Federal Sector Equal Employment Opportunity, 58469-58471 [2022-19868]
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Federal Register / Vol. 87, No. 186 / Tuesday, September 27, 2022 / Proposed Rules
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[FR Doc. 2022–20857 Filed 9–26–22; 8:45 am]
BILLING CODE 4910–13–P
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
29 CFR Part 1614
RIN 3046–AB23
Federal Sector Equal Employment
Opportunity
Equal Employment
Opportunity Commission.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Equal Employment
Opportunity Commission (‘‘EEOC’’ or
‘‘Commission’’) is proposing revisions
to its federal sector complaint
processing regulations explicitly to
provide for the digital transmission of
EEO hearing and appellate documents,
and to address the use of the
Commission’s Electronic Public Portal.
DATES: Comments on the Notice of
Proposed Rulemaking (hereinafter
‘‘NPRM’’) must be received on or before
November 28, 2022.
ADDRESSES: You may submit comments,
identified by RIN Number 3046–AB23,
by any of the following methods:
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SUMMARY:
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• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: (202) 663–4114. Only
comments of six or fewer pages will be
accepted via FAX transmittal, in order
to assure access to the equipment.
Receipt of FAX transmittals will not be
acknowledged, except that the sender
may request confirmation of receipt by
calling the Executive Secretariat staff at
(202) 921–2815 (voice), 1–800–669–
6820 (TTY), or 1–844–234–5122 (ASL
video phone).
• Mail: Shelley E. Kahn, Acting
Executive Officer, Executive Secretariat,
U.S. Equal Employment Opportunity
Commission, 131 M Street NE,
Washington, DC 20507.
• Hand Delivery/Courier: Shelley E.
Kahn, Acting Executive Officer,
Executive Officer, Executive Secretariat,
U.S. Equal Employment Opportunity
Commission, 131 M Street NE,
Washington, DC 20507.
Instructions: The Commission invites
comments from all interested parties.
All comment submissions must include
the Regulatory Information Number
(RIN) for this rulemaking. Comments
need be submitted in only one of the
above-listed formats. All comments
received will be posted without change
to https://www.regulations.gov,
including any personal information you
provide.
Docket: For access to comments
received, go to https://
www.regulations.gov. Copies of the
received comments also will be
available for review at the Commission’s
library, 131 M Street NE, Suite
4NW08R, Washington, DC 20507,
between the hours of 9:30 a.m. and 4:30
p.m., from November 28, 2022 until the
Commission publishes the rule in final
form. Members of the public may
schedule a library appointment by
sending an email to OEDA@eeoc.gov.
FOR FURTHER INFORMATION CONTACT:
Kathleen Oram, Assistant Legal
Counsel, at (202) 921–2665 or
kathleen.oram@eeoc.gov, or Gary J.
Hozempa, Senior Staff Attorney, at (202)
921–2672 or gary.hozempa@eeoc.gov,
Office of Legal Counsel, U.S. Equal
Employment Opportunity Commission.
Requests for this document in an
alternative format should be made to the
EEOC’s Office of Communications and
Legislative Affairs at (202) 921–3191
(voice), 1–800–669–6820 (TTY), or 1–
844–234–5122 (ASL video phone).
SUPPLEMENTARY INFORMATION:
Introduction
The Commission is issuing this notice
of proposed rulemaking to amend its
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58469
federal sector complaint processing
regulations explicitly to authorize the
Commission to transmit its hearing and
appellate decisions and other
documents to registered complainants
through the EEOC Electronic Public
Portal (hereinafter ‘‘Public Portal’’ or
‘‘Portal’’) in most cases as a matter of
course. The proposed rule also requires
agencies to notify complainants that
they may use the Public Portal to file
hearing requests and appeals and
communicate with the Commission.
When the Commission revised 29 CFR
part 1614 in 2012, it added paragraph
(g) to § 1614.403. That paragraph
generally requires agencies to submit
complaint files and appeals to the
EEOC’s Office of Federal Operations
(‘‘OFO’’) in an acceptable digital format.
