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Interim Final Rule on Posting Requirements 
in Federal Sector Equal Employment Opportunity (No FEAR)

January 26, 2004

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 [Federal Register: January 26, 2004 (Volume 69, Number 16)]
[Rules and Regulations]               
[Page 3483-3492]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ja04-1]                         


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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
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[[Page 3483]]



EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AA74

 
Posting Requirements in Federal Sector Equal Employment 
Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: The Equal Employment Opportunity Commission (EEOC) is issuing 
implementing rules under the No Fear Act regarding the posting of EEO 
complaint processing data. The rules tell Federal agencies what 
information to post, how to post it, and when to post it. EEOC wishes 
to emphasize that these are interim final rules and therefore subject 
to change based on the public comments EEOC receives.

DATES: This interim final rule is effective January 26, 2004. Comments 
must be submitted on or before March 26, 2004.

ADDRESSES: Written comments should be submitted to Frances M. Hart, 
Executive Officer, Executive Secretariat, Equal Employment Opportunity 
Commission, 1801 L Street, NW., Washington, DC 20507. As a convenience 
to commenters, the Executive Secretariat will accept comments of six 
pages or less transmitted by facsimile (``FAX'') machine. The telephone 
number of the FAX receiver is (202) 663-4114. This is not a toll free 
number. The six-page limitation is necessary to assure access to the 
equipment. Receipt of FAX transmissions will not be acknowledged 
although a sender may request confirmation by calling the Executive 
Secretariat at (202) 663-4078 (voice) or (202) 663-4077 (TTY). These 
are not toll free numbers. Copies of comments submitted by the public 
will be available for review at the Commission's library, room 6502, 
1801 L Street NW., Washington, DC between the hours of 9:30 a.m. and 5 
p.m.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal 
Counsel, Gary John Hozempa, Senior General Attorney or Mona Papillon, 
Senior General Attorney at (202) 663-4669 (voice) or (202) 663-7026 
(TTY). Copies of this interim final rule are also available in the 
following alternate formats: Large print, braille, audiotape and 
electronic file on computer disk. Requests for this notice in an 
alternative format should be made to EEOC's Publication Center at 1-
800-669-3362.

SUPPLEMENTARY INFORMATION:

Introduction

    EEOC is issuing rules to implement the posting requirements set 
forth in Title III of the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002 (the No Fear Act), Pub. 
L. 107-174. Pursuant to the No Fear Act, a federal agency must post on 
its public Web site summary statistical data pertaining to complaints 
of employment discrimination filed by employees, former employees and 
applicants for employment under 29 CFR part 1614 (i.e., individual 
complaints, class complaints, and mixed-case complaints--but not mixed-
case appeals that are filed with the U.S. Merit Systems Protection 
Board or grievances raising claims of employment discrimination filed 
under collective bargaining agreements). Title III authorizes EEOC to 
issue rules concerning the ``time, form and manner'' of the postings, 
to define the terms ``issue'' and ``basis,'' and to issue any other 
``rules necessary to carry out'' Title III.
    Section 301 of the No Fear Act specifically sets forth the 
``summary statistical data'' that each agency must post. It requires an 
agency to post quarterly year-to-date cumulative statistical data for 
the then current fiscal year. An agency also must post year end data 
for the five previous fiscal years or, if not available for all five 
fiscal years, the required data to the extent available for those five 
fiscal years. In addition, under section 302 of the No Fear Act, EEOC 
must post fiscal year data pertaining to requests for hearings before 
an EEOC administrative judge (AJ) and appeals filed with EEOC. The data 
EEOC must post regarding hearings and appeals corresponds to that which 
agencies are required to post under section 301. The interim rule uses 
the same categories for posting hearings and appeals data that agencies 
will be using for complaint processing to the extent those categories 
are applicable to hearings and appeals.
    The interim rule requires an agency to post its data in two 
computer-readable formats, PDF and one text format that complies with 
section 508 of the Rehabilitation Act. A link to an agency's No Fear 
Act data also must be prominently displayed on the agency's home Web 
page.
    Congress has directed the time periods for which complaint data 
must be captured, and the interim rule tracks these time frames. 
Additionally, because Congress requires agencies to post the average 
length of time to process complaints ``for each step of the process,'' 
EEOC has set forth definitions delineating the major steps of the 
complaint process under 29 CFR part 1614. Lastly, Congress wants 
agencies to list the number of complaints by basis and issue, so EEOC 
has defined these terms.
    In promulgating this interim rule, EEOC has been cognizant of the 
fact that agencies already report to EEOC some of the data they are 
required to post under the No Fear Act. Every executive branch agency 
must submit to EEOC an ``Annual Federal Equal Employment Opportunity 
Statistical Report of Discrimination Complaints,'' otherwise known as 
EEOC Form 462. Wherever possible, EEOC has attempted to conform an 
agency's posting requirements under the Act with the agency's Form 462 
reporting obligations. In the event of future changes to Form 462 
reporting requirements, the Commission will examine whether such 
changes are relevant to the posting requirements under the Act.
    The posting of EEO data on agency public Web sites is intended to 
assist Congress, Federal agencies and the public to assess whether and 
the extent to which agencies are living up to their equal employment 
opportunity responsibilities. Currently, EEO data, such as that 
reported on the Form 462, is reported to Congress by EEOC and is 
available from EEOC or can be viewed on EEOC's public Web site. 
Congress

[[Page 3484]]

concluded, however, that by having each agency post its own EEO data on 
its public Web site, thereby more widely disseminating the data, 
Congress, agencies, and the public would be better able to see how many 
EEO complaints are filed at a particular agency, how many are filed 
government wide, what the complaints are about, and what becomes of the 
complaints. Moreover, it was determined that agency managers and 
employees would have easier access to the data if it was posted on the 
agency's public Web page. At the least, posting EEO data on its own Web 
page should better enable agency personnel to identify and understand 
the nature and scope of conflicts involving employment discrimination 
within that agency, thereby affording all agencies another tool in 
correcting any EEO problems that may exist.

