[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2022 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 29

Labor


________________________

Parts 900 to 1899

                         Revised as of July 1, 2022

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2022
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 29:
    SUBTITLE B--Regulations Relating to Labor (Continued) 
          Chapter IX--Construction Industry Collective 
          Bargaining Commission                                      5
          Chapter X--National Mediation Board                        9
          Chapter XII--Federal Mediation and Conciliation 
          Service                                                   33
          Chapter XIV--Equal Employment Opportunity Commission     153
  Finding Aids:
      Table of CFR Titles and Chapters........................     485
      Alphabetical List of Agencies Appearing in the CFR......     505
      List of CFR Sections Affected...........................     515

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 29 CFR 901.1 refers 
                       to title 29, part 901, 
                       section 1.

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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[[Page vii]]

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    Oliver A. Potts,
    Director,
    Office of the Federal Register
    July 1, 2022







[[Page ix]]



                               THIS TITLE

    Title 29--Labor is composed of nine volumes. The parts in these 
volumes are arranged in the following order: Parts 0-99, parts 100-499, 
parts 500-899, parts 900-1899, part 1900-Sec.  1910.999, part 1910.1000-
end of part 1910, parts 1911-1925, part 1926, and part 1927 to end. The 
contents of these volumes represent all current regulations codified 
under this title as of July 1, 2022.

    The OMB control numbers for title 29 CFR part 1910 appear in Sec.  
1910.8. For the convenience of the user, Sec.  1910.8 appears in the 
Finding Aids section of the volume containing Sec.  1910.1000 to the 
end.

    For this volume, Robert J. Sheehan, III was Chief Editor. The Code 
of Federal Regulations publication program is under the direction of 
John Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                             TITLE 29--LABOR




                (This volume contains parts 900 to 1899)

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

          SUBTITLE B--Regulations Relating to Labor (Continued)

                                                                    Part

chapter ix--Construction Industry Collective Bargaining 
  Commission................................................         901

chapter x--National Mediation Board.........................        1200

chapter xii--Federal Mediation and Conciliation Service.....        1400

chapter xiv--Equal Employment Opportunity Commission........        1600

[[Page 3]]

          Subtitle B--Regulations Relating to Labor (Continued)

[[Page 5]]



   CHAPTER IX--CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
900

[Reserved]

901             Policy statement on collective bargaining 
                    disputes and applicable procedures......           7
902-999

[Reserved]

[[Page 7]]

                           PART 900 [RESERVED]



PART 901_POLICY STATEMENT ON COLLECTIVE BARGAINING DISPUTES AND APPLICABLE
PROCEDURES--Table of Contents



Sec.
901.1 Scope and application.
901.2 Policy of Commission.
901.3 Participation by Commission.
901.4 Handling of disputes by Commission.
901.5 Agreement to refrain from strike or lockout.
901.6 Authority of Executive Director.
901.7 Inquiries and correspondence with Commission.

    Authority: E.O. 11482; 3 CFR, 1969 Comp., p. 139.

    Source: 35 FR 4752, Mar. 19, 1970, unless otherwise noted.



Sec.  901.1  Scope and application.

    The Construction Industry Collective Bargaining Commission hereby 
states its policy and sets forth procedures for handling disputes 
involving the standard labor and management organizations in the 
building and construction industry. These procedures are pursuant to the 
authority set forth in Executive Order 11482, dated September 22, 1969. 
Section 6 of the order states that, ``The Commission is authorized to 
issue such rules and regulations, and to adopt such procedures governing 
its affairs, including the conduct of its disputes settlement functions, 
as shall be necessary and appropriate to effectuate the objectives of 
this order.''



Sec.  901.2  Policy of Commission.

    Section 3(c) of the Executive order provides that it is an objective 
of the Commission ``to establish more effective machinery for the 
resolution of disputes over the terms of collective bargaining 
agreements which at the same time recognizes the interests of each 
branch of the industry and preserves existing procedures that have been 
effective.'' Accordingly, it is the policy of the Commission:
    (a) To encourage each branch of the industry without such a 
procedure to establish its own procedures to facilitate the settlement 
of disputes over the terms and application of collective bargaining 
agreements.
    (b) To encourage each branch of the industry having such a 
procedure, but which procedure is limited in application, to expand the 
application of such procedure.
    (c) To encourage parties in each branch of construction with a 
procedure to utilize that machinery in all possible cases.
    (d) To encourage the Federal Mediation and Conciliation Service to 
refer disputes wherever possible to such machinery established in 
various branches of the industry.



Sec.  901.3  Participation by Commission.

    (a) The Commission will consider participation in specific disputes 
which conform with the following criteria:
    (1) The disputes will have a significant impact on construction 
activity in the area involved.
    (2) The dispute concerns negotiations for a new or expiring 
agreement, or a question of interpretation or application of an existing 
agreement, where all other internal methods of resolution have been 
exhausted.
    (b) The Commission will normally refrain from participating in 
specific disputes where;
    (1) The dispute involved concerns jurisdiction of work.
    (2) The parties have failed to utilize an independent disputes 
handling procedure presently in existence or subsequently established. 
(A number of such procedures exists currently in several branches of the 
industry.)
    (3) The parties have not fully utilized the service of the Federal 
Mediation and Conciliation Service.
    (c) In setting forth a disputes procedure the Commission emphasizes 
that it is not intended to provide a substitute for the collective 
bargaining process. Nor is it a means to bypass or neglect existing 
mediation facilities or industry branch dispute settling procedures. The 
standard procedure for the Commission to accept cognizance over a 
collective bargaining dispute is through referral to the Commission by 
the Director of the Federal Mediation and Conciliation Service. The 
Commission will exercise its judgment in accepting or declining specific 
disputes. The staff of the Commission is directed to maintain close 
contact with the

[[Page 8]]

Federal Mediation and Conciliation Service on all aspects of bargaining 
in the construction industry and to see that critical disputes are 
brought to the attention of the appropriate International Union and the 
national offices of an appropriate contractor association.



Sec.  901.4  Handling of disputes by Commission.

    The Commission will determine the particular method of dispute 
handling appropriate for each dispute. Section 5(a) of the Executive 
order states,

    The Commission or a panel designated by the Commission may, with the 
assistance of national labor organizations and national contractor 
associations where appropriate, seek to mediate such dispute, or make an 
investigation of the facts of the dispute and make such recommendations 
to the parties for the resolution thereof as it determines appropriate.



Sec.  901.5  Agreement to refrain from strike or lockout.

    As part of its conditions for entering the dispute, the Commission 
may request the parties to continue the terms or conditions of 
employment without the occurrence of a strike or lockout for a 30-day 
period, as set forth in section 5(a) of the Executive Order, to enhance 
the functions of mediation and other related activities.



Sec.  901.6  Authority of Executive Director.

    The Commission delegates authority to the Executive Director to 
accept or reject requests for Commission involvement in those instances 
where a Commission meeting would not occur in sufficient time prior to a 
contract expiration date to permit such involvement.



Sec.  901.7  Inquiries and correspondence with Commission.

    Inquiries to the Commission about the status of disputes or other 
matters should be directed as follows:

Executive Director, Construction Industry Collective Bargaining 
Commission, room 5220, Department of Labor Building, 14th and 
Constitution Avenue NW., Washington, DC 20210. Telephone: (202) 961-
3736.

                        PARTS 902	999 [RESERVED]

[[Page 9]]



                   CHAPTER X--NATIONAL MEDIATION BOARD




  --------------------------------------------------------------------
Part                                                                Page
1200

[Reserved]

1201            Definitions.................................          11
1202            Rules of procedure..........................          12
1203            Applications for service....................          14
1204            Labor contracts.............................          15
1205            Notices in re: Railway Labor Act............          16
1206            Handling representation disputes under the 
                    Railway Labor Act.......................          17
1207            Establishment of special adjustment boards..          18
1208            Availability of information.................          20
1209            Public observation of National Mediation 
                    Board meetings..........................          29
1210-1299

 [Reserved]


Abbreviation Used in This Chapter:
    NMB = National Mediation Board.

[[Page 11]]

                          PART 1200 [RESERVED]



PART 1201_DEFINITIONS--Table of Contents



Sec.
1201.1 Carrier.
1201.2 Exceptions.
1201.3 Determination as to electric lines.
1201.4 Employee.
1201.5 Exceptions.
1201.6 Representatives.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 11 FR 177A-922, Sept. 11, 1946, unless otherwise noted. 
Redesignated at 13 FR 8740, Dec. 30, 1948.



Sec.  1201.1  Carrier.

    The term carrier includes any express company, sleeping car company, 
carrier by railroad, subject to the Interstate Commerce Act (24 Stat. 
379, as amended; 49 U.S.C. 1 et seq.), and any company which is directly 
or indirectly owned or controlled by or under common control with any 
carrier by railroad and which operates any equipment or facilities or 
performs any service (other than trucking service) in connection with 
the transportation, receipt, delivery, elevation, transfer in transit, 
refrigeration or icing, storage, and handling of property transported by 
railroad, and any receiver, trustee, or other individual or body, 
judicial or otherwise, when in the possession of the business of any 
such ``carrier.''



Sec.  1201.2  Exceptions.

    (a) The term ``carrier'' shall not include any street, interurban, 
or suburban electric railway, unless such railway is operating as a part 
of a general steam-railroad system of transportation, but shall not 
exclude any part of the general steam-railroad system of transportation 
now or hereafter operated by any other motive power.
    (b) The term ``carrier'' shall not include any company by reason of 
its being engaged in the mining of coal, the supplying of coal to 
carrier where delivery is not beyond the tipple, and the operation of 
equipment or facilities therefor or any of such activities.



Sec.  1201.3  Determination as to electric lines.

    The Interstate Commerce Commission is hereby authorized and directed 
upon request of the Mediation Board or upon complaint of any part 
interested to determine after hearing whether any line operated by 
electric power falls within the terms of this part.



Sec.  1201.4  Employee.

    The term employee as used in this part includes every person in the 
service of a carrier (subject to its continuing authority to supervise 
and direct the manner of rendition of his service) who performs any work 
defined as that of an employee or subordinate official in the orders of 
the Interstate Commerce Commission now in effect, and as the same may be 
amended or interpreted by orders hereafter entered by the Commission 
pursuant to the authority which is hereby conferred upon it to enter 
orders amending or interpreting such existing orders: Provided, however, 
That no occupational classification made by order of the Interstate 
Commerce Commission shall be construed to define the crafts according to 
which railway employees may be organized by their voluntary action, nor 
shall the jurisdiction or powers of such employee organizations be 
regarded as in any way limited or defined by the provisions of this Act 
or by the orders of the Commission.



Sec.  1201.5  Exceptions.

    The term ``employee'' shall not include any individual while such 
individual is engaged in the physical operations consisting of the 
mining of coal, the preparation of coal, the handling (other than 
movement by rail with standard locomotives) of coal not beyond the mine 
tipple, or the loading of coal at the tipple.



Sec.  1201.6  Representatives.

    The term representative means any person or persons, labor union, 
organization, or corporation designated either by a carrier or group of 
carriers or by its or their employees, to act for it or them.

[[Page 12]]



PART 1202_RULES OF PROCEDURE--Table of Contents



Sec.
1202.1 Mediation.
1202.2 Interpretation of mediation agreements.
1202.3 Representation disputes.
1202.4 Secret ballot.
1202.5 Rules to govern elections.
1202.6 Access to carrier records.
1202.7 Who may participate in elections.
1202.8 Hearings on craft or class.
1202.9 Appointment of arbitrators.
1202.10 Appointment of referees.
1202.11 Emergency boards.
1202.12 National Air Transport Adjustment Board.
1202.13 Air carriers.
1202.14 Labor members of Adjustment Board.
1202.15 Length of briefs in NMB hearing proceedings.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 11 FR 177A-922, Sept. 11, 1946, unless otherwise noted. 
Redesignated at 13 FR 8740, Dec. 30, 1948.



Sec.  1202.1  Mediation.

    The mediation services of the Board may be invoked by the parties, 
or either party, to a dispute between an employee or group of employees 
and a carrier concerning changes in rates of pay, rules, or working 
conditions not adjusted by the parties in conference; also, concerning a 
dispute not referable to the National Railroad Adjustment Board or 
appropriate airline adjustment board, when not adjusted in conference 
between the parties, or where conferences are refused. The National 
Mediation Board may proffer its services in case any labor emergency is 
found by it to exist at any time.



Sec.  1202.2  Interpretation of mediation agreements.

    Under section 5, Second, of title I of the Railway Labor Act, in any 
case in which a controversy arises over the meaning or application of 
any agreement reached through mediation, either party to said agreement, 
or both, may apply to the National Mediation Board for an interpretation 
of the meaning or application of such agreement. Upon receipt of such 
request, the Board shall, after a hearing of both sides, give its 
interpretation within 30 days.



Sec.  1202.3  Representation disputes.

    If any dispute shall arise among a carrier's employees as to who are 
the representatives of such employees designated and authorized in 
accordance with the requirements of the Railway Labor Act, it is the 
duty of the Board, upon request of either party to the dispute, to 
investigate such dispute and certify to both parties, in writing, the 
name or names of individuals or organizations that have been designated 
and authorized to represent the employees involved in the dispute, and 
to certify the same to the carrier.



Sec.  1202.4  Secret ballot.

    In conducting such investigation, the Board is authorized to take a 
secret ballot of the employees involved, or to utilize any other 
appropriate method of ascertaining the names of their duly designated 
and authorized representatives in such manner as shall insure the choice 
of representatives by the employees without interference, influence, or 
coercion exercised by the carrier. Except in unusual or extraordinary 
circumstances, in a secret ballot the Board shall determine the choice 
of representative based on the majority of valid ballots cast.

[75 FR 26088, June 10, 2010]



Sec.  1202.5  Rules to govern elections.

    In the conduct of a representation election, the Board shall 
designate who may participate in the election, which may include a 
public hearing on craft or class, and establish the rules to govern the 
election, or may appoint a committee of three neutral persons who after 
hearing shall within 10 days designate the employees who may participate 
in the election.



Sec.  1202.6  Access to carrier records.

    Under the Railway Labor Act the Board has access to and has power to 
make copies of the books and records of the carriers to obtain and 
utilize such information as may be necessary to fulfill its duties with 
respect to representatives of carrier employees.

[[Page 13]]



Sec.  1202.7  Who may participate in elections.

    As mentioned in Sec.  1202.3, when disputes arise between parties to 
a representation dispute, the National Mediation Board is authorized by 
the Act to determine who may participate in the selection of employees 
representatives.



Sec.  1202.8  Hearings on craft or class.

    In the event the contesting parties or organizations are unable to 
agree on the employees eligible to participate in the selection of 
representatives, and either party makes application by letter for a 
formal hearing before the Board to determine the dispute, the Board may 
in its discretion hold a public hearing, at which all parties interested 
may present their contentions and argument, and at which the carrier 
concerned is usually invited to present factual information. At the 
conclusion of such hearings the Board customarily invites all interested 
parties to submit briefs supporting their views, and after considering 
the evidence and briefs, the Board makes a determination or finding, 
specifying the craft or class of employees eligible to participate in 
the designation of representatives.



Sec.  1202.9  Appointment of arbitrators.

    Section 5, Third, (a) of the Railway Labor Act provides in the event 
mediation of a dispute is unsuccessful, the Board endeavors to induce 
the parties to submit their controversy to arbitration. If the parties 
so agree, and the arbitrators named by the parties are unable to agree 
upon the neutral arbitrator or arbitrators, as provided in section 7 of 
the Railway Labor Act, it becomes the duty of the Board to name such 
neutral arbitrators and fix the compensation for such service. In 
performing this duty, the Board is required to appoint only those whom 
it deems wholly disinterested in the controversy, and to be impartial 
and without bias as between the parties thereto.



Sec.  1202.10  Appointment of referees.

    Section 3, Third, (e) title I of the act makes it the duty of the 
National Mediation Board to appoint and fix the compensation for service 
a neutral person known as a ``referee'' in any case where a division of 
the National Railroad Adjustment Board becomes deadlocked on an award, 
such referee to sit with the division and make an award. The National 
Mediation Board in appointing referees is bound by the same requirements 
that apply in the appointment of neutral arbitrators as outlined in 
Sec.  1202.9



Sec.  1202.11  Emergency boards.

    Under the terms of section 10 of the Railway Labor Act, if a dispute 
between a carrier and its employees is not adjusted through mediation or 
the other procedures prescribed by the act, and should, in the judgment 
of the National Mediation Board, threaten to interrupt interstate 
commerce to a degree such as to deprive any section of the country of 
essential transportation service, the Board shall notify the President, 
who may thereupon, in his discretion, create an emergency board to 
investigate and report to him respecting such dispute. An emergency 
board may be composed of such number of persons as the President 
designates, and persons so designated shall not be pecuniarily or 
otherwise interested in any organization of employees or any carrier. 
The compensation of emergency board members is fixed by the President. 
An emergency board is created separately in each instance, and is 
required to investigate the facts as to the dispute and report thereon 
to the President within 30 days from the date of its creation.



Sec.  1202.12  National Air Transport Adjustment Board.

    Under section 205, title II, of the Railway Labor Act, when in the 
judgment of the National Mediation Board it becomes necessary to 
establish a permanent national board of adjustment for the air carriers 
subject to the act to provide for the prompt and orderly settlement of 
disputes between the employees and the carriers growing out of 
grievances, or out of the application or interpretation of working 
agreements, the Board is empowered by its order made, published, and 
served, to direct the air carriers and labor organizations, national in 
scope, to select and designate four representatives to constitute a 
Board known as the National Air Transport Adjustment Board. Two

[[Page 14]]

members each shall be selected by the air carriers and the labor 
organizations of their employees. Up to the present time, it has not 
been considered necessary to establish the National Air Transport 
Adjustment Board.



Sec.  1202.13  Air carriers.

    By the terms of title II of the Railway Labor Act, which was 
approved April 10, 1936, all of title I, except section 3, which relates 
to the National Railroad Adjustment Board, was extended to cover every 
common carrier by air engaged in interstate or foreign commerce, and 
every carrier by air transporting mail for or under contract with the 
United States Government, and to all employees or subordinate officials 
of such air carriers.



Sec.  1202.14  Labor members of Adjustment Board.

    Section 3, First, (f) of title I of the Railway Labor Act relating 
to the settlement of disputes among labor organizations as to the 
qualification of any such organization to participate in the selection 
of labor members of the Adjustment Board, places certain duties upon the 
National Mediation Board. This section of the act is quoted below:

    (f) In the event a dispute arises as to the right of any national 
labor organization to participate as per paragraph (c) of this section 
in the selection and designation of the labor members of the Adjustment 
Board, the Secretary of Labor shall investigate the claim of such labor 
organization to participate, and if such claim in the judgment of the 
Secretary of Labor has merit, the secretary shall notify the Mediation 
Board accordingly, and within 10 days after receipt of such advice the 
Mediation Board shall request those national labor organizations duly 
qualified as per paragraph (c) of this section to participate in the 
selection and designation of the labor members of the Adjustment Board 
to select a representative. Such representatives, together with a 
representative likewise designated by the claimant, and a third or 
neutral party designated by the Mediation Board, constituting a board of 
three, shall within 30 days after the appointment of the neutral member 
investigate the claims of the labor organization desiring participation 
and decide whether or not it was organized in accordance with section 2, 
hereof, and is otherwise properly qualified to participate in the 
selection of the labor members of the Adjustment Board, and the findings 
of such boards of three shall be final and binding.



Sec.  1202.15  Length of briefs in NMB hearing proceedings.

    (a) In the event briefs are authorized by the Board or the assigned 
Hearing Officer, principal briefs shall not exceed fifty (50) pages in 
length and reply briefs, if permitted, shall not exceed twenty-five (25) 
pages in length unless the participant desiring to submit a brief in 
excess of such limitation requests a waiver of such limitation from the 
Board which is received within five (5) days of the date on which the 
briefs were ordered or, in the case of a reply brief, within five (5) 
days of receipt of the principal brief, and in such cases the Board may 
require the filing of a summary of argument, suitably paragraphed which 
shoud be a succinct, but accurate and clear, condensation of the 
argument actually made in the brief.
    (b) The page limitations provided by this section (Sec.  1202.15) 
are exclusive of those pages containing the table of contents, tables of 
citations and any copies of administrative or court decisions which have 
been cited in the brief. All briefs shall be submitted on standard 8\1/
2\ x 11 inch paper with double spaced type.
    (c) Briefs not complying with this section (Sec.  1202.15) will be 
returned promptly to their initiators.

[44 FR 10601, Feb. 22, 1979]



PART 1203_APPLICATIONS FOR SERVICE--Table of Contents



Sec.
1203.1 Mediation services.
1203.2 Investigation of representation disputes.
1203.3 Interpretation of mediation agreements.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.



Sec.  1203.1  Mediation services.

    Applications for the mediation services of the National Mediation 
Board under section 5, First, of the Railway Labor Act, may be made on 
printed forms N.M.B. 2, copies of which may be secured from the Board's 
Chief of Staff's Office or on the Internet at

[[Page 15]]

www.nmb.gov. Such applications and all correspondence connected 
therewith should be submitted in duplicate. The application should show 
the exact nature of the dispute, the number of employees involved, name 
of the carrier and name of the labor organization, date of agreement 
between the parties, if any, date and copy of notice served by the 
invoking party to the other and date of final conference between the 
parties. Application should be signed by the highest officer of the 
carrier who has been designated to handle disputes under the Railway 
Labor Act, or by the chief executive of the labor organization, 
whichever party files the application. These applications, after 
preliminary investigation in the Board's offices, are given docket 
number in series ``A'' and the cases are assigned for mediation to Board 
members or to mediators on the Board's staff.

[11 FR 177A-923, Sept. 11, 1946. Redesignated at 13 FR 8740, Dec. 30, 
1948, as amended at 64 FR 40287, July 26, 1999]



Sec.  1203.2  Investigation of representation disputes.

    Applications for the services of the National Mediation Board under 
section 2, Ninth, of the Railway Labor Act to investigate representation 
disputes among carriers' employees may be made on printed forms NMB-3, 
copies of which may be secured from the Board's Representation and Legal 
Department or on the internet at www.nmb.gov. Such applications and all 
correspondence connected therewith should be filed in duplicate and the 
applications should be accompanied by signed authorization cards from 
the employees composing the craft or class involved in the dispute. The 
applications should show specifically the name or description of the 
craft or class of employees involved, the name of the invoking 
organization or employee seeking certification, or the name of the 
employee seeking decertification, the name of the organization currently 
representing the employees, if any, and the estimated number of 
employees in each craft or class involved. The applications should be 
signed by the chief executive of the invoking organization, some other 
authorized officer of the organization, or by the invoking employee. 
These disputes are given docket numbers in the series ``R''.

[84 FR 35989, July 26, 2019]



Sec.  1203.3  Interpretation of mediation agreements.

    (a) Applications may be filed with the Board's Chief of Staff under 
section 5, Second, of the Railway Labor Act, for the interpretation of 
agreements reached in mediation under section 5, First. Such 
applications may be made by letter from either party to the mediation 
agreement stating the specific question on which an interpretation is 
desired.
    (b) This function of the National Mediation Board is not intended to 
conflict with the provisions of section 3 of the Railway Labor Act. 
Providing for interpretation of agreements by the National Railroad 
Adjustment Board. Many complete working agreements are revised with the 
aid of the Board's mediating services, and it has been the Board's 
policy that disputes involving the interpretation or application of such 
agreements should be handled by the Adjustment Board. Under this section 
of the law the Board when called upon may only consider and render an 
interpretation on the specific terms of an agreement actually signed in 
mediation, and not for matters incident or corollary thereto.

[11 FR 177A-923, Sept. 11, 1946. Redesignated at 13 FR 8740, Dec. 30, 
1948, as amended at 64 FR 40287, July 26, 1999]



PART 1204_LABOR CONTRACTS--Table of Contents



Sec.
1204.1 Making and maintaining contracts.
1204.2 Arbitrary changing of contracts.
1204.3 Filing of contracts.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 11 FR 177A-924, Sept. 11, 1946, unless otherwise noted. 
Redesignated at 13 FR 8740, Dec. 30, 1948.



Sec.  1204.1  Making and maintaining contracts.

    It is the duty of all carriers, their officers, agents, and 
employees to exert every reasonable effort to make and

[[Page 16]]

maintain contracts covering rates of pay, rules, and working conditions.



Sec.  1204.2  Arbitrary changing of contracts.

    No carrier, its officers, or agents shall change the rates of pay, 
rules, or working conditons of its employees, as a class as embodied in 
agreements except in the manner prescribed in such agreements or in 
section 6 of the Railway Labor Act.



Sec.  1204.3  Filing of contracts.

    Section 5, Third, (e) of the Railway Labor Act requires all carriers 
to file with the National Mediation Board copies of all contracts in 
effect with organizations representing their employees, covering rates 
of pay, rules, and working conditions. Several thousand of such 
contracts are on file in the Board's Washington office and are available 
for inspection by interested parties.



PART 1205_NOTICES IN RE: RAILWAY LABOR ACT--Table of Contents



Sec.
1205.1 Handling of disputes.
1205.2 Employees' Bill of Rights.
1205.3 General Order No. 1.
1205.4 Substantive rules.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 11 FR 177A-924, Sept. 11, 1946, unless otherwise noted. 
Redesignated at 13 FR 8740, Dec. 30, 1948.



Sec.  1205.1  Handling of disputes.

    Section 2, Eighth, of the Railway Labor Act provides that every 
carrier shall notify its employees by printed notices in such form and 
posted at such times and places as shall be specified by order of the 
Mediation Board and requires that all disputes between a carrier and its 
employees will be handled in accordance with the requirements of the 
act. In such notices there must be printed verbatim, in large type, the 
third, fourth, and fifth paragraphs of said section 2, Eighth, of the 
Railway Labor Act.



Sec.  1205.2  Employees' Bill of Rights.

    The provisions of the third, fourth, and fifth paragraphs of section 
2 are by law made a part of the contract of employment between the 
carrier and each employee and shall be binding upon the parties 
regardless of any other express or implied agreements between them. 
Under these provisions the employees are guaranteed the right to 
organize without interference of management, the right to determine who 
shall represent them, and the right to bargain collectively through such 
representatives. This section makes it unlawful for any carrier to 
require any person seeking employment to sign any contract promising to 
join or not to join a labor organization. Violation of the foregoing 
provisions is a misdemeanor under the law and subjects the offender to 
punishment.



Sec.  1205.3  General Order No. 1.

    General Order No. 1, issued August 14, 1934, is the only order the 
Board has issued since its creation in 1934. This order sent to the 
President of each carrier coming under the act transmitted a sample copy 
of the Mediation Board's Form MB-1 known as ``Notice in re: Railway 
Labor Act.'' The order prescribes that such notices are to be standard 
as to contents, dimensions of sheet, and size of type and that they 
shall be posted promptly and maintained continuously in readable 
condition on all the usual and customary bulletin boards giving 
information to employees and at such other places as may be necessary to 
make them accessible to all employees. Such notices must not be hidden 
by other papers or otherwise obscured from view.



Sec.  1205.4  Substantive rules.

    The only substantive rules issued by the National Mediation Board 
are those authorized under section 2, Ninth, of the Railway Labor Act to 
implement the procedure of determining employee representation.

[12 FR 2451, Apr. 16, 1947. Redesignated at 13 FR 8740, Dec. 30, 1948, 
as amended at 64 FR 40287, July 26, 1999]

[[Page 17]]



PART 1206_HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR ACT-
-Table of Contents



Sec.
1206.1 Run-off elections.
1206.2 Percentage of valid authorizations required to determine 
          existence of a representation dispute.
1206.3 Age of authorization cards.
1206.4 Time limits on applications.
1206.5 Decertification of representatives.
1206.6 Eligibility of dismissed employees to vote.
1206.7 Construction of this part.
1206.8 Amendment or rescission of rules in this part.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 12 FR 3083, May 10, 1947, unless otherwise noted. 
Redesignated at 13 FR 8740, Dec. 30, 1948.



Sec.  1206.1  Run-off elections.

    (a) In an election among any craft or class where three or more 
options (including the option for no representation) receive valid 
votes, if no option receives a majority of the legal votes cast, or in 
the event of a tie vote, the Board shall authorize a run-off election.
    (b) In the event a run-off election is authorized by the Board, the 
two options which received the highest number of votes cast in the first 
election shall be placed on the run-off ballot. No blank line on which 
voters may write in the name of any organization, individual, or no 
representation will be provided on the run-off ballot.
    (c) Employees who were eligible to vote at the conclusion of the 
first election shall be eligible to vote in the run-off election except:
    (1) Those employees whose employment relationship has terminated; 
and
    (2) Those employees who are no longer employed in the craft or 
class.

[77 FR 75549, Dec. 21, 2012, as amended at 84 FR 35989, July 26, 2019]



Sec.  1206.2  Percentage of valid authorizations required to determine 
existence of a representation dispute.

    (a) Upon receipt of an application requesting that an organization 
or individual be certified as the representative of any craft or class 
of employees, or to decertify the current representative and have no 
representative, a showing of proved authorizations (checked and verified 
as to date, signature, and employment status) from at least fifty (50) 
percent of the craft or class must be made before the National Mediation 
Board will authorize an election or otherwise determine the 
representation desires of the employees under the provisions of section 
2, Ninth, of the Railway Labor Act.
    (b) Any intervening individual or organization must also produce 
proved authorizations (checked and verified as to date, signature, and 
employment status) from at least fifty (50) percent of the craft or 
class of employees involved to warrant placing the name of the 
intervenor on the ballot.

[77 FR 75549, Dec. 21, 2012, as amended at 84 FR 35989, July 26, 2019]



Sec.  1206.3  Age of authorization cards.

    Authorizations must be signed and dated in the employee's own 
handwriting or witnessed mark. No authorizations will be accepted by the 
National Mediation Board in any employee representation dispute which 
bear a date prior to one year before the date of the application for the 
investigation of such dispute.



Sec.  1206.4  Time limits on applications.

    Except in unusual or extraordinary circumstances, the National 
Mediation Board will not accept an application for investigation of a 
representation dispute among employees of a carrier:
    (a) For a period of two (2) years from the date of a certification 
or decertification covering the same craft or class of employees on the 
same carrier, and
    (b) For a period of one (1) year from the date on which:
    (1) The Board dismissed a docketed application after having 
conducted an election among the same craft or class of employees on the 
same carrier and less than a majority of valid ballots cast were for 
representation; or
    (2) The Board dismissed a docketed application covering the same 
craft or class of employees on the same carrier because no dispute 
existed as defined in Sec.  1206.2 of these rules; or

[[Page 18]]

    (3) The Board dismissed a docketed application after the applicant 
withdrew an application covering the same craft or class of employees on 
the same carrier after the application was docketed by the Board.

[44 FR 10602, Feb. 22, 1979, as amended at 75 FR 26088, May 11, 2010; 84 
FR 35989, July 26, 2019]



Sec.  1206.5  Decertification of representatives.

    Employees who no longer wish to be represented may seek to decertify 
the current representative of a craft or class in a direct election. The 
employees must follow the procedure outlines in Sec.  1203.2.

[84 FR 35989, July 26, 2019]



Sec.  1206.6  Eligibility of dismissed employees to vote.

    Dismissed employees whose requests for reinstatement account of 
wrongful dismissal are pending before proper authorities, which includes 
the National Railroad Adjustment Board or other appropriate adjustment 
board, are eligible to participate in elections among the craft or class 
of employees in which they are employed at time of dismissal. This does 
not include dismissed employees whose guilt has been determined, and who 
are seeking reinstatement on a leniency basis.

[12 FR 3083, May 10, 1947. Redesignated at 13 FR 8740, Dec. 30, 1948, 
and further redesignated at 77 FR 75549, Dec. 21, 2012. And further 
redesignated at 84 FR 35989, July 26, 2019]



Sec.  1206.7  Construction of this part.

    The rules and regulations in this part shall be liberally construed 
to effectuate the purposes and provisions of the act.

[12 FR 3083, May 10, 1947. Redesignated at 13 FR 8740, Dec. 30, 1948, 
and further redesignated at 77 FR 75549, Dec. 21, 2012. And further 
redesignated at 84 FR 35989, July 26, 2019]



Sec.  1206.8  Amendment or rescission of rules in this part.

    (a) The Board may at any time amend or rescind any rule or 
regulation in this part by following the public rulemaking procedures 
under the Administrative Procedure Act (5 U.S.C. 553) and after 
providing the opportunity for a public hearing.
    (b) The requirements of paragraph (a) of this section shall not 
apply to any rule or proposed rule to which the third sentence of 
section 553(b) of the Administrative Procedure Act applies.
    (c) Any interested person may petition the Board, in writing, for 
the issuance, amendment, or repeal of a rule or regulation in this part. 
An original and three copies of such petition shall be filed with the 
Board in Washington, DC, and shall state the rule or regulation proposed 
to be issued, amended, or repealed, together with a statement of grounds 
in support of such petition.

[77 FR 75549, Dec. 21, 2012. Redesignated at 84 FR 35989, July 26, 
2019]]



PART 1207_ESTABLISHMENT OF SPECIAL ADJUSTMENT BOARDS--Table of Contents



Sec.
1207.1 Establishment of special adjustment boards (PL Boards).
1207.2 Requests for Mediation Board action.
1207.3 Compensation of neutrals.
1207.4 Designation of PL Boards, filing of agreements, and disposition 
          of records.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 31 FR 14644, Nov. 17, 1966, unless otherwise noted.



Sec.  1207.1  Establishment of special adjustment boards (PL Boards).

    Public Law 89-456 (80 Stat. 208) governs procedures to be followed 
by carriers and representatives of employees in the establishment and 
functioning of special adjustment boards, hereinafter referred to as PL 
Boards. Public Law 89-456 requires action by the National Mediation 
Board in the following circumstances:
    (a) Designation of party member of PL Board. Public Law 89-456 
provides that within thirty (30) days from the date a written request is 
made by an employee representative upon a carrier, or by a carrier upon 
an employee representative, for the establishment of a PL Board, an 
agreement establishing such a Board shall be made. If, however, one 
party fails to designate a

[[Page 19]]

member of the Board, the party making the request may ask the Mediation 
Board to designate a member on behalf of the other party. Upon receipt 
of such request, the Mediation Board will notify the party which failed 
to designate a partisan member for the establishment of a PL Board of 
the receipt of the request. The Mediation Board will then designate a 
representative on behalf of the party upon whom the request was made. 
This representative will be an individual associated in interest with 
the party he is to represent. The designee, together with the member 
appointed by the party requesting the establishment of the PL Board, 
shall constitute the Board.
    (b) Appointment of a neutral to determine matters concerning the 
establishment and/or jurisdiction of a PL Board. (1) When the members of 
a PL Board constituted in accordance with paragraph (a) of this section, 
for the purpose of resolving questions concerning the establishment of 
the Board and/or its jurisdiction, are unable to resolve these matters, 
then and in that event, either party may ten (10) days thereafter 
request the Mediation Board to appoint a neutral member to determine 
these procedural issues.
    (2) Upon receipt of this request, the Mediation Board will notify 
the other party to the PL Board. The Mediation Board will then designate 
a neutral member to sit with the PL Board and resolve the procedural 
issues in dispute. When the neutral has determined the procedural issues 
in dispute, he shall cease to be a member of the PL Board.
    (c) Appointment of neutral to sit with PL Boards and dispose of 
disputes. (1) When the members of a PL Board constituted by agreement of 
the parties, or by the appointment of a party member by the Mediation 
Board, as described in paragraph (a) of this section, are unable within 
ten (10) days after their failure to agree upon an award to agree upon 
the selection of a neutral person, either member of the Board may 
request the Mediation Board to appoint such neutral person and upon 
receipt of such request, the Mediation Board shall promptly make such 
appointment.
    (2) A request for the appointment of a neutral under paragraph (b) 
of this section or this paragraph (c) shall;
    (i) Show the authority for the request--Public Law 89-456, and
    (ii) Define and list the proposed specific issues or disputes to be 
heard.



Sec.  1207.2  Requests for Mediation Board action.

    (a) Requests for the National Mediation Board to appoint neutrals or 
party representatives should be made on NMB Form 5.
    (b) Those authorized to sign request on behalf on parties:
    (1) The ``representative of any craft or class of employees of a 
carrier,'' as referred to in Public Law 89-456, making request for 
Mediation Board action, shall be either the General Chairman, Grand 
Lodge Officer (or corresponding officer of equivalent rank), or the 
Chief Executive of the representative involved. A request signed by a 
General Chairman or Grand Lodge Officer (or corresponding officer of 
equivalent rank) shall bear the approval of the Chief Executive of the 
employee representative.
    (2) The ``carrier representative'' making such a request for the 
Mediation Board's action shall be the highest carrier officer designated 
to handle matters arising under the Railway Labor Act.
    (c) Docketing of PL Board agreements: The National Mediation Board 
will docket agreements establishing PL Board, which agreements meet the 
requirements of coverage as specified in Public Law 89-456. No neutral 
will be appointed under Sec.  1207.1(c) until the agreement establishing 
the PL Board has been docketed by the Mediation Board.



Sec.  1207.3  Compensation of neutrals.

    (a) Neutrals appointed by the National Mediation Board. All neutral 
persons appointed by the National Mediation Board under the provisions 
of Sec.  1207.1 (b) and (c) will be compensated by the Mediation Board 
in accordance with legislative authority. Certificates of appointment 
will be issued by the Mediation Board in each instance.
    (b) Neutrals selected by the parties. (1) In cases where the party 
members of a

[[Page 20]]

PL Board created under Public Law 89-456 mutually agree upon a neutral 
person to be a member of the Board, the party members will jointly so 
notify the Mediation Board, which Board will then issue a certificate of 
appointment to the neutral and arrange to compensate him as under 
paragraph (a) of this section.
    (2) The same procedure will apply in cases where carrier and 
employee representatives are unable to agree upon the establishment and 
jurisdiction of a PL Board, and mutually agree upon a procedural neutral 
person to sit with them as a member and determine such issues.



Sec.  1207.4  Designation of PL Boards, filing of agreements, and 
disposition of records.

    (a) Designation of PL Boards. All special adjustment boards created 
under Public Law 89-456 will be designated PL Boards, and will be 
numbered serially, commencing with No. 1, in the order of their 
docketing by the National Mediation Board.
    (b) Filing of agreements. The original agreement creating the PL 
Board under Public Law 89-456 shall be filed with the National Mediation 
Board at the time it is executed by the parties. A copy of such 
agreement shall be filed by the parties with the Administrative Officer 
of the National Railroad Adjustment Board, Chicago, Ill.
    (c) Disposition of records. Since the provisions of section 2(a) of 
Public Law 89-456 apply also to the awards of PL Boards created under 
this Act, two copies of all awards made by the PL Boards, together with 
the record of proceedings upon which such awards are based, shall be 
forwarded by the neutrals who are members of such Boards, or by the 
parties in case of disposition of disputes by PL Boards without 
participation of neutrals, to the Administrative Officer of the National 
Railroad Adjustment Board, Chicago, Ill., for filing, safekeeping, and 
handling under the provisions of section 2(q), as may be required.



PART 1208_AVAILABILITY OF INFORMATION--Table of Contents



Sec.
1208.1 General provisions.
1208.2 Requests for records or information under the Freedom of 
          Information Act.
1208.3 Proactive disclosure of information.
1208.4 Material relating to representation function.
1208.5 Material relating to mediation function.
1208.6 Fees under the Freedom of Information Act.
1208.7 Subpoenas and other requests for testimony and production of 
          documents in legal proceedings where the NMB is not a party.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 82 FR 8895, Feb. 1, 2017, unless otherwise noted.



Sec.  1208.1  General provisions.

    (a) The purpose of this part is to set forth the regulations of the 
NMB regarding the availability and disclosure of information in its 
possession and to implement the Freedom of Information Act (FOIA). These 
regulations establish procedures for requesting access to records 
maintained by the NMB and should be read together with the FOIA, the 
1987 Office of Management and Budget Guidelines for FOIA Fees, Executive 
Order 12,600, and the NMB's other rules and regulations.
    (b) Public policy and the successful effectuation of the NMB's 
mission require that Board members and the employees of the NMB maintain 
a reputation for impartiality and integrity. Labor and management and 
other interested parties participating in mediation efforts must have 
assurance, as must labor organizations, carriers, and individuals 
involved in questions of representation, that confidential information 
disclosed to Board members and employees of the NMB will not be 
divulged, voluntarily or by compulsion.
    (c) Notwithstanding this general policy, the Board will under all 
circumstances endeavor to make public as much information as can be 
allowed. The Board will withhold information under the FOIA only if it 
reasonably foresees that disclosure would harm an interest protected by 
one of the exemptions described in the FOIA or when

[[Page 21]]

disclosure is prohibited by law. When full disclosure is not possible, 
the NMB will consider whether partial disclosure of information is 
possible and will take necessary steps to segregate and release 
nonexempt information.
    (d) The NMB will preserve all correspondence pertaining to requests 
it receives under the FOIA, as well as copies of all requested records, 
until disposition or destruction is authorized pursuant to Title 44 of 
the United States Code or the General Records Schedule 14 of the 
National Archives and Records Administration. The NMB will not dispose 
of or destroy records while they are the subject of a pending request, 
appeal, or lawsuit under the FOIA.



Sec.  1208.2  Requests for records or information under the Freedom of
Information Act.

    (a) Requests for records. (1) All requests for NMB records shall be 
filed in writing by emailing [email protected] or mailing the request to the 
Chief FOIA Officer, National Mediation Board, 1301 K Street NW., Suite 
250E, Washington, DC 20005. Additional information about submitting 
requests is available at www.nmb.gov. Requesters must provide contact 
information, such as their phone number, email address, and/or mailing 
address, to assist in communications about the request.
    (2) The request shall reasonably describe the records being sought 
in a manner which permits identification and location of the records. To 
the extent possible, requesters should include specific information that 
may help the NMB identify the requested records, such as the date, title 
or name, author, recipient, subject matter, case or file number, or 
reference number. Before submitting a request, a requester may contact 
the NMB's FOIA Public Liaison to discuss the records sought or to 
receive assistance in describing the records.
    (3) The request shall include any request for waiver of fees, 
clearly outlining the reasons for any such request.
    (4) Requests may specify the preferred form or format (including 
electronic formats) for the records sought. The NMB will accommodate 
such requests if the record is readily reproducible in that form or 
format.
    (5) Upon receipt of a request for the records, the Chief FOIA 
Officer shall assign the request a FOIA tracking number and record the 
date and time received, the name and address of the requester, and the 
nature of the records requested. If the request will take more than 10 
working days to process, the Chief FOIA Officer will acknowledge the 
request in writing, providing the requester with an individualized 
tracking number and a brief description of records sought.
    (6) All time limitations established pursuant to this section with 
respect to processing initial requests and appeals shall commence at the 
time a written request for records is received at the Board's offices in 
Washington, DC, or via email.
    (b) Processing the request--(1) Time limits. Within 20 working days 
after a request for records is received, the Chief FOIA Officer shall 
determine whether to comply with the request and immediately notify the 
requester, unless an extension is taken under paragraph (b)(2) of this 
section. The NMB may make one request for additional information from 
the requester or clarify a fee issue with the requester and may toll the 
20-day period while awaiting receipt of the additional information.
    (2) Extension of time. In unusual circumstances as specified in this 
paragraph, the Chief FOIA Officer may extend the time for initial 
determination on requests up to a total of 10 days (excluding Saturdays, 
Sundays, and legal public holidays). Extensions shall be made by written 
notice to the requester within 20 working days of receipt of the request 
and shall set forth the reason for the extension, provide the date on 
which a determination is expected to be dispatched, and make available 
the NMB's Public Liaison to assist with any disputes between the 
requester and the NMB. Where the extension exceeds 10 working days, the 
Chief FOIA Officer will notify the requester of the right to seek 
dispute resolution services from the Office of Government Information 
Services. As used in this paragraph ``unusual circumstances'' means, but 
only to the

[[Page 22]]

extent necessary to the proper processing of the request:
    (i) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (ii) The need for consultation, according to the procedures set 
forth in paragraph (b)(4), with another agency having substantial 
interest in the determination of the request.
    (3) Expedited processing. The Chief FOIA Officer shall process a 
request on an expedited basis whenever a requester demonstrates a 
compelling need. A request for expedited processing may be made at any 
time.
    (i) For purposes of this section, ``compelling need'' means that a 
failure to obtain the requested records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual or, with respect to a request made by a 
person primarily engaged in disseminating information, urgency to inform 
the public concerning actual or alleged Federal Government activity.
    (ii) The Chief FOIA Officer shall make a determination of whether to 
provide expedited processing, and notice of the determination shall be 
provided to the person making the request, within 10 days after the date 
of the request.
    (4) Consultations and referrals. (i) When the NMB receives a request 
for a record (or a portion thereof) in its possession that originated 
with another federal agency, the Chief FOIA Officer shall refer the 
request and record to that agency for direct response to the requester. 
The Chief FOIA Officer will notify the requester of any referral and 
provide the requester with the name and FOIA contact information of the 
agency to which the request was referred.
    (ii) In instances where a record is requested that originated with 
the NMB and another federal agency has a significant interest in the 
record (or a portion thereof), the NMB shall consult with that federal 
agency before responding to a requester.
    (iii) All consultations and referrals received by the NMB will 
receive a tracking number and be processed according to the date that 
the first agency received the request.
    (5) Requests for business information provided to the NMB. Business 
information is financial or commercial information obtained by the NMB 
from a submitter that may be protected from disclosure under Exemption 4 
of the FOIA, 5 U.S.C. 552(b)(4).
    (i) When the NMB has reason to believe that requested information 
may fall under Exemption 4, it will promptly provide written notice to 
the submitter. The notice will either describe the requested business 
information or include a copy of the requested records. The NMB shall 
provide the submitter with seven days (excepting Saturdays, Sunday, and 
legal public holidays) to provide a statement of any objection to 
disclosure.
    (ii) The NMB will consider the submitter's objections in deciding 
whether to disclose business information. If the NMB decides to disclose 
business information over such objection, it shall provide written 
notice to the submitter of its reasons for not sustaining the 
objections, a description of information to be disclosed, and the 
disclosure date.
    (iii) Whenever the NMB provides a submitter with notice and the 
opportunity to object under paragraph (b)(5)(ii) of this section, it 
shall also inform the requestor that the request is being processed 
according to these provisions and there may be a subsequent delay in 
processing.
    (iv) A submitter of confidential business information must use good 
faith efforts to designate any portion of its submission that it 
considers to be protected from disclosure under Exemption 4. These 
designations expire 10 years after the date of the submission unless the 
submitter requests and provides justification for a longer designation 
period.
    (6) Response to requests. Within 20 days (excepting Saturdays, 
Sunday, and legal public holidays) after the receipt of a request, the 
requester shall be notified of the determination and the right to seek 
assistance from the NMB's FOIA Public Liaison. If the request for 
records is not granted in full, the final response letter shall also 
include:

[[Page 23]]

    (i) A reference to the specific exemption or exemptions under the 
FOIA authorizing the withholding of the record or parts of the record 
and a brief explanation of how the exemption applies to the record 
withheld.
    (ii) A statement that the denial may be appealed within 90 days by 
writing to the Chairman, by emailing [email protected], or by writing to 
National Mediation Board, 1301 K Street NW., Suite 250E, Washington, DC 
20005, and that judicial review will thereafter be available in the 
district in which the requester resides, or has his principal place of 
business, or the district in which Agency records are situated, or the 
District of Columbia.
    (iii) A notification of the right to seek dispute resolution 
services from the Office of Government Information Services.
    (7) Treatment of delay as a denial. If no determination has been 
dispatched at the end of the 20-day period, or the last extension 
thereof, the requester may deem the request denied, and exercise a right 
of appeal, in accordance with paragraph (c) of this section. When no 
determination can be dispatched within the applicable time limit, the 
Chief FOIA Officer shall continue to process the request and shall 
inform the requester of the reason for the delay, the date on which a 
determination may be expected to be dispatched, and of the right to 
treat the delay as a denial and to appeal to the Chairman of the Board 
in accordance with paragraph (c) of this section.
    (c) Appeals to the Chairman of the Board. (1) When a request for 
records has been denied in whole or in part by the Chief FOIA Officer or 
other person authorized to deny requests, the requester may, within 90 
days of its receipt, appeal the denial to the Chairman of the Board. 
Appeals to the Chairman shall be in writing, addressed to the Chairman, 
National Mediation Board, Washington, DC 20005 or emailed to 
[email protected].
    (2) The Chairman of the Board will act upon the appeal within 20 
working days (excluding Saturdays, Sundays and legal public holidays) of 
its receipt unless an extension is made under paragraph (c)(3) of this 
section.
    (3) In unusual circumstances as defined in paragraph (b)(2) of this 
section, the time for action on an appeal may be extended up to 10 days 
(excluding Saturdays, Sundays and legal public holidays). Written notice 
of such extension shall be made prior to the expiration of the 20-day 
response period, setting forth the reason for the extension and the date 
on which a determination is expected to be dispatched.
    (4) If no determination on the appeal has been dispatched at the end 
of the 20-day period or the last extension thereof, the requester is 
deemed to have exhausted administrative remedies, giving rise to a right 
of review in a district court of the United States, as specified in 5 
U.S.C. 552(a)(4). When no determination can be dispatched within the 
applicable time limit, the appeal will nevertheless continue to be 
processed; on expiration of the time limit the requester shall be 
informed of the reason for the delay, of the date on which a 
determination may be expected to be dispatched, and of a right to seek 
judicial review in the United States district court in the district in 
which they reside or have their principal place of business, the 
district in which the Board records are situated or the District of 
Columbia. The requester may be asked to forego judicial review until 
determination of the appeal.



Sec.  1208.3  Proactive disclosure of information.

    The NMB shall, in conformance with 5 U.S.C. 552(a)(2), maintain and 
make available for public inspection, by posting on its Web site (unless 
the Board determines by order published in the Federal Register that 
such publication would be unnecessary or impracticable) the following 
information: Final opinions, including concurring and dissenting 
opinions made in representation cases; statements of policy and 
interpretation made by the NMB but not published in the Federal 
Register; administrative staff materials, such as the Representation 
Manual; frequently requested materials, defined as those released in 
response to a FOIA request and for which the Agency has received at 
least three requests or those records that because of the nature of 
their subject matter the Agency determines are

[[Page 24]]

likely to become the subject of subsequent requests; and a general index 
of records available under this section.



 Sec.  1208.4  Material relating to representation function.

    (a) The documents constituting the record of a case, such as the 
notices of hearing, motions, rulings, findings upon investigation, 
determinations of craft or class, dismissals, withdrawals, and 
certifications, are matters of official record and shall be made 
available on the NMB's Web site.
    (b) This part notwithstanding, the NMB will treat as confidential 
evidence submitted in connection with the showing of interest in a 
representation dispute, including authorization cards and signature 
samples, and other personally identifying information received during an 
investigation.



Sec.  1208.5  Material relating to mediation function.

    All files, reports, letters, memoranda, and documents relating to 
the mediation function of the NMB, with the exception of procedural or 
administrative materials, such as applications, docket letters, or 
public meeting notices, in the custody of the NMB or its employees 
relating to or acquired in their mediatory capacity under the Railway 
Labor Act are hereby declared to be confidential. No such confidential 
documents or the material contained therein shall be disclosed to any 
unauthorized person, or be taken or withdrawn, copied or removed from 
the custody of the NMB or its employees by any person or by any agent of 
such person or their representative without the explicit consent of the 
NMB.



Sec.  1208.6  Fees under the Freedom of Information Act.

    (a) In general. The NMB will charge for processing requests under 
the FOIA in accordance with the provisions of this section and with 
Office of Management and Budget Guidelines. For purposes of assessing 
fees, the FOIA establishes three categories of requesters: Commercial 
use requesters, non-commercial scientific or educational institutions or 
news media requesters, and all other requesters. Different fees are 
assessed depending on the category. Requesters may seek a fee waiver. 
The NMB will consider requests for fee waivers in accordance with the 
requirements in paragraph (k) of this section. To resolve any fee issues 
that arise under this section, the NMB may contact a requester for 
additional information. The NMB ordinarily will collect all applicable 
fees before sending copies of records to a requester. Requesters must 
pay fees by check or money order made payable to the United States 
Treasury.
    (b) Definitions. For purposes of this section:
    Commercial use request is a request that asks for information for a 
use or a purpose that furthers a commercial, trade, or profit interest, 
which can include furthering those interests through litigation. An 
agency's decision to place a requester in the commercial use category 
will be made on a case-by-case basis based on the requester's intended 
use of the information. The NMB will notify requesters of their 
placement in this category.
    Direct costs are those expenses that an agency incurs in searching 
for and duplicating (and, in the case of commercial use requests, 
reviewing) records in order to respond to a FOIA request. For example, 
direct costs include the salary of the employee performing the work 
(i.e., the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating computers and other 
electronic equipment, such as photocopiers and scanners. Direct costs do 
not include overhead expenses such as the costs of space, and of heating 
or lighting a facility.
    Duplication is reproducing a copy of a record, or of the information 
contained in it, necessary to respond to a FOIA request. Copies can take 
the form of paper, audiovisual materials, or electronic records, among 
others.
    Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with his or her role

[[Page 25]]

at the educational institution. Agencies may seek verification from the 
requester that the request is in furtherance of scholarly research, and 
agencies will advise requesters of their placement in this category.
    Noncommercial scientific institution is an institution that is not 
operated on a ``commercial'' basis, as defined in this paragraph (b) and 
that is operated solely for the purpose of conducting scientific 
research the results of which are not intended to promote any particular 
product or industry. A requester in this category must show that the 
request is authorized by and is made under the auspices of a qualifying 
institution and that the records are sought to further scientific 
research and are not for a commercial use. The NMB will advise 
requesters of their placement in this category.
    Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
Internet. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity will be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, agencies 
can also consider a requester's past publication record in making this 
determination. The NMB will advise requesters of their placement in this 
category.
    Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time spent 
both obtaining and considering any formal objection to disclosure made 
by a confidential business information submitter under Sec.  
1208.2(b)(5), but it does not include time spent resolving general legal 
or policy issues regarding the application of exemptions.
    Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the NMB will 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, the NMB will not add any additional costs to charges 
calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. The NMB will charge search fees 
for all other requesters, subject to the restrictions of paragraph (d) 
of this section. The NMB may properly charge for time spent searching 
even if it does not locate any responsive records or determines that the 
records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require new 
programming, direct costs will be charged.
    (iii) The NMB will also charge direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. The NMB will notify the 
requester of the costs associated with creating such a program, and the

[[Page 26]]

requester must agree to pay the associated costs before the costs may be 
incurred.
    (2) Duplication. The NMB will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The NMB will honor a requester's preference for receiving a 
record in a particular form or format where it can readily reproduce it 
in the form or format requested. Where photocopies are supplied, the NMB 
will provide one copy per request at the cost of 15 cents per page. For 
copies of records produced on tapes, disks, or other media, the NMB will 
charge the direct costs of producing the copy, including operator time. 
Where paper documents must be scanned in order to comply with a 
requester's preference to receive the records in an electronic format, 
the requester must also pay the direct costs associated with scanning 
those materials. For other forms of duplication, the NMB will charge the 
direct costs.
    (3) Review. The NMB will charge review fees to requesters who make 
commercial use requests. Review fees will be assessed in connection with 
the initial review of the record, i.e., the review conducted by the NMB 
to determine whether an exemption applies to a particular record or 
portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with the re-review of the records in order to 
consider the use of other exemptions may be assessed as review fees. 
Review fees will be charged at the same rates as those charged for a 
search under paragraph (c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) When the NMB determines that 
a requester is an educational institution, non-commercial scientific 
institution, or representative of the news media, and the records are 
not sought for commercial use, it will not charge search fees.
    (2)(i) If the NMB fails to comply with the time limits described in 
section 1208.2(b)(1) in which to respond to a request, it may not charge 
search fees, or, in the instances of requests from requesters described 
in paragraph (d)(1) of this section, may not charge duplication fees, 
except as described in paragraph (d)(2)(ii) through (iv) of this 
section.
    (ii) If the NMB has determined that unusual circumstances as defined 
in section 1208.2(b)(2) apply and the NMB provided timely written notice 
to the requester in accordance with that section, a failure to comply 
with the time limit shall be excused for an additional 10 days.
    (iii) If the NMB has determined that unusual circumstances apply and 
more than 5,000 pages are necessary to respond to the request, the NMB 
may charge search fees, or, in the case of requesters described in 
paragraph (d)(1) of this section, may charge duplication fees, if the 
following steps are taken. The NMB must have provided timely written 
notice of unusual circumstances to the requester in accordance with the 
FOIA and must have discussed with the requester via written mail, email, 
or telephone (or made not less than three good-faith attempts to do so) 
how the requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is 
satisfied, the NMB may charge all applicable fees incurred in the 
processing of the request.
    (iv) If a court has determined that exceptional circumstances exist, 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, the 
NMB will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.
    (e) Notice of anticipated fees in excess of $25.00. (1) When the NMB 
determines

[[Page 27]]

or estimates that the fees to be assessed in accordance with this 
section will exceed $25.00, the Agency must notify the requester of the 
actual or estimated amount of the fees, including a breakdown of the 
fees for search, review or duplication, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. If 
only a portion of the fee can be estimated readily, the NMB will advise 
the requester accordingly. If the request is not for noncommercial use, 
the notice will specify that the requester is entitled to the statutory 
entitlements of 100 pages of duplication at no charge and, if the 
requester is charged search fees, two hours of search time at no charge, 
and will advise the requester whether those entitlements have been 
provided.
    (2) If the NMB notifies the requester that the actual or estimated 
fees are in excess of $25.00, the request will not be considered 
received and further work will not be completed until the requester 
commits in writing to pay the actual or estimated total fee, or 
designates some amount of fees the requester is willing to pay, or in 
the case of a noncommercial use requester who has not yet been provided 
with the requester's statutory entitlements, designates that the 
requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. The NMB is not required to accept 
payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the NMB estimates that the total fee will 
exceed that amount, it will toll the processing of the request when it 
notifies the requester of the estimated fees in excess of the amount the 
requester has indicated a willingness to pay. The NMB will inquire 
whether the requester wishes to revise the amount of fees the requester 
is willing to pay or modify the request. Once the requester responds, 
the time to respond will resume from where it was at the date of the 
notification.
    (4) The NMB will make available its FOIA Public Liaison or other 
FOIA professional to assist any requester in reformulating a request to 
meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if the NMB chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same document, 
or sending records by means other than first class mail.
    (g) Charging interest. The NMB may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the Agency. The NMB will follow the provisions of the Debt 
Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and 
its administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (h) Aggregating requests. When the NMB reasonably believes that a 
requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, it may aggregate those requests and charge accordingly. 
The NMB may presume that multiple requests of this type made within a 
30-day period have been made in order to avoid fees. For requests 
separated by a longer period, the NMB will aggregate them only where 
there is a reasonable basis for determining that aggregation is 
warranted in view of all the circumstances involved. Multiple requests 
involving unrelated matters cannot be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) or (i)(3) of this section, the NMB will not require 
the requester to make an advance payment before work is commenced or 
continued on a request. Payment owed for work already completed (i.e., 
payment before copies are sent to a requester) is not an advance 
payment.

[[Page 28]]

    (2) When the NMB determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. The NMB may 
elect to process the request prior to collecting fees when it receives a 
satisfactory assurance of full payment from a requester with a history 
of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee within 30 calendar days of the billing date, the NMB 
may require that the requester pay the full amount due, plus any 
applicable interest on that prior request, and it may require that the 
requester make an advance payment of the full amount of any anticipated 
fee before beginning to process a new request or continuing to process a 
pending request or any pending appeal. Where the NMB has a reasonable 
basis to believe that a requester has misrepresented the requester's 
identity in order to avoid paying outstanding fees, it may require that 
the requester provide proof of identity.
    (4) In cases in which the NMB requires advance payment, the request 
will not be considered received and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within 30 calendar days after the date of the fee 
determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute that 
specifically requires the NMB to set and collect fees for particular 
types of records. In instances where records responsive to a request are 
subject to a statutorily-based fee schedule program, the NMB must inform 
the requester of the contact information for that program.
    (k) Requirements for waiver or reduction of fees. (1) Requesters may 
seek a waiver of fees by submitting a written application demonstrating 
how disclosure of the requested information is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government and is not primarily 
in the commercial interest of the requester.
    (2) The NMB will furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that the factors described in paragraphs (k)(2)(i) through 
(iii) of this section are satisfied:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information is likely to contribute 
significantly to public understanding of those operations or activities. 
This factor is satisfied when the following criteria are met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure of 
information that already is in the public domain, in either the same or 
a substantially identical form, would not be meaningfully informative if 
nothing new would be added to the public's understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. Agencies will presume that a representative of the news 
media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, agencies will consider the following criteria:
    (A) The NMB will identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters must be

[[Page 29]]

given an opportunity to provide explanatory information regarding this 
consideration.
    (B) If there is an identified commercial interest, the NMB must 
determine whether that is the primary interest furthered by the request. 
A waiver or reduction of fees is justified when the requirements of 
paragraphs (k)(2)(i) and (ii) of this section are satisfied and any 
commercial interest is not the primary interest furthered by the 
request. The NMB will presume that when a news media requester has 
satisfied the factors in paragraphs (k)(2)(i) and (ii) of this section, 
the request is not primarily in the commercial interest of the 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return will not be 
presumed to primarily serve the public interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted and should address the criteria 
referenced above. A requester may submit a fee waiver request at a later 
time so long as the underlying record request is pending or on 
administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester must pay any costs incurred up to the date the fee waiver 
request was received.



Sec.  1208.7  Subpoenas and other requests for testimony and production of
documents in legal proceedings where the NMB is not a party.

    (a) In legal proceedings between private litigants, a subpoena or 
other demand for the production of records held by the Agency or for 
oral or written testimony of a current or former NMB employee should be 
addressed to the General Counsel, National Mediation Board, 1301 K 
Street NW., Suite 250E, Washington, DC 20005. No other official or 
employee of the NMB is authorized to accept service of a demand or 
subpoena on behalf of the Agency.
    (b) No current or former employee may produce official records or 
information or provide testimony in response to a demand or subpoena 
unless authorized by the General Counsel.
    (c) The General Counsel may grant an employee permission to testify 
or produce official records or information in response to a demand or 
subpoena. In making this determination, the General Counsel shall 
consider whether:
    (1) Release of the requested records or testimony is prohibited 
under Sec.  1208.5;
    (2) The disclosure is appropriate under the rules of procedure 
governing the case or matter;
    (3) The requested testimony or records are privileged under the 
relevant substantive law concerning privilege;
    (4) Disclosure would violate a statute or regulation;
    (5) Disclosure would reveal trade secrets without the owner's 
consent; and
    (6) Allowing testimony or production of records would be in the best 
interest of the NMB or the United States.



PART 1209_PUBLIC OBSERVATION OF NATIONAL MEDIATION BOARD MEETINGS-
-Table of Contents



Sec.
1209.01 Scope and purpose.
1209.02 Definitions.
1209.03 Conduct of National Mediation Board business.
1209.04 Open meetings.
1209.05 Closing of meetings; reasons therefor.
1209.06 Action necessary to close meetings; record of votes.
1209.07 Notice of meetings; public announcement and publication.
1209.08 Transcripts, recordings or minutes of closed meetings; 
          retention; public availability.
1209.09 Requests for records under Freedom of Information Act.
1209.10 Capacity of public observers.

    Authority: 5 U.S.C. 552(b)(g).

    Source: 42 FR 60739, Nov. 29, 1977, unless otherwise noted.



Sec.  1209.01  Scope and purpose.

    (a) The provisions of this part are intended to implement the 
requirements of section 3(a) of the Government in the Sunshine Act, 5 
U.S.C. 552b.

[[Page 30]]

    (b) It is the policy of the National Mediation Board that the public 
is entitled to the fullest practicable information regarding its 
decisionmaking processes. It is the purpose of this part to provide the 
public with such information while protecting the rights of individuals 
and the ability of the agency to carry out its responsibilities.



Sec.  1209.02  Definitions.

    For purposes of this part:
    (a) The terms Board or Agency mean the National Mediation Board, a 
collegial body composed of three members appointed by the President with 
the advice and consent of the Senate.
    (b) The term meeting means the deliberations of at least two members 
of the Board where such deliberations determine or result in the joint 
conduct or disposition of official agency business, but does not include 
deliberations required or permitted or with respect to any information 
proposed to be withheld under by 5 U.S.C. 552b(d) or (e)/5 U.S.C. 
552b(c).



Sec.  1209.03  Conduct of National Mediation Board business.

    Members shall not jointly conduct or dispose of agency business 
other than in accordance with this part.



Sec.  1209.04  Open meetings.

    Every portion of every Board meeting shall be open to public 
observation except as otherwise provided by Sec.  1209.05 of this part.



Sec.  1209.05  Closing of meetings; reasons therefor.

    (a) Except where the Board determines that the public interest 
requires otherwise, meetings, or portions thereof, shall not be open to 
public observation where the deliberations concern the issuance of a 
subponea, the Board's participation in a civil action or proceeding or 
an arbitration, or the initiation, conduct or disposition by the Board 
of any matter involving a determination on the record after opportunity 
for a hearing, or any court proceeding collateral or ancillary thereto.
    (b) Except where the Board determines that the public interest 
requires otherwise, the Board also may close meetings, or portions 
thereof, when the deliberations concern matters or information falling 
within the scope of 5 U.S.C. 552b (c)(1) (secret matters concerning 
national defense or foreign policy); (c)(2) (internal personnel rules 
and practices); (c)(3) (matters specifically exempted from disclosure by 
statute); (c)(4) (trade secrets and commercial or financial information 
obtained from a person and privileged or confidential); (c)(5) (matters 
of alleged criminal conduct or formal censure); (c)(6) (personal 
information where disclosure would cause a clearly unwarranted invasion 
of personal privacy); (c)(7) (certain materials or information from 
investigatory files compiled for law enforcement purposes); or (c)(9)(B) 
(disclosure would significantly frustrate implementation of a proposed 
agency action).



Sec.  1209.06  Action necessary to close meetings; record of votes.

    A meeting shall be closed to public observation under Sec.  1209.05, 
only when a majority of the members of the Board who will participate in 
the meeting vote to take such action.
    (a) When the meeting deliberations concern matters specified in 
Sec.  1209.05(a), the Board members shall vote at the beginning of the 
meeting, or portion thereof, on whether to close such meeting, or 
portion thereof, to public observation, and on whether the public 
interest requires that a meeting which may properly be closed should 
nevertheless be open to public observation A record of such vote, 
reflecting the vote of each member of the Board, shall be kept and made 
available to the public at the earliest practicable time.
    (b) When the meeting deliberations concerns matters specified in 
Sec.  1209.05(b), the Board shall vote on whether to close such meeting, 
or portion thereof, to public ovservation, and on whether the public 
interest requires that a meeting which may properly be closed should 
nevertheless be open to public observation. The vote shall be taken at a 
time sufficient to permit inclusion of information concerning the open 
or closed status of the meeting in the public announcement thereof. A 
single vote may be taken with respect to a series of meetings at which 
the deliberations will concern the same particular matters where 
subsequent

[[Page 31]]

meetings in the series are scheduled to be held within one day after the 
vote is taken.
    (c) Whenever any person whose interests may be directly affected by 
deliberations during a meeting, or a portion thereof, requests that the 
Board close that meeting, or portion thereof, to public observation for 
any of the reasons specified in 5 U.S.C. 552b(c)(5) (matters of alleged 
criminal conduct or formal censure), (c)(6) (personal information where 
disclosure would cause a clearly unwarranted invasion of personal 
privacy), or (c)(7) (certain materials or information from investigatory 
files compiled for law enforcement purposes), the Board members 
participating in the meeting upon request of any one member of the 
Board, shall vote on whether to close such meeting, or any portion 
thereof, for that reason. A record of such vote, reflecting the vote of 
each member of the Board participating in the meeting, shall be kept and 
made available to the public within one day after the vote is taken.
    (d) After public announcement of a meeting as provided in Sec.  
1209.07 of this part, a meeting, or portion thereof, announced as closed 
may be opened or a meeting, or portion thereof, announced as open may be 
closed, only if a majority of the members of the Board who will 
participate in the meeting determine by a recorded vote that Board 
business so requires and that an earlier announcement of the change was 
not possible. The change made and the vote of each member on the change 
shall be announced publicly at the earliest practicable time.
    (e) Before a meeting may be closed pursuant to Sec.  1209.05 the 
General Counsel of the Board shall certify that in his or her opinion 
the meeting may properly be closed to public observation. The 
certification shall set forth each applicable exemptive provision for 
such closing. The certification shall be retained by the agency and made 
publicly available as soon as practicable.



Sec.  1209.07  Notice of meetings; public announcement and publication.

    (a) A public announcement setting forth the time, place and subject 
matter of meetings or portions thereof closed to public observation 
pursuant to the provisions of Sec.  1209.05(a) of this part, shall be 
made at the earaliest practicable time.
    (b) Except for meetings closed to public observation pursuant to the 
provisions of Sec.  1209.05(a) of this part, the agency shall make 
public announcement of each meeting at least 7 days before the scheduled 
date of the meeting. The announcement shall specify the time, place and 
subject matter of the meeting, whether it is to be open to public 
observation or closed, and the name, address and phone number of an 
agency official designated to respond to requests for information about 
the meeting. The 7 day period for advance notice may be shortened only 
upon a determination by a majority of the members of the Board who will 
participate in the meeting that agency business requires that such 
meeting be called at an earlier date, in which event the public 
announcement shall be made at the earliest practicable time. A record of 
the vote to schedule a meeting at an earlier date shall be kept and made 
available to the public.
    (c) Within one day after a vote to close a meeting, or any portion 
thereof, pursuant to the provisions of Sec.  1209.05(b) of this part, 
the agency shall make publicly available a full written explanation of 
its action closing the meeting, or portion thereof, together with a list 
of all persons expected to attend the meeting and their affiliation.
    (d) If after a public announcement required by paragraph (b) of this 
section has been made, the time and place of the meeting are changed, a 
public announcement of such changes shall be made at the earliest 
practicable time. The subject matter of the meeting may be changed after 
public annmouncment thereof only if a majority of the members of the 
Board who will participate in the meeting determine that agency business 
so requires and that no earlier announcement of the change was possible. 
When such a change in subject matter is approved a public announcement 
of the change shall be made at the earliest practicable time. A record 
of the vote to change the subject matter of the meeting shall be kept 
and made available to the public.

