Federal Sector Equal Employment Opportunity, 43643-43652 [E6-12432]

Agencies

• Equal Employment Opportunity Commission

[Federal Register Volume 71, Number 148 (Wednesday, August 2, 2006)]
[Rules and Regulations]
[Pages 43643-43652]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-12432]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AA74


Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.

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

DATES: Effective Date: August 2, 2006.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal 
Counsel, Gary John Hozempa, Senior General Attorney, or Mona Papillon, 
Senior General Attorney at (202) 663-4669 (voice) or (202) 663-7026 
(TTY). This final rule also is available in the following alternative 
formats: large print, braille, audiotape and electronic file on 
computer disk. Requests for the final rule in an alternative format 
should be made to EEOC's Publication Center at 1-800-669-3362 (voice), 
1-800-800-3302 (TTY), or 703-821-2098 (FAX--this is not a toll free 
number).

SUPPLEMENTARY INFORMATION:

Introduction

    On January 26, 2004, EEOC published in the Federal Register an 
interim final rule setting forth the time, form and manner in which an 
agency shall post summary statistical EEO complaint data. 69 FR 3483 
(2004). The interim rule included a 60-day comment period, which 
subsequently was extended an additional 30 days. 69 FR 13473 (2004).
    EEOC received over 140 comments on the interim rule. One hundred 
and nine comments were submitted by persons identifying themselves as 
members of the ``No FEAR Coalition.'' Sixteen comments were submitted 
by Federal agencies and departments. Four comments were submitted by 
civil rights groups composed of Federal employees, one was submitted by 
a national civil rights group, one by an association of Federal EEO 
executives, one by a Member of Congress, and one was submitted by an 
association of Federal agency Web content managers. EEOC also received 
seventeen comments from individuals, most of whom identified themselves 
as Federal or former Federal employees.
    The Commission has considered carefully all of the comments and has 
made some changes to the interim rule in response to the comments. The 
comments EEOC received and the changes made to the interim rule are 
discussed in more detail below.

Amendments to Complaints

    When EEOC circulated its first draft of the interim rule under 
Executive Order 12067, the regulation required that, when posting 
information about the bases and issues raised in a complaint, agencies 
include bases and issues added by amendment. Agencies commenting on 
this provision argued that if bases and issues added by amendment were 
to be included among the data, withdrawals of issues and bases likewise 
should be reflected. When

[[Page 43644]]

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

Bases and Issues

    The interim rule requires that an agency post the number of 
complaints raising each basis of alleged discrimination and the number 
of complaints raising each challenged employment action. A few agencies 
opined that this will make it appear as if more complaints have been 
filed than is actually the case.
    Given that sections 301(b)(4) and (5) of the No FEAR Act 
specifically require that this information be posted, EEOC does not 
have the discretion to change this part of the rule. Moreover, agencies 
must post the total number of complaints filed. Persons viewing all 
three data categories will be able to ascertain that the total number 
of times a basis or issue is asserted does not correspond to the number 
of complaints actually filed. Therefore, there is no basis for concern 
that the number of complaints filed will appear inflated.
    Other commenters objected to the requirement that an agency post a 
complaint as having been filed even if it raises a basis not protected 
by one of the Federal EEO statutes. One objection was that such a 
complaint is not really an EEO complaint and therefore should not be 
counted. Another objection was that the inclusion of complaints raising 
a non-EEO basis unintentionally could convey the message that an EEO 
complaint can be maintained regardless of the basis alleged.
    The very designation ``non-EEO'' basis will alert a viewer that the 
complaint falls outside the scope of the EEO laws. Thus, EEOC does not 
believe that requiring agencies to post this information will mislead 
the public into believing that employment discrimination laws protect 
an employee or applicant from non-covered forms of discrimination. 
Complaints raising a non-EEO basis, such as whistle blowing, will be 
dismissed. EEOC believes, however, that it is important to know how 
many claims filed under part 1614 do not belong in that process because 
it may indicate that employees need to be better informed of their 
rights and the correct forums in which to pursue their allegations of 
wrongdoing, or that persons are misusing the EEO complaint process.
    A few commenters were concerned about bases that are mislabeled by 
a complainant. Where a complainant appears to misidentify a basis 
(e.g., the complainant alleges race discrimination and identifies her 
race as ``Danish'') and the agency determines that the complainant's 
intent is to raise a national origin claim, the agency shall post only 
the corrected basis.

