC issued its interim final rule it
decided to drop the requirement that
agencies track amendments.
Based on comments received on the
interim final rule, both from agencies
and members of the public, EEOC has
reconsidered its approach and now
believes that bases and issues added by
amendment should be included among
the posted data. EEOC is particularly
concerned that the number of times
retaliation is alleged will not be
portrayed accurately if amendments are
not tracked. As a number of commenters
noted, complainants often allege that
they have been retaliated against for
having filed an earlier, pending
complaint. These claims of retaliation
are considered like and related to the
initial complaint and therefore must be
treated as amendments to the initial
complaint rather than as separate
complaints. See EEOC Management
Directive 110, Chapter 5, Example 6 at
page 5–11. Since EEOC believes
amendments adding a claim of
retaliation need to be captured, EEOC
also believes it is best to capture all
issues and bases that are added.
Tracking amendments requires that an
agency post the basis or issue raised in
the amendment when it is time to post
quarterly or year-end data for the
current fiscal year, whichever posting
period occurs first after a complaint is
amended. Where the amendment of a
complaint filed in a prior fiscal year
occurs in the current fiscal year, an
agency shall not go back and modify
prior fiscal year data regarding issues
and bases since prior year data in these
categories is unaffected by amendments
occurring in subsequent fiscal years.

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complainants to accurately define the
matters about which they wish to
complain. EEOC requires agencies to
report counseling activity on the Form
462 (‘‘Annual Federal Equal
Employment Opportunity Statistical
Report of Discrimination Complaints’’)
because it believes the counseling
function is significant.
Definitions
Based on some of the comments EEOC
received, there appears to be some
confusion regarding the definition of
‘‘appeal’’ under § 1614.702(i). The
appeal step of the process is to be
distinguished from the request for
reconsideration stage. Consequently,
when posting data pursuant to
§ 1614.704(l)(2)(ii) (pending complaints
filed in prior fiscal years) agencies need
not track a complaint that is awaiting a
decision on a request for
reconsideration because it is not
pending at the appeal stage.
EEOC Form 462
A few agencies opined that, now that
they must post EEO data under Title III
(and report EEO data under Title II),
EEOC should discontinue the use of
EEOC Form 462. As an alternative, a few
agencies suggested that they be allowed
to consolidate EEOC Form 462 with the
information they must post under the
No FEAR Act.
Form 462 seeks more, and in many
cases different, information than is
required to be posted under the No
FEAR Act. While the posting of No
FEAR data is primarily for use by the
public, Form 462 data is intended for
EEOC use and is delivered directly to
EEOC for this reason. In addition to
reporting consolidated Form 462 data to
Congress, EEOC reviews each agency’s
report to assess that agency’s
compliance with its EEO obligations
under part 1614. These roles, reporting
to Congress and assessing an agency’s
EEO program, are not responsibilities
given to EEOC under the No FEAR Act.
As a result, EEOC does not regard an
agency’s posting obligations under the
No FEAR Act as serving the same
purpose as its Form 462 reporting
requirements. For these reasons, EEOC
will not discontinue the use of Form
462.
Enforcement
A number of comments focused on
the fact that the interim rule does not
contain an enforcement mechanism in
the event an agency fails to post its EEO
data. Some commenters want EEOC to
fashion a scheme in which EEOC can
sanction agencies and agency managers
for non-compliance. While directing the

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Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations
Commission to establish the ‘‘time,
form, and manner’’ in which an agency
must post its EEO data, the statute does
not specify what action, if any, EEOC
may take in the event an agency does
not fulfill its posting obligations. Since
the statute neither authorizes EEOC to
sanction agency non-compliance nor
sets forth the means by which EEOC can
compel compliance, EEOC has not
created an enforcement mechanism.

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Government-Wide Data
A few commenters suggested that
EEOC post government-wide EEO
statistics on its Web site, using each
agency’s posted data as the source
material. Since the statute does not
require EEOC to post consolidated data
and given that EEOC already
consolidates Form 462 data, which
overlaps somewhat with the No FEAR
data, EEOC has decided not to
consolidate government-wide No FEAR
data.
In a similar vein, commenters
suggested that EEOC post on its Web
site a regularly updated listing
indicating which agencies fully are in
compliance with the posting
requirements, partially are in
compliance, or have not posted data.
Again, this is beyond the
responsibilities imposed by the statute
and EEOC therefore will not implement
the suggestion.
Issuance of the Interim Final Rule
Some commenters questioned EEOC’s
reasons for issuing an interim final rule
rather than a final rule. EEOC’s
implementation of this rule as an
interim final rule with provision for
post-promulgation public comment was
based upon the exceptions found at 5
U.S.C. 553(b)(A), (b)(B) and (d). Agency
posting obligations under Title III of the
No FEAR Act began in the first quarter
of FY 2004. It was essential that
agencies understood their
responsibilities regarding the posting
requirements so that they could begin
capturing EEO data immediately. EEOC
determined under 5 U.S.C. 553(b)(A)
that this regulation, which covers the
time, form and manner of agency
postings under Title III of the No FEAR
Act, affects agency organization,
procedure, or practice and has no effect
on the substantive rights of non-agency
parties. In addition, it was feared that
the absence of rules or the later
promulgation of rules would result in
confusion concerning the posting
requirements, to the detriment of the
public. EEOC therefore determined
under 5 U.S.C. 553(b)(B) that it would
be contrary to the public interest to
delay promulgation of these rules by