Executive Order 12067

    Pursuant to Executive Order 12067, EEOC circulated a draft of this 
interim final rule to the heads of all federal executive branch 
agencies. Twenty-four (24) agencies offered comments. The Commission 
carefully considered all of the comments it received and incorporated a 
number of the suggestions. Many of the comments suggested ways in which 
to make the posting requirements clearer. For example, a number of 
agencies expressed concern that the requirement that an agency post the 
number of complaints in which an investigation is not timely completed 
(Sec. 1614.704(l)) did not allow for authorized extensions of the 
normal 180-day period. The Commission has clarified this section to 
make it clear that a complaint is timely investigated if completed 
within 180 days plus any valid extensions.
    A few agencies opposed EEOC's proposal that an agency revise its 
data where issues and bases are added to the initial allegations, on 
the grounds that it would be difficult to do. Some also suggested that 
if agencies must post the bases and issues that subsequently are added 
to complaints, withdrawn issues and bases should be accounted for as 
well. EEOC has decided to eliminate the requirement that agencies post 
the issues and bases added by amendment. A few agencies pointed out 
that not all agencies accept EEO complaints that are filed via email or 
facsimile. EEOC has eliminated this language. A number of agencies 
questioned EEOC's proposal to identify counseling as a step of the 
complaint process, noting that not all counseling contacts result in a 
formal complaint and that the No Fear Act requires posting only with 
respect to complaints. EEOC has decided to eliminate counseling as a 
defined step in the complaint process.
    In a few places, EEOC's initial approach in implementing a 
particular posting requirement was discarded because one or more 
agencies suggested a better means of accomplishing the same result. For 
example, in the initial draft, the Commission proposed that agencies 
post both aggregate agency-wide data and separate data for their 
respective subelements. The proposed regulation then went on to list 
the affected subelements. A number of agencies pointed out that EEOC's 
list was incomplete and that subelements can be subsequently created, 
merged, or disbanded, thus making the list potentially obsolete. It was 
suggested that a subelement be defined based on the number of employees 
working at the subelement and that only those agencies with subelements 
employing a threshold number of employees be required to post 
subelement data. EEOC has adopted this approach. A question arose 
whether subelements must post No Fear Act data on their public Web 
sites. EEOC has decided not to mandate that subelements post their own 
data because EEOC does not know if every subelement as defined by the 
interim rule has a public Web site. Those which do have a public Web 
site are required to have a hyperlink to the parent agency's posting of 
the subelement's data.
    Other parts of the proposed rule were not changed based on the 
comments. EEOC did not eliminate the requirement that agencies post 
data on dismissals. A few agencies argued that the No Fear Act does not 
require agencies to post this information. EEOC believes that agency 
dismissals represent a significant aspect of the EEO complaint process 
and that the value in capturing this information outweighs the minimal 
effort it will take to track and post this data. Agencies currently are 
required to report dismissals to the EEOC on Form 462. At the 
suggestion of a few agencies, EEOC revised this section of the rule to 
make it clear that it does not apply to partial dismissals.
    In a similar vein, a few agencies requested that the final rule 
allow agencies to post data which they deem will present a more 
complete view of the EEO process but which is not required to be posted 
by the No Fear Act. The kind of data agencies would like to post 
include the number of complaints in which no discrimination is found, 
the number of complaints that are resolved through an agency's ADR 
program, the number that are settled by other means, and the number 
that are withdrawn. Some agencies want to post data regarding the 
number of AJ findings of discrimination that are reversed on appeal, 
and the number of findings of no discrimination that are reversed on 
appeal. The Commission concludes that too many additional categories 
will detract from those required to be posted under the Act. Therefore, 
EEOC has not added any additional categories. Agencies, of course, are 
free to post whatever EEO data they desire on their public Web sites so 
long as it does not appear with their No Fear Act data. Agencies may 
insert a hyperlink to this additional data on the page on which the No 
Fear Act data appears.
    A handful of agencies suggested EEOC eliminate the ``non-EEO 
basis'' category under ``bases of discrimination'' because a complaint 
that raises a non-EEO basis does not constitute an EEO complaint. 
Therefore, they argued, such ``complaints'' need not be tracked for 
purposes of the No Fear Act. Even a complaint that fails to state a 
claim or raises a basis that is not covered by the EEO statutes, 
however, must be processed by an agency, even if that means the 
complaint is immediately dismissed. Moreover, EEOC believes it will be 
helpful to see how many complaints that are filed under the 29 CFR part 
1614 procedures do not raise the requisite jurisdictional basis. 
Accordingly, EEOC has decided to keep the ``non-EEO basis'' category.
    One agency objected to the requirement that a hyperlink to the No 
Fear Act data be posted prominently on the agency's Web site homepage. 
This agency argues that a hyperlink is not explicitly required by the 
statute. While true, EEOC believes the hyperlink requirement falls well 
within the ``time, form, and manner'' authority given to EEOC under the 
Act. Additionally, given the fact that the No Fear Act data is one of 
only a few categories of information which Congress has decreed be 
posted by all executive branch agencies on their public Web sites, it 
simply makes sense that members of the public be able to access this 
data as easily as possible.
    Some other suggested changes were not made because they were based 
on a misreading of the draft regulations. In those instances, EEOC has 
clarified the regulations and preamble to address the misunderstood 
language. A number of agencies, for example, expressed the concern that 
agencies would be held accountable for the time a complaint is with an 
EEOC AJ. However, EEOC, and not the agencies, is required to post 
hearing data.
    A number of agencies requested that EEOC mandate a uniform format 
for

[[Page 3485]]

posting. While EEOC considered mandating the format and layout that all 
agencies would adhere to so that one agency's posted data would be 
indistinguishable from another's in terms of look and feel, EEOC did 
not initially propose such an approach because it was reluctant to 
impose unilaterally a standardized posting design or format. As a 
result of the agency comments, EEOC will revisit this issue, but will 
do so during the public comment period. It is the obligation of 
agencies covered by the Act to begin posting data at the conclusion of 
the first quarter of fiscal year 2004.

