Volunteer Discrimination Complaint Process, 81854-81862 [2020-26122]

Agencies

• Corporation for National and Community Service
• PEACE CORPS

[Federal Register Volume 85, Number 243 (Thursday, December 17, 2020)]
[Proposed Rules]
[Pages 81854-81862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26122]


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PEACE CORPS

22 CFR Part 306

CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

45 CFR Part 1225

RIN 0420-AA27


Volunteer Discrimination Complaint Process

AGENCY:  The Peace Corps and The Corporation for National and Community 
Service (CNCS).

ACTION: Joint proposed rule.

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SUMMARY: This joint document amends the regulations that the Peace 
Corps and Corporation for National and Community Service (CNCS) follow 
to process complaints of discrimination by volunteers and applicants 
for volunteer service. The current regulations were promulgated in 
January 1981 when the Peace Corps and domestic volunteer programs (such 
as VISTA, now subsumed by CNCS) were one entity under an organization 
called ACTION. At that time, Congress extended the statutory 
protections of the Civil Rights Act and other laws to such volunteers. 
Congress has since separated out the two agencies and has expressly 
removed the Peace Corps. As such, the regulations need to be updated.

DATES: This document is applicable March 17, 2021 without further 
action, unless adverse comment is received by January 19, 2021. If 
adverse comment is received, the Peace Corps and CNCS will publish a 
timely withdrawal of the document in the Federal Register.

ADDRESSES: You may send comments, identified by RIN 0420-AA27, by any 
of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for sending comments.
     Email: [email protected]. Include RIN 0420-AA27 in the 
subject line of the message.
     Mail: The Peace Corps/The Office of General Counsel/1275 
First Street NE/Washington, DC 20526.
    Instructions: All submissions received must include the receiving 
agency's name, which is the Peace Corps, designate the Office of 
General Counsel, and note the Regulatory Information Number (RIN) for 
this rulemaking.

FOR FURTHER INFORMATION CONTACT: David van Hoogstraten, (202) 692-2150, 
[email protected].
    Background: The Peace Corps is an independent government agency 
that was legislatively established in 1961 by the Peace Corps Act. 
Separately, in 1973, the Domestic Volunteer Service Act (Pub. L. 93-
113) established domestic volunteer programs, such as VISTA, and joined 
the Peace Corps with those domestic volunteer programs under an 
umbrella organization called ACTION.
    In 1979, the Domestic Volunteer Service Act Amendments (Pub. L. 96-
143) extended the nondiscrimination policies and authorities set forth 
in Title VII of the Civil Rights Act of 1964, Title V of the 
Rehabilitation Act of 1973, and the Age Discrimination Act of 1975 to 
applicants for enrollment and volunteers serving under both the Peace 
Corps Act and the Domestic Volunteer Service Act. That section further 
directed that any remedies available to individuals under such laws, 
other than the right to appeal to the Equal Employment Opportunity 
Commission, would be available to such applicants or volunteers. 
Congress, in extending the non-discrimination protections to the 
volunteers, required that the Directors of ACTION and Peace Corps 
prescribe regulations specifically tailored to the circumstances of 
such volunteers. This mandate led to the promulgation of the rules in 
45 CFR 1225, which applied to both Peace Corps volunteers and domestic 
volunteers (and applicants for such volunteer service) who filed 
complaints of discrimination. At that time, a section was also added to 
the Peace Corps' regulations, at 22 CFR 300, et seq, entitled Volunteer 
Discrimination Complaint Procedure, which only contains a cross 
reference to 45 CFR 1225 (see 22 CFR 306).
    In December of 1981, Congress again separated the Peace Corps from 
domestic volunteers, and removed it from the umbrella of ACTION (Pub. 
L. 97-113). In the Domestic Volunteer Service Act Amendment of 1984, 
Pub. L. 98-288, sec. 30a (codified at 42 U.S.C. 5057), Congress 
expressly removed the Peace Corps from being subject to Title VII of 
the Civil Rights Act and the other non-discrimination statutes. 
However, conforming amendments by ACTION (now subsumed by the 
Corporation for National and Community Service) were not made to 45 CFR 
1225 to remove references to the Peace Corps.
    At this time, the Peace Corps seeks to update its regulations to 
reflect the current statutory framework applicable to Peace Corps 
volunteers and applicants, by striking references to the Peace Corps 
from 45 CFR 1225, and adding a revised non-discrimination process into 
the Peace Corps regulations in 22 CFR 306.

[[Page 81855]]


SUPPLEMENTARY INFORMATION: The Peace Corps Act (22 U.S.C. 2501, et 
seq.) establishes the Peace Corps and sets forth the requirements for 
program operations, including those for selecting volunteers. The Act 
states that ``except as provided in [the Act], volunteers shall not be 
deemed officers or employees or otherwise in the service or employment 
of, or holding office under, the United States for any purpose. In 
carrying out this subsection, there shall be no discrimination against 
any person on account of race, sex, creed, or color.''
    Because Peace Corps volunteers are not considered federal employees 
or otherwise in the service or employment of the United States for any 
purpose not specified in the Peace Corps Act, the regulations 
implementing Section 717 of the Civil Rights Act of 1964 (and other 
nondiscrimination policies and authorities), and the right to appeal to 
the Equal Employment Opportunity Commission, do not apply to 
volunteers.
    These regulations were first promulgated to ensure that volunteers 
had a process to make complaints regarding discriminatory conduct 
proscribed by the Peace Corps Act and the Peace Corps' policy. The 
regulations are now being updated and revised to reflect current best 
practices.
    The proposed rule would revise and update rules for volunteer 
discrimination complaint processing, which were last published in the 
Federal Register on January 6, 1981, and entered into effect on January 
6, 1981, and currently appear at 45 CFR part 1225, which is cross 
referenced in 22 CFR part 306.