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issuing a notice of proposed rule making
rather than the interim final rule that
was issued. For the same reasons, EEOC
determined under 5 U.S.C. 553(d)(3)
that there was good cause for the rule to
become effective immediately upon
publication with provision for postpromulgation public comment. An
additional advantage to this approach
was that agencies were able to try out
the rules, and the public was able to
observe how agencies sought to comply
with them, thus informing the
comments they submitted to EEOC.
Link Location, Link Name, Search
Engines and URLs
Section 1614.703(d) of the interim
rule requires an agency to title its posted
EEO information ‘‘Equal Employment
Opportunity Data Posted Pursuant to the
No Fear Act.’’ This section further
requires an agency to prominently place
a hyperlink to the data on the homepage
of its public Web site. There was some
objection both to the location of the
hyperlink and its name.
As for the location, agencies argue
that their homepages already are well
populated with hyperlinks which
primarily are mission-specific. Adding
another hyperlink, thereby producing
crowding, may in fact be counterproductive. Moreover, many people
visiting an agency Web site do so
through hyperlinks from other nonagency Web sites or search engines that
bypass an agency’s homepage. Some
agencies allow internet users to
compose a personal homepage, which
again bypasses the agency’s standard
homepage. For these and other reasons,
the agencies that commented uniformly
were of the opinion that a hyperlink on
an agency’s homepage is not the best
way to ensure the public’s assess to an
agency’s posted EEO data. These
agencies therefore suggested that each
agency decide itself where to place its
EEO data and hyperlinks to that data
since each agency best knows where a
target audience goes to look for certain
information. A number of agencies
offered suggestions where the hyperlink
would be better placed, such as on the
‘‘About the Agency’’ or ‘‘Working for the
Agency/Employment’’ pages.
The Commission is concerned that
without a uniform hyperlink location
members of the public seeking EEO data
from more than one agency will have
trouble finding the data. If one agency’s
hyperlink is on the ‘‘About the Agency’’
page, another’s is on the ‘‘Employment
Opportunities’’ page, another’s is on a
page entitled ‘‘Civil Rights,’’ and
another’s is on the homepage, locating
the data for multiple agencies could
well end up as an exercise in trial and

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error. Even assuming that the homepage
is not the best or most intuitive location
for the hyperlink, EEOC is convinced
that it would not be in the public
interest to allow each agency to decide
where on its Web site it will place the
hyperlink. Thus, if not the homepage,
EEOC must dictate another uniform
location. The problem is that there are
no other locations common to all agency
public Web sites. Agencies do not label
their ‘‘About the Agency’’ and
‘‘Employment’’ pages identically. Not
every agency has an ‘‘Employment
Opportunities page. Thus, there is no
way to standardize through a rule an
alternative location for the link. This
leaves only the homepage as the one
Web page all agencies possess in
common, and therefore it is the
homepage which shall house the link.
Regarding the title of the hyperlink,
EEOC agrees that it is too wordy. EEOC,
however, does not agree that the label
‘‘No FEAR’’ will be widely
misunderstood by members of the
public. On the contrary, the term ‘‘No
FEAR Act’’ has attained familiarity
among employees and those involved in
EEO matters. Accordingly, the final rule
provides that the hyperlink shall be
called ‘‘No FEAR Act Data.’’ However,
agencies will be required to title the
page where its data appears as follows:
‘‘Equal Employment Opportunity Data
Posted Pursuant to Title III of the
Notification and Federal Employee
Antidiscrimination and Retaliation Act
of 2002 (No FEAR Act), Pub. L. 107–
174.’’
In furtherance of making every
agency’s No FEAR Act data easily
accessible, it was suggested that
agencies maintain their posted data so
that it is readily retrievable by
commercial search engines. EEOC
agrees and has added a subsection
setting forth this requirement.
Finally, some commenters suggested
that each agency provide EEOC with the
hyperlink to its No FEAR data and that
EEOC post the agency hyperlinks in one
location on EEOC’s public Web site.
EEOC has decided to adopt this
suggestion. Therefore, the final rule
contains the requirement that an agency
provide EEOC with the URL for the
location of its No FEAR data and
provide URL updates as necessary.
Agencies can e-mail their URLs to EEOC
at NoFEAR.URLS@eeoc.gov.
Other Data
Some commenters disagreed with
EEOC’s position that EEO data not
required to be posted by the statute
cannot be posted with No FEAR data
but may appear elsewhere. Commenters
argued that by excluding other, related

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data, agencies are forced to present an
incomplete view of their EEO
performance. Commenters especially
believed data regarding complaints
found to be without merit by an
administrative judge or EEOC should be
posted along with the No FEAR Act
data.
Other commenters wanted additional
information posted because they believe
it would indicate whether an agency is
engaging in a pattern of discrimination,
or is unfairly processing complaints, or
obstructing the EEO complaint process.
It was suggested, for example, that
agencies post the grade levels of persons
filing complaints, the number of
complaints that allege unfair processing,
the number of work hours an agency
expends on EEO complaint processing,
the number of days beyond the
regulatory time frame it takes an agency
to complete an investigation in a
specific case, and the number of
terminations, including constructive
discharges, for each protected group.
Admittedly, the categories of data set
forth in the statute do not present a
complete view of an agency’s EEO
compliance. But the categories represent
the information Congress deems most
important and EEOC believes this
information should not be obscured or
rendered less prominent through
juxtaposition with other non-required
data. Consequently, the final rule
specifically prohibits an agency from comingling other data with that required
to be posted under the statute. An
agency may, however, include a link on
the No FEAR data page to any
additional or related data it posts on
another Web page.
Pending Complaints Filed in Prior
Fiscal Years
As explained in the preamble to the
Interim Final Rule, section 301(b)(10) of
the No FEAR Act ‘‘specifies that an
agency must look at all complaints
pending in a current fiscal year and post
the number that were filed before the
start of that fiscal year * * * The Act
further requires an agency to post the
number of individuals who filed the
complaints that were filed before the
start of the current fiscal year * * * [O]f
the complaints that were filed prior to
the current fiscal year and are still
pending, the agency shall specify how
many of the complaints are at each
specific processing step.’’
Section 1614.704(k) of the Interim
Final Rule was intended to implement
sections 301(b)(10)(A) and (B) of the
Act. As one commentor pointed out,
subsections 1614.704(k)(2) and (3) as
contained in the Interim Final Rule can
be read as applying to all pending

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complaints and not just those that were
filed in prior fiscal years. The
Commission agrees that the language of
these provisions is overbroad and has
redrafted them in re-designated
subsections 1614.704(l)(2)(i) and (ii) to
make clear that they apply only to
pending complaints filed in prior fiscal
years.
Posting by Subelements
The interim final rule provides that an
agency must post on its public Web
page separate data pertaining to its
subelements. The interim final rule
defines a subelement as ‘‘any
organizational sub-unit directly below
the agency or department level which
has 1,000 or more employees.’’ A few
persons commented that the 1,000
employee threshold is too low. Others
argued that it is too high. EEOC chose
the 1,000 employee figure because that
was the figure EEOC was planning to
use for reporting under EEOC
Management Directive 715 (affirmative
programs of equal employment
opportunity). After the interim final rule
was published, EEOC issued
instructions for compliance with EEOC
Management Directive 715 (MD–715).
These instructions require that, of those
subordinate components having 1,000
or more employees, only those
‘‘enjoying a certain amount of
autonomy’’ constitute subordinate
components for purposes of reporting
under MD–715.
In order to maintain consistency, the
final rule adopts the distinction used in
reporting under MD–715. As a result,
the final rule substitutes the term
‘‘subordinate component’’ for
‘‘subelement.’’ The definition of
‘‘subordinate component’’ is the same as
the definition of ‘‘second level reporting
component’’ used in the instructions to
MD–715. The change to the definition
will mean that there will be fewer
subordinate components for which
separate data must be posted. More
importantly, requiring agencies to report
on subordinate components based on
functional criteria, such as operating
autonomy from the parent agency, will
result in more meaningful data.
The concept of subordinate
components is discussed in Question
and Answer No. 5 in EEOC’s
publication, ‘‘Frequently Asked
Questions About Management Directive715,’’ which can be accessed at http://
www.eeoc.gov/federal/qandamd715.html. A list of the second level
subordinate components can be
accessed at http://www.eeoc.gov/
federal/715instruct/agencylist.html.
Some commenters objected to the fact
that EEOC is not requiring agency