Paragraph (g) also encourages appellants
to submit digital appeals and supporting
documents to OFO. The Federal Sector
EEO Portal (FedSEP), an electronic
portal available only to Federal
agencies, was developed after
§ 1614.403(g) was promulgated. Its use
by agencies has resulted in ease of
access and communication, increased
efficiency, and the elimination of paper.
The EEOC’s Public Portal was created
after FedSEP and has been in existence
for a number of years. Initially, the
Public Portal was used by private sector
respondents (employers, etc.) to submit
certain documents to, and communicate
with, the Commission. The Public Portal
gradually acquired additional
functionality, and private sector
charging parties and respondents now
use the Portal to communicate with the
Commission and submit a wide variety
of documents. Similarly, some federal
sector complainants accepted the
EEOC’s invitation set forth in
§ 1614.403(g) and use the Public Portal
to request hearings, file appeals, and
communicate with the EEOC’s
Administrative Judges (‘‘AJ’’) and Office
of Federal Operations (‘‘OFO’’).
Moreover, when a federal sector
complainant mails a request for a
hearing or an appeal, the AJ or OFO
sends a letter acknowledging receipt
and encourages the complainant to
create a Public Portal account,
explaining that documents can be
uploaded and accessed using the Portal.
In addition, when OFO issues an
appellate decision, the decision’s
‘‘Statement of Rights’’ informs the
complainant that the complainant may
file a request for reconsideration and
that the ‘‘[c]omplainant should submit
his or her request for reconsideration,
and any statement or brief in support of
his or her request, via the EEOC Public
Portal . . . .’’ (the complainant also is
informed that, in lieu of using the
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portal, the complainant may send the
request by regular or certified mail).
The revisions proposed herein
recognize the increased use of
technology by the Commission, federal
sector complainants, and agencies, by
explicitly providing for digital
transmission of complaint files, hearing
requests, and associated hearing
documents, appeals, briefs, and
Commission decisions. In addition, the
proposed revisions represent the
Commission’s commitment to
expanding its use of technology and
improving its service to the public. If
implemented, these revisions would
update the regulations to reflect the
EEOC’s current practices regarding the
digital exchange of documents with
agencies and some federal sector
complainants. They also would make
clear that receipt by digital means of
hearing requests, appeals, and
Commission hearing and appellate
decisions, as well as other related
documents, is equivalent to receipt by
first class mail.
Currently, 29 CFR 1614.109(i)
provides that an Administrative Judge
‘‘shall send copies of the hearing . . .
decision to the parties.’’ Additionally,
29 CFR 1614.405(a) provides that a
Commission appellate decision will be
‘‘transmitted to the complainant and the
agency by first class mail.’’ In order to
authorize the use of FedSEP and the
Portal to issue decisions, the NPRM
proposes specifying in § 1614.109(i) that
hearing decisions may be transmitted
through the Portal or by first class mail,
and clarifying in § 1614.405(a) that, for
complainants who are registered with
the Portal, service through the Portal
will be the preferred method of service.
The NPRM also proposes that the
Commission confirm it will provide
decisions by first class mail to
complainants not registered with the
Portal or who prefer receipt by first class
mail.
Regarding the issuance of appellate
decisions, the Commission concludes
that, under section 717 of Title VII of
the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e–16, it may
use the Public Portal to transmit federal
sector final Commission decisions to
complainants. Section 717(c), 42 U.S.C.
2000e–16(c), states: ‘‘[w]ithin 90 days of
receipt of notice of final action taken
. . . by the Equal Employment
Opportunity Commission . . . an
employee or applicant for employment
. . . may file a civil action . . . .’’ See
also 29 CFR 1614.407(c) (a complainant
may file a civil action ‘‘within 90 days
of receipt of the Commission’s final
decision on an appeal.’’). Thus, while
section 717 directs the Commission to
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provide the complainant notice of its
final decision, it does not prescribe how
the Commission must provide that
notice.
To encourage use of the Portal, the
NPRM proposes revising § 1614.108(f) to
provide that an agency must inform a
federal sector complainant that a
hearing request can be transmitted
through the Portal. The NPRM also
proposes revising § 1614.108(h) to
clarify that a hearing request can be
filed using the Portal and adding a
paragraph to § 1614.110 specifying that
an agency must inform a complainant
that an appeal can be filed with OFO
through the Portal. In addition, the
NPRM proposes amending § 1614.204(e)
to allow agencies to use digital methods
(e.g., email), in addition to the nondigital methods listed therein, to notify
class members that an Administrative
Judge has accepted a class complaint.