Request for Comments

    The Peace Corps invites public comment on all aspects of this 
proposed rule and will take those comments into account before 
publishing a final rule. The proposed rule makes adjustments for 
clarification, efficiency, and streamlines the language of some 
procedural provisions and makes the following key changes:

22 CFR 306

    (1) Purpose. Sec.  306.1 is a revision of 45 CFR 1225.1. It changes 
and expands the list of protected classes that can be considered as a 
basis for filing claims of discrimination, and includes the Peace Corps 
Inspector General as an additional avenue for filing claims of 
discrimination.
    (2) Policy. Sec.  306.2 is a revision of 45 CFR 1225.2. It amends 
the language setting forth how the Peace Corps will respond to cases in 
which discrimination was found and adds that Peace Corps staff members 
are required to participate in investigations.
    (3) Definitions. Sec.  306.3 is a revision of 45 CFR 1225.3. It 
expands the definition of ``volunteer'' to include persons who were 
sworn in as volunteers but are no longer in service; conforms changes 
to titles such as the Director of the Office of Civil Rights and 
Diversity (instead of E.O. Director); adds definitions for words used 
in the regulations, such as ``counselor'' and ``filing date''; and 
revises other definitions to reflect current roles and practices.
    (4) Coverage. Sec.  306.4 is a revision of 45 CFR 1225.4. It 
addresses the consolidation of claims under a single complaint, as well 
as complaints that fall under separate Peace Corps administrative 
processes. The revision clarifies that these regulations do not create 
any new rights of action or jurisdiction before U.S. courts.
    (5) Representation. Sec.  306.5 is a revision of 45 CFR 1225.5. It 
abridges the current section on representation and removes language 
that is no longer pertinent.
    (6) Freedom from Retaliation. Sec.  306.6 is a restatement of 45 
CFR 1225.6 with no significant changes other than changing the word 
reprisal to retaliation and consolidating a number of behaviors under 
the term retaliation.
    (7) Review of Allegations of Retaliation. Sec.  306.7 is a 
restatement of 45 CFR 1225.7, and it additionally grants the OCRD 
Director discretion in consolidating claims.
    (8) Pre-complaint procedure. Sec.  306.8 replaces the current 45 
CFR 1225.8. It is a step-by-step explanation of the process followed 
when an individual files an initial complaint of discrimination, which 
is also known as the ``counseling'' or ``informal'' stage, and is 
geared toward reaching a mutual resolution between the complainant and 
the agency. The new section specifies timetables to be followed, 
responsibilities of specific agency officers, and notifications that 
need to be provided to the individual and to relevant staff.
    (9) Complaint Procedure. Sec.  306.9 replaces the current 45 CFR 
1225.9. It is a step-by-step explanation of the process to be followed 
when an individual files a formal complaint of discrimination, which 
involves an investigation and a final agency decision. The new section 
specifies standards for acceptance and dismissal, timetables to be 
followed, responsibilities of specific agency officers, and 
notifications that need to be provided to the individual and to 
relevant staff. It also outlines the timeframe and process for 
appealing a proposed final agency decision to the Director of the Peace 
Corps.
    (10) Corrective Action. Sec.  306.10 is a restatement of 45 CFR 
1225.10 with no changes other than removing a provision about 
attorney's fees. Sections 1225.11 through 1225.21 were stricken in 
their entirety.

45 CFR 1225

    The proposed edits are technical in nature. For example, they 
remove any references to the Peace Corps, the Director of Peace Corps, 
or the Peace Corps Act throughout the section, and replace references 
to ACTION with Corporation for Community and National Service (CNCS) 
and AmeriCorps and SeniorCorps.

Regulatory Certifications

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
E.O. 12866, ``Regulatory Planning and Review,'' section 1(b), 
Principles of Regulation, and in accordance with E.O. 13563, 
``Improving Regulation and Regulatory Review,'' section 1(b), General 
Principles of Regulation, and the Office of Management and Budget, 
Office of Information and Regulatory Affairs has determined it to be 
non-significant within the meaning of E.O. 12866. Additionally, because 
this rule does not meet the definition of a significant regulatory 
action, it does not trigger the requirements contained in E.O. 13771. 
See OMB's Memorandum titled ``Interim Guidance Implementing Section 2 
of the E.O. of January 30, 2017, titled `Reducing Regulation and 
Controlling Regulatory Costs' '' (February 2, 2017), supplemented by 
OMB's Memorandum titled ``Implementing E.O. 13771, Titled `Reducing 
Regulation and Controlling Regulatory Costs.' ''

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

    This regulatory action will not have a significant adverse impact 
on a substantial number of small entities.

Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)

    This regulatory action does not contain a Federal mandate that will 
result in the expenditure by State, local, and tribal governments, in 
aggregate, or by the private sector, of $100,000,000 or more in any one 
year, and it will not significantly or uniquely affect small 
governments.

[[Page 81856]]

Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

Federalism (Executive Order 13132)

    This regulatory action does not have Federalism implications, as 
set forth in E.O. 13132. It will not have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 22 CFR Part 306 and 45 CFR Part 1225

    Volunteer Discrimination Complaint Procedures.

Title 22

Peace Corps

0
1. For the reasons set out in the preamble, the Peace Corps proposes to 
revise 22 CFR Part 306 as follows:

Part 306--Volunteer Discrimination Complaint Procedure

Secs.
Subpart A. General Provisions
306.1 Purpose.
306.2 Policy.
306.3 Definitions.
306.4 Coverage.
306.5 Representation.
306.6 Freedom from Retaliation.
306.7 Review of Allegations of Retaliation.
Subpart B. Processing Individual Complaints of Discrimination
306.8 Pre-complaint Procedure.
306.9 Complaint Procedure.
306.10 Corrective Action.

    Authority: 22 U.S.C. 2501 et seq.

PART 306--VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE

Subpart A--General Provisions


Sec.  306.1  Purpose.

    The purpose of this Part is to establish a procedure for the 
filing, investigation, and administrative determination of allegations 
of discrimination (including harassment) based on race, color, 
religion, sex, national origin, age (40 or over), disability or other 
bases provided for in applicable statutes, regulations or the Peace 
Corps Manual or history of participation in the Peace Corps 
discrimination complaint process which arise in connection with the 
recruitment, selection, placement, service, or termination of 
applicants, Trainees, or Volunteers. In addition, any Peace Corps 
applicant, Trainee, or Volunteer may submit an allegation of 
discrimination to the Peace Corps Office of Inspector General at any 
time, and the allegation will be processed in accordance with policy 
and procedures of the Office of Inspector General.


Sec.  306.2  Policy.