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subordinate components to post
component data on their respective
public Web pages. The final rule
requires that an agency with a
qualifying subordinate component post
on the parent agency’s public Web site
both consolidated, agency-wide, EEO
data (i.e., data deriving from the entire
parent agency including any
subordinate components) and separate
data for each of its subordinate
components. The physical location of
where this data is posted, whether on
the agency’s public Web page or the
component’s, should not matter to the
end-user. The final rule requires that
subordinate components that have their
own Web sites shall post a link on their
homepages to their component-specific
data. So long as a link to the
component’s data can be found on both
the component’s and parent agency’s
Web homepages, the data can be
accessed from either Web site. In short,
being able to access the data is what is
important, not where in cyberspace the
data is stored.
Posting Format
In the preamble to the interim rule,
EEOC stated that it had not decided
whether to mandate a uniform posting
format and layout but would revisit the
issue when promulgating the final rule.
No agency stated that EEOC should not
develop a standard format. Thirteen
agencies, on the other hand, asked
EEOC to develop a standardized form or
format for posting data. The rationale
most often cited was that a uniform
template would make it easier for
interested parties to compare data
among agencies. Interestingly, some
agencies favoring a template
nevertheless wanted to be able to choose
whether to use EEOC’s template or
another one.
In the Commission’s view, there is no
point in making a template available if
its use is not mandatory. A random
review of agency Web sites indicates
that there are a variety of formats in use.
Some agencies, for example, present
data in ascending chronological order
while others do the opposite. Some
agencies use formats that omit certain
categories of data. Having given the
matter careful consideration, EEOC has
decided that a uniform template will
make it easier to compare agency data
and help agencies to post all required
data. Accordingly, we have created a
standard format that must be used by all
agencies having 100 or more employees
and all subordinate components. Two
smaller agencies suggested that agencies
having minimal EEO complaint activity
use a modified posting format
appropriate to the amount of data being

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Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations
reported. EEOC agrees. Therefore,
agencies having fewer than 100
employees have the option of using any
posting format that provides all required
information for those complaints.
The Commission has devised a format
setting forth the manner in which
agencies must present their No FEAR
data on their public Web sites. The
format is intended to give agencies a
visual indication of how data is to be
presented. This format can be viewed on
EEOC’s public Web site at http://
www.eeoc.gov/stats/nofear/index.html.
As can be seen, prior fiscal year and
cumulative quarterly data shall be
presented in vertical columns. The
current cumulative quarterly data shall
appear in the right-most column for
which data is entered (the last column
reading left to right), and the most
recent prior fiscal year data shall appear
in the column immediately to the left of
the cumulative quarterly data. The data
for the remaining fiscal years shall
appear in each succeeding column to
the left, so that the oldest fiscal year
data appears in the left-most column for
which data is posted.
The categories of data that must be
posted shall appear in the horizontal
rows. The first row for which data is
posted shall contain the number of
complaints filed for that particular
reporting period. The remaining rows
shall, reading top to bottom, contain the
data set forth in subsections
1614.704(a)–(m) in the order in which
each subsection occurs in the
regulation.
While developing the standard
format, we noted some inconsistencies
between the bases listed in § 1614.702(j)
and reported on EEOC Form 462. First,
the interim rule uses the term
‘‘retaliation’’ whereas Form 462 uses the
term ‘‘reprisal.’’ Second, Form 462 lists
the Equal Pay Act as a basis while
interim 702(j) does not. Finally, the
order of the bases as listed in interim
702(j) differs slightly from that on Form
462. In order to regularize an agency’s
reporting burdens, while at the same
time enhancing the degree of detail
available to the public through the
posting of No FEAR data, we have
decided to conform the bases in the
final version of section 702(j) to that on
Form 462. Accordingly, we have added
the Equal Pay Act basis, changed the
term ‘‘retaliation’’ to ‘‘reprisal,’’ and
listed the bases in the manner in which
they appear on the Form 462. The term
‘‘reprisal’’ as used in this subpart should
not be construed to include the type of
reprisal covered by the Federal
whistleblower protection laws. Rather,
it refers to any action taken against an
individual either because that

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individual opposed any practice made
unlawful by the Federal employment
discrimination laws or participated in
any manner in any proceeding under
those laws.
Public Hearings
Seventy-eight percent (78%) of the
comments were received from the No
FEAR Coalition or persons identifying
themselves as members of the No FEAR
Coalition. The No FEAR Coalition
members submitted their comments
using an identical or nearly identical
letter. The Coalition requested that
EEOC convene public hearings in
different parts of the country in order to
address the issues of employment
discrimination and EEOC’s rule making
under the No FEAR Act. The Coalition
requested that EEOC establish a citizens’
advisory board that would oversee
EEOC’s promulgation of this final rule.
The Coalition made suggestions that
have been raised by other commenters,
such as developing a rule that will
ensure managers found to have engaged
in discrimination are appropriately
disciplined, that these manager’s names
be provided to Congress, that counseling
data be among that required to be
posted, that amendments to complaints
be tracked, and that data pertaining to
agency subordinate components be
posted.
Those comments provided by the
Coalition and which also were raised by
others are discussed both above and
below. With respect to holding public
hearings as part of the rule making
process, EEOC is required by the
Administrative Procedure Act to ‘‘give
interested persons an opportunity to
participate in the rule making through
submission of written data, views, or
arguments with or without opportunity
for oral presentation.’’ 5 U.S.C. 553(c).
Thus, although an agency is permitted
to accept comments through oral
presentations, it is not required to do so.
There is certainly no requirement in the
Act for a public hearing. EEOC believes
that the written comment process has
provided meaningful public
participation in this rule making.
In this regard, EEOC extended the
initial 60-day public comment period
and additional 30 days at the request of
the No FEAR Coalition. As noted, many
members of the Coalition submitted
comments which the Commission
carefully has considered. Additionally,
during the public comment period the
Chair of the Commission met with
members of the No FEAR Coalition to
discuss the substance of EEOC’s rule
making. We believe the public,
including the No FEAR coalition, have
had a meaningful opportunity to