Form and Manner of Data

    EEOC believes that some uniformity in how data is posted is 
necessary in order to make each agency's data easily accessible to the 
public. Interim rule 29 CFR 1614.703 therefore specifies that the data 
must be posted in two formats: Portable Document Format (PDF); and an 
accessible text format of the agency's choosing that complies with the 
agency's obligation under section 508 of the Rehabilitation Act.
    The interim rule requires each agency to prominently post on its 
primary Web homepage a link to the data required to be posted under the 
Act and designate the link and that data as ``Equal Employment 
Opportunity Data Posted Pursuant to the No Fear Act.'' This is to make 
finding and then viewing the data as easy as possible, with a minimum 
of navigation clicks or jumps. An agency also must prominently post the 
date its data was last updated.
    EEOC believes that posted data will be more meaningful and useful 
if, in addition to showing agency-wide statistics, certain large 
agencies show how each subelement of the particular agency is 
performing. Given that many agency subelements employ more employees 
than are employed by entire agencies, EEOC believes it simply makes 
good sense to see how each subelement is complying with the EEO laws, 
especially when compared to the parent agency. Therefore, an agency 
containing subelements as defined in section 1614.702(l) must post both 
agency-wide aggregate data and subelement-specific data.

Data To Be Posted

    Number of complaints. No Fear requires an agency to post the number 
of EEO complaints filed with it under 29 CFR part 1614 in a given 
fiscal year. If the same individual files four separate complaints, 
they should be counted as four complaints. Even if complaints later are 
consolidated for processing, they should still be counted as separate 
complaints for purposes of this posting requirement.
    Number of filers. Under section 1614.704(b), an agency must post 
the number of individuals who file complaints with the agency in a 
given fiscal year. Where the same individual files multiple complaints, 
the agency counts the complainant only once under this section. For 
example, if the same person files five complaints in a given fiscal 
year, the agency will count five complaints as having been filed, but 
only one filer.
    If a class complaint is filed, the agency shall treat the class 
agent as the filer. If the class complaint has multiple class agents, 
they should all be considered filers. An agency should not post the 
total number of class members involved in a class complaint.
    Number of repeat filers. The No Fear Act requires an agency to post 
the number of individuals who file multiple complaints during a fiscal 
year. By ``multiple'' section 1614.704(c) means more than one. If a 
single individual files two or more complaints during the fiscal year, 
then that person is counted once as a repeat filer regardless of how 
many complaints he or she files. If a person files an individual 
complaint and is a class agent for a separate class complaint during 
the reporting period, then that person is counted as a repeat, or 
multiple, filer. This same person also is to be counted as a filer 
under section 1614.704(b).
    The basis of a complaint. Each agency must post the number of 
complaints in which each of the various bases of discrimination is 
alleged. The basis of the complaint is the discriminatory factor 
asserted by the complainant that is protected by the statute under 
which the complaint is filed. The bases protected by the EEO statutes 
are race, color, religion, national origin, sex, disability, age, and 
retaliation (for participating in the EEO complaint process or for 
opposing practices made illegal under the EEO laws). A complaint 
brought under the Equal Pay Act is considered to be a complaint on the 
basis of sex. To the extent any other ``basis'' is alleged (e.g., 
marital status, parental status, union membership), the interim rule 
contemplates that such basis will be listed in a ``non-EEO basis'' 
category.
    We are including a ``non-EEO basis'' category as a catch-all in 
order to cause agencies to post the number of complaints in which a 
basis not covered by the EEO statutes is alleged. In this way, persons 
viewing an agency's complaint statistics will not have to wonder 
whether they contain discrepant numbers. For example, if an agency 
posts that ten complaints were filed and then posts that only eight 
complaints raised race as a basis (because the remaining two complaints 
raised non-EEO bases), a viewer might well wonder whether the agency 
neglected to note the bases alleged in those two complaints. Having the 
agency post that two complaints raised a ``non-EEO basis'' fills in 
that gap.
    Where multiple EEO bases are alleged, the agency must post data 
showing that a complaint was filed on each basis. Thus, if a 
complainant alleges discrimination based on race and national origin, 
the agency is to count that complaint as one filed based on race and 
one filed based on national origin. Consequently, if one complaint is 
filed based on sex and age, a second complaint is filed based on race, 
sex and age, and a third complaint is based on national origin, 
disability and sex, the required (and correct) posting would be that 
for the basis of race one complaint was filed, for the basis of 
disability one complaint was filed, for the basis of national origin 
one complaint was filed, for the basis of age two complaints were 
filed, and for the basis of sex three complaints were filed.
    The issue raised in a complaint. Each agency must post the number 
of complaints in which each of the various issues of alleged 
discrimination is alleged. The issue of a complaint is the matter about 
which the individual is complaining. The issue sets forth the alleged 
discriminatory incident for which the individual seeks redress.
    As with bases of discrimination, the agency must list each issue 
that is raised and the number of complaints that raised that issue. 
Thus, if a complainant alleges in a single complaint that he was denied 
training and not promoted, the agency should count this as one 
complaint on the issue of training and one complaint on the issue of 
promotion/non-selection.
    Unlike bases of discrimination, the number and types of potential 
issues are not finite. Therefore, defining an issue will not always be 
as exact as defining a basis. This is because the same issue can be 
described in different ways. When a complainant alleges she was 
discriminated against because she is female, there is no dispute that 
the alleged basis is sex. On the other hand, if an individual files a 
complaint challenging her nonselection for a promotion, the issue could 
be described in a number of ways, including ``promotion,'' 
``nonpromotion,'' ``non-selection,'' ``failure to be promoted,'' or 
``not selected for a promotion.''
    Consequently, in order to avoid the confusion that can result from 
varying