The NPRM further proposes adding
new paragraph (d) to § 1614.604 to make
clear that parties, AJs, and OFO may use
digital methods in addition to, or in lieu
of, those listed in the designated rules,
to communicate and transmit
documents during the hearing or appeal
stages. With respect to complainants
who have not registered through the
Public Portal or who, having registered,
inform OFO that they prefer receipt via
first class mail, OFO will continue to
use first class mail to communicate and
send documents, even while
transmitting the same document to the
agency via FedSEP.
Finally, the Commission especially
seeks comments regarding whether its
final rule should add a new subsection
addressing when receipt of a
Commission decision transmitted
through the Portal is deemed to occur.
For example, the U.S. Merit Systems
Protection Board’s rule pertaining to
electronic filing states that ‘‘MSPB
documents served electronically on
registered e-filers are deemed received
on the date of electronic submission.’’ 5
CFR 1201.14(m)(2). Receipt of a
Commission decision could be deemed
to occur instead when a complainant
accesses the decision for the first time.
Or a rule could state that a Commission
decision is deemed to be received when
the complainant accesses the decision,
or within 5 days of when the decision
is uploaded to the Portal, whichever
occurs first (such a rule would be
modeled on the Commission’s rule
about mailed documents, 29 CFR
1614.604(b), which states that ‘‘in the
absence of a legible postmark, [a
document is deemed timely filed] if it
is received by mail within five days of
the expiration of the applicable filing
period.’’). If commenters think that the
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final rule should not address a receipt
date, the Commission is interested in
hearing that opinion as well.
Currently, regardless of whether a
complainant is registered with the
Portal, OFO uploads all appellate
records (e.g., briefs, other relevant
documents, decisions) to the Portal. If
OFO has a complainant’s or
representative’s email address, the
Commission transmits a notification
that a document has been added to the
Portal. Should the Commission
implement this proposed rule, OFO will
continue this practice. Upon receiving
an email notice, registered complainants
and representatives can log onto their
Portal accounts and click a link to
review and download the uploaded
document.
Additionally, should this proposed
rule become final, the Commission will
notify complainants with registered
Portal accounts that they will be able to
access documents, orders, and decisions
from the Commission only via the
Portal. If, in response, a registered
complainant informs the Commission
that the complainant would prefer
receipt through first class mail, the
Commission will communicate with the
complainant using first class mail.
Finally, the Commission recognizes
that not all complainants will have
access to the technology necessary to
avail themselves of the Public Portal.
For these reasons, as set forth in the
NPRM, the Commission is not making
use of the Public Portal mandatory and
will issue decisions via first-class mail
to complainants who do not have
registered Portal accounts.
Complainants who do not register with
the Portal will be able to file hearing
requests, appeals, and related
documents through the current methods
available (first class and registered mail,
facsimile, personal delivery, and email).
Regulatory Procedures
Executive Order 12866
The Commission has complied with
the principles in section 1(b) of
Executive Order 12866, Regulatory
Planning and Review. This NPRM is not
a ‘‘significant regulatory action’’ under
section 3(f) of the order and does not
require an assessment of potential costs
and benefits under section 6(a)(3) of the
order.
Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) (PRA) applies to
rulemakings in which an agency creates
a new paperwork burden on regulated
entities or modifies an existing burden.
This final rule contains no new
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Federal Register / Vol. 87, No. 186 / Tuesday, September 27, 2022 / Proposed Rules
information collection requirements on
the public, and therefore, will create no
new paperwork burdens or
modifications to existing burdens that
are subject to review by the Office of
Management and Budget under the
PRA.
Regulatory Flexibility Act
The Commission certifies under 5
U.S.C. 605(b) that this NPRM will not
have a significant economic impact on
a substantial number of small entities
because it applies exclusively to
employees, applicants for employment,
and agencies of the Federal Government
and does not impose a burden on any
business entities. For this reason, a
regulatory flexibility analysis is not
required.