Counseling

    A few commenters objected to the absence of counseling data in the 
posting requirements, arguing that counseling is an important part of 
the process. EEOC's initial decision not to have agencies post 
counseling activity was based on its conclusion that the No FEAR Act 
does not address pre-complaint activity, which would include 
counseling. Nothing proffered in the comments convinces EEOC that its 
initial interpretation was in error.
    That EEO counseling activity will not be tracked under the No FEAR 
Act does not lessen its importance or minimize EEOC's belief that 
counseling is a vital component of the Federal sector complaint 
process. Many matters brought to a counselor's attention are resolved 
before they become formal complaints. Counselors further perform the 
very valuable function of assisting complainants to accurately define 
the matters about which they wish to complain. EEOC requires agencies 
to report counseling activity on the Form 462 (``Annual Federal Equal 
Employment Opportunity Statistical Report of Discrimination 
Complaints'') because it believes the counseling function is 
significant.

Definitions

    Based on some of the comments EEOC received, there appears to be 
some confusion regarding the definition of ``appeal'' under Sec.  
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 Sec.  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

[[Page 43645]]

Commission to establish the ``time, form, and manner'' in which an 
agency must post its EEO data, the statute does not specify what 
action, if any, EEOC may take in the event an agency does not fulfill 
its posting obligations. Since the statute neither authorizes EEOC to 
sanction agency non-compliance nor sets forth the means by which EEOC 
can compel compliance, EEOC has not created an enforcement mechanism.

Government-Wide Data

    A few commenters suggested that EEOC post government-wide EEO 
statistics on its Web site, using each agency's posted data as the 
source material. Since the statute does not require EEOC to post 
consolidated data and given that EEOC already consolidates Form 462 
data, which overlaps somewhat with the No FEAR data, EEOC has decided 
not to consolidate government-wide No FEAR data.
    In a similar vein, commenters suggested that EEOC post on its Web 
site a regularly updated listing indicating which agencies fully are in 
compliance with the posting requirements, partially are in compliance, 
or have not posted data. Again, this is beyond the responsibilities 
imposed by the statute and EEOC therefore will not implement the 
suggestion.

Issuance of the Interim Final Rule

    Some commenters questioned EEOC's reasons for issuing an interim 
final rule rather than a final rule. EEOC's implementation of this rule 
as an interim final rule with provision for post-promulgation public 
comment was based upon the exceptions found at 5 U.S.C. 553(b)(A), 
(b)(B) and (d). Agency posting obligations under Title III of the No 
FEAR Act began in the first quarter of FY 2004. It was essential that 
agencies understood their responsibilities regarding the posting 
requirements so that they could begin capturing EEO data immediately. 
EEOC determined under 5 U.S.C. 553(b)(A) that this regulation, which 
covers the time, form and manner of agency postings under Title III of 
the No FEAR Act, affects agency organization, procedure, or practice 
and has no effect on the substantive rights of non-agency parties. In 
addition, it was feared that the absence of rules or the later 
promulgation of rules would result in confusion concerning the posting 
requirements, to the detriment of the public. EEOC therefore determined 
under 5 U.S.C. 553(b)(B) that it would be contrary to the public 
interest to delay promulgation of these rules by issuing a notice of 
proposed rule making rather than the interim final rule that was 
issued. For the same reasons, EEOC determined under 5 U.S.C. 553(d)(3) 
that there was good cause for the rule to become effective immediately 
upon publication with provision for post-promulgation 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 counter-productive. Moreover, many people visiting an agency 
Web site do so through hyperlinks from other non-agency Web sites or 
search engines that bypass an agency's homepage. Some agencies allow 
internet users to compose a personal homepage, which again bypasses the 
agency's standard homepage. For these and other reasons, the agencies 
that commented uniformly were of the opinion that a hyperlink on an 
agency's homepage is not the best way to ensure the public's assess to 
an agency's posted EEO data. These agencies therefore suggested that 
each agency decide itself where to place its EEO data and hyperlinks to 
that data since each agency best knows where a target audience goes to 
look for certain information. A number of agencies offered suggestions 
where the hyperlink would be better placed, such as on the ``About the 
Agency'' or ``Working for the Agency/Employment'' pages.
    The Commission is concerned that without a uniform hyperlink 
location members of the public seeking EEO data from more than one 
agency will have trouble finding the data. If one agency's hyperlink is 
on the ``About the Agency'' page, another's is on the ``Employment 
Opportunities'' page, another's is on a page entitled ``Civil Rights,'' 
and another's is on the homepage, locating the data for multiple 
agencies could well end up as an exercise in trial and error. Even 
assuming that the homepage is not the best or most intuitive location 
for the hyperlink, EEOC is convinced that it would not be in the public 
interest to allow each agency to decide where on its Web site it will 
place the hyperlink. Thus, if not the homepage, EEOC must dictate 
another uniform location. The problem is that there are no other 
locations common to all agency public Web sites. Agencies do not label 
their ``About the Agency'' and ``Employment'' pages identically. Not 
every agency has an ``Employment Opportunities page. Thus, there is no 
way to standardize through a rule an alternative location for the link. 
This leaves only the homepage as the one Web page all agencies possess 
in common, and therefore it is the homepage which shall house the link.
    Regarding the title of the hyperlink, EEOC agrees that it is too 
wordy. EEOC, however, does not agree that the label ``No FEAR'' will be 
widely misunderstood by members of the public. On the contrary, the 
term ``No FEAR Act'' has attained familiarity among employees and those 
involved in EEO matters. Accordingly, the final rule provides that the 
hyperlink shall be called ``No FEAR Act Data.'' However, agencies will 
be required to title the page where its data appears as follows: 
``Equal Employment Opportunity Data Posted Pursuant to Title III of the 
Notification and Federal Employee Antidiscrimination and Retaliation 
Act of 2002 (No FEAR Act), Pub. L. 107-174.''
    In furtherance of making every agency's No FEAR Act data easily 
accessible, it was suggested that agencies maintain their posted data 
so that it is readily retrievable by commercial search engines. EEOC 
agrees and has added a subsection setting forth this requirement.
    Finally, some commenters suggested that each agency provide EEOC 
with the hyperlink to its No FEAR data and that EEOC post the agency 
hyperlinks in one location on EEOC's public Web site. EEOC has decided 
to adopt this suggestion. Therefore, the final rule contains the 
requirement that an agency provide EEOC with the URL for the location 
of its No FEAR data and provide URL updates as necessary. Agencies can 
e-mail their URLs to EEOC at NoFEAR.URLS@eeoc.gov.