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43647

participate in the Title III No FEAR rule
making process.
Moreover, EEOC’s rule making duties
under Title III of the No FEAR Act are
straightforward. Title III requires an
agency to post on its public Web site
summary statistical data pertaining to
complaints of employment
discrimination filed with the agency.
The statistics that shall be posted are set
forth specifically in the statute. EEOC’s
only role is to issue rules establishing
the ‘‘time, form and manner’’ in which
the statistics are posted. In such a
narrow context, public hearings as an
adjunct to written comments would not
better inform EEOC’s rule making
process in any appreciable manner. It is
unlikely that ideas as to when or how
pre-defined statistics should be posted
on an agency Web site could or would
be better communicated orally than in
writing. Accordingly, EEOC concludes
that holding the suggested regional
public hearings will not significantly
aid the rule making process. Similarly,
EEOC does not believe it would be
advantageous to convene a citizens’
advisory board. Finally, as noted above,
holding public hearings or convening a
citizens advisory committee is not
required by the No FEAR or
Administrative Procedure Acts.
Remands
A number of complaints are
dismissed by agencies on procedural
grounds (e.g., failure to comply with the
applicable time limits, failure to state a
claim). The complainant can appeal the
dismissal to EEOC. If EEOC finds the
complaint was dismissed improperly,
EEOC remands the complaint to the
agency for further processing. A few
commenters inquired how these
complaints should be handled once they
are returned to the agency for
processing.
Once the complaint is remanded, the
agency will have to track its status for
posting purposes but only with respect
to subsequent information applicable to
the remanded complaint. Thus, for
example, information previously posted
about the issues and bases raised in the
complaint shall not be changed
regardless of whether the remanded
complaint is returned to the agency with
more, less, or different issues and bases.
All pertinent information applicable to
the subsequent processing of the
complaint (e.g., whether it was timely
investigated following remand, whether
it subsequently involves a finding of
discrimination with or without a
hearing) shall be posted. With respect to
remanded complaints where the
investigation was not completed prior to
the agency’s dismissal of the complaint,

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the investigative period for purposes of
§ 1614.704(f) will include both the
period between the dates the complaint
initially was filed and dismissed and
the period between the dates the EEOC’s
remand becomes final and the
investigation is completed. For purposes
of posting data under § 1614.704(l)
(pending complaints filed in prior fiscal
years), a remanded complaint will retain
its original filing date.

payments made as part of a settlement
agreement in connection with litigation
in Federal court. Also in connection
with cases brought in Federal court,
including those that are settled, an
agency must report the number of
employees disciplined and the types of
disciplinary actions taken for conduct
inconsistent with Federal
antidiscrimination and whistleblower
protection laws.

Settlements
A few commenters noted that the
interim final rule is silent on the issue
of settlements and asked how settlement
information should be tracked. The No
FEAR Act does not require an agency to
post settlement information (e.g., how
many complaints were settled, when or
where in the process settlement took
place, the bases and issues that were
settled, etc.) and consequently neither
the interim nor the final rule deal with
settlements. Prior to settlement, an
agency shall post all required
information (e.g., a complaint was filed,
the number of persons who filed the
complaint, the issues and bases raised
in the complaint, whether the
investigation was completed within the
applicable period if settlement occurred
after the investigative step). Once a
complaint is settled, subsequent
information about the complaint does
not have to be tracked (but see next
paragraph). An allegation by a
complainant, pursuant to 29 CFR
1614.504, that the agency has breached
a settlement agreement does not
constitute a complaint for purposes of
this subpart and therefore information
about a breach allegation is not
information that must be posted.
In certain breach situations, a
previously settled complaint can be
reinstated by EEOC and the agency
ordered to process the complaint from
the point processing ceased at the time
of settlement. See 29 CFR 1614.504(c).
All pertinent information applicable to
the subsequent processing of the
reinstated complaint shall be posted. An
agency shall ignore, however, the period
between the settlement date and the
date EEOC’s reinstatement decision
becomes final when posting data under
§ 1614.704(f) and (m).
It should be noted that while Title III
of the No FEAR Act does not require an
agency to post data regarding
settlements, the reporting provisions
under Title II of the Act apply to certain
agreements made in settlement of claims
brought under Federal
antidiscrimination and whistleblower
protection laws. In reporting the
amounts reimbursed to the Judgment
Fund, an agency must include any

Short Form Title
Some commenters objected to EEOC’s
use of the term ‘‘No FEAR Act’’ as a
shorthand method of referring to the
Notification and Federal Employee
Antidiscrimination and Retaliation Act
of 2002. These commenters opined that
the term does not appear in the statute,
use of the phrase in the Library of
Congress’s Thomas search engine does
not lead to the statute, members of the
public may confuse the term with
matters having to do with homeland
security, and members of the public will
not associate the term with employment
discrimination.
The term ‘‘No FEAR’’ is, like most
shorthand titles for statutes, an
acronym: Notification and Federal
Employee Antidiscrimination and
Retaliation Act. It is the popular name
by which this statute is known and it is
commonly and widely used in the
media and throughout the Federal
government. The full name of the statute
appears at the beginning of this
preamble and the regulation. EEOC
believes this provides the public with
information sufficient both to know
under what statute these rules are being
promulgated and to find the statute
should members of the public wish to
read it.