Unfunded Mandates Reform Act of 1995
This NPRM will not result in the
expenditure by State, local, or tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
Congressional Review Act
This NPRM does not substantially
affect the rights or obligations of nonagency parties and, accordingly, is not
a ‘‘rule’’ as that term is used by the
Congressional Review Act (Subtitle E of
the Small Business Regulatory
Enforcement Fairness Act of 1996).
Therefore, the reporting requirement of
5 U.S.C. 801 does not apply.
jspears on DSK121TN23PROD with PROPOSALS
List of Subjects in 29 CFR Part 1614
Administrative practice and
procedure, Age discrimination, Color
discrimination, Equal employment
opportunity, Equal pay, Genetic
information discrimination,
Government employees, Individuals
with disabilities, National origin
discrimination, Race discrimination,
Religious discrimination, Sex
discrimination.
Accordingly, for the reasons set forth
in the preamble, the Equal Employment
Opportunity Commission proposes to
amend chapter XIV of title 29 of the
Code of Federal Regulations as follows:
PART 1614—FEDERAL SECTOR
EQUAL EMPLOYMENT OPPORTUNITY
[AMENDED]
1. The authority citation for 29 CFR
part 1614 continues to read as follows:
■
Authority: 29 U.S.C. 206(d), 633a, 791 and
794a; 42 U.S.C. 2000e–16 and 2000ff–6(e);
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Jkt 256001
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, 1969 Comp., p. 133; E.O.
12106, 3 CFR, 1978 Comp., p. 263; Reorg.
Plan No. 1 of 1978, 3 CFR, 1978 Comp., p.
321.
2. Amend § 1614.108 by:
a. Adding a sentence at the end of
paragraph (f); and ‘‘
■ b. Adding at the end of the first
sentence in paragraph (h) the words ‘‘or
by filing a request for a hearing through
the EEOC Public Portal.’’
The additions read as follows:
■
■
§ 1614.108
Investigation of complaints.
*
*
*
*
*
(f) * * * The notice that the
complainant has the right to request a
hearing and decision from an
administrative judge shall inform the
complainant that the hearing request
may be filed using the EEOC Public
Portal, available at https://
publicportal.eeoc.gov.
*
*
*
*
*
(h) * * * or by filing a request for a
hearing through the EEOC Public Portal.
* * *
§ 1614.109
[Amended]
3. In § 1614.109 paragraph (i) in the
second sentence removing the word
‘‘send’’ and adding in its place the word
‘‘transmit’’.
■ 4. In § 1614.110 add paragraph (c) to
read as follows:
■
§ 1614.110
Final action by agencies.
*
*
*
*
*
(c) When an agency takes final action
by issuing a final order or decision that
requires the agency to include a notice
that the complainant has the right to file
an appeal with the EEOC, the notice
shall inform the complainant that the
appeal may be filed using the EEOC
Public Portal, available at https://
publicportal.eeoc.gov.
§ 1614.204
[Amended]
5. Amend § 1614.204 paragraph (e)(1)
by removing the word ‘‘or’’ after
‘‘address’’ and adding in its place ‘‘,’’,
and adding after the word
‘‘distribution’’ the words ‘‘, or digital
transmission,’’.
■
§ 1614.403
[Amended]
6. Amend § 1614.403 paragraph (a) by
adding the words ‘‘through FedSEP or
the EEOC’s Public Portal, as
applicable,’’ after the word
‘‘electronically’’.
■ 7. Amend § 1614.405 by:
■ a. Removing in the last sentence of
paragraph (a), the second appearance of
the words ‘‘or her’’, and removing the
words ‘‘by first class mail’’, and
■
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58471
b. Adding a new sentence at the end
of paragraph (a).
The additions read as follows:
■
§ 1614.405
Decisions on appeals.
(a) * * * For complainants who are
not registered with the EEOC Public
Portal, or who are registered but inform
the Commission they prefer receipt by
first class mail, the decision will be
transmitted by first class mail. For all
other complainants who are registered
with the Public Portal, the decision will
be transmitted via the Portal. The
Commission will transmit the decision
to the agency via FedSEP
*
*
*
*
*
■ 8. Amend § 1614.604 by:
■ a. Redesignating paragraphs (c) and
(d) as paragraphs (e) and (f).