Other Data

    Some commenters disagreed with EEOC's position that EEO data not 
required to be posted by the statute cannot be posted with No FEAR data 
but may appear elsewhere. Commenters argued that by excluding other, 
related

[[Page 43646]]

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 co-
mingling other data with that required to be posted under the statute. 
An agency may, however, include a link on the No FEAR data page to any 
additional or related data it posts on another Web page.

Pending Complaints Filed in Prior Fiscal Years

    As explained in the preamble to the Interim Final Rule, section 
301(b)(10) of the No FEAR Act ``specifies that an agency must look at 
all complaints pending in a current fiscal year and post the number 
that were filed before the start of that fiscal year * * * The Act 
further requires an agency to post the number of individuals who filed 
the complaints that were filed before the start of the current fiscal 
year * * * [O]f the complaints that were filed prior to the current 
fiscal year and are still pending, the agency shall specify how many of 
the complaints are at each specific processing step.''
    Section 1614.704(k) of the Interim Final Rule was intended to 
implement sections 301(b)(10)(A) and (B) of the Act. As one commentor 
pointed out, subsections 1614.704(k)(2) and (3) as contained in the 
Interim Final Rule can be read as applying to all pending complaints 
and not just those that were filed in prior fiscal years. The 
Commission agrees that the language of these provisions is overbroad 
and has redrafted them in re-designated subsections 1614.704(l)(2)(i) 
and (ii) to make clear that they apply only to pending complaints filed 
in prior fiscal years.