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Title II Issues
While Title III of the No FEAR Act
requires an agency to post EEO
complaint data on its public Web site,
Title II imposes other requirements.
With respect to Federal employment
discrimination and whistleblower
protection laws, Title II mandates,
among other things, that an agency: (1)
Reimburse the Judgment Fund for
payments concerning violations or
alleged violations of Federal
employment discrimination laws,
Federal whistleblower protections laws,
and retaliation claims arising from the
assertion of rights under these laws; (2)
notify covered individuals of their rights
and protections under the Federal EEO
laws; and (3) submit an annual report to
Congress, EEOC, the Office of Personnel
Management, and the Attorney General
detailing, among other information,
disciplinary actions taken against

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employees for conduct inconsistent
with Federal antidiscrimination and
whistleblower protections laws. Title II
empowers the President or the
President’s designee to issue rules
necessary to carry out that Title. The
President delegated this rule making
authority to the Office of Personnel
Management (OPM).
It appears that a number of
commenters did not distinguish
between EEOC’s rule making authority
under Title III and OPM’s authority
under Title II. Thus, for example,
commenters urged EEOC to write rules
ensuring that there would be
management accountability for
discriminating against employees,
comprehensive training for employees
(and managers) concerning the
protections afforded them and the
obligations imposed upon them under
the various Federal statutes, and
accurate agency reporting to Congress.
As explained, however, these issues do
not fall within the rule making authority
applicable to Title III of the No FEAR
Act and EEOC therefore has no
authority to address them.
Withdrawn Complaints
In conjunction with comments
received on whether amendments to
complaints should be tracked, certain
commenters suggested that the posted
data track the number of complaints that
are withdrawn by complainants. EEOC
agrees. Therefore, EEOC has added the
requirement in a new subsection
1614.704(h) that an agency post the
number of complaints that are
withdrawn in a given fiscal year. An
agency shall track a withdrawn
complaint in the same manner it tracks
a complaint that is dismissed. That is,
in tracking withdrawals, an agency shall
not revise posted data pertaining to the
number of complaints that have been
filed in order to reflect the withdrawal.
Rather, the withdrawal, like a dismissal,
shall be accounted for in a separate data
column.
Miscellaneous Comments
A few commenters discussed
provisions not included in the No FEAR
Act which they believe should have
been included; for example, authority
for EEOC to sue agencies directly and
award punitive damages to Federal
employees. Others called for EEOC to
promulgate rules beyond the posting
requirements set forth in Title III,
arguing that to do so would make the
posting requirements more effective.
Suggestions included: Requiring
agencies to post the names of agency
employees found to have engaged in
prohibited discrimination; referring

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such persons to the Office of Special
Counsel for possible disciplinary action;
adding specific notations to such
persons’ Official Personnel Files
indicating that they had been found to
have engaged in prohibited
discrimination; requiring agencies to
review their posted EEO data in order to
determine whether there were problem
areas or managers. Other comments
addressed the need for sanctions for the
posting of false or incomplete data. One
commentor wanted EEOC to clarify both
the authority of EEOC administrative
judges under part 1614 and the hearing
process in general. All of these
suggestions are beyond the scope of
EEOC’s authority under the No FEAR
Act.
Matters of General Applicability
A few commenters wondered how to
calculate percentages required by the
rule. The percentage components under
§ 1614.704(i)(2) and (3), (j)(1), and (k)(1)
are to be based on the number of final
actions rendered in that fiscal year
which involve findings of
discrimination, and not the total
number of final actions rendered in that
fiscal year regardless of whether a
finding of discrimination is involved.
With respect to § 1614.704(j)(2) and (3)
and § 1614.704(k)(2) and (3), the
percentage figure shall be based on the
total number of findings for that
particular subcategory.
Example: An agency issues 100 final
actions in a given fiscal year, 25 of
which involve findings of
discrimination. Of those 25 cases
involving findings of discrimination, 15
were rendered after a hearing and 10
were rendered without a hearing. Of the
15 rendered after a hearing, 10 involve
findings of race discrimination and 5
involve findings of sex discrimination.
Of the 10 rendered without a hearing, 5
involve findings of race discrimination
and 5 involve findings of age
discrimination. In posting its percentage
data under § 1614.704(i)(2) and (3), the
agency will report that 40% (10 of 25)
of the final actions involving
discrimination were rendered without a
hearing and that 60% (15 of 25) were
rendered after a hearing. (The agency
also will post under § 1614.704(i)(1) that
there were 25 final actions involving
findings of discrimination). In posting
percentage data under § 1614.704(j)(1),
the agency will post that 15 and 60%
(15 of 25) of the final actions involving
a finding of discrimination were based
on race discrimination, 5 and 20% (5 of
25) were based on sex discrimination,
and 5 and 20% (5 of 25) were based on
age discrimination. Under
§ 1614.704(j)(2), the agency will post

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that 5 and 33% (5 of 15) of the final
actions involving race discrimination
were rendered without a hearing and
that 5 and 100% (5 of 5) of the final
actions involving age discrimination
were rendered without a hearing. The
agency further will post that 10 and
66% (10 of 15) of the final actions
involving race discrimination were
rendered after a hearing and that 5 and
100% (5 of 5) of the final actions
involving sex discrimination were
rendered after a hearing.
EEOC’s explanatory comments in the
preamble to the interim final rule
applicable to those provisions that have
not been changed in the final rule
should continue to be used as guidance.
That language can be found at 69 FR
3483 (2004).
Regulatory Procedures
Executive Order 12866
Pursuant to Executive Order 12866,
EEOC has coordinated this final rule
with the Office of Management and
Budget. Under section 3(f)(1) of
Executive Order 12866, EEOC has
determined that the regulation will not
have an annual effect on the economy
of $100 million or more or adversely
affect in a material way the economy, a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State or local
tribal governments or communities.
The posting requirements contained
in Title III of The No FEAR Act apply
only to Federal executive agencies, the
United States Postal Service, and the
Postal Rate Commission. All of these
agencies, including EEOC, are required
by the No FEAR Act to post statistical
data on their public Web sites
pertaining to EEO complaints filed with
them. In addition, EEOC has to post
government-wide data pertaining to
requests for EEO hearings and appeals
of EEO complaints.
Much of the information that will be
used as source material to post the
statistical data required by Title III
already is collected and maintained by
the agencies in connection with their
pre-existing reporting obligations. All
affected agencies currently maintain
public Web sites. Consequently, the
Congressional Budget Office estimated
that the total cost for all agencies to
comply with The No FEAR Act’s
posting requirements will not exceed $5
million annually. House Rept. 107–101
Part 1, June 14, 2001, p 11–12. Also,
according to the CBO, it will cost EEOC
$500,000 annually to post the additional
government-wide data required by
§ 302. Id. Thus, the total cost of Title III