[[Page 32]]

    (e) All announcements or changes thereof issued pursuant to the 
provisions of paragraphs (b) and (d) of this section, or pursuant to the 
provisions of Sec.  1209.06(d), shall be submitted for publication in 
the Federal Register immediately following their release to the public.
    (f) Announcement of meeting made pursuant to the provisions of this 
section shall be posted on a bulletin board maintained for such purpose 
at the Board's offices, 1425 K Street, NW., Washington, DC. Interested 
individuals or organizations may request the Chief of Staff, National 
Mediation Board, Washington, DC 20572 to place them on a mailing list 
for receipt of such announcements.

[42 FR 60739, Nov. 29, 1977, as amended at 64 FR 40287, July 26, 1999]



Sec.  1209.08  Transcripts, recordings or minutes of closed meetings;
retention; public availability.

    (a) For every meeting or portion thereof closed under the provisions 
of Sec.  1209.05, the presiding officer shall prepare a statement 
setting forth the time and place of the meeting and the persons present, 
which statement shall be retained by the agency. For each such meeting 
or portion thereof there also shall be maintained a complete transcript 
or electronic recording of the proceedings, except that for meetings 
closed pursuant to Sec.  1209.05(a) the Board may, in lieu of a 
transcript or electronic recording, maintain a set of minutes fully and 
accurately summarizing any action taken, the reason therefor and views 
thereof, documents considered, and the members' vote on each roll call 
vote.
    (b) The agency shall maintain a complete verbatim transcript, a 
complete electronic recording, or a complete set of minutes for each 
meeting or portion thereof closed to public observation, for a period of 
at least one year after the close of the agency proceeding of which the 
meeting was a part, but in no event for a period of less than two years 
after such meeting.
    (c) The agency shall make promptly available to the public copies of 
transcripts, electronic recordings or minutes maintained as provided in 
paragraphs (a) and (b) of this section, except to the extent the items 
therein contain information which the agency determines may be withheld 
pursuant to the provisions of 5 U.S.C. 552b(c).
    (d) Upon request in accordance with the provisions of this paragraph 
and except to the extent they contain information which the agency 
determines may be withheld pursuant to the provisions of 5 U.S.C. 
552b(c), copies of transcripts or minutes, or transcriptions of 
electronic recordings including the identification of speakers, shall be 
furnished subject to the payment of duplication costs in accordance with 
the schedule of fees set forth in Sec.  1208.06 of the Board's Rules, 
and the actual cost of transcription. Requests for copies of transcripts 
or minutes, or transcriptions of electronic recordings of Board meetings 
shall be directed to the Chief of Staff, National Mediation Board, 
Washington, DC 20572. Such requests shall reasonably identify the 
records sought and include a statement that whatever costs are involved 
in furnishing the records will be acceptable or, alternatively, that 
costs will be acceptable up to a specified amount. The Board may 
determine to require prepayment of such costs.

[42 FR 60739, Nov. 29, 1977, as amended at 64 FR 40287, July 26, 1999]



Sec.  1209.09  Requests for records under Freedom of Information Act.

    Requests to review or obtain copies of agency records other than 
notices or records prepared under this part may be pursued in accordance 
with the Freedom of Information Act (5 U.S.C. 552). Part 1208 of the 
Board's Rules addresses the requisite procedures under that Act.



Sec.  1209.10  Capacity of public observers.

    The public may attend open Board meetings for the sole purpose of 
observation. Observers may not participate in meetings unless expressly 
invited or otherwise interfere with the conduct and disposition of 
agency business. When a portion of a meeting is closed to the public, 
observers will leave the meeting room upon request to enable discussion 
of the exempt matter therein under consideration.

                       PARTS 1210	1299 [RESERVED]

[[Page 33]]



         CHAPTER XII--FEDERAL MEDIATION AND CONCILIATION SERVICE




  --------------------------------------------------------------------
Part                                                                Page
1400            Standards of conduct, responsibilities, and 
                    discipline..............................          35
1401            Public information..........................          39
1402            Procedures of the Service...................          51
1403            Functions and duties........................          51
1404            Arbitration services........................          53
1405            Part-time employment........................          60
1410            Privacy.....................................          61
1420            Federal Mediation and Conciliation Service--
                    assistance in the health care industry..          65
1425            Mediation assistance in the Federal Service.          68
1430            Federal Mediation and Conciliation Service 
                    advisory committees.....................          71
1440            Arbitration of pesticide data disputes......          75
1450            Collections of claims owed the United States          83
1470            Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............          96
1471            Governmentwide debarment and suspension 
                    (nonprocurement)........................         124
1472            Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         146
1473-1499

 [Reserved]

[[Page 35]]



PART 1400_STANDARDS OF CONDUCT, RESPONSIBILITIES, AND DISCIPLINE-
-Table of Contents



                            Subpart A_General

Sec.
1400.735-3 Advice and counseling service.

   Subpart B_Employees: Ethical and Other Conduct and Responsibilities

1400.735-19 Influencing Members of Congress.
1400.735-20 Code of Professional Conduct for Labor Mediators.
1400.735-21 Miscellaneous statutory provisions.

              Subpart F_Disciplinary Actions and Penalties

1400.735-60 Disciplinary actions.
1400.735-61 Notice to and appeal of employee.

Appendix to Part 1400--Code of Professional Conduct for Labor Mediators

    Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965 Supp.; 5 CFR 735.104.

    Source: 33 FR 5765, Apr. 13, 1968, unless otherwise noted.



                            Subpart A_General



Sec.  1400.735-3  Advice and counseling service.

    The Director will designate a counselor for the Service on all 
matters relating to the conduct and responsibilities of employees, and 
special Government employees, under the Executive order. The counselor 
is responsible for providing individual employees with interpretations 
on questions of conflicts of interest, and other matters covered by this 
part. (Due to the small size of the Federal Mediation and Conciliation 
Service, it is unrealistic to designate deputy counselors, and 
therefore, all questions concerning matters covered in this part should 
be directed to the one counselor appointed by the Director.)



   Subpart B_Employees: Ethical and Other Conduct and Responsibilities



Sec.  1400.735-19  Influencing Members of Congress.

    No money appropriated to the Service shall be used by any employee 
of the Service to pay for any personal service, printed or written 
matter, or other devices intended to influence any Member of Congress 
regarding any legislation or appropriation before the Congress.



Sec.  1400.735-20  Code of Professional Conduct for Labor Mediators.

    In 1964, a Code of Professional Conduct for Labor Mediators was 
drafted by a Federal-State Liaison Committee and approved by the Service 
and the Association of Labor Mediation Agencies at its annual meeting. 
It is expected that mediators in the Federal Mediation and Conciliation 
Service will make themselves familiar with this Code and will conduct 
themselves in accordance with the responsibilities outlined therein. The 
complete narrative of the Code appears in the appendix to this part.



Sec.  1400.735-21  Miscellaneous statutory provisions.

    Each employee shall acquaint himself with the statutes that relate 
to his ethical and other conduct as an employee of the Federal Mediation 
and Conciliation Service and of the Government. The attention of all 
employees is directed to the following statutory provisions and to the 
accompanying chart of penalties and statutory references:
    (a) House Concurrent Resolution 175, 85th Congress, 2d session, 72 
Stat. B12, the ``Code of Ethics for Government Service.''
    (b) Chapter 11 of title 18, United States Code, relating to bribery, 
graft, and conflicts of interest, as appropriate to the employees 
concerned.
    (c) The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913).
    (d) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 
18 U.S.C. 1918).

[[Page 36]]

    (e) The prohibition against the employment of a member of a 
Communist organization (50 U.S.C. 784).
    (f) The prohibitions against (1) the disclosure of classified 
information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of 
confidential information (18 U.S.C. 1905).
    (g) The provisions relating to the habitual use of intoxicants to 
excess (5 U.S.C. 7352).
    (h) The prohibition against the misuse of a Government vehicle (31 
U.S.C. 638a (c)).
    (i) The prohibition against the misuse of the franking privilege (18 
U.S.C. 1719).
    (j) The prohibition against the use of deceit in an examination of 
personnel action in connection with Government employment (18 U.S.C. 
1917).
    (k) The prohibition against fraud or false statements in a 
Government matter (18 U.S.C. 1001).
    (l) The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071).
    (m) The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508).
    (n) The prohibitions against (1) embezzlement of Government money or 
property (18 U.S.C. 641); (2) failing to account for public money (18 
U.S.C. 643); and (3) embezzlement of the money or property of another 
person in the possession of an employee by reason of his employment (18 
U.S.C. 654).
    (o) The prohibition against unauthorized use of documents relating 
to claims from or by the Government (18 U.S.C. 285).
    (p) The prohibitions against political activities in subchapter III 
of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603, 
607, and 608.
    (q) The prohibition against an employee acting as the agent of a 
foreign principal registered under the Foreign Agents Registration Act 
(18 U.S.C. 219).
    (r) Penalties: The following table, copied from the Federal 
Personnel Manual, lists maximum penalties for some of the more serious 
offenses.

------------------------------------------------------------------------
                                   Statute and
          Prohibition             United States       Maximum penalty
                                       Code
------------------------------------------------------------------------
A-1. Gifts to official          5 U.S.C. 7351....  Removal.
 superiors.
A-2. Conflicts of interest:
  a. Receiving compensation in  18 U.S.C. 203....  $10,000 fine; 2 years
   relation to claims                               imprisonment or
   contracts, etc.                                  both; and removal.
  b. Prosecuting claims         18 U.S.C. 205....  $10,000 fine; 2 years
   against and other matters                        imprisonment or
   affecting the Government.                        both.
  c. Prosecuting claims         18 U.S.C. 207....  $10,000 fine; 2 years
   involving matters connected                      imprisonment or
   with former duties--                             both.
   disqualification of
   partners.
  d. Interested persons acting  18 U.S.C. 208....  $10,000 fine; 2 years
   as Government agents.                            imprisonment or
                                                    both.
  e. Salaries from other than   18 U.S.C. 209....  $5,000 fine; 1 year
   Government sources.                              imprisonment or
                                                    both.
A-3. Lobbying with              18 U.S.C. 1913...  $500 fine; 1 year
 appropriated funds.                                imprisonment or
                                                    both; and removal.
A-4. Denial of rights to        5 U.S.C. 7102....  No specific penalty
 petition Congress.                                 provided.
A-5. Failure to make return or  18 U.S.C. 2075...  $1,000 fine.
 report.
A-6. Disloyalty and striking..  5 U.S.C. 7311; 18  $1,000 fine, 1 year
                                 U.S.C. 1918.       and a day
                                                    imprisonment or
                                                    both; and removal.
A-7. Employment of member of    50 U.S.C. 784 et   $10,000 fine; 5 years
 proscribed communist            seq.               imprisonment or
 organization.                                      both; and removal.
A-8. Disclosure of classified   18 U.S.C. 798; 50  $10,000 fine; 10
 information.                    U.S.C. 783.        years imprisonment
                                                    or both; and
                                                    removal.
A-9. Disclosure of              18 U.S.C. 1905...  $1,000 fine; 1 year
 confidential information.                          imprisonment or
                                                    both; and removal.
A-10. Habitual use of           5 U.S.C. 7352....  Removal.
 intoxicants to excess.
A-11. Misuse of Government      31 U.S.C. 638a(c)  Removal.
 vehicles.
A-12. Misuse of franking        18 U.S.C. 1719...  $300 fine.
 privilege.
A-13. Deceit in examinations    5 U.S.C. 1917....  $1,000 fine; 1 year
 and personnel actions.                             imprisonment or
                                                    both.
A-14. Fraud and false           18 U.S.C. 1001...  $10,000 fine; 5 years
 statements.                                        imprisonment or
                                                    both.
A-15. Unlawful mutilating or    18 U.S.C. 2071(b)  $2,000 fine; 3 years
 destroying public records.                         imprisonment or
                                                    both; and removal.
A-16. Bribery and graft:
  a. Bribery of public          18 U.S.C. 201....  $20,000 fine or three
   officials.                                       times the money or
                                                    thing received,
                                                    whichever is
                                                    greater; 15 years
                                                    imprisonment or
                                                    both; and removal.

[[Page 37]]

 
  b. Acceptance or              18 U.S.C. 211....  $1,000 fine; 1 year
   solicitation to obtain                           imprisonment or
   appointive office.                               both.
A-17. Counterfeiting and        18 U.S.C. 508....  $5,000 fine; 10 years
 forgery of transportation                          imprisonment or
 requests.                                          both.
A-18. Embezzlement and theft:
  a. Taking money, property,    18 U.S.C. 641....  $10,000 fine; 10
   or records.                                      years imprisonment
                                                    or both.
  b. Failure to render          18 U.S.C. 643....  Fine equal to amount
   accounts for public money.                       embezzled;
                                                    imprisonment not
                                                    more than 10 years
                                                    or both.
  c. Wrongfully converting      18 U.S.C. 654....  Same as penalty
   property of another.                             immediately above.
A-19. Taking or using papers    18 U.S.C. 285....  $5,000 fine; 5 years
 related to claims.                                 imprisonment or
                                                    both.
------------------------------------------------------------------------



              Subpart F_Disciplinary Actions and Penalties



Sec.  1400.735-60  Disciplinary actions.

    The Service shall take prompt disciplinary action against an 
employee committing prohibited activity, or whose conduct is prejudicial 
to the best interests of the Service, or of a nature to bring discredit 
to it. There are four major types of disciplinary action possible, 
following the above proceedings.
    (a) Reprimand. An official reprimand usually shall be issued to an 
employee or special Government employee for a first offense which is not 
serious.
    (b) Suspension. Under Civil Service and Federal Mediation and 
Conciliation Service regulations, an employee or special Government 
employee may be suspended without pay during the course of an 
investigation of alleged criminal, infamous, dishonest, immoral, or 
notoriously disgraceful conduct. Also, an employee may be suspended 
without pay for a definite period of time because of some offense of a 
less serious nature for which more drastic action is not justified.
    (c) Demotion. When such action will ``promote the efficiency of the 
Service,'' an employee or special Government employee may be demoted 
because of some offense for which more drastic action is not justified.
    (d) Separation. The Service is responsible for the prompt dismissal 
of unsatisfactory, incompetent, or unfit employees. Separation 
(dismissal or removal) can be the penalty for a single breach of conduct 
that is extremely serious in nature.



Sec.  1400.735-61  Notice to and appeal of employee.

    The Director of Administrative Management will prepare charges and 
institute proceedings, which in all cases will be in accordance with 
Civil Service procedures for disciplinary actions against status 
employees. Such proceedings will include notification to the employee of 
his appeal rights.



   Sec. Appendix to Part 1400--Code of Professional Conduct for Labor 
                                Mediators

                                preamble

    The practice of mediation is a profession with ethical 
responsibilities and duties. Those who engage in the practice of 
mediation must be dedicated to the principles of free and responsible 
collective bargaining. They must be aware that their duties and 
obligations relate to the parties who engage in collective bargaining, 
to every other mediator, to the agencies which administer the practice 
of mediation, and to the general public.
    Recognition is given to the varying statutory duties and 
responsibilities of the city, State and Federal agencies. This code, 
however, is not intended in any way to define or adjust any of these 
duties and responsibilities, nor is it intended to define when and in 
what situations mediators from more than one agency should participate. 
It is, rather, a personal code relating to the conduct of the individual 
mediator.
    This code is intended to establish principles applicable to all 
professional mediators employed by city, State or Federal agencies or to 
mediators privately retained by parties.
    I. The responsibility of the mediator to the parties. The primary 
responsibility for the resolution of a labor dispute rests upon the 
parties themselves. The mediator at all times should recognize that the 
agreements

[[Page 38]]

reached in collective bargaining are voluntarily made by the parties. It 
is the mediator's responsibility to assist the parties in reaching a 
settlement.
    It is desirable that agreement be reached by collective bargaining 
without mediation assistance. However, public policy and applicable 
statutes recognize that mediation is the appropriate form of 
governmental participation in cases where it is required. Whether and 
when a mediator should intercede will normally be influenced by the 
desires of the parties. Intercession by a mediator on his own motion 
should be limited to exceptional cases.
    The mediator must not consider himself limited to keeping peace at 
the bargaining table. His role should be one of being a resource upon 
which the parties may draw and, when appropriate, he should be prepared 
to provide both procedural and substantive suggestions and alternatives 
which will assist the parties in successful negotiations.
    Since mediation is essentially a voluntary process, the 
acceptability of the mediator by the parties as a person of integrity, 
objectivity, and fairness is absolutely essential to the effective 
performance of the duties of the mediator. The manner in which the 
mediator carries out his professional duties and responsibilities will 
measure his usefulness as a mediator. The quality of his character as 
well as his intellectual, emotional, social and technical attributes 
will reveal themselves by the conduct of the mediator and his oral and 
written communications with the parties, other mediators and the public.
    II. The responsibility of the mediator toward other mediators. A 
mediator should not enter any dispute which is being mediated by another 
mediator or mediators without first conferring with the person or 
persons conducting such mediation. The mediator should not intercede in 
a dispute merely because another mediator may also be participating. 
Conversely, it should not be assumed that the lack of mediation 
participation by one mediator indicates a need for participation by 
another mediator.
    In those situations where more than one mediator is participating in 
a particular case, each mediator has a responsibility to keep the others 
informed of developments which are essential to a cooperative effort, 
and should extend every possible courtesy to his fellow mediator.
    The mediator should carefully avoid any appearance of disagreement 
with or criticism of his fellow mediator. Discussions as to what 
positions and actions mediators should take in particular cases should 
be carried on solely between or among the mediators.
    III. The responsibility of the mediator toward his agency and his 
profession. Agencies responsible for providing mediation assistance to 
parties engaged in collective bargaining are a part of government. The 
mediator must recognize that, as such, he is part of government. The 
mediator should constantly bear in mind that he and his work are not 
judged solely on an individual basis but that he is also judged as a 
representative of his agency. Any improper conduct or professional 
shortcoming, therefore, reflects not only on the individual mediator but 
upon his employer and, as such, jeopardizes the effectiveness of his 
agency, other government agencies, and the acceptability of the 
mediation process.
    The mediator should not use his position for private gain or 
advantage, nor should he engage in any employment, activity or 
enterprise which will conflict with his work as a mediator, nor should 
he accept any money or thing of value for the performance of his 
duties--other than his regular salary--or incur obligations to any party 
which might interfere with the impartial performance of his duties.
    IV. The responsibility of the mediator toward the public. Collective 
bargaining is in essence a private, voluntary process. The primary 
purpose of mediation is to assist the parties to achieve a settlement. 
Such assistance does not abrogate the rights of the parties to resort to 
economic and legal sanctions. However, the mediation process may include 
a responsibility to assert the interest of the public that a particular 
dispute be settled; that a work stoppage be ended; and that normal 
operations be resumed. It should be understood, however, that the 
mediator does not regulate or control any of the content of a collective 
bargaining agreement.
    It is conceivable that a mediator might find it necessary to 
withdraw from a negotiation, if it is patently clear that the parties 
intend to use his presence as implied governmental sanction for an 
agreement obviously contrary to public policy.
    It is recognized that labor disputes are settled at the bargaining 
table; however, the mediator may release appropriate information with 
due regard (1) to the desires of the parties, (2) to whether that 
information will assist or impede the settlement of the dispute and (3) 
to the needs of an informed public.
    Publicity shall not be used by a mediator to enhance his own 
position or that of his agency. Where two or more mediators are 
mediating a dispute, public information should be handled through a 
mutually agreeable procedure.
    V. Responsibility of the mediator toward the mediation process. 
Collective bargaining is an established institution in our economic way 
of life. The practice of mediation required the development of 
alternatives which the parties will voluntarily accept as a basis for 
settling their problems. Improper pressures which jeopardize voluntary 
action by the parties should not be a part of mediation.

[[Page 39]]

    Since the status, experience, and ability of the mediator lend 
weight to his suggestions and recommendations, he should evaluate 
carefully the effect of his suggestions and recommendations and accept 
full responsibility for their honesty and merit.
    The mediator has a continuing responsibility to study industrial 
relations to improve his skills and upgrade his abilities.
    Suggestions by individual mediators or agencies to parties, which 
give the implication that transfer of a case from one mediation 
``forum'' to another will produce better results, are unprofessional and 
are to be condemned.
    Confidential information acquired by the mediator should not be 
disclosed to others for any purpose, or in a legal proceeding or be used 
directly or indirectly for the personal benefit or profit of the 
mediator.
    Bargaining positions, proposals or suggestions given to the mediator 
in confidence during the course of bargaining for his sole information, 
should not be disclosed to another party without first securing 
permission from the party or person who gave it to him.

[31 FR 5423, Apr. 6, 1966]



PART 1401_PUBLIC INFORMATION--Table of Contents



             Subpart A_Information in Response to Subpoenas

Sec.
1401.1 Purpose and scope.
1401.2 Productions of records or testimony by FMCS employees.
1401.3 Procedure in the event of a demand for production, disclosure, or 
          testimony.

            Subpart B_Production or Disclosure of Information

1401.20 Purpose and scope.
1401.21 Proactive disclosures and other disclosure requirements.
1401.22 Requirements for making requests.
1401.23 Responsibility for responding to requests.
1401.24 Timing of responses to requests.
1401.25 Responses to requests.
1401.26 Confidential commercial information (``CCI'').
1401.27 Appeals.
1401.28 Preservation of records.
1401.29 Fees.
1401.30 Other rights and services.

    Authority: Sec. 202, 61 Stat. 136, as amended; 5 U.S.C. 552.

    Source: 40 FR 8169, Feb. 26, 1975, unless otherwise noted.



             Subpart A_Information in Response to Subpoenas



Sec.  1401.1  Purpose and scope.

    This subpart contains the regulations of the Service concerning 
procedures to be followed when a subpoena, order, or other demand of a 
court or other authority is issued for the production or disclosure of 
(a) any material contained in the files of the Service; (b) any 
information relating to material contained in the files of the Service; 
or (c) any information or material acquired by any person as a part of 
the performance of his official duties or because of his official 
status, while such person was an employee of the Service.



Sec.  1401.2  Production of records or testimony by FMCS employees.

    (a) Public policy and the successful effectuation of the Federal 
Mediation and Conciliation Service's mission require that commissioners 
and employees maintain a reputation for impartiality and integrity. 
Labor and management or other interested parties participating in 
mediation efforts must have the assurance and confidence that 
information disclosed to commissioners and other employees of the 
Service will not subsequently be divulged, voluntarily or because of 
compulsion, unless authorized by the Director of the Service.
    (b) No officer, employee, or other person officially connected in 
any capacity with the Service, currently or formerly shall, in response 
to a subpoena, subpoena duces tecum, or other judicial or administrative 
order, produce any material contained in the files of the Service, 
disclose any information acquired as part of the performance of his 
official duties or because of his official status, or testify on behalf 
of any party to any matter pending in any judicial, arbitral or 
administrative proceeding, without the prior approval of the Director.



Sec.  1401.3  Procedure in the event of a demand for production, disclosure,
or testimony.

    (a) Any request for records of the Service, whether it be by letter, 
by subpoena duces tecum or by any other

[[Page 40]]

written demand, shall be handled pursuant to the procedures established 
in subpart B of this part, and shall comply with the rules governing 
public disclosure.
    (b) Whenever any subpoena or subpoena duces tecum calling for 
production of records or testimony as described above shall have been 
served upon any officer, employee or other person as noted in Sec.  
1401.2(b), he will, unless notified otherwise appear in answer thereto, 
and unless otherwise expressly directed by the Director, respectfully 
decline to produce or present such records or to give such testimony, by 
reason of the prohibitions of this section, and shall state that the 
production of the record(s) involved will be handled by the procedures 
established in this part.



            Subpart B_Production or Disclosure of Information

    Source: 86 FR 53543, Sept. 28, 2021, unless otherwise noted.



Sec.  1401.20  Purpose and scope.

    This subpart contains the rules that the Federal Mediation and 
Conciliation Service (``FMCS'' or ``the Agency'') follows in processing 
requests for records under the Freedom of Information Act (``FOIA''), 5 
U.S.C. 552. The regulations in this subpart should be read in 
conjunction with the text of the FOIA and the Uniform Freedom of 
Information Act Fee Schedule and Guidelines published by the Office of 
Management and Budget (``OMB Guidelines''). Requests made by individuals 
for records about themselves under the Privacy Act of 1974, 5 U.S.C. 
552a, are processed in accordance with Privacy Act criteria as well as 
under this subpart.



Sec.  1401.21  Proactive disclosures and other disclosure requirements.

    (a) The FMCS will make available for public inspection in an 
electronic format on the Agency's website any record that has been 
requested 3 or more times. The Agency has a FOIA Public Liaison who can 
assist individuals in locating records particular to an agency. The FMCS 
FOIA Public Liaison's contact information is available on the FMCS FOIA 
web page (www.fmcs.gov/foia).
    (b) The FMCS will withhold information under FOIA only if the Agency 
``reasonably foresees'' that disclosure would harm an interest protected 
by an exemption or as otherwise allowed by law.
    (c) Partial disclosures are appropriate for use by the FMCS when 
full disclosure is inappropriate or impossible. If a record contains 
both disclosable and exempt information, the exempt information will be 
redacted and the remaining record will be disclosed unless the two are 
so inextricably intertwined that it is not possible to separate them. 
Records disclosed in part shall be marked or annotated to show both the 
amount and the location of the information redacted and the applicable 
exemption.
    (d) All existing FMCS records are subject to disposition according 
to Agency record retention schedules and the General Records Schedules 
promulgated by the National Archives and Records Administration.



Sec.  1401.22  Requirements for making requests.

    (a) General information. (1) A requester can submit requests through 
one of the following ways: Submitting a request through the public 
portal on the FMCS FOIA website; sending an electronic request to the 
Office of General Counsel, [email protected]; or writing directly to the 
FMCS FOIA office at 250 E Street SW, Washington, DC 20427. Any 
additional requirements for submitting a request to the Agency are 
listed in paragraphs (a)(2) and (3) of this section and in the submitted 
form available by selecting ``FOIA'' at the bottom of the FMCS website 
www.fmcs.gov/foia.
    (2) A requester who is making a request for records about the 
requester must comply with the verification of identity requirements as 
determined by the FMCS to include providing documentation and completing 
a verification of identity form.
    (3) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization

[[Page 41]]

signed by that individual or a declaration made in compliance with the 
requirements set forth in 28 U.S.C. 1746 by that individual authorizing 
disclosure of the records to the requester, or by submitting proof that 
the individual is deceased (e.g., a copy of a death certificate or an 
obituary). As an exercise of administrative discretion, the Agency can 
require a requester to supply additional information, if necessary, to 
verify that a particular individual has consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable agency personnel to locate 
them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may help the Agency 
identify the requested records, such as the date, title or name, author, 
recipient, subject matter of the record, case number, file designation, 
or reference number. Before submitting requests, requesters may contact 
the Agency's FOIA Public Liaison, as identified at www.fmcs.gov/foia, to 
discuss the records they seek and to receive assistance in describing 
the records. If after receiving a request the FMCS determines that it 
does not reasonably describe the records sought, the FMCS will inform 
the requester what additional information is needed or why the request 
is otherwise insufficient. If a request does not reasonably describe the 
records sought, the FMCS's response to the request may be delayed.
    (c) Format for requests. Requests may specify the preferred form or 
format (including electronic formats) for the records. The FMCS will 
accommodate the request if the record is readily reproducible in that 
form or format.
    (d) Content of requests. Requesters must provide contact 
information, such as their full name, organization, phone number, email 
address, and/or mailing address, to assist the Agency in communicating 
with them and providing released records.



Sec.  1401.23  Responsibility for responding to requests.

    (a) In general. Where the FMCS first receives a request for a record 
and maintains that record, it is responsible for responding to the 
request. In determining which records are responsive to a request, the 
Agency ordinarily will include only records in its possession as of the 
date that it begins its search. If any other date is used, the Agency 
must inform the requester of that date. If the FMCS uses any other date 
due to needing to clarify the request or obtain a fee agreement, it must 
inform the requester of that date. A record that is excluded from the 
requirements of the FOIA, pursuant to 5 U.S.C. 552(c), is not considered 
responsive to a request.
    (b) Authority to grant or deny requests. The Director of FMCS or 
designee is authorized to grant or to deny any requests for records that 
are maintained by the Agency.
    (c) Consultation, referral, and coordination. When reviewing records 
in response to a request, the Agency will determine whether another 
agency of the Federal Government is better able to determine whether the 
record is exempt from disclosure under the FOIA. As to any such record, 
the Agency must proceed in one of the following ways:
    (1) Consultation. When records originated with the agency processing 
the request but contain information of interest to another agency or 
other Federal Government office, the FMCS will generally consult with 
that other entity prior to making a release determination.
    (2) Referral. (i) Ordinarily, when the FMCS is the originating 
agency, it is presumed to be in the best position to make the disclosure 
determination. When the FMCS believes that a different agency is best 
able to determine whether to disclose the record, the FMCS typically 
will request the other agency make the final response to the requester.
    (ii) Whenever the FMCS refers any part of the responsibility for 
responding to a request to another agency, it will document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral, informing the requester of the name(s) of the 
agency to which the record was referred, including that agency's FOIA 
contact information.
    (3) Coordination. The standard referral procedure in paragraph 
(c)(2) of this

[[Page 42]]

section will not be followed where disclosure of the identity of the 
agency to which the referral would be made could harm an interest 
protected by an applicable exemption, such as the exemptions that 
protect personal privacy or national security interests. In such 
instances, FMCS would coordinate with the originating agency to seek its 
views on whether the records should be exempt from disclosure. FMCS will 
issue the final response to the requester.
    (d) Classified information. On receipt of any request involving 
classified information, the FMCS will determine whether the information 
is currently and properly classified in accordance with applicable 
classification rules. Whenever a request involves a record containing 
information that has been classified or may be appropriate for 
classification by another agency under any applicable executive order 
concerning the classification of records, FMCS must refer the 
responsibility for responding to the request regarding that information 
to the agency that classified the information, or that should consider 
the information for classification. Whenever the FMCS's record contains 
information that has been derivatively classified (for example, when it 
contains information classified by another agency), the FMCS must refer 
the responsibility for responding to that portion of the request to the 
agency that classified the underlying information.
    (e) Timing of responses to consultations and referrals. All 
consultations and referrals received by the FMCS will be handled 
according to the date that the first agency received the perfected FOIA 
request.



Sec.  1401.24  Timing of responses to requests.

    (a) In general. The FMCS ordinarily will respond to requests 
according to their order of receipt. A request may be made directly to 
the FMCS by referring to procedures described on www.fmcs.gov or by 
email to [email protected].
    (b) Timing of response. The obligation to respond to a request for 
records arises on the first business day when the request is received by 
the Office of General Counsel.
    (c) Multi-track processing. FMCS designates a specific track for 
requests that are granted expedited processing, in accordance with the 
standards set forth in paragraph (e) of this section. FMCS may also 
designate additional processing tracks that distinguish between simple 
and more complex requests based on the estimated amount of work or time 
needed to process the request. Among the factors an agency may consider 
are the number of records requested, the number of pages involved in 
processing the request, and the need for consultations or referrals. 
FMCS must advise requesters of the track into which their request falls 
and, when appropriate, should offer the requesters an opportunity to 
narrow or modify their request so that it can be placed in a different 
processing track.
    (d) Unusual circumstances. Whenever the FMCS cannot meet the 
statutory time limit for processing a request because of ``unusual 
circumstances,'' as defined in the FOIA, and the FMCS extends the time 
limit on that basis, the FMCS must, before expiration of the 20-day 
response period, notify the requester in writing of the unusual 
circumstances involved and of the date by which the Agency estimates it 
will complete processing of the request. Where the extension exceeds 10 
working days, the FMCS will provide the requester with an opportunity to 
modify the request or arrange an alternative time period for processing 
the original or modified request. The FMCS will make available its 
designated FOIA contact or its FOIA Public Liaison for this purpose. The 
name and contact information for the FMCS's FOIA Public Liaison is 
available at www.fmcs.gov by selecting FOIA at the bottom of the screen. 
FMCS will also alert requesters to the availability of the Office of 
Government Information Services to provide dispute resolution services. 
Whenever the FMCS extends the time limits by more than ten additional 
working days, the FMCS must notify the requester of the right to seek 
dispute resolution services from the Office of the Government 
Information Services (OGIS).

[[Page 43]]

    (e) Aggregating requests. To satisfy unusual circumstances under the 
FOIA, agencies may aggregate requests in cases where it reasonably 
appears that multiple requests, submitted either by a requester or by a 
group of requesters acting in concert, constitute a single request that 
would otherwise involve unusual circumstances. Agencies cannot aggregate 
multiple requests that involve unrelated matters.
    (f) Expedited processing. (1) The Agency will process requests and 
appeals on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information.
    (2) A request for expedited processing may be made at any time. When 
making a request for expedited processing of an administrative appeal, 
the request should be submitted to the FMCS's Office of the Director via 
[email protected] or through the online portal located at www.fmcs.gov/foia.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (c) of this section, a requester who is not a full-time 
member of the news media must establish that the requester is a person 
whose primary professional activity or occupation is information 
dissemination, though it need not be the requester's sole occupation. 
Such a requester also must establish a particular urgency to inform the 
public about the government activity involved in the request--one that 
extends beyond the public's right to know about government activity 
generally. The existence of numerous articles published on a given 
subject can be helpful in establishing the requirement that there be an 
``urgency to inform'' the public on the topic. As a matter of 
administrative discretion, the FMCS may waive the formal certification 
requirement in this paragraph (f)(3).
    (4) The FMCS must notify the requester within 10 calendar days of 
the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request must be given priority, placed in the processing 
track for expedited requests, and must be processed as soon as 
practicable. If a request for expedited processing is denied, the FMCS 
must act on any appeal of that decision expeditiously.



Sec.  1401.25  Responses to requests.

    (a) In general. To the extent practicable, the FMCS will communicate 
electronically with requesters.
    (b) Acknowledgments of requests. The FMCS will acknowledge a request 
in writing and assign it an individualized tracking number if it will 
take longer than 10 working days to process.
    (c) Estimated dates of completion and interim responses. Upon 
request, the Agency will provide an estimated date by which it expects 
to provide a response to the requester. If a request involves a 
voluminous amount of material, or searches in multiple locations, the 
FMCS may provide interim responses, releasing the records on a rolling 
basis.
    (d) Grants of requests (fees). Once the Agency determines it will 
grant a request in full or in part, it will notify the requester in 
writing. The Agency will also inform the requester of any fees charged 
under Sec.  1401.30 and will disclose the requested records to the 
requester promptly upon payment of any applicable fees. The Agency will 
inform the requester of the availability of its FOIA Public Liaison to 
offer assistance.
    (e) Adverse determinations of requests. If the Agency makes an 
adverse determination denying a request in any respect, it must notify 
the requester of that determination in writing. Adverse determinations, 
or denials of requests, include decisions that: The requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject to 
the FOIA; the requested record does

[[Page 44]]

not exist, cannot be located, or has been destroyed; or the requested 
record is not readily reproducible in the form or format sought by the 
requester. Adverse determinations also include denials involving fees or 
fee waiver matters or denials of requests for expedited processing.
    (f) Content of denial. The denial must be signed by the head of the 
Agency or designee and must include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the Agency in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed in 
part or if providing an estimate would harm an interest protected by an 
applicable exemption;
    (4) A statement that the denial may be appealed under Sec.  1401.27, 
and a description of the appeal requirements; and
    (5) A statement notifying the requester of the assistance available 
from the Agency's FOIA Public Liaison, and the dispute resolution 
services offered by Office of Government Information Services.
    (g) Markings on released documents. Records disclosed in part must 
be marked clearly to show the amount of information redacted and the 
exemption under which the redaction was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information redacted must also be indicated on the record, if 
technically feasible.
    (h) Use of record exclusions. (1) In the event the FMCS identifies 
records that may be subject to exclusion from the requirements of the 
FOIA pursuant to 5 U.S.C. 552(c), the Agency will confer with Department 
of Justice, Office of Information Policy (OIP), to obtain approval to 
apply the exclusion.
    (2) In the event the FMCS applies an exclusion, it will maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.



Sec.  1401.26  Confidential commercial information (``CCI'').

    (a) Definitions. For purposes of this section:
    Confidential commercial information means information obtained by 
the FMCS from a submitter that may be protected from disclosure under 
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
    Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations expire 10 years after 
the date of the submission unless the submitter requests and provides 
justification for a longer designation period.
    (c) When notice to submitters is required. (1) The FMCS will 
promptly notify the submitter in writing whenever such confidential 
commercial information is requested under the FOIA and the Agency 
determines that it may be required to disclose the information, 
provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The FMCS has a reason to believe that the requested information 
may be protected from disclosure under Exemption 4, but has not yet made 
that determination.
    (2) The notice must either describe the commercial information 
requested or include a copy of the requested

[[Page 45]]

records or portions of records containing the information. In cases 
involving a voluminous number of submitters, the Agency may post or 
publish a notice in a place or manner reasonably likely to inform the 
submitters of the proposed disclosure, instead of sending individual 
notifications.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) The Agency determines that the information is exempt under the 
FOIA, or the information has been lawfully published or has been 
officially made available to the public;
    (2) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (3) The designation made by the submitter appears obviously 
frivolous.
    (e) Opportunity to object to disclosure. (1) The FMCS must specify a 
reasonable time period within which the submitter must respond to the 
notice referenced in paragraph (c) of this section.
    (2) If a submitter has any objections to disclosure, it should 
provide the Agency a detailed written statement that specifies all 
grounds for withholding the particular information under any exemption 
of the FOIA. In order to rely on Exemption 4 as the basis for 
nondisclosure, the submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is privileged or confidential.
    (3) A submitter who fails to respond within the time period 
specified in the notice will be considered to have no objection to 
disclosure of the information. The FMCS is not required to consider any 
information received after the date of any disclosure decision. Any 
information provided by a submitter under this subpart may itself be 
subject to disclosure under the FOIA.
    (f) Analysis of objections. The Agency must consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether to 
disclose the requested information.
    (g) Notice of intent to disclose. Whenever the FMCS decides to 
disclose information over the objection of a submitter, it must provide 
the submitter written notice, which must include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed or copies of 
the records as the Agency intends to release them; and
    (3) A specified disclosure date, which must be within a reasonable 
time after the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial information, 
the Agency must promptly notify the submitter.
    (i) Requester notification. The Agency must notify the requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.



Sec.  1401.27  Appeals.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determinations to the Agency's Deputy Director, FOIA Appeal, 
Federal Mediation and Conciliation Service, 250 E Street SW, Washington, 
DC 20427; [email protected]. Requesters can submit appeals by mail, email, 
or via the online portal at www.fmcs.gov/foia. The requester must make 
the appeal in writing, clearly identifying the grounds therefore and 
providing any supporting documentation. To be considered timely it must 
be postmarked or, in the case of electronic submissions, transmitted 
within 90 calendar days after the date of the response. The appeal 
should clearly identify the determination that is being appealed and the 
assigned request number, if known. To facilitate handling, the requester 
should mark both the appeal letter and envelope, or subject line of the 
electronic transmission, ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. An appeal ordinarily will not be 
adjudicated if the request becomes a matter of FOIA litigation.
    (c) Decisions on appeals. The Deputy Director of the FMCS or 
designee will

[[Page 46]]

provide a decision on an appeal. A decision that upholds the FMCS's 
determination in whole or in part must contain a statement that 
identifies the reasons for the affirmance, including any FOIA exemptions 
applied. The decision must provide the requester with notification of 
the statutory right to file a lawsuit and will inform the requester of 
the dispute resolution services offered by the OGIS as a non-exclusive 
alternative to litigation. If the decision is remanded or modified on 
appeal, the Deputy Director will notify the requester of that 
determination in writing. The Office of General Counsel will then 
further process the request in accordance with that appeal determination 
and will respond directly to the requester. Alternatively, the Deputy 
Director may decide to modify the decision and decide the appeal on its 
merits in a single step.
    (d) Engaging in dispute resolution services provided by OGIS. 
Dispute resolution is a voluntary process. If the Agency agrees to 
participate in the dispute resolution services provided by OGIS, the 
Deputy Director or designee will participate on behalf of the FMCS.
    (e) When appeal is required. Before seeking review by a court of the 
Agency's adverse determination, a requester generally must first submit 
a timely administrative appeal.



Sec.  1401.28  Preservation of records.

    The FMCS must preserve all correspondence pertaining to the requests 
that it receives under this subpart, as well as copies of all requested 
records, until final disposition of the ``request'' case: No sooner than 
91 days after the final response is sent to the requester to allow for a 
timely appeal. The Agency must not dispose of or destroy records while 
they are the subject of a pending request, appeal, or lawsuit under the 
FOIA.



Sec.  1401.29  Fees.

    (a) In general. (1) The FMCS will charge for processing requests 
under the FOIA in accordance with the provisions of this section and 
with the OMB Guidelines. For purposes of assessing fees, the FOIA 
establishes three categories of requesters:
    (i) Commercial use requesters;
    (ii) Non-commercial scientific or educational institutions or news 
media requesters; and
    (iii) All other requesters.
    (2) Different fees are assessed depending on the category. 
Requesters may seek a fee waiver. The Agency will consider requests for 
fee waivers in accordance with the requirements in subsection (k) of the 
FOIA. To resolve any fee issues that arise under this section, the FMCS 
may contact a requester for additional information. The Agency is to 
conduct searches, review, and duplication in an efficient and cost-
effective manner. The FMCS ordinarily will collect all applicable fees 
before sending copies of records to a requester. Requesters must pay 
fees by check or money order made payable to the Treasury of the United 
States, or by another method as determined by the Agency.
    (b) Definitions. For purposes of this section:
    Commercial use request is a request that asks for information for a 
use or a purpose that furthers a commercial, trade, or profit interest, 
which can include furthering those interests through litigation. The 
FMCS's decision to place a requester in the commercial use category will 
be made on a case-by-case basis based on the requester's intended use of 
the information. The Agency will notify requesters of their placement in 
this category.
    Direct costs are those expenses that an agency incurs in searching 
for and duplicating (and, in the case of commercial use requests, 
reviewing) records in order to respond to a FOIA request. For example, 
direct costs include the salary of the employee performing the work 
(i.e., the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating electronic equipment, 
such as photocopiers and scanners. Direct costs do not include overhead 
expenses such as the costs of space, and of heating or lighting a 
facility.
    Duplication is reproducing a copy of a record, or of the information 
contained in it, necessary to respond to a FOIA request. Copies can take 
the form of paper, audiovisual materials, or electronic records, among 
others.

[[Page 47]]

    Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with the requester's role at the 
educational institution. The FMCS may seek verification from the 
requester that the request is in furtherance of scholarly research and 
will advise requesters of their placement in this category.
    Noncommercial scientific institution is an institution that is not 
operated on a ``commercial'' basis, as defined in this paragraph (b) and 
that is operated solely for the purpose of conducting scientific 
research the results of which are not intended to promote any particular 
product or industry. A requester in this category must show that the 
request is authorized by and is made under the auspices of a qualifying 
institution and that the records are sought to further scientific 
research and are not for a commercial use. The FMCS will advise 
requesters of their placement in this category.
    Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast news to the public at large 
and publishers of periodicals that disseminate news and make their 
products available through a variety of means to the general public, 
including news organizations that disseminate solely on the internet. A 
request for records supporting the news-dissemination function of the 
requester will not be considered to be for a commercial use. Freelance 
journalists who demonstrate a solid basis for expecting publication 
through a news media entity will be considered as a representative of 
the news media. A publishing contract would provide the clearest 
evidence that publication is expected. However, the Agency can also 
consider a requester's past publication record in making this 
determination. The Agency will advise requesters of their placement in 
this category.
    Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time spent 
both obtaining and considering any formal objection to disclosure made 
by a confidential commercial information submitter under Sec.  1401.26, 
but it does not include time spent resolving general legal or policy 
issues regarding the application of exemptions.
    Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the Agency will 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section. Because the fee amounts 
provided in paragraphs (c)(1) through (3) of this section already 
account for the direct costs associated with a given fee type, the FMCS 
will not add any additional costs to charges calculated under this 
section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. The FMCS will charge search fees 
for all other requesters, subject to the restrictions of paragraph (d) 
of this section. The Agency may properly charge for time spent searching 
even if it does not locate any responsive records or if the Agency 
determines that the records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require new 
programming, the fees will be charged as follows:

[[Page 48]]

    (A) The Agency will charge the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. The Agency will notify the 
requester of the costs associated with creating such a program, and the 
requester must agree to pay the associated costs before the costs may be 
incurred.
    (B) For requests that require the retrieval of records stored by the 
Agency at a Federal records center operated by the National Archives and 
Records Administration (NARA), the Agency will charge additional costs 
in accordance with the Transactional Billing Rate Schedule established 
by NARA.
    (2) Duplication. The FMCS will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The Agency must honor a requester's preference for receiving a 
record in a particular form or format where the Agency can readily 
reproduce it in the form or format requested. Where photocopies are 
supplied, the Agency will provide one copy per request at cost ($0.05 
per page). For copies of records produced on tapes, disks, or other 
media, the FMCS will charge the direct costs of producing the copy, 
including operator time. Where paper documents must be scanned in order 
to comply with a requester's preference to receive the records in an 
electronic format, the requester must also pay the direct costs 
associated with scanning those materials. For other forms of 
duplication, the Agency will charge the direct costs.
    (3) Review. The Agency will charge review fees to requesters who 
make commercial use requests. Review fees will be assessed in connection 
with the initial review of the record, i.e., the review conducted to 
determine whether an exemption applies to a particular record or portion 
of a record. No charge will be made for review at the administrative 
appeal stage of exemptions applied at the initial review stage. However, 
if a particular exemption is deemed to no longer apply, any costs 
associated with the Agency's re-review of the records in order to 
consider the use of other exemptions may be assessed as review fees. 
Review fees will be charged at the same rates as those charged for a 
search under paragraph (c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) When the FMCS determines that 
a requester is an educational institution, non-commercial scientific 
institution, or representative of the news media, and the records are 
not sought for commercial use, it will not charge search fees.
    (2) FMCS cannot charge fees:
    (i) If the Agency fails to comply with the FOIA's time limits in 
which to respond to a request, it may not charge search fees or, in the 
instances of requests from requesters described in paragraph (d)(1) of 
this section, may not charge duplication fees, except as described in 
paragraphs (d)(2)(ii) through (iv) of this section.
    (ii) If the Agency has determined that unusual circumstances as 
defined by the FOIA apply and the Agency provided timely written notice 
to the requester in accordance with the FOIA, a failure to comply with 
the time limit shall be excused for an additional 10 days.
    (iii) If the Agency has determined that unusual circumstances, as 
defined by the FOIA, apply and more than 5,000 pages are necessary to 
respond to the request, the Agency may charge search fees or, in the 
case of requesters described in paragraph (d)(1) of this section, may 
charge duplication fees, if the following steps are taken. The Agency 
must have provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA, and the Agency must have 
discussed with the requester via written mail, email, or telephone (or 
made not less than three good-faith attempts to do so) how the requester 
could effectively limit the scope of the request in accordance with 5. 
U.S.C. 552(a)(6), (B)(ii). If the exception in this paragraph 
(d)(2)(iii) is satisfied, the Agency may charge all applicable fees 
incurred in the processing of the request.
    (iv) If a court has determined that exceptional circumstances exist 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.

[[Page 49]]

    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, the 
FMCS will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.00.
    (e) Notice of anticipated fees in excess of $25.00. (1) When the 
FMCS determines or estimates that the fees to be assessed in accordance 
with this section will exceed $25.00, the Agency must notify the 
requester of the actual or estimated amount of the fees, including a 
breakdown of the fees for search, review, or duplication, unless the 
requester has indicated a willingness to pay fees as high as those 
anticipated. If only a portion of the fee can be estimated readily, the 
Agency will advise the requester accordingly. If the request is for 
noncommercial use, the notice will specify that the requester is 
entitled to the statutory entitlements of 100 pages of duplication at no 
charge and, if the requester is charged search fees, two hours of search 
time at no charge, and the notice will advise the requester whether 
those entitlements have been provided.
    (2) If the Agency notifies the requester that the actual or 
estimated fees are in excess of $25.00, the request will not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees the requester is willing to pay, or in 
the case of a noncommercial use requester who has not yet been provided 
with the requester's statutory entitlements, designates that the 
requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. The FMCS is not required to accept 
payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the Agency estimates that the total fee 
will exceed that amount, the Agency will toll the processing of the 
request when it notifies the requester of the estimated fees in excess 
of the amount the requester has indicated a willingness to pay. The 
Agency will inquire whether the requester wishes to revise the amount of 
fees the requester is willing to pay or modify the request. Once the 
requester responds, the time to respond will resume from where it was at 
the date of the notification.
    (4) The FMCS will make available its FOIA Public Liaison or other 
FOIA professional to assist any requester in reformulating a request to 
meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if the Agency chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same document, 
or sending records by means other than first class mail.
    (g) Charging interest. The Agency may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the Agency. The Agency will follow the provisions of the 
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, 
and its administrative procedures, including the use of consumer 
reporting agencies, collection agencies, and offset (see 29 CFR part 
1450).
    (h) Aggregating requests. When the FMCS reasonably believes that a 
requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, the Agency may aggregate those requests and charge 
accordingly. The Agency may presume that multiple requests of this type 
made within a 30-day period

[[Page 50]]

have been made in order to avoid fees. For requests separated by a 
longer period, the Agency will aggregate them only where there is a 
reasonable basis for determining that aggregation is warranted in view 
of all the circumstances involved. Multiple requests involving unrelated 
matters cannot be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraph (i)(2) or (3) of this section, the Agency cannot require the 
requester to make an advance payment before work on a request starts or 
continues. Payment owed for work already completed (i.e., payment before 
copies are sent to a requester) is not an advance payment.
    (2) When the Agency determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. The Agency may 
elect to process the request prior to collecting fees when it receives a 
satisfactory assurance of full payment from a requester with a history 
of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to the Agency within 30 calendar days of the billing 
date, the Agency may require that the requester pay the full amount due, 
plus any applicable interest on that prior request, and the Agency may 
require that the requester make an advance payment of the full amount of 
any anticipated fee before the Agency begins to process a new request or 
continues to process a pending request or any pending appeal. Where the 
Agency has a reasonable basis to believe that a requester has 
misrepresented the requester's identity in order to avoid paying 
outstanding fees, it may require that the requester provide proof of 
identity.
    (4) In cases in which the Agency requires advance payment, the 
request will not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the Agency's fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute that 
specifically requires an agency to set and collect fees for particular 
types of records. In instances where records responsive to a request are 
subject to a statutorily-based fee schedule program, the Agency must 
inform the requester of the contact information for that program.
    (k) Requirements for waiver or reduction of fees. (1) Requesters may 
seek a waiver of fees by submitting a written application demonstrating 
how disclosure of the requested information is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government and is not primarily 
in the commercial interest of the requester.
    (2) The Agency must furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that the factors described in paragraphs (k)(2)(i) through 
(iii) of this section are satisfied:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information is likely to contribute 
significantly to public understanding of those operations or activities. 
This factor is satisfied when the following criteria are met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure of 
information that already is in the public domain, in either the same or 
a substantially identical form, would not be meaningfully informative if 
nothing new would be added to the public's understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject

[[Page 51]]

area as well as the requester's ability and intention to effectively 
convey information to the public must be considered. The FMCS will 
presume that a representative of the news media will satisfy this 
consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, the Agency will consider the following criteria:
    (A) The FMCS must identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters must be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, the Agency must 
determine whether that is the primary interest furthered by the request. 
A waiver or reduction of fees is justified when the requirements of 
paragraphs (k)(2)(i) and (ii) of this section are satisfied and any 
commercial interest is not the primary interest furthered by the 
request. The Agency ordinarily will presume that when a news media 
requester has satisfied paragraphs (k)(2)(i) and (ii), the request is 
not primarily in the commercial interest of the requester. Disclosure to 
data brokers or others who merely compile and market government 
information for direct economic return will not be presumed to primarily 
serve the public interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver must be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Agency and should address the 
criteria referenced in paragraphs (k)(1) and (2) of this section. A 
requester may submit a fee waiver request at a later time so long as the 
underlying record request is pending or on administrative appeal. When a 
requester who has committed to pay fees subsequently asks for a waiver 
of those fees and that waiver is denied, the requester must pay any 
costs incurred up to the date the fee waiver request was received.



Sec.  1401.30  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.



PART 1402_PROCEDURES OF THE SERVICE--Table of Contents



    Authority: Sec. 202, 61 Stat. 153, sec. 3, 80 Stat. 250, sec. 203, 
61 Stat. 153; 5 U.S.C. 552, 29 U.S.C. 172, 173.



Sec.  1402.1  Notice of dispute.

    The notice of dispute filed with the Federal Mediation and 
Conciliation Service pursuant to the provisions of section 8(d)(3), of 
the Labor-Management Relations Act, 1947, as amended, shall be submitted 
electronically via a platform provided by FMCS. If electronic submission 
creates an undue hardship, the filer may contact the FMCS Notice 
Processing office to explain the circumstances and receive assistance. 
The Form F-7, for use by the parties in filing a notice of dispute, has 
been prepared by the Service.

[86 FR 50855, Sept. 13, 2021]



PART 1403_FUNCTIONS AND DUTIES--Table of Contents



Sec.
1403.1 Definitions.
1403.2 Policies of the Federal Mediation and Conciliation Service.
1403.3 Obtaining data on labor-management disputes.
1403.4 Assignment of mediators.
1403.5 Relations with State and local mediation agencies.

    Authority: Sec. 202, 61 Stat. 153, sec. 3, 80 Stat. 250, sec. 203, 
61 Stat. 153; 29 U.S.C. 172, 5 U.S.C. 552, 29 U.S.C. 173.

    Source: 32 FR 9813, July 6, 1967, unless otherwise noted.



Sec.  1403.1  Definitions.

    As used in this part, unless the context clearly indicates 
otherwise;
    (a) The term commerce means trade, traffic, commerce, 
transportation, or communication among the several

[[Page 52]]

States, or between the District of Columbia or any Territory of the 
United States and any State or other Territory, or between any foreign 
country and any State, Territory, or the District of Columbia, or within 
the District of Columbia, or any Territory, or between points in the 
same State but through any other State or any Territory or the District 
of Columbia or any foreign country.
    (b) The term affecting commerce means in commerce, or burdening or 
obstructing commerce or the free flow of commerce, or having led or 
tending to lead to a labor-management dispute burdening or obstructing 
commerce or the free flow of commerce.
    (c) The term labor union or labor organization means any 
organization of any kind, or any agency or employee representation 
committee or plan, in which employees participate and which exists for 
the purpose, in whole or in part, of dealing with employers concerning 
grievances, labor disputes, wages, rates of pay, hours of employment, or 
conditions of work.
    (d) The term State or other conciliation services means the official 
and accredited mediation and conciliation establishments of State and 
local governments, which are wholly or partially supported by public 
funds.
    (e) The term proffer its services, as applied to the functions and 
duties of the Federal Mediation and Conciliation Service, means to make 
mediation services and facilities available either on its own motion or 
upon the request of one or more of the parties to a dispute.



Sec.  1403.2  Policies of the Federal Mediation and Conciliation Service.

    It is the policy of the Federal Mediation and Conciliation Service:
    (a) To facilitate and promote the settlement of labor-management 
disputes through collective bargaining by encouraging labor and 
management to resolve differences through their own resources.
    (b) To encourage the States to provide facilities for fostering 
better labor-management relations and for resolving disputes.
    (c) To proffer its services in labor-management disputes in any 
industry affecting commerce, except as to any matter which is subject to 
the provisions of the Railway Labor Act, as amended, either upon its own 
motion or upon the request of one or more of the parties to the dispute, 
whenever in its judgment such dispute threatens to cause a substantial 
interruption to commerce.
    (d) To refrain from proffering its services:
    (1) In labor-management disputes affecting intrastate commerce 
exclusively,
    (2) In labor-management disputes having a minor effect on interstate 
commerce, if State or other conciliation services are available to the 
parties, or
    (3) In a labor-management dispute when a substantial question of 
representation has been raised, or to continue to make its facilities 
available when a substantial question of representation is raised during 
the negotiations.
    (e) To proffer its services in any labor-management dispute directly 
involving Government procurement contracts necessary to the national 
defense, or in disputes which imperil or threaten to imperil the 
national health or safety.
    (f) To proffer its services to the parties in grievance disputes 
arising over the application or interpretation of an existing 
collective-bargaining agreement only as a last resort and in exceptional 
cases.



Sec.  1403.3  Obtaining data on labor-management disputes.

    When the existence of a labor-management dispute comes to the 
attention of the Federal Service upon a request for mediation service 
from one or more parties to the dispute, through notification under the 
provisions of section 8(d)(3), title I of the Labor-Management Relations 
Act, 1947, or otherwise, the Federal Service will examine the 
information to determine if the Service should proffer its services 
under its policies. If sufficient data on which to base a determination 
is not at hand, the Federal Service will inquire into the circumstances 
surrounding the case. Such inquiry will be conducted for fact-finding 
purposes only and is

[[Page 53]]

not to be interpreted as the Federal Service proffering its services.



Sec.  1403.4  Assignment of mediators.

    The Federal Service will assign one or more mediators to each labor-
management dispute in which it has been determined that its services 
should proffered.



Sec.  1403.5  Relations with State and local mediation agencies.

    (a) If under State or local law a State or local mediation agency 
must offer its facilities in a labor-management dispute in which the 
Federal Service is proffering its services, the interests of such 
agencies will be recognized and their co-operation will be encouraged in 
order that all efforts may be made to prevent or to effectively minimize 
industrial strife.
    (b) If, in a labor-management dispute there is reasonable doubt that 
the dispute threatens to cause a substantial interruption to commerce or 
that there is more than a minor effect upon interstate commerce, and 
State or other conciliation services are available to the parties, the 
regional director of the Federal Service will endeavor to work out 
suitable arrangements with the State or other conciliation or mediation 
agency for mediation of the dispute. Decisions in such cases will take 
into consideration the desires of the parties, the effectiveness and 
availability of the respective facilities, and the public welfare, 
health, and safety.
    (c) If requested by a State or local mediation agency or the chief 
executive of a State or local government, the Federal Service may make 
its services available in a labor-management dispute which would have 
only a minor effect upon interstate commerce when, in the judgment of 
the Federal Service, the effect of the dispute upon commerce or the 
public welfare, health, or safety justifies making available its 
mediation facilities.



PART 1404_ARBITRATION SERVICES--Table of Contents



         Subpart A_Arbitration Policy; Administration of Roster

Sec.
1404.1 Scope and authority.
1404.2 Policy.
1404.3 Administrative responsibilities.

        Subpart B_Roster of Arbitrators; Admission and Retention

1404.4 Roster and status of members.
1404.5 Listing on the Roster, criteria for listing and removal, 
          procedure for removal.
1404.6 Inactive status.
1404.7 Listing fee.

              Subpart C_Procedures for Arbitration Services

1404.8 Freedom of choice.
1404.9 Procedures for requesting arbitration lists and panels.
1404.10 Arbitrability.
1404.11 Nomination of arbitrators.
1404.12 Selection by parties and appointment of arbitrators.
1404.13 Conduct of hearings.
1404.14 Decision and award.
1404.15 Fees and charges of arbitrators.
1404.16 Reports and biographical sketches.

                     Subpart D_Expedited Arbitration

1404.17 Policy.
1404.18 Procedures for requesting expedited panels.
1404.19 Arbitration process.

Appendix to Part 1404--Arbitration Policy; Schedule of Fees

    Authority: 29 U.S.C. 172 and 29 U.S.C. 173 et seq.

    Source: 84 FR 16206, Apr. 18, 2019, unless otherwise noted.



         Subpart A_Arbitration Policy; Administration of Roster



Sec.  1404.1  Scope and authority.

    This chapter is issued by the Federal Mediation and Conciliation 
Service (FMCS) under Title II of the Labor Management Relations Act of 
1947 (Pub. L. 80-101) as amended. It applies to all arbitrators listed 
on the FMCS Roster of Arbitrators (the Roster), to all applicants for 
listing on the Roster, and to all persons or parties seeking to obtain 
from FMCS either names or

[[Page 54]]

panels of names of arbitrators listed on the Roster in connection with 
disputes that are to be submitted to arbitration or fact-finding.



Sec.  1404.2  Policy.

    The labor policy of the United States promotes and encourages the 
use of voluntary arbitration to resolve disputes over the interpretation 
or application of collective bargaining agreements. Voluntary 
arbitration and fact-finding are important features of constructive 
employment relations as alternatives to economic strife.



Sec.  1404.3  Administrative responsibilities.

    (a) Director. The Director of FMCS has responsibility for all 
aspects of FMCS arbitration activities and is the final agency authority 
on all questions concerning the Roster and FMCS arbitration procedures.
    (b) Office of Arbitration. The Office of Arbitration (OA) maintains 
the Roster; administers subpart C of this part (Procedures for 
Arbitration Services); assists, promotes, and cooperates in the 
establishment of programs for training and developing new arbitrators; 
and provides names or panels of names of listed arbitrators to parties 
requesting them.
    (c) Arbitrator Review Board. The Arbitrator Review Board (Board) 
shall consist of a chair and members appointed by the Director who shall 
serve at the Director's pleasure. The Board shall be composed entirely 
of full-time officers or employees of the Federal Government and shall 
establish procedures for carrying out its duties.
    (1) Duties of the Board. The Board shall:
    (i) Review the qualifications of all applicants for listing on the 
Roster, interpreting and applying the criteria set forth in Sec.  
1404.5;
    (ii) Review the status of all persons whose continued eligibility 
for listing on the Roster has been questioned under Sec.  1404.5;
    (iii) Recommend to the Director the acceptance or rejection of 
applicants for listing on the Roster, or the withdrawal of listing on 
the Roster for any of the reasons set forth in this part;
    (iv) At the request of the Director, or upon its own volition, 
review arbitration policies and procedures, including all regulations 
and written guidance regarding the use of Roster arbitrators, and make 
recommendations regarding such policies and procedures to the Director.
    (2) [Reserved]



        Subpart B_Roster of Arbitrators; Admission and Retention



Sec.  1404.4  Roster and status of members.

    (a) The Roster. FMCS shall maintain a Roster of labor arbitrators 
consisting of persons who meet the criteria for listing contained in 
Sec.  1404.5 and who remain in good standing.
    (b) Adherence to standards and requirements. Persons listed on the 
Roster shall comply with FMCS rules and regulations pertaining to 
arbitration and with such guidelines and procedures as may be issued by 
OA pursuant to subpart C of this part. Arbitrators shall conform to the 
ethical standards and procedures set forth in the Code of Professional 
Responsibility for Arbitrators of Labor Management Disputes, as approved 
by the National Academy of Arbitrators, FMCS, and the American 
Arbitration Association (``the Code'').
    (c) Status of arbitrators. Persons who are listed on the Roster and 
are selected or appointed to hear arbitration matters or to serve as 
factfinders do not become employees of the Federal Government by virtue 
of their selection or appointment. Following selection or appointment, 
the arbitrator's relationship is solely with the parties to the dispute, 
except that arbitrators are subject to certain reporting requirements 
and to standards of conduct as set forth in this part.
    (d) Rights of persons listed on the Roster. No person shall have any 
right to be listed or to remain listed on the Roster. FMCS retains its 
authority and responsibility to assure that the needs of the parties 
using its services are served. To accomplish this purpose, FMCS may 
establish procedures for the preparation of panels or the appointment of 
arbitrators or factfinders that include consideration of such factors as

[[Page 55]]

background and experience, availability, acceptability, geographical 
location, and the expressed preferences of the parties.



Sec.  1404.5  Listing on the Roster, criteria for listing and removal,
procedure for removal.

    Persons seeking to be listed on the Roster must complete and submit 
an application available online at https://www.fmcs.gov/services/
arbitration/information-joining-arbitrator-roster/. Upon receipt of an 
executed application, OA will review the application, ensure that it is 
complete, make such inquiries as are necessary, and submit the 
application to the Board. The Board will review the completed 
application under the criteria in paragraphs (a), (b) and (c) of this 
section, and will forward to the FMCS Director, or Director's designee, 
its recommendation as to whether or not the applicant meets the criteria 
for listing on the Roster. The Director shall make all final decisions 
as to whether an applicant may be listed on the Roster. Each applicant 
shall be notified in writing of the Director's decision and the reasons 
therefore.
    (a) General criteria. (1) Applicants will be listed on the Roster 
upon a determination that he or she:
    (i) Is experienced, competent, and acceptable in decision-making 
roles in the resolution of labor relations disputes; or
    (ii) Has extensive and recent experience in relevant positions in 
collective bargaining; and
    (iii) Is capable of conducting an orderly hearing, can analyze 
testimony and exhibits and can prepare clear and concise findings and 
awards within reasonable time limits.
    (iv) For applicants who are governmental employees, the following 
criteria shall also apply:
    (A) Federal employees. These applicants must provide OA with written 
permission from their employer to work as an arbitrator. Federal 
employees will not be assigned to panels involving the Federal 
Government.
    (B) Governmental employees other than Federal. These applicants must 
provide OA with written permission from their employer to work as an 
arbitrator as well as a statement of the jurisdiction(s) in which the 
applicant is permitted to do this work.
    (2) FMCS may identify certain positions relating to collective 
bargaining that will substitute for the General Criteria. FMCS may also 
identify periodic educational requirements for remaining on the Roster.
    (b) Proof of qualification. Unless waived under exceptional 
circumstances wholly in the discretion of the Director, applicants must:
    (1) Submit five recent labor arbitration awards that are final and 
binding, and prepared by the applicant while serving as an impartial 
arbitrator of record selected by mutual agreement of the parties to 
labor relations disputes arising under collective bargaining agreements, 
or by direct designation by an administrative agency, or
    (2) Successfully complete the FMCS labor arbitrator training course 
and either submit one award as described above or complete an 
apprenticeship that meets specifications that FMCS may, in its 
discretion, provide. Applicants must also submit information 
demonstrating extensive and recent experience in collective bargaining, 
including at least the position or title held, duties or 
responsibilities, the name and location of the company or organization, 
and the dates of employment.
    (c) Advocacy. Any person who at the time of application is an 
advocate, as defined in paragraph (c)(1) of this section, must agree to 
cease such activity before being recommended for listing on the Roster 
by the Board. Except in the case of persons listed on the Roster as 
advocates before November 17, 1976, any person who did not divulge his 
or her advocacy at the time of listing or who becomes an advocate while 
listed on the Roster and who did not request to be placed on inactive 
status pursuant to Sec.  1404.6 prior to becoming an advocate, shall be 
recommended for removal by the Board after the fact of advocacy is 
revealed.
    (1) Definition of advocacy. (i) An advocate is a person who 
represents employers, labor organizations, or individuals as an 
employee, attorney, or consultant, in matters of labor relations or 
employment relations, including but

[[Page 56]]

not limited to the subjects of union representation and recognition 
matters, collective bargaining, arbitration, unfair labor practices, 
equal employment opportunity, and other areas generally recognized as 
constituting labor or employment relations. The definition includes 
representatives of employers or employees in individual cases or 
controversies involving worker's compensation, occupational health or 
safety, minimum wage, or other labor standards matters.
    (ii) This definition of advocate also includes a person who is 
directly or indirectly associated with an advocate in a business or 
professional relationship as, for example, partners or employees of a 
law firm. Individuals engaged only in joint education or training or 
other non-adversarial activities will not be deemed to be advocates.
    (2) [Reserved]
    (d) Removal from the Roster. Removal from the Roster shall be by 
decision of the Director of FMCS based upon the recommendations of the 
Board or upon the Director's own initiative. The Board may recommend for 
removal, and the Director may remove, any arbitrator listed on the 
Roster for violation of this part or of the Code. FMCS will provide to 
the affected arbitrator written notice of removal from the Roster. 
Complaints about arbitrators should be in writing and sent to the 
Director of OA. The complaint should cite any specific section(s) of the 
Code or the FMCS rule the arbitrator has allegedly violated. The 
following criteria shall be a basis for the Board to recommend and/or 
the Director to initiate an arbitrator's removal from the Roster:
    (1) No longer meets the criteria for admission;
    (2) Has become an advocate as defined in paragraph (c) of this 
section;
    (3) Has been repeatedly or flagrantly in violation of one or more 
provisions of this part;
    (4) Has refused to make reasonable and periodic reports in a timely 
manner to FMCS, as required in subpart C of this part, concerning 
activities pertaining to arbitration;
    (5) Has been the subject of a complaint by a party who uses FMCS 
services, or engages in conduct inappropriate for an arbitrator which 
otherwise comes to the attention of FMCS, and the Board, after 
appropriate inquiry, concludes that cause for removal has been shown; or
    (6) Has been in an inactive status pursuant to Sec.  1404.6 for 
longer than two years and has not paid the annual listing fee.
    (e) Procedure for removal. Prior to any recommendation by the Board 
to remove an arbitrator from the Roster, the Board shall conduct an 
inquiry into the facts of any such recommended removal. When the Board 
recommends removal of an arbitrator, it shall send the arbitrator a 
written notice. This notice shall inform the arbitrator of the Board's 
recommendation and the basis for it, and that he or she has 60 days from 
the date of such notice to submit a written response or information 
showing why the arbitrator should not be removed. When the Director 
removes an arbitrator from the Roster, he or she shall inform the 
arbitrator of this in writing, stating the effective date of the removal 
and the length of time of the removal if it is not indefinite. An 
arbitrator so removed may seek reinstatement to the Roster by making 
written application to the Director no earlier than two years after the 
effective date of his or her removal.
    (f) Suspension. The Director of OA may suspend, for a period not to 
exceed 180 days, any arbitrator listed on the Roster based on any of the 
criteria in paragraph (d) of this section. Arbitrators shall be promptly 
notified of a suspension. The arbitrator may appeal a suspension to the 
Board, which shall make a recommendation to the Director of FMCS. The 
decision of the Director of FMCS shall constitute the final action of 
the agency.



Sec.  1404.6  Inactive status.

    (a) An arbitrator on the Roster who continues to meet the criteria 
for listing on the Roster may request that he or she be put in an 
inactive status on a temporary basis.
    (b) Arbitrators whose schedules do not permit cases to be heard 
within six months of assignment must make themselves inactive 
temporarily until their caseload permits the earlier scheduling of 
cases.