Posting by Subelements

    The interim final rule provides that an agency must post on its 
public Web page separate data pertaining to its subelements. The 
interim final rule defines a subelement as ``any organizational sub-
unit directly below the agency or department level which has 1,000 or 
more employees.'' A few persons commented that the 1,000 employee 
threshold is too low. Others argued that it is too high. EEOC chose the 
1,000 employee figure because that was the figure EEOC was planning to 
use for reporting under EEOC Management Directive 715 (affirmative 
programs of equal employment opportunity). After the interim final rule 
was published, EEOC issued instructions for compliance with EEOC 
Management Directive 715 (MD-715). These instructions require that, of 
those subordinate components having 1,000 or more employees, only those 
``enjoying a certain amount of autonomy'' constitute subordinate 
components for purposes of reporting under MD-715.
    In order to maintain consistency, the final rule adopts the 
distinction used in reporting under MD-715. As a result, the final rule 
substitutes the term ``subordinate component'' for ``subelement.'' The 
definition of ``subordinate component'' is the same as the definition 
of ``second level reporting component'' used in the instructions to MD-
715. The change to the definition will mean that there will be fewer 
subordinate components for which separate data must be posted. More 
importantly, requiring agencies to report on subordinate components 
based on functional criteria, such as operating autonomy from the 
parent agency, will result in more meaningful data.
    The concept of subordinate components is discussed in Question and 
Answer No. 5 in EEOC's publication, ``Frequently Asked Questions About 
Management Directive-715,'' which can be accessed at https://
www.eeoc.gov/federal/qanda-md715.html. A list of the second level 
subordinate components can be accessed at https://www.eeoc.gov/federal/
715instruct/agencylist.html.
    Some commenters objected to the fact that EEOC is not requiring 
agency subordinate components to post component data on their 
respective public Web pages. The final rule requires that an agency 
with a qualifying subordinate component post on the parent agency's 
public Web site both consolidated, agency-wide, EEO data (i.e., data 
deriving from the entire parent agency including any subordinate 
components) and separate data for each of its subordinate components. 
The physical location of where this data is posted, whether on the 
agency's public Web page or the component's, should not matter to the 
end-user. The final rule requires that subordinate components that have 
their own Web sites shall post a link on their homepages to their 
component-specific data. So long as a link to the component's data can 
be found on both the component's and parent agency's Web homepages, the 
data can be accessed from either Web site. In short, being able to 
access the data is what is important, not where in cyberspace the data 
is stored.

Posting Format

    In the preamble to the interim rule, EEOC stated that it had not 
decided whether to mandate a uniform posting format and layout but 
would revisit the issue when promulgating the final rule. No agency 
stated that EEOC should not develop a standard format. Thirteen 
agencies, on the other hand, asked EEOC to develop a standardized form 
or format for posting data. The rationale most often cited was that a 
uniform template would make it easier for interested parties to compare 
data among agencies. Interestingly, some agencies favoring a template 
nevertheless wanted to be able to choose whether to use EEOC's template 
or another one.
    In the Commission's view, there is no point in making a template 
available if its use is not mandatory. A random review of agency Web 
sites indicates that there are a variety of formats in use. Some 
agencies, for example, present data in ascending chronological order 
while others do the opposite. Some agencies use formats that omit 
certain categories of data. Having given the matter careful 
consideration, EEOC has decided that a uniform template will make it 
easier to compare agency data and help agencies to post all required 
data. Accordingly, we have created a standard format that must be used 
by all agencies having 100 or more employees and all subordinate 
components. Two smaller agencies suggested that agencies having minimal 
EEO complaint activity use a modified posting format appropriate to the 
amount of data being

[[Page 43647]]

reported. EEOC agrees. Therefore, agencies having fewer than 100 
employees have the option of using any posting format that provides all 
required information for those complaints.
    The Commission has devised a format setting forth the manner in 
which agencies must present their No FEAR data on their public Web 
sites. The format is intended to give agencies a visual indication of 
how data is to be presented. This format can be viewed on EEOC's public 
Web site at https://www.eeoc.gov/stats/nofear/.
    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 Sec.  1614.702(j) and reported on EEOC Form 
462. First, the interim rule uses the term ``retaliation'' whereas Form 
462 uses the term ``reprisal.'' Second, Form 462 lists the Equal Pay 
Act as a basis while interim 702(j) does not. Finally, the order of the 
bases as listed in interim 702(j) differs slightly from that on Form 
462. In order to regularize an agency's reporting burdens, while at the 
same time enhancing the degree of detail available to the public 
through the posting of No FEAR data, we have decided to conform the 
bases in the final version of section 702(j) to that on Form 462. 
Accordingly, we have added the Equal Pay Act basis, changed the term 
``retaliation'' to ``reprisal,'' and listed the bases in the manner in 
which they appear on the Form 462. The term ``reprisal'' as used in 
this subpart should not be construed to include the type of reprisal 
covered by the Federal whistleblower protection laws. Rather, it refers 
to any action taken against an individual either because that 
individual opposed any practice made unlawful by the Federal employment 
discrimination laws or participated in any manner in any proceeding 
under those laws.