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43649

of the No FEAR Act should be less than
$5.5 million annually.
The benefits of posting EEO data will
flow not just to the Federal agencies but
to the public. An agency will be able to
compare its EEO program statistics
against prior quarters and years to
determine if there are trends that need
to be addressed or whether progress is
being made. An agency can also
compare its statistics against those of
other agencies. Both types of analyses
should be useful to the agency in
monitoring its own compliance with 29
CFR part 1614 and ensuring equal
opportunity in the agency’s employment
programs. Public posting will ensure
that members of the public will have
access to this information and will be
able to make independent assessments
of agencies’ compliance and progress.
Agency employees will be able to assess
the degree to which their agency
provides equal employment
opportunity. Likewise, potential job
applicants will be able to judge the
relative desirability of each agency’s
working environment. The public
display of this information should
provide agencies with added incentives
to improve their EEO programs and to
prevent discrimination proactively so
that they can demonstrate that they are
true equal employment opportunity
employers. Increased monitoring and
improved compliance through public
posting of EEO statistics should lead to
a decline in incidents of employment
discrimination, which is the primary
goal of the No FEAR Act.
Paperwork Reduction Act
This regulation contains no new
information collection requirements
subject to review by the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
Regulatory Flexibility Act
The Commission certifies under 5
U.S.C. 605(b) that this rule will not have
a significant economic impact on a
substantial number of small entities,
because it does not affect any small
business entities. The regulation affects
only Federal Government entities. For
this reason, a regulatory flexibility
analysis is not required.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the
expenditure by State, local, or tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions

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of the Unfunded Mandates Reform Act
of 1995.
Congressional Review Act
This action pertains to agency
management, personnel and
organization and does not substantially
affect the rights or obligations of nonagency parties and, accordingly, is not
a ‘‘rule’’ as that term is used by the
Congressional Review Act (Subtitle E of
the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA)). Therefore, the reporting
requirement of 5 U.S.C. 801 does not
apply.
List of Subjects in 29 CFR Part 1614
Administrative practice and
procedure, Age discrimination, Equal
employment opportunity, Government
employees, Individuals with
disabilities, Race discrimination,
Religious discrimination, Sex
discrimination.
For the Commission.
Dated: July 27, 2006.
Cari M. Dominguez,
Chair.

Accordingly, for the reasons set forth
in the preamble, EEOC amends 29 CFR
part 1614 as follows:

■

PART 1614—FEDERAL SECTOR
EQUAL EMPLOYMENT OPPORTUNITY
1. The authority citation for part 1614
continues to read as follows:

■

Authority: 29 U.S.C. 206(d), 633a, 791 and
794a; 42 U.S.C. 2000e–16; E.O. 10577, 3 CFR,
1954–1958 Comp., p. 218; E.O. 11222, 3 CFR,
1964–1965 Comp., p. 306; E.O. 11478, 3 CFR,
1069 Comp., p. 133; E.O. 12106, 3 CFR, 1978
Comp., p. 263; Reorg. Plan No. 1 of 1978, 3
CFR, 1978 Comp., p. 321.

2. Subpart G is revised to read as
follows:

■

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Subpart G—Procedures Under the
Notification and Federal Employee
Antidiscrimination and Retaliation Act of
2002 (No FEAR Act)
Sec.
1614.701 Purpose and scope.
1614.702 Definitions.
1614.703 Manner and format of data.
1614.704 Information to be posted—all
Federal agencies.
1614.705 Comparative data—all Federal
agencies.
1614.706 Other data.
1614.707 Data to be posted by EEOC.
Authority: Sec. 303, Pub. L. 107–174, 116
Stat. 574.

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Subpart G—Procedures Under the
Notification and Federal Employee
Antidiscrimination and Retaliation Act
of 2002 (No FEAR Act)
§ 1614.701

Purpose and scope.

This subpart implements Title III of
the Notification and Federal Employee
Antidiscrimination and Retaliation Act
of 2002 (No FEAR Act), Pub. L. 107–
174. It sets forth the basic
responsibilities of Federal agencies and
the Commission to post certain
information on their public Web sites.
§ 1614.702

Definitions.

The following definitions apply for
purposes of this subpart.
(a) The term Federal agency or agency
means an Executive agency (as defined
in 5 U.S.C. 105), the United States
Postal Service, and the Postal Rate
Commission.
(b) The term Commission means the
Equal Employment Opportunity
Commission and any subdivision
thereof authorized to act on its behalf.
(c) The term investigation refers to the
step of the federal sector EEO process
described in 29 CFR 1614.108 and
1614.106(e)(2) and, for purposes of this
subpart, it commences when the
complaint is filed and ceases when the
complainant is given notice under
§ 1614.108(f) of the right to request a
hearing or to receive an immediate final
decision without a hearing.
(d) The term hearing refers to the step
of the federal sector EEO process
described in 29 CFR 1614.109 and, for
purposes of § 1614.704(l)(2)(ii), it
commences on the date the agency is
informed by the complainant or EEOC,
whichever occurs first, that the
complainant has requested a hearing
and ends on the date the agency
receives from the EEOC notice that the
EEOC Administrative Judge (AJ) is
returning the case to the agency to take
final action. For all other purposes
under this subpart, a hearing
commences when the AJ receives the
complaint file from the agency and
ceases when the AJ returns the case to
the agency to take final action.
(e) For purposes of § 1614.704(i), (j),
and (k) the phrase without a hearing
refers to a final action by an agency that
is rendered:
(1) When an agency does not receive
a reply to a notice issued under
§ 1614.108(f);
(2) After a complainant requests an
immediate final decision;
(3) After a complainant withdraws a
request for a hearing; and
(4) After an administrative judge
cancels a hearing and remands the
matter to the agency.