[[Page 3486]]

descriptions of the same issue, and to make the posted data as uniform 
as possible, EEOC is providing a list of issues most commonly raised in 
complaints. This list of issues contains the same issues currently used 
by agencies in reporting statistics to EEOC on EEOC Standard Form 462. 
Agencies must choose an issue from this list when posting the type of 
issue that is alleged. A list of the issues appears on page 2 of Form 
462 and the specific issues are included in the definition of ``issue'' 
in the regulation. An ``other'' category will capture all issues not 
listed on Form 462. Unlike Form 462, however, where an agency must 
describe the ``other'' issue, here the agency merely will note the 
number of complaints that raise issues not listed on Form 462.
    Amendments or changes made to a complaint. With respect to the 
posting of bases and issues pursuant to sections 1614.704(d) and (e), 
an agency must list all bases and issues initially raised regardless of 
whether a complainant subsequently adds or withdraws, or an agency 
declines to accept, a basis or issue. This is to ensure that a complete 
picture is presented as to the matters that are being raised initially 
in filed complaints. Bases or issues that are added by amendment are 
not to be posted.
    Processing time. The No Fear Act requires an agency to post the 
average length of time it takes an agency to complete ``each step of 
the process'' for every complaint that is pending during any time of 
the then fiscal year. The interim rule tracks this requirement. If a 
complaint is pending at any time during the fiscal year for which data 
is being posted, the agency must post processing time data for each 
step even if the complaint was filed in a prior fiscal year and even if 
any discrete step commenced or ended in a prior fiscal year. Example 1. 
A complaint is filed on July 1, 2003 (fiscal year 2003), the 
investigation concludes on March 1, 2004, the complainant requests an 
immediate final decision on March 2, and the agency issues a final 
decision on June 1, 2004. In posting its fiscal year 2004 data, the 
agency will have to factor into its average processing times the fact 
that this complaint was pending at the investigative stage for 8 months 
and at the final action stage for 3 months. Example 2. A complaint is 
filed on March 1, 2003, the investigation is completed on September 1, 
2003, the complainant requests an immediate final decision on September 
29, 2003, and the agency issues a final decision on November 30, 2003 
(fiscal year 2004). In posting its fiscal year 2004 data, the agency 
will have to factor into its average processing times the fact that 
this complaint was pending at the investigative stage for 6 months and 
at the final action stage for 2 months. Example 3. A complaint is filed 
on September 1, 2003, the investigation is completed on February 1, 
2004, the complainant requests a hearing on February 15, 2004, the AJ 
issues a decision on September 1, 2004, and the agency issues its final 
order on October 5, 2004 (fiscal year 2005). In posting its fiscal year 
2004 data, the agency will have to factor into its average processing 
times the fact that this complaint was pending at the investigative 
stage for 5 months. Since final action did not occur in FY 2004, 
average processing time for final action by the agency would not be 
factored into FY 2004 data. The processing time for the final action 
step of this complaint along with the time for completion of the 
investigation will be factored into the agency's fiscal year 2005 
average processing time data.
    The Act requires an agency to post average processing times under 
three categories: All complaints pending during the fiscal year; 
complaints in which a hearing is not requested; and complaints in which 
a hearing is requested. Using examples 1 and 2, above, the agency must 
use the time it took to investigate the complaint and issue its final 
decision in calculating average processing times when it reports those 
times for both ``all complaints'' and ``complaints for which a hearing 
was not requested.'' Using Example 3, above, the agency must use the 
time it took to investigate the complaint in calculating average 
processing times when it reports that time for both ``all complaints'' 
and ``complaints for which a hearing was requested.'' The operative 
word here is ``requested.'' Regardless of whether a hearing is actually 
held, the agency is to report processing times based on whether a 
request for a hearing was made.
    The Act does not define the phrase ``each step of the process.'' 
Consequently, EEOC has defined those steps pursuant to its rulemaking 
authority under the Act. The interim rule divides the EEO complaint 
process into four steps: Investigation; hearing; final action by an 
agency after an investigation or hearing; and appeal. Under section 
1614.704, an agency must report, for the then fiscal year, the average 
time it takes to complete two of these steps: Investigations; and final 
actions by an agency after an investigation or hearing. The precise 
time when each of these steps begins and ends is part of the definition 
of the respective steps. It is contemplated, therefore, that the steps 
as defined by their beginning and ending times will control for posting 
purposes under the Act regardless of when an agency may deem a step to 
begin or end for its own internal purposes. This means, of course, that 
an agency will have to track its processing times according to the 
definitions set forth in the interim rule if it does not do so already. 
When reporting processing times for final actions by an agency, the 
definition of final action by an agency contained in section 
1614.702(g) ensures than an agency will not be charged for the time in 
which a complaint is with an administrative judge.
    Another aspect of the EEO complaint process which is not actually a 
``step of the process'' is when an agency dismisses a complaint 
pursuant to 29 CFR 1614.107(a). These dismissals constitute an 
important aspect in the processing time of complaints. The interim rule 
therefore requires an agency to post for the fiscal year the number of 
complaints that are dismissed pursuant to 29 CFR 1614.107(a) and the 
average length of time such complaints were pending at the time of 
dismissal.
    Dismissals pursuant to Sec. 1614.107(a) are dismissals of the 
``entire complaint.'' These are the only dismissals section 1614.704(g) 
seeks to track. Where an agency follows the procedure outlined in 29 
CFR 1614.107(b) (declining to investigate some claims in a complaint 
which the agency believes should be dismissed), there is not a 
dismissal of the entire complaint and so these complaints would not be 
reported under section 1614.704(g). Similarly, dismissals by an 
administrative judge pursuant to 29 CFR 1614.109(b) are not dismissals 
by the agency and therefore are not the types of dismissals 
contemplated by section 1614.704(g).
    Final actions by an agency involving discrimination: The No Fear 
Act requires an agency to post for the then fiscal year the total 
number of final actions by an agency involving a finding of 
discrimination. EEOC interprets this to mean that an agency must post 
the total number of complaints in which the agency's final action 
addresses a finding of discrimination whether that finding is rendered 
by the agency or an administrative judge. Even if an agency issues a 
final order informing a complainant that it will not implement an 
administrative judge's finding of discrimination, the agency's final 
action ``involves'' a finding of discrimination and therefore must be 
listed as a final action by an agency involving discrimination.