■ b. Adding new paragraph (c) and (d).
The additions read as follows:
§ 1614.604
Filing and computation of time.
*
*
*
*
*
(c) An appeal, brief, or other
document filed by an agency using
FedSEP, or filed by a complainant using
the EEOC Public Portal, shall be deemed
filed on the date the document is
uploaded to FedSEP or the Public
Portal.
(d) For the purposes of §§ 1614.108
and 1614.109, and §§ 1614.401 through
1614.405, the terms accept, file, filed,
filing, issue, issuance, issuing, notify,
notified, receive, receipt, send, serve,
served, service, submit, submission,
submitted, transmit, and transmitted,
shall include digital transmissions made
through FedSEP or the EEOC Public
Portal.
Dated: September 8, 2022.
Charlotte A. Burrows,
Chair.
[FR Doc. 2022–19868 Filed 9–26–22; 8:45 am]
BILLING CODE 6570–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2022–0295; FRL–10162–
01–R5]
Air Plan Approval; Michigan; Revisions
to Part 1 and 2 Rules
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
revisions to Michigan Air Pollution
Control Rules Part 1 Definitions, and
Part 2 Air Use Approval for inclusion in
SUMMARY:
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]]>Agencies
[Federal Register Volume 87, Number 186 (Tuesday, September 27, 2022)]
[Proposed Rules]
[Pages 58469-58471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19868]
=======================================================================
-----------------------------------------------------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AB23
Federal Sector Equal Employment Opportunity
AGENCY: Equal Employment Opportunity Commission.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') is proposing revisions to its federal sector complaint
processing regulations explicitly to provide for the digital
transmission of EEO hearing and appellate documents, and to address the
use of the Commission's Electronic Public Portal.
DATES: Comments on the Notice of Proposed Rulemaking (hereinafter
``NPRM'') must be received on or before November 28, 2022.
ADDRESSES: You may submit comments, identified by RIN Number 3046-AB23,
by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: (202) 663-4114. Only comments of six or fewer pages
will be accepted via FAX transmittal, in order to assure access to the
equipment. Receipt of FAX transmittals will not be acknowledged, except
that the sender may request confirmation of receipt by calling the
Executive Secretariat staff at (202) 921-2815 (voice), 1-800-669-6820
(TTY), or 1-844-234-5122 (ASL video phone).
Mail: Shelley E. Kahn, Acting Executive Officer, Executive
Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street
NE, Washington, DC 20507.
Hand Delivery/Courier: Shelley E. Kahn, Acting Executive
Officer, Executive Officer, Executive Secretariat, U.S. Equal
Employment Opportunity Commission, 131 M Street NE, Washington, DC
20507.
Instructions: The Commission invites comments from all interested
parties. All comment submissions must include the Regulatory
Information Number (RIN) for this rulemaking. Comments need be
submitted in only one of the above-listed formats. All comments
received will be posted without change to https://www.regulations.gov,
including any personal information you provide.
Docket: For access to comments received, go to https://www.regulations.gov. Copies of the received comments also will be
available for review at the Commission's library, 131 M Street NE,
Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and
4:30 p.m., from November 28, 2022 until the Commission publishes the
rule in final form. Members of the public may schedule a library
appointment by sending an email to [email protected].
FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal
Counsel, at (202) 921-2665 or [email protected], or Gary J.
Hozempa, Senior Staff Attorney, at (202) 921-2672 or
[email protected], Office of Legal Counsel, U.S. Equal Employment
Opportunity Commission. Requests for this document in an alternative
format should be made to the EEOC's Office of Communications and
Legislative Affairs at (202) 921-3191 (voice), 1-800-669-6820 (TTY), or
1-844-234-5122 (ASL video phone).
SUPPLEMENTARY INFORMATION:
Introduction
The Commission is issuing this notice of proposed rulemaking to
amend its federal sector complaint processing regulations explicitly to
authorize the Commission to transmit its hearing and appellate
decisions and other documents to registered complainants through the
EEOC Electronic Public Portal (hereinafter ``Public Portal'' or
``Portal'') in most cases as a matter of course. The proposed rule also
requires agencies to notify complainants that they may use the Public
Portal to file hearing requests and appeals and communicate with the
Commission.