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(f) For purposes of § 1614.704(i), (j),
and (k), the term after a hearing refers
to a final action by an agency that is
rendered following a decision by an
administrative judge under
§ 1614.109(f)(3)(iv), (g) or (i).
(g) The phrase final action by an
agency refers to the step of the federal
sector EEO process described in 29 CFR
1614.110 and, for purposes of this
subpart, it commences when the agency
receives a decision by an Administrative
Judge (AJ), receives a request from the
complainant for an immediate final
decision without a hearing or fails to
receive a response to a notice issued
under § 1614.108(f) and ceases when the
agency issues a final order or final
decision on the complaint.
(h) The phrase final action by an
agency involving a finding of
discrimination means:
(1) A final order issued by an agency
pursuant to § 1614.110(a) following a
finding of discrimination by an
administrative judge; and
(2) A final decision issued by an
agency pursuant to § 1614.110(b) in
which the agency finds discrimination.
(i) The term appeal refers to the step
of the federal sector EEO process
described in 29 CFR 1614.401 and, for
purposes of this subpart, it commences
when the appeal is received by the
Commission and ceases when the
appellate decision is issued.
(j) The term basis of alleged
discrimination refers to the individual’s
protected status (i.e., race, color,
religion, reprisal, sex, national origin,
Equal Pay Act, age, or disability). Only
those bases protected by Title VII of the
Civil Rights Act of 1964, as amended, 42
U.S.C. 2000e et seq., the Equal Pay Act
of 1963, 29 U.S.C. 206(d), the Age
Discrimination in Employment Act of
1967, as amended, 29 U.S.C. 621 et seq.,
and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. 791 et seq., are
covered by the federal EEO process.
(k) The term issue of alleged
discrimination means one of the
following challenged agency actions
affecting a term or condition of
employment as listed on EEOC Standard
Form 462 (‘‘Annual Federal Equal
Employment Opportunity Statistical
Report of Discrimination Complaints’’):
Appointment/hire; assignment of duties;
awards; conversion to full time;
disciplinary action/demotion;
disciplinary action/reprimand;
disciplinary action/suspension;
disciplinary action/removal; duty hours;
evaluation/appraisal; examination/test;
harassment/non-sexual; harassment/
sexual; medical examination; pay/
overtime; promotion/non-selection;
reassignment/denied; reassignment/

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directed; reasonable accommodation;
reinstatement; retirement; termination;
terms/conditions of employment; time
and attendance; training; and, other.
(l) The term subordinate component
refers to any organizational sub-unit
directly below the agency or department
level which has 1,000 or more
employees and is required to submit
EEOC Form 715–01 to EEOC pursuant to
EEOC Equal Employment Opportunity
Management Directive 715.

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§ 1614.703

Manner and format of data.

(a) Agencies shall post their statistical
data in the following two formats:
Portable Document Format (PDF); and
an accessible text format that complies
with section 508 of the Rehabilitation
Act.
(b) Agencies shall prominently post
the date they last updated the statistical
information on the Web site location
containing the statistical data.
(c) In addition to providing aggregate
agency-wide data, an agency shall
include separate data for each
subordinate component. Such data shall
be identified as pertaining to the
particular subordinate component.
(d) Data posted under this subpart
will be titled ‘‘Equal Employment
Opportunity Data Posted Pursuant to
Title III of the Notification and Federal
Employee Antidiscrimination and
Retaliation Act of 2002 (No FEAR Act),
Pub. L. 107–174,’’ and a hyperlink to the
data, entitled ‘‘No FEAR Act Data’’ will
be posted on the homepage of an
agency’s public Web site. In the case of
agencies with subordinate components,
the data shall be made available by
hyperlinks from the homepages of the
Web sites (if any exist) of the
subordinate components as well as the
homepage of the Web site of the parent
agency.
(e) Agencies shall post cumulative
data pursuant to § 1614.704 for the
current fiscal year. Agencies may not
post separate quarterly statistics for the
current fiscal year.
(f) Data posted pursuant to § 1614.704
by agencies having 100 or more
employees, and all subordinate
component data posted pursuant to
subsection 1614.703(c), shall be
presented in the manner and order set
forth in the template EEOC has placed
for this purpose on its public Web site.
(1) Cumulative quarterly and fiscal
year data shall appear in vertical
columns. The oldest fiscal year data
shall be listed first, reading left to right,
with the other fiscal years appearing in
the adjacent columns in chronological
order. The current cumulative quarterly
or year-end data shall appear in the last,
or far-right, column.

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(2) The categories of data as set forth
in § 1614.704(a) through (m) of this
subpart shall appear in horizontal rows.
When reading from top to bottom, the
order of the categories shall be in the
same order as those categories appear in
§ 1614.704(a) through (m).
(3) When posting data pursuant to
§ 1614.704(d) and (j), bases of
discrimination shall be arranged in the
order in which they appear in
§ 1614.702(j). The category ‘‘non-EEO
basis’’ shall be posted last, after the
basis of ‘‘disability.’’
(4) When posting data pursuant to
§ 1614.704(e) and (k), issues of
discrimination shall be arranged in the
order in which they appear in
§ 1614.702(k). Only those issues set
forth in § 1614.702(k) shall be listed.
(g) Agencies shall ensure that the data
they post under this subpart can be
readily accessed through one or more
commercial search engines.
(h) Within 60 days of the effective
date of this rule, an agency shall provide
the Commission the Uniform Resource
Locator (URL) for the data it posts under
this subpart. Thereafter, new or changed
URLs shall be provided within 30 days.
(i) Processing times required to be
posted under this subpart shall be
recorded using number of days.
§ 1614.704 Information to be posted—all
Federal agencies.

Commencing on January 31, 2004 and
thereafter no later than 30 days after the
end of each fiscal quarter beginning on
or after January 1, 2004, each Federal
agency shall post the following current
fiscal year statistics on its public
Internet Web site regarding EEO
complaints filed under 29 CFR part
1614.
(a) The number of complaints filed in
such fiscal year.
(b) The number of individuals filing
those complaints (including as the agent
of a class).
(c) The number of individuals who
filed two or more of those complaints.
(d) The number of those complaints,
whether initially or through
amendment, raising each of the various
bases of alleged discrimination and the
number of complaints in which a nonEEO basis is alleged.
(e) The number of those complaints,
whether initially or through
amendment, raising each of the various
issues of alleged discrimination.
(f) The average length of time it has
taken an agency to complete,
respectively, investigation and final
action by an agency for:
(1) All complaints pending for any
length of time during such fiscal year;

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43651

(2) All complaints pending for any
length of time during such fiscal year in
which a hearing was not requested; and
(3) All complaints pending for any
length of time during such fiscal year in
which a hearing was requested.
(g) The number of complaints
dismissed by an agency pursuant to 29
CFR 1614.107(a), and the average length
of time such complaints had been
pending prior to dismissal.
(h) The number of complaints
withdrawn by complainants.
(i)(1) The total number of final actions
by an agency rendered in such fiscal
year involving a finding of
discrimination and, of that number,
(2) The number and percentage that
were rendered without a hearing, and
(3) The number and percentage that
were rendered after a hearing.
(j) Of the total number of final actions
by an agency rendered in such fiscal
year involving a finding of
discrimination,
(1) The number and percentage of
those based on each respective basis,
(2) The number and percentage for
each respective basis that were rendered
without a hearing, and
(3) The number and percentage for
each respective basis that were rendered
after a hearing.
(k) Of the total number of final actions
by an agency rendered in such fiscal
year involving a finding of
discrimination,
(1) The number and percentage for
each respective issue,
(2) The number and percentage for
each respective issue that were rendered
without a hearing, and
(3) The number and percentage for
each respective issue that were rendered
after a hearing.
(l) Of the total number of complaints
pending for any length of time in such
fiscal year,
(1) The number that were first filed
before the start of the then current fiscal
year,
(2) Of those complaints falling within
subsection (l)(1),
(i) The number of individuals who
filed those complaints, and
(ii) The number that are pending,
respectively, at the investigation,
hearing, final action by an agency, and
appeal step of the process.
(m) Of the total number of complaints
pending for any length of time in such
fiscal year, the total number of
complaints in which the agency has not
completed its investigation within the
time required by 29 CFR 1614.106(e)(2)
plus any extensions authorized by that
section or § 1614.108(e).