[[Page 57]]

    (c) An arbitrator can remain on inactive status without paying any 
annual listing fee for a period of two years. If an arbitrator is on 
inactive status for longer than two (2) years, the arbitrator will be 
removed from the Roster unless the arbitrator pays the annual listing 
fee.



Sec.  1404.7  Listing fee.

    All arbitrators will be required to pay an annual fee for listing on 
the Roster, as set forth in the appendix to this part.



              Subpart C_Procedures for Arbitration Services



Sec.  1404.8  Freedom of choice.

    Nothing contained in this part should be construed to limit the 
rights of parties who use FMCS arbitration services to jointly select 
any arbitrator or arbitration procedure acceptable to them. Once a 
request is made to OA, all parties are subject to the procedures 
contained in this part.



Sec.  1404.9  Procedures for requesting arbitration lists and panels.

    (a) The OA has been delegated the responsibility for administering 
all requests for labor arbitration services. Requests must be made 
online at fmcs.gov/services/arbitration/requesting-a-panel/, or via 
email attaching a completed Form R-43 addressed to [email protected].
    (b) Upon request, OA will refer a randomly selected panel of seven 
arbitrators to parties to an agreement to arbitrate or engage in fact-
finding, or where labor arbitration or fact-finding may be provided by 
statute. A biographical sketch will be provided for each member of the 
panel. This sketch states the background, qualifications, experience, 
and all fees as furnished to OA by the arbitrator. The parties are 
encouraged to make joint requests. However, a panel request, whether 
joint or unilateral, will be honored. Requests for a panel of other than 
seven (7) names, for a direct appointment of an arbitrator, and/or for 
special qualifications or other service will not be honored unless 
jointly submitted or authorized by both parties pursuant to mutual 
agreement. The issuance of a panel--in response to either joint or 
unilateral request--is nothing more than a response to a request. 
Neither issuance of a panel nor appointment of an arbitrator signifies 
the adoption of any position by FMCS regarding the status of an 
arbitration agreement, arbitrability of any dispute, or the terms of the 
parties' contract.
    (c) FMCS has no power to:
    (1) Compel parties to appear before an arbitrator;
    (2) Enforce an agreement to arbitrate;
    (3) Compel parties to arbitrate any issue;
    (4) Influence, alter, or set aside decisions of arbitrators on the 
Roster; or
    (5) Compel, deny, or modify payment of compensation to an 
arbitrator.
    (d) OA may decline to submit a panel or to make an appointment of an 
arbitrator if the request submitted is overly burdensome or otherwise 
impracticable. OA, in such circumstances, may refer the parties to an 
FMCS mediator to help in the design of an alternative solution. OA may 
also decline to service any request from a party based on the party's 
prior non-payment of arbitrator fees or other behavior that constrains 
the spirit or operation of the arbitration process.
    (e) Panel requests that contain certain special requirements not 
found among the selections online, cannot be processed via the agency's 
internet system; instead, parties must submit the pdf version of the R-
43 form via email to OA and specify the additional requirements agreed 
to by both parties.
    (f) As an alternative to a panel of arbitrators, OA will, upon 
written request, submit a list of arbitrators and their biographical 
sketches from a designated geographical area; the parties may then 
select and deal directly with an arbitrator of their choice, with no 
further involvement of FMCS with the parties or the arbitrator, and no 
assigned case number. The parties may also request FMCS to make a direct 
appointment of their selection. In such a situation, a case number will 
be assigned.
    (g) OA will charge a fee for all requests for lists, panels, and 
other major services. Payments for these

[[Page 58]]

services must be received with the request for services before the 
service is delivered and may be paid by either labor or management or 
both. A schedule of fees is listed in the appendix to this part.



Sec.  1404.10  Arbitrability.

    OA will not decide the merits of a claim by either party that a 
dispute is not subject to arbitration.



Sec.  1404.11  Nominations of arbitrators.

    (a) All panels submitted to the parties by OA, and all letters 
issued by OA making a direct appointment, will have an assigned FMCS 
case number. All future communications with OA should refer to this case 
number.
    (b) OA will provide a randomly selected panel of arbitrators located 
in geographical areas in proximity of the hearing site, as specified in 
the request. The parties may jointly request special qualification of 
arbitrators experienced in certain issues or industries or that possess 
certain backgrounds, or a panel with no geographic restrictions within 
the U.S. OA has no obligation to put an individual on any given panel or 
on a minimum number of panels in any fixed period. If at any time both 
parties request that a name or names be included, or omitted, from a 
panel, such name or names will be included, or omitted, unless the 
number of names is excessive. These inclusions/exclusions may not 
discriminate against anyone because of age, race, color, gender, 
national origin, disability, genetic information, or religion.
    (c) If the parties do not agree on an arbitrator from the first 
panel, OA will furnish up to five additional panels to the parties upon 
joint request, or upon a unilateral request if authorized by the 
applicable collective bargaining agreement, and payment of additional 
fees.



Sec.  1404.12  Selection by parties and appointment of arbitrators.

    (a) After receiving a panel of names, the parties must notify OA of 
their selection of an arbitrator or of the decision not to proceed with 
arbitration. Upon notification of the selection of an arbitrator, OA 
will make a formal appointment of the arbitrator. The arbitrator, upon 
notification of appointment, shall communicate with the parties within 
14 days to arrange for preliminary matters, such as the date and place 
of hearing. Should an arbitrator be notified directly by the parties 
that he or she has been selected, the arbitrator must promptly notify OA 
of the selection. The arbitrator must provide OA with the FMCS case 
number and other pertinent information for OA to make an appointment. A 
pattern of failure by an arbitrator to notify FMCS of a selection in an 
FMCS case may result in suspension or removal from the Roster. If the 
parties settle a case prior to the hearing, the parties must inform the 
arbitrator as well as OA. Consistent failure to follow these procedures 
may lead to a denial of future OA services.
    (b) Where the parties' collective bargaining agreement permits each 
party to separately notify OA of its ranked order of preference, or is 
silent on the manner of selecting arbitrators, FMCS will ask each party 
to advise OA of its order of preference by numbering each name on the 
panel and submitting the numbered list in writing to OA. Upon receiving 
the rank order from one party, OA will notify the other party that it 
has fourteen (14) days in which to submit its selections. Where both 
parties respond, the name that has the lowest combined number will be 
appointed. If the other party fails to respond, the first party's choice 
will be honored.
    (c) OA will make a direct appointment of an arbitrator only upon 
joint request or as otherwise provided by this part.



Sec.  1404.13  Conduct of hearings.

    All proceedings conducted by the arbitrators shall conform to the 
contractual obligations of the parties, and to the Code. The arbitrator 
shall comply with Sec.  1404.4(b). The conduct of the arbitration 
proceeding is under the arbitrator's jurisdiction and control, and the 
arbitrator's decision shall be based upon the evidence and testimony 
presented at the hearing or otherwise incorporated in the record of the 
proceeding. The arbitrator may, unless

[[Page 59]]

prohibited by law, proceed in the absence of any party who, after due 
notice, fails to be present or to obtain a postponement. An award 
rendered in an ex parte proceeding of this nature must be based upon 
evidence presented to the arbitrator.



Sec.  1404.14  Decision and award.

    (a) Arbitrators shall make awards no later than 60 days from the 
date of the closing of the record, unless otherwise agreed upon by the 
parties or specified by the collective bargaining agreement or law. 
However, failure to meet the 60-day deadline will not invalidate the 
process or award. A failure to render timely awards reflects upon the 
performance of an arbitrator and may lead to removal from the FMCS 
Roster.
    (b) The parties should inform OA whenever a decision is delayed. The 
arbitrator shall promptly notify OA if and when the arbitrator:
    (1) Cannot schedule or hear a case, and/or render a decision 
promptly and in accordance with time limits established in this part, or
    (2) Learns a dispute has been settled by the parties prior to the 
decision.
    (c) Within 15 days after an award and/or final invoice has been 
submitted to the parties, the arbitrator shall submit an online 
Arbitrator's Report and Fee Statement (Form R-19) to OA showing a 
breakdown of the fee and expense charges.
    (d) While FMCS encourages the publication of arbitration awards, 
arbitrators must not publicize awards without the express consent of the 
parties in conformance with the Code.



Sec.  1404.15  Fees and charges of arbitrators.

    (a) Fees to parties. Prior to appointment, the parties should be 
aware of all significant aspects of the bases for an arbitrator's fees 
and expenses. Each arbitrator's biographical sketch shall include a 
statement of the bases for the arbitrator's fees and expenses, which 
shall conform to this part and the Code. The parties and the arbitrator 
shall be bound by the arbitrator's statement of the bases for fees and 
expenses in the biographical sketch for two years from the date of 
appointment unless they mutually agree otherwise in writing. Arbitrators 
listed on the Roster may change the bases for their fees and expenses 
for future appointments if they provide them in writing to OA at least 
30 days in advance.
    (b) Two or more addresses. Arbitrators with more than one business 
address must bill the parties for expenses from the least expensive 
business address to the hearing site.
    (c) Additional administrative fee. In cases involving unusual 
amounts of time and expense relative to the pre-hearing and post-hearing 
administration of a particular case, the arbitrator may charge an 
administrative fee. This fee shall be disclosed to the parties as soon 
as it is foreseeable by the arbitrator.
    (d) Fee disputes. When a party believes the arbitrator has not 
followed the requirements of this Part, it should promptly notify OA, 
which may bring any complaint concerning the fees charged by an 
arbitrator to the attention of the Board for consideration. Complaints 
by arbitrators concerning non-payment of fees by a party may lead to the 
denial of services or other actions by OA.



Sec.  1404.16  Reports and biographical sketches.

    (a) Arbitrators listed on the Roster shall execute and return all 
documents, forms and reports required by OA and be responsible for 
updating their account and bio information online, including changes of 
address, telephone number, and availability. They must also furnish to 
OA the contact information for a person they know well whom OA may 
contact if unable to reach the arbitrator, and who has agreed to contact 
OA if the arbitrator has become incapacitated or deceased. Arbitrators 
must contact OA directly when they engage, or are accused of engaging, 
in any business or other connection or relationship involving labor or 
employment relations and/or which creates or gives the appearance of 
advocacy as defined in Sec.  1404.5(c)(1).
    (b) OA reserves the right to decide and approve the format and 
content of biographical sketches.

[[Page 60]]



                     Subpart D_Expedited Arbitration



Sec.  1404.17  Policy.

    In an effort to reduce the time and expense of some grievance 
arbitrations, FMCS offers expedited procedures where the parties agree 
on a streamlined process with short deadlines. Parties may also agree on 
their own procedures if it is practicable for FMCS.



Sec.  1404.18  Procedures for requesting expedited panels.

    (a) With the exception of the specific changes noted in this 
Subpart, all FMCS rules and regulations governing its arbitration 
services shall apply to Expedited Arbitration.
    (b) Upon receipt of a joint Request for Arbitration Panel (Form R-
43) indicating that both parties desire expedited services, OA will 
refer a panel of arbitrators which shall be valid for up to 30 days. 
Only one panel will be submitted per case. If the parties are unable to 
mutually agree upon an arbitrator or if prioritized selections are not 
received from both parties within 30 days, OA will make a direct 
appointment of an arbitrator not on the original panel.
    (c) If the parties mutually select an arbitrator, but the arbitrator 
is not available, the parties may select a second name from the same 
panel or OA will make a direct appointment of another arbitrator not 
listed on the original panel.



Sec.  1404.19  Arbitration process.

    (a) Once notified of the expedited case appointment by OA, the 
arbitrator must contact the parties within seven (7) calendar days.
    (b) The parties and the arbitrator must attempt to schedule a 
hearing within 30 days of the appointment date.
    (c) Absent mutual agreement, all hearings will be concluded within 
one day. No transcripts of the proceedings will be made and the filing 
of post-hearing briefs will not be allowed.
    (d) All awards must be completed within seven (7) working days from 
the hearing. These awards are expected to be brief and concise, and to 
not require extensive written opinion or research time.



    Sec. Appendix to Part 1404--Arbitration Policy; Schedule of Fees

Annual listing fee for arbitrators who have completed less than 5 years 
on the Roster: $150 for the first address; $50 for each additional 
address
Annual listing fee for arbitrators who have completed 5 or more years on 
the Roster: $250 for the first address; $100 for each additional address
Request for panel of arbitrators processed by FMCS staff: $70.00
Request for panel of arbitrators on-line: $35.00
Direct appointment of an arbitrator when a panel is not used: $30.00 per 
appointment
List and biographic sketches of arbitrators in a specific area: $35.00 
per request plus $.25 per page.



PART 1405_PART-TIME EMPLOYMENT--Table of Contents



                            Subpart A_General

Sec.
1405.1 Purpose.
1405.2 Policy.
1405.3 Definition.
1405.4 Applicability.

                 Subpart B_Part-time Employment Program

1405.6 Program coordination.
1405.7 Goals and timetables.
1405.8 Reporting.
1405.9 Part-time employment practices.
1405.10 Effect on employment ceilings.
1405.11 Effect on employee benefits.

    Authority: Pub. L. 95-437, Federal Employees Part-time Career 
Employment Act of 1978.

    Source: 47 FR 15779, Apr. 13, 1982, unless otherwise noted.



                            Subpart A_General



Sec.  1405.1  Purpose.

    These regulations implement Public Law 95-437, the Federal Employees 
Part-time Career Employment Act of 1978, by establishing a continuing 
program in the Federal Mediation and Conciliation Service (FMCS) to 
provide career part-time employment opportunities.



Sec.  1405.2  Policy.

    It is the policy of FMCS to provide career part-time employment 
opportunities in positions through GS-16 (or

[[Page 61]]

equivalent) subject to agency resources and mission requirements.



Sec.  1405.3  Definition.

    Part-time career employment means regularly scheduled work of from 
16 to 32 hours per week performed by employees in competitive or 
excepted appointments in tenure groups I or II.



Sec.  1405.4  Applicability.

    The regulations cover permanent positions which are deemed by 
management to be appropriately structured on a part-time basis. The 
regulations do not apply to positions at GS-16 (or equivalent) and 
above.



                 Subpart B_Part-time Employment Program



Sec.  1405.6  Program coordination.

    The Director of Personnel is designated the FMCS Part-time 
Employment Coordinator with responsibility for:
    (a) Consulting in the part-time employment program with the Director 
of Equal Employment Opportunity, Federal Women's Program Coordinator, 
Handicapped Program Coordinator, representatives of employee unions, and 
other interested parties;
    (b) Responding to requests for advice and assistance on part-time 
employment within the agency;
    (c) Maintaining liaison with groups interested in promoting part-
time employment opportunities;
    (d) Monitoring the agency's part-time employment efforts; and 
preparing reports on part-time employment for transmittal to OPM and the 
Congress.



Sec.  1405.7  Goals and timetables.

    On an annual basis, as part of the manpower and budget process, 
management will set goals for establishing part-time positions to part-
time along with a timetable setting forth interim and final deadlines 
for achieving the goals. Decisions on part-time employment will be based 
on such factors as agency mission, occupational mix, workload 
fluctuations, affirmative actions, geographic dispersion, effect on 
providing services to the public, and employee interest in part-time 
employment.



Sec.  1405.8  Reporting.

    FMCS will report as required by regulations to the Office of 
Personnel Management on the part-time employment program. The program 
will be reviewed through internal personnel management evaluations.



Sec.  1405.9  Part-time employment practices.

    FMCS will review positions which become vacant for the feasibility 
of utilizing part-time career appointments. Part-time positions will be 
advertised in vacancy announcements. Agency employees may request and 
receive consideration to switch from full-time to part-time schedules. 
The request should be addressed through the supervisor to the Director 
of Personnel listing any and all reasons for the request. The Director 
of Personnel, with input from all affected management officials, will 
decide whether or not to grant the request. Any employee requesting a 
change from full-time to part-time employment will be advised of effects 
on pay and fringe benefits by the Director of Personnel.



Sec.  1405.10  Effect on employment ceilings.

    Effective October 1, 1980, part-time employees will be counted on 
the basis of the fractional part of the 40-hour week actually worked. 
For example two employees each working twenty hours a week will count as 
one employee.



Sec.  1405.11  Effect on employee benefits.

    Career part-time employees are entitled to coverage under the 
Federal Employees Group Life Insurance and Federal Employees Health 
Benefits Programs. The Government contribution for health insurance of 
eligible part-time employees will be prorated on the basis of the 
fraction of a full-time schedule worked.



PART 1410_PRIVACY--Table of Contents



Sec.
1410.1 Purpose and scope.
1410.2 Definitions.

[[Page 62]]

1410.3 Individual access requests.
1410.4 Requirements for identification of individuals making requests.
1410.5 Special procedures: Medical records.
1410.6 Requests for correction or amendment of records.
1410.7 Agency review of refusal to amend a record.
1410.8 Notation of dispute.
1410.9 Fees.
1410.10 Penalties.
1410.11 Standards of review.
1410.12 Specific exemptions.

    Authority: Privacy Act 1974, Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 
552a).

    Source: 40 FR 47418, Oct. 8, 1975, unless otherwise noted.



Sec.  1410.1  Purpose and scope.

    (a) The purpose of this part is to set forth rules to inform the 
public about information maintained by the Federal Mediation and 
Conciliation Service about individuals, to inform those individuals how 
they may gain access to and correct or amend information about 
themselves, and to exempt disclosure of identity of confidential sources 
of certain records.
    (b) [Reserved]



Sec.  1410.2  Definitions.

    For the purposes of this part, unless otherwise required by the 
context--
    (a) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (b) Maintain means maintain, collect, use or disseminate.
    (c) Record means any item, collection or grouping of information 
about an individual that is maintained by the Federal Mediation and 
Conciliation Service including, but not limited to, his education, 
financial transactions, medical history, and criminal or employment 
history, that contains his name, or the identifying number, symbol, or 
other identifying particular assigned to the individual, such as a 
finger or voice print, or a photograph.
    (d) System of records means a group of any records under the control 
of Federal Mediation and Conciliation Service from which information is 
retrieved by the name of the individual or by some identifying 
particular assigned to the individual.



Sec.  1410.3  Individual access requests.

    (a) Individuals who desire to know whether the agency maintains a 
system of records containing records pertaining to him may submit a 
written request to the Director of Administration, Federal Mediation and 
Conciliation Service, Washington, DC 20427. The request must include the 
name and address of the requestor. The Director of Administration, or 
his designated representative, will advise the requestor in writing 
within 10 working days whether the records are so maintained and the 
general category of records maintained within the system.
    (b) Any individual who desires to inspect or receive copies of any 
record maintained within the system concerning him shall submit a 
written request to the Director of Administration, Federal Mediation and 
Conciliation Service, Washington, DC 20427, reasonably identifying the 
records sought to be inspected or copied.
    (c) The individual seeking access to his record may also have 
another person accompanying him during his review of the records. If the 
requestor desires another person to accompany him during the inspection, 
the requestor must sign a statement, to be furnished to the Service 
representative at the time of the inspection authorizing such other 
person to accompany him. Except as required under the Freedom of 
Information Act, permitted as a routine use as published in the agency's 
annual notice, or for internal agency use, disclosure of records will 
only be made to the individual to whom the record pertains, unless 
written consent is obtained from that individual. The Director of 
Administration will verify the signature of the individual requesting or 
consenting to the disclosure of a record prior to the disclosure thereof 
to any other person by a comparison of signatures, if the request or 
consent is not executed within the presence of a designated Service 
representative.
    (d) The Director of Administration or his designated representative 
will advise the requestor in writing within 10 working days of receipt 
of the request whether, to what extent, and approximately when and where 
access shall be granted. Within 30 days of receipt of the request, the 
records will be made

[[Page 63]]

available for review at the FMCS National Office in Washington, DC, or 
one of the Regional Offices. The following is a list of the Regional 
Office locations:

    1. Eastern Region:
    Address: Jacob K. Javits Federal Building, 26 Federal Plaza, Room 
2937, New York, NY 10278.
    Consists of: Maine, New Hampshire, Vermont, Connecticut, Rhode 
Island, Massachusetts, New York, Puerto Rico, the Virgin Islands, 
Pennsylvania, Delaware, New Jersey, Garrett and Alleghany Counties of 
Maryland; and Brooke and Hancock Counties of West Virginia.
    2. Central Region:
    Address: Insurance Exchange Building, Room 1641, 175 W. Jackson 
Street, Chicago, IL 60604.
    Consist of: Illinois (except counties listed under the Southern 
Region); Indiana (except counties listed under Southern Region); 
Wisconsin, Minnesota, North Dakota, South Dakota, Michigan, and Ohio 
(except counties listed under the Southern Region).
    3. Southern Region:
    Address: Suite 400, 1422 W. Peachtree St., NW., Atlanta, GA 30309.
    Consists of: Virginia, Maryland (except counties listed under the 
Eastern Region); Tennessee; North Carolina; South Carolina; Georgia; 
Alabama; Florida; Mississippi; Louisiana; Arkansas; Kentucky; Texas 
(except for Hudspeth and El Paso counties); Oklahoma; Missouri (except 
for those counties listed for the Western Region); Illinois (in counties 
of Calhoun, Greene, Jersey, McCoupin, Montgomery, Fayette, Bond, 
Madison, St. Clair, Monroe, Clinton, Washington, Marion, White, 
Hamilton, Wayne, Edwards, Wabash, Lawrence, Richland, Clay, Effingham, 
Jasper, and Crawford); Indiana (the counties of Knox, Daviess, Martin, 
Orange, Washington, Clark, Floyd, Harrison, Crawford, Perry, Spencer, 
DuBois, Pike, Gibson, Posey, Vanderburgh, and Warrick); Ohio (the 
counties of Butler, Hamilton, Warren, Clermont, Brown, Highland, 
Clinton, Ross, Pike, Adams, Scioto, Lawrence, Ballia, Jackson, Vinton, 
Hocking, Athens, and Meigs); Kansas (the counties of Bourbon, Crawford, 
Cherokee, and Ottawa); West Virginia (except counties listed under the 
Central Region); and the Canal Zone.
    4. Western Region:
    Address: Francisco Bay Building, Suite 235, 50 Francisco Street, San 
Francisco, CA 94133.
    Consists of: California; Nevada; Arizona; New Mexico; El Paso and 
Hudspeth Counties (only) in Texas; Hawaii; Guam; Alaska; Washington; 
Oregon; Colorado; Utah; Wyoming; Montana; Idaho; Nebraska; Kansas; Iowa; 
Missouri (the counties of Atchinson, Nodaway, Worth, Harrison, Mercer, 
Putnam, Schuyler, Scotland, Knox, Adair, Sullivan, Grundy, Daviess, 
Gentry, DeKalb, Andrew, Holt, Buchanan, Clinton, Caldwell, Livingston, 
Linn, Macon, Shelby, Randolph, Chariton, Carrol, Ray, Clay, Platte, 
Jackson, Lafayette, Saline, Howard, Boon, Cooper, Pettis, Johnson, Cass, 
Bates, Henry, St. Clair, Benton, and Morgan); American Somoa; and Wake 
Island.

[40 FR 47418, Oct. 8, 1975, as amended at 47 FR 10530, Mar. 11, 1982]



Sec.  1410.4  Requirements for identification of individuals making
requests.

    Satisfactory identification (i.e., employ identification number, 
current address, and verification of signature) must be provided to FMCS 
prior to review of the record. The requestor will be provided the 
opportunity to review the records during normal business hours.



Sec.  1410.5  Special procedures: Medical records.

    (a) If medical records are requested for inspection which, in the 
opinion of the Director of Administration, may be harmful to the 
requestor if personally inspected by him, such records will be furnished 
only to a licensed physician, designated to receive such records by the 
requestor. Prior to such disclosure, the requestor must furnish a signed 
written authorization to the Service to make such disclosure and the 
physician must furnish a written request to the Director of 
Administration for the physician's receipt of such records.
    (b) Verification of the requestor's signature will be accomplished 
by a comparison of signatures if such authorization is not executed 
within the presence of a Service representative.



Sec.  1410.6  Requests for correction or amendment of records.

    (a) If the individual disagrees with the information in the record, 
he may request that the record be amended by addition or deletion. Such 
a request must be in writing and directed to the Director of 
Administration, Federal Mediation and Conciliation Service, Washington, 
DC, 20427. The request must also specifically outline the amendment 
sought. The Director of Administration or his designated representative 
will acknowledge receipt of the request within 10 working days

[[Page 64]]

from the date of receipt of such request. Under normal circumstances, 
not later than 30 days after receipt of the request for amendments, the 
Director of Administration will either:
    (1) Amend the record and notify the requestor in a written letter of 
determination to what extent the record is amended; or
    (2) If the amendment or correction is denied in whole or in part, 
notify the requestor in a written letter of determination the reason for 
denial and the requestor's right to request review by the Deputy 
National Director.
    (b) Routine requests of arbitrators maintained on the Service's 
roster of arbitrators to amend records for such matters as address, 
experience, fees charged, may be made in writing to the Director of 
Arbitration Services, Washington, DC, 20427. If such routine requests 
are not granted or involve other types of amendments, then the procedure 
to be followed is that which includes a request in writing to the 
Director of Administration.



Sec.  1410.7  Agency review of refusal to amend a record.

    (a) The requestor may appeal any determination of the Director of 
Administration not to amend a record by submitting a written request for 
review of refusal to amend a record to the Deputy National Director, 
Washington, DC 20427. Such a request shall indicate the specific 
corrections or amendments sought. Not later than 30 days from receipt of 
a request for review (unless such period is extended by the National 
Director for good cause shown), the Deputy National Director will 
complete such a review and make a final determination on the request, 
and shall advise the requestor in a written letter of determination 
whether, and to what extent the correction or amendment will be made. If 
the correction or amendment is denied, in whole or in part, the letter 
of determination will specify the reasons for such denial.
    (b) If the Deputy National Director makes a final determination not 
to amend the record, the individual may provide to the Service a concise 
written statement explaining the reasons for disagreement with the 
refusal.
    (c) In addition, the individual may file a civil action in the U.S. 
District Court to seek an order compelling the Service to amend the 
record as requested.



Sec.  1410.8  Notation of dispute.

    After an individual has filed a statement of disagreement as 
described in Sec.  1410.7(b), any disclosure of the contested records 
must contain a notation of the dispute. In addition, a copy of the 
individual's statement will be provided to the person or agency to whom 
the disputed record is disclosed. The Service may also, but it is not 
required to, provide a statement reflecting the agency's reasons for not 
making the requested amendments.



Sec.  1410.9  Fees.

    Upon request, the Service will provide a photostatic copy of the 
records to the individual to whom they pertain. There will be a charge 
of $.10 per page.



Sec.  1410.10  Penalties.

    Any person who knowingly and willfully requests or obtains any 
record concerning an individual from the Service under false pretenses 
shall be guilty of a misdemeanor and fined not more than $5,000.



Sec.  1410.11  Standards of review.

    Upon a request for inspection of records or a determination on a 
request for amendment, the Director of Administration, his designated 
representative, or the Deputy National Director will review the 
pertinent records and discard any material in them that is not:
    (a) Relevant and necessary to accomplish a statutory purpose or a 
purpose not authorized by executive order.
    (b) Accurate, relevant, timely, and complete, to assure fairness to 
the individual.



Sec.  1410.12  Specific exemptions.

    With regard to Agency Internal Personnel Records and Arbitrator 
Personal Data Files, separately described in the system notices, such 
records will be exempted from section (d) of the Act as follows:


[[Page 65]]


    Investigatory material maintained solely for the purposes of 
determining an individual's qualification, eligibility, or suitability 
for employment in the Federal civilian service, Federal contracts, or 
access to classified information, but only to the extent that disclosure 
of such material would reveal the identity of the source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence, or prior to September 27, 
1975, under an implied promise that the identity of the source would be 
held in confidence.


In order to obtain accurate information pertaining to employee or 
arbitrator eligibility, the nondisclosure of the identity of such a 
confidential source is essential.



PART 1420_FEDERAL MEDIATION AND CONCILIATION SERVICE_ASSISTANCE IN 
THE HEALTH CARE INDUSTRY--Table of Contents



Sec.
1420.1 Functions of the Service in health care industry bargaining under 
          the Labor-Management Relations Act, as amended (hereinafter 
          ``the Act'').
1420.2-1420.4 [Reserved]
1420.5 Optional input of parties to Board of Inquiry selection.
1420.6-1420.7 [Reserved]
1420.8 FMCS deferral to parties' own private factfinding procedures.
1420.9 FMCS deferral to parties' own private interest arbitration 
          procedures.

    Authority: Secs. 8(d), 201, 203, 204, and 213 of the Labor 
Management Relations Act, as amended in 1974 (29 U.S.C. 158(d), 171, 
173, 174 and 183).

    Source: 44 FR 42683, July 20, 1979, unless otherwise noted.



Sec.  1420.1  Functions of the Service in health care industry bargaining
under the Labor-Management Relations Act, as amended (hereinafter 
``the Act'').

    (a) Dispute mediation. Whenever a collective bargaining dispute 
involves employees of a health care institution, either party to such 
collective bargaining must give certain statutory notices to the Federal 
Mediation and Conciliation Service (hereinafter ``the Service'') before 
resorting to strike or lockout and before terminating or modifying any 
existing collective bargaining agreement. Thereafter, the Service will 
promptly communicate with the parties and use its best efforts, by 
mediation and conciliation, to bring them to agreement. The parties 
shall participate fully and promptly in such meetings as may be called 
by the Service for the purpose of aiding in a settlement of the dispute. 
(29 U.S.C. 158(d) and 158(g).).
    (b) Boards of inquiry. If, in the opinion of the Director of the 
Service a threatened or actual strike or lockout affecting a health care 
institution will substantially interrupt the delivery of health care in 
the locality concerned, the Director may establish within certain 
statutory time periods an impartial Board of Inquiry. The Board of 
Inquiry will investigate the issues involved in the dispute and make a 
written report, containing the findings of fact and the Board's non-
binding recommendations for settling the dispute, to the parties within 
15 days after the establishment of such a Board. (29 U.S.C. 183.)



Sec. Sec.  1420.2-1420.4  [Reserved]



Sec.  1420.5  Optional input of parties to Board of Inquiry selection.

    The Act gives the Director of the Service the authority to select 
the individual(s) who will serve as the Board of Inquiry if the Director 
decides to establish a Board of Inquiry in a particular health care 
industry bargaining dispute (29 U.S.C. 183). If the parties to 
collective bargaining involving a health care institution(s) desire to 
have some input to the Service's selection of an individual(s) to serve 
as a Board of Inquiry (hereinafter ``BoI''), they may jointly exercise 
the following optional procedure:
    (a) At any time at least 90 days prior to the expiration date of a 
collective bargaining agreement in a contract renewal dispute, or at any 
time prior to the notice required under clause (B) of section 8(d) of 
the Act (29 U.S.C. 158(d)) in an initial contract dispute, the 
employer(s) and the union(s) in the dispute may jointly submit to the 
Service a list of arbitrators or other impartial individuals who would 
be acceptable BoI members both to the employer(s)

[[Page 66]]

and to the union(s). Such list submission must identify the dispute(s) 
involved and must include addresses and telephone numbers of the 
individuals listed and any information available to the parties as to 
current and past employment of the individuals listed. The parties may 
jointly rank the individuals in order of preference if they desire to do 
so.
    (b) The Service will make every effort to select any BoI that might 
be appointed from that jointly submitted list. However, the Service 
cannot promise that it will select a BoI from such list. The chances of 
the Service finding one or more individuals on such list available to 
serve as the BoI will be increased if the list contains a sufficiently 
large number of names and if it is submitted at as early a date as 
possible. Nevertheless, the parties can even preselect and submit 
jointly to the Service one specific individual if that individual agrees 
to be available for the particular BoI time period. Again the Service 
will not be bound to appoint that individual, but will be receptive to 
such a submission by the parties.
    (c) The jointly submitted list may be worked out and agreed to by 
(1) A particular set of parties in contemplation of a particular 
upcoming negotiation dispute between them, or (2) a particular set of 
parties for use in all future disputes between that set of parties, or 
(3) a group of various health care institutions and unions in a certain 
community or geographic area for use in all disputes between any two or 
more of those parties.
    (d) Submission or receipt of any such list will not in any way 
constitute an admission of the appropriateness of appointment of a BoI 
nor an expression of the desirability of a BoI by any party or by the 
Service.
    (e) This joint submission procedure is a purely optional one to 
provide the parties with an opportunity to have input into the selection 
of a BoI if they so desire.
    (f) Such jointly submitted lists should be sent jointly by the 
employer(s) and the union(s) to the appropriate regional office of the 
Service. The regional offices of the Service are as follows:

    1. Eastern Region:
    Address: Jacob K. Javits Federal Building, 26 Federal Plaza, Room 
2937, New York, NY 10278.
    Consists of: Maine, New Hampshire, Vermont, Connecticut, Rhode 
Island, Massachusetts, New York, Puerto Rico, the Virgin Islands, 
Pennsylvania, Delaware, New Jersey, Garrett and Alleghany Counties of 
Maryland; and Brooke and Hancock Counties of West Virginia.
    2. Central Region:
    Address: Insurance Exchange Building, Room 1641, 175 W. Jackson 
Street, Chicago, IL 60604.
    Consist of: Illinois (except counties listed under the Southern 
Region); Indiana (except counties listed under Southern Region); 
Wisconsin, Minnesota, North Dakota, South Dakota, Michigan, and Ohio 
(except counties listed under the Southern Region).
    3. Southern Region:
    Address: Suite 400, 1422 W. Peachtree St., NW., Atlanta, GA 30309.
    Consists of: Virginia, Maryland (except counties listed under the 
Eastern Region); Tennessee; North Carolina; South Carolina; Georgia; 
Alabama; Florida; Mississippi; Louisiana; Arkansas; Kentucky; Texas 
(except for Hudspeth and El Paso counties); Oklahoma; Missouri (except 
for those counties listed for the Western Region); Illinois (in counties 
of Calhoun, Greene, Jersey, McCoupin, Montgomery, Fayette, Bond, 
Madison, St. Clair, Monroe, Clinton, Washington, Marion, White, 
Hamilton, Wayne, Edwards, Wabash, Lawrence, Richland, Clay, Effingham, 
Jasper, and Crawford); Indiana (the counties of Knox, Daviess, Martin, 
Orange, Washington, Clark, Floyd, Harrison, Crawford, Perry, Spencer, 
DuBois, Pike, Gibson, Posey, Vanderburgh, and Warrick); Ohio (the 
counties of Butler, Hamilton, Warren, Clermont, Brown, Highland, 
Clinton, Ross, Pike, Adams, Scioto, Lawrence, Ballia, Jackson, Vinton, 
Hocking, Athens, and Meigs); Kansas (the counties of Bourbon, Crawford, 
Cherokee, and Ottawa); West Virginia (except counties listed under the 
Central Region); and the Canal Zone.
    4. Western Region:
    Address: Francisco Bay Building, Suite 235, 50 Francisco Street, San 
Francisco, CA 94133.
    Consists of: California; Nevada; Arizona; New Mexico; El Paso and 
Hudspeth Counties (only) in Texas; Hawaii; Guam; Alaska; Washington; 
Oregon; Colorado; Utah; Wyoming; Montana; Idaho; Nebraska; Kansas; Iowa; 
Missouri (the counties of Atchinson, Nodaway, Worth, Harrison, Mercer, 
Putnam, Schuyler, Scotland, Knox, Adair, Sullivan, Grundy, Daviess, 
Gentry, DeKalb, Andrew, Holt, Buchanan, Clinton, Caldwell, Livingston, 
Linn, Macon, Shelby, Randolph, Chariton, Carrol, Ray, Clay, Platte, 
Jackson, Lafayette, Saline, Howard, Boon, Cooper, Pettis, Johnson, Cass, 
Bates, Henry, St.

[[Page 67]]

Clair, Benton, and Morgan); American Somoa; and Wake Island.

[44 FR 42683, July 20, 1979, as amended at 47 FR 10530, Mar. 11, 1982]



Sec. Sec.  1420.6-1420.7  [Reserved]



Sec.  1420.8  FMCS deferral to parties' own private factfinding procedures.

    (a) The Service will defer to the parties' own privately agreed to 
factfinding procedure and decline to appoint a Board of Inquiry (BoI) as 
long as the parties' own procedure meets certain conditions so as to 
satisfy the Service's responsibilities under the Act. The Service will 
decline to appoint a BoI and leave the selection and appointment of a 
factfinder to the parties to a dispute if both the parties have agreed 
in writing to their own factfinding procedure which meets the following 
conditions:
    (1) The factfinding procedure must be invoked automatically at a 
specified time (for example, at contract expiration if no agreement is 
reached).
    (2) It must provide a fixed and determinate method for selecting the 
impartial factfinder(s).
    (3) It must provide that there can be no strike or lockout and no 
changes in conditions of employment (except by mutual agreement) prior 
to or during the factfinding procedure and for a period of at least 
seven days after the factfinding is completed.
    (4) It must provide that the factfinder(s) will make a written 
report to the parties, containing the findings of fact and the 
recommendations of the factfinder(s) for settling the dispute, a copy of 
which is sent to the Service. The parties to a dispute who have agreed 
to such a factfinding procedure should jointly submit a copy of such 
agreed upon procedure to the appropriate regional office of the Service 
at as early a date as possible, but in any event prior to the 
appointment of a BoI by the Service. See Sec.  1420.5(f) for the 
addresses of the regional offices.
    (b) Since the Service does not appoint the factfinder under 
paragraph (a) of this section, the Service cannot pay for such 
factfinder. In this respect, such deferral by the Service to the 
parties' own factfinding procedure is different from the use of 
stipulation agreements between the parties which give to the Service the 
authority to select and appoint a factfinder at a later date than the 
date by which a BoI would have to be appointed under the Act. Under such 
stipulation agreements by which the parties give the Service authority 
to appoint a factfinder at a later date, the Service can pay for the 
factfinder. However, in the deferral to the parties' own factfinding 
procedure, the parties choose their own factfinder and they pay for the 
factfinder.



Sec.  1420.9  FMCS deferral to parties' own private interest arbitration
procedures.

    (a) The Service will defer to the parties' own privately agreed to 
interest arbitration procedure and decline to appoint a Board of Inquiry 
(BoI) as long as the parties' own procedure meets certain conditions so 
as to satisfy the Service's responsibilities under the Act. The Service 
will decline to appoint BoI if the parties to a dispute have agreed in 
writing to their own interest arbitration procedure which meets the 
following conditions:
    (1) The interest arbitration procedure must provide that there can 
be no strike or lockout and no changes in conditions of employment 
(except by mutual agreement) during the contract negotiation covered by 
the interest arbitration procedure and the period of any subsequent 
interest arbitration proceedings.
    (2) It must provide that the award of the arbitrator(s) under the 
interest arbitration procedure is final and binding on both parties.
    (3) It must provide a fixed and determinate method for selecting the 
impartial interest arbitrator(s).
    (4) The interest arbitration procedure must provide for a written 
award by the interest arbitrator(s).
    (b) The parties to a dispute who have agreed to such an interest 
arbitration procedure should jointly submit a copy of their agreed upon 
procedure to the appropriate regional office of the Service at as early 
a date as possible, but in any event prior to the appointment of BoI by 
the Service. See Sec.  1420.5(f) for the addresses of regional offices.

[[Page 68]]


These new regulations are a part of the Service's overall approach to 
implementing the health care amendments of 1974 in a manner consistent 
with the Congressional intent of promoting peaceful settlements of labor 
disputes at our vital health care facilities. The Service will work with 
the parties in every way possible to be flexible and to tailor its 
approach so as to accommodate the needs of the parties in the interest 
of settling the dispute. This was the motivating principle behind these 
new regulations which permit input by the parties to the Board of 
Inquiry selection and allow the parties to set up their own factfinding 
or arbitration procedures in lieu of the Board of Inquiry procedure. We 
encourage the parties, both unions and management, to take advantage of 
these and other options and to work with the Service to tailor their 
approach and procedures to fit the needs of their bargaining situations.



PART 1425_MEDIATION ASSISTANCE IN THE FEDERAL SERVICE--Table of Contents



Sec.
1425.1 Definitions.
1425.2 Notice to the Service of agreement negotiations.
1425.3 Functions of the Service under title VII of the Civil Service 
          Reform Act.
1425.4 Duty of parties.
1425.5 Referral to FSIP.
1425.6 Use of third-party mediation assistance.

    Authority: 5 U.S.C. 581(8), 7119, 7134.

    Source: 45 FR 62798, Sept. 22, 1980, unless otherwise noted.



Sec.  1425.1  Definitions.

    As used in this part:
    (a) The Service means Federal Mediation and Conciliation Service.
    (b) Party or Parties means (1) any appropriate activity, facility, 
geographical subdivision, or combination thereof, of an agency as that 
term is defined in 5 U.S.C. 7103(3), or (2) a labor organization as that 
term is defined in 5 U.S.C. 7103(4).
    (c) Third-party mediation assistance means mediation by persons 
other than FMCS commissioners.
    (d) Provide its services means to make the services and facilities 
of the Service available either on its own motion or upon the special 
request of one or both of the parties.



Sec.  1425.2  Notice to the Service of agreement negotiations.

    (a) In order that the Service may provide assistance to the parties, 
the party initiating negotiations shall file a notice with the FMCS 
Notice Processing Unit, 2100 K Street, N.W., Washington, D.C. 20427, at 
least 30 days prior to the expiration or modification date of an 
existing agreement, or 30 days prior to the reopener date of an existing 
agreement. In the case of an initial agreement the notice shall be filed 
within 30 days after commencing negotiations.
    (b) Parties engaging in mid-term or impact and/or implementation 
bargaining are encouraged to send a notice to FMCS if assistance is 
desired. Such notice may be sent by either party or may be submitted 
jointly. In regard to such notices a brief listing should be general in 
nature e.g., smoking policies, or Alternative Work Schedules (AWS).
    (c) Parties requesting grievance mediation must send a request 
signed by both the union and the agency involved. Receipt of such 
request does not commit FMCS to provide its services. FMCS has the 
discretion to determine whether or not to perform grievance mediation, 
as such service may not be appropriate in all cases.
    (d) The guidelines for FMCS grievance mediation are:
    (1) The parties shall submit a joint request, signed by both parties 
requesting FMCS assistance. The parties agree that grievance mediation 
is a supplement to, and not a substitute for, the steps of the 
contractual grievance procedure.
    (2) The grievant is entitled to be present at the grievance 
mediation conference.
    (3) Any times limits in the parties labor agreement must be waived 
to permit the grievance to proceed to arbitration should mediation be 
unsuccessful.
    (4) Proceedings before the mediator will be informal and rules of 
evidence do not apply. No record, stenographic or tape recordings of the 
meetings will

[[Page 69]]

be made. The mediators notes are confidential and content shall not be 
revealed.
    (5) The mediator shall conduct the mediation conference utilizing 
all of the customary techniques associated with mediation including the 
use of separate caucuses.
    (6) The mediator had no authority to compel resolution of the 
grievance.
    (7) In the event that no settlement is reached during the mediation 
conference, the mediator may provide the parties either in separate or 
joint session with an oral advisory opinion.
    (8) If either party does not accept an advisory opinion, the matter 
may then proceed to arbitration in the manner form provided in their 
collective bargaining agreement. Such arbitration hearings will be held 
as if the grievance mediation effort had not taken place. Nothing said 
or done by the parties or the mediator during the grievance mediation 
session can be used during arbitration proceedings.
    (9) When the parties choose the FMCS grievance mediation procedure, 
they have agreed to abide by these guidelines established by FMCS, and 
it is understood that the parties and the grievant shall hold FMCS and 
the mediator appointed by the Service to conduct the mediation 
conference harmless of any claim of damages arising from the mediation 
process.

[[Page 70]]

[GRAPHIC] [TIFF OMITTED] TR10JA95.000

                              Instructions

    Complete this form, please follow these instructions.
    In item 1. Check the block and give the date if this is for an 
existing agreement or reopener. The FLRA Certification number should be 
provided if available. If not known, please leave this item blank. 
Absence of this number will not impede processing of the Form.
    In item 2. If other assistance in bargaining is requested please 
specify: e.g.; impact and

[[Page 71]]

implementation bargaining (I&I) and/or mid-term bargaining and provide a 
brief listing of issues, e.g. Smoking, Alternative Work Schedules (AWS), 
ground rules, office moves, or if desired, add attached list. This is 
only if such issues are known at time of filing.
    In item 3. Please specify the issues to be considered for grievance 
mediation. Please refer to FMCS guidelines for processing these 
requests. Please make certain that both parties sign this request!
    In item 4. List the name of the agency, as follows: The Department, 
and the subdivision or component. For example: U.S. Dept. of Labor, BLS, 
or U.S. Dept. of Army, Aberdeen Proving Ground, or Illinois National 
Guard, Springfield Chapter. If an independent agency is involved, list 
the agency, e.g. Federal Deposit Insurance Corp. (FDIC) and any 
subdivision or component, if appropriate.
    In item 5. List the name of the union and its subdivision or 
component as follows: e.g. Federal Employees Union, Local 23 or 
Government Workers Union, Western Joint Council.
    In item 6. Provide the area where the negotiation or mediation will 
most likely take place, with zip code, e.g., Washington, D.C. 20427. The 
zip code is important because our cases are routed by computer through 
zip code, and mediators are assigned on that basis.
    In item 7. Only the approximate number of employees in the 
bargaining unit and establishment are requested. The establishment is 
the entity referred to in item 4 as name of subdivision or component, if 
any.
    In item 8. The filing need only be sent by one party unless it is a 
request for grievance mediation. (See item 9.)
    In item 9. Please give the title of the official, phone number, 
address, and zip code.
    In item 10. Both labor and management signatures are required for 
grievance mediation requests.

                                 Notice

    Send original to F.M.C.S.
    Send one copy to opposite party.
    Retain one copy for party filing notice.

[60 FR 2509, Jan. 10, 1995]



Sec.  1425.3  Functions of the Service under title VII of the Civil Service
Reform Act.

    (a) The service may provide its assistance in any negotiation 
dispute when earnest efforts by the parties to reach agreement through 
direct negotiation have failed to resolve the dispute. When the 
existence of a negotiation dispute comes to the attention of the Service 
through a specific request for mediation from one or both of the 
parties, through notification under the provisions of Sec.  1425.2, or 
otherwise, the Service will examine the information concerning the 
dispute and if, in its opinion, the need for mediation exists, the 
Service will use its best efforts to assist the parties to reach 
agreement.
    (b) The Service may, at the outset of negotiations or at any time in 
the dispute, set time limits on its participation. If no settlement of 
the dispute is reached by the expiration of the time limits, the Service 
may make suggestions for settlement to the parties. If suggestions for 
settlement made by the Service are not accepted by the parties within 
time limits set by the Service, the matter may be referred to the 
Federal Services Impasses Panel (FSIP).



Sec.  1425.4  Duty of parties.

    It shall be the duty of the parties to participate fully and 
promptly in any meetings arranged by the Service for the purpose of 
assisting in the settlement of a negotiation dispute.



Sec.  1425.5  Referral to FSIP.

    If the mediation process has been completed and the parties are at a 
negotiation impasse, the Service or the parties may request 
consideration of the matter by the Federal Services Impasses Panel. The 
Service shall not refer a case to FSIP until the mediation process has 
been exhausted and the parties are at a negotiation impasse.



Sec.  1425.6  Use of third-party mediation assistance.

    If the parties should mutually agree to third-party mediation 
assistance other than that of the Service, both parties shall 
immediately inform the Service in writing of this agreement. Such 
written communication shall be filed with the regional director of the 
region in which the negotiation is scheduled, and shall state what 
alternate assistance the parties have agreed to use.



PART 1430_FEDERAL MEDIATION AND CONCILIATION SERVICE ADVISORY COMMITTEES-
-Table of Contents



Sec.
1430.1 Scope and purpose.

[[Page 72]]

1430.2 Definitions.
1430.3 Establishment of advisory committees.
1430.4 Filing of advisory committee charter.
1430.5 Termination of advisory committees.
1430.6 Renewal of advisory committees.
1430.7 Application of the Freedom of Information Act to advisory 
          committee functions.
1430.8 Advisory committee meetings.
1430.9 Agency management of advisory committees.

    Authority: Pub. L. 92-463, 86 Stat. 770 (5 U.S.C. App.).

    Source: 39 FR 9433, Mar. 11, 1974, unless otherwise noted.



Sec.  1430.1  Scope and purpose.

    (a) This part contains the Federal Mediation and Conciliation 
Service's regulations implementing section 8(a) of the Federal Advisory 
Committee Act (Pub. L. 92-463, 86 Stat. 770, (5 U.S.C. App.)), which 
requires each agency head to establish uniform guidelines and management 
controls for the advisory committees. These regulations supplement the 
Government-wide guidelines issued jointly by the Office of Management 
and Budget and the Department of Justice, and should be read in 
conjunction with them.
    (b) The regulations provided under this part do not apply to 
statutorily created or established advisory committees of the Service, 
to the extent that such statutes have specific provisions different from 
those promulgated herein.



Sec.  1430.2  Definitions.

    For the purposes of this part:
    (a) The term Act means the Federal Advisory Committee Act;
    (b) The term advisory committee means any committee, board, 
commission, counsel, conference, panel, task force, or other similar 
group, or any subgroup or subcommittee thereof which is:
    (1) Established by statute or reorganization, plan, or
    (2) Established or utilized by the President, or
    (3) Established or utilized by one or more agencies or officers of 
the Federal Government in the interest of obtaining advice or 
recommendations for the President or one or more agencies of the Federal 
Government, except that such term excludes:
    (i) The Advisory Commission on Intergovernmental Relations;
    (ii) The Commission on Government Procurement; and
    (iii) Any committee which is composed wholly of full-time officers 
or employees of the Federal Government.
    (c) The term agency has the same meaning as in 5 U.S.C. 552(1);
    (d) The term committee management officer means the Federal 
Mediation and Conciliation Service employee or his delegee, officially 
designated to perform the advisory committee management functions 
delineated in this part;
    (e) The term Service means the Federal Mediation and Conciliation 
Service;
    (f) The term OMB means the Office of Management and Budget;
    (g) The term Director means the Director of the Federal Mediation 
and Conciliation Service;
    (h) The term secretariat means the OMB Committee Management 
Secretariat.



Sec.  1430.3  Establishment of advisory committees.

    (a) Guidelines for establishing advisory committees. The guidelines 
in establishing advisory committees are as follows:
    (1) No advisory committee shall be established if its functions are 
being or could be performed by an agency or an existing committee;
    (2) The purpose of the advisory committee shall be clearly defined;
    (3) The membership of the advisory committee shall be fairly 
balanced in terms of the points of view represented and the committee's 
functions;
    (4) There shall be appropriate safeguards to assure that an advisory 
committee's advice and recommendations will not be inappropriately 
influenced by any special interests; and
    (5) At least once a year, a report shall be prepared for each 
advisory committee, describing the committee's membership, functions, 
and actions.
    (b) Advisory committees established by the Service not pursuant to 
specific statutory authority. (1) Advisory committees

[[Page 73]]

established by the Service not pursuant to specific statutory authority 
may be created by the Director after consultation with the secretariat.
    (2) When the Director determines that such an advisory committee 
needs to be established, he shall notify the secretariat of his 
determination and shall inform the secretariat of the nature and purpose 
of the committee, the reasons why the committee is needed, and the 
inability of any existing agency or committee to perform the committee's 
functions.
    (3) After the secretariat has determined that establishment of such 
a committee is in conformance with the Act and has so informed the 
Director, the Director shall prepare a certification of the committee, 
stating the committee's nature and purpose, and that it is established 
in the public interest. That certification shall be published in the 
Federal Register.
    (c) Advisory committees created pursuant to Presidential directive. 
Advisory committees established by Presidential directive are those 
created pursuant to Executive Order, executive memorandum, or 
reorganization plan. The Director shall create such committees in 
accordance with the provisions of the Presidential directive and shall 
follow the provisions of this part, to the extent they are not 
inconsistent with the directive.
    (d) Advisory committees created pursuant to specific statutory 
authority. The Director shall create advisory committees established 
pursuant to specific statutory authority in accordance with the 
provisions of the statute and shall follow the provisions of this part, 
to the extent they are not inconsistent with the statute: Provided, 
however, That the Director need not utilize the procedures described in 
paragraph (b) of this section.
    (e) Advisory committees established by persons outside the Federal 
Government, but utilized by the Service to obtain advice or opinion. In 
utilizing such committees, the Director shall follow the provisions of 
this part and the requirements of the Act. Such committees, to the 
extent they are utilized by the Service, shall be considered, for the 
purposes of this part, to be advisory committees established by the 
Service.



Sec.  1430.4  Filing of advisory committee charter.

    (a) Filing charter with Director. Before an advisory committee takes 
any action or conducts any business, a charter shall be filed with the 
Director, the standing committees of Congress with legislative 
jurisdiction over the Service, and the Library of Congress. Except for a 
committee in existence on the effective date of the Act, or when 
authorized by statute, Presidential directive, or by the secretariat, 
such charter shall be filed no earlier than 30 days after publication of 
the committee's certification in the Federal Register.
    (b) Charter information. A charter shall contain the following 
information:
    (1) The committee's official designation;
    (2) The committee's objectives and scope of activity;
    (3) The period of time necessary for the committee to carry out its 
purposes;
    (4) The agency or official to whom the advisory committee reports;
    (5) The agency responsible for providing necessary support;
    (6) A description of the committee's duties;
    (7) The estimated number and frequency of committee meetings;
    (8) The estimated annual operating costs in dollars and man-years;
    (9) The committee's termination date, if less than two years; and
    (10) The date the charter is filed.
    (c) Preparation and filing of initial charter. Responsibility for 
preparation of the initial committee charter shall be with the head of 
the appropriate program within the Service, in cooperation with the 
committee management officer. The Director of Administration shall have 
responsibility for assuring the appropriate filings of such charters.



Sec.  1430.5  Termination of advisory committees.

    (a) All nonstatutory advisory committees including those authorized, 
but not specifically created by statute, shall terminate no later than 2 
years after their charters have been filed, unless renewed as provided 
in Sec.  1430.6.

[[Page 74]]

    (b) The charter of any committee in existence on the date the Act 
became effective (January 5, 1973) shall terminate no later than January 
5, 1975, unless renewed, as provided in Sec.  1430.6.
    (c) Advisory committees specifically created by statute shall 
terminate as provided in the establishing statute.



Sec.  1430.6  Renewal of advisory committees.

    (a) Renewal of advisory committees not created pursuant to specific 
statutory authority.
    (1) The Director may renew an advisory committee not created 
pursuant to specific statutory authority after consultation with the 
secretariat.
    (2) When the Director determines that such an advisory committee 
should be renewed, he shall so advise the secretariat within 60 days 
prior to the committee's termination date and shall state the reasons 
for his determination.
    (3) Upon concurrence of the secretariat, the Director shall publish 
notice of the renewal in the Federal Register and cause a new charter to 
be prepared and filed in accordance with the provisions of Sec.  1430.3.
    (b) Renewal of advisory committees established pursuant to specific 
statutory authority. The Director may renew advisory committees 
established pursuant to specific statutory authority through the filing 
of a new charter at appropriate 2-year intervals.
    (c) No advisory committee shall take any action or conduct any 
business during the period of time between its termination date and the 
filing of its renewal charter.



Sec.  1430.7  Application of the Freedom of Information Act to advisory
committee functions.

    (a) Subject to 5 U.S.C. 552, the records, reports, transcripts, 
minutes, appendices, working papers, drafts, studies, agenda, and other 
documents which are made available to or are prepared for or by an 
advisory committee shall be available to the public.
    (b) Advisory committee meeting conducted in accordance with Sec.  
1430.7 may be closed to the public when discussing a matter that is of a 
5 U.S.C. 552(b) nature, whether or not the discussion centers on a 
written document.
    (c) No record, report, or other document prepared for or by an 
advisory committee may be withheld from the public unless the Office of 
the General Counsel determines that the document is properly within the 
exemptions of 5 U.S.C. 552(b). No committee meeting, or portion thereof, 
may be closed to the public unless the Office of the General Counsel 
determines in writing, prior to publication of the meeting in the 
Federal Register that such a closing is within the exemptions of 5 
U.S.C. 552(b).



Sec.  1430.8  Advisory committee meetings.

    (a) Initiation of meetings. (1) Committee meetings may be called by:
    (i) The Director or the head of the office most directly concerned 
with the committee's activities;
    (ii) The agency officer referred to in paragraph (a)(1)(i) of this 
section, and the committee chairman, jointly; or
    (iii) The committee chairman, with the advance approval of the 
officer referred to in paragraph (a)(1)(i) of this section.
    (2) The Service's committee management officer shall be promptly 
informed that a meeting has been called.
    (b) Agenda. Committee meetings shall be based on agenda approved by 
the officer referred to in paragraph (a)(1) of this section. Such agenda 
shall note those items which may involve matters which have been 
determined by the Office of the General Counsel as coming within the 
exemptions to the Freedom of Information Act, 5 U.S.C. 552(b).
    (c) Notice of meetings. (1) Notice of advisory committee meetings 
shall be published in the Federal Register at least 7 days before the 
date of the meeting, irrespective of whether a particular meeting will 
be open to the public. Notice to interested persons shall also be 
provided in such other reasonable ways as are appropriate under the 
circumstances, such as press release or letter. Responsibility for 
preparation of Federal Register and other appropriate notice shall be 
with the officer referred to in paragraph (a)(1) of this section.

[[Page 75]]

    (2) Notice in the Federal Register shall state all pertinent 
information related to a meeting and shall be published at least 7 days 
prior to a meeting.
    (d) Presence of agency officer or employee at meetings. No committee 
shall meet without the presence of the officer referred to in paragraph 
(a)(1) of this section, or his delegate. At his option the officer or 
employee may elect to chair the meeting.
    (e) Minutes. Detailed minutes shall be kept of all committee 
meetings and shall be certified by the chairman of the advisory 
committee as being accurate.
    (f) Adjournment. The officer or employee referred to in paragraph 
(a)(1) of this section may adjourn a meeting at any time he determines 
it in the public interest to do so.
    (g) Public access to committee meetings. All advisory committee 
meetings shall be open to the public, except when the Office of the 
General Counsel determines, in writing, and states his reasons therefor 
prior to Federal Register notice, that a meeting or any part thereof, is 
concerned with matters related to the exemptions provided in the Freedom 
of Information Act, 5 U.S.C. 552(b). In such instances, those portions 
of a committee meeting which come within the section 552(b) exemptions 
may be closed to the public.
    (h) Public participation in committee procedures. Interested persons 
shall be permitted to file statements with advisory committees. Subject 
to reasonable committee procedures, interested persons may also be 
permitted to make oral statements on matters germane to the subjects 
under consideration at the committee meeting.



Sec.  1430.9  Agency management of advisory committees.

    Consistent with the other provisions of this part, the Service's 
advisory committee management officer shall:
    (a) Exercise control and supervision over the establishment, 
procedures, and accomplishments of advisory committees established by 
the Service;
    (b) Assemble and maintain the reports, records, and other papers of 
advisory committees, during their existence;
    (c) Carry out, with the concurrence of the Office of the General 
Counsel, the provisions of the Freedom of Information Act, as those 
provisions apply to advisory committees;
    (d) Have available for public inspection and copying all pertinent 
documents of advisory committees which are within the purview of the 
Freedom of Information Act; and
    (e) When transcripts have been made of advisory committee meetings, 
provide for such transcripts to be made available to the public at 
actual cost of duplication, except where prohibited by contractual 
agreements entered into prior to January 5, 1973, the effective date of 
the Federal Advisory Committee Act.



PART 1440_ARBITRATION OF PESTICIDE DATA DISPUTES--Table of Contents



Sec.
1440.1 Arbitration of pesticide data disputes.

Appendix to Part 1440--FIFRA Arbitration Rules

    Authority: Federal Insecticide, Fungicide, and Rodenticide Act (7 
U.S.C. 136 et seq.), as amended, Pub. L. 95-396, 92 Stat. 819.

    Source: 45 FR 55395, Aug. 19, 1980, unless otherwise noted.



Sec.  1440.1  Arbitration of pesticide data disputes.

    (a) Persons requesting the appointment of an arbitrator under 
section 3(c)(1)(D)(ii) and section 3(c)(2)(B)(iii) of the Federal 
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136, as amended), 
shall send such requests in writing to the appropriate American 
Arbitration Association Regional Office. Such requests must include the 
names, addresses, and telephone numbers of the parties to the dispute; 
issue(s) in dispute, the amount in dollars or any other remedy sought; 
sufficient facts to show that the statutory waiting period has passed, 
and the appropriate fee provided in the Fee Schedule.
    (b) For the purpose of compliance with the Federal Insecticide, 
Fungicide, and Rodenticide Act (hereinafter ``the Act''), the roster of 
arbitrators maintained by the Federal Mediation and Conciliation Service 
shall be

[[Page 76]]

the roster of commercial arbitrators maintained by the American 
Arbitration Association. Under this Act, arbitrators will be appointed 
from that roster. The fees of the American Arbitration Association shall 
apply, and the procedure and rules of the Federal Mediation and 
Conciliation Service, applicable to arbitration proceedings under the 
Act, shall be the FIFRA arbitration rules of the American Arbitration 
Association, which are hereby made a part of this regulation.



           Sec. Appendix to Part 1440--FIFRA Arbitration Rules

                                Section 1

    These rules shall apply as published in the Federal Register unless 
modified by FMCS.

                           Sec. 2. Definitions

    For the purpose of these Rules of Procedure the terms are defined as 
follows:
    (1) AAA means the American Arbitration Association.
    (2) Act or FIFRA means the Federal Insecticide, Fungicide, and 
Rodenticide Act, 7 U.S.C. 136 et seq.
    (3) EPA means the United States Environmental Protection Agency.
    (4) Arbitrator(s) means the person or persons appointed to the 
tribunal constituted by the parties for the settlement of their dispute 
under these Rules.
    (5) Claimant means a person asserting a claim for compensation under 
these Rules or filing a claim concerning joint development of data.
    (6) Compulsory arbitration means arbitration invoked under the 
mandatory provisions of section 3(c)(1)(d) or 3(c)(2)(B)(iii) of the 
Act.
    (7) Voluntary arbitration means arbitration voluntarily agreed to by 
the parties to settle a dispute under section 3(c)(1)(d) or 
3(c)(2)(B)(iii) of the Act.
    (8) Director means Director, Registration Division, Office of 
Pesticide Programs, Environmental Protection Agency, or any officer or 
employee of the EPA to whom authority has been or may hereafter be 
lawfully delegated to act in his stead.
    (9) Administator means the AAA, its Tribunal Administrators or such 
officers or committees as the AAA may direct.
    (10) Roster means the Commercial Arbitration Roster of AAA.
    (11) FMCS or Service means the Federal Mediation and Conciliation 
Service.
    (12) Party means claimant or respondent.
    (13) Person means any individual, partnership, association, 
corporation, or any organized group of persons, whether incorporated or 
not.
    (14) Respondent means the person against whom a claim is made under 
section 3(c)(1)(D) or 3(c)(2)(B)(iii) of the Act.

Terms defined in the Act and not explicitly defined herein are used 
herein with the meanings given in the Act.

                    Sec. 3. Initiation of Arbitration

    (a) Under compulsory procedures of FIFRA. Upon the request of a 
party qualified under FIFRA section 3(c)(1)(D) or 3(c)(2)(B)(iii) for 
the appointment of an arbitrator, the Service will appoint an arbitrator 
in accordance with 29 CFR 1440.1 (a) and these rules. Requests shall be 
submitted in writing to the appropriate AAA Regional Office and must 
include the names, addresses and telephone numbers of the parties to the 
dispute; issues in dispute; the amount in dollars or any other remedy 
sought; sufficient facts to show that the statutory waiting period has 
passed; and the appropriate fee as provided in the Fee Schedule.

AAA shall give notice of filing of a request for arbitration to the 
other party. If he so desires, the party upon whom the demand for 
arbitration is made may file an answering statement in duplicate with 
AAA within seven days after notice, in which event he shall 
simultaneously send a copy of his answer to the other party. If a 
monetary claim is made in the answer the appropriate fee provided in the 
Fee Schedule shall be forwarded with the answer. If no answer is filed 
within the stated time, it will be assumed that the claim is denied. 
Failure to file an answer shall not operate to delay the arbitration.
    (b) Under a Voluntary Submission. Parties to any existing dispute 
may commence an arbitration under these Rules by filing at any AAA 
Regional Office two (2) copies of a written agreement to arbitrate under 
these Rules (Submission), signed by the parties. It shall contain a 
statement of the matter in dispute, the amount of money involved, if 
any, and the remedy sought, together with the appropriate administrative 
fee as provided in the Fee Schedule.

                        Sec. 4. Fixing of Locale

    The parties may mutually agree on the locale where the arbitration 
is to be held. If the locale is not designated within seven days from 
the date of filing the Demand or Submission the AAA shall have power to 
determine the locale. Its decision shall be final and binding. If any 
party requests that the hearing be held in a specific locale and the 
other party files no objection thereto within seven days after notice of 
the requests, the locale shall be the one requested.

[[Page 77]]

                   Sec. 5. Qualification of Arbitrator

    Any Arbitrator appointed pursuant to these rules shall be neutral, 
subject to disqualification for the reasons specified in section 11. If 
the agreement of the parties names an Arbitrator or specifies any other 
method of appointing an Arbitrator, or if the parties specifically agree 
in writing, such Arbitrator shall not be subject to disqualification for 
said reasons.

                     Sec. 6. Appointment From Panel

    If the parties have not appointed an Arbitrator and have not 
provided any other method of appointment, the Arbitrator shall be 
appointed in the following manner. Immediately after the filing of the 
Request or Submission, the AAA shall submit simultaneously to each party 
to the dispute an identical list of names of persons chosen from the 
Panel. Each party to the dispute shall have seven days from the mailing 
date in which to cross off any names to which he objects, number the 
remaining names indicating the order of his preference, and return the 
list to the AAA. If a party does not return the list within the time 
specified, all persons named therein shall be deemed acceptable. From 
among the persons who have been approved on both lists, and in 
accordance with the designated order of mutual preference, the AAA shall 
invite the acceptance of an Arbitrator to serve, and the Service shall 
appoint the Arbitrator. If the parties fail to agree upon any of the 
persons named, or if acceptable Arbitrators are unable to act, or if for 
any other reason the appointment cannot be made from the submitted 
lists, the FMCS shall have the power to make the appointment from other 
members of the Panel without the submission of any additional lists.

                  Sec. 7. Direct Appointment by Parties

    If the agreement of the parties to a Submission names an Arbitrator 
or specifies a method of appointment of an Arbitrator, that designation 
or method shall be followed. The notice of appointment, with name and 
address of such Arbitrator, shall be filed with the AAA by the 
appointing party. Upon the request of any such appointing party, the AAA 
shall submit a list of members from the Panel from which the party may, 
if he so desires, make the appointment.
    If the agreement specifies a period of time within which an 
Arbitrator shall be appointed, and any party fails to make such 
appointment within that period, the AAA shall make the appointment.

Sec. 8. Appointment of Neutral Arbitrator by Party Appointed Arbitrators

    If the parties have appointed their Arbitrators or if either or both 
of them have been appointed as provided in section 7, and have 
authorized such Arbitrators to appoint a neutral Arbitrator within a 
specified time and no appointment is made within such time or any agreed 
extension thereof, the FMCS shall appoint a neutral Arbitrator who shall 
act as Chairman.
    If no period of time is specified for appointment of the neutral 
Arbitrator and the parties do not make the appointment within seven days 
from the date of the appointment of the last party-appointed Arbitrator, 
the FMCS shall appoint such neutral Arbitrator, who shall act as 
Chairman.
    If the parties have agreed that their Arbitrators shall appoint the 
neutral Arbitrator from the Panel, the AAA shall furnish to the party-
appointed Arbitrators, in the manner prescribed in section 6, a list 
selected from the Panel, and the appointment of the neutral Arbitrator 
shall be made as prescribed in such section.

                      Sec. 9. Number of Arbitrators

    If the arbitration agreement does not specify the number of 
Arbitrators, the dispute shall be heard and determined by one 
Arbitrator, unless the AAA in its discretion, directs that a greater 
number of Arbitrators be appointed.

         Sec. 10. Notice to Arbitrator of His or Her Appointment

    Notice of the appointment of the neutral Arbitrator, whether 
appointed by the parties, by the AAA or FMCS shall be mailed to the 
Arbitrator, together with a copy of these Rules, and the signed 
acceptance of the Arbitrator shall be filed with AAA prior to the 
opening of the first hearing.

               Sec. 11. Disclosure and Challenge Procedure

    A person appointed as neutral Arbitrator shall disclose to the AAA 
any circumstances likely to affect his or her impartiality, including 
any bias or any financial or personal interest in the result of the 
arbitration or any past or present relationship with the parties or 
their counsel. Upon receipt of such information from such Arbitrator or 
other source, the AAA shall communicate such information to the parties, 
and, if it deems it appropriate to do so, to the Arbitrator. Thereafter, 
the AAA shall make a determination whether the Arbitrator should be 
disqualified. The determination, however, may be appealed to FMCS. The 
decision of FMCS shall be conclusive.

                           Sec. 12. Vacancies

    If any Arbitrator should resign, die, withdraw, refuse, be 
disqualified, or be unable to perform the duties of his office, AAA may, 
on proof satisfactory to it, declare the office vacant. Either party to 
a compulsory arbitration may request the FMCS to review a declaration of 
disqualification. Vacancies

[[Page 78]]

shall be filled in accordance with the applicable provision of these 
Rules and the matter shall be reheard unless the parties shall agree 
otherwise.