[[Page 3487]]

    Of the total number of final actions by an agency involving 
discrimination, the Act requires an agency to post the number and 
percentage that pertain to findings of discrimination ``rendered 
without a hearing'' and the number and percentage having to do with 
findings of discrimination after a hearing has been held.
    It is clear that final action is taken without a hearing when a 
complainant requests an agency decision without a hearing, or fails to 
request a hearing within the requisite time period. It is also clear 
that final action is taken without a hearing when the complainant 
requests a hearing and subsequently withdraws that request, or events 
occur which cause the administrative judge to cancel the hearing 
without issuing a decision. Thus, if a hearing is requested and then 
cancelled, or the complainant withdraws the hearing request and the 
agency ultimately issues a finding of discrimination, the finding would 
be noted in the subcategory pertaining to a decision without a hearing.
    In those cases in which a hearing is held and an agency final order 
informs the complainant that the agency will or will not implement the 
finding of discrimination issued by an administrative judge, this will 
be deemed to constitute an agency final action involving a finding of 
discrimination ``after a hearing'' for posting purposes.
    There also are instances when a hearing is requested but the 
administrative judge renders a decision without holding a hearing. 
Under the federal sector complaint processing procedures, an 
administrative judge can issue a decision without a hearing pursuant to 
29 CFR 1614.109(f)(3)(iv) (sometimes referred to as an adverse 
inference finding) or section 1614.109(g) (sometimes referred to as a 
summary judgement decision). The interim rule envisions that any agency 
final order that informs the complainant that the agency will or will 
not implement a finding of discrimination issued by an administrative 
judge, regardless of what proceeded the administrative judge's 
decision, will be deemed to constitute an agency final action involving 
a finding of discrimination ``after a hearing'' for posting purposes. 
Thus, the form of the administrative judge's decision is irrelevant, as 
is whether a hearing actually took place. An agency's implementation or 
appeal of an administrative judge's finding of discrimination, 
including a bench decision or a finding issued without a hearing 
pursuant to 29 CFR 1614.109(f)(3)(iv) or (g), is to be reported under 
the subcategory pertaining to a finding of discrimination after a 
hearing. EEOC adopts this position because we believe it most closely 
adheres to the intent of Congress, which is to track how often an 
agency chooses to implement or not implement a finding of 
discrimination rendered by an administrative judge.
    Findings of discrimination sorted by basis and whether there was a 
hearing. In posting the total number of final actions by an agency in 
which a finding of discrimination is made during a fiscal year, the No 
Fear Act requires an agency to post the number and percentage of such 
findings according to the basis on which discrimination was found. The 
Act requires an agency to further subdivide such data and post the 
total number and percentage of such findings of discrimination based on 
the type of discrimination that is found according to whether a hearing 
was held. The interim rule tracks these requirements. For purposes of 
this posting requirement, the identification of bases and whether a 
hearing was held will be governed by the same factors noted in the 
discussions above concerning postings by basis and postings by findings 
of discrimination.
    With respect to posting findings of discrimination according to 
basis, what is determinative is the basis on which the finding of 
discrimination is made. This usually will be the same as the basis 
initially alleged in the complaint, but not always. If a person alleges 
multiple bases of discrimination, such as race, sex and retaliation, 
and the agency or administrative judge finds that the complainant was 
discriminated against solely because she had engaged in prior EEO 
activity, the agency will post information reflecting that it rendered 
a finding of retaliation.
    Findings of discrimination sorted by issue and whether there was a 
hearing. In posting the total number of final actions by an agency in 
which a finding of discrimination is made during a fiscal year, the No 
Fear Act requires an agency to post the number and percentage of such 
findings according to the issue on which the complainant prevailed. The 
Act requires an agency to further subdivide such data and post the 
total number and percentage of such findings of discrimination sorted 
by issue according to whether a hearing was held. The interim rule 
tracks this requirement. For purposes of this posting requirement, the 
identification of issues and whether a hearing was held will be 
governed by the same factors noted in the discussions above concerning 
postings by issue and postings by findings of discrimination. The data 
posted under this subsection of the interim rule will be characterized 
based on what action or actions the agency found to be discriminatory, 
regardless of what was initially challenged in the complaint.
    Number of pending complaints that were filed in prior fiscal years. 
The No Fear Act specifies that an agency must look at all complaints 
pending in a current fiscal year and post the number that were filed 
before the start of that fiscal year. The interim rule tracks this 
requirement. EEOC interprets the requirement as applying to all pending 
complaints filed in a prior fiscal year, regardless of how long ago a 
complaint was filed. Thus, if a complaint filed 15 years earlier is 
still pending, the agency must count this complaint when posting the 
amount of pending complaints that were filed in prior fiscal years.
    ``Filed'' is to be given its generally accepted meaning. Thus, a 
complaint is deemed filed on the date it is postmarked. If there is no 
postmark or the complaint is hand-delivered, the complaint is deemed 
filed on the date it is received by the agency. See 29 CFR 1614.604(b). 
An agency is to use these filing dates in ascertaining which complaints 
were filed before the start of the current fiscal year.
    The Act further requires an agency to post the number of 
individuals who filed the complaints that were filed before the start 
of the current fiscal year. This number is to be based on the original 
number of persons who filed the complaints.
    The Act requires that, of the complaints that were filed prior to 
the current fiscal year and are still pending, the agency shall specify 
how many of the complaints are at each specific processing step. The 
interim rule requires an agency to account for all prior fiscal year 
complaints including those pending at the hearings and appeals 
processing steps. The interim rule contemplates that the step at which 
a prior fiscal year complaint is pending shall be based on its status 
as of the end of the applicable reporting quarter.
    Finally, the Act requires, as a general rule, that an agency look 
at all complaints pending in the current fiscal year, determine how 
many of the complaints were not timely investigated, and post that 
total number of complaints. As set forth in section 1614.702(c), the 
investigative step is deemed to commence on the date the complaint is 
filed. This is consistent with 29 CFR 1614.106(e)(2), specifically 
cited in the Act, which requires that the investigation be completed 
within 180 days of the date the complaint is filed, with certain 
exceptions (e.g., the parties