    (a) In the recruitment, selection, placement, service, and 
termination of Peace Corps Trainees and Volunteers, it is the policy of 
the Peace Corps to provide equal opportunity for all persons and to 
prohibit discrimination based on race, color, religion, sex, national 
origin, age (40 or over), disability, and other bases provided for in 
applicable statutes, regulations or the Peace Corps Manual, or history 
of participation in the Peace Corps discrimination complaint process.
    (b) It is the policy of the Peace Corps, upon a determination that 
such prohibited discrimination has occurred, to take appropriate 
corrective action to remedy the discrimination and to prevent its 
recurrence.
    (c) It is the policy of the Peace Corps that all agency staff must 
cooperate in the investigation of a complaint. Volunteers and Trainees 
are strongly encouraged to cooperate.


Sec.  306.3  Definitions.

    Unless the context requires otherwise, in this Part:
    (a) ``Director'' means the Director of the Peace Corps.
    (b) ``OCRD Director'' means the Director of the Peace Corps' Office 
of Civil Rights and Diversity.
    (c) ``Prohibited discrimination'' means discrimination (including 
harassment) on the basis of race, color, religion, sex, national 
origin, age (40 or over), disability, or other bases provided for in 
applicable statutes, regulations or the Peace Corps Manual, or history 
of participation in the Peace Corps discrimination complaint process.
    (d) ``Applicant'' means a person who has submitted a completed 
application required for consideration of eligibility for Peace Corps 
Volunteer service. ``Applicant'' may also mean a person who alleges 
that the actions of agency personnel precluded them from submitting 
such an application or any other information reasonably required by the 
appropriate personnel as necessary for a determination of the 
individual's eligibility for Volunteer service.
    (e) ``Trainee'' means a person who has accepted an invitation 
issued by the Peace Corps and has registered for Peace Corps staging.
    (f) ``Volunteer'' means a person who has taken the oath of service 
and been sworn in for Peace Corps service, whether or not this person 
is still in Peace Corps service.
    (g) ``Complainant'' means an aggrieved applicant, Trainee, or 
Volunteer who believes they have been subject to prohibited 
discrimination and files a formal complaint.
    (h) ``Complaint'' means a written statement signed by a Complainant 
alleging prohibited discrimination and submitted to the OCRD Director, 
as described in section 306.9(a) of this Part.
    (i) ``File(d) Date'' means the date a Complaint is received by the 
appropriate agency official.
    (j) ``Counselor'' means an official designated by the OCRD Director 
to perform an informal inquiry focused on possible resolution as 
detailed in this Part.
    (k) ``Final Agency Decision (FAD)'' means the Peace Corps' final 
written determination on a Complaint.


Sec.  306.4  Coverage.

    (a) Except as set out below, these procedures apply to all Peace 
Corps applicants, Trainees, and Volunteers.
    (1) To the extent that a Trainee or Volunteer makes a complaint 
containing an allegation of prohibited discrimination in connection 
with conduct that constitutes sexual misconduct as defined in the Peace 
Corps' policy on Volunteer sexual misconduct.
    (2) When an applicant, Trainee, or Volunteer makes a complaint 
which contains an allegation of prohibited discrimination in connection 
with an early termination or other administrative procedure of the 
agency, only the allegation of prohibited discrimination will be 
processed under this Part. At the discretion of the OCRD Director, 
additional allegations or claims material to the complaint may be 
consolidated with the discrimination complaint for processing under 
these regulations. Any issues which are not so consolidated will 
continue to be processed under those procedures pursuant to which they 
were originally raised.
    (3) Complaints of retaliation in connection with allegations made 
under the Peace Corps Volunteer Confidentiality Protection policy shall 
be handled in accordance with that policy.
    (b) The OCRD Director has the discretion to consolidate complaints 
from different applicants, Trainees, or Volunteers that allege common 
underlying facts and similar claims.

[[Page 81857]]

    (c) These regulations do not create any right or benefit, 
substantive or procedural, enforceable at law or in equity by any party 
against the United States, its departments, agencies, or entities, its 
officers, employees, or agents, or any other person. Coverage under 
these rules does not constitute acceptance by the agency or the United 
States Government of jurisdiction for judicial review.


Sec.  306.5  Representation.

    Any aggrieved party may be assisted in all stages of these 
procedures under this Part by an attorney or non-staff representative 
of his or her own choosing at his or her own expense. An aggrieved 
party must immediately inform the agency if representation is retained.


Sec.  306.6  Freedom from Retaliation.

    Aggrieved parties, their representatives, and witnesses will be 
free from retaliation at any stage in the presentation and processing 
of a complaint under this section, including the counseling stage 
described in 306.8 of this Part, or any time thereafter.


Sec.  306.7  Review of Allegations of Retaliation.

    (a) An aggrieved party, his or her representative, or a witness who 
alleges retaliation in connection with the presentation of a complaint 
under this Part, may, if covered by this Part, request in writing that 
the allegation be reviewed as an act of discrimination subject to the 
procedures described in Subpart B or that the allegation be considered 
as an issue in the complaint at hand. The determination whether to 
consider the complaint in the same or a separate proceeding is within 
the discretion of the OCRD Director.

Subpart B--Processing Individual Complaints of Discrimination


Sec.  306.8  Pre-complaint procedure.