                   Sec. 13. Commencement of Proceeding

    (a) Within 60 days from receipt by the parties of notice of the 
appointment of an arbitrator, the claimant shall file with AAA:
    (1) If appropriate, a detailed statement as to the amount of 
compensation claimed, the method of computing said amount, and terms of 
payment, and a list of the test data deemed to be compensable, together 
with a detailed justification therefore.
    (2) A certification as to: (i) Whether any court or tribunal has 
made determinations for payment by any other persons to claimant for use 
of the same test data and, if so, identification of the persons against 
whom the 3(c)(2)(B) determinations were issued and the application for 
registration for which the test data was used; and (ii) whether any 
other claims against any persons are pending in arbitration or in any 
court for use of the same test data and, if so, an identification of the 
persons against whom the claims are pending and the applications for 
registration on which the claims are being made.
    (3) A detailed statement of the matter in dispute under 3(c)(2)(B).
    (b) Within 60 days of service of the documents referred to in 
subsection (a) the respondent shall file a detailed statement of its 
position as to the amount of compensation due, method of computation, 
terms of payment, and list of data deemed to be compensable together 
with a detailed justification therefore or a detailed statement of the 
dispute under 3(c)(2)(5). To the extent any portion of the claimant's 
statement of its claim is not denied or challenged by respondent, it 
shall be deemed admitted.
    (c) After respondent's statement is filed, the arbitrator may, upon 
request by a party, request the Director to supplement the file with 
additional information, including copies of relevant test data, 
information contained in a relevant registration file, a statement as to 
data requirements for registration, or any other information which the 
arbitrator deems to be relevant. Upon request by a party or other 
interested person, the arbitrator shall order protective measures to 
safeguard and restrict access to confidential business information.

                       Sec. 14. Filing and Service

    (a) All documents or papers required or authorized to be filed, 
shall be filed with the AAA for transmittal to the arbitrator, except as 
otherwise herein provided, and shall bear the caption of the case and 
the docket number. At the same time that a party files documents or 
papers with the AAA, the party shall serve upon all other parties copies 
thereof, with a certificate of service on or attached to each document 
or paper, including those filed with the arbitrator. If a party is 
represented by counsel or other representative, service shall be made on 
such representative. Service may be made personally or by regular mail, 
and if made by mail shall be deemed complete on mailing. If filing is 
accomplished by mail addressed to the AAA, filing shall be deemed timely 
if the papers are postmarked on the due date.
    (b) All orders, decisions, or other documents made or signed by the 
arbitrator shall be served immediately upon all parties.

                              Sec. 15. Time

    (a) In computing any period of time prescribed or allowed by these 
rules, except as otherwise provided, the day of the act, event, or 
default from which the designated period of time begins to run shall not 
be included. Saturdays, Sundays and legal holidays shall be included in 
computing the time allowed for the filing of any document or paper, 
except that when such time expires on a Saturday, Sunday, or legal 
holiday, such period shall be extended to include the next following 
business day.
    (b) When by these rules or by order of the arbitrators, an act is 
required or allowed to be done at or within a specified time, the 
arbitrator or AAA for cause shown may at any time in their discretion 
(1) with or without motion or notice, order the period enlarged if 
request therefore, which may be made ex parte, is made before the 
expiration of the period originally prescribed or as extended by a 
previous order, or (2) on motion made after the expiration of the 
specified period, permit the act to be done where the failure to act was 
the result of excusable neglect or other good cause.

      Sec. 16. Communication with Arbitrator and Serving of Notices

    (a) There shall be no communication between the parties and a 
neutral arbitrator other than at oral hearings. Any other oral or 
written communications from the parties to the arbitrator shall be 
directed to the AAA for transmittal to the arbitrator.
    (b) Each party to an agreement which provides for arbitration under 
these Rules shall be deemed to have consented that any papers, notices 
or process necessary or proper for the initiation or continuation of an 
arbitration under these Rules and for any court action in connection 
therewith or for the entry of judgment on any award made thereunder may 
be served upon such party by mail addressed to such party or his 
attorney at his last known address or by personal service, within or 
without the State wherein the arbitration is to be held (whether such 
party be within or without the United States

[[Page 79]]

of America): Provided, That reasonable opportunity to be heard with 
regard thereto has been granted such party.

                         Sec. 17. Time of Award

    The award shall be made promptly by the arbitrator and, unless 
otherwise agreed by the parties, or specified by law, no later than 
thirty days from the date of closing the hearings, or if oral hearings 
have been waived, from the date of transmitting the final statements and 
proofs to the arbitrator.

                          Sec. 18. Appearances

    (a) Parties may appear in person or by counsel or other 
representative. Persons who appear as counsel or in a representative 
capacity must conform to the standards of ethical conduct required of 
practitioners before the courts of the United States.
    (b) Any party to the proceeding who, after being duly notified and 
without good cause being shown fails to appear at a prehearing 
conference or fails to respond to correspondence, shall be deemed to 
have waived his rights with respect thereto and shall be subject to such 
orders or determinations with respect thereto as the arbitrator shall 
make. The failure of a party to appear at a hearing shall constitute a 
waiver of the right to present evidence at such hearing. Where either 
party fails to appear at a hearing, the arbitrator shall require the 
presentation by the present party of such evidence as he deems necessary 
to prepare a decision in conformity with the requirements of the act.
    (c) Any person having a direct interest in the arbitration is 
entitled to attend hearings. The arbitrator shall otherwise have the 
power to require the exclusion of any witness, other than a party or 
other essential person, during the testimony of any other witness. It 
shall be discretionary with the arbitrator to determine the propriety of 
the attendance of any other person.

                  Sec. 19. Consolidation and Severance

    (a) The AAA may with agreement of all parties consolidate any 
matters at issue in two or more proceedings docketed under these Rules 
of Procedure where there exist common parties, common questions of fact 
and law, and where such consolidation would expedite or simplify 
consideration of the issues. Consolidation may also be effected where 
separate claims for use of the same test data are made against different 
respondents. The arbitrator who presides over the consolidated 
proceeding shall be chosen in accordance with section 3, supra.
    (b) The arbitrator may, by motion or sua sponte, for good cause 
shown order any proceeding severed with respect to some or all parties 
or issues.

             Sec. 20. Protection of Confidential Information

    (a) The arbitrator shall make such orders as required to protect the 
secrecy of confidential information or documents such as review in 
camera.
    (b) The arbitrator shall impose a sanction against any party who 
violates an order issued under this section. Such sanction may include 
an award against the offending party.

                     Sec. 21. Scheduling of Hearing

    (a) After consideration of the convenience of the parties, the AAA 
shall serve upon the parties a notice of hearing setting a time and 
place for such hearing.
    (b) Except for good cause shown, no request for postponement of a 
hearing will be granted. Such request must be received in writing at 
least a day in advance of the time set for the hearing. In case of 
postponement, the hearing shall be rescheduled for a date as early as 
circumstances will permit.

                 Sec. 22. Optional Accelerated Procedure

    (a) In claims involving $25,000 or less, the parties may elect, 
prior to commencement of hearing, to have the claim processed under an 
expedited procedure. If no specific amount of claim is stated, a case 
will be considered to fall within this rule if the amount which the 
claimant represents in writing that it could recover as a result of any 
arbitrator's decision favorable to it does not exceed $25,000. Upon such 
election, a case shall then be processed under this rule unless the 
respondent objects and shows good cause why the substantive nature of 
the dispute requires processing under the regular procedures. In cases 
proceeding under this rule, the parties have waived discovery and 
briefs.
    (b) The arbitrator shall schedule the dispute for hearing within 
thirty (30) days of service of notice to the parties that the dispute 
will be governed by this accelerated procedure, unless either party 
requests that the case be submitted without hearing under section 19.
    (c) Written decision by the arbitrators in cases proceeding under 
this rule normally will be short and contain summary findings of fact 
and conclusions only. The arbitrator shall render such decisions 
promptly, but in no event later than thirty days after the dispute is 
ready for decision.

                           Sec. 23. Discovery

    (a) Either party may move for permission to serve written 
interrogatories and requests for production of documents upon the 
opposing party. The arbitrator shall grant such motion to the extent 
that such interrogatories and requests are designed to produce relevant 
evidence and only upon such terms as the arbitrator in his or her 
discretion considers to be consistent with the objective of

[[Page 80]]

securing a just and inexpensive determination of the dispute without 
unnecessary delay.
    (b) Upon motion by either party, the arbitrator may order a 
deposition upon a showing of good cause and a finding that the 
deposition is designed to secure relevant and probative evidence which 
(1) cannot be obtained by alternative means, or (2) may otherwise not be 
preserved for presentation at hearing.
    (c) If a party fails to comply with an order issued under this 
section, the arbitrator shall draw inferences adverse to that party in 
connection with the facts sought to be discovered.
    (d) At least thirty days prior to the hearing, each party shall make 
available to each other party the names of the expert and other 
witnesses it intends to call, together with a detailed summary of their 
expected testimony, and copies of all documents and exhibits which the 
party intends to introduce into evidence. Thereafter, witnesses, 
documents, or exhibits may be added and narrative summaries of expected 
testimony amended only upon motion by a party for good cause shown.

                     Sec. 24. Prehearing Conference

    (a) When it appears that such procedure will expedite the 
proceeding, the arbitrator at any time prior to the commencement of the 
hearing may request the parties and their counsel or other 
representative to appear at a conference before him or her to consider:
    (i) The possibility of settlement of the case;
    (ii) The simplification of issues and stipulation of facts not 
indispute;
    (iii) The necessity or desirability of amending or supplementing 
documents in the record;
    (iv) The possibility of obtaining admissions or stipulations of fact 
and of documents which will avoid unnecessary proof;
    (v) The limitation of the number of expert or other witnesses;
    (vi) The setting of a time and place for the hearing, giving 
consideration to the convenience of all parties and to the public 
interest; and
    (vii) Any other matters as may expedite the disposition of the 
proceeding.
    (b) No transcript of any prehearing conference shall be made unless 
ordered upon motion of a party or sua sponte by the arbitrator. In the 
absence of a transcript, the arbitrator shall prepare and file a report 
of the action taken at such conference. Such report shall incorporate 
any written stipulations or agreements made by the parties, all rulings 
upon matters considered at such conference, and appropriate orders 
containing directions to the parties. Such report shall, as appropriate, 
direct the subsequent course of the proceeding, unless modified by the 
arbitrators on motion or sua sponte.

                            Sec. 25. Evidence

    (a) The arbitrator shall admit all evidence which is relevant, 
competent, material, not privileged, and not unduly repetitious. The 
weight to be given evidence shall be determined by its reliability and 
probative value.
    (b) Except as otherwise provided in these Rules of Procedure or by 
the arbitrator, witnesses shall be examined orally, under oath or 
affirmation. Parties shall have the right to cross-examine a witness who 
appears at the hearing provided that such cross-examination is not 
unduly repetitious.
    (c) Except where the arbitrator finds it impracticable, an original 
and two copies of each exhibit shall be filed at the time the exhibit is 
offered into evidence and a copy shall be furnished to each party. A 
true copy of an exhibit may be substituted for the original.
    (d) Official notice may be taken of any matter judicially noticed in 
the Federal courts. The parties shall be given adequate opportunity to 
show that such facts are erroneously noticed.

                      Sec. 26. Order of Proceedings

    (a) Hearing shall be opened by the filing of the oath of the 
arbitrator, and by the recording of the place, time and date of the 
hearing, the presence of the arbitrator, parties, and counsel.
    (b) The arbitrator may, at the beginning of the hearing, ask for 
statements clarifying the issues involved. The claimant shall then 
present his claim and proofs and his witnesses. The respondent shall 
then present his response and proofs and his witnesses. The arbitrator 
may in his descretion vary this procedure but he or she shall afford 
full and equal opportunity to all parties for the presentation of any 
material or relevant proofs.

          Sec. 28. Burden of Presentation; Burden of Persuasion

    The claimant shall have the burden of going forward to establish his 
entitlement to an amount of compensation that respondent should pay for 
use of the test data relied upon. Each matter of controversy shall be 
decided by the arbitrator upon a preponderance of the evidence.

                      Sec. 29. Stenographic Record

    Any party may request a stenographic record by making arrangements 
for same through the AAA. If such transcript is agreed by the parties to 
be, or in appropriate cases determined by the arbitrator to be, the 
official record of the proceeding, it must be made available to the 
arbitrator, and to the other party for inspection, at a time and place 
determined by the arbitrator. The

[[Page 81]]

total cost of such a record shall be shared equally by those parties 
that order copies.

Sec. 30. Filing of Briefs, Proposed Findings of Fact and Conclusions of 
                         Law, and Proposed Order

    Unless otherwise ordered by the arbitrator, each party may within 
thirty days after delivery of the transcript of a hearing to the 
arbitrator as provided in section 29, file with AAA and serve upon all 
other parties a brief together with references to relevant exhibits and 
the record. Within Fifteen days thereafter each party may file a reply 
brief concerning matters contained in the opposing brief. Oral argument 
may be had at the discretion of the arbitrator.

                      Sec. 31. Closing of Hearings

    The Arbitrator shall inquire of all parties whether they have any 
further proofs to offer or witnesses to be heard. Upon receiving 
negative replies, the arbitrator shall declare the hearings closed and 
the time and date shall be recorded. If briefs or other documents are to 
be filed, the hearings shall be declared closed as of the final date set 
by the arbitrator for filing with the AAA. The time limit within which 
the Arbitrator is required to make the award shall commence to run, in 
the absence of other agreement by the parties, upon the closing of the 
hearings.

                     Sec. 32. Arbitrators' Decision

    (a) The arbitrator shall as soon as practicable after the filing of 
briefs evaluate the record and prepare and file a decision. The decision 
shall contain findings of fact and conclusions regarding all issues in 
dispute as well as reasons therefore.
    (b) The decision shall contain a determination as to the 
compensation, if any respondent must pay to claimant, or other remedy as 
appropriate, the method of payment, and may fix such other terms and 
conditions as may be reasonable under the circumstances, including the 
furnishing of a bond or other guarantee of payment by the respondent to 
the claimant.

                     Sec. 33. Reopening of Hearings

    (a) The hearings may be reopened by the arbitrator on his or her own 
motion, or upon application of a party at any time before the award is 
made. If the reopening of the hearings would prevent the making of the 
award within the specific time agreed upon by the parties in the 
contract out of which the controversy has arisen, the matter may not be 
reopened, unless the parties agree upon the extension of such time 
limit. When no specific date is fixed, the arbitrator may reopen the 
hearings, and the arbitrator shall have thirty days from the closing of 
the reopened hearings within which to make an award.
    (b) A motion to reopen a hearing to take further evidence, to rehear 
or reargue any matter related to such proceeding, or to reconsider the 
arbitrator's decision, must be made by motion in writing to the 
arbitrator in accordance with these Rules of Procedure. Every such 
motion must state the specific grounds upon which relief is sought.
    (c) A motion to reopen a hearing for the purpose of taking further 
evidence may be filed at any time prior to the issuance of the 
arbitrator's decision. Such motion shall state briefly the nature and 
purpose of the evidence to be adduced, shall show that such evidence is 
not cumulative, and shall set forth a good reason why such evidence was 
not adduced at a hearing.
    (d) Motions to modify the arbitrator's decision shall be filed 
within 30 days after the date of service of the decision. Such motion 
must state specifically one of the following grounds for modification:
    1. There was a miscalculation of figures or a mistake in the 
description of any person, thing or property referred to in the award; 
or
    2. The arbitrators have awarded upon a matter not submitted to them 
and the award may be corrected without affecting the merits of the 
decision upon the issues submitted; or
    3. The award is imperfect in a matter of form, not affecting the 
merits of the controversy.

                     Sec. 34. Award Upon Settlement

    If the parties settle their dispute during the course of the 
arbitration, the arbitrator, upon their request, may set forth the terms 
of the agreed settlement in an award.

                  Sec. 35. Delivery of Award to Parties

    Parties shall accept as legal delivery of the award the placing of 
the award or a true copy thereof in the mail by the AAA, addressed to 
such party at his last known address or to his attorney, or personal 
service of the award, or the filing of the award in any manner which may 
be prescribed by law.

         Sec. 36. Release of Documents for Judicial Proceedings

    The AAA shall, upon the written request of a party, furnish to such 
party, at his or her expense, certified facsimiles of any papers in the 
AAA's possession that may be required in judicial proceedings relating 
to the arbitration.

                      Sec. 37. Application to Court

    (a) No judicial proceedings by a party relating to the subject 
matter of the arbitration shall be deemed a waiver of the party's right 
to arbitrate.
    (b) Neither the AAA nor FMCS is a necessary party in judicial 
proceedings relating to the arbitration.

[[Page 82]]

    (c) Parties to these Rules shall be deemed to have consented that 
judgment upon the arbitration award may be entered in any Federal or 
State Court having jurisdiction thereof.

                      Sec. 38. Administrative Fees

    As a nonprofit organization, the AAA shall prescribe an 
administrative fee schedule and a refund schedule to compensate it for 
the cost of providing administrative services. The schedule in effect at 
the time of filing or the time of refund shall be applicable.
    The administrative fees shall be advanced by the initiating party or 
parties, subject to final appointment by the arbitrator in his award.
    When a matter is withdrawn or settled, the refund shall be made in 
accordance with the refund schedule.
    The AAA, in the event of extreme hardship on the part of any party, 
may defer or reduce the administrative fee.

               Sec. 39. Fee When Oral Hearings Are Waived

    Where all oral hearings are waived the Administrative Fee Schedule 
shall apply.

                            Sec. 40. Expenses

    The expenses of witnesses for either side shall be paid by the party 
producing such witnesses.
    The cost of the stenographic record, if any is made, and all 
transcripts thereof, shall be prorated equally among all parties 
ordering copies unless they shall otherwise agree and shall be paid for 
by the responsible parties directly to the reporting agency.
    All other expenses of the arbitration, including required traveling 
and other expenses of the arbitrator and of AAA representatives, and the 
expenses of any witness or the cost of any proofs produced at the direct 
request of the arbitrator, shall be borne equally by the parties.

                        Sec. 41. Arbitrator's Fee

    Any arrangement for the compensation of a neutral arbitrator shall 
be made through the AAA and not directly by him or her with the parties. 
Where parties cannot agree, AAA shall fix reasonable compensation.

                            Sec. 42. Deposits

    The AAA may require the parties to deposit in advance such sums of 
money as it deems necessary to defray the expense of the arbitration, 
including the arbitrator's fee if any, and shall render an accounting to 
the parties and return any unexpened balance.

            Sec. 43. Interpretation and Application of Rules

    The arbitrator shall interpret and apply these Rules insofar as they 
relate to his or her powers and duties. When there is more than one 
arbitrator and a difference arises among them concerning the meaning or 
application of any such Rules, it shall be decided by a majority vote. 
If that is unobtainable, either an arbitrator or a party may refer the 
question to the AAA for decision. All other Rules shall be interpreted 
and applied by the AAA. Either party may request that FMCS review any 
decision of AAA on interpretation or application of these rules.

                       Administrative Fee Schedule

    The administrative fee of the AAA is based upon the amount of each 
claim and counterclaim as disclosed when the claim and counterclaim are 
filed, and is due and payable at the time of filing.

------------------------------------------------------------------------
             Amount of claim                            Fee
------------------------------------------------------------------------
Up to $25,000............................  $500.
$25,000 to $100,000......................  $600, plus 1% of excess over
                                            $25,000.
$100,000 to $200,000.....................  $1350, plus \1/2\% of excess
                                            over $100,000.
$200,000 to $5,000,000...................  $1850, plus \1/4\% of excess
                                            over $200,000.
------------------------------------------------------------------------

    Where the claim or counter claim exceeds $5 million, an appropriate 
fee will be determined by the AAA.
    When no amount can be stated at the time of filing, the 
administrative fee is $500, subject to adjustment in accordance with the 
above schedule as soon as an amount can be disclosed.
    If there are more than two parties represented in the arbitration, 
an additional 10% of the initiating fee will be due for each additional 
represented party.
    Other Service Charges--$50.00 payable by a party causing an 
adjournment of any scheduled hearing;
    $100 payable by a party causing a second or additional adjournment 
of any scheduled hearing.
    $25.00 payable by each party for each hearing after the first 
hearing which is either clerked by the AAA or held in a hearing room 
provided by the AAA.
    Refund Schedule--If the AAA is notified that a case has been settled 
or withdrawn before a list of Arbitrators has been sent out, all the 
fees in excess of $500 will be refunded.
    If the AAA is notified that a case has been settled or withdrawn 
thereafter but before the due date for the return of the first list, 
two-thirds of the fee in excess of $500.00 will be refunded.
    If the AAA is notified that a case is settled or withdrawn 
thereafter but at least 48 hours before the date and time set for the 
first hearing, one-half of the fee in excess of $500 will be refunded.

[[Page 83]]

                           Regional Directors

Atlanta (30303), India Johnson--100 Peachtree Street, NW.
Boston (02108), Richard M. Reilly--294 Washington Street
Charlotte (28218), John A. Ramsey--3235 Eastway Drive, P.O. Box 18591
Chicago (60601), Charles H. Bridge, Jr.--180 N. La Salle Street
Cincinnati (45202), Philip S. Thompson--2308 Carew Tower
Cleveland (44114), Earle C. Brown--215 Euclid Avenue
Dallas (75201), Helmut O. Wolff--1607 Main Street
Detroit (48226), Mary A. Bedikian--1234 City National Bank Building
Garden City, NY (11530), Ellen Maltz-Brown--585 Stewart Avenue
Hartford (06103), J. Robert Haskell--37 Lewis Street
Los Angeles (90020), Jerrold L. Murase--443 Shatto Place
Miami (33129), Joseph A. Fiorillo--2250 SW. 3rd Avenue
Minneapolis (55402), Patricia A. Levin--1001 Foshay Tower
New Brunswick, NJ (08901), Richard Naimark--96 Bayard Street
New York (10020), Robert E. Meade--140 West 51st Street
Philadelphia (19102), Arthur R. Mehr--1520 Locust Street
Phoenix (85004), Paul A. Newnham--222 North Central Avenue
Pittsburgh (15222), John F. Schano--221 Gateway Four
San Diego (92101), John E. Scrivner--530 Broadway
San Francisco (94104), Charles A. Cooper--690 Market Street
Seattle (98104), Neal M. Blacker--810 Third Avenue
Syracuse (13203), Deborah A. Brown--731 James Street
Washington (20036), Garylee Cox--1730 Rhode Island Avenue, NW.
White Plains, NY (10601), John R. Dacey--34 South Broadway



PART 1450_COLLECTIONS OF CLAIMS OWED THE UNITED STATES-
-Table of Contents



                      Subpart A_General Provisions

Sec.
1450.1 Definitions.
1450.2 Exceptions.
1450.3 Use of procedures.
1450.4 Conformance to law and regulations.
1450.5 Other procedures.
1450.6 Informal action.
1450.7 Return of property.
1450.8 Omissions not a defense.

Subpart B_Administrative Offset_Consumer Reporting Agencies_Contracting 
                             for Collection

1450.9 Demand for payment.
1450.10 Collection by administrative offset.
1450.11 Administrative offset against amounts payable from Civil Service 
          Retirement and Disability Fund.
1450.12 Collection in installments.
1450.13 Exploration of compromise.
1450.14 Suspending or termination collection action.
1450.15 Referrals to the Department of Justice or the General Accounting 
          Office.
1450.16 Use of consumer reporting agencies.
1450.17 Contracting for collection services.

                         Subpart C_Salary Offset

1450.18 Purpose.
1450.19 Scope.
1450.20 Definitions.
1450.21 Notification.
1450.22 Hearing.
1450.23 Deduction from pay.
1450.24 Liquidation from final check or recovery from other payment.
1450.25 Non-waiver of rights by payments.
1450.26 Refunds.
1450.27 Interest, penalties, and administrative costs.
1450.28 Recovery when paying agency is not creditor agency.

         Subpart D_Interest, Penalties, and Administrative Costs

1450.29 Assessment.
1450.30 Exemptions.
1450.31 Other sanctions.

    Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 4 CFR parts 101-105; 
5 CFR part 550.

    Source: 51 FR 24817, July 9, 1986, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  1450.1  Definitions.

    (a) The term agency means the Federal Mediation and Conciliation 
Service (FMCS) or any other agency of the U.S. Government as stated at 
Sec.  1450.20.
    (b) The term agency head means the Director of the Federal Mediation 
and Conciliation Service.
    (c) The terms appropriate agency official or designee mean the 
Director of the Financial Management Staff of FMCS, or such other 
official as may be named in the future by the Director of FMCS.

[[Page 84]]

    (d) The terms claim and debt are deemed synonymous and 
interchangeable. They refer to an amount of money or property which has 
been determined by an appropriate agency official to be owed to the 
United States from any person, organization or entity, except another 
Federal agency.
    (e) A debt is considered delinquent if it has not been paid by the 
date specified in the agency's written notification or applicable 
contractual agreement, unless other satisfactory payment arrangements 
have been made by that date, or if at any time thereafter the debtor 
fails to satisfy obligations under a payment agreement with the agency.
    (f) The term referral for litigation means referral to the 
Department of justice for appropriate legal proceedings.



Sec.  1450.2  Exceptions.

    (a) Claims arising from the audit of transportation accounts 
pursuant to 31 U.S.C. 3726 shall be determined, collected, compromised, 
terminated or settled in accordance with regulations published under the 
authority of 31 U.S.C. 3726 (see 41 CFR part 101-41).
    (b) Claims arising out of acquisition contracts subject to the 
Federal Acquisition Regulations (FAR) shall be determined, collected, 
compromised, terminated, or settled in accordance with those 
regulations. (See 48 CFR part 32). If not otherwise provided for in the 
FAR system, contract claims that have been the subject of a contracting 
officer's final decision in accordance with section 6(a) of the Contract 
Disputes Act of 1978 (41 U.S.C. 605)(a)), may be determined, collected, 
compromised, terminated or settled under the provisions of this 
regulation, except that no additional review of the debt shall be 
granted beyond that provided by the contracting officer in accordance 
with the provisions of section 6 of the Contract Disputes Act of 1978 
(41 U.S.C. 605), and the amount of any interest, administrative charge, 
or penalty charge shall be subject to the limitations, if any, contained 
in the contract out of which the claim arose.
    (c) Claims based in whole or in part on conduct in violation of the 
antitrust laws, or in regard to which there is an indication of fraud, 
presentation of a false claim, or misrepresentation on the part of the 
debtor or any other party having an interest in the claim, shall be 
referred to the Department of Justice (DOJ) as only the DOJ has 
authority to compromise, suspend, or terminate collection action on such 
claims.
    (d) Tax claims are also excluded from the coverage of this 
regulation.



Sec.  1450.3  Use of procedures.

    Procedures authorized by this regulation (including, but not limited 
to, disclosure to a consumer reporting agency, contracting for 
collection services, administrative offset and salary offset) may be 
used singly or in combination, so long as the requirements of applicable 
law and regulation are satisfied.



Sec.  1450.4  Conformance to law and regulations.

    The requirements of applicable law (31 U.S.C 3701-3719 and 5 U.S.C. 
5514 as amended by Pub. L. 97-365, 96 Stat. 1749) have been implemented 
in Governmentwide standards:
    (a) The Regulations of the Office of Personnel Management (5 CFR 
part 550),
    (b) The Federal Claims Collection Standards issued jointly by the 
General Accounting Office and the Department of Justice (4 CFR parts 
101-105), and
    (c) The procedures prescribed by the Office of Management and Budget 
in Circular A-129 of May 9, 1985.


Not every item in the above described standards has been incorporated or 
referenced in this regulation. To the extent, however, that 
circumstances arise which are not covered by the terms stated in this 
regulation, FMCS will proceed in any actions taken in accordance with 
applicable requirements found in the sources referred to in paragraphs 
(a), (b), and (c) of this section.



Sec.  1450.5  Other procedures.

    Nothing contained in this regulation is intended to require FMCS to 
duplicate administrative proceedings required by contract or other laws 
or regulations.

[[Page 85]]



Sec.  1450.6  Informal action.

    Nothing contained in this regulation is intended to preclude 
utilization of informal administrative actions or remedies which may be 
available.



Sec.  1450.7  Return of property.

    Nothing contained in this regulation is intended to deter FMCS from 
demanding the return of specific property or from demanding, the return 
of the property or the payment of its value.



Sec.  1450.8  Omissions not a defense.

    The failure of FMCS to comply with any provision in this regulation 
shall not serve as a defense to the debt.



Subpart B_Administrative Offset_Consumer Reporting Agencies_Contracting 
                             for Collection



Sec.  1450.9  Demand for payment.

    Prior to making an administrative offset, demand for payment will be 
made as stated below:
    (a) Written demands shall be made promptly upon a debtor in terms 
which inform the debtor of the consequences of failure to cooperate. A 
total of three progressively stronger written demands at not more than 
30-day intervals will normally be made unless a response to the first or 
second demand indicates that a further demand would be futile and the 
debtor's response does not require rebuttal. In determining the timing 
of demand letters, FMCS will give due regard to the need to act promptly 
so that, as a general rule, if necessary to refer the debt to the 
Department of Justice for litigation, such referral can be made within 
one year of the agency's final determination of the fact and the amount 
of the debt. When necessary to protect the Government's interest (for 
example, to prevent the statute of limitations, 28 U.S.C. 2415, from 
expiring), written demand may be preceded by other appropriate actions 
under this subpart including immediate referral for litigation.
    (b) The initial demand letter will inform the debtor of:
    (1) The basis for the indebtedness and the right of the debtor to 
request review within the agency;
    (2) The applicable standards for assessing interest, penalties, and 
administrative costs (subpart D of this regulation) and
    (3) The date by which payment is to be made, which normally should 
be not more than 30 days from the date that the initial demand letter 
was mailed or hand-delivered. FMCS will exercise care to insure that 
demand letters are mailed or hand-delivered on the same day that they 
are actually dated. Apart from this, there is no prescribed format for 
the demand letters.
    (c) As appropriate to the circumstances, FMCS may include either in 
the initial demand letter or in subsequent letters, matters relating to 
alternative methods of payment, policies with respect to use of consumer 
reporting agencies and collection services, the agency's intentions with 
respect to referral of the debt to the Department of Justice for 
litigation, and, depending on applicable statutory authority, the 
debtor's entitlement to consideration of waiver.
    (d) FMCS will respond promptly to communications from the debtor, 
within 30 days whenever feasible, and will advise debtor who dispute the 
debt that they must furnish available evidence to support their 
contentions.
    (e) If, either prior to the initiations of, at any time during, or 
after completion of the demand cycle, FMCS determines to pursue 
administrative offset, then the requirements specified in Sec. Sec.  
1450.10 and 1450.11, as applicable, will be met. The availability of 
funds for offset and the agency determination to purse it release the 
agency from the necessity of further compliance with paragraphs (a), 
(b), and (c) of this section. If the agency has not already sent the 
first demand letter, the agency's written notification of its intent to 
offset must give the debtor the opportunity to make voluntary payment, a 
requirement which will be satisfied by compliance with the notice 
requirements of Sec. Sec.  1450.10 and 1450.11 as applicable.



Sec.  1450.10  Collection by administrative offset.

    (a) Collection by administrative offset will be undertaken in 
accordance with these regulations on all claims

[[Page 86]]

which are liquidated or certain in amount, in every instance in which 
such collection is determined to be feasible and not otherwise 
prohibited.
    (1) For purposes of this section, the term ``administrative offset'' 
is the same as stated in 31 U.S.C. 3716(a)(1).
    (2) Whether collection by administrative offset is feasible is a 
determination to be made by the agency on a case-by-case basis, in the 
exercise of sound discretion. FMCS will consider not only whether 
administrative offset can be accomplished practically, but also whether 
offset is best suited to further and protect all of the Government's 
interests. In appropriate circumstances, FMCS may give due consideration 
to the debtor's financial condition and is not required to use offset in 
every instance in which there is an available source of funds. FMCS may 
also consider whether offset would tend to substantially interfere with 
or defeat the purposes of the program authorizing the payments against 
which offset is contemplated. For example, under a grant program in 
which payments are made in advance of the grantee's performance, offset 
will normally be inappropriate. This concept generally does not apply, 
however, where payment is in the form of reimbursement.
    (b) Before the offset is made, a debtor shall be provided with the 
following: Written notice of the nature and amount of the debt, and the 
agency's intention to collect by offset; opportunity to inspect and copy 
agency records pertaining to the debt; opportunity to obtain review 
within the agency of the determination of indebtedness; and opportunity 
to enter into a written agreement with the agency to repay the debt. 
FMCS may also make requests for offset to other agencies holding funds 
payable to the debtor, and process requests for offset that are received 
from other agencies.
    (1) FMCS will exercise sound judgment in determining whether to 
accept a repayment agreement in lieu of offset. The determination will 
weigh the Government's interest in collecting the debt against fairness 
to the debtor. If the debt is delinquent and the debtor has not disputed 
its existence or amount, FMCS will normally accept a repayment agreement 
in lieu of offset only if the debtor is able to establish that offset 
would result in undue financial hardship or would be against equity and 
good conscience.
    (2) In cases where the procedural requirements specified in 
paragraph (b) of this section have previously been provided to the 
debtor in connection with the same debt under Sec.  1450.9, or some 
other regulatory or statutory authority, such as pursuant to a notice of 
audit allowance, the agency is not required to duplicate those 
requirements before taking administrative offset.
    (3) FMCS may not initiate administrative offset to collect a debt 
under 31 U.S.C. 3716 more than 10 years after the Government's right to 
collect the debt first accrued, unless facts material to the 
Government's right to collect the debt were not known and could not 
reasonably have been known by the official or officials of the 
Government who were charged with the responsibility to discover and 
collect such debts. When the debt first accrued is to be determined 
according to existing law, regarding the accrual of debts, such as 28 
U.S.C. 2415.
    (4) FMCS is not authorized by 31 U.S.C. 3716 to use administrative 
offset with respect to:
    (i) Debts owed by any State or local Governments;
    (ii) Debts arising under or payments made under the Social Security 
Act, the Internal Revenue Code of 1954, or the tariff laws of the United 
States; or
    (iii) Any case in which collection of the type of debt involved by 
administrative offset is explicitly provided for or prohibited by 
another statute. However, unless otherwise provided by contract or law, 
debts or payments which are not subject to administrative offset under 
31 U.S.C. 3716 may be collected by administrative offset under the 
common law or other applicable statutory authority.
    (5) FMCS may effect administrative offset against a payment to be 
made to a debtor prior to completion of the procedures required by 
paragraph (b) of this section if:
    (i) Failure to take the offset would substantially prejudice the 
Government's ability to collect the debt, and

[[Page 87]]

    (ii) The time before the payment is to be made does not reasonably 
permit the completion of those procedures.

Such prior offset must be promptly followed by the completion of those 
procedures. Amounts recovered by offset but later found not to be owed 
to the Government shall be promptly refunded.
    (6) FMCS will obtain credit reports on delinquent accounts to 
identify opportunities for administrative offset of amounts due to a 
delinquent debtor when other collection techniques have been 
unsuccessful.
    (c) Type of hearing or review: (1) For purposes of this section, 
whenever FMCS is required to provide a hearing or review within the 
agency, the agency shall provide the debtor with a reasonable 
opportunity for an oral hearing when:
    (i) An applicable statute authorizes or requires the agency to 
consider waiver of the indebtedness involved, the debtor requests waiver 
of the indebtedness, and the waiver determination turns on an issue of 
credibility or veracity; or
    (ii) The debtor requests reconsideration of the debt and the agency 
determines that the question of the indebtedness cannot be resolved by 
review of the documentary evidence, for example, when the validity of 
the debt turns on an issue of credibility or veracity.

Unless otherwise required by law, an oral hearing under this section is 
not required to be a formal evidentiary-type hearing, although the FMCS 
will carefully document all significant matters discussed at the 
hearing.
    (2) This section does not require an oral hearing with respect to 
debt collection systems in which determinations of indebtedness or 
waiver rarely involve issues of credibility or veracity and the agency 
has determined that review of the written record is ordinarily an 
adequate means to correct prior mistakes. In administering such a 
system, the agency is not required to sift through all of the requests 
received in order to accord oral hearings in those few cases which may 
involve issues of credibility or veracity.
    (3) In those cases where an oral hearing is not required by this 
section, the agency will make its determination on the request for 
waiver or reconsideration based upon a ``paper hearing'' that is, a 
review of the written record.
    (d) Appropriate use will be made of the cooperative efforts of other 
agencies in effecting collection by administrative offset. Generally, 
FMCS will not refuse to comply with requests from other agencies to 
initiate administrative offset to collect debts owed to the United 
States, unless the requesting agency has not complied with the 
applicable provisions of these standards or the offset would be 
otherwise contrary to law.
    (e) Collection by offset against a judgment obtained by a debtor 
against the United States shall be accomplished in accordance with 31 
U.S.C. 3728.
    (f) Whenever the creditor agency is not the agency which is 
responsible for making the payment against which administrative offset 
is sought, the latter agency shall not initiate the requested offset 
until it has been provided by the creditor agency with an appropriate 
written certification that the debtor owes a debt (including the amount) 
and that full compliance with the provisions of this section has taken 
place.
    (g) When collecting multiple debts by administrative offset, FMCS 
will apply the recovered amounts to those debts in accordance with the 
best interests of the United States, as determined by the facts and 
circumstances of the particular case, paying special attention to 
applicable statutes of limitations.



Sec.  1450.11  Administrative offset against amounts payable from 
Civil Service Retirement and Disability Fund.

    (a) Unless otherwise prohibited by law, FMCS may request that moneys 
which are due and payable to a debtor from the Civil Service Retirement 
and Disability Fund be administratively offset in reasonable amounts in 
order to collect in one full payment, or a minimal number of payments, 
debts owed to the United States by the debtor. Such requests shall be 
made to the appropriate officials of the Office of Personnel Management 
in accordance with such regulations as may be prescribed by the Director 
of that Office.
    (b) When making a request for administrative offset under paragraph 
(a)

[[Page 88]]

of this section, FMCS shall include a written certification that:
    (1) The debtor owes the United States a debt, including the amount 
of the debt;
    (2) The FMCS has complied with the applicable statutes, regulations, 
and procedures of the Office of Personnel Management; and
    (3) The FMCS has complied with the requirements of Sec.  1450.10 of 
this subpart, including any required hearing or review.
    (c) Once FMCS decides to request adminstrative offset under 
paragraph (a) of this section, it will make the request as soon as 
practical after completion of the applicable procedures in order that 
the Office of Personnel Management may identify and ``flag'' the 
debtor's account in anticipation of the time when the debtor requests or 
become eligible to receive payments from the Fund. This will satisfy any 
requirement that offset be initiated prior to expiration of the 
applicable statute of limitations. At such time as the debtor makes a 
claim for payments from the Fund, if at least a year has elapsed since 
the offset request was originally made, the debtor should be permitted 
to offer a satisfactory payment plan in lieu of offset upon establishing 
that changed financial circumstances would render the offset unjust.
    (d) If FMCS collects part or all of the debt by other means before 
deductions are made or completed pursuant to paragraph (a) of this 
section, FMCS shall act promptly to modify or terminate its request for 
offset under paragraph (a) of this section.
    (e) This section does not require or authorize the Office of 
Personnel Management to review the merits of the FMCS determination with 
respect to the amount and validity of the debt, its determination as to 
waiver under an applicable statute, or its determination to provide or 
not provide a hearing.



Sec.  1450.12  Collection in installments.

    (a) Whenever feasible, and except as otherwise provided by law, 
debts owed to the United States, together with interest, penalties, and 
administrative costs as required by this regulation should be collected 
in full in one lump sum. This is true whether the debt is being 
collected by administrative offset or by another method, including 
voluntary payment. However, if the debtor is financially unable to pay 
the indebtedness in one lump sum, payment may be accepted in regular 
installments. FMCS will obtain financial statements from debtors who 
represent that they are unable to pay the debt in one lump sum. If FMCS 
agrees to accept payment in regular installments it will obtain a 
legally enforceable written agreement from the debtor which specifies 
all of the terms of the arrangement and which contains a provision 
accelerating the debt in the event the debtor defaults. The size and 
frequency of installment payments should bear a reasonable relation to 
the size of the debt and the debtor's ability to pay. If possible, the 
installment payments should be sufficient in size and frequency to 
liquidate the Government's claim in not more than 3 years. Installment 
payments of less than $50 per month will be accepted only if justifiable 
on the grounds of financial hardship or some other reasonable cause.
    (b) If the debtor owes more than one debt and designates how a 
voluntary installment payment is to be applied as among those debts, 
that designation must be followed. If the debtor does not designate the 
application of the payment, FMCS will apply payments to various debts in 
accordance with the best interests of the United States, as determined 
by the facts and circumstances of the particular case, paying special 
attention to applicable statutes of limitations.



Sec.  1450.13  Exploration of compromise.

    FMCS may attempt to effect compromise, preferably during the course 
of personal interviews, in accordance with the standards set forth in 
part 103 of the Federal Claims Collection Standards (4 CFR part 103).



Sec.  1450.14  Suspending or termination collection action.

    The suspension or termination of collection action shall be made in 
accordance with the standards set forth in part 104 of the Federal 
Claims Collection Standards (4 CFR part 104).

[[Page 89]]



Sec.  1450.15  Referrals to the Department of Justice or the General
Accounting Office.

    Referrals to the Department of Justice or the General Accounting 
Office shall be made in accordance with the standards set forth in part 
105 of the Federal Claims Collection Standards (4 CFR part 105).



Sec.  1450.16  Use of consumer reporting agencies.

    (a) The term individual means a natural person, and the term 
``consumer reporting agency'' has the meaning provided in the Federal 
Claims Collection Act, as amended, at 31 U.S.C. 3701(a)(3) or the Fair 
Credit Reporting Act, at 15 U.S.C. 1681a(f).
    (b) FMCS may disclose to a consumer reporting agency, from a system 
of records, information that an individual is responsible for a claim 
if--
    (1) Notice required by section 5 U.S.C. 552(a)(e)(4) indicates that 
information in the system may be disclosed to a consumer reporting 
agency;
    (2) The claim has been reviewed and it is decided that the claim is 
valid and overdue;
    (3) FMCS has notified the individual in writing--
    (i) That payment of the claim is overdue;
    (ii) That, within not less than 60 days after sending the notice, 
FMCS intends to disclose to a consumer reporting agency that the 
individual is responsible for that claim;
    (iii) Of the specific information to be disclosed to the consumer 
reporting agency; and
    (iv) Of the rights the individual has to a complete explanation of 
the claim, to dispute information in the records of the agency about the 
claim, and to administrative appeal or review of the claim; and
    (4) The individual has not--
    (i) Repaid or agreed to repay the claim under a written repayment 
plan that the individual has signed and the agency has agreed to; or
    (ii) Filed for review of the claim under paragraph (g) of this 
section;
    (c) FMCS will also--(1) Disclose promptly, to each consumer 
reporting agency to which the original disclosure was made, a 
substantial change in the condition or amount of the claim;
    (2) Verify or correct promptly information about the claim, on 
request of a consumer reporting agency for verification of information 
disclosed; and
    (3) Get satisfactory assurances from each consumer reporting agency 
that they are complying with all laws of the United States related to 
providing consumer credit information; and assure that
    (d) The information disclosed to the consumer reporting agency is 
limited to (1) Information necessary to establish the identity of the 
individual, including name, address, and taxpayer identification number;
    (2) The amount, status, and history of the claim; and
    (3) The agency or program under which the claim arose.
    (e) All accounts in excess of $100 that have been delinquent more 
than 31 days will normally be referred to a consumer reporting agency.
    (f) Before disclosing information to a consumer reporting agency 
FMCS shall take reasonable action to locate an individual for whom the 
head of the agency does not have a current address to send the notice.
    (g) Before disclosing information to a consumer reporting agency 
FMCS shall provide, on request of an individual alleged by the agency to 
be responsible for the claim, a review of the obligation of the 
individual including an opportunity for reconsideration of the initial 
decision on the claim.
    (h) Under the same provisions as described above in this section, 
FMCS may disclose to a credit reporting agency, information relating to 
a debtor other than a natural person. Such commercial debt accounts are 
not covered, however, by the Privacy Act.



Sec.  1450.17  Contracting for collection services.

    (a) FMCS has authority to contract for collection services to 
recover delinquent debts, provided that the following conditions are 
satisfied;
    (1) The authority to resolve disputes, compromise claims, suspend or 
terminate collection action, and refer the

[[Page 90]]

matter for litigation is retained by the agency;
    (2) The contractor shall be subject to the Privacy Act of 1974, as 
amended to the extent specified in 5 U.S.C. 552a(m), and to applicable 
Federal and State laws and regulations pertaining to debt collection 
practices, such as the Fair Debt Collection Practices Act, 15 U.S.C. 
1692;
    (3) The contractor must be required to account strictly for all 
amounts collected;
    (4) The contractor must agree that uncollectible accounts shall be 
returned with appropriate documentation to enable FMCS to determine 
whether to pursue collection through litigation or to terminate 
collection efforts, and
    (5) The contractor must agree to provide any data contained in its 
files relating to paragraphs (a) (1), (2), and (3) of Sec.  105.2 of the 
Federal Claims Collection Standards (4 CFR part 105) upon returning an 
account to FMCS for subsequent referral to the Department of Justice for 
litigation.
    (b) Funding of collection service contracts: (1) FMCS may fund a 
collection service contract on a fixed-fee basis, that is, payment of a 
fixed fee determined without regard to the amount actually collected 
under the contract. Payment of the fee under this type of contract must 
be charged to available agency appropriations.
    (2) FMCS may also fund a collection service contract on a 
contingent-fee basis, that is, by including a provision in the contract 
permitting the contractor to deduct its fee from amounts collected under 
the contract. The fee should be based on a percentage of the amount 
collected, consistent with prevailing commercial practice.
    (3) FMCS may enter into a contract under paragraph (b)(1) of this 
section only if and to the extent provided in advance in its 
appropriation acts or other legislation, except that this requirement 
does not apply to the use of a revolving fund authorized by statute.
    (4) Except as authorized under paragraph (b)(2) of this section, or 
unless the receipt qualifies as a refund to the appropriation, or unless 
otherwise specifically provided by law, FMCS must deposit all amounts 
recovered under collection service contracts (or by agency employees on 
behalf of the agency) in the Treasury as miscellaneous receipts pursuant 
to 31 U.S.C. 3302.
    (c) FMCS will consider the use of collection agencies at any time 
after the account is 61 days past due. In all cases accounts that are 
six months or more past due shall be turned over to a collection agency 
unless referred for litigation or unless arrangements have been made for 
a workout procedure, or the agency has exercised its authority to write 
off the debt pursuant to Sec.  1450.14.
    (d) FMCS will generally not use a collection agency to collect a 
delinquent debt owed by a currently employed or retired Federal 
employee, if collection by salary or annuity offset is available.



                         Subpart C_Salary Offset



Sec.  1450.18  Purpose.

    This subpart provides the standards to be followed by FMCS in 
implementing 5 U.S.C. 5514 to recover a debt from the pay account of an 
FMCS employee, and establishes procedural guidelines to recover debts 
when the employee's creditor and paying agencies are not the same.



Sec.  1450.19  Scope.

    (a) Coverage. This subpart applies to agencies and employees as 
defined by Sec.  1450.20.
    (b) Applicability. This subpart and 5 U.S.C. 5514 apply in 
recovering certain debts by offset, except where the employee consents 
to the recovery, from the current pay account of that employee. Because 
it is an administrative offset, debt collection procedures for salary 
offset which are not specified in U.S.C. 5514 and these regulations 
should be consistent with the provisions of the Federal Claims 
Collection Standards (4 CFR parts 101-105).
    (1) Excluded debts or claims. The procedures contained in this 
subpart do not apply to debts or claims arising under the Internal 
Revenue Code of 1954 as amended (26 U.S.C. 1 et seq.), the Social 
Security Act (42 U.S.C. 301 et seq.) or the tariff laws of the United 
States, or to any case where collection of a debt

[[Page 91]]

by salary offset is explicitly provided for or prohibited by another 
statute (e.g., travel advances in 5 U.S.C. 5705 and employee training 
expenses in 5 U.S.C. 4108).
    (2) Waiver requests and claims to the General Accounting Office. 
This subpart does not preclude an employee from requesting waiver of a 
salary overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 
716, or in any way questioning the amount or validity of a debt by 
submitting a subsequent claim to the General Accounting Office in 
accordance with procedures prescribed by the General Accounting Office. 
Similarly, in the case of other types of debts, it does not preclude an 
employee from requesting waiver, if waiver is available under any 
statutory provision pertaining to the particular debt being collected.
    (c) Time limit. Under 4 CFR 102.3(b)(3), offset may not be initiated 
more than 10 years after the Government's right to collect the debt 
first accrued, unless an exception applies as stated in Sec.  
102.3(b)(3).



Sec.  1450.20  Definitions.

    For purposes of this subpart--
    Agency means the Federal Mediation and Conciliation Service (FMCS) 
or means any other agency of the U.S. Government as defined by section 
105 of title 5 U.S.C., including the U.S. Postal Service, and the U.S. 
Postal Rate Commission, a military department as defined by section 102 
of title 5 U.S.C., an agency or court of the judicial branch, and an 
agency of the legislative branch, including the U.S. Senate and the U.S. 
House of Representatives.
    Creditor agency means the agency to which the debt is owed.
    Debt means an amount owed to the United States from sources which 
include loans insured or guaranteed by the United States and all other 
amounts due the United States from fees, leases, rents, royalties, 
services, sales of real or personal property, overpayments, penalties, 
damages, interests, fines and forfeitures (except those arising under 
the Uniform Code Military Justice), and all other similar sources.
    Disposable pay means that part of current basic pay, special pay, 
incentive pay, retired pay, retainer pay, or in the case of an employee 
not entitled to basic pay, other authorized pay remaining after the 
deduction of any amount required by law to be withheld. FMCS will 
exclude deductions described in 5 CFR 581.105 (b) through (f) to 
determine disposable pay subject to salary offset.
    Employee means a current employee of FMCS or of another agency, 
including a current member of the Armed Forces or a Reserve of the Armed 
Forces
    FCCS means the Federal Claims Collection Standards jointly published 
by the Justice Department and the General Accounting Office at 4 CFR 
parts 101-105.
    Paying agency means the agency employing the individual and 
authorizing the payment of his or her current pay.
    Salary offset means an administrative offset to collect a debt under 
5 U.S.C. 5514 by deduction(s) at one or more officially established pay 
intervals from the current pay account of an employee without his or her 
consent.
    Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to an agency as 
permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 
710, 5 U.S.C. 8346(b), or any other law.



Sec.  1450.21  Notification.

    (a) Salary offset deductions shall not be made unless the Director 
of the Financial Management Staff of FMCS, or such other official as may 
be named in the future by the Director of FMCS, provides to the 
employee--at least 30 days before any deduction--a written notice 
stating at a minimum:
    (1) The agency's determination that a debt is owed, including the 
origin, nature, and amount of the debt;
    (2) The agency's intention to collect the debt by means of deduction 
from the employee's current disposable pay account;
    (3) The amount, frequency, proposed beginning date, and duration of 
the intended deductions;
    (4) An explanation of the agency's policy concerning interest, 
penalties,

[[Page 92]]

and administrative costs (subpart D of this regulation), a statement 
that such assessment must be made unless excused in accordance with the 
FCCS;
    (5) The employee's right to inspect and copy Government records 
relating to the debt or, if the employee or his or her representative 
cannot personnally inspect the records, to request and receive a copy of 
such records;
    (6) If not previously provided, the opportunity (under terms 
agreeable to the agency) to establish a schedule for the voluntary 
repayment of the debt or to enter into a written agreement to establish 
a schedule for repayment of the debt in lieu of offset. The agreement 
must be writing, signed by both the employee and the Director of the 
Financial Management Staff of FMCS, and documented in agency files (4 
CFR 102.11).
    (7) The employee's right to a hearing conducted by an official 
arranged by the agency (an administrative law judge or alternatively, a 
hearing official not under the control of the head of the agency) if a 
petition is filed as prescribed by Sec.  1450.22.
    (8) The method and time period for petitioning for a hearing;
    (9) That the timely filing of a petition for hearing will stay the 
commencement of collection proceedings;
    (10) That a final decision on the hearing (if one is requested) will 
be issued at the earliest practical date, but not later than 60 days 
after the filing of the petition requesting the hearing unless the 
employee requests and the hearing official grants a delay in the 
proceedings;
    (11) That any knowingly false, misleading, or frivolous statements, 
representations, or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under chapter 75 of title 5, 
U.S.C., part 752 of title 5, CFR, or any other applicable status or 
regulations;
    (ii) Penalties under the False Claims Act sections 3729-3731 of 
title 31, U.S.C., or any other applicable statutory authority; or
    (iii) Criminal penalties under sections 286, 287, 1001, and 1002 of 
title 18, U.S.C., or any other applicable statutory authority.
    (12) Any other right and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made; and
    (13) Unless there are applicable contractual or statutory provisions 
to the contrary, that amounts paid on or deducted for the debt which are 
later waived or found not owned to the United States will be promptly 
refunded to the employee.
    (b) Notifications under this section shall be hand delivered with a 
record made of the date and time of delivery, or shall be mailed by 
certified mail return receipt requested.
    (c) No notification, hearing, written responses or final decisions 
under this regulation are required of FMCS for any adjustment to pay 
arising out of an employee's election of coverage under a Federal 
benefit program requiring periodic deductions from pay, if the amount to 
be recovered was accumulated over four pay periods or less.



Sec.  1450.22  Hearing.

    (a) Petition for hearing. (1) A hearing may be requested by filing a 
written petition with the Director, Financial Management Staff of FMCS, 
or such other official as may be named in the future by the Director of 
FMCS, stating why the employee believes the determination of the agency 
concerning the existence or the amount of the debt is in error.
    (2) The employee's petition must be signed by the employee and fully 
identify and explain with reasonable specificity all the facts, evidence 
and witnesses, if any, which the employee believes support his or her 
position.
    (3) The petition must be filed no later than fifteen (15) calendar 
days from the date that the notification was hand delivered or the date 
of delivery by certified mail, return receipt requested.
    (4) If a petition is received after the fifteen (15) calendar day 
deadline referred to above, FMCS will nevertheless accept the petition 
if the employee can show that the delay was because of circumstances 
beyond his or her control, or because of failure to receive notice of 
the time limit (unless otherwise aware of it).

[[Page 93]]

    (5) If a petition is not filed within the time limit specified in 
paragraph (a)(3) of this section, and is not accepted pursuant to 
paragraph (a)(4) of this section, the employee's right to hearing will 
be considered waived, and salary offset will be implemented by FMCS.
    (b) Type of hearing. (1) The form and content of the hearing will be 
determined by the hearing official who shall be a person outside the 
control or authority of FMCS. In determining the type of hearing, the 
hearing officer will consider the nature and complexity of the 
transaction giving rise to the debt. The hearing may be conducted as an 
informal conference or interview, in which the agency and employee will 
be given a full opportunity to present their respective positions, or as 
a more formal proceeding involving the presentation of evidence, 
arguments and written submissions.
    (2) The employee may represent himself or herself, or may be 
represented by an attorney.
    (3) The hearing official shall maintain a summary record of the 
hearing.
    (4) The decision of the hearing officer will be in writing, and will 
state:
    (i) The facts purported to evidence the nature and origin of the 
alleged debt;
    (ii) The hearing official's analysis, findings, and conclusions, in 
the light of the hearing, as to--
    (A) The employee's and/or agency's grounds,
    (B) The amount and validity of the alleged debt and,
    (C) The repayment schedule, if applicable.
    (5) The decision of the hearing official shall constitute the final 
administrative decision of the agency.



Sec.  1450.23  Deduction from pay.

    (a) Deduction by salary offset, from an employee's current 
disposable pay, shall be subject to the following conditions:
    (1) Ordinarily, debts to the United States should be collected in 
full, in one lump-sum. This will be done when funds are available. 
However, if funds are unavailable for payment in one lump sum, or if the 
amount of the debt exceeds 15 percent of disposable pay for an 
officially established pay interval, collection will normally be made in 
installments.
    (2) The installments shall not exceed 15 percent of the disposable 
pay from which the deduction is made, unless the employee has agreed in 
writing to the deduction of a greater amount.
    (3) Deduction will generally commence with the next full pay 
interval (ordinarily the next biweekly pay period) following written 
consent by the employee to salary offset, waiver of hearing, or the 
decision issued by the hearing officer.
    (4) Installment deductions must be made over a period not greater 
than the anticipated period of employment except as provided in Sec.  
1450.24.



Sec.  1450.24  Liquidation from final check or recovery from other payment.

    (a) If the employee retires or resigns or if his or her employment 
or period of active duty ends before collection of the debt is 
completed, offset of the entire remaining balance on the debt may be 
made from a final payment of any nature, including but not limited to, 
final salary payment or lump-sum leave due to the employee as of the 
date of separation.
    (b) If the debt cannot be liquidated by offset from a final payment, 
offset may be made from later payments of any kind due from the United 
States, including, but not limited to, the Civil Service Retirement and 
Disability Fund, pursuant to Sec.  1450.11 of this regulation.



Sec.  1450.25  Non-waiver of rights by payments.

    An employee's involuntary payment of all or any portion of a debt 
being collected under 5 U.S.C. 5514 shall not be construed as a waiver 
of any rights which the employee may have under 5 U.S.C. 5514 or any 
other provision of contract or law, unless statutory or contractual 
provisions provide to the contrary.



Sec.  1450.26  Refunds.

    (a) Refunds shall promptly be made when--
    (1) A debt is waived or otherwise found not owing to the United 
States (unless expressly prohibited by statute or regulation); or

[[Page 94]]

    (2) The employee's paying agency is directed by an administrative or 
judicial order to refund amounts deducted from his or her current pay.
    (b) Refunds do not bear interest unless required or permitted by law 
or contract.



Sec.  1450.27  Interest, penalties, and administrative costs.

    The assessment of interest, penalties and administrative costs shall 
be in accordance with subpart D of this regulation.



Sec.  1450.28  Recovery when paying agency is not creditor agency.

    (a) Responsibilities of creditor agency. Upon completion of the 
procedures established under 5 U.S.C. 5514, the creditor agency must do 
the following:
    (1) The creditor agency must certify, in writing, that the employee 
owes the debt, the amont and basis of the debt, the date on which 
payment(s) is due, the date the Government's right to collect the debt 
first accrued, and that the creditor agency's regulations implementing 5 
U.S.C. 5514 have been approved by OPM.
    (2) If the collection must be made in installments, the creditor 
agency also must advise the paying agency of the number of installments 
to be collected, the amount of each installment, and the commencing date 
of the first installment (if a date other than the next officially 
established pay period is required).
    (3) Unless the employee has consented to the salary offset in 
writing or signed a statement acknowledging receipt of the required 
procedures, and the written consent or statement is forwarded to the 
paying agency, the creditor agency also must advise the paying agency of 
the action(s) taken under 5 U.S.C. 5514(b) and give the date(s) the 
action(s) was taken.
    (4) Except as otherwise provided in this paragraph, the creditor 
agency must submit a debt claim containing the information specified in 
paragraphs (a) (1) through (3) of this section and an installment 
agreement (or other instruction on the payment schedule), if applicable 
to the employee's paying agency.
    (5) If the employee is in the process of separating, the creditor 
agency must submit its claim to the employee's paying agency for 
collection pursuant to Sec.  1450.24. The paying agency must certify the 
total amount of its collection and provide copies to the creditor agency 
and the employee as stated in paragraph (c)(1) of this section. If the 
paying agency is aware that the employee is entitled to payments from 
the Civil Service Retirement and Disability Fund, or other similar 
payments, it must provide written notification to the agency responsible 
for making such payments that the debtor owes a debt (including the 
amount) and that the provisions of this section have been fully compiled 
with. However, the creditor agency must submit a properly certified 
claim to the agency responsible for making such payments before 
collection can be made.
    (6) If the employee is already separated and all payments from his 
or her former paying agency have been paid, the creditor agency may 
request, unless otherwise prohibited, that money due and payable to the 
employee from the Civil Service Retirement and Disability Fund (5 CFR 
831.1801 et seq.), or other similar funds, be administratively offset to 
collect the debt. (31 U.S.C. 3716 and 102.4 FCCS.)
    (b) Responsibilities of paying agency--(1) Complete claim. When the 
paying agency receives a properly certified debt claim from a creditor 
agency, deductions should be scheduled to begin prospectively at the 
next officially established pay interval. The employee must receive 
written notice that the paying agency has received a certified debt 
claim from the creditor agency (including the amount) and written notice 
of the date deductions from salary will commence and of the amount of 
such deductions.
    (2) Incomplete claim. When the paying agency receives an incomplete 
debt claim from a creditor agency, the paying agency must return the 
debt claim with a notice that procedures under 5 U.S.C. 5514 and this 
subpart must be provided, and a properly certified debt claim received, 
before action will be taken to collect from the employee's current pay 
account.

[[Page 95]]

    (3) Review. The paying agency is not required or authorized to 
review the merits of the creditor agency's determination with respect to 
the amount or validity of the debt certified by the creditor agency.
    (c) Employees who transfer from one paying agency to another. (1) 
If, after the creditor agency has submitted the debt claim to the 
employee's paying agency, the employee transfers to a position served by 
a different paying agency before the debt is collected in full, the 
paying agency from which the employee separates must certify the total 
amount of the collection made on the debt. One copy of the certification 
must be furnished to the employee, another to the creditor agency along 
with notice of employee's transfer. However, the creditor agency must 
submit a properly certified claim to the new paying agency before 
collection can be resumed.
    (2) When an employee transfers to another paying agency, the 
creditor agency need not repeat the due process procedures described by 
5 U.S.C. 5514 and this subpart to resume the collection. However, the 
creditor agency is responsible for reviewing the debt upon receiving the 
former paying agency's notice of the employee's transfer to make sure 
the collection is resumed by the new paying agency.



         Subpart D_Interest, Penalties, and Administrative Costs



Sec.  1450.29  Assessment.

    (a) Except as provided in paragraph (h) of this section, or Sec.  
1450.30, FMCS shall assess interest, penalties and administrative costs 
on debts owed to the United States pursuant to 31 U.S.C. 3717. Before 
assessing these charges, FMCS will mail or hand-deliver a written notice 
to the debtor. This notice shall include a statement of the agency's 
requirements concerning these charges. (Sections 1450.9 and 1450.21).
    (b) Interest shall accrue from the date on which notice of the debt 
and the interest requirements is first mailed or hand-delivered to the 
debtor, using the most current address that is available to the agency. 
If FMCS should use an ``advance billing'' procedure--that is, if it 
mails a bill before the debt is actually owed--it can include the 
required interest notification in the advance billing, but interest may 
not start to accrue before the debt is actually owed. FMCS will exercise 
care to insure that the notices required by this section are dated and 
mailed or hand-delivered on the same day.
    (c) The rate of interest assessed shall be the rate of the current 
value of funds to the United States Treasury (i.e., the Treasury tax and 
loan account rate), as prescribed and published by the Secretary of the 
Treasury in the Federal Register and the Treasury Fiscal Requirements 
Manual Bulletins annually or quarterly, in accordance with 31 U.S.C. 
3717. FMCS may assess a higher rate of interest if it reasonably 
determines that a higher rate is necessary to protect the interests of 
the United States. The rate of interest, as initially assessed, shall 
remain fixed for the duration of the indebtedness except that where a 
debtor has defaulted on a repayment agreement and seeks to enter into a 
new agreement, FMCS may set a new interest rate which reflects the 
current value of funds to the Treasury at the time the new agreement is 
executed. Interest will not be assessed on interest, penalties, or 
administrative costs required by this section. However, if the debtor 
defaults on a previous repayment agreement, charges which accrued but 
were not collected under the defaulted agreement shall be added to the 
principal to be paid under a new repayment agreement.
    (d) FMCS shall assess against a debtor charges to cover 
administrative costs incurred as a result of a delinquent debt--that is, 
the additional costs incurred in processing and handling the debt 
because it became delinquent. Calculation of administrative costs shall 
be based upon actual costs incurred or upon cost analyses establishing 
an average of actual additional costs incurred by the agency in 
processing and handling claims against other debtors in similar stages 
of delinquency. Administrative costs may include costs incurred in 
obtaining a credit report or in using a private debt collector, to the 
extent they are attributable to delinquency.

[[Page 96]]

    (e) FMCS shall assess a penalty charge, not to exceed 6 percent a 
year, on any portion of a debt that is delinquent for more than 90 days. 
This charge need not be calculated until the 91st day of delinquency, 
but shall accure from the date that the debt became delinquent.
    (f) When a debt is paid in partial or installment payments, amounts 
received by the agency shall be applied first to outstanding penalty and 
administrative cost charges, second to accrued interest, and third to 
outstanding principal.
    (g) FMCS will waive the collection of interest on the debt or any 
portion of the debt which is paid within 30 days after the date on which 
interest began to accrue. FMCS may extend this 30-day period, on a case-
by-case basis, if it reasonably determines that such action is 
appropriate. Also, FMCS may waive, in whole or in part, the collection 
of interest, penalties, and/or administrative costs assessed under this 
section under the criteria specified in part 103 of the Federal Claims 
Collection Standards (4 CFR part 103) relating to the compromise of 
claims (without regard to the amount of the debt), or if the agency 
determines that collection of these charges would be against equity and 
good conscience, or not in the best interests of the United States. 
Waiver under the first sentence of this paragraph (g) is mandatory. 
Under the second and third sentences, it may be exercised under the 
following circumstances:
    (1) Waiver of interest pending consideration of a request for 
reconsideration, administrative review, or waiver of the underlying debt 
under a permissive statute, and
    (2) Waiver of interest where FMCS has accepted an installment plan, 
there is no indication of fault or lack of good faith on the part of the 
debtor, and the amount of interest is large enough in relation to the 
size of the installments that the debtor can reasonably afford to pay, 
that the debt will never be repaid.
    (h) Where a mandatory waiver or review statute applies, interest and 
related charges may not be assessed for those periods during which 
collection action must be suspended under Sec.  104.2(c)(1) of the 
Federal Claims Collection Standards (4 CFR part 104).



Sec.  1450.30  Exemptions.

    (a) The provisions of 31 U.S.C. 3717 to not apply:
    (1) To debts owed by any State or local government;
    (2) To debts arising under contracts which were executed prior to, 
and were in effect on (i.e., were not completed as of), October 25, 
1982;
    (3) To debts where an applicable statute, regulation required by 
statute, loan agreement, or contract either prohibits such charges or 
explicitly fixes the charges that apply to the debts arising under the 
Social Security Act, the Internal Revenue Code of 1954, or the tariff 
laws of the United States.
    (b) However, FMCS is authorized to assess interest and related 
charges on debts which are not subject to 31 U.S.C. 3717 to the extent 
authorized under the common law or other applicable statutory authority.



Sec.  1450.31  Other sanctions.

    The sanctions stated in this subpart are not intended to be 
exclusive. Other sanctions which may be imposed by the Director of FMCS 
include placement of the debtor's name on a list of debarred, suspended 
or ineligible contractors or grantees; conversion of method of payment 
under a grant from an advance payment method to a reimbursement method; 
or revocation of a letter of credit. Notice will be given by FMCS to the 
debtor regarding the imposition of such other sanctions.



PART 1470_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents



                            Subpart A_General

Sec.
1470.1 Purpose and scope of this part.
1470.2 Scope of subpart.
1470.3 Definitions.
1470.4 Applicability.
1470.5 Effect on other issuances.
1470.6 Additions and exceptions.

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                    Subpart B_Pre-Award Requirements

1470.10 Forms for applying for grants.
1470.11 State plans.
1470.12 Special grant or subgrant conditions for ``high-risk'' grantees.

                    Subpart C_Post-Award Requirements

                        Financial Administration

1470.20 Standards for financial management systems.
1470.21 Payment.
1470.22 Allowable costs.
1470.23 Period of availability of funds.
1470.24 Matching or cost sharing.
1470.25 Program income.
1470.26 Non-Federal audit.

                    Changes, Property, and Subawards

1470.30 Changes.
1470.31 Real property.
1470.32 Equipment.
1470.33 Supplies.
1470.34 Copyrights.
1470.35 Subawards to debarred and suspended parties.
1470.36 Procurement.
1470.37 Subgrants.

               Reports, Records Retention, and Enforcement

1470.40 Monitoring and reporting program performance.
1470.41 Financial reporting.
1470.42 Retention and access requirements for records.
1470.43 Enforcement.
1470.44 Termination for convenience.

                 Subpart D_After-the-Grant Requirements

1470.50 Closeout.
1470.51 Later disallowances and adjustments.
1470.52 Collection of amounts due.

Subpart E--Entitlements [Reserved]

    Authority: 29 U.S.C. 175a.

    Source: 53 FR 8087, Mar. 11, 1988, unless otherwise noted.



                            Subpart A_General



Sec.  1470.1  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec.  1470.2  Scope of subpart.

    This subpart contains general rules pertaining to this part and 
procedures for control of exceptions from this part.



Sec.  1470.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from programmatic 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.

[[Page 98]]

    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for grant and 
subgrant in this section and except where qualified by Federal) a 
procurement contract under a grant or subgrant, and means a procurement 
subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs of a federally assisted 
project or program not borne by the Federal Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 
688) certified by the Secretary of the Interior as eligible for the 
special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under State law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the United States Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and

[[Page 99]]

the new increase (or decrease) in the amounts owed by the grantee for 
goods and other property received, for services performed by employees, 
contractors, subgrantees, subcontractors, and other payees, and other 
amounts becoming owed under programs for which no current services or 
performance are required, such as annuities, insurance claims, and other 
benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial assistance when 
provided by contractual legal agreement, but does not include 
procurement purchases, nor does it include any form of assistance which 
is excluded from the definition of grant in this part.
    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than equipment 
as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. Termination does not include:
    (1) Withdrawal of funds awarded on the basis of the grantee's 
underestimate of the unobligated balance in a prior period;
    (2) Withdrawal of the unobligated balance as of the expiration of a 
grant;
    (3) Refusal to extend a grant or award additional funds, to make a 
competing or noncompeting continuation, renewal, extension, or 
supplemental award; or
    (4) Voiding of a grant upon determination that the award was 
obtained fraudulently, or was otherwise illegal or invalid from 
inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount

[[Page 100]]

of obligations incurred by the grantee for which an outlay has not been 
recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec.  1470.4  Applicability.

    (a) General. Subparts A through D of this part apply to all grants 
and subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec.  1470.6, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under title V, subtitle D, chapter 2, 
section 583--the Secretary's discretionary grant program) and titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and part C of title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec.  1470.4(a) (3) through (8) are subject to subpart E.

[[Page 101]]



Sec.  1470.5  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec.  1470.6.



Sec.  1470.6  Additions and exceptions.

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.
    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.



                    Subpart B_Pre-Award Requirements



Sec.  1470.10  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.
    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those prescribed by the granting agency 
with the approval of OMB under the Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.



Sec.  1470.11  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive order.
    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or

[[Page 102]]

    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.