[[Page 3488]]

can agree in writing to extend the time period).
    In this regard, section 301(b)(10)(C) of the No Fear Act couches 
this posting requirement in terms of how often ``the agency violated 
the requirements of section 1614.106(e)(2).'' This is significant in 
that, under 29 CFR 1614.106(e)(2) and 1614.108(e), the 180 day time 
period in which a complaint normally must be investigated can be 
extended by mutual written agreement between the parties for a period 
not exceeding 90 days and is automatically extended when a complaint is 
amended or a file needs to be sanitized because it contains classified 
information pursuant to Executive Order No. 12356, or successor orders. 
The Commission interprets this section of the Act as requiring an 
agency to post data only when an agency completes an investigation 
beyond 180 days plus any authorized extensions, including those 
contained in section 1614.108(e).
    Thus, for example, where the parties mutually agree on the 179th 
day to extend the investigation another 90 days and the investigation 
is completed on the 260th day, the agency will not have to list this 
complaint as not having been timely investigated. If, on the other 
hand, the investigation is not completed until the 275th day, the 
agency will have to report that the complaint was not investigated in a 
timely manner since the investigative period exceeded 180 days plus the 
90 day extension (i.e., the investigation was completed beyond the 
allowable 270 days).
    Types of Complaints Covered. As noted in the ``Introduction'' 
above, the posting requirement applies to all complaints filed with an 
agency under Part 1614. This includes individual complaints, class 
complaints and mixed-case complaints but not mixed-case appeals or 
grievances. While all complaints are covered under No Fear, not all the 
posting categories apply to all complaints (e.g., mixed-case 
complaints). Posting data for class complaints and mixed-case 
complaints will, therefore, present some difficulty regarding some of 
the categories because of the different procedures that apply to them. 
For class complaints, agencies do not investigate the class complaint 
and class agents do not request hearings. For mixed-case complaints, 
the time limits for investigation (120 days) and decision (45 days) are 
different and complainants do not request or have hearings before an 
EEOC administrative judge. Thus, some adjustments will have to be made 
when posting data. Agencies shall post data on all individual, class 
and mixed-case complaints except as follows: (1) agencies should not 
include data on class complaints for sections 1614.704(f)(2), (f)(3), 
and the part of (f)(1) requiring data on complaints pending at the 
investigation step; and (2) agencies should not include data on mixed-
case complaints for sections 1614.704(f)(2), (f)(3), (h)(2), (h)(3), 
(i)(2), (i)(3), (j)(2), (j)(3), and (k)(3).

Timing of Posting Data

    When posting data for a current fiscal year, the No Fear Act 
requires an agency to post on a year-to-date basis, updated quarterly. 
When posting data for prior years, the Act requires an agency to post 
on a fiscal year basis. These requirements are reflected in section 
1614.703(e). Using fiscal year 2004 as an example, the agency's first 
posting of data will occur within thirty (30) calendar days of December 
31, 2003 (the end of the first quarter). That posting must then be 
updated to reflect all pertinent data through March 31, 2004 (the end 
of the second quarter), no later than 30 calendar days after March 31. 
Another update will occur at the end of the third quarter. Within 30 
calendar days of the end of fiscal year 2004, the agency shall post its 
final fiscal year data. This pattern then continues for each subsequent 
fiscal year. In updating current fiscal year data on a quarterly basis, 
the agency should not post separate data for each relevant quarter. 
Rather, an agency must post only one set of cumulative data that has 
been updated quarterly.
    In addition to posting current fiscal year data, updated quarterly, 
the No Fear Act requires an agency to maintain on its Web site year-end 
data for each of the five immediately preceding fiscal years. Taking 
fiscal year 2004 as an example, this means that in February 2004, the 
agency's Web site will contain year-end data for fiscal years 1999, 
2000, 2001, 2002, and 2003, as well as first quarter interim year-to-
date data for fiscal year 2004. In subsequent years, when first quarter 
data for a new fiscal year is posted, the fiscal year comparison data 
that is more than six (6) years old will be dropped, i.e., when first 
quarter 2005 data is posted, the year-end totals for 2004 will become 
the most recent comparison year-end data and the 1999 year-end data 
will be omitted. If an agency does not have data for one or more of the 
preceding five fiscal years, the Act requires that the agency post 
whatever data it has available for any of those five years. The year-
end data that is to be posted for past fiscal years is to be in the 
same form and manner as current fiscal year data and contain the same 
categories of information with corresponding content. With respect to 
those agencies containing subelements as defined in section 
1614.702(l), the parent agency shall post both agency-wide aggregate 
past fiscal year data as well as subelement-specific past fiscal year 
data.