    (a) Any applicant, Trainee or Volunteer who believes that he or she 
has been subject to prohibited discrimination must bring such 
allegations to the attention of OCRD within 60 days of the alleged 
discrimination, at which point a Counselor will be assigned to attempt 
to resolve them.
    (b) The pre-complaint procedure is intended to determine whether 
the concerns of the aggrieved party can be resolved to the mutual 
satisfaction of the aggrieved party and the agency without the filing 
of a formal complaint.
    (c) The Counselor serves as a neutral party, to gather a limited 
amount of information from the aggrieved party about his or her 
allegations, explain to the aggrieved party his or her rights, obtain 
information to determine the applicability of this regulation, and 
where appropriate, attempt an informal resolution among relevant 
parties.
    (d) The amount of information that the Counselor gathers from the 
agency is limited to information needed to reach an informal resolution 
to the mutual satisfaction of the aggrieved party and the agency.
    (e) The Counselor will keep a written record of his or her 
activities, which will be submitted to the OCRD Director as a 
Counselor's report.
    (f) To the extent necessary to reach an informal resolution, the 
Counselor may reveal to relevant agency officials the identity of the 
aggrieved party. In the event that the aggrieved party requests that 
the Counselor not share his or her identity with agency officials, the 
Counselor will not reveal the identity of the aggrieved party (or 
information that could be used to easily identify the aggrieved party) 
outside of OCRD. If appropriate, the Counselor should explain to the 
aggrieved party that an informal resolution and/or the scope of relief 
available may be limited as a result of the request for anonymity.
    (g) The pre-complaint process should be completed within 30 days, 
but the OCRD Director may extend the period upon request of the 
aggrieved party or the agency for good cause shown.
    (h) If, after inquiry and counseling, an informal resolution to the 
allegation is not reached, the Counselor will notify the aggrieved 
party in writing of the right to file a formal complaint of 
discrimination with the OCRD Director within 30 calendar days of the 
aggrieved party's receipt of the notice.
    (i) As an alternative to assignment of a Counselor as described 
above, the aggrieved party may ask for Alternative Dispute Resolution 
as set out in the Peace Corps' policy. In such a case, the parties have 
90 days to attempt in good faith to reach an informal resolution of the 
allegation. At any time during the course of Alternative Dispute 
Resolution, the aggrieved party or the Responsible Management Official 
(or their Supervisor), in consultation with the Office of the General 
Counsel, may terminate those proceedings.


Sec.  306.9  Complaint Procedure.

    (a) An applicant, Trainee or Volunteer who wishes to file a formal 
complaint must do so within 30 days of receiving the notice set out in 
306.8(g) above, by filing a signed complaint in writing with OCRD. A 
complaint must set forth specifically:
    (1) A detailed description, including names and dates, if possible, 
of the actions of the Peace Corps officials or other persons which 
resulted in the alleged prohibited discrimination;
    (2) The manner in which the Peace Corps' action directly affected 
the complainant; and
    (3) The relief sought.
    (b) A complaint that does not conform to the above requirements 
will nevertheless be deemed to have been received by the OCRD, and the 
complainant will be notified of the steps necessary to correct the 
deficiencies of the complaint. The complainant will have 30 days from 
receipt of notification that the complaint is defective to submit an 
amended complaint.
    (c) The OCRD Director must accept a complaint if the process set 
forth above has been followed, and the complaint states a covered claim 
of prohibited discrimination. The OCRD Director may extend the time 
limits set out above:
    (1) When the complainant shows that they were not notified of the 
time limits and were not otherwise aware of them;
    (2) The complainant shows that they were prevented by circumstances 
beyond their control from submitting the matter in a timely fashion; or
    (3) For other reasons considered sufficient by the OCRD Director.
    (d) At any time during the complaint procedure, the OCRD Director 
may dismiss a complaint based on the aggrieved party's failure to 
prosecute the complaint. However, this action may be taken only after:
    (1) The OCRD Director has made a written request, including notice 
of the proposed dismissal, that the Complainant provide certain 
information or otherwise proceed with the complaint; and
    (2) 30 days have elapsed since the sending of the request.
    If the complaint is rejected for failure to meet one or more of the 
requirements set out in the procedure outlined in 306.8 or is 
dismissed, the OCRD Director will inform the aggrieved party in writing 
of this FAD, advising that the Peace Corps will take no further action.
    (e) Upon acceptance of the complaint and receipt of the Counselor's 
report, the OCRD Director will provide for a prompt impartial 
investigation of the complaint. The OCRD may employ a Peace Corps 
employee or external party to conduct the investigation. If a Peace 
Corps employee is selected to investigate the complaint, the person 
assigned to investigate the complaint may not occupy a position in the 
agency which is, directly or indirectly, under the jurisdiction of the 
head of that part of the agency in which the complaint

[[Page 81858]]

arose. The investigation will include a review of the circumstances 
under which the alleged discrimination occurred, and any other 
circumstances which may constitute, or appear to constitute, 
discrimination against the complainant.
    (f) Agency officials responsible for providing information relating 
to the complaint to the investigator will be provided such information 
about the complaint as they may need in order to respond appropriately. 
For example, responding agency officials who have a need to know may be 
provided with information including the identity of the complainant and 
statements of the alleged discriminatory basis and adverse action.
    (g) In cases where sensitive and/or protected information about 
applicants, Trainees, or Volunteers (other than the complainant) is 
requested or involved, agency officials may only disclose such 
information that is directly relevant to claim(s) being investigated, 
and must ensure that such information is handled in such a manner that 
the privacy of the applicants, Trainees, or Volunteers in question is 
fully protected, in accordance with the Peace Corps' policy on 
confidentiality of Volunteer information.
    (h) Every agency official responsible for providing information 
relating to the complaint to the investigator may at any point consult 
the Office of the General Counsel and/or his or her supervisor, unless 
the supervisor is alleged to have been involved in the conduct that is 
the subject of the complaint. Agency officials responsible for 
providing information to the investigator shall only provide 
information based on personal knowledge, and should not seek to align 
or conform his or her statement with that of another responding agency 
official.
    (i) The investigator will compile a report of investigation (ROI) 
and forward the ROI to the OCRD Director. The OCRD Director will 
arrange for preparation of a draft FAD, which will be in writing, state 
the reasons underlying the decision, recommend corrective action if and 
as appropriate, and advise the complainant of the right to appeal the 
recommended FAD to the Peace Corps Director, or designee. To the extent 
feasible, this will be completed within 120 days of the filing of the 
complaint. However, the OCRD Director has discretion to extend the 
period.
    (j) The OCRD Director will issue the proposed FAD to the 
complainant with a copy of the ROI.
    (k) Within ten calendar days of receipt of such proposed FAD, the 
complainant may submit his or her appeal of the proposed disposition to 
the Peace Corps Director, or designee.
    (l) The Peace Corps Director, or designee, will, to the extent 
feasible, decide the issue within 45 days of the date of receipt of the 
appeal. The claimant will be informed in writing of the decision and 
its basis and advised that it is the FAD regarding the complaint.
    (m) Where a complainant does not submit a timely appeal pursuant to 
(k) above, the OCRD Director will issue the proposed FAD as the FAD.
    (n) The OCRD Director will inform relevant management officials as 
to whether or not prohibited discrimination was found in the FAD.


Sec.  306.10  Corrective Action.