Sec.  1470.12  Special grant or subgrant conditions for ``high-risk'' 
grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or
    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grante or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.



                    Subpart C_Post-Award Requirements

                        Financial Administration



Sec.  1470.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant

[[Page 103]]

or subgrant. Financial information must be related to performance or 
productivity data, including the development of unit cost information 
whenever appropriate or specifically required in the grant or subgrant 
agreement. If unit cost data are required, estimates based on available 
documentation will be accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.



Sec.  1470.21  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for its actual cash disbursements. The working 
capital advance method of payment shall not be used by grantees or 
subgrantees if the reason for using such method is the unwillingness or 
inability of the grantee to provide timely advances to the subgrantee to 
meet the subgrantee's actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1)

[[Page 104]]

Grantees and subgrantees shall disburse repayments to and interest 
earned on a revolving fund before requesting additional cash payments 
for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions or
    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec.  1470.43(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.



Sec.  1470.22  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
    (2) Reasonable fees or profit to cost-type contractors but not any 
fee or profit (or other increment above allowable costs) to the grantee 
or subgrantee.
    (b) Applicable cost principles. For each kind of organization, there 
is a set of Federal principles for determining allowable costs. 
Allowable costs will be determined in accordance with the cost 
principles applicable to the organization incurring the costs. The 
following chart lists the kinds of organizations and the applicable cost 
principles.

------------------------------------------------------------------------
           For the costs of a--                Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.
Private nonprofit organization other than   OMB Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21.
For-profit organization other than a        48 CFR part 31. Contract
 hospital and an organization named in OBM   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.
------------------------------------------------------------------------



Sec.  1470.23  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover of unobligated balances is permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.

[[Page 105]]

    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.



Sec.  1470.24  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec.  1470.25, shall not count towards satisfying 
a cost sharing or matching requirement unless they are expressly 
permitted in the terms of the assistance agreement. (This use of general 
program income is described in Sec.  1470.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:

[[Page 106]]

    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services 
are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-Federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec.  1470.22, in the same way as depreciation 
or use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal

[[Page 107]]

funds, only the non-Federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.



Sec.  1470.25  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. ``During the grant period'' is the time between 
the effective date of the award and the ending date of the award 
reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec.  1470.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec.  
1470.31 and 1470.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award

[[Page 108]]

period (i.e., until the ending date of the final financial report, see 
paragraph (a) of this section), unless the terms of the agreement or the 
Federal agency regulations provide otherwise.



Sec.  1470.26  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing goods and services to State and local 
governments are not required to have a single audit performed. State and 
local governments should use their own procedures to ensure that the 
contractor has complied with laws and regulations affecting the 
expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec.  
1470.36 shall be followed.

[53 FR 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45942, Aug. 29, 
1997]

                    Changes, Property, and Subawards



Sec.  1470.30  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec.  1470.22) contain requirements for prior approval of certain types 
of costs. Except where waived, those requirements apply to all grants 
and subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct

[[Page 109]]

payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec.  1470.36 but does not apply to the procurement of equipment, 
supplies, and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec.  1470.22) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec.  1470.31  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency.

[[Page 110]]

The amount due to the awarding agency will be calculated by applying the 
awarding agency's percentage of participation in the cost of the 
original purchase to the proceeds of the sale after deduction of any 
actual and reasonable selling and fixing-up expenses. If the grant is 
still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.



Sec.  1470.32  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec.  1470.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed

[[Page 111]]

for the original project or program or for other activities currently or 
previously supported by a Federal agency, disposition of the equipment 
will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third part 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow Sec.  1470.32(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec.  1470.33  Supplies.

    (a) Title. Title to supplies acquired under a grant or subgrant will 
vest, upon acquisition, in the grantee or subgrantee respectively.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are not needed for any 
other federally sponsored programs or projects, the grantee or 
subgrantee shall compensate the awarding agency for its share.



Sec.  1470.34  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.



Sec.  1470.35  Subawards to debarred and suspended parties.

    Grantees and subgrantees must not make any award or permit any award 
(subgrant or contract) at any tier to any party which is debarred or 
suspended or is otherwise excluded from or ineligible for participation 
in Federal assistance programs under Executive Order 12549, ``Debarment 
and Suspension.''



Sec.  1470.36  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will

[[Page 112]]

follow paragraphs (b) through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable Federal law and the standards identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms, conditions, and specifications of their contracts or purchase 
orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or
    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.

[[Page 113]]

    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec.  1470.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.

[[Page 114]]

    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures are those relatively 
simple and informal procurement methods for securing services, supplies, 
or other property that do not cost more than the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If 
small purchase procedures are used, price or rate quotations shall be 
obtained from an adequate number of qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in Sec.  1470.36(d)(2)(i) 
apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types

[[Page 115]]

of services though A/E firms are a potential source to perform the 
proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids or competitive proposals and one of the following 
circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.

[[Page 116]]

    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec.  1470.22). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is

[[Page 117]]

one executed in connection with a contract to secure fulfillment of all 
the contractor's obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19643, Apr. 19, 
1995]



Sec.  1470.37  Subgrants.

    (a) States. States shall follow State law and procedures when 
awarding and administering subgrants (whether on a

[[Page 118]]

cost reimbursement or fixed amount basis) of financial assistance to 
local and Indian tribal governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec.  1470.42 is 
placed in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 1470.10;
    (2) Section 1470.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec.  1470.21; and
    (4) Section 1470.50.

               Reports, Records Retention, and Enforcement



Sec.  1470.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.

[[Page 119]]

    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.
    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.



Sec.  1470.41  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extend required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec.  1470.41(e)(2)(iii).
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be

[[Page 120]]

required to convert its accounting system but shall develop such accrual 
information through and analysis of the documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec.  1470.41(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs--(1) Grants that support construction activities paid by 
reimbursement method. (i) Requests for reimbursement under construction 
grants will be submitted on Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. Federal agencies may, 
however, prescribe the Request for Advance or Reimbursement form, 
specified in Sec.  1470.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec.  1470.41(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance. (i) When a 
construction grant is paid by letter of credit, electronic funds 
transfer or Treasury check advances, the grantee will report its outlays 
to the Federal agency using Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. The Federal agency will 
provide any necessary special instruction. However, frequency and

[[Page 121]]

due date shall be governed by Sec.  1470.41(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in Sec.  1470.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec.  1470.41(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec.  1470.41(b)(2).



Sec.  1470.42  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec.  1470.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.

[[Page 122]]

    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records Unless required 
by Federal, State, or local law, grantees and subgrantees are not 
required to permit public access to their records.



Sec.  1470.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec.  1470.35).



Sec.  1470.44  Termination for convenience.

    Except as provided in Sec.  1470.43 awards may be terminated in 
whole or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the

[[Page 123]]

case of partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of the award will 
not accomplish the purposes for which the award was made, the awarding 
agency may terminate the award in its entirety under either Sec.  
1470.43 or paragraph (a) of this section.



                 Subpart D_After-The-Grant Requirements



Sec.  1470.50  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:
    (1) Final performance or progress report.
    (2) Financial Status Report (SF-269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable).
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report:

In accordance with Sec.  1470.32(f), a grantee must submit an inventory 
of all federally owned property (as distinct from property acquired with 
grant funds) for which it is accountable and request disposition 
instructions from the Federal agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.



Sec.  1470.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec.  1470.42;
    (d) Property management requirements in Sec. Sec.  1470.31 and 
1470.32; and
    (e) Audit requirements in Sec.  1470.26.



Sec.  1470.52  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled under the terms of the 
award constitute a debt to the Federal Government. If not paid within a 
reasonable period after demand, the Federal agency may reduce the debt 
by:
    (1) Making an adminstrative offset against other requests for 
reimbursements,
    (2) Withholding advance payments otherwise due to the grantee, or
    (3) Other action permitted by law.
    (b) Except where otherwise provided by statutes or regulations, the 
Federal agency will charge interest on an overdue debt in accordance 
with the Federal Claims Collection Standards (4 CFR chapter II). The 
date from which interest is computed is not extended by litigation or 
the filing of any form of appeal.

Subpart E--Entitlements [Reserved]

[[Page 124]]



PART 1471_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)-
-Table of Contents



Sec.
1471.25 How is this part organized?
1471.50 How is this part written?
1471.75 Do terms in this part have special meanings?

                            Subpart A_General

1471.100 What does this part do?
1471.105 Does this part apply to me?
1471.110 What is the purpose of the nonprocurement debarment and 
          suspension system?
1471.115 How does an exclusion restrict a person's involvement in 
          covered transactions?
1471.120 May we grant an exception to let an excluded person participate 
          in a covered transaction?
1471.125 Does an exclusion under the nonprocurement system affect a 
          person's eligibility for Federal procurement contracts?
1471.130 Does exclusion under the Federal procurement system affect a 
          person's eligibility to participate in nonprocurement 
          transactions?
1471.135 May FMCS exclude a person who is not currently participating in 
          a nonprocurement transaction?
1471.140 How do I know if a person is excluded?
1471.145 Does this part address persons who are disqualified, as well as 
          those who are excluded from nonprocurement transactions?

                     Subpart B_Covered Transactions

1471.200 What is a covered transaction?
1471.205 Why is it important to know if a particular transaction is a 
          covered transaction?
1471.210 Which nonprocurement transactions are covered transactions?
1471.215 Which nonprocurement transactions are not covered transactions?
1471.220 Are any procurement contracts included as covered transactions?
1471.225 How do I know if a transaction in which I may participate is a 
          covered transaction?

    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons

1471.300 What must I do before I enter into a covered transaction with 
          another person at the next lower tier?
1471.305 May I enter into a covered transaction with an excluded or 
          disqualified person?
1471.310 What must I do if a Federal agency excludes a person with whom 
          I am already doing business in a covered transaction?
1471.315 May I use the services of an excluded person as a principal 
          under a covered transaction?
1471.320 Must I verify that principals of my covered transactions are 
          eligible to participate?
1471.325 What happens if I do business with an excluded person in a 
          covered transaction?
1471.330 What requirements must I pass down to persons at lower tiers 
          with whom I intend to do business?

            Disclosing Information--Primary Tier Participants

1471.335 What information must I provide before entering into a covered 
          transaction with FMCS?
1471.340 If I disclose unfavorable information required under Sec.  
          1471.335, will I be prevented from participating in the 
          transaction?
1471.345 What happens if I fail to disclose the information required 
          under Sec.  1471.335?
1471.350 What must I do if I learn of the information required under 
          Sec.  1471.335 after entering into a covered transaction with 
          FMCS?

             Disclosing Information--Lower Tier Participants

1471.355 What information must I provide to a higher tier participant 
          before entering into a covered transaction with that 
          participant?
1471.360 What happens if I fail to disclose the information required 
          under Sec.  1471.355?
1471.365 What must I do if I learn of information required under Sec.  
          1471.355 after entering into a covered transaction with a 
          higher tier participant?

   Subpart D_Responsibilities of FMCS Officials Regarding Transactions

1471.400 May I enter into a transaction with an excluded or disqualified 
          person?
1471.405 May I enter into a covered transaction with a participant if a 
          principal of the transaction is excluded?
1471.410 May I approve a participant's use of the services of an 
          excluded person?
1471.415 What must I do if a Federal agency excludes the participant or 
          a principal after I enter into a covered transaction?
1471.420 May I approve a transaction with an excluded or disqualified 
          person at a lower tier?
1471.425 When do I check to see if a person is excluded or disqualified?

[[Page 125]]

1471.430 How do I check to see if a person is excluded or disqualified?
1471.435 What must I require of a primary tier participant?
1471.440 What method do I use to communicate those requirements to 
          participants?
1471.445 What action may I take if a primary tier participant knowingly 
          does business with an excluded or disqualified person?
1471.450 What action may I take if a primary tier participant fails to 
          disclose the information required under Sec.  1471.335?
1471.455 What may I do if a lower tier participant fails to disclose the 
          information required under Sec.  1471.355 to the next higher 
          tier?

                 Subpart E_Excluded Parties List System

1471.500 What is the purpose of the Excluded Parties List System (EPLS)?
1471.505 Who uses the EPLS?
1471.510 Who maintains the EPLS?
1471.515 What specific information is in the EPLS?
1471.520 Who places the information into the EPLS?
1471.525 Whom do I ask if I have questions about a person in the EPLS?
1471.530 Where can I find the EPLS?

   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions

1471.600 How do suspension and debarment actions start?
1471.605 How does suspension differ from debarment?
1471.610 What procedures does FMCS use in suspension and debarment 
          actions?
1471.615 How does FMCS notify a person of a suspension and debarment 
          action?
1471.620 Do Federal agencies coordinate suspension and debarment 
          actions?
1471.625 What is the scope of a suspension or debarment action?
1471.630 May FMCS impute the conduct of one person to another?
1471.635 May FMCS settle a debarment or suspension action?
1471.640 May a settlement include a voluntary exclusion?
1471.645 Do other Federal agencies know if FMCS agrees to a voluntary 
          exclusion?

                          Subpart G_Suspension

1471.700 When may the suspending official issue a suspension?
1471.705 What does the suspending official consider in issuing a 
          suspension?
1471.710 When does a suspension take effect?
1471.715 What notice does the suspending official give me if I am 
          suspended?
1471.720 How may I contest a suspension?
1471.725 How much time do I have to contest a suspension?
1471.730 What information must I provide to the suspending official if I 
          contest a suspension?
1471.735 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the suspension is based?
1471.740 Are suspension proceedings formal?
1471.745 How is fact-finding conducted?
1471.750 What does the suspending official consider in deciding whether 
          to continue or terminate my suspension?
1471.755 When will I know whether the suspension is continued or 
          terminated?
1471.760 How long may my suspension last?

                           Subpart H_Debarment

1471.800 What are the causes for debarment?
1471.805 What notice does the debarring official give me if I am 
          proposed for debarment?
1471.810 When does a debarment take effect?
1471.815 How may I contest a proposed debarment?
1471.820 How much time do I have to contest a proposed debarment?
1471.825 What information must I provide to the debarring official if I 
          contest a proposed debarment?
1471.830 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the proposed debarment is based?
1471.835 Are debarment proceedings formal?
1471.840 How is fact-finding conducted?
1471.845 What does the debarring official consider in deciding whether 
          to debar me?
1471.850 What is the standard of proof in a debarment action?
1471.855 Who has the burden of proof in a debarment action?
1471.860 What factors may influence the debarring official's decision?
1471.865 How long may my debarment last?
1471.870 When do I know if the debarring official debars me?
1471.875 May I ask the debarring official to reconsider a decision to 
          debar me?
1471.880 What factors may influence the debarring official during 
          reconsideration?
1471.885 May the debarring official extend a debarment?

                          Subpart I_Definitions

1471.900 Adequate evidence.
1471.905 Affiliate.
1471.910 Agency.
1471.915 Agent or representative.
1471.920 Civil judgment.
1471.925 Conviction.
1471.930 Debarment.
1471.935 Debarring official.
1471.940 Disqualified.

[[Page 126]]

1471.945 Excluded or exclusion.
1471.950 Excluded Parties List System.
1471.955 Indictment.
1471.960 Ineligible or ineligibility.
1471.965 Legal proceedings.
1471.970 Nonprocurement transaction.
1471.975 Notice.
1471.980 Participant.
1471.985 Person.
1471.990 Preponderance of the evidence.
1471.995 Principal.
1471.1000 Respondent.
1471.1005 State.
1471.1010 Suspending official.
1471.1015 Suspension.
1471.1020 Voluntary exclusion or voluntarily excluded

Subpart J [Reserved]

Appendix to Part 1471--Covered Transactions

    Authority: E.O. 12549 ,3 CFR 1986 Comp., p. 189; E.O. 12698, 3 CFR 
1989 Comp., p. 235; sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 
U.S.C. 6101 note); 29 U.S.C. 175a.

    Source: 68 FR 66544, 66603, 66604, Nov. 26, 2003, unless otherwise 
noted.



Sec.  1471.25  How is this part organized?

    (a) This part is subdivided into ten subparts. Each subpart contains 
information related to a broad topic or specific audience with special 
responsibilities, as shown in the following table:

------------------------------------------------------------------------
                                              You will find provisions
             In subpart . . .                     related to . . .
------------------------------------------------------------------------
A.........................................  general information about
                                             this rule.
B.........................................  the types of FMCS
                                             transactions that are
                                             covered by the
                                             Governmentwide
                                             nonprocurement suspension
                                             and debarment system.
C.........................................  the responsibilities of
                                             persons who participate in
                                             covered transactions.
D.........................................  the responsibilities of FMCS
                                             officials who are
                                             authorized to enter into
                                             covered transactions.
E.........................................  the responsibilities of
                                             Federal agencies for the
                                             Excluded Parties List
                                             System (Disseminated by the
                                             General Services
                                             Administration).
F.........................................  the general principles
                                             governing suspension,
                                             debarment, voluntary
                                             exclusion and settlement.
G.........................................  suspension actions.
H.........................................  debarment actions.
I.........................................  definitions of terms used in
                                             this part.
J.........................................  [Reserved]
------------------------------------------------------------------------

    (b) The following table shows which subparts may be of special 
interest to you, depending on who you are:

------------------------------------------------------------------------
             If you are . . .                   See subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a         A, B, C, and I.
 nonprocurement transaction.
(2) a respondent in a suspension action...  A, B, F, G and I.
(3) a respondent in a debarment action....  A, B, F, H and I.
(4) a suspending official.................  A, B, D, E, F, G and I.
(5) a debarring official..................  A, B, D, E, F, H and I.
(6) a (n) FMCS official authorized to       A, B, D, E and I.
 enter into a covered transaction.
(7) Reserved..............................  J.
------------------------------------------------------------------------



Sec.  1471.50  How is this part written?

    (a) This part uses a ``plain language'' format to make it easier for 
the general public and business community to use. The section headings 
and text, often in the form of questions and answers, must be read 
together.
    (b) Pronouns used within this part, such as ``I'' and ``you,'' 
change from subpart to subpart depending on the audience being 
addressed. The pronoun ``we'' always is the Federal Mediation and 
Conciliation Service.
    (c) The ``Covered Transactions'' diagram in the appendix to this 
part shows the levels or ``tiers'' at which the Federal Mediation and 
Conciliation Service enforces an exclusion under this part.



Sec.  1471.75  Do terms in this part have special meanings?

    This part uses terms throughout the text that have special meaning. 
Those terms are defined in subpart I of this part. For example, three 
important terms are--
    (a) Exclusion or excluded, which refers only to discretionary 
actions taken by a suspending or debarring official under this part or 
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
    (b) Disqualification or disqualified, which refers to prohibitions 
under specific statutes, executive orders (other than Executive Order 
12549 and Executive Order 12689), or other authorities. 
Disqualifications frequently are not subject to the discretion of an 
agency official, may have a different scope than exclusions, or have 
special conditions that apply to the disqualification; and
    (c) Ineligibility or ineligible, which generally refers to a person 
who is either excluded or disqualified.

[[Page 127]]



                            Subpart A_General



Sec.  1471.100  What does this part do?

    This part adopts a governmentwide system of debarment and suspension 
for FMCS nonprocurement activities. It also provides for reciprocal 
exclusion of persons who have been excluded under the Federal 
Acquisition Regulation, and provides for the consolidated listing of all 
persons who are excluded, or disqualified by statute, executive order, 
or other legal authority. This part satisfies the requirements in 
section 3 of Executive Order 12549, ``Debarment and Suspension'' (3 CFR 
1986 Comp., p. 189), Executive Order 12689, ``Debarment and Suspension'' 
(3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public 
Law 103-355, 108 Stat. 3327).



Sec.  1471.105  Does this part apply to me?

    Portions of this part (see table at Sec.  1471.25(b)) apply to you 
if you are a(n)--
    (a) Person who has been, is, or may reasonably be expected to be, a 
participant or principal in a covered transaction;
    (b) Respondent (a person against whom the Federal Mediation and 
Conciliation Service has initiated a debarment or suspension action);
    (c) FMCS debarring or suspending official; or
    (d) FMCS official who is authorized to enter into covered 
transactions with non-Federal parties.



Sec.  1471.110  What is the purpose of the nonprocurement debarment and
suspension system?

    (a) To protect the public interest, the Federal Government ensures 
the integrity of Federal programs by conducting business only with 
responsible persons.
    (b) A Federal agency uses the nonprocurement debarment and 
suspension system to exclude from Federal programs persons who are not 
presently responsible.
    (c) An exclusion is a serious action that a Federal agency may take 
only to protect the public interest. A Federal agency may not exclude a 
person or commodity for the purposes of punishment.



Sec.  1471.115  How does an exclusion restrict a person's involvement
in covered transactions?

    With the exceptions stated in Sec. Sec.  1471.120, 1471.315, and 
1471.420, a person who is excluded by the Federal Mediation and 
Conciliation Service or any other Federal agency may not:
    (a) Be a participant in a(n) FMCS transaction that is a covered 
transaction under subpart B of this part;
    (b) Be a participant in a transaction of any other Federal agency 
that is a covered transaction under that agency's regulation for 
debarment and suspension; or
    (c) Act as a principal of a person participating in one of those 
covered transactions.



Sec.  1471.120  May we grant an exception to let an excluded person 
participate in a covered transaction?

    (a) The Agency Director may grant an exception permitting an 
excluded person to participate in a particular covered transaction. If 
the Agency Director grants an exception, the exception must be in 
writing and state the reason(s) for deviating from the governmentwide 
policy in Executive Order 12549.
    (b) An exception granted by one agency for an excluded person does 
not extend to the covered transactions of another agency.



Sec.  1471.125  Does an exclusion under the nonprocurement system affect
a person's eligibility for Federal procurement contracts?

    If any Federal agency excludes a person under its nonprocurement 
common rule on or after August 25, 1995, the excluded person is also 
ineligible to participate in Federal procurement transactions under the 
FAR. Therefore, an exclusion under this part has reciprocal effect in 
Federal procurement transactions.



Sec.  1471.130  Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement transactions?

    If any Federal agency excludes a person under the FAR on or after 
August 25, 1995, the excluded person is also ineligible to participate 
in nonprocurement covered transactions under this

[[Page 128]]

part. Therefore, an exclusion under the FAR has reciprocal effect in 
Federal nonprocurement transactions.



Sec.  1471.135  May the Federal Mediation and Conciliation Service exclude
a person who is not currently participating in a nonprocurement transaction?

    Given a cause that justifies an exclusion under this part, we may 
exclude any person who has been involved, is currently involved, or may 
reasonably be expected to be involved in a covered transaction.



Sec.  1471.140  How do I know if a person is excluded?

    Check the Excluded Parties List System (EPLS) to determine whether a 
person is excluded. The General Services Administration (GSA) maintains 
the EPLS and makes it available, as detailed in subpart E of this part. 
When a Federal agency takes an action to exclude a person under the 
nonprocurement or procurement debarment and suspension system, the 
agency enters the information about the excluded person into the EPLS.



Sec.  1471.145  Does this part address persons who are disqualified, as 
well as those who are excluded from nonprocurement transactions?

    Except if provided for in subpart J of this part, this part--
    (a) Addresses disqualified persons only to--
    (1) Provide for their inclusion in the EPLS; and
    (2) State responsibilities of Federal agencies and participants to 
check for disqualified persons before entering into covered 
transactions.
    (b) Does not specify the--
    (1) FMCS transactions for which a disqualified person is ineligible. 
Those transactions vary on a case-by-case basis, because they depend on 
the language of the specific statute, Executive order, or regulation 
that caused the disqualification;
    (2) Entities to which the disqualification applies; or
    (3) Process that the agency uses to disqualify a person. Unlike 
exclusion, disqualification is frequently not a discretionary action 
that a Federal agency takes.



                     Subpart B_Covered Transactions



Sec.  1471.200  What is a covered transaction?

    A covered transaction is a nonprocurement or procurement transaction 
that is subject to the prohibitions of this part. It may be a 
transaction at--
    (a) The primary tier, between a Federal agency and a person (see 
appendix to this part); or
    (b) A lower tier, between a participant in a covered transaction and 
another person.



Sec.  1471.205  Why is it important if a particular transaction is a 
covered transaction?

    The importance of a covered transaction depends upon who you are.
    (a) As a participant in the transaction, you have the 
responsibilities laid out in subpart C of this part. Those include 
responsibilities to the person or Federal agency at the next higher tier 
from whom you received the transaction, if any. They also include 
responsibilities if you subsequently enter into other covered 
transactions with persons at the next lower tier.
    (b) As a Federal official who enters into a primary tier 
transaction, you have the responsibilities laid out in subpart D of this 
part.
    (c) As an excluded person, you may not be a participant or principal 
in the transaction unless--
    (1) The person who entered into the transaction with you allows you 
to continue your involvement in a transaction that predates your 
exclusion, as permitted under Sec.  1471.310 or Sec.  1471.415; or
    (2) A(n) FMCS official obtains an exception from the Agency Director 
to allow you to be involved in the transaction, as permitted under Sec.  
1471.120.



Sec.  1471.210  Which nonprocurement transactions are covered transactions?

    All nonprocurement transactions, as defined in Sec.  1471.970, are 
covered transactions unless listed in Sec.  1471.215. (See appendix to 
this part.)

[[Page 129]]



Sec.  1471.215  Which nonprocurement transactions are not covered 
transactions?

    The following types of nonprocurement transactions are not covered 
transactions:
    (a) A direct award to--
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization;
    (3) An entity owned (in whole or in part) or controlled by a foreign 
government; or
    (4) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.
    (b) A benefit to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted). For example, if 
a person receives social security benefits under the Supplemental 
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et 
seq., those benefits are not covered transactions and, therefore, are 
not affected if the person is excluded.
    (c) Federal employment.
    (d) A transaction that the Federal Mediation and Conciliation 
Service needs to respond to a national or agency-recognized emergency or 
disaster.
    (e) A permit, license, certificate, or similar instrument issued as 
a means to regulate public health, safety, or the environment, unless 
the Federal Mediation and Conciliation Service specifically designates 
it to be a covered transaction.
    (f) An incidental benefit that results from ordinary governmental 
operations.
    (g) Any other transaction if the application of an exclusion to the 
transaction is prohibited by law.



Sec.  1471.220  Are any procurement contracts included as covered
transactions?

    (a) Covered transactions under this part--
    (1) Do not include any procurement contracts awarded directly by a 
Federal agency; but
    (2) Do include some procurement contracts awarded by non-Federal 
participants in nonprocurement covered transactions (see appendix to 
this part).
    (b) Specifically, a contract for goods or services is a covered 
transaction if any of the following applies:
    (1) The contract is awarded by a participant in a nonprocurement 
transaction that is covered under Sec.  1471.210, and the amount of the 
contract is expected to equal or exceed $25,000.
    (2) The contract requires the consent of a(n) FMCS official. In that 
case, the contract, regardless of the amount, always is a covered 
transaction, and it does not matter who awarded it. For example, it 
could be a subcontract awarded by a contractor at a tier below a 
nonprocurement transaction, as shown in the appendix to this part.
    (3) The contract is for federally-required audit services.



Sec.  1471.225  How do I know if a transaction in which I may participate
is a covered transaction?

    As a participant in a transaction, you will know that it is a 
covered transaction because the agency regulations governing the 
transaction, the appropriate agency official, or participant at the next 
higher tier who enters into the transaction with you, will tell you that 
you must comply with applicable portions of this part.



    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons



Sec.  1471.300  What must I do before I enter into a covered transaction
with another person at the next lower tier?

    When you enter into a covered transaction with another person at the 
next lower tier, you must verify that the person with whom you intend to 
do business is not excluded or disqualified. You do this by:
    (a) Checking the EPLS; or
    (b) Collecting a certification from that person if allowed by this 
rule; or
    (c) Adding a clause or condition to the covered transaction with 
that person.

[[Page 130]]



Sec.  1471.305  May I enter into a covered transaction with an excluded or
disqualified person?

    (a) You as a participant may not enter into a covered transaction 
with an excluded person, unless the Federal Mediation and Conciliation 
Service grants an exception under Sec.  1471.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you have obtained an 
exception under the disqualifying statute, Executive order, or 
regulation.



Sec.  1471.310  What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?

    (a) You as a participant may continue covered transactions with an 
excluded person if the transactions were in existence when the agency 
excluded the person. However, you are not required to continue the 
transactions, and you may consider termination. You should make a 
decision about whether to terminate and the type of termination action, 
if any, only after a thorough review to ensure that the action is proper 
and appropriate.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, unless the Federal 
Mediation and Conciliation Service grants an exception under Sec.  
1471.120.



Sec.  1471.315  May I use the services of an excluded person as a principal
under a covered transaction?

    (a) You as a participant may continue to use the services of an 
excluded person as a principal under a covered transaction if you were 
using the services of that person in the transaction before the person 
was excluded. However, you are not required to continue using that 
person's services as a principal. You should make a decision about 
whether to discontinue that person's services only after a thorough 
review to ensure that the action is proper and appropriate.
    (b) You may not begin to use the services of an excluded person as a 
principal under a covered transaction unless the Federal Mediation and 
Conciliation Service grants an exception under Sec.  1471.120.



Sec.  1471.320  Must I verify that principals of my covered transactions
are eligible to participate?

    Yes, you as a participant are responsible for determining whether 
any of your principals of your covered transactions is excluded or 
disqualified from participating in the transaction. You may decide the 
method and frequency by which you do so. You may, but you are not 
required to, check the EPLS.



Sec.  1471.325  What happens if I do business with an excluded person in
a covered transaction?

    If as a participant you knowingly do business with an excluded 
person, we may disallow costs, annul or terminate the transaction, issue 
a stop work order, debar or suspend you, or take other remedies as 
appropriate.



Sec.  1471.330  What requirements must I pass down to persons at lower
tiers with whom I intend to do business?

    Before entering into a covered transaction with a participant at the 
next lower tier, you must require that participant to--
    (a) Comply with this subpart as a condition of participation in the 
transaction. You may do so using any method(s), unless Sec.  1471.440 
requires you to use specific methods.
    (b) Pass the requirement to comply with this subpart to each person 
with whom the participant enters into a covered transaction at the next 
lower tier.

            Disclosing Information--Primary Tier Participants



Sec.  1471.335  What information must I provide before entering into a
covered transaction with the Federal Mediation and Conciliation Service?

    Before you enter into a covered transaction at the primary tier, you 
as the participant must notify the FMCS office that is entering into the 
transaction with you, if you know that you or any of the principals for 
that covered transaction:
    (a) Are presently excluded or disqualified;

[[Page 131]]

    (b) Have been convicted within the preceding three years of any of 
the offenses listed in Sec.  1471.800(a) or had a civil judgment 
rendered against you for one of those offenses within that time period;
    (c) Are presently indicted for or otherwise criminally or civilly 
charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses listed in Sec.  1471.800(a); or
    (d) Have had one or more public transactions (Federal, State, or 
local) terminated within the preceding three years for cause or default.



Sec.  1471.340  If I disclose unfavorable information required under 
Sec.  1471.335, will I be prevented from participating in the transaction?

    As a primary tier participant, your disclosure of unfavorable 
information about yourself or a principal under Sec.  1471.335 will not 
necessarily cause us to deny your participation in the covered 
transaction. We will consider the information when we determine whether 
to enter into the covered transaction. We also will consider any 
additional information or explanation that you elect to submit with the 
disclosed information.



Sec.  1471.345  What happens if I fail to disclose information required
under Sec.  1471.335?

    If we later determine that you failed to disclose information under 
Sec.  1471.335 that you knew at the time you entered into the covered 
transaction, we may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec.  1471.350  What must I do if I learn of information required under
Sec.  1471.335 after entering into a covered transaction with the Federal
Mediation and Conciliation Service?

    At any time after you enter into a covered transaction, you must 
give immediate written notice to the FMCS office with which you entered 
into the transaction if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec.  
1471.335; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec.  1471.335.

             Disclosing Information--Lower Tier Participants



Sec.  1471.355  What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?

    Before you enter into a covered transaction with a person at the 
next higher tier, you as a lower tier participant must notify that 
person if you know that you or any of the principals are presently 
excluded or disqualified.



Sec.  1471.360  What happens if I fail to disclose the information required
under Sec.  1471.355?

    If we later determine that you failed to tell the person at the 
higher tier that you were excluded or disqualified at the time you 
entered into the covered transaction with that person, we may pursue any 
available remedies, including suspension and debarment.



Sec.  1471.365  What must I do if I learn of information required under
Sec.  1471.355 after entering into a covered transaction with a higher
tier participant?

    At any time after you enter into a lower tier covered transaction 
with a person at a higher tier, you must provide immediate written 
notice to that person if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec.  
1471.355; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec.  1471.355.



   Subpart D_Responsibilities of FMCS Officials Regarding Transactions



Sec.  1471.400  May I enter into a transaction with an excluded or
disqualified person?

    (a) You as an agency official may not enter into a covered 
transaction with an excluded person unless you obtain an exception under 
Sec.  1471.120.

[[Page 132]]

    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you obtain a waiver or 
exception under the statute, Executive order, or regulation that is the 
basis for the person's disqualification.



Sec.  1471.405  May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?

    As an agency official, you may not enter into a covered transaction 
with a participant if you know that a principal of the transaction is 
excluded, unless you obtain an exception under Sec.  1471.120.



Sec.  1471.410  May I approve a participant's use of the services of an
excluded person?

    After entering into a covered transaction with a participant, you as 
an agency official may not approve a participant's use of an excluded 
person as a principal under that transaction, unless you obtain an 
exception under Sec.  1471.120.



Sec.  1471.415  What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?

    (a) You as an agency official may continue covered transactions with 
an excluded person, or under which an excluded person is a principal, if 
the transactions were in existence when the person was excluded. You are 
not required to continue the transactions, however, and you may consider 
termination. You should make a decision about whether to terminate and 
the type of termination action, if any, only after a thorough review to 
ensure that the action is proper.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an 
excluded person is a principal, unless you obtain an exception under 
Sec.  1471.120.



Sec.  1471.420  May I approve a transaction with an excluded or disqualified
person at a lower tier?

    If a transaction at a lower tier is subject to your approval, you as 
an agency official may not approve--
    (a) A covered transaction with a person who is currently excluded, 
unless you obtain an exception under Sec.  1471.120; or
    (b) A transaction with a person who is disqualified from that 
transaction, unless you obtain a waiver or exception under the statute, 
Executive order, or regulation that is the basis for the person's 
disqualification.



Sec.  1471.425  When do I check to see if a person is excluded or
disqualified?

    As an agency official, you must check to see if a person is excluded 
or disqualified before you--
    (a) Enter into a primary tier covered transaction;
    (b) Approve a principal in a primary tier covered transaction;
    (c) Approve a lower tier participant if agency approval of the lower 
tier participant is required; or
    (d) Approve a principal in connection with a lower tier transaction 
if agency approval of the principal is required.



Sec.  1471.430  How do I check to see if a person is excluded or
disqualified?

    You check to see if a person is excluded or disqualified in two 
ways:
    (a) You as an agency official must check the EPLS when you take any 
action listed in Sec.  1471.425.
    (b) You must review information that a participant gives you, as 
required by Sec.  1471.335, about its status or the status of the 
principals of a transaction.



Sec.  1471.435  What must I require of a primary tier participant?

    You as an agency official must require each participant in a primary 
tier covered transaction to--
    (a) Comply with subpart C of this part as a condition of 
participation in the transaction; and
    (b) Communicate the requirement to comply with subpart C of this 
part to persons at the next lower tier with whom the primary tier 
participant enters into covered transactions.



Sec.  1471.440  What method do I use to communicate those requirements
to participants?

    To communicate the requirement you must include a term or condition

[[Page 133]]

in the transaction requiring the participants' compliance with subpart C 
of this part and requiring them to include a similar term or condition 
in lower-tier covered transactions.

[68 FR 66604, Nov. 26, 2003]



Sec.  1471.445  What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?

    If a participant knowingly does business with an excluded or 
disqualified person, you as an agency official may refer the matter for 
suspension and debarment consideration. You may also disallow costs, 
annul or terminate the transaction, issue a stop work order, or take any 
other appropriate remedy.



Sec.  1471.450  What action may I take if a primary tier participant 
fails to disclose the information required under Sec.  1471.335?

    If you as an agency official determine that a participant failed to 
disclose information, as required by Sec.  1471.335, at the time it 
entered into a covered transaction with you, you may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec.  1471.455  What may I do if a lower tier participant fails to disclose
the information required under Sec.  1471.355 to the next higher tier?

    If you as an agency official determine that a lower tier participant 
failed to disclose information, as required by Sec.  1471.355, at the 
time it entered into a covered transaction with a participant at the 
next higher tier, you may pursue any remedies available to you, 
including the initiation of a suspension or debarment action.



                 Subpart E_Excluded Parties List System



Sec.  1471.500  What is the purpose of the Excluded Parties List System
(EPLS)?

    The EPLS is a widely available source of the most current 
information about persons who are excluded or disqualified from covered 
transactions.



Sec.  1471.505  Who uses the EPLS?

    (a) Federal agency officials use the EPLS to determine whether to 
enter into a transaction with a person, as required under Sec.  
1471.430.
    (b) Participants also may, but are not required to, use the EPLS to 
determine if--
    (1) Principals of their transactions are excluded or disqualified, 
as required under Sec.  1471.320; or
    (2) Persons with whom they are entering into covered transactions at 
the next lower tier are excluded or disqualified.
    (c) The EPLS is available to the general public.



Sec.  1471.510  Who maintains the EPLS?

    In accordance with the OMB guidelines, the General Services 
Administration (GSA) maintains the EPLS. When a Federal agency takes an 
action to exclude a person under the nonprocurement or procurement 
debarment and suspension system, the agency enters the information about 
the excluded person into the EPLS.



Sec.  1471.515  What specific information is in the EPLS?

    (a) At a minimum, the EPLS indicates--
    (1) The full name (where available) and address of each excluded or 
disqualified person, in alphabetical order, with cross references if 
more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;
    (5) Any termination date for the action;
    (6) The agency and name and telephone number of the agency point of 
contact for the action; and
    (7) The Dun and Bradstreet Number (DUNS), or other similar code 
approved

[[Page 134]]

by the GSA, of the excluded or disqualified person, if available.
    (b)(1) The database for the EPLS includes a field for the Taxpayer 
Identification Number (TIN) (the social security number (SSN) for an 
individual) of an excluded or disqualified person.
    (2) Agencies disclose the SSN of an individual to verify the 
identity of an individual, only if permitted under the Privacy Act of 
1974 and, if appropriate, the Computer Matching and Privacy Protection 
Act of 1988, as codified in 5 U.S.C. 552(a).



Sec.  1471.520  Who places the information into the EPLS?

    Federal officials who take actions to exclude persons under this 
part or officials who are responsible for identifying disqualified 
persons must enter the following information about those persons into 
the EPLS:
    (a) Information required by Sec.  1471.515(a);
    (b) The Taxpayer Identification Number (TIN) of the excluded or 
disqualified person, including the social security number (SSN) for an 
individual, if the number is available and may be disclosed under law;
    (c) Information about an excluded or disqualified person, generally 
within five working days, after--
    (1) Taking an exclusion action;
    (2) Modifying or rescinding an exclusion action;
    (3) Finding that a person is disqualified; or
    (4) Finding that there has been a change in the status of a person 
who is listed as disqualified.



Sec.  1471.525  Whom do I ask if I have questions about a person in
the EPLS?

    If you have questions about a person in the EPLS, ask the point of 
contact for the Federal agency that placed the person's name into the 
EPLS. You may find the agency point of contact from the EPLS.



Sec.  1471.530  Where can I find the EPLS?

    (a) You may access the EPLS through the Internet, currently at 
http://epls.arnet.gov.
    (b) As of November 26, 2003, you may also subscribe to a printed 
version. However, we anticipate discontinuing the printed version. Until 
it is discontinued, you may obtain the printed version by purchasing a 
yearly subscription from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402, or by calling the 
Government Printing Office Inquiry and Order Desk at (202) 783-3238.



   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions



Sec.  1471.600  How do suspension and debarment actions start?

    When we receive information from any source concerning a cause for 
suspension or debarment, we will promptly report and investigate it. We 
refer the question of whether to suspend or debar you to our suspending 
or debarring official for consideration, if appropriate.



Sec.  1471.605  How does suspension differ from debarment?

    Suspension differs from debarment in that--

------------------------------------------------------------------------
      A suspending official . . .           A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary    Imposes debarment for a
 status of ineligibility for              specified period as a final
 procurement and nonprocurement           determination that a person is
 transactions, pending completion of an   not presently responsible.
 investigation or legal proceedings.
(b) Must--.............................  Must conclude, based on a
(1) Have adequate evidence that there     preponderance of the evidence,
 may be a cause for debarment of a        that the person has engaged in
 person; and.                             conduct that warrants
(2) Conclude that immediate action is     debarment.
 necessary to protect the Federal
 interest.
(c) Usually imposes the suspension       Imposes debarment after giving
 first, and then promptly notifies the    the respondent notice of the
 suspended person, giving the person an   action and an opportunity to
 opportunity to contest the suspension    contest the proposed
 and have it lifted.                      debarment.
------------------------------------------------------------------------


[[Page 135]]



Sec.  1471.610  What procedures does the Federal Mediation and Conciliation
Service use in suspension and debarment actions?

    In deciding whether to suspend or debar you, we handle the actions 
as informally as practicable, consistent with principles of fundamental 
fairness.
    (a) For suspension actions, we use the procedures in this subpart 
and subpart G of this part.
    (b) For debarment actions, we use the procedures in this subpart and 
subpart H of this part.



Sec.  1471.615  How does the Federal Mediation and Conciliation Service
notify a person of a suspension or debarment action?

    (a) The suspending or debarring official sends a written notice to 
the last known street address, facsimile number, or e-mail address of--
    (1) You or your identified counsel; or
    (2) Your agent for service of process, or any of your partners, 
officers, directors, owners, or joint venturers.
    (b) The notice is effective if sent to any of these persons.



Sec.  1471.620  Do Federal agencies coordinate suspension and debarment
actions?

    Yes, when more than one Federal agency has an interest in a 
suspension or debarment, the agencies may consider designating one 
agency as the lead agency for making the decision. Agencies are 
encouraged to establish methods and procedures for coordinating their 
suspension and debarment actions.



Sec.  1471.625  What is the scope of a suspension or debarment?

    If you are suspended or debarred, the suspension or debarment is 
effective as follows:
    (a) Your suspension or debarment constitutes suspension or debarment 
of all of your divisions and other organizational elements from all 
covered transactions, unless the suspension or debarment decision is 
limited--
    (1) By its terms to one or more specifically identified individuals, 
divisions, or other organizational elements; or
    (2) To specific types of transactions.
    (b) Any affiliate of a participant may be included in a suspension 
or debarment action if the suspending or debarring official--
    (1) Officially names the affiliate in the notice; and
    (2) Gives the affiliate an opportunity to contest the action.



Sec.  1471.630  May the Federal Mediation and Conciliation Service impute
conduct of one person to another?

    For purposes of actions taken under this rule, we may impute conduct 
as follows:
    (a) Conduct imputed from an individual to an organization. We may 
impute the fraudulent, criminal, or other improper conduct of any 
officer, director, shareholder, partner, employee, or other individual 
associated with an organization, to that organization when the improper 
conduct occurred in connection with the individual's performance of 
duties for or on behalf of that organization, or with the organization's 
knowledge, approval or acquiescence. The organization's acceptance of 
the benefits derived from the conduct is evidence of knowledge, approval 
or acquiescence.
    (b) Conduct imputed from an organization to an individual, or 
between individuals. We may impute the fraudulent, criminal, or other 
improper conduct of any organization to an individual, or from one 
individual to another individual, if the individual to whom the improper 
conduct is imputed either participated in, had knowledge of, or reason 
to know of the improper conduct.
    (c) Conduct imputed from one organization to another organization. 
We may impute the fraudulent, criminal, or other improper conduct of one 
organization to another organization when the improper conduct occurred 
in connection with a partnership, joint venture, joint application, 
association or similar arrangement, or when the organization to whom the 
improper conduct is imputed has the power to direct, manage, control or 
influence the activities of the organization responsible for the 
improper conduct. Acceptance of the benefits derived from the conduct is 
evidence of knowledge, approval or acquiescence.

[[Page 136]]



Sec.  1471.635  May the Federal Mediation and Conciliation Service settle
a debarment or suspension action?

    Yes, we may settle a debarment or suspension action at any time if 
it is in the best interest of the Federal Government.



Sec.  1471.640  May a settlement include a voluntary exclusion?

    Yes, if we enter into a settlement with you in which you agree to be 
excluded, it is called a voluntary exclusion and has governmentwide 
effect.



Sec.  1471.645  Do other Federal agencies know if the Federal Mediation
and Conciliation Service agrees to a voluntary exclusion?

    (a) Yes, we enter information regarding a voluntary exclusion into 
the EPLS.
    (b) Also, any agency or person may contact us to find out the 
details of a voluntary exclusion.



                          Subpart G_Suspension



Sec.  1471.700  When may the suspending official issue a suspension?

    Suspension is a serious action. Using the procedures of this subpart 
and subpart F of this part, the suspending official may impose 
suspension only when that official determines that--
    (a) There exists an indictment for, or other adequate evidence to 
suspect, an offense listed under Sec.  1471.800(a), or
    (b) There exists adequate evidence to suspect any other cause for 
debarment listed under Sec.  1471.800(b) through (d); and
    (c) Immediate action is necessary to protect the public interest.



Sec.  1471.705  What does the suspending official consider in issuing
a suspension?

    (a) In determining the adequacy of the evidence to support the 
suspension, the suspending official considers how much information is 
available, how credible it is given the circumstances, whether or not 
important allegations are corroborated, and what inferences can 
reasonably be drawn as a result. During this assessment, the suspending 
official may examine the basic documents, including grants, cooperative 
agreements, loan authorizations, contracts, and other relevant 
documents.
    (b) An indictment, conviction, civil judgment, or other official 
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of 
suspension actions.
    (c) In deciding whether immediate action is needed to protect the 
public interest, the suspending official has wide discretion. For 
example, the suspending official may infer the necessity for immediate 
action to protect the public interest either from the nature of the 
circumstances giving rise to a cause for suspension or from potential 
business relationships or involvement with a program of the Federal 
Government.



Sec.  1471.710  When does a suspension take effect?

    A suspension is effective when the suspending official signs the 
decision to suspend.



Sec.  1471.715  What notice does the suspending official give me if
I am suspended?

    After deciding to suspend you, the suspending official promptly 
sends you a Notice of Suspension advising you--
    (a) That you have been suspended;
    (b) That your suspension is based on--
    (1) An indictment;
    (2) A conviction;
    (3) Other adequate evidence that you have committed irregularities 
which seriously reflect on the propriety of further Federal Government 
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your 
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on 
notice without disclosing the Federal Government's evidence;
    (d) Of the cause(s) upon which we relied under Sec.  1471.700 for 
imposing suspension;
    (e) That your suspension is for a temporary period pending the 
completion of an investigation or resulting legal or debarment 
proceedings;

[[Page 137]]

    (f) Of the applicable provisions of this subpart, subpart F of this 
part, and any other FMCS procedures governing suspension decision 
making; and
    (g) Of the governmentwide effect of your suspension from procurement 
and nonprocurement programs and activities.



Sec.  1471.720  How may I contest a suspension?

    If you as a respondent wish to contest a suspension, you or your 
representative must provide the suspending official with information in 
opposition to the suspension. You may do this orally or in writing, but 
any information provided orally that you consider important must also be 
submitted in writing for the official record.



Sec.  1471.725  How much time do I have to contest a suspension?

    (a) As a respondent you or your representative must either send, or 
make rrangements to appear and present, the information and argument to 
the suspending official within 30 days after you receive the Notice of 
Suspension.
    (b) We consider the notice to be received by you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec.  1471.730  What information must I provide to the suspending official
if I contest a suspension?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the suspending official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Suspension. A general denial is insufficient to raise a 
genuine dispute over facts material to the suspension;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, state, 
or local agencies, including administrative agreements that affect only 
those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Suspension that grew out of facts relevant to the cause(s) stated in the 
notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the Federal Mediation and Conciliation Service may seek 
further criminal, civil or administrative action against you, as 
appropriate.



Sec.  1471.735  Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the suspending official determines that--
    (1) Your suspension is based upon an indictment, conviction, civil 
judgment, or other finding by a Federal, State, or local body for which 
an opportunity to contest the facts was provided;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Suspension;
    (3) The issues raised in your presentation in opposition to the 
suspension are not factual in nature, or are not material to the 
suspending official's initial decision to suspend, or the official's 
decision whether to continue the suspension; or
    (4) On the basis of advice from the Department of Justice, an office 
of the United States Attorney, a State attorney general's office, or a 
State or local prosecutor's office, that substantial interests of the 
government in pending or contemplated legal proceedings based on the 
same facts as the suspension would be prejudiced by conducting fact-
finding.
    (b) You will have an opportunity to challenge the facts if the 
suspending official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the suspension.
    (c) If you have an opportunity to challenge disputed material facts

[[Page 138]]

under this section, the suspending official or designee must conduct 
additional proceedings to resolve those facts.



Sec.  1471.740  Are suspension proceedings formal?

    (a) Suspension proceedings are conducted in a fair and informal 
manner. The suspending official may use flexible procedures to allow you 
to present matters in opposition. In so doing, the suspending official 
is not required to follow formal rules of evidence or procedure in 
creating an official record upon which the official will base a final 
suspension decision.
    (b) You as a respondent or your representative must submit any 
documentary evidence you want the suspending official to consider.



Sec.  1471.745  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the Federal Mediation and Conciliation 
Service agree to waive it in advance. If you want a copy of the 
transcribed record, you may purchase it.



Sec.  1471.750  What does the suspending official consider in deciding
whether to continue or terminate my suspension?

    (a) The suspending official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the suspending official's initial 
decision to suspend you;
    (2) Any further information and argument presented in support of, or 
opposition to, the suspension; and
    (3) Any transcribed record of fact-finding proceedings.
    (b) The suspending official may refer disputed material facts to 
another official for findings of fact. The suspending official may 
reject any resulting findings, in whole or in part, only after 
specifically determining them to be arbitrary, capricious, or clearly 
erroneous.



Sec.  1471.755  When will I know whether the suspension is continued
or terminated?

    The suspending official must make a written decision whether to 
continue, modify, or terminate your suspension within 45 days of closing 
the official record. The official record closes upon the suspending 
official's receipt of final submissions, information and findings of 
fact, if any. The suspending official may extend that period for good 
cause.



Sec.  1471.760  How long may my suspension last?

    (a) If legal or debarment proceedings are initiated at the time of, 
or during your suspension, the suspension may continue until the 
conclusion of those proceedings. However, if proceedings are not 
initiated, a suspension may not exceed 12 months.
    (b) The suspending official may extend the 12 month limit under 
paragraph (a) of this section for an additional 6 months if an office of 
a U.S. Assistant Attorney General, U.S. Attorney, or other responsible 
prosecuting official requests an extension in writing. In no event may a 
suspension exceed 18 months without initiating proceedings under 
paragraph (a) of this section.
    (c) The suspending official must notify the appropriate officials 
under paragraph (b) of this section of an impending termination of a 
suspension at least 30 days before the 12 month period expires to allow 
the officials an opportunity to request an extension.



                           Subpart H_Debarment



Sec.  1471.800  What are the causes for debarment?

    We may debar a person for--
    (a) Conviction of or civil judgment for--
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;

[[Page 139]]

    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, tax 
evasion, receiving stolen property, making false claims, or obstruction 
of justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects your 
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, or a procurement debarment by any Federal agency taken 
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
    (2) Knowingly doing business with an ineligible person, except as 
permitted under Sec.  1471.120;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed the Federal Government under the Internal Revenue 
Code) owed to any Federal agency or instrumentality, provided the debt 
is uncontested by the debtor or, if contested, provided that the 
debtor's legal and administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec.  1471.640 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it 
affects your present responsibility.



Sec.  1471.805  What notice does the debarring official give me if I
am proposed for debarment?

    After consideration of the causes in Sec.  1471.800 of this subpart, 
if the debarring official proposes to debar you, the official sends you 
a Notice of Proposed Debarment, pursuant to Sec.  1471.615, advising 
you--
    (a) That the debarring official is considering debarring you;
    (b) Of the reasons for proposing to debar you in terms sufficient to 
put you on notice of the conduct or transactions upon which the proposed 
debarment is based;
    (c) Of the cause(s) under Sec.  1471.800 upon which the debarring 
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, subpart F of this 
part, and any other FMCS procedures governing debarment; and
    (e) Of the governmentwide effect of a debarment from procurement and 
nonprocurement programs and activities.



Sec.  1471.810  When does a debarment take effect?

    A debarment is not effective until the debarring official issues a 
decision. The debarring official does not issue a decision until the 
respondent has had an opportunity to contest the proposed debarment.



Sec.  1471.815  How may I contest a proposed debarment?

    If you as a respondent wish to contest a proposed debarment, you or 
your representative must provide the debarring official with information 
in opposition to the proposed debarment. You may do this orally or in 
writing, but any information provided orally that you consider important 
must also be submitted in writing for the official record.

[[Page 140]]



Sec.  1471.820  How much time do I have to contest a proposed debarment?

    (a) As a respondent you or your representative must either send, or 
make arrangements to appear and present, the information and argument to 
the debarring official within 30 days after you receive the Notice of 
Proposed Debarment.
    (b) We consider the Notice of Proposed Debarment to be received by 
you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec.  1471.825  What information must I provide to the debarring official
if I contest a proposed debarment?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the debarring official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Proposed Debarment. Include any information about any of the 
factors listed in Sec.  1471.860. A general denial is insufficient to 
raise a genuine dispute over facts material to the debarment;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, State, 
or local agencies, including administrative agreements that affect only 
those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Proposed Debarment that grew out of facts relevant to the cause(s) 
stated in the notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the Federal Mediation and Conciliation Service may seek 
further criminal, civil or administrative action against you, as 
appropriate.



Sec.  1471.830  Under what conditions do I get an additional opportunity
to challenge the facts on which a proposed debarment is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the debarring official determines that--
    (1) Your debarment is based upon a conviction or civil judgment;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Proposed Debarment; or
    (3) The issues raised in your presentation in opposition to the 
proposed debarment are not factual in nature, or are not material to the 
debarring official's decision whether to debar.
    (b) You will have an additional opportunity to challenge the facts 
if the debarring official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the proposed debarment.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the debarring official or designee must conduct 
additional proceedings to resolve those facts.



Sec.  1471.835  Are debarment proceedings formal?

    (a) Debarment proceedings are conducted in a fair and informal 
manner. The debarring official may use flexible procedures to allow you 
as a respondent to present matters in opposition. In so doing, the 
debarring official is not required to follow formal rules of evidence or 
procedure in creating an official record upon which the official will 
base the decision whether to debar.
    (b) You or your representative must submit any documentary evidence 
you want the debarring official to consider.



Sec.  1471.840  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.

[[Page 141]]

    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the Federal Mediation and Conciliation 
Service agree to waive it in advance. If you want a copy of the 
transcribed record, you may purchase it.



Sec.  1471.845  What does the debarring official consider in deciding
whether to debar me?

    (a) The debarring official may debar you for any of the causes in 
Sec.  1471.800. However, the official need not debar you even if a cause 
for debarment exists. The official may consider the seriousness of your 
acts or omissions and the mitigating or aggravating factors set forth at 
Sec.  1471.860.
    (b) The debarring official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the debarring official's proposed 
debarment;
    (2) Any further information and argument presented in support of, or 
in opposition to, the proposed debarment; and
    (3) Any transcribed record of fact-finding proceedings.
    (c) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any resultant findings, in whole or in part, only after specifically 
determining them to be arbitrary, capricious, or clearly erroneous.



Sec.  1471.850  What is the standard of proof in a debarment action?

    (a) In any debarment action, we must establish the cause for 
debarment by a preponderance of the evidence.
    (b) If the proposed debarment is based upon a conviction or civil 
judgment, the standard of proof is met.



Sec.  1471.855  Who has the burden of proof in a debarment action?

    (a) We have the burden to prove that a cause for debarment exists.
    (b) Once a cause for debarment is established, you as a respondent 
have the burden of demonstrating to the satisfaction of the debarring 
official that you are presently responsible and that debarment is not 
necessary.



Sec.  1471.860  What factors may influence the debarring official's
decision?

    This section lists the mitigating and aggravating factors that the 
debarring official may consider in determining whether to debar you and 
the length of your debarment period. The debarring official may consider 
other factors if appropriate in light of the circumstances of a 
particular case. The existence or nonexistence of any factor, such as 
one of those set forth in this section, is not necessarily determinative 
of your present responsibility. In making a debarment decision, the 
debarring official may consider the following factors:
    (a) The actual or potential harm or impact that results or may 
result from the wrongdoing.
    (b) The frequency of incidents and/or duration of the wrongdoing.
    (c) Whether there is a pattern or prior history of wrongdoing. For 
example, if you have been found by another Federal agency or a State 
agency to have engaged in wrongdoing similar to that found in the 
debarment action, the existence of this fact may be used by the 
debarring official in determining that you have a pattern or prior 
history of wrongdoing.
    (d) Whether you are or have been excluded or disqualified by an 
agency of the Federal Government or have not been allowed to participate 
in State or local contracts or assistance agreements on a basis of 
conduct similar to one or more of the causes for debarment specified in 
this part.
    (e) Whether you have entered into an administrative agreement with a 
Federal agency or a State or local government that is not governmentwide 
but is based on conduct similar to one or more of the causes for 
debarment specified in this part.
    (f) Whether and to what extent you planned, initiated, or carried 
out the wrongdoing.
    (g) Whether you have accepted responsibility for the wrongdoing and 
recognize the seriousness of the misconduct that led to the cause for 
debarment.

[[Page 142]]

    (h) Whether you have paid or agreed to pay all criminal, civil and 
administrative liabilities for the improper activity, including any 
investigative or administrative costs incurred by the government, and 
have made or agreed to make full restitution.
    (i) Whether you have cooperated fully with the government agencies 
during the investigation and any court or administrative action. In 
determining the extent of cooperation, the debarring official may 
consider when the cooperation began and whether you disclosed all 
pertinent information known to you.
    (j) Whether the wrongdoing was pervasive within your organization.
    (k) The kind of positions held by the individuals involved in the 
wrongdoing.
    (l) Whether your organization took appropriate corrective action or 
remedial measures, such as establishing ethics training and implementing 
programs to prevent recurrence.
    (m) Whether your principals tolerated the offense.
    (n) Whether you brought the activity cited as a basis for the 
debarment to the attention of the appropriate government agency in a 
timely manner.
    (o) Whether you have fully investigated the circumstances 
surrounding the cause for debarment and, if so, made the result of the 
investigation available to the debarring official.
    (p) Whether you had effective standards of conduct and internal 
control systems in place at the time the questioned conduct occurred.
    (q) Whether you have taken appropriate disciplinary action against 
the individuals responsible for the activity which constitutes the cause 
for debarment.
    (r) Whether you have had adequate time to eliminate the 
circumstances within your organization that led to the cause for the 
debarment.
    (s) Other factors that are appropriate to the circumstances of a 
particular case.



Sec.  1471.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of 
debarment will be based on the seriousness of the cause(s) upon which 
your debarment is based. Generally, debarment should not exceed three 
years. However, if circumstances warrant, the debarring official may 
impose a longer period of debarment.
    (b) In determining the period of debarment, the debarring official 
may consider the factors in Sec.  1471.860. If a suspension has preceded 
your debarment, the debarring official must consider the time you were 
suspended.
    (c) If the debarment is for a violation of the provisions of the 
Drug-Free Workplace Act of 1988, your period of debarment may not exceed 
five years.



Sec.  1471.870  When do I know if the debarring official debars me?

    (a) The debarring official must make a written decision whether to 
debar within 45 days of closing the official record. The official record 
closes upon the debarring official's receipt of final submissions, 
information and findings of fact, if any. The debarring official may 
extend that period for good cause.
    (b) The debarring official sends you written notice, pursuant to 
Sec.  1471.615 that the official decided, either--
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective 
dates; and
    (iv) Advises you that your debarment is effective for covered 
transactions and contracts that are subject to the Federal Acquisition 
Regulation (48 CFR chapter 1), throughout the executive branch of the 
Federal Government unless an agency head or an authorized designee 
grants an exception.



Sec.  1471.875  May I ask the debarring official to reconsider a decision
to debar me?

    Yes, as a debarred person you may ask the debarring official to 
reconsider the debarment decision or to reduce the time period or scope 
of the debarment. However, you must put your request in writing and 
support it with documentation.

[[Page 143]]



Sec.  1471.880  What factors may influence the debarring official during
reconsideration?

    The debarring official may reduce or terminate your debarment based 
on--
    (a) Newly discovered material evidence;
    (b) A reversal of the conviction or civil judgment upon which your 
debarment was based;
    (c) A bona fide change in ownership or management;
    (d) Elimination of other causes for which the debarment was imposed; 
or
    (e) Other reasons the debarring official finds appropriate.



Sec.  1471.885  May the debarring official extend a debarment?

    (a) Yes, the debarring official may extend a debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest.
    (b) However, the debarring official may not extend a debarment 
solely on the basis of the facts and circumstances upon which the 
initial debarment action was based.
    (c) If the debarring official decides that a debarment for an 
additional period is necessary, the debarring official must follow the 
applicable procedures in this subpart, and subpart F of this part, to 
extend the debarment.



                          Subpart I_Definitions



Sec.  1471.900  Adequate evidence.

    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.



Sec.  1471.905  Affiliate.

    Persons are affiliates of each other if, directly or indirectly, 
either one controls or has the power to control the other or a third 
person controls or has the power to control both. The ways we use to 
determine control include, but are not limited to--
    (a) Interlocking management or ownership;
    (b) Identity of interests among family members;
    (c) Shared facilities and equipment;
    (d) Common use of employees; or
    (e) A business entity which has been organized following the 
exclusion of a person which has the same or similar management, 
ownership, or principal employees as the excluded person.



Sec.  1471.910  Agency.

    Agency means any United States executive department, military 
department, defense agency, or any other agency of the executive branch. 
Other agencies of the Federal government are not considered ``agencies'' 
for the purposes of this part unless they issue regulations adopting the 
governmentwide Debarment and Suspension system under Executive orders 
12549 and 12689.



Sec.  1471.915  Agent or representative.

    Agent or representative means any person who acts on behalf of, or 
who is authorized to commit, a participant in a covered transaction.



Sec.  1471.920  Civil judgment.

    Civil judgment means the disposition of a civil action by any court 
of competent jurisdiction, whether by verdict, decision, settlement, 
stipulation, other disposition which creates a civil liability for the 
complained of wrongful acts, or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).



Sec.  1471.925  Conviction.

    Conviction means--
    (a) A judgment or any other determination of guilt of a criminal 
offense by any court of competent jurisdiction, whether entered upon a 
verdict or plea, including a plea of nolo contendere; or
    (b) Any other resolution that is the functional equivalent of a 
judgment, including probation before judgment and deferred prosecution. 
A disposition without the participation of the court is the functional 
equivalent of a judgment only if it includes an admission of guilt.



Sec.  1471.930  Debarment.

    Debarment means an action taken by a debarring official under 
subpart H of this part to exclude a person from participating in covered 
transactions and transactions covered under the Federal

[[Page 144]]

Acquisition Regulation (48 CFR chapter 1). A person so excluded is 
debarred.



Sec.  1471.935  Debarring official.

    (a) Debarring official means an agency official who is authorized to 
impose debarment. A debarring official is either--
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec.  1471.940  Disqualified.

    Disqualified means that a person is prohibited from participating in 
specified Federal procurement or nonprocurement transactions as required 
under a statute, Executive order (other than Executive Orders 12549 and 
12689) or other authority. Examples of disqualifications include persons 
prohibited under--
    (a) The Davis-Bacon Act (40 U.S.C. 276(a));
    (b) The equal employment opportunity acts and Executive orders; or
    (c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C. 
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).



Sec.  1471.945  Excluded or exclusion.

    Excluded or exclusion means--
    (a) That a person or commodity is prohibited from being a 
participant in covered transactions, whether the person has been 
suspended; debarred; proposed for debarment under 48 CFR part 9, subpart 
9.4; voluntarily excluded; or
    (b) The act of excluding a person.



Sec.  1471.950  Excluded Parties List System

    Excluded Parties List System (EPLS) means the list maintained and 
disseminated by the General Services Administration (GSA) containing the 
names and other information about persons who are ineligible. The EPLS 
system includes the printed version entitled, ``List of Parties Excluded 
or Disqualified from Federal Procurement and Nonprocurement Programs,'' 
so long as published.



Sec.  1471.955  Indictment.

    Indictment means an indictment for a criminal offense. A 
presentment, information, or other filing by a competent authority 
charging a criminal offense shall be given the same effect as an 
indictment.



Sec.  1471.960  Ineligible or ineligibility.

    Ineligible or ineligibility means that a person or commodity is 
prohibited from covered transactions because of an exclusion or 
disqualification.



Sec.  1471.965  Legal proceedings.

    Legal proceedings means any criminal proceeding or any civil 
judicial proceeding, including a proceeding under the Program Fraud 
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal 
Government or a State or local government or quasi-governmental 
authority is a party. The term also includes appeals from those 
proceedings.



Sec.  1471.970  Nonprocurement transaction.

    (a) Nonprocurement transaction means any transaction, regardless of 
type (except procurement contracts), including, but not limited to the 
following:
    (1) Grants.
    (2) Cooperative agreements.
    (3) Scholarships.
    (4) Fellowships.
    (5) Contracts of assistance.
    (6) Loans.
    (7) Loan guarantees.
    (8) Subsidies.
    (9) Insurances.
    (10) Payments for specified uses.
    (11) Donation agreements.
    (b) A nonprocurement transaction at any tier does not require the 
transfer of Federal funds.



Sec.  1471.975  Notice.

    Notice means a written communication served in person, sent by 
certified mail or its equivalent, or sent electronically by e-mail or 
facsimile. (See Sec.  1471.615.)



Sec.  1471.980  Participant.

    Participant means any person who submits a proposal for or who 
enters into a covered transaction, including an agent or representative 
of a participant.

[[Page 145]]



Sec.  1471.985  Person.

    Person means any individual, corporation, partnership, association, 
unit of government, or legal entity, however organized.



Sec.  1471.990  Preponderance of the evidence.

    Preponderance of the evidence means proof by information that, 
compared with information opposing it, leads to the conclusion that the 
fact at issue is more probably true than not.



Sec.  1471.995  Principal.

    Principal means--
    (a) An officer, director, owner, partner, principal investigator, or 
other person within a participant with management or supervisory 
responsibilities related to a covered transaction; or
    (b) A consultant or other person, whether or not employed by the 
participant or paid with Federal funds, who--
    (1) Is in a position to handle Federal funds;
    (2) Is in a position to influence or control the use of those funds; 
or,
    (3) Occupies a technical or professional position capable of 
substantially influencing the development or outcome of an activity 
required to perform the covered transaction.



Sec.  1471.1000  Respondent.

    Respondent means a person against whom an agency has initiated a 
debarment or suspension action.



Sec.  1471.1005  State.

    (a) State means--
    (1) Any of the states of the United States;
    (2) The District of Columbia;
    (3) The Commonwealth of Puerto Rico;
    (4) Any territory or possession of the United States; or
    (5) Any agency or instrumentality of a state.
    (b) For purposes of this part, State does not include institutions 
of higher education, hospitals, or units of local government.



Sec.  1471.1010  Suspending official.

    (a) Suspending official means an agency official who is authorized 
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec.  1471.1015  Suspension.

    Suspension is an action taken by a suspending official under subpart 
G of this part that immediately prohibits a person from participating in 
covered transactions and transactions covered under the Federal 
Acquisition Regulation (48 CFR chapter 1) for a temporary period, 
pending completion of an agency investigation and any judicial or 
administrative proceedings that may ensue. A person so excluded is 
suspended.



Sec.  1471.1020  Voluntary exclusion or voluntarily excluded.

    (a) Voluntary exclusion means a person's agreement to be excluded 
under the terms of a settlement between the person and one or more 
agencies. Voluntary exclusion must have governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has agreed 
to a voluntary exclusion.

Subpart J [Reserved]

[[Page 146]]

               Appendix to Part 1471--Covered Transactions
[GRAPHIC] [TIFF OMITTED] TR26NO03.000



PART 1472_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
1472.100 What does this part do?
1472.105 Does this part apply to me?
1472.110 Are any of my Federal assistance awards exempt from this part?
1472.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

1472.200 What must I do to comply with this part?
1472.205 What must I include in my drug-free workplace statement?
1472.210 To whom must I distribute my drug-free workplace statement?
1472.215 What must I include in my drug-free awareness program?
1472.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
1472.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
1472.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

1472.300 What must I do to comply with this part if I am an individual 
          recipient?
1472.301 [Reserved]

[[Page 147]]

          Subpart D_Responsibilities of FMCS Awarding Officials

1472.400 What are my responsibilities as an FMCS awarding official?

           Subpart E_Violations of This Part and Consequences

1472.500 How are violations of this part determined for recipients other 
          than individuals?
1472.505 How are violations of this part determined for recipients who 
          are individuals?
1472.510 What actions will the Federal Government take against a 
          recipient determined to have violated this part?
1472.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

1472.605 Award.
1472.610 Controlled substance.
1472.615 Conviction.
1472.620 Cooperative agreement.
1472.625 Criminal drug statute.
1472.630 Debarment.
1472.635 Drug-free workplace.
1472.640 Employee.
1472.645 Federal agency or agency.
1472.650 Grant.
1472.655 Individual.
1472.660 Recipient.
1472.665 State.
1472.670 Suspension.

    Authority: 41 U.S.C. 701, et seq.

    Source: 68 FR 66557, 66604, 66605, Nov. 26, 2003, unless otherwise 
noted.



                     Subpart A_Purpose and Coverage



Sec.  1472.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec.  1472.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the Federal Mediation 
and Conciliation Service; or
    (2) A(n) FMCS awarding official. (See definitions of award and 
recipient in Sec. Sec.  1472.605 and 1472.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
             If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an individual..  A, B and E.
(2) A recipient who is an individual......  A, C and E.
(3) A(n) FMCS awarding official...........  A, D and E.
------------------------------------------------------------------------



Sec.  1472.110  Are any of my Federal assistance awards exempt from
this part?