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43652
§ 1614.705
agencies.

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

Commencing on January 31, 2004 and
no later than January 31 of each year
thereafter, each Federal agency shall
post year-end data corresponding to that
required to be posted by § 1614.704 for
each of the five immediately preceding
fiscal years (or, if not available for all
five fiscal years, for however many of
those five fiscal years for which data are
available). For each category of data, the
agency shall post a separate figure for
each fiscal year.
§ 1614.706

Other data.

Agencies shall not include or
otherwise post with the data required to
be posted under § 1614.704 and
1614.705 of this subpart any other data,
whether or not EEO related, but may
post such other data on another,
separate, Web page.

mstockstill on PROD1PC61 with RULES

§ 1614.707

Data to be posted by EEOC.

(a) Commencing on January 31, 2004
and thereafter no later than 30 days after
the end of each fiscal quarter beginning
on or after January 1, 2004, the
Commission shall post the following
current fiscal year statistics on its public
Internet Web site regarding hearings
requested under this part 1614.
(1) The number of hearings requested
in such fiscal year.
(2) The number of individuals filing
those requests.
(3) The number of individuals who
filed two or more of those requests.
(4) The number of those hearing
requests involving each of the various
bases of alleged discrimination.
(5) The number of those hearing
requests involving each of the various
issues of alleged discrimination.
(6) The average length of time it has
taken EEOC to complete the hearing
step for all cases pending at the hearing
step for any length of time during such
fiscal year.
(7)(i) The total number of
administrative judge (AJ) decisions
rendered in such fiscal year involving a
finding of discrimination and, of that
number,
(ii) The number and percentage that
were rendered without a hearing, and
(iii) The number and percentage that
were rendered after a hearing.
(8) Of the total number of AJ decisions
rendered in such fiscal year involving a
finding of discrimination,
(i) The number and percentage of
those based on each respective basis,
(ii) The number and percentage for
each respective basis that were rendered
without a hearing, and
(iii) The number and percentage for
each respective basis that were rendered
after a hearing.

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(9) Of the total number of AJ decisions
rendered in such fiscal year involving a
finding of discrimination,
(i) The number and percentage for
each respective issue,
(ii) The number and percentage for
each respective issue that were rendered
without a hearing, and
(iii) The number and percentage for
each respective issue that were rendered
after a hearing.
(10) Of the total number of hearing
requests pending for any length of time
in such fiscal year,
(i) The number that were first filed
before the start of the then current fiscal
year, and
(ii) The number of individuals who
filed those hearing requests in earlier
fiscal years.
(11) Of the total number of hearing
requests pending for any length of time
in such fiscal year, the total number in
which the Commission failed to
complete the hearing step within the
time required by § 1614.109(i).
(b) Commencing on January 31, 2004
and thereafter no later than 30 days after
the end of each fiscal quarter beginning
on or after January 1, 2004, the
Commission shall post the following
current fiscal year statistics on its public
Internet Web site regarding EEO appeals
filed under part 1614.
(1) The number of appeals filed in
such fiscal year.
(2) The number of individuals filing
those appeals (including as the agent of
a class).
(3) The number of individuals who
filed two or more of those appeals.
(4) The number of those appeals
raising each of the various bases of
alleged discrimination.
(5) The number of those appeals
raising each of the various issues of
alleged discrimination.
(6) The average length of time it has
taken EEOC to issue appellate decisions
for:
(i) All appeals pending for any length
of time during such fiscal year;
(ii) All appeals pending for any length
of time during such fiscal year in which
a hearing was not requested; and
(iii) All appeals pending for any
length of time during such fiscal year in
which a hearing was requested.
(7)(i) The total number of appellate
decisions rendered in such fiscal year
involving a finding of discrimination
and, of that number,
(ii) The number and percentage that
involved a final action by an agency
rendered without a hearing, and
(iii) The number and percentage that
involved a final action by an agency
after a hearing.

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(8) Of the total number of appellate
decisions rendered in such fiscal year
involving a finding of discrimination,
(i) The number and percentage of
those based on each respective basis of
discrimination,
(ii) The number and percentage for
each respective basis that involved a
final action by an agency rendered
without a hearing, and
(iii) The number and percentage for
each respective basis that involved a
final action by an agency rendered after
a hearing.
(9) Of the total number of appellate
decisions rendered in such fiscal year
involving a finding of discrimination,
(i) The number and percentage for
each respective issue of discrimination,
(ii) The number and percentage for
each respective issue that involved a
final action by an agency rendered
without a hearing, and
(iii) The number and percentage for
each respective issue that involved a
final action by an agency rendered after
a hearing.
(10) Of the total number of appeals
pending for any length of time in such
fiscal year,
(i) The number that were first filed
before the start of the then current fiscal
year, and
(ii) The number of individuals who
filed those appeals in earlier fiscal
years.
[FR Doc. E6–12432 Filed 8–1–06; 8:45 am]
BILLING CODE 6570–01–P

DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 362
[DoD Directive 5105.19]

Defense Information Systems Agency
(DISA)
Department of Defense.
Final rule.

AGENCY:
ACTION:

SUMMARY: This document removes part
362, ‘‘Defense Information Systems
Agency (DISA)’’ presently in Title 32 of
the Code of Federal Regulations. This
part has served the purpose for which
it was intended in the CFR and is no
longer necessary.
EFFECTIVE DATE: August 2, 2006.
FOR FURTHER INFORMATION CONTACT: L.M.
Bynum (703) 696–4970.
SUPPLEMENTARY INFORMATION: This part
362 is removed to as a part of a DoD
exercise to remove organizational
charters from the CFR because they have

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