    When the agency's FAD states that the aggrieved party has been 
subjected to prohibited discrimination, the following corrective 
actions may be taken:
    (a) Selection as a trainee for an otherwise qualified complainant 
found to have been denied selection based on prohibited discrimination.
    (b) Reinstatement to Volunteer service for a complainant found to 
have been early-terminated as a result of prohibited discrimination. To 
the extent possible, a terminated Volunteer will be placed in the same 
position previously held. However, reinstatement to the specific 
country of prior service, or to the specific position previously held 
is contingent on programmatic considerations, including but not limited 
to the continued availability of the position or program in that 
country, and acceptance by the host country of such placement. If the 
same position is deemed to be no longer available, the aggrieved party 
will be offered reenrollment in a position in as similar as possible 
circumstances to the position previously held, or will be given 
interrupted service status. A reenrollment may require a medical 
clearance and/or other clearances, and both additional training and an 
additional two year commitment to Volunteer service.
    (c) Such other relief as may be deemed appropriate by the Peace 
Corps.

Title 45

Corporation for National Community Service

0
2. For the reasons set out in the preamble, the Corporation for 
National Community Service proposes to add 45 CFR part 1225 to read as 
follows:

PART 1225--MEMBER AND VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE

Secs.
Subpart A. General Provisions
1225.1 Purpose.
1225.2 Policy.
1225.3 Definitions.
1225.4 Coverage.
1225.5 Representation.
1225.6 Freedom from Reprisal.
1225.7 Review of Allegations of Reprisal.
Subpart B. Processing Individual Complaints of Discrimination
1225.8 Precomplaint Procedure.
1225.9 Complaint Procedure.
1225.10 Corrective Action.
1225.11 Amount of Attorney Fees.
Subpart C. Processing Class Complaints of Discrimination
1225.12 Precomplaint Procedure.
1225.13 Acceptance, Rejection or Cancellation of a Complaint.
1225.14 Consolidation of Complaints.
1225.15 Notification and Opting Out.
1225.16 Investigation and Adjustment of Complaint.
1225.17 Agency Decision.
1225.18 Notification of Class Members of Decision.
1225.19 Corrective Action.
1225.20 Claim Appeals.
1225.21 Judicial Review.

    Authority: 42 U.S.C. 5057(d), 12635(d), and 12651(c).

PART 1225--MEMBER AND VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE

Subpart A--General Provisions


Sec.  1225.1  Purpose.

    The purpose of this part is to establish a procedure for the 
filing, investigation, and administrative determination of allegations 
of discrimination based on race, color, national origin, religion, age, 
sex, disability or political affiliation, which arise in connection 
with the recruitment, selection, placement, service, or termination of 
AmeriCorps and AmeriCorps Seniors applicants, candidates, Members and 
Volunteers for part time and full time service, as appropriate.


Sec.  1225.2  Policy.

    It is the policy of the Corporation for National and Community 
Service (CNCS) to provide equal opportunity in all its national service 
programs for all persons and to prohibit discrimination based on race, 
color, national origin, religion, age, sex, disability or political 
affiliation in the recruitment, selection, placement, service, and 
termination of AmeriCorps and AmeriCorps Seniors applicants, 
candidates, Members and

[[Page 81859]]

Volunteers. It is the policy of CNCS, upon determining that such 
prohibited discrimination has occurred, to take all necessary 
corrective action to remedy the discrimination, and to prevent its 
recurrence.


Sec.  1225.3  Definitions.

    Unless the context requires otherwise, in this Part:
    (a) ``CEO'' means the Chief Executive Officer of CNCS. The term 
shall also refer to any designee of the CEO.
    (b) ``EEOP Director'' means the Director of the Equal Employment 
Opportunity Program of CNCS. The term shall also refer to any designee 
of the EEOP Director.
    (c) ``Illegal discrimination'' means discrimination on the basis of 
race, color, national origin, religion, age, sex, disability or 
political affiliation as defined in Title VI of the Civil Rights Act of 
1964 (42 U.S.C. 2000e et seq.); Title V of the Rehabilitation Act of 
1973 (29 U.S.C. 791, et seq.); the Age Discrimination Act of 1975 (42 
U.S.C 6101, et seq.), Section 175 of the National and Community Service 
Act of 1990, as amended, and Section 5057 of the Domestic Volunteer 
Service Act of 1973, as amended. Further clarification of the scope of 
matters covered by this definition may be obtained by referring to the 
following regulations: Sex Discrimination: 29 CFR part 1604; Religious 
Discrimination: 29 CFR part 1605; National Origin Discrimination: 29 
CFR part 1606; Age Discrimination: 45 CFR part 90; Disability 
Discrimination: 29 CFR 1630.
    (d) ``Applicant'' means a person who has submitted a completed 
application required for consideration of eligibility for CNCS national 
service as a Member or Volunteer. ``Applicant'' may also mean a person 
who alleges that the actions of recipient or subrecipient organization 
staff, or agency personnel precluded him or her from submitting such an 
application or any other information reasonably required by CNCS as 
necessary for a determination of the individual's eligibility for 
national service.
    (e) ``Candidate'' means a person who has accepted an offer to 
commence service as a Member or Volunteer but has not yet enrolled for 
service in a CNCS national service program.
    (f) ``AmeriCorps Member'' means a person who serves in a national 
service position for which a Segal AmeriCorps Education Award could be 
provided.
    (g) ``AmeriCorps Seniors Volunteer'' means a person who serves as a 
volunteer through a program funded under Title II of the DVSA, 
including the Retired Senior Volunteer Program, the Foster Grandparent 
Program, and the Senior Companion Program.
    (h) ``Complaint'' means a written statement signed by the 
complainant and submitted to the EEOP Director. A complaint shall set 
forth specifically and in detail:
    (1) A description of the management policy or practice during the 
application stage as an applicant, during the candidacy stage as a 
Candidate, or during the service stage as a Member or Volunteer, if 
any, giving rise to the complaint;
    (2) A detailed description including names and dates, if possible, 
of the actions of CNCS, recipients or subrecipients of CNCS assistance 
or resources, or the officials of those recipients or subrecipients, 
which resulted in the alleged illegal discrimination;
    (3) The manner in which the action of CNCS, or the CNCS recipient 
or subrecipient, directly affected the complainant; and
    (4) The relief sought.
    A complaint shall be deemed filed on the date it is received by the 
appropriate agency official. When a complaint does not conform with the 
above definition, it shall nevertheless be accepted. The complainant 
shall be notified of the steps necessary to correct the deficiencies of 
the complaint. The complainant shall have 30 days from his or her 
receipt of notification of the complaint defects to resubmit an amended 
complaint.
    (i) ``Counselor'' means an official designated by the EEOP Director 
to perform the functions of conciliation as detailed in this part.
    (j) ``Agent'' means a class member who acts for the class during 
the processing of a class complaint. In order to be accepted as the 
agent for a class complaint, in addition to those requirements of a 
complaint found in 1225.3(g) of this part, the complaint must meet the 
requirements for a class complaint as found in Subpart C of these 
regulations.