    This part does not apply to any award that the Agency Director 
determines that the application of this part would be inconsistent with 
the international obligations of the United States or the laws or 
regulations of a foreign government.



Sec.  1472.115  Does this part affect the Federal contracts that
I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec.  1472.510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec.  1472.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free

[[Page 148]]

awareness program for your employees (see Sec. Sec.  1472.205 through 
1472.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec.  1472.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec.  1472.230).



Sec.  1472.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec.  1472.210  To whom must I distribute my drug-free workplace 
statement?

    You must require that a copy of the statement described in Sec.  
1472.205 be given to each employee who will be engaged in the 
performance of any Federal award.



Sec.  1472.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec.  1472.220  By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec.  1472.205 and an ongoing awareness 
program as described in Sec.  1472.215, you must publish the statement 
and establish the program by the time given in the following table:

------------------------------------------------------------------------
                If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award  must have the policy statement
 is less than 30 days.                    and program in place as soon
                                          as possible, but before the
                                          date on which performance is
                                          expected to be completed.
(b) The performance period of the award  must have the policy statement
 is 30 days or more.                      and program in place within 30
                                          days after award.
(c) You believe there are extraordinary  may ask the FMCS awarding
 circumstances that will require more     official to give you more time
 than 30 days for you to publish the      to do so. The amount of
 policy statement and establish the       additional time, if any, to be
 awareness program.                       given is at the discretion of
                                          the awarding official.
------------------------------------------------------------------------



Sec.  1472.225  What actions must I take concerning employees who are
convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec.  1472.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must_
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to

[[Page 149]]

every awarding official or his or her official designee, unless the 
Federal agency has specified a central point for the receipt of the 
notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either_
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec.  1472.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each FMCS award. A 
failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces_
    (1) To the FMCS official that is making the award, either at the 
time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by FMCS officials or their 
designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award takes place. Categorical descriptions may be used 
(e.g., all vehicles of a mass transit authority or State highway 
department while in operation, State employees in each local 
unemployment office, performers in concert halls or radio studios).
    (c) If you identified workplaces to the FMCS awarding official at 
the time of application or award, as described in paragraph (a)(1) of 
this section, and any workplace that you identified changes during the 
performance of the award, you must inform the FMCS awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec.  1472.300  What must I do to comply with this part if I am an
individual recipient?

    As a condition of receiving a(n) FMCS award, if you are an 
individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the FMCS awarding official or other designee for each award 
that you currently have, unless Sec.  1472.301 or the award document 
designates a central point for the receipt of the notices. When notice 
is made to a central point, it must include the identification number(s) 
of each affected award.



Sec.  1472.301  [Reserved]



          Subpart D_Responsibilities of FMCS Awarding Officials



Sec.  1472.400  What are my responsibilities as a(n) FMCS awarding
official?

    As a(n) FMCS awarding official, you must obtain each recipient's 
agreement, as a condition of the award, to comply with the requirements 
in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec.  1472.500  How are violations of this part determined for recipients
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Agency Director determines, in writing, 
that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or

[[Page 150]]

    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec.  1472.505  How are violations of this part determined for recipients
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Agency Director determines, in writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec.  1472.510  What actions will the Federal Government take against a
recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec.  1472.500 or Sec.  1472.505, the Federal Mediation and 
Conciliation Service may take one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 29 CFR part 1471, 
for a period not to exceed five years.



Sec.  1472.515  Are there any exceptions to those actions?

    The Agency Director may waive with respect to a particular award, in 
writing, a suspension of payments under an award, suspension or 
termination of an award, or suspension or debarment of a recipient if 
the Agency Director determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



                          Subpart F_Definitions



Sec.  1472.605  Award.

    Award means an award of financial assistance by the Federal 
Mediation and Conciliation Service or other Federal agency directly to a 
recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 29 
CFR part 1470 that implements OMB Circular A-102 (for availability, see 
5 CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).



Sec.  1472.610  Controlled substance.

    Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15.



Sec.  1472.615  Conviction.

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.



Sec.  1472.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec.  1472.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.

[[Page 151]]



Sec.  1472.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec.  1472.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689.



Sec.  1472.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec.  1472.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the payroll; 
or employees of subrecipients or subcontractors in covered workplaces).



Sec.  1472.645  Federal agency or agency.

    Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency.



Sec.  1472.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec.  1472.655  Individual.

    Individual means a natural person.



Sec.  1472.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec.  1472.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec.  1472.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may

[[Page 152]]

ensue. A recipient so prohibited is suspended, in accordance with the 
Federal Acquisition Regulation for procurement contracts (48 CFR part 9, 
subpart 9.4) and the common rule, Government-wide Debarment and 
Suspension (Nonprocurement), that implements Executive Order 12549 and 
Executive Order 12689. Suspension of a recipient is a distinct and 
separate action from suspension of an award or suspension of payments 
under an award.

                       PARTS 1473	1499 [RESERVED]

[[Page 153]]



          CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
1600            Employee responsibilities and conduct.......         155
1601            Procedural regulations......................         155
1602            Recordkeeping and reporting requirements 
                    under title VII, the ADA and GINA.......         178
1603            Procedures for previously exempt State and 
                    local government employee complaints of 
                    employment discrimination under section 
                    304 of the Government Employee Rights 
                    Act of 1991.............................         191
1604            Guidelines on discrimination because of sex.         199
1605            Guidelines on discrimination because of 
                    religion................................         209
1606            Guidelines on discrimination because of 
                    national origin.........................         213
1607            Uniform guidelines on employee selection 
                    procedures (1978).......................         216
1608            Affirmative action appropriate under title 
                    VII of the Civil Rights Act of 1964, as 
                    amended.................................         241
1610            Availability of records.....................         248
1611            Privacy Act regulations.....................         267
1612            Government in the Sunshine Act regulations..         275
1614            Federal sector equal employment opportunity.         281
1615            Enforcement of nondiscrimination on the 
                    basis of disability in programs or 
                    activities conducted by the Equal 
                    Employment Opportunity Commission and in 
                    accessibility of Commission electronic 
                    and information technology..............         322
1620            The Equal Pay Act...........................         330
1621            Procedures--the Equal Pay Act...............         344
1625            Age Discrimination in Employment Act........         345
1626            Procedures--Age Discrimination in Employment 
                    Act.....................................         368
1627            Records to be made or kept relating to age: 
                    Notices to be posted....................         374
1630            Regulations to implement the equal 
                    employment provisions of the Americans 
                    with Disabilities Act...................         381
1635            Genetic Information Nondiscrimination Act of 
                    2008....................................         439

[[Page 154]]

1640            Procedures for coordinating the 
                    investigation of complaints or charges 
                    of employment discrimination based on 
                    disability subject to the Americans with 
                    Disabilities Act and section 504 of the 
                    Rehabilitation Act of 1973..............         452
1641            Procedures for complaints/charges of 
                    employment discrimination based on 
                    disability filed against employers 
                    holding government contracts or 
                    subcontracts............................         458
1650            Debt collection.............................         462
1690            Procedures on interagency coordination of 
                    equal employment opportunity issuances..         470
1691            Procedures for complaints of employment 
                    discrimination filed against recipients 
                    of Federal financial assistance.........         474
1692-1694

 [Reserved]

1695            Guidance procedures.........................         479
1696-1899

 [Reserved]

[[Page 155]]



PART 1600_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



    Authority: 5 U.S.C. 7301.



Sec.  1600.101  Cross-reference to employee ethical conduct standards and
financial disclosure regulations.

    Employees of the Equal Employment Opportunity Commission (EEOC) are 
subject to the executive branch-wide Standards of Ethical Conduct at 5 
CFR part 2635, the EEOC regulation at 5 CFR part 7201, which supplements 
the executive branch-wide standards, and the executive branch-wide 
financial disclosure regulations at 5 CFR part 2634.

[61 FR 7067, Feb. 26, 1996]



PART 1601_PROCEDURAL REGULATIONS--Table of Contents



Sec.
1601.1 Purpose.

                          Subpart A_Definitions

1601.2 Terms defined in title VII of the Civil Rights Act, the Americans 
          with Disabilities Act, and the Genetic Information 
          Nondiscrimination Act.
1601.3 Other definitions.
1601.4 Vice Chairman's functions.
1601.5 District; field; area; local authority.

 Subpart B_Procedure for the Prevention of Unlawful Employment Practices

1601.6 Submission of information.
1601.7 Charges by or on behalf of persons claiming to be aggrieved.
1601.8 Where to make a charge.
1601.9 Form of charge.
1601.10 Withdrawal of a charge by a person claiming to be aggrieved.
1601.11 Charges by members of the Commission.
1601.12 Contents of charge; amendment of charge.
1601.13 Filing; deferrals to State and local agencies.
1601.14 Service of charge or notice of charge.

                        Investigation of a Charge

1601.15 Investigative authority.
1601.16 Access to and production of evidence; testimony of witnesses; 
          procedure and authority.
1601.17 Witnesses for public hearings.

                 Procedure Following Filing of a Charge

1601.18 Dismissal: Procedure and authority.
1601.19 No cause determinations: Procedure and authority.
1601.20 Negotiated settlement.
1601.21 Reasonable cause determination: Procedure and authority.
1601.22 Confidentiality.

           Procedure To Rectify Unlawful Employment Practices

1601.23 Preliminary or temporary relief.
1601.24 Conciliation: Procedure and authority.
1601.25 Failure of conciliation; notice.
1601.26 Confidentiality of endeavors.

          Procedure Concerning the Institution of Civil Actions

1601.27 Civil actions by the Commission.
1601.28 Notice of right to sue: Procedure and authority.
1601.29 Referral to the Attorney General.

  Subpart C_Notices to Employees, Applicants for Employment and Union 
                                 Members

1601.30 Notices to be posted.

                     Subpart D_Construction of Rules

1601.34 Rules to be liberally construed.

            Subpart E_Issuance, Amendment, or Repeal of Rules

1601.35 Petitions.
1601.36 Action on petition.

Subpart F [Reserved]

               Subpart G_FEP Agency Designation Procedures

1601.70 FEP agency qualifications.
1601.71 FEP agency notification.
1601.72-1601.73 [Reserved]
1601.74 Designated and notice agencies.
1601.75 Certification of designated FEP agencies.
1601.76 Right of party to request review.
1601.77 Review by the Commission.
1601.78 Evaluation of designated FEP agencies certified by the 
          Commission.
1601.79 Revocation of certification.
1601.80 Certified designated FEP agencies.

   Subpart H_Title VII Interpretations and Opinions by the Commission

1601.91 Request for title VII interpretation or opinion.
1601.92 Contents of request; where to file.
1601.93 Opinions--title VII.


[[Page 156]]


    Authority: 42 U.S.C. 2000e to 2000e-17; 42 U.S.C. 12111 to 12117; 42 
U.S.C. 2000ff to 2000ff-11; 28 U.S.C. 2461 note, as amended; Pub. L. 
104-134, Sec. 31001(s)(1), 110 Stat. 1373.

    Source: 42 FR 55388, Oct. 14, 1977, unless otherwise noted.



Sec.  1601.1  Purpose.

    The regulations set forth in this part contain the procedures 
established by the Equal Employment Opportunity Commission for carrying 
out its responsibilities in the administration and enforcement of title 
VII of the Civil Rights Act of 1964, the Americans with Disabilities Act 
of 1990, and the Genetic Information Nondiscrimination Act of 2008. 
Section 107 of the Americans with Disabilities Act and section 207 of 
the Genetic Information Nondiscrimination Act incorporate the powers, 
remedies and procedures set forth in sections 705, 706, 707, 709 and 710 
of the Civil Rights Act of 1964. Based on its experience in the 
enforcement of title VII, the Americans with Disabilities Act, and the 
Genetic Information Nondiscrimination Act, and upon its evaluation of 
suggestions and petitions for amendments submitted by interested 
persons, the Commission may from time to time amend and revise these 
procedures.

[74 FR 63982, Dec. 7, 2009]



                          Subpart A_Definitions



Sec.  1601.2  Terms defined in title VII of the Civil Rights Act, 
the Americans with Disabilities Act, and the Genetic Information
Nondiscrimination Act.

    The terms person, employer, employment agency, labor organization, 
employee, commerce, industry affecting commerce, State and religion as 
used in this part shall have the meanings set forth in section 701 of 
title VII of the Civil Rights Act of 1964. The term disability shall 
have the meaning set forth in section 3 of the Americans with 
Disabilities Act, as amended. The term genetic information shall have 
the meaning set forth in section 201 of the Genetic Information 
Nondiscrimination Act of 2008.

[74 FR 63982, Dec. 7, 2009, as amended at 85 FR 65217, Oct. 15, 2020]



Sec.  1601.3  Other definitions.

    (a) For the purposes of this part, the term title VII shall mean 
title VII of the Civil Rights Act of 1964; the term ADA shall mean the 
Americans with Disabilities Act of 1990; the term GINA shall mean the 
Genetic Information Nondiscrimination Act of 2008; the terms EEOC or 
Commission shall mean the Equal Employment Opportunity Commission or any 
of its designated representatives; Washington Field Office shall mean 
the Commission's primary non-Headquarters office serving the District of 
Columbia and Virginia suburban counties and jurisdictions; the term FEP 
agency shall mean a State or local agency which the Commission has 
determined satisfies the criteria stated in section 706(c) of title VII; 
and the term verified shall mean sworn to or affirmed before a notary 
public, designated representative of the Commission, or other person 
duly authorized by law to administer oaths and take acknowledgements, or 
supported by an unsworn declaration in writing under penalty of perjury.
    (b) For the purposes of this part, the terms file, serve, submit, 
receive, transmit, present, send, issue, and notify shall include all 
forms of digital transmission.
    (c) The delegations of authority in subpart B of this part are 
applicable to charges filed pursuant to either section 706 or section 
707 of title VII.

[42 FR 55388, Oct. 14, 1977, as amended at 56 FR 9624, Mar. 7, 1991; 71 
FR 26827, May 9, 2006; 74 FR 63982, Dec. 7, 2009; 85 FR 65217, Oct. 15, 
2020]



Sec.  1601.4  Vice Chair's functions.

    The member of the Commission designated by the President to serve as 
Vice Chair shall act as Chair in the absence or incapacity of the Chair 
or in the event of a vacancy in that office.

[85 FR 65217, Oct. 15, 2020]



Sec.  1601.5  District; field; area; local authority.

    The term ``district'' as used herein shall mean that part of the 
United States or any territory thereof fixed by the Commission as a 
particular district. The term ``district director'' shall refer to that 
person designated as

[[Page 157]]

the Commission's chief officer in each district. The term ``Washington 
Field Office Director'' shall refer to that person designated as the 
Commission's chief officer in the Washington Field Office. Any authority 
of, or delegation of authority to, District Directors shall be deemed to 
include the Director of the Washington Field Office. The term ``field'' 
shall mean that part of the United States within a district fixed by the 
Commission as a particular subunit of a district, except for the 
Washington Field Office which is not part of any district fixed by the 
Commission. The term ``field director'' shall refer to that person 
designated as the Commission's chief officer in each field office. The 
term ``area'' shall mean that part of the United States within a 
district fixed by the Commission as a particular subunit of a district. 
The term ``area director'' shall refer to that person designated as the 
Commission's chief officer in each area office. The term ``local 
office'' shall mean an EEOC office with responsibility over a part of 
the United States within a district fixed by the Commission as a 
particular subunit of a district. The term ``local director'' shall 
refer to that person designated as the Commission's chief officer for 
the local office. Each district office and the Washington Field Office 
will operate under the supervision of the Director, Office of Field 
Programs through the Director of Field Management Programs, and the 
General Counsel. Each field, area and local office, except for the 
Washington Field Office, will operate under the supervision of the 
district director. Any or all delegations, or actions taken, as provided 
by this part may be revoked and /or exercised by the supervisor in 
keeping with the supervisory structure described in this section.

[71 FR 26827, May 9, 2006, as amended at 85 FR 65217, Oct. 15, 2020]



 Subpart B_Procedure for the Prevention of Unlawful Employment Practices



Sec.  1601.6  Submission of information.

    (a) The Commission shall receive information concerning alleged 
violations of title VII, the ADA, or GINA from any person. Where the 
information discloses that a person is entitled to file a charge with 
the Commission, the appropriate office shall render assistance in the 
filing of a charge. Any person or organization may request the issuance 
of a Commissioner charge for an inquiry into individual or systematic 
discrimination. Such request, with any pertinent information, should be 
submitted to the nearest District, Field, Area, or Local office.
    (b) A person who submits data or evidence to the Commission may 
retain or, on payment of lawfully prescribed costs, procure a copy of 
transcript thereof, except that a witness may for good cause be limited 
to inspection of the official transcript of his or her testimony.

[42 FR 55388, Oct. 14, 1977, as amended at 52 FR 26957, July 17, 1987; 
54 FR 32061, Aug. 4, 1989; 56 FR 9624, Mar. 7, 1991; 71 FR 26828, May 9, 
2006; 74 FR 63982, Dec. 7, 2009]



Sec.  1601.7  Charges by or on behalf of persons claiming to be aggrieved.

    (a) A charge that any person has engaged in or is engaging in an 
unlawful employment practice within the meaning of title VII, the ADA, 
or GINA may be made by or on behalf of any person claiming to be 
aggrieved. A charge on behalf of a person claiming to be aggrieved may 
be made by any person, agency, or organization. The written charge need 
not identify by name the person on whose behalf it is made. The person 
making the charge, however, must provide the Commission with the name 
and contact information of the person on whose behalf the charge is made 
During the Commission investigation, Commission personnel shall verify 
the authorization of such charge by the person on whose behalf the 
charge is made. Any such person may request that the Commission shall 
keep his or her identity confidential. However, such request for 
confidentiality shall not prevent the Commission from disclosing the 
identity to Federal, State or local agencies that have agreed to keep 
such information confidential. If this condition is violated by a 
recipient agency, the Commission may decline to honor subsequent 
requests for such information.

[[Page 158]]

    (b) The person claiming to be aggrieved has the responsibility to 
provide the Commission with notice of any change in contact information 
so that the Commission may communicate with him or her during the 
Commission's consideration of the charge.

[42 FR 55388, Oct. 14, 1977, as amended at 56 FR 9624, Mar. 7, 1991; 74 
FR 63982, Dec. 7, 2009; 85 FR 65217, Oct. 15, 2020]



Sec.  1601.8  Where to make a charge.

    A charge may be made using the EEOC's designated digital systems, in 
person, by facsimile, or by mail to any EEOC office or to any designated 
representative of the Commission. The addresses of the EEOC's offices 
appear at www.eeoc.gov.

[85 FR 65217, Oct. 15, 2020]



Sec.  1601.9  Form of charge.

    A charge shall be in writing and signed and shall be verified.



Sec.  1601.10  Withdrawal of a charge by a person claiming to be
aggrieved.

    A charge filed by or on behalf of a person claiming to be aggrieved 
may be withdrawn only by the person claiming to be aggrieved and only 
with the consent of the Commission. The Commission hereby delegates 
authority to District Directors, Field Directors, Area Directors, Local 
Directors, the Director of the Office of Field Programs and the Director 
of Field Management Programs, or their designees, to grant consent to a 
request to withdraw a charge, other than a Commissioner charge, where 
the withdrawal of the charge will not defeat the purposes of title VII, 
the ADA, or GINA.

[44 FR 4669, Jan. 23, 1979, as amended at 47 FR 46275, Oct. 18, 1982; 49 
FR 13024, Apr. 2, 1984; 54 FR 32061, Aug. 4, 1989; 56 FR 9624, Mar. 7, 
1991; 71 FR 26828, May 9, 2006; 74 FR 63982, Dec. 7, 2009]



Sec.  1601.11  Charges by members of the Commission.

    (a) Any member of the Commission may file a charge with the 
Commission. Such charge shall be in writing and signed and shall be 
verified.
    (b) A Commissioner who files a charge under paragraph (a) of this 
section may withdraw the charge with the consent of the Commission. The 
Commission may withdraw any charge filed under paragraph (a) of this 
section by a Commissioner who is no longer holding office when it 
determines that the purposes of title VII, the ADA, or GINA are no 
longer served by processing the charge. Commissioner charges may not be 
withdrawn pursuant to this section after a determination as to 
reasonable cause has been made. This paragraph does not apply to a 
charge filed by a Commissioner which is on behalf of a person claiming 
to be aggrieved within the meaning of Sec.  1601.7 unless such person 
submits a written request for withdrawal to the Commission.

[43 FR 30798, July 18, 1978, as amended at 56 FR 9624, Mar. 7, 1991; 74 
FR 63982, Dec. 7, 2009]



Sec.  1601.12  Contents of charge; amendment of charge.

    (a) Each charge should contain the following:
    (1) The full name and contact information of the person making the 
charge except as provided in Sec.  1601.7;
    (2) The full name and contact information of the person against whom 
the charge is made, if known (hereinafter referred to as the 
respondent);
    (3) A clear and concise statement of the facts, including pertinent 
dates, constituting the alleged unlawful employment practices: See Sec.  
1601.15(b);
    (4) If known, the approximate number of employees of the respondent 
employer or the approximate number of members of the respondent labor 
organization, as the case may be; and
    (5) A statement disclosing whether proceedings involving the alleged 
unlawful employment practice have been commenced before a State or local 
agency charged with the enforcement of fair employment practice laws 
and, if so, the date of such commencement and the name of the agency.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
a charge is sufficient when the Commission receives from the person 
making the charge a written statement sufficiently precise to identify 
the parties, and to describe generally the action or practices 
complained of. A charge may be amended to cure technical defects or 
omissions, including failure to verify the charge, or to clarify and 
amplify

[[Page 159]]

allegations made therein. Such amendments and amendments alleging 
additional acts which constitute unlawful employment practices related 
to or growing out of the subject matter of the original charge will 
relate back to the date the charge was first received. A charge that has 
been so amended shall not be required to be redeferred.

[42 FR 55388, Oct. 14, 1977, as amended at 85 FR 65217, Oct. 15, 2020]



Sec.  1601.13  Filing; deferrals to State and local agencies.

    (a) Initial presentation of a charge to the Commission. (1) Charges 
arising in jurisdictions having no FEP agency are filed with the 
Commission upon receipt. Such charges are timely filed if received by 
the Commission within 180 days from the date of the alleged violation.
    (2) A jurisdiction having a FEP agency without jurisdiction over the 
statutory basis alleged in the charge (e.g., an agency that does not 
have enforcement authority over sex discrimination) is equivalent to a 
jurisdiction having no FEP agency. Charges over which a FEP agency has 
no jurisdiction over the statutory basis alleged are filed with the 
Commission upon receipt and are timely filed if received by the 
Commission within 180 days from the date of the alleged violation.
    (3) Charges arising in jurisdictions having a FEP agency with 
jurisdiction over the statutory basis alleged in the charge are to be 
processed in accordance with the Commission's deferral policy set in 
paragraphs (a)(3)(i) through (iii) and the procedures in paragraph 
(a)(4) of this section.
    (i) In order to give full weight to the policy of section 706(c) of 
title VII, which affords State and local fair employment practice 
agencies that come within the provisions of that section an opportunity 
to remedy alleged discrimination concurrently regulated by title VII, 
the ADA, or GINA and State or local law, the Commission adopts the 
following procedures with respect to allegations of discrimination filed 
with the Commission. It is the intent of the Commission to thereby 
encourage the maximum degree of effectiveness in the State and local 
agencies. The Commission shall endeavor to maintain close communication 
with the State and local agencies with respect to all matters forwarded 
to such agencies and shall provide such assistance to State and local 
agencies as is permitted by law and as is practicable.
    (ii) Section 706(c) of title VII grants States and their political 
subdivisions the exclusive right to process allegations of 
discrimination filed by a person other than a Commissioner for a period 
of 60 days (or 120 days during the first year after the effective date 
of the qualifying State or local law). This right exists where, as set 
forth in Sec.  1601.70, a State or local law prohibits the employment 
practice alleged to be unlawful and a State or local agency has been 
authorized to grant or seek relief. After the expiration of the 
exclusive processing period, the Commission may commence processing the 
allegation of discrimination.
    (iii) A FEP agency may waive its right to the period of exclusive 
processing of charges provided under section 706(c) of title VII with 
respect to any charge or category of charges. Copies of all such charges 
will be forwarded to the appropriate FEP agency.
    (4) The following procedures shall be followed with respect to 
charges which arise in jurisdictions having a FEP agency with 
jurisdiction over the statutory basis alleged in the charge:
    (i) Where any document, whether or not verified, is received by the 
Commission as provided in Sec.  1601.8 which may constitute a charge 
cognizable under title VII, the ADA, or GINA, and where the FEP agency 
has not waived its right to the period of exclusive processing with 
respect to that document, that document shall be deferred to the 
appropriate FEP agency as provided in the procedures set forth below:
    (A) The document shall reflect the date and time it was received by 
the EEOC.
    (B) The original document shall be transmitted by registered mail, 
return receipt requested, to the appropriate FEP agency, or by any other 
means acceptable to the FEP agency. State or local proceedings are 
deemed to have commenced on the date such document is transmitted.
    (C) The person claiming to be aggrieved and any person filing a 
charge

[[Page 160]]

on behalf of such person shall be notified, in writing, that the 
document which he or she sent to the Commission has been forwarded to 
the FEP agency pursuant to the provisions of section 706(c) of title 
VII.
    (ii) Such charges are deemed to be filed with the Commission as 
follows:
    (A) Where the document on its face constitutes a charge within a 
category of charges over which the FEP agency has waived its rights to 
the period of exclusive processing referred to in paragraph (a)(3)(iii) 
of this section, the charge is deemed to be filed with the Commission 
upon receipt of the document. Such filing is timely if the charge is 
received within 300 days from the date of the alleged violation.
    (B) Where the document on its face constitutes a charge which is not 
within a category of charges over which the FEP agency has waived its 
right to the period of exclusive processing referred to in paragraph 
(a)(3)(iii) of this section, the Commission shall process the document 
in accordance with paragraph (a)(4)(i) of this section. The charge shall 
be deemed to be filed with the Commission upon expiration of 60 (or 
where appropriate, 120) days after deferral, or upon the termination of 
FEP agency proceedings, or upon waiver of the FEP agency's right to 
exclusively process the charge, whichever is earliest. Where the FEP 
agency earlier terminates its proceedings or waives its right to 
exclusive processing of a charge, the charge shall be deemed to be filed 
with the Commission on the date the FEP agency terminated its 
proceedings or the FEP agency waived its right to exclusive processing 
of the charge. Such filing is timely if effected within 300 days from 
the date of the alleged violation.
    (b) Initial presentation of a charge to a FEP agency. (1) When a 
charge is initially presented to a FEP agency and the charging party 
requests that the charge be presented to the Commission, the charge will 
be deemed to be filed with the Commission upon expiration of 60 (or 
where appropriate, 120) days after a written and signed statement of 
facts upon which the charge is based was sent to the FEP agency by 
registered mail or was otherwise received by the FEP agency, or upon the 
termination of FEP agency proceedings, or upon waiver of the FEP 
agency's right to exclusively process the charge, whichever is earliest. 
Such filing is timely if effected within 300 days from the date of the 
alleged violation.
    (2) When a charge is initially presented to a FEP agency but the 
charging party does not request that the charge be presented to the 
Commission, the charging party may present the charge to the Commission 
as follows:
    (i) If the FEP agency has refused to accept a charge, a subsequent 
submission of the charge to the Commission will be processed as if it 
were an initial presentation in accordance with paragraph (a) of this 
section.
    (ii) If the FEP agency proceedings have terminated, the charge may 
be timely filed with the Commission within 30 days of receipt of notice 
that the FEP agency proceedings have been terminated or within 300 days 
from the date of the alleged violation, whichever is earlier.
    (iii) If the FEP agency proceedings have not been terminated, the 
charge may be presented to the Commission within 300 days from the date 
of the alleged violation. Once presented, such a charge will be deemed 
to be filed with the Commission upon expiration of 60 (or where 
appropriate, 120) days after a written and signed statement of facts 
upon which the charge is based was sent to the FEP agency by registered 
mail or was otherwise received by the FEP agency, or upon the 
termination of the FEP agency proceedings, or upon waiver of the FEP 
agency's right to exclusively process the charge, whichever is earliest. 
To be timely, however, such filing must be effected within 300 days from 
the date of the alleged violation.
    (c) Agreements with Fair Employment Practice agencies. Pursuant to 
section 705(g)(1) and section 706(b) of title VII, the Commission shall 
endeavor to enter into agreements with FEP agencies to establish 
effective and integrated resolution procedures. Such agreements may 
include, but need not be limited to, cooperative arrangements to provide 
for processing of certain charges by the Commission, rather

[[Page 161]]

than by the FEP agency during the period specified in section 706(c) and 
section 706(d) of title VII.
    (d) Preliminary relief. When a charge is filed with the Commission, 
the Commission may make a preliminary investigation and commence 
judicial action for immediate, temporary or preliminary relief pursuant 
to section 706(f)(2) of title VII.
    (e) Commissioner charges. A charge made by a member of the 
Commission shall be deemed filed upon receipt by the Commission office 
responsible for investigating the charge. The Commission will notify a 
FEP agency when an allegation of discrimination is made by a member of 
the Commission concerning an employment practice occurring within the 
jurisdiction of the FEP agency. The FEP agency will be entitled to 
process the charge exclusively for a period of not less than 60 days if 
the FEP agency makes a written request to the Commission within 10 days 
of receiving notice that the allegation has been filed. The 60-day 
period shall be extended to 120 days during the first year after the 
effective date of the qualifying State or local law.

[46 FR 43039, Aug. 26, 1981, as amended at 46 FR 48189, Oct. 1, 1981; 52 
FR 10224, Mar. 31, 1987; 52 FR 18354, May 15, 1987; 56 FR 9624, Mar. 7, 
1991; 74 FR 63982, Dec. 7, 2009; 85 FR 65217, Oct. 15, 2020]



Sec.  1601.14  Service of charge or notice of charge.

    (a) Within ten days after the filing of a charge in the appropriate 
Commission office, the Commission shall serve respondent the charge by 
digital transmission, by mail, or in person, except when it is 
determined that providing the charge would impede the law enforcement 
functions of the Commission. Where the charge is not provided, the 
respondent will be served with a notice of the charge within ten days 
after the filing of the charge. The notice shall include the date, place 
and circumstances of the alleged unlawful employment practice. Where 
appropriate, the notice may include the identity of the person or 
organization filing the charge.
    (b) District Directors, Field Directors, Area Directors, Local 
Directors, the Director of the Office of Field Programs, and the 
Director of Field Management Programs, or their designees, are hereby 
delegated the authority to issue the notice described in paragraph (a) 
of this section.

[44 FR 4669, Jan. 23, 1979, as amended at 47 FR 46275, Oct. 18, 1982; 49 
FR 13024, Apr. 2, 1984; 49 FR 13874, Apr. 9, 1984; 54 FR 32061, Aug. 4, 
1989; 71 FR 26828, May 9, 2006; 85 FR 65218, Oct. 15, 2020]

                        Investigation of a Charge



Sec.  1601.15  Investigative authority.

    (a) The investigation of a charge shall be made by the Commission, 
its investigators, or any other representative designated by the 
Commission. During the course of such investigation, the Commission may 
utilize the services of State and local agencies which are charged with 
the administration of fair employment practice laws or appropriate 
Federal agencies, and may utilize the information gathered by such 
authorities or agencies. As part of each investigation, the Commission 
will accept any statement of position or evidence with respect to the 
allegations of the charge which the person claiming to be aggrieved, the 
person making the charge on behalf of such person, if any, or the 
respondent wishes to submit.
    (b) As part of the Commission's investigation, the Commission may 
require the person claiming to be aggrieved to provide a statement which 
includes:
    (1) A statement of each specific harm that the person has suffered 
and the date on which each harm occurred;
    (2) For each harm, a statement specifying the act, policy or 
practice which is alleged to be unlawful;
    (3) For each act, policy, or practice alleged to have harmed the 
person claiming to be aggrieved, a statement of the facts which lead the 
person claiming to be aggrieved to believe that the act, policy or 
practice is discriminatory.
    (c) The Commission may require a fact-finding conference with the 
parties prior to a determination on a charge of discrimination. The 
conference is primarily an investigative forum intended to define the 
issues, to

[[Page 162]]

determine which elements are undisputed, to resolve those issues that 
can be resolved and to ascertain whether there is a basis for negotiated 
settlement of the charge.
    (d) The Commission's authority to investigate a charge is not 
limited to the procedures outlined in paragraphs (a), (b), and (c) of 
this section.



Sec.  1601.16  Access to and production of evidence; testimony of 
witnesses; procedure and authority.

    (a) To effectuate the purposes of title VII, the ADA, and GINA, any 
member of the Commission shall have the authority to sign and issue a 
subpoena requiring:
    (1) The attendance and testimony of witnesses;
    (2) The production of evidence including, but not limited to, books, 
records, correspondence, or documents, in the possession or under the 
control of the person subpoenaed; and
    (3) Access to evidence for the purposes of examination and the right 
to copy.

Any District Director, and the Director of the Office of Field Programs, 
or upon delegation, the Director of Field Management Programs, or any 
representatives designated by the Commission, may sign and issue a 
subpoena on behalf of the Commission. The subpoena shall state the name 
and address of its issuer, identify the person or evidence subpoenaed, 
the person to whom and the place, date, and the time at which it is 
returnable or the nature of the evidence to be examined or copied, and 
the date and time when access is requested. A subpoena shall be 
returnable to a duly authorized investigator or other representative of 
the Commission. Neither the person claiming to be aggrieved, the person 
filing a charge on behalf of such person nor the respondent shall have 
the right to demand that a subpoena be issued.
    (b)(1) Any person served with a district director-issued subpoena 
who intends not to comply shall petition the issuing director to seek 
its revocation or modification. Any person served with a Commissioner-
issued subpoena who intends not to comply shall petition the General 
Counsel to seek its revocation or modification. Petitions must be 
transmitted digitally or mailed to the issuing director at the address 
stated on the subpoena (or, if the subpoena was issued by a 
Commissioner, to the General Counsel) within five days (excluding 
Saturdays, Sundays, and Federal legal holidays) after service of the 
subpoena. Petitions to the General Counsel pertaining to subpoenas 
issued by a Commissioner may be transmitted digitally or mailed to 131 M 
Street NE, Washington, DC 20507 and a copy of the petition shall also be 
served upon the issuing Commissioner.
    (2) The petition shall separately identify each portion of the 
subpoena with which the petitioner does not intend to comply and shall 
state, with respect to each such portion, the basis for noncompliance 
with the subpoena. A copy of the subpoena shall be attached to the 
petition and shall be designated ``Attachment A.'' Within eight calendar 
days after receipt or as soon as practicable, the General Counsel or 
Director, as appropriate, shall either grant the petition to revoke or 
modify in its entirety or make a proposed determination on the petition, 
stating reasons, and submit the petition and proposed determination to 
the Commission for its review and final determination. A Commissioner 
who has issued a subpoena shall abstain from reviewing a petition 
concerning that subpoena. The Commission shall serve a copy of the final 
determination on the petitioner.
    (c) Upon the failure of any person to comply with a subpoena issued 
under this section, the Commission may utilize the procedures of section 
11(2) of the National Labor Relations Act, as amended, 29 U.S.C. 161(2), 
to compel enforcement of the subpoena.
    (d) If a person who is served with a subpoena does not comply with 
the subpoena and does not petition for its revocation or modification 
pursuant to paragraph (b) of this section, the General Counsel or his or 
her designee may institute proceedings to enforce the subpoena in 
accordance with the provisions of paragraph (c) of this section. 
Likewise, if a person who is served with a subpoena petitions for 
revocation or modification of the subpoena pursuant to paragraph (b), 
and the

[[Page 163]]

Commission issues a final determination upholding all or part of the 
subpoena, and the person does not comply with the subpoena, the General 
Counsel or his or her designee may institute proceedings to enforce the 
subpoena in accordance with paragraph (c) of this section.
    (e) Witnesses who are subpoenaed pursuant to Sec.  1601.16(a) shall 
be entitled to the same fees and mileage that are paid witnesses in the 
courts of the United States.

[43 FR 30798, July 18, 1978, as amended at 47 FR 46275, Oct. 18, 1982; 
51 FR 29098, Aug. 14, 1986; 54 FR 32061, Aug. 4, 1989; 55 FR 14245, Apr. 
17, 1990; 56 FR 9624, Mar. 7, 1991; 71 FR 26828, May 9, 2006; 74 FR 
3430, Jan. 21, 2009; 74 FR 63983, Dec. 7, 2009; 85 FR 65218, Oct. 15, 
2020]



Sec.  1601.17  Witnesses for public hearings.

    (a) To effectuate the purposes of title VII, the ADA, and GINA, any 
Commissioner, upon approval of the Commission, may demand in writing 
that a person appear at a stated time and place within the State in 
which such person resides, transacts business, or is served with the 
demand, for the purpose of testifying under oath before the Commission 
or its representative. If there be noncompliance with any such demand, 
the Commission may utilize the procedures of section 710 of title VII, 
the ADA, and GINA to compel such person to testify. A transcript of 
testimony may be made a part of the record of each investigation.
    (b) Witnesses who testify as provided in paragraph (a) of this 
section shall be entitled to the same fees and mileage that are paid 
witnesses in the courts of the United States.

[42 FR 55388, Oct. 14, 1977, as amended at 56 FR 9624, Mar. 7, 1991; 74 
FR 63983, Dec. 7, 2009]

                 Procedure Following Filing of a Charge



Sec.  1601.18  Dismissal: Procedure and authority.

    (a) Where a charge on its face, or as amplified by the statements of 
the person claiming to be aggrieved discloses, or where after 
investigation the Commission determines, that the charge and every 
portion thereof is not timely filed, or otherwise fails to state a claim 
under title VII, the ADA, or GINA, the Commission shall dismiss the 
charge. A charge which raises a claim exclusively under section 717 of 
title VII or the Rehabilitation Act shall not be taken and persons 
seeking to raise such claims shall be referred to the appropriate 
Federal agency.
    (b) Written notice of disposition, pursuant to this section, shall 
be issued to the person claiming to be aggrieved and to the person 
making the charge on behalf of such person, where applicable; in the 
case of a Commissioner charge, to all persons specified in Sec.  
1601.28(b)(3)(ii); and to the respondent. The dismissal shall include a 
notice of rights informing the person claiming to be aggrieved or the 
person on whose behalf a charge was filed of the right to sue in Federal 
district court within 90 days of receipt of the determination. 
Appropriate notices of right to sue shall be issued pursuant to Sec.  
1601.28.
    (c) The Commission hereby delegates authority to District Directors; 
the Director of the Office of Field Programs, or upon delegation, the 
Director of Field Management Programs, as appropriate, to dismiss 
charges, as limited by Sec.  1601.21(d). The Commission hereby delegates 
authority to Field Directors, Area Directors and Local Directors, or 
their designees, to dismiss charges pursuant to paragraphs (a), (b) and 
(c) of this section, as limited by Sec.  1601.21(d). The authority of 
the Commission to reconsider decisions and determinations as set forth 
in Sec.  1601.21 (b) and (d) shall be applicable to this section.

[42 FR 55388, Oct. 14, 1977, as amended at 48 FR 19165, Apr. 28, 1983; 
49 FR 13024, Apr. 2, 1984. Redesignated and amended at 52 FR 26957, July 
17, 1987; 54 FR 32061, Aug. 4, 1989; 55 FR 26684, June 29, 1990; 56 FR 
9624, 9625, Mar. 7, 1991; 71 FR 26828, May 9, 2006; 73 FR 3388, Jan. 18, 
2008; 74 FR 63982, Dec. 7, 2009; 85 FR 65218, Oct. 15, 2020]



Sec.  1601.19  No cause determinations: Procedure and authority.

    (a) Where the Commission completes its investigation of a charge and 
finds that there is not reasonable cause to believe that an unlawful 
employment practice has occurred or is occurring as to all issues 
addressed in the determination, the Commission shall issue a 
determination to all parties to the

[[Page 164]]

charge indicating the finding. This determination does not mean the 
claims in the charge have no merit. The Commission's determination shall 
be the final determination of the Commission, unless a final 
determination of no reasonable cause is vacated pursuant to Sec.  
1601.19(b). The determination shall inform the person claiming to be 
aggrieved or the person on whose behalf a charge was filed of the right 
to sue in Federal district court within 90 days of receipt of the 
determination. The Commission hereby delegates authority to the Director 
of the Office of Field Programs, or upon delegation to the Director of 
Field Management Programs, and District Directors or upon delegation to 
Field Directors, Area Directors, or Local Directors, or their designees, 
except in those cases involving issues currently designated by the 
Commission for priority review, to issue no cause determinations.
    (b) The Commission may on its own initiative reconsider a final 
determination of no reasonable cause and a director of the issuing 
office may, on his or her own initiative, reconsider a final 
determination of no reasonable cause. If the Commission or the director 
of the issuing office decides to reconsider a final no cause 
determination, a notice of intent to reconsider shall promptly issue to 
all parties to the charge. If such notice of intent to reconsider is 
issued within 90 days of receipt of the final no cause determination, 
and the person claiming to be aggrieved or the person on whose behalf a 
charge was filed has not filed suit and did not request and receive a 
notice of right to sue pursuant to Sec.  1601.28(a)(1) or (2), the 
notice of intent to reconsider shall vacate the determination and shall 
revoke the charging party's right to bring suit within 90 days. If the 
90-day suit period has expired, the charging party has filed suit, or 
the charging party has requested a notice of right to sue pursuant to 
Sec.  1601.28(a)(1) or (2), the notice of intent to reconsider shall 
vacate the determination but shall not revoke the charging party's right 
to sue within 90 days. After reconsideration, the Commission or a 
director of the issuing office shall issue a new determination. In those 
circumstances where the charging party's right to bring suit within 90 
days was revoked, the determination shall include notice that a new 90-
day suit period shall begin upon the charging party's receipt of the 
determination. Where a member of the Commission has filed a Commissioner 
charge, he or she shall abstain from making a determination in that 
case.

[85 FR 65218, Oct. 15, 2020]



Sec.  1601.20  Negotiated settlement.

    (a) Prior to the issuance of a determination as to reasonable cause 
the Commission may encourage the parties to settle the charge on terms 
that are mutually agreeable. District Directors, Field Directors, Area 
Directors, Local Directors, the Director of the Office of Field 
Programs, the Director of Field Management Programs, or their designees, 
shall have the authority to sign any settlement agreement which is 
agreeable to both parties. When the Commission agrees in any negotiated 
settlement not to process that charge further, the Commission's 
agreement shall be in consideration for the promises made by the other 
parties to the agreement. Such an agreement shall not affect the 
processing of any other charge, including, but not limited to, a 
Commissioner charge or a charge, the allegations of which are like or 
related to the individual allegations settled.
    (b) In the alternative, the Commission may facilitate a settlement 
between the person claiming to be aggrieved and the respondent by 
permitting withdrawal of the charge pursuant to Sec.  1601.10.

[44 FR 4669, Jan. 23, 1979, as amended at 47 FR 46275, Oct. 18, 1982; 49 
FR 13024, Apr. 2, 1984; 49 FR 13874, Apr. 9, 1984; 54 FR 32061, Aug. 4, 
1989; 71 FR 26828, May 9, 2006; 85 FR 65218, Oct. 15, 2020]



Sec.  1601.21  Reasonable cause determination: Procedure and authority.

    (a) After completing its investigation, where the Commission has not 
settled or dismissed a charge or made a no cause finding as to every 
allegation addressed in the determination under Sec.  1601.19, the 
Commission shall issue a determination that reasonable cause exists to 
believe that an unlawful employment practice has occurred or is 
occurring under title VII, the ADA, or

[[Page 165]]

GINA. A determination finding reasonable cause is based on, and limited 
to, evidence obtained by the Commission and does not reflect any 
judgment on the merits of allegations not addressed in the 
determination.
    (b) The Commission shall provide prompt notification of its 
determination under paragraph (a) of this section to the person claiming 
to be aggrieved, the person making the charge on behalf of such person, 
if any, and the respondent, or in the case of a Commissioner charge, the 
person named in the charge or identified by the Commission in the third 
party certificate, if any, and the respondent. The Commission may, 
however, on its own initiative reconsider its decision or the 
determination of any of its designated officers who have authority to 
issue Letters of Determination, except that the Commission will not 
reconsider determinations of reasonable cause previously issued against 
a government, governmental entity or political subdivision after a 
failure of conciliation as set forth in Sec.  1601.25.
    (1) In cases where the Commission decides to reconsider a dismissal 
or a determination finding reasonable cause to believe a charge is true, 
a notice of intent to reconsider will promptly issue. If such notice of 
intent to reconsider is issued within 90 days from receipt of a notice 
of right to sue and the charging party has not filed suit and did not 
receive a notice of right to sue pursuant to Sec.  1601.28(a)(1) or (2), 
the notice of intent to reconsider will vacate the dismissal or letter 
of determination and revoke the notice of right to sue. If the 90- day 
period has expired, the charging party has filed suit, or the charging 
party has requested a notice of right to sue pursuant to Sec.  
1601.28(a)(1) or (2), the notice of intent to reconsider will vacate the 
dismissal or letter of determination, but will not revoke the notice of 
right to sue. After reconsideration the Commission will issue a 
determination anew. In those circumstances where the notice of right to 
sue has been revoked, the Commission will, in accordance with Sec.  
1601.28, issue a notice of right to sue anew which will provide the 
charging party with 90 days within which to bring suit.
    (2) The Commission shall provide prompt notification of its intent 
to reconsider, which is effective upon issuance, and its final decision 
after reconsideration to the person claiming to be aggrieved, the person 
making the charge on behalf of such person, if any, and the respondent, 
or in the case of a Commissioner charge, the person named in the charge 
or identified by the Commissioner in the third-party certificate, if 
any, and the respondent.
    (c) Where a member of the Commission has filed a Commissioner 
charge, he or she shall abstain from making a determination in that 
case.
    (d) The Commission hereby delegates to District Directors, or upon 
delegation, Field Directors, Area Directors or Local Directors; and the 
Director of the Office of Field Programs, or upon delegation, the 
Director of Field Management Programs, the authority, except in those 
cases involving issues currently designated by the Commission for 
priority review, upon completion of an investigation, to make a 
determination finding reasonable cause, issue a cause letter of 
determination and serve the determination upon the parties. Each 
determination issued under this section is final when the letter of 
determination is issued. However, the Director of the Office of Field 
Programs, or upon delegation, the Director of Field Management Programs; 
each District Director; each Field Director; each Area Director and each 
Local Director, for the determinations issued by his or her office, may 
on his or her own initiative reconsider such determinations, except that 
such directors may not reconsider determinations of reasonable cause 
previously issued against a government, governmental agency or political 
subdivision after a failure of conciliation as set forth in Sec.  
1601.25.
    (1) In cases where the issuing Director decides to reconsider a 
dismissal or a determination finding reasonable cause to believe a 
charge is true, a notice of intent to reconsider will promptly issue. If 
such notice of intent to reconsider is issued within 90 days from 
receipt of a notice of right to sue and the charging party has not filed 
suit and did not request a notice of right to sue pursuant to Sec.  
1601.28(a)(1)

[[Page 166]]

or (2), the notice of intent to reconsider will vacate the dismissal or 
letter of determination and revoke the notice of right to sue. If the 
90-day period has expired, the charging party has filed suit, or the 
charging party has received a notice of right to sue pursuant to Sec.  
1601.28(a)(1) or (2), the notice of intent to reconsider will vacate the 
dismissal or letter of determination, but will not revoke the notice of 
right to sue. After reconsideration the issuing Director will issue a 
determination anew. In those circumstances where the notice of right to 
sue has been revoked, the issuing Director will, in accordance with 
Sec.  1601.28, issue a notice of right to sue anew which will provide 
the charging party with 90 days within which to bring suit.
    (2) When the issuing Director does reconsider, he or she shall 
provide prompt notification of his or her intent to reconsider, which is 
effective upon issuance, and final decision after reconsideration to the 
person claiming to be aggrieved, the person making the charge on behalf 
of such person, if any, and the respondent, or in the charge or 
identified by the Commissioner in the third party certificate, if any, 
and the respondent.
    (e) In making a determination as to whether reasonable cause exists, 
substantial weight shall be accorded final findings and orders made by 
designated FEP agencies to which the Commission defers charges pursuant 
to Sec.  1601.13. For the purposes of this section, the following 
definitions shall apply:
    (1) ``Final findings and orders'' shall mean:
    (i) The findings of fact and order incident thereto issued by a FEP 
agency on the merits of a charge; or
    (ii) The consent order or consent decree entered into by the FEP 
agency on the merits of a charge.

Provided, however, That no findings and order of a FEP agency shall be 
considered final for purposes of this section unless the FEP agency 
shall have served a copy of such findings and order upon the Commission 
and upon the person claiming to be aggrieved and shall have informed 
such person of his or her rights of appeal or to request 
reconsideration, or rehearing or similar rights; and the time for such 
appeal, reconsideration, or rehearing request shall have expired or the 
issues of such appeal, reconsideration or rehearing shall have been 
determined.
    (2) ``Substantial weight'' shall mean that such full and careful 
consideration shall be accorded to final findings and orders, as defined 
above, as is appropriate in light of the facts supporting them when they 
meet all of the prerequisites set forth below:
    (i) The proceedings were fair and regular; and
    (ii) The practices prohibited by the State or local law are 
comparable in scope to the practices prohibited by Federal law; and
    (iii) The final findings and order serve the interest of the 
effective enforcement of title VII, the ADA, or GINA: Provided, That 
giving substantial weight to final findings and orders of a FEP agency 
does not include according weight, for purposes of applying Federal law, 
to such Agency's conclusions of law.

[42 FR 55388, Oct. 14, 1977, as amended at 45 FR 73036, Nov. 4, 1980; 48 
FR 19165, Apr. 28, 1983; 49 FR 13024, Apr. 2, 1984; 51 FR 18778, May 22, 
1986; 52 FR 26959, July 17, 1987; 53 FR 3370, Feb. 7, 1988; 54 FR 32061, 
Aug. 4, 1989; 56 FR 9624, 9625, Mar. 7, 1991; 71 FR 26828, May 9, 2006; 
74 FR 63982, Dec. 7, 2009; 85 FR 65218, Oct. 15, 2020]



Sec.  1601.22  Confidentiality.

    Neither a charge, nor information obtained during the investigation 
of a charge of employment discrimination under title VII, the ADA, or 
GINA, nor information obtained from records required to be kept or 
reports required to be filed pursuant to title VII, the ADA, or GINA, 
shall be made matters of public information by the Commission prior to 
the institution of any proceeding under title VII, the ADA, or GINA 
involving such charge or information. This provision does not apply to 
such earlier disclosures to charging parties, or their attorneys, 
respondents or their attorneys, or witnesses where disclosure is deemed 
necessary for securing appropriate relief. This provision also does not 
apply to such earlier disclosures to representatives of interested 
Federal, State, and local authorities as may be appropriate or necessary

[[Page 167]]

to the carrying out of the Commission's function under title VII, the 
ADA, or GINA, nor to the publication of data derived from such 
information in a form which does not reveal the identity of charging 
parties, respondents, or persons supplying the information.

[42 FR 55388, Oct. 14, 1977, as amended at 56 FR 9624, 9625, Mar. 7, 
1991; 74 FR 63982, 63983, Dec. 7, 2009.]

           Procedure To Rectify Unlawful Employment Practices



Sec.  1601.23  Preliminary or temporary relief.

    (a) In the interest of the expeditious procedure required by section 
706(f)(2) of title VII, the Commission hereby delegates to the Director 
of the Office of Field Programs or upon delegation, the Director of 
Field Management Programs and each District Director the authority, upon 
the basis of a preliminary investigation, to make the initial 
determination on its behalf that prompt judicial action is necessary to 
carry out the purposes of the Act and recommend such action to the 
General Counsel. The Commission authorizes the General Counsel to 
institute an appropriate action on behalf of the Commission in such a 
case not involving a government, governmental agency, or political 
subdivision.
    (b) In a case involving a government, governmental agency, or 
political subdivision, any recommendation for preliminary or temporary 
relief shall be transmitted directly to the Attorney General by the 
Director of the Office of Field Programs or upon delegation, the 
Director of Field Management Programs or the District Director.
    (c) Nothing in this section shall be construed to prohibit private 
individuals from exercising their rights to seek temporary or 
preliminary relief on their own motion.

[42 FR 55388, Oct. 14, 1977, as amended at 47 FR 46275, Oct. 18, 1982; 
54 FR 32061, Aug. 4, 1989; 71 FR 26828, May 9, 2006]



Sec.  1601.24  Conciliation: Procedure and authority.

    (a) Where the Commission determines that there is reasonable cause 
to believe that an unlawful employment practice has occurred or is 
occurring, the Commission shall endeavor to eliminate such practice by 
informal methods of conference, conciliation and persuasion. In 
conciliating a case in which a determination of reasonable cause has 
been made, the Commission shall attempt to achieve a just resolution of 
all violations found and to obtain agreement that the respondent will 
eliminate the unlawful employment practice and provide appropriate 
affirmative relief. Where such conciliation attempts are successful, the 
terms of the conciliation agreement shall be reduced to writing and 
shall be signed by the Commission's designated representative and the 
parties. A copy of the signed agreement shall be sent to the respondent 
and the person claiming to be aggrieved. Where a charge has been filed 
on behalf of a person claiming to be aggrieved, the conciliation 
agreement may be signed by the person filing the charge or by the person 
on whose behalf the charge was filed.
    (b) District Directors; the Director of the Office of Field Programs 
or the Director of Field Management Programs; or their designees are 
hereby delegated authority to enter into informal conciliation efforts. 
District Directors or upon delegation, Field Directors, Area Directors, 
or Local Directors; the Director of the Office of Field Programs; or the 
Director of Field Management Programs are hereby delegated the authority 
to negotiate and sign conciliation agreements. When a suit brought by 
the Commission is in litigation, the General Counsel is hereby delegated 
the authority to negotiate and sign conciliation agreements where, 
pursuant to section 706(f)(1) of title VII, a court has stayed 
proceedings in the case pending further efforts of the Commission to 
obtain voluntary compliance.
    (c) Proof of compliance with title VII, the ADA, or GINA in 
accordance with the terms of the agreement shall be obtained by the 
Commission before the case is closed. In those instances in which a 
person claiming to be aggrieved or a member of the class claimed to be 
aggrieved by the practices alleged in the charge is not a party to such 
an agreement, the agreement shall not extinguish or in any

[[Page 168]]

way prejudice the rights of such person to proceed in court under 
section 706(f)(1) of title VII, the ADA, or GINA.
    (d) In any conciliation process pursuant to this section, after the 
respondent has agreed to engage in conciliation, the Commission will:
    (1) To the extent it has not already done so, provide the respondent 
with a written summary of the known facts and non-privileged information 
that the Commission relied on in its reasonable cause finding, including 
identifying known aggrieved individuals or known groups of aggrieved 
individuals for whom relief is being sought, unless the individual(s) 
has requested anonymity. In the event that it is anticipated that a 
claims process will be used subsequently to identify aggrieved 
individuals, to the extent it has not already done so, identify for 
respondent the criteria that will be used to identify victims from the 
pool of potential class members. In cases in which that information does 
not provide an accurate assessment of the size of the class, for 
example, in harassment or reasonable accommodation cases, the Commission 
shall provide more detail to respondent, such as the identities of the 
harassers or supervisors, if known, or a description of the testimony or 
facts we have gathered from identified class members during the 
investigation. The Commission will disclose the current class size and, 
if class size is expected to grow, an estimate of potential additional 
class members to the extent known;
    (2) To the extent it has not already done so, provide the respondent 
with a written summary of the Commission's legal basis for finding 
reasonable cause, including an explanation as to how the law was applied 
to the facts. In addition, the Commission may, but is not required to, 
provide a response to the defenses raised by respondent;
    (3) Provide the respondent with the basis for monetary or other 
relief, including the calculations underlying the initial conciliation 
proposal and an explanation thereof in writing. A written explanation is 
not required for subsequent offers and counteroffers;
    (4) If it has not already done so, and if there is a designation at 
the time of the conciliation, advise the respondent in writing that the 
Commission has designated the case as systemic, class, or pattern or 
practice as well as the basis for the designation; and
    (5) Provide the respondent at least 14 calendar days to respond to 
the Commission's initial conciliation proposal.
    (e) The Commission shall not disclose any information pursuant to 
paragraph (d) of this section where another federal law prohibits 
disclosure of that information or where the information is protected by 
privilege.
    (f) Any information the Commission provides pursuant to paragraph 
(d) of this section to the Respondent, except for information about 
another charging party or aggrieved individual, will also be provided to 
the charging party, upon request. Any information the Commission 
provides pursuant to paragraph (d) of this section about an aggrieved 
individual will also be provided to the aggrieved individual, upon 
request.

[42 FR 55388, Oct. 14, 1977, as amended at 48 FR 19165, Apr. 28, 1983; 
49 FR 13024, Apr. 2, 1984; 49 FR 13874, Apr. 9, 1984; 52 FR 26959, July 
17, 1987; 54 FR 32061, Aug. 4, 1989; 56 FR 9624, 9625, Mar. 7, 1991; 71 
FR 26828, May 9, 2006; 74 FR 63982, Dec. 7, 2009; 85 FR 65218, Oct. 15, 
2020, 86 FR 2985, Jan. 14, 2021]



Sec.  1601.25  Failure of conciliation; notice.

    Where the Commission is unable to obtain voluntary compliance as 
provided by title VII, the ADA, or GINA and it determines that further 
efforts to do so would be futile or nonproductive, it shall, through the 
appropriate District Director, the Director of the Office of Field 
Programs, or Director of Field Management Programs, or their designees, 
so notify the respondent in writing.

[42 FR 55388, Oct. 14, 1977, as amended at 47 FR 46275, Oct. 18, 1982; 
54 FR 32061, Aug. 4, 1989; 56 FR 9624, Mar. 7, 1991; 71 FR 26829, May 9, 
2006; 74 FR 63982, Dec. 7, 2009]



Sec.  1601.26  Confidentiality of endeavors.

    (a) Nothing that is said or done during and as part of the informal 
endeavors of the Commission to eliminate unlawful employment practices 
by informal methods of conference, conciliation, and persuasion may be 
made a matter of public information by the Commission, its officers or 
employees,

[[Page 169]]

or used as evidence in a subsequent proceeding without the written 
consent of the persons concerned. This provision does not apply to such 
disclosures to the representatives of Federal, State or local agencies 
as may be appropriate or necessary to the carrying out of the 
Commission's functions under title VII, the ADA, or GINA: Provided, 
however, That the Commission may refuse to make disclosures to any such 
agency which does not maintain the confidentiality of such endeavors in 
accord with this section or in any circumstances where the disclosures 
will not serve the purposes of the effective enforcement of title VII, 
the ADA, or GINA.
    (b) Factual information obtained by the Commission during such 
informal endeavors, if such information is otherwise obtainable by the 
Commission under section 709 of title VII, for disclosure purposes will 
be considered by the Commission as obtained during the investigatory 
process.

[42 FR 55388, Oct. 14, 1977, as amended at 56 FR 9625, Mar. 7, 1991; 74 
FR 63982, Dec. 7, 2009]

          Procedure Concerning the Institution of Civil Actions



Sec.  1601.27  Civil actions by the Commission.

    The Commission may bring a civil action against any respondent named 
in a charge not a government, governmental agency or political 
subdivision, after thirty (30) days from the date of the filing of a 
charge with the Commission unless a conciliation agreement acceptable to 
the Commission has been secured: Provided, however, That the Commission 
may seek preliminary or temporary relief pursuant to section 706(f)(2) 
of title VII, according to the procedures set forth in Sec.  1601.23 of 
this part, at any time.



Sec.  1601.28  Notice of right to sue: Procedure and authority.

    (a) Issuance of notice of right to sue upon request. (1) When a 
person claiming to be aggrieved requests, in writing, that a notice of 
right to sue be issued and the charge to which the request relates is 
filed against a respondent other than a government, governmental agency 
or political subdivision, the Commission shall promptly issue such 
notice as described in Sec.  1601.28(e) to all parties, at any time 
after the expiration of one hundred eighty (180) days from the date of 
filing of the charge with the Commission, or in the case of a 
Commissioner charge 180 days after the filing of the charge or 180 days 
after the expiration of any period of reference under section 706(d) of 
title VII as appropriate.
    (2) When a person claiming to be aggrieved requests, in writing, 
that a notice of right to sue be issued, and the charge to which the 
request relates is filed against a respondent other than a government, 
governmental agency or political subdivision, the Commission may issue 
such notice as described in Sec.  1601.28(e) with copies to all parties, 
at any time prior to the expiration of 180 days from the date of filing 
of the charge with the Commission; provided that the District Director, 
the Field Director, the Area Director, the Local Director, the Director 
of the Office of Field Programs or upon delegation, the Director of 
Field Management Programs has determined that it is probable that the 
Commission will be unable to complete its administrative processing of 
the charge within 180 days from the filing of the charge and has 
attached a written certificate to that effect.
    (3) Issuance of a notice of right to sue shall terminate further 
proceeding of any charge that is not a Commissioner charge unless the 
District Director; Field Director; Area Director; Local Director; 
Director of the Office of Field Programs or upon delegation, the 
Director of Field Management Programs; or the General Counsel, 
determines at that time or at a later time that it would effectuate the 
purpose of title VII, the ADA, or GINA to further process the charge. 
Issuance of a notice of right to sue shall not terminate the processing 
of a Commissioner charge.
    (4) The issuance of a notice of right to sue does not preclude the 
Commission from offering such assistance to a person issued such notice 
as the Commission deems necessary or appropriate.
    (b) Issuance of notice of right to sue following Commission 
disposition of charge. (1) Where the Commission has found

[[Page 170]]

reasonable cause to believe that title VII, the ADA, or GINA has been 
violated, has been unable to obtain voluntary compliance with title VII, 
the ADA, or GINA, and where the Commission has decided not to bring a 
civil action against the respondent, it will issue a notice of right to 
sue on the charge as described in Sec.  1601.28(e) to:
    (i) The person claiming to be aggrieved, or,
    (ii) In the case of a Commissioner charge, to any member of the 
class who is named in the charge, identified by the Commissioner in a 
third-party certificate, or otherwise identified by the Commission as a 
member of the class and provide a copy thereof to all parties.
    (2) Where the Commission has entered into a conciliation agreement 
to which the person claiming to be aggrieved is not a party, the 
Commission shall issue a notice of right to sue on the charge to the 
person claiming to be aggrieved.
    (3) Where the Commission has dismissed a charge pursuant to Sec.  
1601.18, it shall issue a notice of right to sue as described in Sec.  
1601.28(e) to:
    (i) The person claiming to be aggrieved, or,
    (ii) In the case of a Commissioner charge, to any member of the 
class who is named in the charge, identified by the Commissioner in a 
third-party certificate, or otherwise identified by the Commission as a 
member of the class, and provide a copy thereof to all parties.
    (4) The issuance of a notice of right to sue does not preclude the 
Commission from offering such assistance to a person issued such notice 
as the Commission deems necessary or appropriate.
    (c) The Commission hereby delegates authority to District Directors, 
Field Directors, Area Directors, Local Directors, the Director of the 
Office of Field Programs, or Director of Field Management Programs or 
their designees, to issue notices of right to sue, in accordance with 
this section, on behalf of the Commission. Where a charge has been filed 
on behalf of a person claiming to be aggrieved, the notice of right to 
sue shall be issued in the name of the person or organization who filed 
the charge.
    (d) Notices of right to sue for charges against Governmental 
respondents. In all cases where the respondent is a government, 
governmental agency, or a political subdivision, the Commission will 
issue the notice of right to sue when there has been a dismissal of a 
charge. The notice of right to sue will be issued in accordance with 
Sec.  1601.28(e). In all other cases where the respondent is a 
government, governmental agency, or political subdivision, the Attorney 
General will issue the notice of right to sue, including the following 
cases:
    (1) When there has been a finding of reasonable cause by the 
Commission, there has been a failure of conciliation, and the Attorney 
General has decided not to file a civil action; and
    (2) Where a charging party has requested a notice of right to sue 
pursuant to Sec.  1601.28(a)(1) or (2). In cases where a charge of 
discrimination results in a finding of cause in part and no cause in 
part, the case will be treated as a ``cause'' determination and will be 
referred to the Attorney General.
    (e) Content of notice of right to sue. The notice of right to sue 
shall include:
    (1) Authorization to the aggrieved person to bring a civil action 
under title VII, the ADA, or GINA pursuant to section 706(f)(1) of title 
VII, section 107 of the ADA, or section 207 of GINA within 90 days from 
receipt of such authorization;
    (2) Advice concerning the institution of such civil action by the 
person claiming to be aggrieved, where appropriate;
    (3) The charge;
    (4) The Commission's decision, determination, or dismissal, as 
appropriate.

[42 FR 55388, Oct. 14, 1977, as amended at 44 FR 4669, Jan. 23, 1979; 45 
FR 73037, Nov. 4, 1980; 47 FR 46275, Oct. 18, 1982; 48 FR 19165, Apr. 
28, 1983; 49 FR 13024, Apr. 2, 1984; 49 FR 13874, Apr. 9, 1984; 52 FR 
26959, July 17, 1987; 54 FR 32061, Aug. 4, 1989; 56 FR 9624, 9625, Mar. 
7, 1991; 71 FR 26829, May 9, 2006; 74 FR 63982, Dec. 7, 2009; 85 FR 
65218, Oct. 15, 2020]



Sec.  1601.29  Referral to the Attorney General.

    If the Commission is unable to obtain voluntary compliance in a 
charge involving a government, governmental agency or political 
subdivision, it shall

[[Page 171]]

inform the Attorney General of the appropriate facts in the case with 
recommendations for the institution of a civil action by him or her 
against such respondent or for intervention by him or her in a civil 
action previously instituted by the person claiming to be aggrieved.



  Subpart C_Notices to Employees, Applicants for Employment and Union 
                                 Members



Sec.  1601.30  Notices to be posted.

    (a) Every employer, employment agency, labor organization, and joint 
labor-management committee controlling an apprenticeship or other 
training program that has an obligation under title VII, the ADA, or 
GINA shall post and keep posted in conspicuous places upon its premises 
notices in an accessible format, to be prepared or approved by the 
Commission, describing the applicable provisions of title VII, the ADA, 
and GINA. Such notice must be posted in prominent and accessible places 
where notices to employees, applicants and members are customarily 
maintained.
    (b) Section 711(b) of Title VII and the Federal Civil Penalties 
Inflation Adjustment Act, as amended, make failure to comply with this 
section punishable by a fine of not more than $612 for each separate 
offense.

[42 FR 55388, Oct. 14, 1977, as amended at 55 FR 2518, Jan. 25, 1990; 56 
FR 9625, Mar. 7, 1991; 62 FR 26934, May 16, 1997; 74 FR 63982, 63983, 
Dec. 7, 2009; 79 FR 15221, Mar. 19, 2014; 81 FR 35270, June 2, 2016; 82 
FR 8813, Jan. 31, 2017; 83 FR 2537, Jan. 18, 2018; 84 FR 10411, Mar. 21, 
2019; 85 FR 15376, Mar. 18, 2020; 85 FR 65219, Oct. 15, 2020; 86 FR 
28264, May 26, 2021; 87 FR 10073, Feb. 23, 2022]



                     Subpart D_Construction of Rules



Sec.  1601.34  Rules to be liberally construed.

    These rules and regulations shall be liberally construed to 
effectuate the purpose and provisions of title VII, the ADA, and GINA.

[44 FR 4670, Jan. 23, 1979. Redesignated and amended at 56 FR 9624, 
9625, Mar. 7, 1991; 74 FR 63983, Dec. 7, 2009]



            Subpart E_Issuance, Amendment, or Repeal of Rules



Sec.  1601.35  Petitions.

    Any interested person may petition the Commission, in writing, for 
the issuance, amendment, or repeal of a rule or regulation. Such 
petition shall be filed with the Equal Employment Opportunity 
Commission, 131 M Street, NE., Washington DC 20507, and shall state the 
rule or regulation proposed to be issued, amended, or repealed, together 
with a statement of grounds in support of such petition.

[42 FR 55388, Oct. 14, 1977, as amended at 54 FR 32061, Aug. 4, 1989. 
Redesignated at 56 FR 9625, Mar. 7, 1991; 74 FR 3430, Jan. 21, 2009]



Sec.  1601.36  Action on petition.

    Upon the filing of such petition, the Commission shall consider the 
same and may thereupon either grant or deny the petition in whole or in 
part, conduct an appropriate proceeding thereon, or make other 
disposition of the petition. Should the petition be denied in whole or 
in part, prompt notice shall be given of the denial, accompanied by a 
simple statement of the grounds unless the denial be self-explanatory.

[42 FR 55388, Oct. 14, 1977. Redesignated at 56 FR 9625, Mar. 7, 1991]

Subpart F [Reserved]



               Subpart G_FEP Agency Designation Procedures



Sec.  1601.70  FEP agency qualifications.

    (a) State and local fair employment practice agencies or authorities 
which qualify under section 706(c) of title VII and this section shall 
be designated as ``FEP agencies.'' The qualifications for designation 
under section 706(c) are as follows:
    (1) That the state or political subdivision has a fair employment 
practice law which makes unlawful employment practices based upon race, 
color, religion, sex, national origin, disability, or genetic 
information; and
    (2) That the State or political subdivision has either established a 
State

[[Page 172]]

or local authority or authorized an existing State or local authority 
that is empowered with respect to employment practices found to be 
unlawful, to do one of three things: To grant relief from the practice; 
to seek relief from the practice; or to institute criminal proceedings 
with respect to the practice.
    (b) Any State or local agency or authority seeking FEP agency 
designation should submit a written request to the Chair of the 
Commission. However, if the Commission is aware that an agency or 
authority meets the above criteria for FEP agency designation, the 
Commission shall defer charges to such agency or authority even though 
no request for FEP agency designation has been made.
    (c) A request for FEP agency designation should include a copy of 
the agency's fair employment practices law and any rules, regulations 
and guidelines of general interpretation issued pursuant thereto. 
Submission of such data will allow the Commission to ascertain which 
employment practices are made unlawful and which bases are covered by 
the State or local entity. Agencies or authorities are requested, but 
not required, to provide the following helpful information:
    (1) A chart of the organization of the agency or authority 
responsible for administering and enforcing said law;
    (2) The amount of funds made available to or allocated by the agency 
or authority for fair employment purposes;
    (3) The identity and telephone number of the agency (authority) 
representative whom the Commission may contact with reference to any 
legal or other questions that may arise regarding designation;
    (4) A detailed statement as to how the agency or authority meets the 
qualifications of paragraph (a) (1) and (2) of Sec.  1601.70.
    (d) Where both State and local FEP agencies exist, the Commission 
reserves the right to defer to the State FEP agency only. However, where 
there exist agencies of concurrent jurisdiction, the Commission may 
defer to the FEP agency which would best serve the purposes of title 
VII, the ADA, or GINA, or to both.
    (e) The Chair or his or her designee, will provide to the Attorney 
General of the concerned State (and corporation counsel of a concerned 
local government, if appropriate) an opportunity to comment upon aspects 
of State or local law which might affect the qualifications of any new 
agency in that State otherwise cognizable under this section.