Additional Information To Be Posted by EEOC

    Pursuant to the Act, EEOC is required to post government-wide 
statistical data on hearings and appeals in addition to the data EEOC 
must post as an employing agency on the complaints filed against it. 
This additional information is of the same type, consists of the same 
categories, and will have the same time requirements, as that posted by 
an employing agency concerning complaints that are filed with that 
agency, except that the additional data EEOC posts will reflect 
information about requests for hearings and appeals filed with EEOC. 
Sections 1614.706(a) and (b) on hearings and appeals track the Act's 
posting requirements on complaints as closely as possible. The posting 
of this data is intended to give a viewer an instant government-wide 
view of the number of hearings requested and appeals filed, what issues 
and bases are raised, the average processing times for each step, and 
how often discrimination is found at each step.
    EEOC will not take the data that is posted by all agencies under 
the interim rule, aggregate the data, and then post that data on EEOC's 
Web site under a heading such as ``Government-Wide EEO Complaint Data 
for Fiscal Year 200X.'' EEOC's only posting obligations under the No 
Fear Act are two: like any other executive branch agency, EEOC must 
post EEO complaint data pertaining to internal EEO complaints filed 
with EEOC; EEOC also must post government-wide aggregate summary 
statistical data, but only under two categories: hearing requests; and 
appeals filed.

Regulatory Procedures

Executive Order 12866

    Pursuant to Executive Order 12866, EEOC has coordinated this final 
interim rule with the Office of Management and Budget. Under section 
3(f)(1) of Executive Order 12866, EEOC has determined that the 
regulation will not have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State or local tribal 
governments or communities.

[[Page 3489]]

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

Paperwork Reduction Act

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

Administrative Procedure Act

    Immediate implementation of this rule as an interim final rule with 
provision for post-promulgation public comment is based upon the 
exceptions found at 5 U.S.C. 553(b)(A), (b)(B) and (d). Agency posting 
requirements under Title III of the No Fear Act begin in FY 2004. It is 
essential that all agencies understand their responsibilities regarding 
these requirements so that they can begin capturing this data 
immediately. EEOC has determined under 5 U.S.C. 553(b)(A) that this 
regulation, which covers the time, form and manner of agency postings 
under Title III affects agency organization, procedure, or practice and 
has no effect on the substantive rights of non-agency parties. In 
addition, the absence of rules or a later promulgation of rules might 
result in confusion concerning the posting requirements, to the 
detriment of the public. EEOC has determined under 5 U.S.C. 553(b)(B) 
that it would be contrary to the public interest to delay promulgation 
of these rules. For the same reasons, EEOC has determined under 5 
U.S.C. 553(d)(3) that there is good cause for the interim final rule to 
become effective immediately upon publication with provision for post-
promulgation public comment. EEOC is seeking public comment on the 
regulation and will consider all comments before promulgating a final 
rule.

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act of 1995

    This final interim rule will not result in the expenditure by 
State, local, or tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year, and it will 
not significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Congressional Review Act

    This action pertains to agency management, personnel and 
organization and does not substantially affect the rights or 
obligations of non-agency parties and, accordingly, is not a ``rule'' 
as that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 29 CFR Part 1614

    Administrative practice and procedure, Age discrimination, Equal 
employment opportunity, Government employees, Individuals with 
disabilities, Race discrimination, Religious discrimination, Sex 
discrimination.

For the Commission,

    Dated: January 16, 2004.
Cari M. Dominguez.
Chair.

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

PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

0
1. The authority citation for Part 1614 continues to read as follows:

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

0
2. Subpart G is added to read as follows:

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

Sec.
1614.701 Purpose and scope.
1614.702 Definitions.
1614.703 Manner and format of data.
1614.704 Information to be posted--all Federal agencies.
1614.705 Comparative data--all Federal agencies.
1614.706 Additional data to be posted by EEOC.

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

[[Page 3490]]

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


Sec. 1614.701  Purpose and scope.

    This subpart implements Title III of the Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002 (No Fear Act), 
Public Law 107-174. It sets forth the basic responsibilities of federal 
agencies and the Commission to post certain information on their public 
Web sites.


Sec. 1614.702  Definitions.