Public Hearings

    Seventy-eight percent (78%) of the comments were received from the 
No FEAR Coalition or persons identifying themselves as members of the 
No FEAR Coalition. The No FEAR Coalition members submitted their 
comments using an identical or nearly identical letter. The Coalition 
requested that EEOC convene public hearings in different parts of the 
country in order to address the issues of employment discrimination and 
EEOC's rule making under the No FEAR Act. The Coalition requested that 
EEOC establish a citizens' advisory board that would oversee EEOC's 
promulgation of this final rule. The Coalition made suggestions that 
have been raised by other commenters, such as developing a rule that 
will ensure managers found to have engaged in discrimination are 
appropriately disciplined, that these manager's names be provided to 
Congress, that counseling data be among that required to be posted, 
that amendments to complaints be tracked, and that data pertaining to 
agency subordinate components be posted.
    Those comments provided by the Coalition and which also were raised 
by others are discussed both above and below. With respect to holding 
public hearings as part of the rule making process, EEOC is required by 
the Administrative Procedure Act to ``give interested persons an 
opportunity to participate in the rule making through submission of 
written data, views, or arguments with or without opportunity for oral 
presentation.'' 5 U.S.C. 553(c). Thus, although an agency is permitted 
to accept comments through oral presentations, it is not required to do 
so. There is certainly no requirement in the Act for a public hearing. 
EEOC believes that the written comment process has provided meaningful 
public participation in this rule making.
    In this regard, EEOC extended the initial 60-day public comment 
period and additional 30 days at the request of the No FEAR Coalition. 
As noted, many members of the Coalition submitted comments which the 
Commission carefully has considered. Additionally, during the public 
comment period the Chair of the Commission met with members of the No 
FEAR Coalition to discuss the substance of EEOC's rule making. We 
believe the public, including the No FEAR coalition, have had a 
meaningful opportunity to participate in the Title III No FEAR rule 
making process.
    Moreover, EEOC's rule making duties under Title III of the No FEAR 
Act are straightforward. Title III requires an agency to post on its 
public Web site summary statistical data pertaining to complaints of 
employment discrimination filed with the agency. The statistics that 
shall be posted are set forth specifically in the statute. EEOC's only 
role is to issue rules establishing the ``time, form and manner'' in 
which the statistics are posted. In such a narrow context, public 
hearings as an adjunct to written comments would not better inform 
EEOC's rule making process in any appreciable manner. It is unlikely 
that ideas as to when or how pre-defined statistics should be posted on 
an agency Web site could or would be better communicated orally than in 
writing. Accordingly, EEOC concludes that holding the suggested 
regional public hearings will not significantly aid the rule making 
process. Similarly, EEOC does not believe it would be advantageous to 
convene a citizens' advisory board. Finally, as noted above, holding 
public hearings or convening a citizens advisory committee is not 
required by the No FEAR or Administrative Procedure Acts.

Remands

    A number of complaints are dismissed by agencies on procedural 
grounds (e.g., failure to comply with the applicable time limits, 
failure to state a claim). The complainant can appeal the dismissal to 
EEOC. If EEOC finds the complaint was dismissed improperly, EEOC 
remands the complaint to the agency for further processing. A few 
commenters inquired how these complaints should be handled once they 
are returned to the agency for processing.
    Once the complaint is remanded, the agency will have to track its 
status for posting purposes but only with respect to subsequent 
information applicable to the remanded complaint. Thus, for example, 
information previously posted about the issues and bases raised in the 
complaint shall not be changed regardless of whether the remanded 
complaint is returned to the agency with more, less, or different 
issues and bases. All pertinent information applicable to the 
subsequent processing of the complaint (e.g., whether it was timely 
investigated following remand, whether it subsequently involves a 
finding of discrimination with or without a hearing) shall be posted. 
With respect to remanded complaints where the investigation was not 
completed prior to the agency's dismissal of the complaint,

[[Page 43648]]

the investigative period for purposes of Sec.  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 Sec.  1614.704(l) (pending complaints filed in prior fiscal 
years), a remanded complaint will retain its original filing date.