Sec.  1225.4  Coverage.

    (a) These procedures apply to all CNCS national service applicants, 
candidates, Members and Volunteers throughout their term of service 
with CNCS, or with recipients and subrecipients of CNCS assistance or 
resources. When an applicant, candidate, Member or Volunteer makes a 
complaint which contains an allegation of illegal discrimination in 
connection with an action that would be otherwise be processed under a 
grievance, early termination, or other administrative system of the 
agency, the allegation of illegal discrimination shall be processed 
under this Part. At the discretion of the EEOP Director, any other 
issues raised may be consolidated with the discrimination complaint for 
processing under these regulations. Any issues which are not so 
consolidated shall continue to be processed under those procedures in 
which they were originally raised.
    (b) The submission of class complaints alleging illegal 
discrimination as defined above will be handled in accordance with the 
procedure outlined in Subpart C.


Sec.  1225.5  Representation.

    Any aggrieved party may be represented and assisted in all stages 
of these procedures by an attorney or representative of his or her own 
choosing. An aggrieved party must immediately inform the agency if 
counsel is retained. Attorney fees or other appropriate relief may be 
awarded in the following circumstances; (a) Informal adjustment of a 
complaint. An informal adjustment of a complaint may include an award 
of attorney fees or other relief deemed appropriate by the EEOP 
Director. Where the parties agree on an adjustment of the complaint, 
but cannot agree on whether attorney fees or costs should be awarded, 
or on their amount, this issue may be appealed to the CEO, or their 
designee, in the manner detailed in 1225.11 of this Part. (b) Final 
Agency Decision. When discrimination is found, the CEO, or their 
designee, shall advise the complainant that any request for attorney 
fees or costs must be documented and submitted for review within 20 
calendar days after his or her receipt of the final agency decision. 
The amount of such awards shall be determined under 1225.11. In the 
unusual situation in which it is determined not to award attorney fees 
or other costs to a prevailing complainant, the CEO, or their designee, 
in his or her final decision shall set forth the specific reasons 
thereof.


Sec.  1225.6  Freedom from Reprisal.

    Aggrieved parties, their representatives, and witnesses will be 
free from restraint, interference, coercion, discrimination, or 
reprisal at any stage in the presentation and processing of a 
complaint, including the counseling stage described in 1225.8 of this 
part, or any time thereafter.


Sec.  1225.7  Review of Allegations of Reprisal.

    An aggrieved party, his or her representative, or a witness who 
alleges restraint, interference, coercion, discrimination, or reprisal 
in connection

[[Page 81860]]

with the presentation of a complaint under this part, may if covered by 
this part, request in writing that the allegation be reviewed as an 
individual complaint of discrimination subject to the procedures 
described in Subpart B or that the allegation be considered as an issue 
in the complaint at hand.

Subpart B--Processing Individual Complaints of Discrimination


Sec.  1225.8  Precomplaint Procedure.

    (a) An aggrieved person who believes that he or she has been 
subject to illegal discrimination shall bring such allegations to the 
attention of the appropriate Counselor within 30 days of the alleged 
discrimination to attempt to resolve them. Aggrieved applicants, 
candidates, Members, and Volunteers applying for, or enrolled in 
programs operated by CNCS, or by recipients or subrecipients of CNCS 
assistance or resources, shall direct their allegations to the 
designated Counselor.
    (b) Upon receipt of the allegation, the Counselor or designee shall 
make whatever inquiry is deemed necessary into the facts alleged by the 
aggrieved party and shall counsel the aggrieved party for the purpose 
of attempting an informal resolution agreeable to all parties. The 
Counselor will keep a written record of his or her activities which 
will be submitted to the EEOP Director if a formal complaint concerning 
the matter is filed.
    (c) If after such inquiry and counseling an informal resolution to 
the allegation is not reached, the Counselor shall notify the aggrieved 
party in writing of the right to file a complaint of discrimination 
with the EEOP Director within 15 calendar days of the aggrieved party's 
receipt of the notice.
    (d) The Counselor shall not reveal the identity of the aggrieved 
party who has come to him or her for consultation, except when 
authorized to do so by the aggrieved party. However, the identity of 
the aggrieved party may be revealed once the agency has accepted a 
complaint of discrimination from the aggrieved party.


Sec.  1225.9  Complaint Procedure.