[45 FR 33606, May 20, 1980, as amended at 47 FR 53733, Nov. 29, 1982. 
Redesignated and amended at 56 FR 9625, Mar. 7, 1991; 60 FR 46220, Sept. 
6, 1995; 74 FR 63982, Dec. 7, 2009; 85 FR 65219, Oct. 15, 2020]



Sec.  1601.71  FEP agency notification.

    (a) When the Commission determines that an agency or authority meets 
the criteria outlined in section 706(c) of title VII and Sec.  1601.70, 
the Commission shall so notify the agency by letter and shall notify the 
public by publication in the Federal Register of an amendment to Sec.  
1601.74.
    (b) Where the Commission determines that an agency or authority does 
not come within the definition of a FEP agency for purposes of a 
particular basis of discrimination or where the agency or authority 
applies for designation as a Notice Agency, the Commission shall notify 
that agency or authority of the filing of charges for which the agency 
or authority is not a FEP agency. For such purposes that State or local 
agency will be deemed a Notice Agency.
    (c) Where the Chair becomes aware of events which lead him or her to 
believe that a deferral Agency no longer meets the requirements of a FEP 
agency and should no longer be considered a FEP agency, the Chair will 
so notify the affected agency and give it 15 days in which to respond to 
the preliminary findings. If the Chair deems necessary, he or she may 
convene a hearing for the purpose of clarifying the matter. The 
Commission shall render a final determination regarding continuation of 
the agency as a FEP agency.

[45 FR 33606, May 20, 1980, as amended at 47 FR 53733, Nov. 29, 1982. 
Redesignated at 56 FR 9625, Mar. 7, 1991; 60 FR 46220, Sept. 6, 1995; 85 
FR 65219, Oct. 15, 2020]

[[Page 173]]



Sec. Sec.  1601.72-1601.73  [Reserved]



Sec.  1601.74  Designated and notice agencies.

    The Commission has made the following designations \2\:
---------------------------------------------------------------------------

    \2\ State and local laws may change and that can affect the 
timeliness of a claim. It is advisable for individuals to contact the 
FEP agency to confirm coverage, or otherwise determine that the above 
designation reflects the current status of the agency under state and 
local law.
---------------------------------------------------------------------------

    (a) The designated FEP agencies are:

Alaska Commission for Human Rights
Alexandria (VA) Human Rights Office
Allentown (PA) Human Relations Commission
Anchorage (AK) Equal Rights Commission
Anderson (IN) Human Relations Commission
Arizona Civil Rights Division
Arlington County (VA) Human Rights Commission \3\
---------------------------------------------------------------------------

    \3\ The Arlington Human Rights Commission has been designated as a 
FEP agency for all charges except charges alleging a violation of title 
VII by a government, government agency, or political subdivision of the 
State of Virginia. For these types of charges it shall be deemed a 
``Notice agency'' pursuant to 29 CFR 1601.71(b).
---------------------------------------------------------------------------

Austin (TX) Human Relations Commission \4\
---------------------------------------------------------------------------

    \4\ The Austin (TX) Human Relations Commission has been designated 
as a FEP agency for all charges except charges alleging a violation of 
title VII by a government, government agency, or political subdivision 
of the State of Texas. For these types of charges it shall be deemed a 
``Notice Agency,'' pursuant to 29 CFR 1601.71(b).
---------------------------------------------------------------------------

Baltimore (MD) Community Relations Commission
Bloomington (IL) Human Relations Commission
Bloomington (IN) Human Rights Commission
Broward County (FL) Human Relations Commission
California Department of Fair Employment and Housing
Charleston (WV) Human Rights Commission
City of Salina (KS) Human Relations Commission and Department
City of Springfield (IL) Department of Community Relations
Clearwater (FL) Office of Community Relations
Colorado Civil Rights Commission
Colorado State Personnel Board \5\
---------------------------------------------------------------------------

    \5\ The Colorado State Personnel Board has been designated as a FEP 
agency for only those charges which relate to appointments, promotions, 
and other personnel actions that take place in the State personnel 
system. In addition, it has been designated as a FEP agency for all of 
the above mentioned charges except charges which allege a violation of 
section 704(a) of title VII. For this type of charge it shall be deemed 
a ``Notice Agency'' pursuant to 29 CFR 1601.71(b).
---------------------------------------------------------------------------

Commonwealth of Puerto Rico Department of Labor \6\
---------------------------------------------------------------------------

    \6\The Commonwealth of Puerto Rico Department of Labor has been 
designated as a FEP agency for all charges except charges alleging a 
``labor union'' has violated title VII; charges alleging an ``employment 
agency'' has violated title VII; and charges alleging violations of 
title VII by agencies or instrumentalities of the Government of Puerto 
Rico when they are not operating as private businesses or enterprises. 
For these types of charges it shall be deemed a ``Notice Agency,'' 
pursuant to 29 CFR 1601.71(b). With respect to charges alleging 
retaliation under section 704(a) of Title VII, the Commonwealth of 
Puerto Rico Department of Labor is a FEP agency for charges alleging 
retaliation for having opposed unlawful sexual harassment or 
participated in a statutory sexual harassment complaint proceeding and a 
``Notice Agency'' for all other charges alleging violation of section 
704(a) of Title VII.
---------------------------------------------------------------------------

Connecticut Commission on Human Rights and Opportunity
Corpus Christi (TX) Human Relations Commission
Dade County (FL) Fair Housing and Employment Commission
Delaware Department of Labor
District of Columbia Office of Human Rights
Durham (NC) Human Relations Commission
East Chicago (IN) Human Rights Commission
Evansville (IN) Human Relations Commission
Fairfax County (VA) Human Rights Commission
Florida Commission on Human Relations
Fort Dodge-Webster County (IA) Human Rights Commission
Fort Wayne (IN) Metropolitan Human Relations Commission
Fort Worth (TX) Human Relations Commission
Gary (IN) Human Relations Commission
Georgia Office of Fair Employment Practices \7\
---------------------------------------------------------------------------

    \7\ The Georgia Office of Fair Employment Practices has been 
designated as a FEP agency for all charges covering the employment 
practices of the departments of the State of Georgia only.
---------------------------------------------------------------------------

Hawaii Department of Labor and Industrial Relations \8\
---------------------------------------------------------------------------

    \8\ The Hawaii Department of Labor and Industrial Relations has been 
granted FEP agency designation of all charges except those filed against 
units of the State and local government, in which case it shall be 
deemed a ``Notice Agency.''

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

[[Page 174]]

Hillsborough County (FL) Equal Opportunity and Human Relations 
Department
Howard County (MD) Human Rights Commission \9\
---------------------------------------------------------------------------

    \9\ The Howard County (MD) Human Rights Commission has been granted 
designation of all charges except those filed against agencies of Howard 
County in which case it shall be deemed a ``Notice Agency.''
---------------------------------------------------------------------------

Huntington (WV) Human Relations Commission
Idaho Human Rights Commission
Illinois Department of Human Rights
Indiana Civil Rights Commission
Iowa Civil Rights Commission
Jacksonville (FL) Equal Employment Opportunity Commission
Kansas City (KS) Human Relations Department
Kansas City (MO) Human Relations Department
Kansas Human Rights Commission
Kentucky Commission on Human Rights
Lee County (FL) Department of Equal Opportunity
Lexington-Fayette (KY) Urban County Human Rights Commission
Lincoln (NE) Commission on Human Rights \10\
---------------------------------------------------------------------------

    \10\ The Lincoln (NE) Commission on Human Rights has been designated 
as a FEP agency for all charges except (1) a charge by an ``applicant 
for membership'' alleging a violation of section 703(c)(2) of title VII 
(2) a charge by an individual alleging that a ``joint labor-management 
committee'' has violated section 704(a) of title VII; and (3) a charge 
by an individual alleging that a ``joint labor-management committee'' 
has violated section 704(b) of title VII. For those types of charges, it 
shall be deemed a ``Notice Agency,'' pursuant to 29 CFR 1601.71(b).
---------------------------------------------------------------------------

Louisiana (LA) Commission on Human Rights
Louisville and Jefferson County (KY) Human Relations Commission
Madison (WI) Equal Opportunities Commission
Maine Human Rights Commission
Maryland Commission on Human Relations
Mason City (IA) Human Rights Commission
Massachusetts Commission Against Discrimination
Michigan City (IN) Human Rights Commission
Michigan Department of Civil Rights
Minneapolis (MN) Department of Civil Rights
Minnesota Department of Human Rights
Missouri Commission on Human Rights
Montana Human Rights Division
Montgomery County (MD) Human Relations Commission
Nebraska Equal Opportunity Commission
Nevada Commission on Equal Rights of Citizens
New Hampshire Commission for Human Rights
New Hanover (NC) Human Relations Commission \11\
---------------------------------------------------------------------------

    \11\ The New Hanover Human Relations Commission is being designated 
as a FEP agency for charges covering employment practices under section 
706(c) of title VII and CFR 1601.70 et seq. (1980) within New Hanover 
County and ``such cities within the county as may by resolution of their 
governing boards, permit the Ordinance of the Board of Commissioners of 
New Hanover County entitled `Prohibition of Discrimination in 
Employment' to be applicable within such cities.'' This covers 
Wilmington City and the unincorporated area of New Hanover County. At 
this time Wrightsville Beach, Carolina Beach and Kure Beach are not 
included in this designation. For charges from these latter locales the 
New Hanover Human Relations Commission shall be deemed a ``Notice 
Agency,'' pursuant to 29 CFR 1601.71(b).
---------------------------------------------------------------------------

New Haven (CT) Commission on Equal Opportunities
New Jersey Division of Civil Rights, Department of Law and Public Safety
New Mexico Human Rights Commission
New York City (NY) Commission on Human Rights
New York State Division on Human Rights
North Carolina State Office of Administrative Hearings
North Dakota Department of Labor
Ohio Civil Rights Commission
Oklahoma Human Rights Commission
Omaha (NE) Human Relations Department
Orange County (NC) Human Relations Commission
Oregon Bureau of Labor
Orlando (FL) Human Relations Department
Paducah (KY) Human Rights Commission
Palm Beach County (FL) Office of Equal Opportunity
Pennsylvania Human Relations Commission
Philadelphia (PA) Commission on Human Relations
Pinellas County (FL) Affirmative Action Office
Pittsburgh (PA) Commission on Human Rights
Prince George's County (MD) Human Relations Commission
Prince William County (VA) Human Rights Commission
Reading (PA) Human Relations Commission
Rhode Island Commission for Human Rights
Richmond County (GA) Human Rights Commission
Rockville (MD) Human Rights Commission
St. Louis (MO) Civil Rights Enforcement Agency

[[Page 175]]

St. Paul (MN) Department of Human Rights
St. Petersburg (FL) Human Relations Division \12\
---------------------------------------------------------------------------

    \12\ On June 1, 1979, the St. Petersburg Office of Human Relations 
was designated a FEP agency for all charges except those charges 
alleging retaliation under section 704(a) of title VII. Accordingly, 
``for retaliation charges'' it was deemed a ``Notice Agency,'' pursuant 
to 29 CFR 1601.71(c). See 44 FR 31638. On May 23, 1979, an ordinance 
amended the St. Petersburg, FL Human Relations law to include charges of 
retaliation. Therefore, retaliation charges will be deferred to that 
agency effective immediately.
---------------------------------------------------------------------------

Seattle (WA) Human Rights Commission
Sioux Falls (SD) Human Relations Commission
South Bend (IN) Human Rights Commission
South Carolina Human Affairs Commission
South Dakota Division of Human Rights
Springfield (OH) Human Relations Department
Tacoma (WA) Human Relations Commission
Tampa (FL) Office of Community Relations
Tennessee Commission for Human Development
Texas Commission on Human Rights
Topeka (KS) Human Relations Commission
Utah Industrial Commission, Anti-Discrimination Division
Vermont Attorney General's Office, Civil Rights Division
Vermont Human Rights Commission
Virgin Islands Department of Labor
Virginia Council on Human Rights
Washington Human Rights Commission
West Virginia Human Rights Commission
Wheeling (WV) Human Rights Commission
Wichita Falls (TX) Human Relations Commission
Wisconsin Equal Rights Division, Department of Industry, Labor and Human 
Relations
Wisconsin State Personnel Commission \13\
---------------------------------------------------------------------------

    \13\ The Wisconsin State Personnel Commission is being designated as 
a FEP agency for all charges covering the employment practices of the 
agencies of the State of Wisconsin except those charges alleging 
retaliation under 704(a) of title VII. Accordingly, for retaliation 
charges, it shall be deemed a Notice Agency pursuant to 29 CFR 
1601.71(b).
---------------------------------------------------------------------------

Wyoming Fair Employment Practices Commission
York (PA) Human Relations Commission
Youngstown (OH) Human Relations Commission

    (b) The designated Notice Agencies are:

Arkansas Governor's Committee on Human Resources
Ohio Director of Industrial Relations
Raleigh (NC) Human Resources Department, Civil Rights Unit

(Sec. 713(a) 78 Stat. 265 (42 U.S.C. 2000e--12(a)))

[46 FR 33030, June 26, 1981. Redesignated at 56 FR 9625, Mar. 7, 1991]

    Editorial Note: For Federal Register citations affecting Sec.  
1601.74, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.govinfo.gov.



Sec.  1601.75  Certification of designated FEP agencies.

    (a) The Commission may certify designated FEP agencies based upon 
the past, satisfactory performance of those agencies. The effect of such 
certification is that the Commission shall accept the findings and 
resolutions of designated FEP agencies in regard to cases processed 
under contracts with those agencies without individual, case-by-case 
substantial weight review by the Commission except as provided in 
Sec. Sec.  1601.76 and 1601.77 of this part.
    (b) Eligibility criteria for certification of a designated FEP 
agency are as follows:
    (1) That the State or local agency has been a designated FEP agency 
for 4 years;
    (2) That the State or local designated FEP agency's work product has 
been evaluated within the past 12 months by State, Local, and Tribal 
Programs, Office of Field Programs, and found to be in conformance with 
the Commission's Substantial Weight Review Procedures; and
    (3) That the State or local designated FEP agency's findings and 
resolutions pursuant to its contract with the Commission, as provided in 
section 709(b) of title VII, have been accepted by the Commission in at 
least 95% of the cases processed by the FEP agency in the past 12 
months.
    (c) Upon Commission approval of a designated FEP agency for 
certification, it shall notify the agency of its certification and shall 
effect such certification by issuance and publication of an amendment to 
Sec.  1601.80 of this part.

[46 FR 50367, Oct. 13, 1981, as amended at 54 FR 32061, Aug. 4, 1989. 
Redesignated and amended at 56 FR 9625, Mar. 7, 1991; 85 FR 65219, Oct. 
15, 2020]

[[Page 176]]



Sec.  1601.76  Right of party to request review.

    The Commission shall notify the parties whose cases are to be 
processed by the designated, certified FEP agency of their right, if 
aggrieved by the agency's final action, to request review by the 
Commission within 15 days of that action. The Commission, on receipt of 
a request for review, shall conduct such review in accord with the 
procedures set forth in the Substantial Weight Review Procedures.

[46 FR 50367, Oct. 13, 1981. Redesignated at 56 FR 9625, Mar. 7, 1991; 
85 FR 65219, Oct. 15, 2020]



Sec.  1601.77  Review by the Commission.

    After a designated FEP agency has been certified, the Commission 
shall accept the findings and resolutions of that agency as final in 
regard to all cases processed under contract with the Commission, as 
provided in section 709(b) of title VII, except that the Commission 
shall review charges closed by the certified FEP agency for lack of 
jurisdiction, as a result of unsuccessful conciliation, or where the 
charge involves an issue currently designated by the Commission for 
priority review.

[46 FR 50367, Oct. 13, 1981, as amended at 51 FR 18778, May 22, 1986. 
Redesignated at 56 FR 9625, Mar. 7, 1991]



Sec.  1601.78  Evaluation of designated FEP agencies certified by
the Commission.

    To assure that designated FEP agencies certified by the Commission, 
as provided in Sec.  1601.75 of this part, continue to maintain 
performance consistent with the Commission's Substantial Weight Review 
Procedures, the Commission shall provide for the evaluation of such 
agencies as follows:
    (a) Each designated FEP agency certified by the Commission shall be 
evaluated at least once every 3 years; and
    (b) Each designated FEP agency certified by the Commission shall be 
evaluated when, as a result of a substantial weight review requested as 
provided in Sec.  1601.76 of this part or required in regard to cases 
closed as a result of unsuccessful conciliation or for lack of 
jurisdiction as provided in Sec.  1601.77 of this part, the Commission 
rejects more than 5% of a designated FEP agency's findings at the end of 
the year or 20% or more of its findings for two consecutive quarters. 
When the Commission rejects 20% or more of a designated FEP agency's 
findings during any quarter, the Commission shall initiate an inquiry 
and may conduct an evaluation.
    (c) The Commission may, on its own motion, require an evaluation at 
any time.

[46 FR 50367, Oct. 13, 1981. Redesignated at 56 FR 9625, Mar. 7, 1991; 
85 FR 65219, Oct. 15, 2020]



Sec.  1601.79  Revocation of certification.

    Certification of a designated FEP agency is discretionary with the 
Commission and the Commission may, upon its own motion, withdraw such 
certification as a result of an evaluation conducted pursuant to Sec.  
1601.78 or for any reason which leads the Commission to believe that 
such certification no longer serves the interest of effective 
enforcement of title VII, the ADA, or GINA. The Commission will accept 
comments from any individual or organization concerning the efficacy of 
the certification of any designated FEP agency. The revocation shall be 
effected by the issuance and publication of an amendment to Sec.  
1601.80 of this part.

[46 FR 50367, Oct. 13, 1981. Redesignated and amended at 56 FR 9624, 
9625, Mar. 7, 1991; 74 FR 63982, Dec. 7, 2009]



Sec.  1601.80  Certified designated FEP agencies.

    The designated FEP agencies receiving certification by the 
Commission are as follows:

Alaska Commission for Human Rights
Alexandria (VA) Human Rights Office
Anchorage (AK) Equal Rights Commission
Arizona Civil Rights Division
Arlington County (VA) Human Rights Commission
Austin Human Relations Commission
Baltimore (MD) Community Relations Commission
Broward County (FL) Human Relations Commission
California Department of Fair Employment and Housing
City of Tampa Office of Human Rights
Clearwater (FL) Office of Community Relations

[[Page 177]]

Colorado Civil Rights Division
Connecticut Commission on Human Rights and Opportunity
Corpus Christi (TX) Human Relations Commission
Dade County (FL) Fair Housing and Employment Commission
Delaware Department of Labor
District of Columbia Office of Human Rights
East Chicago (IN) Human Rights Commission
Fairfax County (VA) Human Rights Commission
Florida Commission on Human Rights
Fort Wayne (IN) Metropolitan Human Relations Commission
Fort Worth (TX) Human Relations Commission
Gary (IN) Human Relations Commission
Georgia Commission on Equal Opportunity
Hawaii Department of Labor and Industrial Relations
Howard County (MD) Office of Human Rights
Idaho Human Rights Commission
Illinois Department of Human Rights
Indiana Civil Rights Commission
Iowa Civil Rights Commission
Jacksonville (FL) Equal Employment Opportunity Commission
Kansas Commission on Civil Rights
Lee County Office of Equal Opportunity
Lexington-Fayette (KY) Urban County Human Rights Commission
Louisville and Jefferson County Human Relations Commission
Madison Equal Opportunity Commission
Maine Human Rights Commission
Maryland Commission on Human Relations
Massachusetts Commission Against Discrimination
Michigan Department of Civil Rights
Minneapolis (MN) Department of Civil Rights
Minnesota Department of Human Rights
Missouri Commission on Civil Rights
Montana Human Rights Division
Nebraska Equal Opportunity Commission
Nevada Commission on Equal Rights of Citizens
New Hampshire Commission for Human Rights
New Hanover Human Relations Commission
New Jersey Division on Civil Rights
New Mexico Human Rights Commission
New York City (NY) Commission on Human Rights
New York State Division on Human Rights
North Carolina Civil Rights Division, Office of Administrative Hearings
North Dakota Department of Labor
Ohio Civil Rights Commission
Oklahoma Human Rights Commission
Omaha (NE) Human Relations Department
Oregon Bureau of Labor
Orlando (FL) Human Relations Department
Palm Beach County Office of Equal Opportunity
Pennsylvania Human Relations Commission
Philadelphia Commission on Human Relations
Pittsburgh Commission on Human Relations
Puerto Rico Department of Labor and Human Resources
Rhode Island Commission for Human Rights
St. Louis (MO) Civil Rights Enforcement Agency
St. Paul Department of Human Rights
St. Petersburg (FL) Human Relations Department
Seattle (WA) Human Rights Commission
South Bend (IN) Human Rights Commission
South Carolina Human Affairs Commission
South Dakota Division of Human Rights
Tacoma (WA) Human Relations Division
Tennessee Human Rights Commission
Texas Commission on Human Rights
Utah Industrial Commission, Anti-Discrimination Division
Vermont Attorney General's Office, Civil Rights Division
Virgin Islands Department of Labor
Washington Human Rights Commission
West Virginia Human Rights Commission
Wisconsin Equal Rights Division, Department of Industry, Labor and Human 
Relations
Wyoming Fair Employment Practices Commission

(42 U.S.C. 2000e--12(a))

[46 FR 50367, Oct. 13, 1981. Redesignated at 56 FR 9625, Mar. 7, 1991]

    Editorial Note: For Federal Register citations affecting Sec.  
1601.80, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.govinfo.gov.



   Subpart H_Title VII Interpretations and Opinions by the Commission



Sec.  1601.91  Request for title VII interpretation or opinion.

    Any interested person desiring a written title VII interpretation or 
opinion from the Commission may make such a request. However, issuance 
of title VII interpretations or opinions is discretionary.

[56 FR 9625, Mar. 7, 1991]



Sec.  1601.92  Contents of request; where to file.

    A request for an ``opinion letter'' shall be in writing, signed by 
the person making the request, addressed to the Chair, Equal Employment 
Opportunity Commission, 131 M Street, NE., Washington, DC 20507 and 
shall contain:

[[Page 178]]

    (a) The names and addresses of the person making the request and of 
other interested persons.
    (b) A statement of all known relevant facts.
    (c) A statement of reasons why the title VII interpretation or 
opinion should be issued.

[42 FR 55388, Oct. 14, 1977. Redesignated and amended at 56 FR 9625, 
Mar. 7, 1991; 74 FR 3430, Jan. 21, 2009; 85 FR 65219, Oct. 15, 2020]



Sec.  1601.93  Opinions--title VII.

    Only the following may be relied upon as a ``written interpretation 
or opinion of the Commission'' within the meaning of section 713 of 
title VII:
    (a) A letter entitled ``opinion letter'' and signed by the Legal 
Counsel on behalf of and as approved by the Commission, or, if issued in 
the conduct of litigation, by the General Counsel on behalf of and as 
approved by the Commission, or
    (b) Matter published and specifically designated as such in the 
Federal Register, including the Commission's Guidelines on Affirmative 
Action, or
    (c) A Commission determination of no reasonable cause, issued, under 
the circumstances described in Sec.  1608.10 (a) or (b) of the 
Commission's Guidelines on Affirmative Action, 29 CFR part 1608, when 
such determination contains a statement that it is a ``written 
interpretation or opinion of the Commission.''

[49 FR 31411, Aug. 7, 1984. Redesignated at 56 FR 9626, Mar. 7, 1991]



PART 1602_RECORDKEEPING AND REPORTING REQUIREMENTS UNDER TITLE VII, 
THE ADA AND GINA--Table of Contents



                            Subpart A_General

Sec.
1602.1 Purpose and scope.
1602.2-1602.6 [Reserved]

                  Subpart B_Employer Information Report

1602.7 Requirement for filing of report.
1602.8 Penalty for making of willfully false statements on report.
1602.9 Commission's remedy for employer's failure to file report.
1602.10 Employer's exemption from reporting requirements.
1602.11 Additional reporting requirements.

                  Subpart C_Recordkeeping by Employers

1602.12 Records to be made or kept.
1602.13 Records as to racial or ethnic identity of employees.
1602.14 Preservation of records made or kept.

               Subpart D_Apprenticeship Information Report

1602.15 Requirement for filing and preserving copy of report.
1602.16 Penalty for making of willfully false statements on report.
1602.17 Commission's remedy for failure to file report.
1602.18 Exemption from reporting requirements.
1602.19 Additional reporting requirements.

                 Subpart E_Apprenticeship Recordkeeping

1602.20 Records to be made or kept.
1602.21 Preservation of records made or kept.

        Subpart F_Local Union Equal Employment Opportunity Report

1602.22 Requirements for filing and preserving copy of report.
1602.23 Penalty for making of willfully false statements on reports.
1602.24 Commission's remedy for failure to file report.
1602.25 Exemption from reporting requirements.
1602.26 Additional reporting requirements.

             Subpart G_Recordkeeping by Labor Organizations

1602.27 Records to be made or kept.
1602.28 Preservation of records made or kept.

 Subpart H_Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex

1602.29 Applicability of State or local law.

           Subpart I_State and Local Governments Recordkeeping

1602.30 Records to be made or kept.
1602.31 Preservation of records made or kept.

         Subpart J_State and Local Government Information Report

1602.32 Requirement for filing and preserving copy of report.
1602.33 Penalty for making of willfully false statements on report.

[[Page 179]]

1602.34 Commission's remedy for political jurisdiction's failure to file 
          report.
1602.35 Political jurisdiction's exemption from reporting requirements.
1602.36 Schools exemption.
1602.37 Additional reporting requirements.

 Subpart K_Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex

1602.38 Applicability of State or local law.

   Subpart L_Elementary and Secondary School Systems, Districts, and 
                    Individual Schools Recordkeeping

1602.39 Records to be made or kept.
1602.40 Preservation of records made or kept.

         Subpart M_Elementary-Secondary Staff Information Report

1602.41 Requirement for filing and preserving copy of report.
1602.42 Penalty for making of willfully false statements on report.
1602.43 Commission's remedy for school systems' or districts' failure to 
          file report.
1602.44 School systems' or districts' exemption from reporting 
          requirements.
1602.45 Additional reporting requirements.

 Subpart N_Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex

1602.46 Applicability of State or local law.

      Subpart O_Recordkeeping for Institutions of Higher Education

1602.47 Definition.
1602.48 Records to be made or kept.
1602.49 Preservation of records made or kept.

        Subpart P_Higher Education Staff Information Report EEO	6

1602.50 Requirement for filing and preserving copy of report.
1602.51 Penalty for making of willfully false statements on report.
1602.52 Commission's remedy for failure to file.
1602.53 Exemption from reporting requirements.
1602.54 Additional reporting requirements.

 Subpart Q_Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex

1602.55 Applicability of State or local law.

    Subpart R_Investigation of Reporting or Recordkeeping Violations

1602.56 Investigation of reporting or recordkeeping violations.

    Authority: 42 U.S.C. 2000e-8, 2000e-12; 44 U.S.C. 3501 et seq.; 42 
U.S.C. 12117; 42 U.S.C. 2000ff-6.



                            Subpart A_General



Sec.  1602.1  Purpose and scope.

    Section 709 of title VII (42 U.S.C. 2000e), section 107 of the 
Americans with Disabilities Act (ADA) (42 U.S.C. 12117), and section 
207(a) of the Genetic Information Nondiscrimination Act (GINA) (42 
U.S.C. 2000ff-6) require the Commission to establish regulations 
pursuant to which employers, labor organizations, joint labor-management 
committees, and employment agencies subject to those Acts shall make and 
preserve certain records and shall furnish specified information to aid 
in the administration and enforcement of the Acts.

[74 FR 63983, Dec. 7, 2009]



Sec. Sec.  1602.2-1602.6  [Reserved]



                  Subpart B_Employer Information Report



Sec.  1602.7  Requirement for filing of report.

    On or before September 30 of each year, every employer that is 
subject to title VII of the Civil Rights Act of 1964, as amended, and 
that has 100 or more employees shall file with the Commission or its 
delegate executed copies of Standard Form 100, as revised (otherwise 
known as ``Employer Information Report EEO-1'') in conformity with the 
directions set forth in the form and accompanying instructions. 
Notwithstanding the provisions of Sec.  1602.14, every such employer 
shall retain at all times at each reporting unit, or at company or 
divisional headquarters, a copy of the most recent report filed for each 
such unit and shall make the same available if requested by an officer, 
agent, or employee of the Commission under the authority of section 710 
of title VII. Appropriate copies of Standard Form 100 in blank will be 
supplied to every employer known to

[[Page 180]]

the Commission to be subject to the reporting requirements, but it is 
the responsibility of all such employers to obtain necessary supplies of 
the form from the Commission or its delegate prior to the filing date.

[37 FR 9219, May 6, 1972, as amended at 56 FR 35755, July 26, 1991]



Sec.  1602.8  Penalty for making of willfully false statements on report.

    The making of willfully false statements on Report EEO-1 is a 
violation of the United States Code, title 18, section 1001, and is 
punishable by fine or imprisonment as set forth therein.

[31 FR 2833, Feb. 17, 1966]



Sec.  1602.9  Commission's remedy for employer's failure to file report.

    Any employer failing or refusing to file Report EEO-1 when required 
to do so may be compelled to file by order of a U.S. District Court, 
upon application of the Commission.

[31 FR 2833, Feb. 17, 1966]



Sec.  1602.10  Employer's exemption from reporting requirements.

    If an employer claims that the preparation or filing of the report 
would create undue hardship, the employer may apply to the Commission 
for an exemption from the requirements set forth in this part, according 
to instruction 5. If an employer is engaged in activities for which the 
reporting unit criteria described in section 5 of the instructions are 
not readily adaptable, special reporting procedures may be required. If 
an employer seeks to change the date for filing its Standard Form 100 or 
seeks to change the period for which data are reported, an alternative 
reporting date or period may be permitted. In such instances, the 
employer should so advise the Commission by submitting to the Commission 
or its delegate a specific written proposal for an alternative reporting 
system prior to the date on which the report is due.

[56 FR 35755, July 26, 1991]



Sec.  1602.11  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as the Employer Information Report EEO-1, about the 
employment practices of individual employers or groups of employers 
whenever, in its judgment, special or supplemental reports are necessary 
to accomplish the purposes of title VII, the ADA, or GINA. Any system 
for the requirement of such reports will be established in accordance 
with the procedures referred to in section 709(c) of title VII, section 
107 of the ADA, or section 207(a) of GINA and as otherwise prescribed by 
law.

[31 FR 2833, Feb. 17, 1966, as amended at 56 FR 35755, July 26, 1991; 74 
FR 63983, Dec. 7, 2009]



                  Subpart C_Recordkeeping by Employers



Sec.  1602.12  Records to be made or kept.

    The Commission has not adopted any requirement, generally applicable 
to employers, that records be made or kept. It reserves the right to 
impose recordkeeping requirements upon individual employers or groups of 
employers subject to its jurisdiction whenever, in its judgment, such 
records (a) are necessary for the effective operation of the EEO-1 
reporting system or of any special or supplemental reporting system as 
described above; or (b) are further required to accomplish the purposes 
of title VII, the ADA, or GINA. Such record-keeping requirements will be 
adopted in accordance with the procedures referred to in section 709(c) 
of title VII, section 107 of the ADA, or section 207(a) of GINA, and 
otherwise prescribed by law.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[31 FR 2833, Feb. 17, 1966, as amended at 46 FR 63268, Dec. 31, 1981; 56 
FR 35755, July 26, 1991; 74 FR 63983, Dec. 7, 2009]



Sec.  1602.13  Records as to racial or ethnic identity of employees.

    Employers may acquire the information necessary for completion of 
items 5 and 6 of Report EEO-1 either by visual surveys of the work 
force, or at their option, by the maintenance of post-employment records 
as to the identity of employees where the same is permitted by State 
law. In the latter

[[Page 181]]

case, however, the Commission recommends the maintenance of a permanent 
record as to the racial or ethnic identity of an individual for purpose 
of completing the report form only where the employer keeps such records 
separately from the employee's basic personnel form or other records 
available to those responsible for personnel decisions, e.g., as part of 
an automatic data processing system in the payroll department.

[31 FR 2833, Feb. 17, 1966]



Sec.  1602.14  Preservation of records made or kept.

    Any personnel or employment record made or kept by an employer 
(including but not necessarily limited to requests for reasonable 
accommodation, application forms submitted by applicants and other 
records having to do with hiring, promotion, demotion, transfer, lay-off 
or termination, rates of pay or other terms of compensation, and 
selection for training or apprenticeship) shall be preserved by the 
employer for a period of one year from the date of the making of the 
record or the personnel action involved, whichever occurs later. In the 
case of involuntary termination of an employee, the personnel records of 
the individual terminated shall be kept for a period of one year from 
the date of termination. Where a charge of discrimination has been 
filed, or an action brought by the Commission or the Attorney General, 
against an employer under title VII, the ADA, or GINA, the respondent 
employer shall preserve all personnel records relevant to the charge or 
action until final disposition of the charge or the action. The term 
``personnel records relevant to the charge,'' for example, would include 
personnel or employment records relating to the aggrieved person and to 
all other employees holding positions similar to that held or sought by 
the aggrieved person and application forms or test papers completed by 
an unsuccessful applicant and by all other candidates for the same 
position as that for which the aggrieved person applied and was 
rejected. The date of final disposition of the charge or the action 
means the date of expiration of the statutory period within which the 
aggrieved person may bring an action in a U.S. District Court or, where 
an action is brought against an employer either by the aggrieved person, 
the Commission, or by the Attorney General, the date on which such 
litigation is terminated.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[37 FR 9219, May 6, 1972, as amended at 46 FR 63268, Dec. 31, 1981; 56 
FR 35755, July 26, 1991; 77 FR 5398, Feb. 3, 2012]



               Subpart D_Apprenticeship Information Report



Sec.  1602.15  Requirement for filing and preserving copy of report.

    On or before September 30, 1967, and annually thereafter, certain 
joint labor-management committees subject to title VII of the Civil 
Rights Act of 1964 which control apprenticeship programs shall file with 
the Commission, or its delegate, executed copies of Apprenticeship 
Information Report EEO-2 in conformity with the directions set forth in 
the form and accompanying instructions. The committees covered by this 
regulation are those which (a) have five or more apprentices enrolled in 
the program at any time during August and September of the reporting 
year, and (b) represent at least one employer sponsor and at least one 
labor organization sponsor which are themselves subject to title VII. 
Every such committee shall retain at all times among the records 
maintained in the ordinary course of its affairs a copy of the most 
recent report filed, and shall make the same available if requested by 
an officer, agent, or employee of the Commission under the authority of 
section 710 of title VII. It is the responsibility of all such 
committees to obtain from the Commission or its delegate necessary 
supplies of the form.

[37 FR 9220, May 6, 1972]



Sec.  1602.16  Penalty for making of willfully false statements on report.

    The making of willfully false statements on Report EEO-2 is a 
violation of the U.S. Code, title 18, section 1001, and is punishable by 
fine or imprisonment as set forth therein.

[32 FR 10650, July 20, 1967]

[[Page 182]]



Sec.  1602.17  Commission's remedy for failure to file report.

    Any person failing or refusing to file Report EEO-2 when required to 
do so may be compelled to file by order of a U.S. District Court, upon 
application of the Commission, under authority of section 709(c) of 
title VII.

[37 FR 9220, May 6, 1972]



Sec.  1602.18  Exemption from reporting requirements.

    If it is claimed that the preparation or filing of Report EEO-2 
would create undue hardship, the committee may apply to the Commission 
for an exemption from the requirements set forth in this part.

[32 FR 10650, July 20, 1967]



Sec.  1602.19  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as Report EEO-2, about apprenticeship procedures of 
joint labor-management committees, employers, and labor organizations 
whenever, in its judgment, special or supplemental reports are necessary 
to accomplish the purpose of title VII, the ADA, or GINA. Any system for 
the requirement of such reports will be established in accordance with 
the procedures referred to in section 709(c) of title VII, section 107 
of the ADA, or section 207(a) of GINA and as otherwise prescribed by 
law.

[32 FR 10650, July 20, 1967, as amended at 56 FR 35755, July 26, 1991; 
74 FR 63983, Dec. 7, 2009]



                 Subpart E_Apprenticeship Recordkeeping



Sec.  1602.20  Records to be made or kept.

    (a) Every person required to file Report EEO-2 shall make or keep 
such records as are necessary for its completion under the conditions 
and circumstances set forth in the instructions accompanying the report, 
which are specifically incorporated herein by reference and have the 
same force and effect as other sections of this part.
    (b) Every employer, labor organization, and joint labor-management 
committee subject to title VII which controls an apprenticeship program 
(regardless of any joint or individual obligation to file a report) 
shall beginning August 1, 1967, maintain a list in chronological order 
containing the names and addresses of all persons who have applied to 
participate in the apprenticeship program, including the dates on which 
such applications were received. (See section 709(c), title VII, Civil 
Rights Act of 1964.) Such list shall, contain a notation of the sex of 
the applicant and of the applicant's identification as ``White,'' 
``Black,'' ``Hispanic,'' ``Asian or Pacific Islander'' or ``American 
Indian or Alaskan Native.'' The methods of making such identification 
are set forth in the instruction accompanying Report EEO-2. The words 
``applied,'' ``applicant'' and ``application'' as used in this section 
refer to situations involving actual applications only. An applicant is 
considered to be a person who files a formal application, or in some 
informal way indicates a specific intention to be considered for 
admission to the apprenticeship program. A person who casually appears 
to make an informal inquiry about the program, or about apprenticeship 
in general, is not considered to be an applicant. The term 
``apprenticeship program'' as used herein refers to programs described 
in the instructions accompanying Report EEO-2.
    (c) In lieu of maintaining the chronological list referred to in 
Sec.  1602.20 (b), persons required to compile the list may maintain on 
file written applications for participation in the apprenticeship 
program, provided that the application form contains a notation of the 
date the form was received, the address of the applicant, and a notation 
of the sex, and the race, color, or national origin of the applicant as 
described above.

[32 FR 10650, July 20, 1967, as amended at 33 FR 282, Jan. 9, 1968; 42 
FR 33557, Aug. 10, 1977]



Sec.  1602.21  Preservation of records made or kept.

    (a) Notwithstanding the provisions of section 1602.14, every person 
subject to Sec.  1602.20 (b) or (c) shall preserve the list of 
applicants or application forms, as the case may be, for a period of 2 
years

[[Page 183]]

from the date the application was received, except that in those 
instances where an annual report is required by the Commission calling 
for statistics as to the sex, and the race, color, or national origin of 
apprentices, the person required to file the report shall preserve the 
list and forms for a period of 2 years or the period of a successful 
applicant's apprenticeship, whichever is longer. Persons required to 
file Report EEO-2, or other reports calling for information about the 
operation of an apprenticeship program similar to that required on 
Report EEO-2, shall preserve any other record made solely for the 
purpose of completing such reports for a period of 1 year from the due 
date thereof.
    (b) Other records: Except to the extent inconsistent with the law or 
regulation of any State or local fair employment practices agency, or of 
any other Federal or State agency involved in the enforcement of an 
antidiscrimination program in apprenticeship, other records relating to 
apprenticeship made or kept by a person required to file Report EEO-2, 
including but not necessarily limited to requests for reasonable 
accommodation, test papers completed by applicants for apprenticeship 
and records of interviews with applicants, shall be kept for a period of 
2 years from the date of the making of the record. Where a charge of 
discrimination has been filed, or an action brought by the Attorney 
General under title VII, the ADA, or GINA the respondent shall preserve 
all records relevant to the charge or action until final disposion of 
the charge or the action. The term ``records relevant to the charge,'' 
for example, would include applications, forms or test papers completed 
by an unsuccessful applicant and by all other candidates for the same 
position as that for which the charging party applied and was rejected. 
The date of ``final disposition of the charge or the action'' means the 
date of expiration of the statutory period within which a charging party 
may bring an action in a U.S. District Court or, where an action is 
brought either by a charging party or by the Attorney General, the date 
on which such litigation is terminated.

[32 FR 10660, July 20, 1967, as amended at 56 FR 35755, July 26, 1991; 
77 FR 5398, Feb. 3, 2012]



        Subpart F_Local Union Equal Employment Opportunity Report



Sec.  1602.22  Requirements for filing and preserving copy of report.

    On or before December 31, 1986, and biennially thereafter, every 
labor organization subject to title VII of the Civil Rights Act of 1964, 
as amended, shall file with the Commission or its delegate an executed 
copy of Local Union Report EEO-3 in conformity with the directions set 
forth in the form and accompanying instructions, provided that the labor 
organization has 100 or more members at any time during the 12 months 
preceding the due date of the report, and is a ``local union'' (as that 
term is commonly understood) or an independent or unaffiliated union. 
Labor organizations required to report are those which perform, in a 
specific jurisdiction, the functions ordinarily performed by a local 
union, whether or not they are so designated. Every local union or a 
labor organization acting in its behalf, shall retain at all times among 
the records maintained in the ordinary course of its affairs a copy of 
the most recent report filed, and shall make the same available if 
requested by an officer, agent, or employee of the Commission under the 
authority of section 709 of title VII. It is the responsibility of all 
persons required to file to obtain from the Commission or its delegate 
necessary supplies of the form.

(Approved by the Office of Management and Budget under control number 
3046-0006)

[51 FR 11018, Apr. 1, 1986]



Sec.  1602.23  Penalty for making of willfully false statements on reports.

    The making of willfully false statements on Report EEO-3 is a 
violation of the United States Code, title 18, section 1001, and is 
punishable by fine or imprisonment as set forth herein.

[32 FR 10651, July 20, 1967]

[[Page 184]]



Sec.  1602.24  Commission's remedy for failure to file report.

    Any person failing or refusing to file Report EEO-3 when required to 
do so may be compelled to file by order of a U.S. District Court, upon 
application of the Commission, under authority of section 709(c) of 
title VII.

[37 FR 9220, May 6, 1972]



Sec.  1602.25  Exemption from reporting requirements.

    If it is claimed that the preparation or filing of Report EEO-3 
would create undue hardship, the labor organization may apply to the 
Commission for an exemption from the requirements set forth in this 
part.

[32 FR 10651, July 20, 1967]



Sec.  1602.26  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as Report EEO-3, about the membership or referral 
practices or other procedures of labor organizations, whenever, in its 
judgment, special or supplemental reports are necessary to accomplish 
the purposes of title VII, the ADA, or GINA. Any system for requirement 
of such reports will be established in accordance with the procedures 
referred to in section 709(c) of title VII, section 107 of the ADA, or 
section 207(a) of GINA, and as otherwise prescribed by law.

[32 FR 10651, July 20, 1967, as amended at 56 FR 35755, July 26, 1991; 
74 FR 63983, Dec. 7, 2009]



             Subpart G_Recordkeeping by Labor Organizations



Sec.  1602.27  Records to be made or kept.

    Those portions of Report EEO-3 calling for information about union 
policies and practices and for the compilation of statistics on the 
race, color, national origin, and sex of members, persons referred, and 
apprentices, are deemed to be ``records'' within the meaning of section 
709(c), title VII, Civil Rights Act of 1964. Every local, independent, 
or unaffiliated union with 100 or more members (or any agent acting in 
its behalf, if the agent has responsibility for referral of persons for 
employment) shall make these records or such other records as are 
necessary for the completion of Report EEO-3 under the circumstances and 
conditions set forth in the instructions accompanying it, which are 
specifically incorporated herein by reference and have the same force 
and effect as other sections of this part.

(Approved by the Office of Management and Budget under control number 
3046-0006)

[32 FR 10651, July 20, 1967, as amended at 46 FR 63268, Dec. 31, 1981]



Sec.  1602.28  Preservation of records made or kept.

    (a) All records made by a labor organization or its agent solely for 
the purpose of completing Report EEO-3 shall be preserved for a period 
of 1 year from the due date of the report for which they were compiled. 
Any labor organization identified as a ``referral union'' in the 
instructions accompanying Report EEO-3, or agent thereto, shall preserve 
other membership or referral records (including applications for same) 
made or kept by it for a period of 1 year from the date of the making of 
the record. Where a charge of discrimination has been filed, or an 
action brought by the Commission or the Attorney General, against a 
labor organization under title VII, the ADA, or GINA, the respondent 
labor organization shall preserve all records relevant to the charge or 
action until final disposition of the charge or the action. The date of 
``final disposition of the charge or the action'' means the date of 
expiration of the statutory period within which the aggrieved person may 
bring an action in a U.S. District Court or, where an action is brought 
against a labor organization either by the Commission, the aggrieved 
person, or by the Attorney General, the date on which such litigation is 
terminated.
    (b) Nothing herein shall relieve any labor organization covered by 
title VII of the obligations set forth in subpart E, Sec. Sec.  1602.20 
and 1602.21, relating to the establishment and maintenance of a list of 
applicants wishing to participate

[[Page 185]]

in an apprenticeship program controlled by it.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[37 FR 9220, May 6, 1972, as amended at 46 FR 63268, Dec. 31, 1981; 56 
FR 35755, July 26, 1991; 77 FR 5398, Feb. 3, 2012]



 Subpart H_Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex



Sec.  1602.29  Applicability of State or local law.

    The requirements imposed by the Equal Employment Opportunity 
Commission in these regulations, subparts D through G, supersede any 
provisions of State or local law which may conflict with them. Any State 
or local laws prohibiting inquiries and recordkeeping with respect to 
race, color, national origin, or sex do not apply to inquiries required 
to be made under these regulations and under the instructions 
accompanying Reports EEO-2 and EEO-3.

[32 FR 10652, July 20, 1967]



           Subpart I_State and Local Governments Recordkeeping



Sec.  1602.30  Records to be made or kept.

    On or before September 30, 1974, and annually thereafter, every 
political jurisdiction with 15 or more employees is required to make or 
keep records and the information therefrom which are or would be 
necessary for the completion of report EEO-4 under the circumstances set 
forth in the instructions thereto, whether or not the political 
jurisdiction is required to file such report under Sec.  1602.32 of the 
regulations in this part. The instructions are specifically incorporated 
herein by reference and have the same force and effect as other sections 
of this part. \1\ Such reports and the information therefrom shall be 
retained at all times for a period of 3 years at the central office of 
the political jurisdiction and shall be made available if requested by 
an officer, agent, or employee of the Commission under section 710 of 
title VII, as amended. Although agency data are aggregated by functions 
for purposes of reporting, separate data for each agency must be 
maintained either by the agency itself or by the office of the political 
jurisdiction responsible for preparing the EEO-4 form. It is the 
responsibility of every political jurisdiction to obtain from the 
Commission or its delegate necessary instructions in order to comply 
with the requirements of this section.
---------------------------------------------------------------------------

    \1\ Note: Instructions were published as an appendix to the proposed 
regulations on Mar. 2, 1973 (38 FR 5662).

(Approved by the Office of Management and Budget under control number 
---------------------------------------------------------------------------
3046-0008)

[38 FR 12604, May 14, 1973, as amended at 39 FR 30832, Aug. 26, 1974; 46 
FR 63268, Dec. 31, 1981]



Sec.  1602.31  Preservation of records made or kept.

    Any personnel or employment record made or kept by a political 
jurisdiction (including but not necessarily limited to requests for 
reasonable accommodation application forms submitted by applicants and 
other records having to do with hiring, promotion, demotion, transfer, 
layoff, or termination, rates of pay or other terms of compensation, and 
selection for training or apprenticeship) shall be preserved by the 
political jurisdiction for a period of 2 years from the date of the 
making of the record or the personnel action involved, whichever occurs 
later. In the case of involuntary termination of an employee, the 
personnel records of the individual terminated shall be kept for a 
period of 2 years from the date of termination. Where a charge of 
discrimination has been filed, or an action brought by the Attorney 
General against a political jurisdiction under title VII, the ADA, or 
GINA, the respondent political jurisdiction shall preserve all personnel 
records relevant to the charge or action until final disposition of the 
charge or the action. The term ``personnel record relevant to the 
charge,'' for example, would include personnel or employment records 
relating to the person claiming to be aggrieved and to all other 
employees holding positions similar to that held or sought by the person 
claiming to be aggrieved; and application forms or

[[Page 186]]

test papers completed by an unsuccessful applicant and by all other 
candidates for the same position as that for which the person claiming 
to be aggrieved applied and was rejected. The date of final disposition 
of the charge or the action means the date of expiration of the 
statutory period within which a person claiming to be aggrieved may 
bring an action in a U.S. district court or, where an action is brought 
against a political jurisdiction either by a person claiming to be 
aggrieved or by the Attorney General, the date on which such litigation 
is terminated.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[38 FR 12605, May 14, 1973, as amended at 46 FR 63268, Dec. 31, 1981; 56 
FR 35756, July 26, 1991; 77 FR 5398, Feb. 3, 2012]



         Subpart J_State and Local Government Information Report

    Source: 38 FR 12605, May 14, 1973, unless otherwise noted.



Sec.  1602.32  Requirement for filing and preserving copy of report.

    On or before September 30, 1993, and biennially thereafter, certain 
political jurisdictions subject to title VII of the Civil Rights Act of 
1964, as amended, shall file with the Commission or its delegate 
executed copies of ``State and Local Government Information Report EEO-
4'' in conformity with the directions set forth in the form and 
accompanying instructions. The political jurisdictions covered by this 
section are (a) those which have 100 or more employees, and (b) those 
other political jurisdictions which have 15 or more employees from whom 
the Commission requests the filing of reports.
    Every such political jurisdiction shall retain at all times a copy 
of the most recently filed EEO-4 at the central office of the political 
jurisdiction for a period of 3 years and shall make the same available 
if requested by an officer, agent, or employee of the Commission under 
the authority of section 710 of title VII, as amended.

[58 FR 29536, May 21, 1993]



Sec.  1602.33  Penalty for making of willfully false statements on report.

    The making of willfully false statements on report EEO-4, is a 
violation of the United States Code, title 18, section 1001, and is 
punishable by fine or imprisonment as set forth therein.



Sec.  1602.34  Commission's remedy for political jurisdiction's failure
to file report.

    Any political jurisdiction failing or refusing to file report EEO-4 
when required to do so may be compelled to file by order of a U.S. 
district court, upon application of the Attorney General.



Sec.  1602.35  Political jurisdiction's exemption from reporting requirements.

    If it is claimed that the preparation or filing of the report would 
create undue hardship, the political jurisdiction may apply to the 
Commission for an exemption from the requirements set forth in this part 
by submitting to the Commission or its delegate a specific proposal for 
an alternative reporting system prior to the date on which the report is 
due.



Sec.  1602.36  Schools exemption.

    The recordkeeping and report-filing requirements of subparts I and J 
of this part shall not apply to State or local educational institutions 
or to school districts or school systems or any other educational 
functions. The previous sentence of this section shall not act to bar 
jurisdiction which otherwise would attach under Sec.  1602.30.



Sec.  1602.37  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as the ``State and Local Government Information Report 
EEO-4,'' about the employment practices of individual political 
jurisdictions or group of political jurisdictions whenever, in its 
judgment, special or supplemental reports are necessary to accomplish 
the purposes of title VII, the ADA, or GINA. Any system for the 
requirement of such reports will be established in accordance with the 
procedures referred to in section 709(c) of title VII,

[[Page 187]]

section 107 of the ADA, or section 207(a) of GINA and as otherwise 
prescribed by law.

[38 FR 12605, May 14, 1973, as amended at 56 FR 35756, July 26, 1991; 74 
FR 63983, Dec. 7, 2009]



 Subpart K_Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex



Sec.  1602.38  Applicability of State or local law.

    The requirements imposed by the Equal Employment Opportunity 
Commission in these regulations, subparts I and J, supersede any 
provisions of State or local law which may conflict with them.

[38 FR 12605, May 14, 1973]



   Subpart L_Elementary and Secondary School Systems, Districts, and 
                    Individual Schools Recordkeeping



Sec.  1602.39  Records to be made or kept.

    On or before November 30, 1974, and annually thereafter, every 
public elementary and secondary school system or district, including 
every individually or separately administered district within a system, 
with 15 or more employees and every individual school within such system 
or district, regardless of the size of the school shall make or keep all 
records and information therefrom which are or would be necessary for 
the completion of report EEO-5 whether or not it is required to file 
such a report under Sec.  1602.41. The instructions for completion of 
report EEO-5 are specifically incorporated herein by reference and have 
the same force and effect as other sections of this part. \1\ Such 
records and the information therefrom shall be retained at all times for 
a period of 3 years at the central office of the elementary or secondary 
school system or district, or at the individual school which is the 
subject of the records and the information therefrom, where more 
convenient, and shall be made available if requested by an officer, 
agent, or employee of the Commission under section 710 of title VII, as 
amended. It is the responsibility of every such school system or 
district, to obtain from the Commission or its delegate necessary 
instructions in order to comply with the requirements of this section.
---------------------------------------------------------------------------

    \1\ Note: Instructions were published as an appendix to the proposed 
regulations on June 12, 1973 (38 FR 15463).

(Approved by the Office of Management and Budget under control number 
---------------------------------------------------------------------------
3046-0003)

[38 FR 26719, Sept. 25, 1973, as amended at 39 FR 30832, Aug. 26, 1974; 
46 FR 63268, Dec. 31, 1981]



Sec.  1602.40  Preservation of records made or kept.

    Any personnel or employment record made or kept by a school system, 
district, or individual school (including but not necessarily limited to 
requests for reasonable accommodation, application forms submitted by 
applicants and other records having to do with hiring, promotion, 
demotion, transfer, layoff, or termination, rates of pay or other terms 
of compensation, and selection for training or apprenticeship) shall be 
preserved by such school system, district, or school, as the case may 
be, for a period of 2 years from the date of the making of the record or 
the personnel action involved, whichever occurs later. In the case of 
involuntary termination of an employee, the personnel records of the 
individual terminated shall be kept for a period of 2 years from the 
date of termination. Where a charge of discrimination has been filed, or 
an action brought against an elementary or secondary school by the 
Commission or the Attorney General, the respondent elementary or 
secondary school system, district, or individual school shall preserve 
similarly at the central office of the system or district or individual 
school which is the subject of the charge or action, where more 
convenient, all personnel records relevant to the charge or action until 
final disposition thereof. The term ``personnel record relevant to the 
charge,'' for example, would include personnel or employment records 
relating to the person claiming to be aggrieved and to all other 
employees holding positions similar to that held or sought by the person 
claiming to be aggrieved; and application forms or

[[Page 188]]

test papers completed by an unsuccessful applicant and by all other 
candidates for the same position as that for which the person claiming 
to be aggrieved applied and was rejected. The date of ``final 
disposition of the charge or the action'' means the date of expiration 
of the statutory period within which a person claiming to be aggrieved 
may bring an action in a U.S. district court or, where an action is 
brought against a school system, district, or school either by a person 
claiming to be aggrieved, the Commission, or the Attorney General, the 
date on which such litigation is terminated.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[38 FR 26719, Sept. 25, 1973, as amended at 46 FR 63268, Dec. 31, 1981; 
56 FR 35756, July 26, 1991]



         Subpart M_Elementary-Secondary Staff Information Report

    Source: 38 FR 26719, Sept. 25, 1973, unless otherwise noted.



Sec.  1602.41  Requirement for filing and preserving copy of report.

    On or before November 30, 1982, and biennially thereafter, certain 
public elementary and secondary school systems and districts, including 
individually or separately administered districts within such systems, 
shall file with the Commission or its delegate executed copies of 
Elementary-Secondary Staff Information Report EEO-5 in conformity with 
the directions set forth in the form and accompanying instructions. The 
elementary and secondary school systems and districts covered are:
    (a) Every one of those which have 100 or more employees, and
    (b) Every one of those others which have 15 or more employees from 
whom the Commission requests the filing of reports.

Every such elementary or secondary school system or district shall 
retain at all times, for a period of 3 years, a copy of the most 
recently filed report EEO-5 at the central office of the school system 
or district, and shall make the same available if requested by an 
officer, agent, or employee of the Commission under the authority of 
section 710 of title VII, as amended. It is the responsibility of the 
school systems or districts above described in this section to obtain 
from the Commission or its delegate necessary supplies of the form.

[48 FR 8058, Feb. 25, 1983, as amended at 61 FR 33660, June 28, 1996]



Sec.  1602.42  Penalty for making of willfully false statements on report.

    The making of willfully false statements on report EEO-5 is a 
violation of the United States Code, title 18, section 1001, and is 
punishable by fine or emprisonment as set forth therein.



Sec.  1602.43  Commission's remedy for school systems' or districts'
failure to file report.

    Any school system or district failing or refusing to file report 
EEO-5 when required to do so may be compelled to file by order of a U.S. 
district court, upon application of the Commission or the Attorney 
General.

[61 FR 33660, June 28, 1996]



Sec.  1602.44  School systems' or districts' exemption from reporting
requirements.

    If it is claimed that the preparation or filing of the report would 
create undue hardship, the school system or district may apply to the 
Commission for an exemption from the requirements set forth in this part 
by submitting to the Commission or its delegate a specific proposal for 
an alternative reporting system prior to the date on which the report is 
due.

[61 FR 33660, June 28, 1996]



Sec.  1602.45  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as the Elementary-Secondary Information Report EEO-5, 
about the employment practices of private or public individual school 
systems, districts, or schools, or groups thereof, whenever, in its 
judgment, special or supplemental reports are necessary to accomplish 
the purposes of title VII, the ADA, or GINA. Any system for the

[[Page 189]]

requirement of such reports will be established in accordance with the 
procedures referred to in section 709(c) of title VII, section 107 of 
the ADA, or section 207(a) of GINA and as otherwise prescribed by law.

[38 FR 27619, Sept. 25, 1973, as amended at 56 FR 35756, July 26, 1991; 
74 FR 63983, Dec. 7, 2009]



 Subpart N_Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex



Sec.  1602.46  Applicability of State or local law.

    The requirements imposed by the Equal Employment Opportunity 
Commission in these regulations, subparts L and M of this part, 
supersede any provisions of State or local law which may conflict with 
them.

[38 FR 26720, Sept. 25, 1973]



      Subpart O_Recordkeeping for Institutions of Higher Education



Sec.  1602.47  Definition.

    Under subparts O and P of this part, the term institution of higher 
education means an institutional system, college, university, community 
college, junior college, and any other educational institution which 
offers an associate degree, baccalaureate degree or higher degree or 
which offers a two year program of college level studies without degree. 
The term college level studies means a post secondary program which is 
wholly or principally creditable toward a baccalaureate degree or 
terminates in an associate degree.

[40 FR 25188, June 12, 1975]



Sec.  1602.48  Records to be made or kept.

    Commencing August 1, 1975, every institution of higher education, 
whether public or private, with 15 or more employees, shall make or keep 
all records, and information therefrom, which are or would be necessary 
for the completion of Higher Education Staff Information Report EEO-6 
whether or not it is required to file such a report under Sec.  1602.50. 
The instructions for completion of Report EEO-6 are specifically 
incorporated herein by reference and have the same force and effect as 
other sections of this part. \1\ Such records, and the information 
therefrom, shall be retained at all times for a period of three years at 
the central administrative office of the institution of higher 
education, at the central administrative office of a separate campus or 
branch, or at an individual school which is the subject of the records 
and information, where more convenient. Such records, and the 
information therefrom, shall be made available if requested by the 
Commission or its representative under section 710 of title VII and 29 
U.S.C. 161. It is the responsibility of every institution of higher 
education to obtain from the Commission or its delegate the necessary 
instructions in order to comply with the requirements of this section.
---------------------------------------------------------------------------

    \1\ Note: Instructions were published as an appendix to the 
regulations at 40 FR 25188, June 12, 1975.

(Approved by the Office of Management and Budget under control number 
---------------------------------------------------------------------------
3046-0009)

[40 FR 25188, June 12, 1975, as amended at 46 FR 63268, Dec. 31, 1981]



Sec.  1602.49  Preservation of records made or kept.

    (a) Any personnel or employment record (including but not 
necessarily limited to requests for reasonable accommodation, 
application forms submitted by applicants and other records having to do 
with hiring, promotion, tenure, demotion, transfer, layoff, or 
termination, rates of pay or other terms of compensation, and selection 
for training) made or kept by an institution of higher education shall 
be preserved by such institution of higher education for a period of two 
years from the date of the making of the personnel action or record 
involved, whichever occurs later. In the case of the involuntary 
termination of an employee, the personnel records of the individual 
terminated shall be kept for a period of two years from the date of 
termination. Where a charge of discrimination has been filed, or a civil 
action brought against an institution of higher education by the 
Commission

[[Page 190]]

or the Attorney General, the respondent shall preserve similarly at the 
central administrative office of the institution of higher education, at 
the central office of a separate campus or branch, or at the individual 
school which is the subject of the charge or action, where more 
convenient, all personnel records relevant to the charge or action until 
final disposition thereof. The term ``personnel records relevant to the 
charge,'' for example, would include personnel or employment records 
relating to the person claiming to be aggrieved and to all other 
employees holding positions similar to that held or sought by the person 
claiming to be aggrieved; it would also include application forms or 
test papers completed by an unsuccessful applicant and by all other 
candidates for the same position as that for which the person claiming 
to be aggrieved applied and was rejected. The date of ``final 
disposition of the charge or the action'' means the date of expiration 
of the statutory period within which a person claiming to be aggrieved 
may bring an action in the United States District Court, or, where an 
action is brought against an institution of higher education by a person 
claiming to be aggrieved, the Commission, or the Attorney General, the 
date on which such litigation is terminated.
    (b) The requirements of paragraph (a) of this section shall not 
apply to application forms and other preemployment records of non-
student applicants for positions known to non-student applicants to be 
of a temporary or seasonal nature.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[40 FR 25188, June 12, 1975, as amended at 46 FR 63268, Dec. 31, 1981; 
56 FR 35756, July 26, 1991]



        Subpart P_Higher Education Staff Information Report EEO	6

    Source: 40 FR 25189, June 12, 1975, unless otherwise noted.



Sec.  1602.50  Requirement for filing and preserving copy of report.

    On or before November 30, 1975, and biennially thereafter, every 
public and private institution of higher education having fifteen (15) 
or more employees shall file with the Commission or its delegate 
executed copies of Higher Education Staff Information Report EEO-6 in 
conformity with the directions set forth in the form and accompanying 
instructions. Every institution of higher education shall retain at all 
times, for a period of three years a copy of the most recently filed 
Report EEO-6 at its central administrative office, at the central office 
of a separate campus or branch, or at an individual school which is the 
subject of the report, where more convenient. An institution of higher 
education shall make the same available if requested by the Commission 
or is representative under the authority of section 710 of the Act and 
29 U.S.C. 161. It is the responsibility of the institutions above 
described in this section to obtain from the Commission or its delegate 
necessary supplies of the form.



Sec.  1602.51  Penalty for making of willfully false statements on report.

    The making of willfully false statements on Report EEO-6 is a 
violation of the United States Code, title 18, section 1001, and is 
punishable by fine or imprisonment as set forth therein.



Sec.  1602.52  Commission's remedy for failure to file.

    Any institution of higher education failing or refusing to keep 
records, in accordance with Sec.  1602.48 or Sec.  1602.49 of subpart O 
of this part, or failing or refusing to file Report EEO-6 when required 
to do so, in accordance with Sec.  1602.50 of this part, may be 
compelled to keep records or to file by order of a United States 
District Court upon application of the Commission, or the Attorney 
General in a case involving a public institution.



Sec.  1602.53  Exemption from reporting requirements.

    If it is claimed that the preparation or filing of the report would 
create undue hardship, the institution of higher education may apply to 
the Commission for an exemption from the requirements set forth in 
subparts O and P of this part by submitting to the Commission or its 
delegate a specific

[[Page 191]]

proposal for an alternative reporting system no later than 45 days prior 
to the date on which the report must be filed.



Sec.  1602.54  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as the Higher Education Staff Information Report EEO-6, 
about the employment practices of private or public institutions of 
higher education whenever, in its judgment, special or supplemental 
reports are necessary to accomplish the purposes of title VII, the ADA, 
or GINA. Any system for the requirement of such reports will be 
established in accordance with the procedures referred to in section 
709(c) of title VII, section 107 of the ADA, or section 207(a) of GINA 
and as otherwise prescribed by law.

[40 FR 25189, June 12, 1975, as amended at 56 FR 35756, July 26, 1991; 
74 FR 63983, Dec. 7, 2009]



 Subpart Q_Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex



Sec.  1602.55  Applicability of State or local law.

    The requirements imposed by the Equal Employment Opportunity 
Commission in these regulations, subparts O, P, and Q of this part, 
supersede any provisions of State or local law which may conflict with 
them.

[40 FR 25189, June 12, 1975]



    Subpart R_Investigation of Reporting or Recordkeeping Violations



Sec.  1602.56  Investigation of reporting or recordkeeping violations.

    When it has received an allegation, or has reason to believe, that a 
person has not complied with the reporting or recordkeeping requirements 
of this part or of part 1607 of this chapter, the Commission may conduct 
an investigation of the alleged failure to comply.

[56 FR 35756, July 26, 1991]



   PART 1603_PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND LOCAL GOVERNMENT
   EMPLOYEE COMPLAINTS OF EMPLOYMENT DISCRIMINATION UNDER SECTION 304 OF
   THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991--Table of Contents



Sec.
1603.100 Purpose.

                    Subpart A_Administrative Process

1603.101 Coverage.
1603.102 Filing a complaint.
1603.103 Referral of complaints.
1603.104 Service of the complaint.
1603.105 Withdrawal of a complaint.
1603.106 Computation of time.
1603.107 Dismissals of complaints.
1603.108 Settlement and alternative dispute resolution.
1603.109 Investigations.

                           Subpart B_Hearings

1603.201 Referral and scheduling for hearing.
1603.202 Administrative law judge.
1603.203 Unavailability or withdrawal of administrative law judges.
1603.204 Ex parte communications.
1603.205 Separation of functions.
1603.206 Consolidation and severance of hearings.
1603.207 Intervention.
1603.208 Motions.
1603.209 Filing and service.
1603.210 Discovery.
1603.211 Subpoenas.
1603.212 Witness fees.
1603.213 Interlocutory review.
1603.214 Evidence.
1603.215 Record of hearings.
1603.216 Summary decision.
1603.217 Decision of the administrative law judge.

                            Subpart C_Appeals

1603.301 Appeal to the Commission.
1603.302 Filing an appeal.
1603.303 Briefs on appeal.
1603.304 Commission decision.
1603.305 Modification or withdrawal of Commission decision.
1603.306 Judicial review.

    Authority: 42 U.S.C. 2000e-16c; 42 U.S.C. 2000ff-6(b).

    Source: 62 FR 17543, Apr. 10, 1997, unless otherwise noted.



Sec.  1603.100  Purpose.

    This part contains the regulations of the Equal Employment 
Opportunity

[[Page 192]]

Commission (hereinafter the Commission) for processing complaints of 
discrimination filed under section 304 of the Government Employee Rights 
Act, 42 U.S.C. 2000e-16c.

[62 FR 17543, Apr. 10, 1997, as amended at 72 FR 5616, Feb. 7, 2007]



                    Subpart A_Administrative Process



Sec.  1603.101  Coverage.

    Section 304 of the Government Employee Rights Act of 1991 applies to 
employment, which includes application for employment, of any individual 
chosen or appointed by a person elected to public office in any State or 
political subdivision of any State by the qualified voters thereof:
    (a) To be a member of the elected official's personal staff;
    (b) To serve the elected official on the policymaking level; or
    (c) To serve the elected official as an immediate advisor with 
respect to the exercise of the constitutional or legal powers of the 
office.

[62 FR 17543, Apr. 10, 1997, as amended at 72 FR 5616, Feb. 7, 2007]



Sec.  1603.102  Filing a complaint.

    (a) Who may make a complaint. Individuals referred to in Sec.  
1603.101 who believe they have been discriminated against on the basis 
of race, color, religion, sex, national origin, age, disability, or 
genetic information, or retaliated against for opposing any practice 
made unlawful by federal laws protecting equal employment opportunity or 
for participating in any stage of administrative or judicial proceedings 
under federal laws protecting equal employment opportunity may file a 
complaint not later than 180 days after the occurrence of the alleged 
discrimination.
    (b) Where to file a complaint. A complaint may be filed in person, 
by mail or by facsimile machine to any Commission office or with any 
designated agent or representative of the Commission. The addresses of 
the Commission's District, Field, Area and Local offices appear in 29 
CFR 1610.4.
    (c) Contents of a complaint. A complaint shall be in writing, signed 
and verified. In addition, each complaint should contain the following:
    (1) The full name, address and telephone number of the person making 
the complaint;
    (2) The full name and address of the person, governmental entity or 
political subdivision against whom the complaint is made (hereinafter 
referred to as the respondent);
    (3) A clear and concise statement of the facts, including pertinent 
dates, constituting the alleged unlawful employment practices (See 29 
CFR 1601.15(b)); and
    (4) A statement disclosing whether proceedings involving the alleged 
unlawful employment practice have been commenced before a State or local 
FEP agency charged with the enforcement of fair employment practice laws 
and, if so, the date of such commencement and the name of the agency.
    (d) Amendment of a complaint. Notwithstanding paragraph (c) of this 
section, a complaint is sufficient when the Commission receives from the 
person making the complaint a written statement sufficiently precise to 
identify the parties and to describe generally the alleged 
discriminatory action or practices. A complaint may be amended to cure 
technical defects or omissions, including failure to verify the 
complaint, or to clarify and amplify its allegations. Such amendments, 
and amendments alleging additional acts that constitute discriminatory 
employment practices related to or growing out of the subject matter of 
the original complaint, will relate back to the date the complaint was 
first received. A complaint that has been amended after it was referred 
shall not be again referred to the appropriate state or local fair 
employment practices agency.
    (e) Misfiled complaint. A charge filed pursuant to 29 CFR part 1601 
or part 1626, that is later deemed to be a matter under this part, shall 
be processed as a complaint under this part and shall relate back to the 
date of the initial charge or complaint. A complaint filed under this 
part that is later deemed to be a matter under 29 CFR part 1601 or part 
1626 shall be processed

[[Page 193]]

as a charge under the appropriate regulation and shall relate back to 
the date of the initial complaint.

