Proposed Rule2022-19868
Federal Sector Equal Employment Opportunity
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 27, 2022
Issuing agencies
Equal Employment Opportunity Commission
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 186 (Tuesday, September 27, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19868]
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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.
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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:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> 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).
<bullet> Mail: Shelley E. Kahn, Acting Executive Officer, Executive
Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street
NE, Washington, DC 20507.
<bullet> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
including any personal information you provide.
Docket: For access to comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="/cdn-cgi/l/email-protection#87c8c2c3c6c7e2e2e8e4a9e0e8f1"><span class="__cf_email__" data-cfemail="fab5bfbebbba9f9f9599d49d958c">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal
Counsel, at (202) 921-2665 or <a href="/cdn-cgi/l/email-protection#f79c96839f9b929299d99885969ab792929894d9909881"><span class="__cf_email__" data-cfemail="5f343e2b37333a3a3171302d3e321f3a3a303c71383029">[email protected]</span></a>, or Gary J.
Hozempa, Senior Staff Attorney, at (202) 921-2672 or
<a href="/cdn-cgi/l/email-protection#5c3b3d2e257234332639312c3d1c3939333f723b332a"><span class="__cf_email__" data-cfemail="88efe9faf1a6e0e7f2ede5f8e9c8edede7eba6efe7fe">[email protected]</span></a>, 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 <a href="https://publicportal.eeoc.gov">https://publicportal.eeoc.gov</a>.
* * * * *
(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 <a href="https://publicportal.eeoc.gov">https://publicportal.eeoc.gov</a>.
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
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