    (a) The EEOP Director must accept a complaint if the process set 
forth above has followed, and the complaint states a charge of illegal 
discrimination. The agency will extend the time limits set herein (a) 
when the complainant shows that he or she was not notified of the time 
limits and was not otherwise aware of them, or (b) the complainant 
shows that he or she was prevented by circumstances beyond his or her 
control from submitting the matter in a timely fashion, or (c) for 
other reasons considered sufficiently by the agency. At any time during 
the complaint procedure, the EEOP Director may cancel a complaint 
because of failure of the aggrieved party to prosecute the complaint. 
If the complaint is rejected for failure to meet one or more of the 
requirements set out in the procedure outlined in 1225.8 or is 
cancelled, the EEOP Director shall inform the aggrieved party in 
writing of this Final Agency Decision: That CNCS will take no further 
action; and of the right, to file a civil action as described in 
1225.21 of this part.
    (b) Upon acceptance of the complaint and receipt of the Counselor's 
report, the EEOP Director shall provide for the prompt investigation of 
the complaint. Whenever possible, the person assigned to investigate 
the complaint shall occupy a position in the agency which is not, 
directly or indirectly, under the jurisdiction of the head of that part 
of the agency in which the complaint arose. The investigation shall 
include a thorough review of the circumstances under which the alleged 
discrimination occurred, and any other circumstances which may 
constitute, or appear to constitute discrimination against the 
complainant. The investigator shall compile an investigative file, 
which includes a summary of the investigation, recommended findings of 
fact and a recommended resolution of the complaint. The investigator 
shall forward the investigative file to the EEOP Director and shall 
provide the complainant with a copy.
    (c) The EEOP Director shall review the complaint file including any 
additional statements provided by the complainant, make findings of 
fact, and shall offer an adjustment of the complaint if the facts 
support the complaint. If the proposed adjustment is agreeable to all 
parties, the terms of the adjustment shall be reduced to writing, 
signed by both parties, and made part of the complaint file. A copy of 
the terms of the adjustment shall be provided to the complainant. If 
the proposed adjustment of the complaint is not acceptable to the 
complainant, or the EEOP Director determines that such an offer is 
inappropriate, the EEOP Director shall forward the complaint file with 
a written notification of the findings of facts, and his or her 
recommendations of the proposed disposition of the complaint to the CEO 
or their designee. The aggrieved party shall receive a copy of the 
notification and recommendation and shall be advised of the right to 
appeal the recommended disposition to the CEO or their designee. Within 
ten (10) calendar days of receipt of such notice the complainant may 
submit his or her appeal of the recommended disposition to the CEO or 
their designee.
    (d) Appeal to CEO. If no timely notice of appeal is received from 
the aggrieved party, the CEO or their designee may adopt the proposed 
disposition as the Final Agency Decision. If the aggrieved party 
appeals, the CEO, or a designee who has been delegated authority to 
issue such a decision, after review of the total complaint file, shall 
issue a decision to the aggrieved party. The decision of the CEO, or 
their designee, shall be in writing, state the reasons underlying the 
decision, shall be the Final Agency Decision, shall inform the 
aggrieved party of the right to file a civil action as described in 
1225.21 of this part, and, if appropriate, designate the procedure to 
be followed for the award of attorney fees or costs.


Sec.  1225.10  Corrective Action.

    When it has been determined by Final Agency Decision that the 
aggrieved party has been subjected to illegal discrimination, the 
following corrective actions may be taken:
    (a) Selection as a Member or Volunteer for aggrieved parties found 
to have been denied selection based on prohibited discrimination.
    (b) Reappointment to national service for aggrieved parties found 
to have been early-terminated as a result of prohibited discrimination. 
To the extent possible, a Member or Volunteer will be placed in the 
same position previously held. However, reassignment to the specific 
position previously held is contingent on several programmatic 
considerations such as the continued availability of the position. If 
the same position is deemed to be no longer available, the aggrieved 
party will be offered a reassignment to a position in as similar 
circumstances to the position previously held, or to resign from 
service for reasons beyond his or her control. Such a reassignment may 
require both additional training and an additional commitment to 
national service.
    (c) Provision for reasonable attorney fees and other costs incurred 
by the aggrieved party.
    (d) Such other relief as may be deemed appropriate by the CEO or 
their designee.


Sec.  1225.11  Amount of Attorney Fees.

    (a) When a decision of the agency provides for an award of 
attorney's fees or costs, the complainant's attorney shall submit a 
verified statement of costs and attorney's fees as appropriate, to the 
agency within 20 days of receipt of the decision. A statement of

[[Page 81861]]

attorney's fees shall be accompanied by an affidavit executed by the 
attorney of record itemizing the attorney's charges for legal services. 
Both the verified statement and the accompanying affidavit shall be 
made a part of the complaint file. The amount of attorney's fees or 
costs to be awarded the complainant shall be determined by agreement 
between the complainant, the complainant's representative and the CEO 
or their designee. Such agreement shall immediately be reduced to 
writing. If the complainant, the representative and the agency cannot 
reach an agreement on the amount of attorney's fees or costs within 20 
calendar days of receipt of the verified statement and accompanying 
affidavit, the CEO or their designee shall issue a decision determining 
the amount of attorney fees or costs within 30 calendar days of receipt 
of the statement and affidavit. Such decision shall include the 
specific reasons for determining the amount of the award.
    (b) The amount of attorney's fees shall be made in accordance with 
the following standards: The time and labor required, the novelty and 
difficulty of the questions, the skills requisite to perform the legal 
service properly, the preclusion of other employment by the attorney 
due to acceptance of the case, the customary fee, whether the fee is 
fixed or contingent, time limitation imposed by the client or the 
circumstances, the amount involved and the results obtained, the 
experience, reputation, and ability of the attorney, the undesirability 
of the case, the nature and length of the professional relationship 
with the client, and the awards in similar cases.

Subpart C--Processing Class Complaints of Discrimination


Sec.  1225.12  Precomplaint Procedure.

    An applicant, candidate, Member or Volunteer who believes that he 
or she is among a group of present or former CNCS national service 
applicants, candidates, Members or Volunteers, who have been illegally 
discriminated against and who wants to be an agent for the class shall 
follow those precomplaint procedures outlined in 1225.8 of this part.


Sec.  1225.13  Acceptance, Rejection or Cancellation of a Complaint.