When the Commission revised 29 CFR part 1614 in 2012, it added
paragraph (g) to Sec. 1614.403. That paragraph generally requires
agencies to submit complaint files and appeals to the EEOC's Office of
Federal Operations (``OFO'') in an acceptable digital format. Paragraph
(g) also encourages appellants to submit digital appeals and supporting
documents to OFO. The Federal Sector EEO Portal (FedSEP), an electronic
portal available only to Federal agencies, was developed after Sec.
1614.403(g) was promulgated. Its use by agencies has resulted in ease
of access and communication, increased efficiency, and the elimination
of paper.
The EEOC's Public Portal was created after FedSEP and has been in
existence for a number of years. Initially, the Public Portal was used
by private sector respondents (employers, etc.) to submit certain
documents to, and communicate with, the Commission. The Public Portal
gradually acquired additional functionality, and private sector
charging parties and respondents now use the Portal to communicate with
the Commission and submit a wide variety of documents. Similarly, some
federal sector complainants accepted the EEOC's invitation set forth in
Sec. 1614.403(g) and use the Public Portal to request hearings, file
appeals, and communicate with the EEOC's Administrative Judges (``AJ'')
and Office of Federal Operations (``OFO'').
Moreover, when a federal sector complainant mails a request for a
hearing or an appeal, the AJ or OFO sends a letter acknowledging
receipt and encourages the complainant to create a Public Portal
account, explaining that documents can be uploaded and accessed using
the Portal. In addition, when OFO issues an appellate decision, the
decision's ``Statement of Rights'' informs the complainant that the
complainant may file a request for reconsideration and that the
``[c]omplainant should submit his or her request for reconsideration,
and any statement or brief in support of his or her request, via the
EEOC Public Portal . . . .'' (the complainant also is informed that, in
lieu of using the
[[Page 58470]]
portal, the complainant may send the request by regular or certified
mail).
The revisions proposed herein recognize the increased use of
technology by the Commission, federal sector complainants, and
agencies, by explicitly providing for digital transmission of complaint
files, hearing requests, and associated hearing documents, appeals,
briefs, and Commission decisions. In addition, the proposed revisions
represent the Commission's commitment to expanding its use of
technology and improving its service to the public. If implemented,
these revisions would update the regulations to reflect the EEOC's
current practices regarding the digital exchange of documents with
agencies and some federal sector complainants. They also would make
clear that receipt by digital means of hearing requests, appeals, and
Commission hearing and appellate decisions, as well as other related
documents, is equivalent to receipt by first class mail.
Currently, 29 CFR 1614.109(i) provides that an Administrative Judge
``shall send copies of the hearing . . . decision to the parties.''
Additionally, 29 CFR 1614.405(a) provides that a Commission appellate
decision will be ``transmitted to the complainant and the agency by
first class mail.'' In order to authorize the use of FedSEP and the
Portal to issue decisions, the NPRM proposes specifying in Sec.
1614.109(i) that hearing decisions may be transmitted through the
Portal or by first class mail, and clarifying in Sec. 1614.405(a)
that, for complainants who are registered with the Portal, service
through the Portal will be the preferred method of service. The NPRM
also proposes that the Commission confirm it will provide decisions by
first class mail to complainants not registered with the Portal or who
prefer receipt by first class mail.
Regarding the issuance of appellate decisions, the Commission
concludes that, under section 717 of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. 2000e-16, it may use the Public Portal
to transmit federal sector final Commission decisions to complainants.
Section 717(c), 42 U.S.C. 2000e-16(c), states: ``[w]ithin 90 days of
receipt of notice of final action taken . . . by the Equal Employment
Opportunity Commission . . . an employee or applicant for employment .
. . may file a civil action . . . .'' See also 29 CFR 1614.407(c) (a
complainant may file a civil action ``within 90 days of receipt of the
Commission's final decision on an appeal.''). Thus, while section 717
directs the Commission to provide the complainant notice of its final
decision, it does not prescribe how the Commission must provide that
notice.