Settlements

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

Short Form Title

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

Title II Issues

    While Title III of the No FEAR Act requires an agency to post EEO 
complaint data on its public Web site, Title II imposes other 
requirements. With respect to Federal employment discrimination and 
whistleblower protection laws, Title II mandates, among other things, 
that an agency: (1) Reimburse the Judgment Fund for payments concerning 
violations or alleged violations of Federal employment discrimination 
laws, Federal whistleblower protections laws, and retaliation claims 
arising from the assertion of rights under these laws; (2) notify 
covered individuals of their rights and protections under the Federal 
EEO laws; and (3) submit an annual report to Congress, EEOC, the Office 
of Personnel Management, and the Attorney General detailing, among 
other information, disciplinary actions taken against employees for 
conduct inconsistent with Federal antidiscrimination and whistleblower 
protections laws. Title II empowers the President or the President's 
designee to issue rules necessary to carry out that Title. The 
President delegated this rule making authority to the Office of 
Personnel Management (OPM).
    It appears that a number of commenters did not distinguish between 
EEOC's rule making authority under Title III and OPM's authority under 
Title II. Thus, for example, commenters urged EEOC to write rules 
ensuring that there would be management accountability for 
discriminating against employees, comprehensive training for employees 
(and managers) concerning the protections afforded them and the 
obligations imposed upon them under the various Federal statutes, and 
accurate agency reporting to Congress. As explained, however, these 
issues do not fall within the rule making authority applicable to Title 
III of the No FEAR Act and EEOC therefore has no authority to address 
them.

Withdrawn Complaints

    In conjunction with comments received on whether amendments to 
complaints should be tracked, certain commenters suggested that the 
posted data track the number of complaints that are withdrawn by 
complainants. EEOC agrees. Therefore, EEOC has added the requirement in 
a new subsection 1614.704(h) that an agency post the number of 
complaints that are withdrawn in a given fiscal year. An agency shall 
track a withdrawn complaint in the same manner it tracks a complaint 
that is dismissed. That is, in tracking withdrawals, an agency shall 
not revise posted data pertaining to the number of complaints that have 
been filed in order to reflect the withdrawal. Rather, the withdrawal, 
like a dismissal, shall be accounted for in a separate data column.

Miscellaneous Comments

    A few commenters discussed provisions not included in the No FEAR 
Act which they believe should have been included; for example, 
authority for EEOC to sue agencies directly and award punitive damages 
to Federal employees. Others called for EEOC to promulgate rules beyond 
the posting requirements set forth in Title III, arguing that to do so 
would make the posting requirements more effective. Suggestions 
included: Requiring agencies to post the names of agency employees 
found to have engaged in prohibited discrimination; referring

[[Page 43649]]

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 Sec.  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 Sec.  1614.704(j)(2) and (3) and Sec.  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 Sec.  
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 Sec.  1614.704(i)(1) that there were 25 
final actions involving findings of discrimination). In posting 
percentage data under Sec.  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 Sec.  1614.704(j)(2), the agency will post 
that 5 and 33% (5 of 15) of the final actions involving race 
discrimination were rendered without a hearing and that 5 and 100% (5 
of 5) of the final actions involving age discrimination were rendered 
without a hearing. The agency further will post that 10 and 66% (10 of 
15) of the final actions involving race discrimination were rendered 
after a hearing and that 5 and 100% (5 of 5) of the final actions 
involving sex discrimination were rendered after a hearing.
    EEOC's explanatory comments in the preamble to the interim final 
rule applicable to those provisions that have not been changed in the 
final rule should continue to be used as guidance. That language can be 
found at 69 FR 3483 (2004).