    (a) Upon receipt of a class complaint, the Counselor's report, and 
any other information pertaining to timeliness or other relevant 
circumstances related to the complaint, the EEOP Director shall review 
the file to determine whether to accept or reject the complaint, or a 
portion thereof, for any of the following reasons:
    (1) It was not timely filed;
    (2) It consists of an allegation which is identical to an 
allegation contained in a previous complaint filed on behalf of the 
same class which is pending in the agency or which has been resolved or 
decided by the agency;
    (3) It is not within the purview of this subpart;
    (4) The agent failed to consult a Counselor in a timely manner;
    (5) It lacks specificity and detail;
    (6) It was not submitted in writing or was not signed by the agent;
    (7) It does not meet the following prerequisites.
    (i) The class is so numerous that a consolidated complaint of the 
members of the class is impractical;
    (ii) There are questions of fact common to the class;
    (iii) The claims of the agent of the class are representative of 
the claims of the class;
    (iv) The agent of the class, or his or her representative will 
fairly and adequately protect the interest of the class.
    (b) If an allegation is not included in the Counselor's report, the 
EEOP Director shall afford the agent 15 calendar days to explain 
whether the matter was discussed and if not, why he or she did not 
discuss the allegation with the Counselor. If the explanation is not 
satisfactory, the EEOP Director may decide to reject the allegation. If 
the explanation is not satisfactory, the EEOP Director may require 
further counseling of the agent.
    (c) If an allegation lacks specificity and detail, or if it was not 
submitted in writing or not signed by the agent, the EEOP Director 
shall afford the agent 30 days from his or her receipt of notification 
of the complaint defects to resubmit an amended complaint. The EEOP 
Director may decide that the agency reject the complaint if the agent 
fails to provide such information within the specified time period. If 
the information provided contains new allegations outside the scope of 
the complaint, the EEOP Director must advise the agent how to proceed 
on an individual or class basis concerning these allegations.
    (d) The EEOP Director may extend the time limits for filing a 
complaint and for consulting with a Counselor when the agent, or his or 
her representative, shows that he or she was not notified of the 
prescribed time limits and was not otherwise aware of them or that he 
or she was prevented by circumstances beyond his or her control from 
acting within the time limit.
    (e) When appropriate, the EEOP Director may determine that a class 
be divided into subclasses and that each subclass be treated as a 
class, and the provisions of this section than shall be construed and 
applied accordingly.
    (f) The EEOP Director may cancel a complaint after it has been 
accepted because of failure of the agent to prosecute the complaint. 
This action may be taken only after:
    (1) The EEOP Director has provided the agent a written request, 
including notice of proposed cancellation, that he or she provide 
certain information or otherwise proceed with the complaint; and
    (2) within 30 days of his or her receipt of the request.
    (g) An agent must be informed by the EEOP Director in a request 
under paragraphs (b) or (c) of this section that his or her complaint 
may be rejected if the information is not provided.


Sec.  1225.14  Consolidation of Complaints.

    The EEOP Director may consolidate the complaint if it involves the 
same or sufficiently similar allegations as those contained in a 
previous complaint filed on behalf of the same class which is pending 
in the agency or which had been resolved or decided by the agency.


Sec.  1225.15  Notification and Opting Out.

    (a) Upon acceptance of a class complaint, the agency, within 30 
calendar days, shall use reasonable means such as delivery, mailing, 
distribution, or posting, to notify all class members of the existence 
of the class complaint.
    (b) A notice shall contain:
    (1) The name of the agency or organizational segment thereof, its 
location and the date of acceptance of the complaint:
    (2) A description of the issues accepted as part of the class 
complaint;
    (3) an explanation that class members may remove themselves from 
the class by notifying the agency within 30 calendar days after 
issuance of the notice; and
    (4) an explanation of the binding nature of the final decision or 
resolution of the complaint.


Sec.  1225.16  Investigation and Adjustment of Complaint.

    The complaint shall be processed promptly after it has been 
accepted. Once a class complaint has been accepted, the procedure 
outlined in 1225.9 of this part shall apply.


Sec.  1225.17  Agency Decision.

    (a) If an adjustment of the complaint cannot be made, the 
procedures outlined in 1225.9 shall be followed by

[[Page 81862]]

the EEOP Director except that any notice required to be sent to the 
aggrieved party shall be sent to the agent of the class or his or her 
representative.
    (b) The Final Agency Decision on a class complaint shall be binding 
on all members of the class.


Sec.  1225.18  Notification of Class Members of Decision.

    Class members shall be notified by the agency of the final agency 
decision and corrective action, if any, using at the minimum, the same 
media employed to give notice of the existence of the class complaint. 
The notice, where appropriate, shall include information concerning the 
rights of class members to seek individual relief and of the procedures 
to be followed. Notice shall be given by the Agency within ten (10) 
calendar days of the transmittal of its decision to the agent.


Sec.  1225.19  Corrective Action.

    (a) When discrimination is found. CNCS, or the recipient or 
subrecipient of CNCS assistance or resources, as appropriate, must take 
appropriate action to eliminate or modify the policy or practice out of 
which such discrimination arose, and provide individual corrective 
action to the agent and other class members in accordance with 1225.10 
of this part.
    (b) When discrimination is found and a class member believes that 
but for that discrimination he or she would have been accepted as a 
Member of Volunteer or received some other volunteer service benefit, 
the class member may file a written claim with the EEOP Director within 
thirty (30) calendar days of notification by the agency of its 
decision.
    (c) The claim must include a specific, detailed statement showing 
that the claimant is a class member who was affected by an action or 
matter resulting from the discriminatory policy or practice which arose 
not more than 30 days preceding the filing of the class complaint.
    (d) The Agency shall attempt to resolve the claim within sixty (60) 
calendar days after the date the claim was postmarked, or in the 
absence of a postmark, within sixty (60) calendar days after the date 
it was received by the EEOP Director.


Sec.  1225.20  Claim Appeals.

    (a) If the EEOP Director and claimant do not agree that the 
claimant is a member of the class, or upon the relief to which the 
claimant is entitled, the EEOP Director shall refer the claim, with 
recommendations concerning it, to the CEO or their designee for a Final 
Agency Decision and shall so notify the claimant. The class member may 
submit written evidence to the CEO or their designee concerning his or 
her status as a member of the class. Such evidence must be submitted no 
later than ten (10) calendar days after receipt of referral.
    (b) The CEO or their designee shall decide the issue within thirty 
(30) days of the date of referral by the EEOP Director. The claimant 
shall be informed in writing of the decision and its basis and that it 
will be the Final Agency Decision of the issue.


Sec.  1225.21  Judicial Review.

    (a) An applicant, candidate, Member or Volunteer is authorized to 
file a civil action in an appropriate U.S. District Court:
    (1) Within thirty (30) calendar days of his or her receipt of the 
notice of final action taken by the agency; or
    (2) After one hundred eighty (180) calendar days from the date of 
filing a formal discrimination complaint with the agency if there has 
been no final agency action.

    Dated: November 20, 2020.
Helen Serassio,
Acting General Counsel of Corporation for National and Community 
Service.
Timothy Noelker,
General Counsel of the Peace Corps.
[FR Doc. 2020-26122 Filed 12-16-20; 8:45 am]
BILLING CODE 6051-01-P