To encourage use of the Portal, the NPRM proposes revising Sec.
1614.108(f) to provide that an agency must inform a federal sector
complainant that a hearing request can be transmitted through the
Portal. The NPRM also proposes revising Sec. 1614.108(h) to clarify
that a hearing request can be filed using the Portal and adding a
paragraph to Sec. 1614.110 specifying that an agency must inform a
complainant that an appeal can be filed with OFO through the Portal. In
addition, the NPRM proposes amending Sec. 1614.204(e) to allow
agencies to use digital methods (e.g., email), in addition to the non-
digital methods listed therein, to notify class members that an
Administrative Judge has accepted a class complaint.
The NPRM further proposes adding new paragraph (d) to Sec.
1614.604 to make clear that parties, AJs, and OFO may use digital
methods in addition to, or in lieu of, those listed in the designated
rules, to communicate and transmit documents during the hearing or
appeal stages. With respect to complainants who have not registered
through the Public Portal or who, having registered, inform OFO that
they prefer receipt via first class mail, OFO will continue to use
first class mail to communicate and send documents, even while
transmitting the same document to the agency via FedSEP.
Finally, the Commission especially seeks comments regarding whether
its final rule should add a new subsection addressing when receipt of a
Commission decision transmitted through the Portal is deemed to occur.
For example, the U.S. Merit Systems Protection Board's rule pertaining
to electronic filing states that ``MSPB documents served electronically
on registered e-filers are deemed received on the date of electronic
submission.'' 5 CFR 1201.14(m)(2). Receipt of a Commission decision
could be deemed to occur instead when a complainant accesses the
decision for the first time. Or a rule could state that a Commission
decision is deemed to be received when the complainant accesses the
decision, or within 5 days of when the decision is uploaded to the
Portal, whichever occurs first (such a rule would be modeled on the
Commission's rule about mailed documents, 29 CFR 1614.604(b), which
states that ``in the absence of a legible postmark, [a document is
deemed timely filed] if it is received by mail within five days of the
expiration of the applicable filing period.''). If commenters think
that the final rule should not address a receipt date, the Commission
is interested in hearing that opinion as well.
Currently, regardless of whether a complainant is registered with
the Portal, OFO uploads all appellate records (e.g., briefs, other
relevant documents, decisions) to the Portal. If OFO has a
complainant's or representative's email address, the Commission
transmits a notification that a document has been added to the Portal.
Should the Commission implement this proposed rule, OFO will continue
this practice. Upon receiving an email notice, registered complainants
and representatives can log onto their Portal accounts and click a link
to review and download the uploaded document.
Additionally, should this proposed rule become final, the
Commission will notify complainants with registered Portal accounts
that they will be able to access documents, orders, and decisions from
the Commission only via the Portal. If, in response, a registered
complainant informs the Commission that the complainant would prefer
receipt through first class mail, the Commission will communicate with
the complainant using first class mail.
Finally, the Commission recognizes that not all complainants will
have access to the technology necessary to avail themselves of the
Public Portal. For these reasons, as set forth in the NPRM, the
Commission is not making use of the Public Portal mandatory and will
issue decisions via first-class mail to complainants who do not have
registered Portal accounts. Complainants who do not register with the
Portal will be able to file hearing requests, appeals, and related
documents through the current methods available (first class and
registered mail, facsimile, personal delivery, and email).
Regulatory Procedures
Executive Order 12866
The Commission has complied with the principles in section 1(b) of
Executive Order 12866, Regulatory Planning and Review. This NPRM is not
a ``significant regulatory action'' under section 3(f) of the order and
does not require an assessment of potential costs and benefits under
section 6(a)(3) of the order.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to
rulemakings in which an agency creates a new paperwork burden on
regulated entities or modifies an existing burden. This final rule
contains no new
[[Page 58471]]
information collection requirements on the public, and therefore, will
create no new paperwork burdens or modifications to existing burdens
that are subject to review by the Office of Management and Budget under
the PRA.
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 605(b) that this NPRM will
not have a significant economic impact on a substantial number of small
entities because it applies exclusively to employees, applicants for
employment, and agencies of the Federal Government and does not impose
a burden on any business entities. For this reason, a regulatory
flexibility analysis is not required.