Regulatory Procedures

Executive Order 12866

    Pursuant to Executive Order 12866, EEOC has coordinated this final 
rule with the Office of Management and Budget. Under section 3(f)(1) of 
Executive Order 12866, EEOC has determined that the regulation will not 
have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State or local tribal governments or communities.
    The posting requirements contained in Title III of The No FEAR Act 
apply only to Federal executive agencies, the United States Postal 
Service, and the Postal Rate Commission. All of these agencies, 
including EEOC, are required by the No FEAR Act to post statistical 
data on their public Web sites pertaining to EEO complaints filed with 
them. In addition, EEOC has to post government-wide data pertaining to 
requests for EEO hearings and appeals of EEO complaints.
    Much of the information that will be used as source material to 
post the statistical data required by Title III already is collected 
and maintained by the agencies in connection with their pre-existing 
reporting obligations. All affected agencies currently maintain public 
Web sites. Consequently, the Congressional Budget Office estimated that 
the total cost for all agencies to comply with The No FEAR Act's 
posting requirements will not exceed $5 million annually. House Rept. 
107-101 Part 1, June 14, 2001, p 11-12. Also, according to the CBO, it 
will cost EEOC $500,000 annually to post the additional government-wide 
data required by Sec.  302. Id. Thus, the total cost of Title III of 
the No FEAR Act should be less than $5.5 million annually.
    The benefits of posting EEO data will flow not just to the Federal 
agencies but to the public. An agency will be able to compare its EEO 
program statistics against prior quarters and years to determine if 
there are trends that need to be addressed or whether progress is being 
made. An agency can also compare its statistics against those of other 
agencies. Both types of analyses should be useful to the agency in 
monitoring its own compliance with 29 CFR part 1614 and ensuring equal 
opportunity in the agency's employment programs. Public posting will 
ensure that members of the public will have access to this information 
and will be able to make independent assessments of agencies' 
compliance and progress. Agency employees will be able to assess the 
degree to which their agency provides equal employment opportunity. 
Likewise, potential job applicants will be able to judge the relative 
desirability of each agency's working environment. The public display 
of this information should provide agencies with added incentives to 
improve their EEO programs and to prevent discrimination proactively so 
that they can demonstrate that they are true equal employment 
opportunity employers. Increased monitoring and improved compliance 
through public posting of EEO statistics should lead to a decline in 
incidents of employment discrimination, which is the primary goal of 
the No FEAR Act.

Paperwork Reduction Act

    This regulation contains no new information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities, because it does not affect any small business entities. The 
regulation affects only Federal Government entities. For this reason, a 
regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

    This final rule will not result in the expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions

[[Page 43650]]

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 non-agency 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.

0
Accordingly, for the reasons set forth in the preamble, EEOC amends 29 
CFR part 1614 as follows:

PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

0
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.


0
2. Subpart G is revised to read as follows:
Subpart G--Procedures Under the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002 (No FEAR Act)
Sec.
1614.701 Purpose and scope.
1614.702 Definitions.
1614.703 Manner and format of data.
1614.704 Information to be posted--all Federal agencies.
1614.705 Comparative data--all Federal agencies.
1614.706 Other data.
1614.707 Data to be posted by EEOC.

    Authority: Sec. 303, Pub. L. 107-174, 116 Stat. 574.

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


Sec.  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.


Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  1614.108(f);
    (2) After a complainant requests an immediate final decision;
    (3) After a complainant withdraws a request for a hearing; and
    (4) After an administrative judge cancels a hearing and remands the 
matter to the agency.
    (f) For purposes of Sec.  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 Sec.  
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 Sec.  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 Sec.  1614.110(a) 
following a finding of discrimination by an administrative judge; and
    (2) A final decision issued by an agency pursuant to Sec.  
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/

[[Page 43651]]

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


Sec.  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 Sec.  1614.704 
for the current fiscal year. Agencies may not post separate quarterly 
statistics for the current fiscal year.
    (f) Data posted pursuant to Sec.  1614.704 by agencies having 100 
or more employees, and all subordinate component data posted pursuant 
to subsection 1614.703(c), shall be presented in the manner and order 
set forth in the template EEOC has placed for this purpose on its 
public Web site.
    (1) Cumulative quarterly and fiscal year data shall appear in 
vertical columns. The oldest fiscal year data shall be listed first, 
reading left to right, with the other fiscal years appearing in the 
adjacent columns in chronological order. The current cumulative 
quarterly or year-end data shall appear in the last, or far-right, 
column.
    (2) The categories of data as set forth in Sec.  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 Sec.  1614.704(a) through (m).
    (3) When posting data pursuant to Sec.  1614.704(d) and (j), bases 
of discrimination shall be arranged in the order in which they appear 
in Sec.  1614.702(j). The category ``non-EEO basis'' shall be posted 
last, after the basis of ``disability.''
    (4) When posting data pursuant to Sec.  1614.704(e) and (k), issues 
of discrimination shall be arranged in the order in which they appear 
in Sec.  1614.702(k). Only those issues set forth in Sec.  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.


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

[[Page 43652]]

Sec.  1614.705  Comparative data--all Federal agencies.

    Commencing on January 31, 2004 and no later than January 31 of each 
year thereafter, each Federal agency shall post year-end data 
corresponding to that required to be posted by Sec.  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.


Sec.  1614.706  Other data.

    Agencies shall not include or otherwise post with the data required 
to be posted under Sec.  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.


Sec.  1614.707  Data to be posted by EEOC.

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