    The following definitions apply for purposes of this subpart:
    (a) The term Federal agency means an Executive agency (as defined 
in 5 U.S.C. 105), the United States Postal Service, and the Postal Rate 
Commission;
    (b) The term Commission means the Equal Employment Opportunity 
Commission and any subdivision thereof authorized to act on its behalf;
    (c) The term investigation refers to the step of the federal sector 
EEO process described in 29 CFR 1614.108 and, for purposes of this 
subpart, it commences when the complaint is filed and ceases when the 
complainant is given notice under Sec. 1614.108(f) of the right to 
request a hearing or to receive an immediate final decision without a 
hearing;
    (d) The term hearing refers to the step of the Federal sector EEO 
process described in 29 CFR 1614.109 and, for purposes of this subpart, 
it commences when the EEOC Administrative Judge (AJ) receives the 
complaint file from the agency and ceases when the AJ returns the case 
to the agency to take final action;
    (e) For purposes of Sec. 1614.704(h), (i) and (j), the phrase 
without a hearing refers to a final action by an agency that is 
rendered:
    (1) When an agency does not receive a reply to a notice issued 
under Sec. 1614.108(f);
    (2) After a complainant requests an immediate final decision,
    (3) After a complainant withdraws a request for a hearing; and
    (4) After an administrative judge cancels a hearing and remands the 
matter to the agency;
    (f) For purposes of Sec. 1614.704(h), (i) and (j), the term after a 
hearing refers to a final action by an agency that is rendered 
following a decision by an administrative judge under Sec. 
1614.109(f)(3)(iv), (g) or (i).
    (g) The phrase final action by an agency refers to the step of the 
federal sector EEO process described in 29 CFR 1614.110 and, for 
purposes of this subpart, it commences when the agency receives a 
decision by an Administrative Judge (AJ), receives a request from the 
complainant for an immediate final decision without a hearing or fails 
to receive a response to a notice issued under Sec. 1614.108(f) and 
ceases when the agency issues a final order or final decision on the 
complaint.
    (h) The phrase final action by an agency involving a finding of 
discrimination means:
    (1) A final order issued by an agency pursuant to Sec. 1614.110(a) 
following a finding of discrimination by an administrative judge; and
    (2) A final decision issued by an agency pursuant to Sec. 
1614.110(b) in which the agency finds discrimination;
    (i) The term appeal refers to the step of the federal sector EEO 
process described in 29 CFR 1614.401 and, for purposes of this subpart, 
it commences when the appeal is received by the Commission and ceases 
when the appellate decision is issued;
    (j) The term basis of alleged discrimination refers to the 
individual's protected status (i.e., race, color, religion, sex, 
national origin, age, disability, or retaliation). Only those bases 
protected by Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. 2000e et seq.; the Age Discrimination in Employment Act of 1967, 
as amended, 29 U.S.C. 621 et seq.; the Equal Pay Act of 1963, 29 U.S.C. 
206(d); and the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 
et. seq., are covered by the federal EEO process.
    (k) The term issue of alleged discrimination means one of the 
following challenged agency actions affecting a term or condition of 
employment as listed on EEOC Standard Form 462 (Annual Federal Equal 
Employment Opportunity Statistical Report of Discrimination 
Complaints): Appointment/hire; assignment of duties; awards; conversion 
to full time; disciplinary action/demotion; disciplinary action/
reprimand; disciplinary action/suspension; disciplinary action/removal; 
duty hours; evaluation/appraisal; examination/test; harassment/non-
sexual; harassment/sexual; medical examination; pay/overtime; 
promotion/non-selection; reassignment/denied; reassignment/directed; 
reasonable accommodation; reinstatement; retirement; termination; 
terms/conditions of employment; time and attendance; training; and, 
other.
    (l) The term subelement refers to any organizational sub-unit 
directly below the agency or department level which has 1,000 or more 
employees.


Sec. 1614.703  Manner and format of data.

    (a) Agencies shall post their statistical data in the following two 
formats: Portable Document Format (PDF) and an accessible text format 
that complies with section 508 of the Rehabilitation Act.
    (b) Agencies shall prominently post the date they last updated the 
statistical information on the Web site location containing the 
statistical data.
    (c) In addition to providing aggregate agency-wide data, each 
agency shall include separate data for each subelement listed in Sec. 
1614.702(l). Such data shall be identified as pertaining to the 
particular subelement.
    (d) Data posted under this subpart will be titled ``Equal 
Employment Opportunity Data Posted Pursuant to the No Fear Act'' and a 
hyperlink to the data will be posted prominently on the homepage of 
each agency's public Web site. In the case of agencies with 
subelements, the data shall be made available by hyperlinks from the 
Web sites of both the subelement (if one exists) as well as the parent 
agency.
    (e) Agencies must post cumulative data pursuant to Sec. 1614.704 
for the current fiscal year. Agencies may not post separate quarterly 
statistics for the current fiscal year.


Sec. 1614.704  Information to be posted--all Federal agencies.

    Commencing on January 31, 2004 and thereafter no later than 30 days 
after the end of each fiscal quarter beginning on or after January 1, 
2004, each federal agency must post the following current fiscal year 
statistics on its public Internet Web site regarding EEO complaints 
filed under 29 CFR part 1614:
    (a) The number of complaints filed in such fiscal year;
    (b) The number of individuals filing those complaints (including as 
the agent of a class);
    (c) The number of individuals who filed two or more of those 
complaints;
    (d) The number of those complaints raising each of the various 
bases of alleged discrimination and the number of complaints in which a 
non-EEO basis is alleged;
    (e) The number of those complaints raising each of the various 
issues of alleged discrimination;
    (f) The average length of time it has taken an agency to complete 
respectively investigation and final action by an agency for:
    (1) All complaints pending for any length of time during such 
fiscal year,
    (2) All complaints pending for any length of time during such 
fiscal year in which a hearing was not requested and

[[Page 3491]]

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


Sec. 1614.705  Comparative data--all Federal agencies.

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


Sec. 1614.706  Additional data to be posted by EEOC.

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

[[Page 3492]]

    (9) Of the total number of appellate decisions rendered in such 
fiscal year involving a finding of discrimination,
    (i) The number and percentage for each respective issue of 
discrimination,
    (ii) The number and percentage for each respective issue that 
involved a final action by an agency rendered without a hearing, and
    (iii) The number and percentage for each respective issue that 
involved a final action by an agency rendered after a hearing; and
    (10) Of the total number of appeals pending for any length of time 
in such fiscal year,
    (i) The number that were first filed before the start of the then 
current fiscal year, and
    (ii) The number of individuals who filed those appeals in earlier 
years.

[FR Doc. 04-1505 Filed 1-23-04; 8:45 am]

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