Unfunded Mandates Reform Act of 1995
This NPRM will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This NPRM 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). 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, Color
discrimination, Equal employment opportunity, Equal pay, Genetic
information discrimination, Government employees, Individuals with
disabilities, National origin discrimination, Race discrimination,
Religious discrimination, Sex discrimination.
Accordingly, for the reasons set forth in the preamble, the Equal
Employment Opportunity Commission proposes to amend chapter XIV of
title 29 of the Code of Federal Regulations as follows:
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY [AMENDED]
0
1. The authority citation for 29 CFR part 1614 continues to read as
follows:
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16 and 2000ff-6(e); 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,
1969 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. Amend Sec. 1614.108 by:
0
a. Adding a sentence at the end of paragraph (f); and ``
0
b. Adding at the end of the first sentence in paragraph (h) the words
``or by filing a request for a hearing through the EEOC Public
Portal.''
The additions read as follows:
Sec. 1614.108 Investigation of complaints.
* * * * *
(f) * * * The notice that the complainant has the right to request
a hearing and decision from an administrative judge shall inform the
complainant that the hearing request may be filed using the EEOC Public
Portal, available at https://publicportal.eeoc.gov.
* * * * *
(h) * * * or by filing a request for a hearing through the EEOC
Public Portal. * * *
Sec. 1614.109 [Amended]
0
3. In Sec. 1614.109 paragraph (i) in the second sentence removing the
word ``send'' and adding in its place the word ``transmit''.
0
4. In Sec. 1614.110 add paragraph (c) to read as follows:
Sec. 1614.110 Final action by agencies.
* * * * *
(c) When an agency takes final action by issuing a final order or
decision that requires the agency to include a notice that the
complainant has the right to file an appeal with the EEOC, the notice
shall inform the complainant that the appeal may be filed using the
EEOC Public Portal, available at https://publicportal.eeoc.gov.
Sec. 1614.204 [Amended]
0
5. Amend Sec. 1614.204 paragraph (e)(1) by removing the word ``or''
after ``address'' and adding in its place ``,'', and adding after the
word ``distribution'' the words ``, or digital transmission,''.
Sec. 1614.403 [Amended]
0
6. Amend Sec. 1614.403 paragraph (a) by adding the words ``through
FedSEP or the EEOC's Public Portal, as applicable,'' after the word
``electronically''.
0
7. Amend Sec. 1614.405 by:
0
a. Removing in the last sentence of paragraph (a), the second
appearance of the words ``or her'', and removing the words ``by first
class mail'', and
0
b. Adding a new sentence at the end of paragraph (a).
The additions read as follows:
Sec. 1614.405 Decisions on appeals.
(a) * * * For complainants who are not registered with the EEOC
Public Portal, or who are registered but inform the Commission they
prefer receipt by first class mail, the decision will be transmitted by
first class mail. For all other complainants who are registered with
the Public Portal, the decision will be transmitted via the Portal. The
Commission will transmit the decision to the agency via FedSEP
* * * * *
0
8. Amend Sec. 1614.604 by:
0
a. Redesignating paragraphs (c) and (d) as paragraphs (e) and (f).
0
b. Adding new paragraph (c) and (d).
The additions read as follows:
Sec. 1614.604 Filing and computation of time.
* * * * *
(c) An appeal, brief, or other document filed by an agency using
FedSEP, or filed by a complainant using the EEOC Public Portal, shall
be deemed filed on the date the document is uploaded to FedSEP or the
Public Portal.
(d) For the purposes of Sec. Sec. 1614.108 and 1614.109, and
Sec. Sec. 1614.401 through 1614.405, the terms accept, file, filed,
filing, issue, issuance, issuing, notify, notified, receive, receipt,
send, serve, served, service, submit, submission, submitted, transmit,
and transmitted, shall include digital transmissions made through
FedSEP or the EEOC Public Portal.
Dated: September 8, 2022.
Charlotte A. Burrows,
Chair.
[FR Doc. 2022-19868 Filed 9-26-22; 8:45 am]
BILLING CODE 6570-01-P