[62 FR 17543, Apr. 10, 1997, as amended at 71 FR 26829, May 9, 2006; 74 
FR 63983, Dec. 7, 2009]



Sec.  1603.103  Referral of complaints.

    (a) The Commission will notify an FEP agency, as defined in 29 CFR 
1601.3(a), when a complaint is filed by a state or local government 
employee or applicant under this part concerning an employment practice 
within the jurisdiction of the FEP agency. The FEP agency will be 
entitled to process the complaint exclusively for a period of not less 
than 60 days if the FEP agency makes a written request to the Commission 
within 10 days of receiving notice that the complaint has been filed, 
unless the complaint names the FEP agency as the respondent.
    (b) The Commission may enter into an agreement with an FEP agency 
that authorizes the FEP agency to receive complaints under this part on 
behalf of the Commission, or waives the FEP agency's right to exclusive 
processing of complaints.



Sec.  1603.104  Service of the complaint.

    Upon receipt of a complaint, the Commission shall promptly serve the 
respondent with a copy of the complaint.



Sec.  1603.105  Withdrawal of a complaint.

    The complainant may withdraw a complaint at any time by so advising 
the Commission in writing.



Sec.  1603.106  Computation of time.

    (a) All time periods in this part that are stated in terms of days 
are calendar days unless otherwise stated.
    (b) A document shall be deemed timely if it is delivered by 
facsimile not exceeding 20 pages, in person or postmarked before the 
expiration of the applicable filing period, or, in the absence of a 
legible postmark, if it is received by mail within five days of the 
expiration of the applicable filing period.
    (c) All time limits in this part are subject to waiver, estoppel and 
equitable tolling.
    (d) The first day counted shall be the day after the event from 
which the time period begins to run and the last day of the period shall 
be included unless it falls on a Saturday, Sunday or federal holiday, in 
which case the period shall be extended to include the next business 
day.



Sec.  1603.107  Dismissals of complaints.

    (a) Where a complaint on its face, or after further inquiry, is 
determined to be not timely filed or otherwise fails to state a claim 
under this part, the Commission shall dismiss the complaint.
    (b) Where the complainant cannot be located, the Commission may 
dismiss the complaint provided that reasonable efforts have been made to 
locate the complainant and the complainant has not responded within 30 
days to a notice sent by the Commission to the complainant's last known 
address.
    (c) Where the complainant fails to provide requested information, 
fails or refuses to appear or to be available for interviews or 
conferences as necessary, or otherwise refuses to cooperate, the 
Commission, after providing the complainant with notice and 30 days in 
which to respond, may dismiss the complaint.
    (d) Written notice of dismissal pursuant to paragraphs (a), (b), or 
(c) of this section shall be issued to the complainant and the 
respondent. The Commission hereby delegates authority to the Program 
Director, Office of Field Programs, or to his or her designees, and 
District Directors, or to their designees, to dismiss complaints.
    (e) A complainant who is dissatisfied with a dismissal issued 
pursuant to paragraphs (a), (b), or (c) of this section may appeal to 
the Commission in accordance with the procedures in subpart C of this 
part.

[62 FR 17543, Apr. 10, 1997, as amended at 64 FR 28744, May 27, 1999]



Sec.  1603.108  Settlement and alternative dispute resolution.

    (a) The parties are at all times free to settle all or part of a 
complaint on terms that are mutually agreeable. Any settlement reached 
shall be in writing and signed by both parties and shall identify the 
allegations resolved. A copy of any settlement shall be served on the 
Commission.

[[Page 194]]

    (b) With the agreement of the parties, the Commission may refer a 
complaint to a neutral mediator or to any other alternative dispute 
resolution process authorized by the Administrative Dispute Resolution 
Act, 5 U.S.C. 571 to 583, or other statute.
    (c) The Commission may use the services of the Federal Mediation and 
Conciliation Service, other federal agencies, appropriate professional 
organizations, employees of the Commission and other appropriate sources 
in selecting neutrals for alternative dispute resolution processes.
    (d) The alternative dispute resolution process shall be strictly 
confidential, and no party to a complaint or neutral shall disclose any 
dispute resolution communication or any information provided in 
confidence to the neutral except as provided in 5 U.S.C. 584.



Sec.  1603.109  Investigations.

    (a) Before referring a complaint to an administrative law judge 
under section 201 of this part, the Commission may conduct investigation 
using an exchange of letters, interrogatories, fact-finding conferences, 
interviews, on-site visits or other fact-finding methods that address 
the matters at issue.
    (b) During an investigation of a complaint under this part, the 
Commission shall have the authority to sign and issue a subpoena 
requiring the attendance and testimony of witnesses, the production of 
evidence and access to evidence for the purposes of examination and the 
right to copy. The subpoena procedures contained in 29 CFR 1601.16 shall 
apply to subpoenas issued pursuant to this section.



                           Subpart B_Hearings



Sec.  1603.201  Referral and scheduling for hearing.

    (a) Upon request by the complainant under paragraph (b) of this 
section or if the complaint is not dismissed or resolved under subpart A 
of this part, on behalf of the Commission, the Office of Federal 
Operations shall transmit the complaint file to an administrative law 
judge, appointed under 5 U.S.C. 3105, for a hearing.
    (b) If the complaint has not been referred to an administrative law 
judge within 180 days after filing, the complainant may request that the 
complaint be immediately transmitted to an administrative law judge for 
a hearing.
    (c) The administrative law judge shall fix the time, place, and date 
for the hearing with due regard for the convenience of the parties, 
their representatives or witnesses and shall notify the parties of the 
same.



Sec.  1603.202  Administrative law judge.

    The administrative law judge shall have all the powers necessary to 
conduct fair, expeditious, and impartial hearings as provided in 5 
U.S.C. 556(c). In addition, the administrative law judge shall have the 
power to:
    (a) Change the time, place or date of the hearing;
    (b) Enter a default decision against a party failing to appear at a 
hearing unless the party shows good cause by contacting the 
administrative law judge and presenting arguments as to why the party or 
the party's representative could not appear either prior to the hearing 
or within two days after the scheduled hearing; and
    (c) Take any appropriate action authorized by the Federal Rules of 
Civil Procedure (28 U.S.C. appendix).



Sec.  1603.203  Unavailability or withdrawal of administrative law judges.

    (a) In the event the administrative law judge designated to conduct 
the hearing becomes unavailable or withdraws from the adjudication, 
another administrative law judge may be designated for the purpose of 
further hearing or issuing a decision on the record as made, or both.
    (b) The administrative law judge may withdraw from the adjudication 
at any time the administrative law judge deems himself or herself 
disqualified. Prior to issuance of the decision, any party may move that 
the administrative law judge withdraw on the ground of personal bias or 
other disqualification, by filing with the administrative law judge 
promptly upon discovery of the alleged facts an affidavit setting forth 
in detail the matters alleged to constitute grounds for withdrawal.

[[Page 195]]

    (c) The administrative law judge shall rule upon the motion for 
withdrawal. If the administrative law judge concludes that the motion is 
timely and has merit, the administrative law judge shall immediately 
withdraw from the adjudication. If the administrative law judge does not 
withdraw, the adjudication shall proceed.



Sec.  1603.204  Ex parte communications.

    (a) Oral or written communications concerning the merits of an 
adjudication between the administrative law judge or decision-making 
personnel of the Commission and an interested party to the adjudication 
without providing the other party a chance to participate are prohibited 
from the time the matter is assigned to an administrative law judge 
until the Commission has rendered a final decision. Communications 
concerning the status of the case, the date of a hearing, the method of 
transmitting evidence to the Commission and other purely procedural 
questions are permitted.
    (b) Decision-making personnel of the Commission include members of 
the Commission and their staffs and personnel in the Office of Federal 
Operations, but do not include investigators and intake staff.
    (c) Any communication made in violation of this section shall be 
made part of the record and an opportunity for rebuttal by the other 
party allowed. If the communication was oral, a memorandum stating the 
substance of the discussion shall be placed in the record.
    (d) Where it appears that a party has engaged in prohibited ex parte 
communications, that party may be required to show cause why, in the 
interest of justice, his or her claim or defense should not be 
dismissed, denied or otherwise adversely affected.



Sec.  1603.205  Separation of functions.

    (a) The administrative law judge may not be responsible to or 
subject to the supervision or direction of a Commission employee engaged 
in investigating complaints under this part.
    (b) No Commission employee engaged in investigating complaints under 
this part shall participate or advise in the decision of the 
administrative law judge, except as a witness or counsel in the 
adjudication, or its appellate review.



Sec.  1603.206  Consolidation and severance of hearings.

    (a) The administrative law judge may, upon motion by a party or upon 
his or her own motion, after providing reasonable notice and opportunity 
to object to all parties affected, consolidate any or all matters at 
issue in two or more adjudications docketed under this part where common 
parties, or factual or legal questions exist; where such consolidation 
would expedite or simplify consideration of the issues; or where the 
interests of justice would be served. For purposes of this section, no 
distinction is made between joinder and consolidation of adjudications.
    (b) The administrative law judge may, upon motion of a party or upon 
his or her own motion, for good cause shown, order any adjudication 
severed with respect to some or all parties, claims or issues.



Sec.  1603.207  Intervention.

    (a) Any person or entity that wishes to intervene in any proceeding 
under this subpart shall file a motion to intervene in accordance with 
Sec.  1603.208.
    (b) A motion to intervene shall indicate the question of law or fact 
common to the movant's claim or defense and the complaint at issue and 
state all other facts or reasons the movant should be permitted to 
intervene.
    (c) Any party may file a response to a motion to intervene within 15 
days after the filing of the motion to intervene.



Sec.  1603.208  Motions.

    (a) All motions shall state the specific relief requested. All 
motions shall be in writing, except that a motion may be made orally 
during a conference or during the hearing. After providing an 
opportunity for response, the administrative law judge may rule on an 
oral motion immediately or may require that it be submitted in writing.
    (b) Unless otherwise directed by the administrative law judge, any 
other party may file a response in support of or in opposition to any 
written motion

[[Page 196]]

within ten (10) business days after service of the motion. If no 
response is filed within the response period, the party failing to 
respond shall be deemed to have waived any objection to the granting of 
the motion. The moving party shall have no right to reply to a response, 
unless the administrative law judge, in his or her discretion, orders 
that a reply be filed.
    (c) Except for procedural matters, the administrative law judge may 
not grant a written motion prior to the expiration of the time for 
filing responses. The administrative law judge may deny a written motion 
without awaiting a response. The administrative law judge may allow oral 
argument (including that made by telephone) on written motions. Any 
party adversely affected by the ex parte grant of a motion for a 
procedural order may request, within five (5) business days of service 
of the order, that the administrative law judge reconsider, vacate or 
modify the order.
    (d) The administrative law judge may summarily deny dilatory, 
repetitive or frivolous motions. Unless otherwise ordered by the 
administrative law judge, the filing of a motion does not stay the 
proceeding.
    (e) All motions and responses must comply with the filing and 
service requirements of Sec.  1603.209.



Sec.  1603.209  Filing and service.

    (a) Unless otherwise ordered by the administrative law judge, a 
signed original of each motion, brief or other document shall be filed 
with the administrative law judge, with a certificate of service 
indicating that a copy has been sent to all other parties, and the date 
and manner of service. All documents shall be on standard size (8\1/2\ x 
11) paper. Each document filed shall be clear and legible.
    (b) Filing and service shall be made by first class mail or other 
more expeditious means of delivery, including, at the discretion of the 
administrative law judge, by facsimile. The administrative law judge, 
may in his discretion, limit the number of pages that may be filed or 
served by facsimile. Service shall be made on a party's representative, 
or, if not represented, on the party.
    (c) Every document shall contain a caption, the complaint number or 
docket number assigned to the matter, a designation of the type of 
filing (e.g., motion, brief, etc.), and the filing person's signature, 
address, telephone number and telecopier number, if any.



Sec.  1603.210  Discovery.

    (a) Unless otherwise ordered by the administrative law judge, 
discovery may begin as soon as the complaint has been transmitted to the 
administrative law judge pursuant to Sec.  1603.201. Discovery shall be 
completed as expeditiously as possible within such time as the 
administrative law judge directs.
    (b) Unless otherwise ordered by the administrative law judge, 
parties may obtain discovery by written interrogatories (not to exceed 
20 interrogatories including subparts), depositions upon oral 
examination or written questions, requests for production of documents 
or things for inspection or other purposes, requests for admission or 
any other method found reasonable and appropriate by the administrative 
law judge.
    (c) Except as otherwise specified, the Federal Rules of Civil 
Procedure shall govern discovery in proceedings under this part.
    (d) Neutral mediators who have participated in the alternative 
dispute resolution process in accordance with Sec.  1603.108 shall not 
be called as witnesses or be subject to discovery in any adjudication 
under this part.



Sec.  1603.211  Subpoenas.

    (a) Upon written application of any party, the administrative law 
judge may on behalf of the Commission issue a subpoena requiring the 
attendance and testimony of witnesses and the production of any 
evidence, including, but not limited to, books, records, correspondence, 
or documents, in their possession or under their control. The subpoena 
shall state the name and address of the party at whose request the 
subpoena was issued, identify the person and evidence subpoenaed, and 
the date and time the subpoena is returnable.
    (b) Any person served with a subpoena who intends not to comply 
shall,

[[Page 197]]

within 5 days after service of the subpoena, petition the administrative 
law judge in writing to revoke or modify the subpoena. All petitions to 
revoke or modify shall be served upon the party at whose request the 
subpoena was issued. The requestor may file with the administrative law 
judge a response to the petition to revoke or modify within 5 days after 
service of the petition.
    (c) Upon the failure of any person to comply with a subpoena issued 
under this section, the administrative law judge may refer the matter to 
the Commission for enforcement in accordance with 29 CFR 1601.16(c).



Sec.  1603.212  Witness fees.

    Witnesses summoned under this part shall receive the same fees and 
mileage as witnesses in the courts of the United States. Those fees must 
be paid or offered to the witness by the party requesting the subpoena 
at the time the subpoena is served, or, if the witness appears 
voluntarily, at the time of appearance. A federal agency or corporation 
is not required to pay or offer witness fees and mileage allowances in 
advance.



Sec.  1603.213  Interlocutory review.

    (a) Interlocutory review may not be sought except when the 
administrative law judge determines upon motion of a party or upon his 
or her own motion that:
    (1) The ruling involves a controlling question of law or policy 
about which there is substantial ground for difference of opinion;
    (2) An immediate ruling will materially advance the completion of 
the proceeding; or
    (3) The denial of an immediate ruling will cause irreparable harm to 
the party or the public.
    (b) Application for interlocutory review shall be filed within ten 
(10) days after notice of the administrative law judge's ruling. Any 
application for review shall:
    (1) Designate the ruling or part thereof from which appeal is being 
taken; and
    (2) Contain arguments or evidence that tend to establish one or more 
of the grounds for interlocutory review contained in paragraph (a) of 
this section.
    (c) Any party opposing the application for interlocutory review 
shall file a response to the application within 10 days after service of 
the application. The applicant shall have no right to reply to a 
response unless the administrative law judge, within his or her 
discretion, orders that a reply be filed.
    (d) The administrative law judge shall promptly certify in writing 
any ruling that qualifies for interlocutory review under paragraph (a) 
of this section.
    (e) The filing of an application for interlocutory review and the 
grant of an application shall not stay proceedings before the 
administrative law judge unless the administrative law judge or the 
Commission so orders. The Commission shall not consider a motion for a 
stay unless the motion was first made to the administrative law judge.



Sec.  1603.214  Evidence.

    The administrative law judge shall accept relevant non-privileged 
evidence in accordance with the Federal Rules of Evidence (28 U.S.C. 
appendix), except the rules on hearsay will not be strictly applied.



Sec.  1603.215  Record of hearings.

    (a) All hearings shall be mechanically or stenographically reported. 
All evidence relied upon by the administrative law judge for decision 
shall be contained in the transcript of testimony, either directly or by 
appropriate reference. All exhibits introduced as evidence shall be 
marked for identification, with a copy provided for all parties, if not 
previously provided, and incorporated into the record. Transcripts may 
be obtained by the parties and the public from the official reporter at 
rates fixed by the contract with the reporter.
    (b) Corrections to the official transcript will be permitted upon 
motion, only when errors of substance are involved and upon approval of 
the administrative law judge. Motions for correction must be submitted 
within ten (10) days of the receipt of the transcript unless additional 
time is permitted by the administrative law judge.

[[Page 198]]



Sec.  1603.216  Summary decision.

    Upon motion of a party or after notice to the parties, the 
administrative law judge may issue a summary decision without a hearing 
if the administrative law judge finds that there is no genuine issue of 
material fact or that the complaint may be dismissed pursuant to Sec.  
1603.107 or any other grounds authorized by this part. A summary 
decision shall otherwise conform to the requirements of Sec.  1603.217.



Sec.  1603.217  Decision of the administrative law judge.

    (a) The administrative law judge shall issue a decision on the 
merits of the complaint within 270 days after referral of a complaint 
for hearing, unless the administrative law judge makes a written 
determination that good cause exists for extending the time for issuing 
a decision. The decision shall contain findings of fact and conclusions 
of law, shall order appropriate relief where discrimination is found, 
and shall provide notice of appeal rights consistent with subpart C of 
this part.
    (b) The administrative law judge shall serve the decision promptly 
on all parties to the proceeding and their counsel. Thereafter, the 
administrative law judge shall transmit the case file to the Office of 
Federal Operations including the decision and the record. The record 
shall include the complaint; the investigative file, if any; referral 
notice; motions; briefs; rulings; orders; official transcript of the 
hearing; all discovery and any other documents submitted by the parties.



                            Subpart C_Appeals



Sec.  1603.301  Appeal to the Commission.

    Any party may appeal to the Commission the dismissal of a complaint 
under Sec.  1603.107, any matter certified for interlocutory review 
under Sec.  1613.213, or the administrative law judge's decision under 
Sec.  1603.216 or Sec.  1603.217.



Sec.  1603.302  Filing an appeal.

    (a) An appeal shall be filed within 30 days after the date of the 
appealable decision or certification for interlocutory review, unless 
the Commission, upon a showing of good cause, extends the time for 
filing an appeal for a period not to exceed an additional 30 days.
    (b) An appeal shall be filed with the Director, Office of Federal 
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, 
Washington, DC 20013, by mail or personal delivery or facsimile.

[62 FR 17543, Apr. 10, 1997, as amended at 74 FR 3430, Jan. 21, 2009]



Sec.  1603.303  Briefs on appeal.

    (a) The appellant shall file a brief or other written statement 
within 30 days after the appeal is filed, unless the Commission 
otherwise directs.
    (b) All other parties may file briefs or other written statements 
within 30 days of service of the appellant's brief or statement.
    (c) Every brief or statement shall contain a statement of facts and 
a section setting forth the party's legal arguments. Any brief or 
statement in support of the appeal shall contain arguments or evidence 
that tend to establish that the dismissal, order or decision:
    (1) Is not supported by substantial evidence;
    (2) Contains an erroneous interpretation of law, regulation or 
material fact, or misapplication of established policy;
    (3) Contains a prejudicial error of procedure; or
    (4) Involves a substantial question of law or policy.
    (d) Appellate briefs shall not exceed 50 pages in length.
    (e) Filing and service of the appeal and appellate briefs shall be 
made in accordance with Sec.  1603.209.



Sec.  1603.304  Commission decision.

    (a) On behalf of the Commission, the Office of Federal Operations 
shall review the record and the appellate briefs submitted by all the 
parties. The Office of Federal Operations shall prepare a recommended 
decision for consideration by the Commission.
    (b) When an administrative law judge certifies a matter for 
interlocutory review under Sec.  1603.213, the Commission may, in its 
discretion, issue a decision on the matter or send the matter back

[[Page 199]]

to the administrative law judge without decision.
    (c) The Commission will not accept or consider new evidence on 
appeal unless the Commission, in its discretion, reopens the record on 
appeal.
    (d) The decision of the Commission on appeal shall be its final 
order and shall be served on all parties.
    (e) In the absence of a timely appeal under Sec.  1603.302, the 
decision of the administrative law judge under Sec.  1603.217 or a 
dismissal under Sec.  1603.107 shall become the final order of the 
Commission. A final order under this paragraph shall not have 
precedential significance.



Sec.  1603.305  Modification or withdrawal of Commission decision.

    At any time, the Commission may modify or withdraw a decision for 
any reason provided that no petition for review in a United States Court 
of Appeals has been filed.



Sec.  1603.306  Judicial review.

    Any party to a complaint who is aggrieved by a final decision under 
Sec.  1603.304 may obtain a review of such final decision under chapter 
158 of title 28 of the United States Code by filing a petition for 
review with a United States Court of Appeals within 60 days after 
issuance of the final decision. Such petition for review should be filed 
in the judicial circuit in which the petitioner resides, or has its 
principal office, or in the United States Court of Appeals for the 
District of Columbia Circuit.



PART 1604_GUIDELINES ON DISCRIMINATION BECAUSE OF SEX--Table of Contents



Sec.
1604.1 General principles.
1604.2 Sex as a bona fide occupational qualification.
1604.3 Separate lines of progression and seniority systems.
1604.4 Discrimination against married women.
1604.5 Job opportunities advertising.
1604.6 Employment agencies.
1604.7 Pre-employment inquiries as to sex.
1604.8 Relationship of title VII to the Equal Pay Act.
1604.9 Fringe benefits.
1604.10 Employment policies relating to pregnancy and childbirth.
1604.11 Sexual harassment.

Appendix to Part 1604--Questions and Answers on the Pregnancy 
          Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)

    Authority: Sec. 713(b), 78 Stat. 265, 42 U.S.C. 2000e-12.

    Source: 37 FR 6836, April 5, 1972, unless otherwise noted.



Sec.  1604.1  General principles.

    (a) References to ``employer'' or ``employers'' in this part 1604 
state principles that are applicable not only to employers but also to 
labor organizations and to employment agencies insofar as their action 
or inaction may adversely affect employment opportunities.
    (b) To the extent that the views expressed in prior Commission 
pronouncements are inconsistent with the views expressed herein, such 
prior views are hereby overruled.
    (c) The Commission will continue to consider particular problems 
relating to sex discrimination on a case-by-case basis.



Sec.  1604.2  Sex as a bona fide occupational qualification.

    (a) The commission believes that the bona fide occupational 
qualification exception as to sex should be interpreted narrowly. 
Label--``Men's jobs'' and ``Women's jobs''--tend to deny employment 
opportunities unnecessarily to one sex or the other.
    (1) The Commission will find that the following situations do not 
warrant the application of the bona fide occupational qualification 
exception:
    (i) The refusal to hire a woman because of her sex based on 
assumptions of the comparative employment characteristics of women in 
general. For example, the assumption that the turnover rate among women 
is higher than among men.
    (ii) The refusal to hire an individual based on stereotyped 
characterizations of the sexes. Such stereotypes include, for example, 
that men are less capable of assembling intricate equipment: that women 
are less capable of aggressive salesmanship. The principle of 
nondiscrimination requires that individuals be considered on the basis 
of individual capacities and not on the basis

[[Page 200]]

of any characteristics generally attributed to the group.
    (iii) The refusal to hire an individual because of the preferences 
of coworkers, the employer, clients or customers except as covered 
specifically in paragraph (a)(2) of this section.
    (2) Where it is necessary for the purpose of authenticity or 
genuineness, the Commission will consider sex to be a bona fide 
occupational qualification, e.g., an actor or actress.
    (b) Effect of sex-oriented State employment legislation.
    (1) Many States have enacted laws or promulgated administrative 
regulations with respect to the employment of females. Among these laws 
are those which prohibit or limit the employment of females, e.g., the 
employment of females in certain occupations, in jobs requiring the 
lifting or carrying of weights exceeding certain prescribed limits, 
during certain hours of the night, for more than a specified number of 
hours per day or per week, and for certain periods of time before and 
after childbirth. The Commission has found that such laws and 
regulations do not take into account the capacities, preferences, and 
abilities of individual females and, therefore, discriminate on the 
basis of sex. The Commission has concluded that such laws and 
regulations conflict with and are superseded by title VII of the Civil 
Rights Act of 1964. Accordingly, such laws will not be considered a 
defense to an otherwise established unlawful employment practice or as a 
basis for the application of the bona fide occupational qualification 
exception.
    (2) The Commission has concluded that State laws and regulations 
which discriminate on the basis of sex with regard to the employment of 
minors are in conflict with and are superseded by title VII to the 
extent that such laws are more restrictive for one sex. Accordingly, 
restrictions on the employment of minors of one sex over and above those 
imposed on minors of the other sex will not be considered a defense to 
an otherwise established unlawful employment practice or as a basis for 
the application of the bona fide occupational qualification exception.
    (3) A number of States require that minimum wage and premium pay for 
overtime be provided for female employees. An employer will be deemed to 
have engaged in an unlawful employment practice if:
    (i) It refuses to hire or otherwise adversely affects the employment 
opportunities of female applicants or employees in order to avoid the 
payment of minimum wages or overtime pay required by State law; or
    (ii) It does not provide the same benefits for male employees.
    (4) As to other kinds of sex-oriented State employment laws, such as 
those requiring special rest and meal periods or physical facilities for 
women, provision of these benefits to one sex only will be a violation 
of title VII. An employer will be deemed to have engaged in an unlawful 
employment practice if:
    (i) It refuses to hire or otherwise adversely affects the employment 
opportunities of female applicants or employees in order to avoid the 
provision of such benefits; or
    (ii) It does not provide the same benefits for male employees. If 
the employer can prove that business necessity precludes providing these 
benefits to both men and women, then the State law is in conflict with 
and superseded by title VII as to this employer. In this situation, the 
employer shall not provide such benefits to members of either sex.
    (5) Some States require that separate restrooms be provided for 
employees of each sex. An employer will be deemed to have engaged in an 
unlawful employment practice if it refuses to hire or otherwise 
adversely affects the employment opportunities of applicants or 
employees in order to avoid the provision of such restrooms for persons 
of that sex.



Sec.  1604.3  Separate lines of progression and seniority systems.

    (a) It is an unlawful employment practice to classify a job as 
``male'' or ``female'' or to maintain separate lines of progression or 
separate seniority lists based on sex where this would adversely affect 
any employee unless sex

[[Page 201]]

is a bona fide occupational qualification for that job. Accordingly, 
employment practices are unlawful which arbitrarily classify jobs so 
that:
    (1) A female is prohibited from applying for a job labeled ``male,'' 
or for a job in a ``male'' line of progression; and vice versa.
    (2) A male scheduled for layoff is prohibited from displacing a less 
senior female on a ``female'' seniority list; and vice versa.
    (b) A Seniority system or line of progression which distinguishes 
between ``light'' and ``heavy'' jobs constitutes an unlawful employment 
practice if it operates as a disguised form of classification by sex, or 
creates unreasonable obstacles to the advancement by members of either 
sex into jobs which members of that sex would reasonably be expected to 
perform.



Sec.  1604.4  Discrimination against married women.

    (a) The Commission has determined that an employer's rule which 
forbids or restricts the employment of married women and which is not 
applicable to married men is a discrimination based on sex prohibited by 
title VII of the Civil Rights Act. It does not seem to us relevant that 
the rule is not directed against all females, but only against married 
females, for so long as sex is a factor in the application of the rule, 
such application involves a discrimination based on sex.
    (b) It may be that under certain circumstances, such a rule could be 
justified within the meaning of section 703(e)(1) of title VII. We 
express no opinion on this question at this time except to point out 
that sex as a bona fide occupational qualification must be justified in 
terms of the peculiar requirements of the particular job and not on the 
basis of a general principle such as the desirability of spreading work.



Sec.  1604.5  Job opportunities advertising.

    It is a violation of title VII for a help-wanted advertisement to 
indicate a preference, limitation, specification, or discrimination 
based on sex unless sex is a bona fide occupational qualification for 
the particular job involved. The placement of an advertisement in 
columns classified by publishers on the basis of sex, such as columns 
headed ``Male'' or ``Female,'' will be considered an expression of a 
preference, limitation, specification, or discrimination based on sex.



Sec.  1604.6  Employment agencies.

    (a) Section 703(b) of the Civil Rights Act specifically states that 
it shall be unlawful for an employment agency to discriminate against 
any individual because of sex. The Commission has determined that 
private employment agencies which deal exclusively with one sex are 
engaged in an unlawful employment practice, except to the extent that 
such agencies limit their services to furnishing employees for 
particular jobs for which sex is a bona fide occupational qualification.
    (b) An employment agency that receives a job order containing an 
unlawful sex specification will share responsibility with the employer 
placing the job order if the agency fills the order knowing that the sex 
specification is not based upon a bona fide occupational qualification. 
However, an employment agency will not be deemed to be in violation of 
the law, regardless of the determination as to the employer, if the 
agency does not have reason to believe that the employer's claim of bona 
fide occupations qualification is without substance and the agency makes 
and maintains a written record available to the Commission of each such 
job order. Such record shall include the name of the employer, the 
description of the job and the basis for the employer's claim of bona 
fide occupational qualification.
    (c) It is the responsibility of employment agencies to keep informed 
of opinions and decisions of the Commission on sex discrimination.



Sec.  1604.7  Pre-employment inquiries as to sex.

    A pre-employment inquiry may ask ``Male........., Female.........''; 
or ``Mr. Mrs. Miss,'' provided that the inquiry is made in good faith 
for a nondiscriminatory purpose. Any pre-employment inquiry in 
connection with prospective employment which expresses directly or 
indirectly any limitation, specification, or discrimination as to sex 
shall

[[Page 202]]

be unlawful unless based upon a bona fide occupational qualification.



Sec.  1604.8  Relationship of title VII to the Equal Pay Act.

    (a) The employee coverage of the prohibitions against discrimination 
based on sex contained in title VII is coextensive with that of the 
other prohibitions contained in title VII and is not limited by section 
703(h) to those employees covered by the Fair Labor Standards Act.
    (b) By virtue of section 703(h), a defense based on the Equal Pay 
Act may be raised in a proceeding under title VII.
    (c) Where such a defense is raised the Commission will give 
appropriate consideration to the interpretations of the Administrator, 
Wage and Hour Division, Department of Labor, but will not be bound 
thereby.



Sec.  1604.9  Fringe benefits.

    (a) ``Fringe benefits,'' as used herein, includes medical, hospital, 
accident, life insurance and retirement benefits; profit-sharing and 
bonus plans; leave; and other terms, conditions, and privileges of 
employment.
    (b) It shall be an unlawful employment practice for an employer to 
discriminate between men and women with regard to fringe benefits.
    (c) Where an employer conditions benefits available to employees and 
their spouses and families on whether the employee is the ``head of the 
household'' or ``principal wage earner'' in the family unit, the 
benefits tend to be available only to male employees and their families. 
Due to the fact that such conditioning discriminatorily affects the 
rights of women employees, and that ``head of household'' or ``principal 
wage earner'' status bears no relationship to job performance, benefits 
which are so conditioned will be found a prima facie violation of the 
prohibitions against sex discrimination contained in the act.
    (d) It shall be an unlawful employment practice for an employer to 
make available benefits for the wives and families of male employees 
where the same benefits are not made available for the husbands and 
families of female employees; or to make available benefits for the 
wives of male employees which are not made available for female 
employees; or to make available benefits to the husbands of female 
employees which are not made available for male employees. An example of 
such an unlawful employment practice is a situation in which wives of 
male employees receive maternity benefits while female employees receive 
no such benefits.
    (e) It shall not be a defense under title VIII to a charge of sex 
discrimination in benefits that the cost of such benefits is greater 
with respect to one sex than the other.
    (f) It shall be an unlawful employment practice for an employer to 
have a pension or retirement plan which establishes different optional 
or compulsory retirement ages based on sex, or which differentiates in 
benefits on the basis of sex. A statement of the General Counsel of 
September 13, 1968, providing for a phasing out of differentials with 
regard to optional retirement age for certain incumbent employees is 
hereby withdrawn.



Sec.  1604.10  Employment policies relating to pregnancy and childbirth.

    (a) A written or unwritten employment policy or practice which 
excludes from employment applicants or employees because of pregnancy, 
childbirth or related medical conditions is in prima facie violation of 
title VII.
    (b) Disabilities caused or contributed to by pregnancy, childbirth, 
or related medical conditions, for all job-related purposes, shall be 
treated the same as disabilities caused or contributed to by other 
medical conditions, under any health or disability insurance or sick 
leave plan available in connection with employment. Written or unwritten 
employment policies and practices involving matters such as the 
commencement and duration of leave, the availability of extensions, the 
accrual of seniority and other benefits and privileges, reinstatement, 
and payment under any health or disability insurance or sick leave plan, 
formal or informal, shall be applied to disability due to pregnancy, 
childbirth or related medical conditions on the same terms and 
conditions as they are applied to other disabilities. Health insurance

[[Page 203]]

benefits for abortion, except where the life of the mother would be 
endangered if the fetus were carried to term or where medical 
complications have arisen from an abortion, are not required to be paid 
by an employer; nothing herein, however, precludes an employer from 
providing abortion benefits or otherwise affects bargaining agreements 
in regard to abortion.
    (c) Where the termination of an employee who is temporarily disabled 
is caused by an employment policy under which insufficient or no leave 
is available, such a termination violates the Act if it has a disparate 
impact on employees of one sex and is not justified by business 
necessity.
    (d)(1) Any fringe benefit program, or fund, or insurance program 
which is in effect on October 31, 1978, which does not treat women 
affected by pregnancy, childbirth, or related medical conditions the 
same as other persons not so affected but similar in their ability or 
inability to work, must be in compliance with the provisions of Sec.  
1604.10(b) by April 29, 1979. In order to come into compliance with the 
provisions of 1604.10(b), there can be no reduction of benefits or 
compensation which were in effect on October 31, 1978, before October 
31, 1979 or the expiration of a collective bargaining agreement in 
effect on October 31, 1978, whichever is later.
    (2) Any fringe benefit program implemented after October 31, 1978, 
must comply with the provisions of Sec.  1604.10(b) upon implementation.

[44 FR 23805, Apr. 20, 1979]



Sec.  1604.11  Sexual harassment.

    (a) Harassment on the basis of sex is a violation of section 703 of 
title VII. \1\ Unwelcome sexual advances, requests for sexual favors, 
and other verbal or physical conduct of a sexual nature constitute 
sexual harassment when (1) submission to such conduct is made either 
explicitly or implicitly a term or condition of an individual's 
employment, (2) submission to or rejection of such conduct by an 
individual is used as the basis for employment decisions affecting such 
individual, or (3) such conduct has the purpose or effect of 
unreasonably interfering with an individual's work performance or 
creating an intimidating, hostile, or offensive working environment.
---------------------------------------------------------------------------

    \1\ The principles involved here continue to apply to race, color, 
religion or national origin.
---------------------------------------------------------------------------

    (b) In determining whether alleged conduct constitutes sexual 
harassment, the Commission will look at the record as a whole and at the 
totality of the circumstances, such as the nature of the sexual advances 
and the context in which the alleged incidents occurred. The 
determination of the legality of a particular action will be made from 
the facts, on a case by case basis.
    (c) [Reserved]
    (d) With respect to conduct between fellow employees, an employer is 
responsible for acts of sexual harassment in the workplace where the 
employer (or its agents or supervisory employees) knows or should have 
known of the conduct, unless it can show that it took immediate and 
appropriate corrective action.
    (e) An employer may also be responsible for the acts of non-
employees, with respect to sexual harassment of employees in the 
workplace, where the employer (or its agents or supervisory employees) 
knows or should have known of the conduct and fails to take immediate 
and appropriate corrective action. In reviewing these cases the 
Commission will consider the extent of the employer's control and any 
other legal responsibility which the employer may have with respect to 
the conduct of such non-employees.
    (f) Prevention is the best tool for the elimination of sexual 
harassment. An employer should take all steps necessary to prevent 
sexual harassment from occurring, such as affirmatively raising the 
subject, expressing strong disapproval, developing appropriate 
sanctions, informing employees of their right to raise and how to raise 
the issue of harassment under title VII, and developing methods to 
sensitize all concerned.
    (g) Other related practices: Where employment opportunities or 
benefits are granted because of an individual's submission to the 
employer's sexual advances or requests for sexual favors, the employer 
may be held liable for unlawful sex discrimination against other

[[Page 204]]

persons who were qualified for but denied that employment opportunity or 
benefit.

           Appendix A to Sec.  1604.11--Background Information

    The Commission has rescinded Sec.  1604.11(c) of the Guidelines on 
Sexual Harassment, which set forth the standard of employer liability 
for harassment by supervisors. That section is no longer valid, in light 
of the Supreme Court decisions in Burlington Industries, Inc. v. 
Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 
U.S. 775 (1998). The Commission has issued a policy document that 
examines the Faragher and Ellerth decisions and provides detailed 
guidance on the issue of vicarious liability for harassment by 
supervisors. EEOC Enforcement Guidance: Vicarious Employer Liability for 
Unlawful Harassment by Supervisors (6/18/99), EEOC Compliance Manual 
(BNA), N:4075 [Binder 3]; also available through EEOC's web site, at 
www.eeoc.gov., or by calling the EEOC Publications Distribution Center, 
at 1-800-669-3362 (voice), 1-800-800-3302 (TTY).

(Title VII, Pub. L. 88-352, 78 Stat. 253 (42 U.S.C. 2000e et seq.))

[45 FR 74677, Nov. 10, 1980, as amended at 64 FR 58334, Oct. 29, 1999]



   Sec. Appendix to Part 1604--Questions and Answers on the Pregnancy 
       Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)

                              Introduction

    On October 31, 1978, President Carter signed into law the Pregnancy 
Discrimination Act (Pub. L. 95-955). The Act is an amendment to title 
VII of the Civil Rights Act of 1964 which prohibits, among other things, 
discrimination in employment on the basis of sex. The Pregnancy 
Discrimination Act makes it clear that ``because of sex'' or ``on the 
basis of sex'', as used in title VII, includes ``because of or on the 
basis of pregnancy, childbirth or related medical conditions.'' 
Therefore, title VII prohibits discrimination in employment against 
women affected by pregnancy or related conditions.
    The basic principle of the Act is that women affected by pregnancy 
and related conditions must be treated the same as other applicants and 
employees on the basis of their ability or inability to work. A woman is 
therefore protected against such practices as being fired, or refused a 
job or promotion, merely because she is pregnant or has had an abortion. 
She usually cannot be forced to go on leave as long as she can still 
work. If other employees who take disability leave are entitled to get 
their jobs back when they are able to work again, so are women who have 
been unable to work because of pregnancy.
    In the area of fringe benefits, such as disability benefits, sick 
leave and health insurance, the same principle applies. A woman unable 
to work for pregnancy-related reasons is entitled to disability benefits 
or sick leave on the same basis as employees unable to work for other 
medical reasons. Also, any health insurance provided must cover expenses 
for pregnancy-related conditions on the same basis as expenses for other 
medical conditions. However, health insurance for expenses arising from 
abortion is not required except where the life of the mother would be 
endangered if the fetus were carried to term, or where medical 
complications have arisen from an abortion.
    Some questions and answers about the Pregnancy Discrimination Act 
follow. Although the questions and answers often use only the term 
``employer,'' the Act--and these questions and answers--apply also to 
unions and other entities covered by title VII.
    1. Q. What is the effective date of the Pregnancy Discrimination 
Act?
    A. The Act became effective on October 31, 1978, except that with 
respect to fringe benefit programs in effect on that date, the Act will 
take effect 180 days thereafter, that is, April 29, 1979.
    To the extent that title VII already required employers to treat 
persons affected by pregnancy-related conditions the same as persons 
affected by other medical conditions, the Act does not change employee 
rights arising prior to October 31, 1978, or April 29, 1979. Most 
employment practices relating to pregnancy, childbirth and related 
conditions--whether concerning fringe benefits or other practices--were 
already controlled by title VII prior to this Act. For example, title 
VII has always prohibited an employer from firing, or refusing to hire 
or promote, a woman because of pregnancy or related conditions, and from 
failing to accord a woman on pregnancy-related leave the same seniority 
retention and accrual accorded those on other disability leaves.
    2. Q. If an employer had a sick leave policy in effect on October 
31, 1978, by what date must the employer bring its policy into 
compliance with the Act?
    A. With respect to payment of benefits, an employer has until April 
29, 1979, to bring into compliance any fringe benefit or insurance 
program, including a sick leave policy, which was in effect on October 
31, 1978. However, any such policy or program created after October 31, 
1978, must be in compliance when created.
    With respect to all aspects of sick leave policy other than payment 
of benefits, such as the terms governing retention and accrual

[[Page 205]]

of seniority, credit for vacation, and resumption of former job on 
return from sick leave, equality of treatment was required by title VII 
without the Amendment.
    3. Q. Must an employer provide benefits for pregnancy-related 
conditions to an employee whose pregnancy begins prior to April 29, 
1979, and continues beyond that date?
    A. As of April 29, 1979, the effective date of the Act's 
requirements, an employer must provide the same benefits for pregnancy-
related conditions as it provides for other conditions, regardless of 
when the pregnancy began. Thus, disability benefits must be paid for all 
absences on or after April 29, 1979, resulting from pregnancy-related 
temporary disabilities to the same extent as they are paid for absences 
resulting from other temporary disabilities. For example, if an employee 
gives birth before April 29, 1979, but is still unable to work on or 
after that date, she is entitled to the same disability benefits 
available to other employees. Similarily, medical insurance benefits 
must be paid for pregnancy-related expenses incurred on or after April 
29, 1979.
    If an employer requires an employee to be employed for a 
predetermined period prior to being eligible for insurance coverage, the 
period prior to April 29, 1979, during which a pregnant employee has 
been employed must be credited toward the eligibility waiting period on 
the same basis as for any other employee.
    As to any programs instituted for the first time after October 31, 
1978, coverage for pregnancy-related conditions must be provided in the 
same manner as for other medical conditions.
    4. Q. Would the answer to the preceding question be the same if the 
employee became pregnant prior to October 31, 1978?
    A. Yes.
    5. Q. If, for pregnancy-related reasons, an employee is unable to 
perform the functions of her job, does the employer have to provide her 
an alternative job?
    A. An employer is required to treat an employee temporarily unable 
to perform the functions of her job because of her pregnancy-related 
condition in the same manner as it treats other temporarily disabled 
employees, whether by providing modified tasks, alternative assignments, 
disability leaves, leaves without pay, etc. For example, a woman's 
primary job function may be the operation of a machine, and, incidental 
to that function, she may carry materials to and from the machine. If 
other employees temporarily unable to lift are relieved of these 
functions, pregnant employees also unable to lift must be temporarily 
relieved of the function.
    6. Q. What procedures may an employer use to determine whether to 
place on leave as unable to work a pregnant employee who claims she is 
able to work or deny leave to a pregnant employee who claims that she is 
disabled from work?
    A. An employer may not single out pregnancy-related conditions for 
special procedures for determining an employee's ability to work. 
However, an employer may use any procedure used to determine the ability 
of all employees to work. For example, if an employer requires its 
employees to submit a doctor's statement concerning their inability to 
work before granting leave or paying sick benefits, the employer may 
require employees affected by pregnancy-related conditions to submit 
such statement. Similarly, if an employer allows its employees to obtain 
doctor's statements from their personal physicians for absences due to 
other disabilities or return dates from other disabilities, it must 
accept doctor's statements from personal physicians for absences and 
return dates connected with pregnancy-related disabilities.
    7. Q. Can an employer have a rule which prohibits an employee from 
returning to work for a predetermined length of time after childbirth?
    A. No.
    8. Q. If an employee has been absent from work as a result of a 
pregnancy-related condition and recovers, may her employer require her 
to remain on leave until after her baby is born?
    A. No. An employee must be permitted to work at all times during 
pregnancy when she is able to perform her job.
    9. Q. Must an employer hold open the job of an employee who is 
absent on leave because she is temporarily disabled by pregnancy-related 
conditions?
    A. Unless the employee on leave has informed the employer that she 
does not intend to return to work, her job must be held open for her 
return on the same basis as jobs are held open for employees on sick or 
disability leave for other reasons.
    10. Q. May an employer's policy concerning the accrual and crediting 
of seniority during absences for medical conditions be different for 
employees affected by pregnancy-related conditions than for other 
employees?
    A. No. An employer's seniority policy must be the same for employees 
absent for pregnancy-related reasons as for those absent for other 
medical reasons.
    11. Q. For purposes of calculating such matters as vacations and pay 
increases, may an employer credit time spent on leave for pregnancy-
related reasons differently than time spent on leave for other reasons?
    A. No. An employer's policy with respect to crediting time for the 
purpose of calculating such matters as vacations and pay increases 
cannot treat employees on leave for pregnancy-related reasons less 
favorably than employees on leave for other reasons. For example, if 
employees on leave for medical reasons are credited with the time spent

[[Page 206]]

on leave when computing entitlement to vacation or pay raises, an 
employee on leave for pregnancy-related disability is entitled to the 
same kind of time credit.
    12. Q. Must an employer hire a woman who is medically unable, 
because of a pregnancy-related condition, to perform a necessary 
function of a job?
    A. An employer cannot refuse to hire a women because of her 
pregnancy-related condition so long as she is able to perform the major 
functions necessary to the job. Nor can an employer refuse to hire her 
because of its preferences against pregnant workers or the preferences 
of co-workers, clients, or customers.
    13. Q. May an employer limit disability benefits for pregnancy-
related conditions to married employees?
    A. No.
    14. Q. If an employer has an all female workforce or job 
classification, must benefits be provided for pregnancy-related 
conditions?
    A. Yes. If benefits are provided for other conditions, they must 
also be provided for pregnancy-related conditions.
    15. Q. For what length of time must an employer who provides income 
maintenance benefits for temporary disabilities provide such benefits 
for pregnancy-related disabilities?
    A. Benefits should be provided for as long as the employee is unable 
to work for medical reasons unless some other limitation is set for all 
other temporary disabilities, in which case pregnancy-related 
disabilities should be treated the same as other temporary disabilities.
    16. Q. Must an employer who provides benefits for long-term or 
permanent disabilities provide such benefits for pregnancy-related 
conditions?
    A. Yes. Benefits for long-term or permanent disabilities resulting 
from pregnancy-related conditions must be provided to the same extent 
that such benefits are provided for other conditions which result in 
long-term or permanent disability.
    17. Q. If an employer provides benefits to employees on leave, such 
as installment purchase disability insurance, payment of premiums for 
health, life or other insurance, continued payments into pension, saving 
or profit sharing plans, must the same benefits be provided for those on 
leave for pregnancy-related conditions?
    A. Yes, the employer must provide the same benefits for those on 
leave for pregnancy-related conditions as for those on leave for other 
reasons.
    18. Q. Can an employee who is absent due to a pregnancy-related 
disability be required to exhaust vacation benefits before receiving 
sick leave pay or disability benefits?
    A. No. If employees who are absent because of other disabling causes 
receive sick leave pay or disability benefits without any requirement 
that they first exhaust vacation benefits, the employer cannot impose 
this requirement on an employee absent for a pregnancy-related cause.
    18 (A). Q. Must an employer grant leave to a female employee for 
chidcare purposes after she is medically able to return to work 
following leave necessitated by pregnancy, childbirth or related medical 
conditions?
    A. While leave for childcare purposes is not covered by the 
Pregnancy Discrimination Act, ordinary title VII principles would 
require that leave for childcare purposes be granted on the same basis 
as leave which is granted to employees for other non-medical reasons. 
For example, if an employer allows its employees to take leave without 
pay or accrued annual leave for travel or education which is not job 
related, the same type of leave must be granted to those who wish to 
remain on leave for infant care, even though they are medically able to 
return to work.
    19. Q. If State law requires an employer to provide disability 
insurance for a specified period before and after childbirth, does 
compliance with the State law fulfill the employer's obligation under 
the Pregnancy Discrimination Act?
    A. Not necessarily. It is an employer's obligation to treat 
employees temporarily disabled by pregnancy in the same manner as 
employees affected by other temporary disabilities. Therefore, any 
restrictions imposed by State law on benefits for pregnancy-related 
disabilities, but not for other disabilities, do not excuse the employer 
from treating the individuals in both groups of employees the same. If, 
for example, a State law requires an employer to pay a maximum of 26 
weeks benefits for disabilities other than pregnancy-related ones but 
only six weeks for pregnancy-related disabilities, the employer must 
provide benefits for the additional weeks to an employee disabled by 
pregnancy-related conditions, up to the maximum provided other disabled 
employees.
    20. Q. If a State or local government provides its own employees 
income maintenance benefits for disabilities, may it provide different 
benefits for disabilities arising from pregnancy-related conditions than 
for disabilities arising from other conditions?
    A. No. State and local governments, as employers, are subject to the 
Pregnancy Discrimination Act in the same way as private employers and 
must bring their employment practices and programs into compliance with 
the Act, including disability and health insurance programs.
    21. Q. Must an employer provide health insurance coverage for the 
medical expenses of pregnancy-related conditions of the spouses of male 
employees? Of the dependents of all employees?
    A. Where an employer provides no coverage for dependents, the 
employer is not required

[[Page 207]]

to institute such coverage. However, if an employer's insurance program 
covers the medical expenses of spouses of female employees, then it must 
equally cover the medical expenses of spouses of male employees, 
including those arising from pregnancy-related conditions.
    But the insurance does not have to cover the pregnancy-related 
conditions of other dependents as long as it excludes the pregnancy-
related conditions of the dependents of male and female employees 
equally.
    22. Q. Must an employer provide the same level of health insurance 
coverage for the pregnancy-related medical conditions of the spouses of 
male employees as it provides for its female employees?
    A. No. It is not necessary to provide the same level of coverage for 
the pregnancy-related medical conditions of spouses of male employees as 
for female employees. However, where the employer provides coverage for 
the medical conditions of the spouses of its employees, then the level 
of coverage for pregnancy-related medical conditions of the spouses of 
male employees must be the same as the level of coverage for all other 
medical conditions of the spouses of female employees. For example, if 
the employer covers employees for 100 percent of reasonable and 
customary expenses sustained for a medical condition, but only covers 
dependent spouses for 50 percent of reasonable and customary expenses 
for their medical conditions, the pregnancy-related expenses of the male 
employee's spouse must be covered at the 50 percent level.
    23. Q. May an employer offer optional dependent coverage which 
excludes pregnancy-related medical conditions or offers less coverage 
for pregnancy-related medical conditions where the total premium for the 
optional coverage is paid by the employee?
    A. No. Pregnancy-related medical conditions must be treated the same 
as other medical conditions under any health or disability insurance or 
sick leave plan available in connection with employment, regardless of 
who pays the premiums.
    24. Q. Where an employer provides its employees a choice among 
several health insurance plans, must coverage for pregnancy-related 
conditions be offered in all of the plans?
    A. Yes. Each of the plans must cover pregnancy-related conditions. 
For example, an employee with a single coverage policy cannot be forced 
to purchase a more expensive family coverage policy in order to receive 
coverage for her own pregnancy-related condition.
    25. Q. On what basis should an employee be reimbursed for medical 
expenses arising from pregnancy, childbirth or related conditions?
    A. Pregnancy-related expenses should be reimbursed in the same 
manner as are expenses incurred for other medical conditions. Therefore, 
whether a plan reimburses the employees on a fixed basis, or a 
percentage of reasonable and customary charge basis, the same basis 
should be used for reimbursement of expenses incurred for pregnancy-
related conditions. Furthermore, if medical costs for pregnancy-related 
conditions increase, reevaluation of the reimbursement level should be 
conducted in the same manner as are cost reevaluations of increases for 
other medical conditions.
    Coverage provided by a health insurance program for other conditions 
must be provided for pregnancy-related conditions. For example, if a 
plan provides major medical coverage, pregnancy-related conditions must 
be so covered. Similarily, if a plan covers the cost of a private room 
for other conditions, the plan must cover the cost of a private room for 
pregnancy-related conditions. Finally, where a health insurance plan 
covers office visits to physicians, pre-natal and post-natal visits must 
be included in such coverage.
    26. Q. May an employer limit payment of costs for pregnancy-related 
medical conditions to a specified dollar amount set forth in an 
insurance policy, collective bargaining agreement or other statement of 
benefits to which an employee is entitled?
    A. The amounts payable for the costs incurred for pregnancy-related 
conditions can be limited only to the same extent as are costs for other 
conditions. Maximum recoverable dollar amounts may be specified for 
pregnancy-related conditions if such amounts are similarly specified for 
other conditions, and so long as the specified amounts in all instances 
cover the same proportion of actual costs. If, in addition to the 
scheduled amount for other procedures, additional costs are paid for, 
either directly or indirectly, by the employer, such additional payments 
must also be paid for pregnancy-related procedures.
    27. Q. May an employer impose a different deductible for payment of 
costs for pregnancy-related medical conditions than for costs of other 
medical conditions?
    A. No. Neither an additional deductible, an increase in the usual 
deductible, nor a larger deductible can be imposed for coverage for 
pregnancy-related medical costs, whether as a condition for inclusion of 
pregnancy-related costs in the policy or for payment of the costs when 
incurred. Thus, if pregnancy-related costs are the first incurred under 
the policy, the employee is required to pay only the same deductible as 
would otherwise be required had other medical costs been the first 
incurred. Once this deductible has been paid, no additional deductible 
can be required for other medical procedures. If the usual deductible 
has already been paid for

[[Page 208]]

other medical procedures, no additional deductible can be required when 
pregnancy-related costs are later incurred.
    28. Q. If a health insurance plan excludes the payment of benefits 
for any conditions existing at the time the insured's coverage becomes 
effective (pre-existing condition clause), can benefits be denied for 
medical costs arising from a pregnancy existing at the time the coverage 
became effective?
    A. Yes. However, such benefits cannot be denied unless the pre-
existing condition clause also excludes benefits for other pre-existing 
conditions in the same way.
    29. Q. If an employer's insurance plan provides benefits after the 
insured's employment has ended (i.e. extended benefits) for costs 
connected with pregnancy and delivery where conception occurred while 
the insured was working for the employer, but not for the costs of any 
other medical condition which began prior to termination of employment, 
may an employer (a) continue to pay these extended benefits for 
pregnancy-related medical conditions but not for other medical 
conditions, or (b) terminate these benefits for pregnancy-related 
conditions?
    A. Where a health insurance plan currently provides extended 
benefits for other medical conditions on a less favorable basis than for 
pregnancy-related medical conditions, extended benefits must be provided 
for other medical conditions on the same basis as for pregnancy-related 
medical conditions. Therefore, an employer can neither continue to 
provide less benefits for other medical conditions nor reduce benefits 
currently paid for pregnancy-related medical conditions.
    30. Q. Where an employer's health insurance plan currently requires 
total disability as a prerequisite for payment of extended benefits for 
other medical conditions but not for pregnancy-related costs, may the 
employer now require total disability for payment of benefits for 
pregnancy-related medical conditions as well?
    A. Since extended benefits cannot be reduced in order to come into 
compliance with the Act, a more stringent prerequisite for payment of 
extended benefits for pregnancy-related medical conditions, such as a 
requirement for total disability, cannot be imposed. Thus, in this 
instance, in order to comply with the Act, the employer must treat other 
medical conditions as pregnancy-related conditions are treated.
    31. Q. Can the added cost of bringing benefit plans into compliance 
with the Act be apportioned between the employer and employee?
    A. The added cost, if any, can be apportioned between the employer 
and employee in the same proportion that the cost of the fringe benefit 
plan was apportioned on October 31, 1978, if that apportionment was 
nondiscriminatory. If the costs were not apportioned on October 31, 
1978, they may not be apportioned in order to come into compliance with 
the Act. However, in no circumstance may male or female employees be 
required to pay unequal apportionments on the basis of sex or pregnancy.
    32. Q. In order to come into compliance with the Act, may an 
employer reduce benefits or compensation?
    A. In order to come into compliance with the Act, benefits or 
compensation which an employer was paying on October 31, 1978 cannot be 
reduced before October 31, 1979 or before the expiration of a collective 
bargaining agreement in effect on October 31, 1978, whichever is later.
    Where an employer has not been in compliance with the Act by the 
times specified in the Act, and attempts to reduce benefits, or 
compensation, the employer may be required to remedy its practices in 
accord with ordinary title VII remedial principles.
    33. Q. Can an employer self-insure benefits for pregnancy-related 
conditions if it does not self-insure benefits for other medical 
conditions?
    A. Yes, so long as the benefits are the same. In measuring whether 
benefits are the same, factors other than the dollar coverage paid 
should be considered. Such factors include the range of choice of 
physicians and hospitals, and the processing and promptness of payment 
of claims.
    34. Q. Can an employer discharge, refuse to hire or otherwise 
discriminate against a woman because she has had an abortion?
    A. No. An employer cannot discriminate in its employment practices 
against a woman who has had an abortion.
    35. Q. Is an employer required to provide fringe benefits for 
abortions if fringe benefits are provided for other medical conditions?
    A. All fringe benefits other than health insurance, such as sick 
leave, which are provided for other medical conditions, must be provided 
for abortions. Health insurance, however, need be provided for abortions 
only where the life of the woman would be endangered if the fetus were 
carried to term or where medical complications arise from an abortion.
    36. Q. If complications arise during the course of an abortion, as 
for instance excessive hemorrhaging, must an employer's health insurance 
plan cover the additional cost due to the complications of the abortion?
    A. Yes. The plan is required to pay those additional costs 
attributable to the complications of the abortion. However, the employer 
is not required to pay for the abortion itself, except where the life of 
the mother would be endangered if the fetus were carried to term.
    37. Q. May an employer elect to provide insurance coverage for 
abortions?
    A. Yes. The Act specifically provides that an employer is not 
precluded from providing

[[Page 209]]

benefits for abortions whether directly or through a collective 
bargaining agreement, but if an employer decides to cover the costs of 
abortion, the employer must do so in the same manner and to the same 
degree as it covers other medical conditions.

[44 FR 23805, Apr. 20, 1979]



PART 1605_GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION--Table of Contents



Sec.
1605.1 ``Religious'' nature of a practice or belief.
1605.2 Reasonable accommodation without undue hardship as required by 
          section 701(j) of title VII of the Civil Rights Act of 1964.
1605.3 Selection practices.

Appendix A to Sec. Sec.  1605.2 and 1605.3 of Part 1605--Background 
          Information

    Authority: Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. 2000e et seq.

    Source: 45 FR 72612, Oct. 31, 1980, unless otherwise noted.



Sec.  1605.1  ``Religious'' nature of a practice or belief.

    In most cases whether or not a practice or belief is religious is 
not at issue. However, in those cases in which the issue does exist, the 
Commission will define religious practices to include moral or ethical 
beliefs as to what is right and wrong which are sincerely held with the 
strength of traditional religious views. This standard was developed in 
United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 
398 U.S. 333 (1970). The Commission has consistently applied this 
standard in its decisions. \1\ The fact that no religious group espouses 
such beliefs or the fact that the religious group to which the 
individual professes to belong may not accept such belief will not 
determine whether the belief is a religious belief of the employee or 
prospective employee. The phrase ``religious practice'' as used in these 
Guidelines includes both religious observances and practices, as stated 
in section 701(j), 42 U.S.C. 2000e(j).
---------------------------------------------------------------------------

    \1\ See CD 76-104 (1976), CCH ] 6500; CD 71-2620 (1971), CCH ] 6283; 
CD 71-779 (1970), CCH ] 6180.
---------------------------------------------------------------------------



Sec.  1605.2  Reasonable accommodation without undue hardship as required
by section 701(j) of title VII of the Civil Rights Act of 1964.

    (a) Purpose of this section. This section clarifies the obligation 
imposed by title VII of the Civil Rights Act of 1964, as amended, 
(sections 701(j), 703 and 717) to accommodate the religious practices of 
employees and prospective employees. This section does not address other 
obligations under title VII not to discriminate on grounds of religion, 
nor other provisions of title VII. This section is not intended to limit 
any additional obligations to accommodate religious practices which may 
exist pursuant to constitutional, or other statutory provisions; neither 
is it intended to provide guidance for statutes which require 
accommodation on bases other than religion such as section 503 of the 
Rehabilitation Act of 1973. The legal principles which have been 
developed with respect to discrimination prohibited by title VII on the 
bases of race, color, sex, and national origin also apply to religious 
discrimination in all circumstances other than where an accommodation is 
required.
    (b) Duty to accommodate. (1) Section 701(j) makes it an unlawful 
employment practice under section 703(a)(1) for an employer to fail to 
reasonably accommodate the religious practices of an employee or 
prospective employee, unless the employer demonstrates that 
accommodation would result in undue hardship on the conduct of its 
business. \2\
---------------------------------------------------------------------------

    \2\ See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 
(1977).
---------------------------------------------------------------------------

    (2) Section 701(j) in conjunction with section 703(c), imposes an 
obligation on a labor organization to reasonably accommodate the 
religious practices of an employee or prospective employee, unless the 
labor organization demonstrates that accommodation would result in undue 
hardship.
    (3) Section 1605.2 is primarily directed to obligations of employers 
or labor organizations, which are the entities covered by title VII that 
will most often be required to make an accommodation. However, the 
principles of

[[Page 210]]

Sec.  1605.2 also apply when an accommodation can be required of other 
entities covered by title VII, such as employment agencies (section 
703(b)) or joint labor-management committees controlling apprecticeship 
or other training or retraining (section 703(d)). (See, for example, 
Sec.  1605.3(a) ``Scheduling of Tests or Other Selection Procedures.'')
    (c) Reasonable accommodation. (1) After an employee or prospective 
employee notifies the employer or labor organization of his or her need 
for a religious accommodation, the employer or labor organization has an 
obligation to reasonably accommodate the individual's religious 
practices. A refusal to accommodate is justified only when an employer 
or labor organization can demonstrate that an undue hardship would in 
fact result from each available alternative method of accommodation. A 
mere assumption that many more people, with the same religious practices 
as the person being accommodated, may also need accommodation is not 
evidence of undue hardship.
    (2) When there is more than one method of accommodation available 
which would not cause undue hardship, the Commission will determine 
whether the accommodation offered is reasonable by examining:
    (i) The alternatives for accommodation considered by the employer or 
labor organization; and
    (ii) The alternatives for accommodation, if any, actually offered to 
the individual requiring accommodation. Some alternatives for 
accommodating religious practices might disadvantage the individual with 
respect to his or her employment opportunites, such as compensation, 
terms, conditions, or privileges of employment. Therefore, when there is 
more than one means of accommodation which would not cause undue 
hardship, the employer or labor organization must offer the alternative 
which least disadvantages the individual with respect to his or her 
employment opportunities.
    (d) Alternatives for accommodating religious practices. (1) 
Employees and prospective employees most frequently request an 
accommodation because their religious practices conflict with their work 
schedules. The following subsections are some means of accommodating the 
conflict between work schedules and religious practices which the 
Commission believes that employers and labor organizations should 
consider as part of the obligation to accommodate and which the 
Commission will consider in investigating a charge. These are not 
intended to be all-inclusive. There are often other alternatives which 
would reasonably accommodate an individual's religious practices when 
they conflict with a work schedule. There are also employment practices 
besides work scheduling which may conflict with religious practices and 
cause an individual to request an accommodation. See, for example, the 
Commission's finding number (3) from its Hearings on Religious 
Discrimination, in appendix A to Sec. Sec.  1605.2 and 1605.3. The 
principles expressed in these Guidelines apply as well to such requests 
for accommodation.
    (i) Voluntary Substitutes and ``Swaps''.
    Reasonable accommodation without undue hardship is generally 
possible where a voluntary substitute with substantially similar 
qualifications is available. One means of substitution is the voluntary 
swap. In a number of cases, the securing of a substitute has been left 
entirely up to the individual seeking the accommodation. The Commission 
believes that the obligation to accommodate requires that employers and 
labor organizations facilitate the securing of a voluntary substitute 
with substantially similar qualifications. Some means of doing this 
which employers and labor organizations should consider are: to 
publicize policies regarding accommodation and voluntary substitution; 
to promote an atmosphere in which such substitutions are favorably 
regarded; to provide a central file, bulletin board or other means for 
matching voluntary substitutes with positions for which substitutes are 
needed.
    (ii) Flexible Scheduling.
    One means of providing reasonable accommodation for the religious 
practices of employees or prospective employees which employers and 
labor organizations should consider is the creation of a flexible work 
schedule for individuals requesting accommodation.

[[Page 211]]

    The following list is an example of areas in which flexibility might 
be introduced: flexible arrival and departure times; floating or 
optional holidays; flexible work breaks; use of lunch time in exchange 
for early departure; staggered work hours; and permitting an employee to 
make up time lost due to the observance of religious practices. \3\
---------------------------------------------------------------------------

    \3\ On September 29, 1978, Congress enacted such a provision for the 
accommodation of Federal employees' religious practices. See Pub. L. 95-
390, 5 U.S.C. 5550a ``Compensatory Time Off for Religious Observances.''
---------------------------------------------------------------------------

    (iii) Lateral Transfer and Change of Job Assignments.
    When an employee cannot be accommodated either as to his or her 
entire job or an assignment within the job, employers and labor 
organizations should consider whether or not it is possible to change 
the job assignment or give the employee a lateral transfer.
    (2) Payment of Dues to a Labor Organization.
    Some collective bargaining agreements include a provision that each 
employee must join the labor organization or pay the labor organization 
a sum equivalent to dues. When an employee's religious practices to not 
permit compliance with such a provision, the labor organization should 
accommodate the employee by not requiring the employee to join the 
organization and by permitting him or her to donate a sum equivalent to 
dues to a charitable organization.
    (e) Undue hardship. (1) Cost. An employer may assert undue hardship 
to justify a refusal to accommodate an employee's need to be absent from 
his or her scheduled duty hours if the employer can demonstrate that the 
accommodation would require ``more than a de minimis cost''. \4\ The 
Commission will determine what constitutes ``more than a de minimis 
cost'' with due regard given to the identifiable cost in relation to the 
size and operating cost of the employer, and the number of individuals 
who will in fact need a particular accommodation. In general, the 
Commission interprets this phrase as it was used in the Hardison 
decision to mean that costs similar to the regular payment of premium 
wages of substitutes, which was at issue in Hardison, would constitute 
undue hardship. However, the Commission will presume that the infrequent 
payment of premium wages for a substitute or the payment of premium 
wages while a more permanent accommodation is being sought are costs 
which an employer can be required to bear as a means of providing a 
reasonable accommodation. Further, the Commission will presume that 
generally, the payment of administrative costs necessary for providing 
the accommodation will not constitute more than a de minimis cost. 
Administrative costs, for example, include those costs involved in 
rearranging schedules and recording substitutions for payroll purposes.
---------------------------------------------------------------------------

    \4\ Hardison, supra, 432 U.S. at 84.
---------------------------------------------------------------------------

    (2) Seniority Rights. Undue hardship would also be shown where a 
variance from a bona fide seniority system is necessary in order to 
accommodate an employee's religious practices when doing so would deny 
another employee his or her job or shift preference guaranteed by that 
system. Hardison, supra, 432 U.S. at 80. Arrangements for voluntary 
substitutes and swaps (see paragraph (d)(1)(i) of this section) do not 
constitute an undue hardship to the extent the arrangements do not 
violate a bona fide seniority system. Nothing in the Statute or these 
Guidelines precludes an employer and a union from including arrangements 
for voluntary substitutes and swaps as part of a collective bargaining 
agreement.



Sec.  1605.3  Selection practices.

    (a) Scheduling of tests or other selection procedures. When a test 
or other selection procedure is scheduled at a time when an employee or 
prospective employee cannot attend because of his or her religious 
practices, the user of the test should be aware that the principles 
enunciated in these guidelines apply and that it has an obligation to 
accommodate such employee or prospective employee unless undue hardship 
would result.
    (b) Inquiries which determine an applicant's availability to work 
during an employer's scheduled working hours. (1) The duty to 
accommodate pertains to prospective employees as well as current 
employees. Consequently, an employer may not permit an applicant's need 
for a religious accommodation to affect in

[[Page 212]]

any way its decision whether to hire the applicant unless it can 
demonstrate that it cannot reasonably accommodate the applicant's 
religious practices without undue hardship.
    (2) As a result of the oral and written testimony submitted at the 
Commission's Hearings on Religious Discrimination, discussions with 
representatives of organizations interested in the issue of religious 
discrimination, and the comments received from the public on these 
Guidelines as proposed, the Commission has concluded that the use of 
pre-selection inquiries which determine an applicant's availability has 
an exclusionary effect on the employment opportunities of persons with 
certain religious practices. The use of such inquiries will, therefore, 
be considered to violate title VII unless the employer can show that it:
    (i) Did not have an exclusionary effect on its employees or 
prospective employees needing an accommodation for the same religious 
practices; or
    (ii) Was otherwise justified by business necessity.

Employers who believe they have a legitimate interest in knowing the 
availability of their applicants prior to selection must consider 
procedures which would serve this interest and which would have a lesser 
exclusionary effect on persons whose religious practices need 
accommodation. An example of such a procedure is for the employer to 
state the normal work hours for the job and, after making it clear to 
the applicant that he or she is not required to indicate the need for 
any absences for religious practices during the scheduled work hours, 
ask the applicant whether he or she is otherwise available to work those 
hours. Then, after a position is offered, but before the applicant is 
hired, the employer can inquire into the need for a religious 
accommodation and determine, according to the principles of these 
Guidelines, whether an accommodation is possible. This type of inquiry 
would provide an employer with information concerning the availability 
of most of its applicants, while deferring until after a position is 
offered the identification of the usually small number of applicants who 
require an accommodation.
    (3) The Commission will infer that the need for an accommodation 
discriminatorily influenced a decision to reject an applicant when: (i) 
prior to an offer of employment the employer makes an inquiry into an 
applicant's availability without having a business necessity 
justification; and (ii) after the employer has determined the 
applicant's need for an accommodation, the employer rejects a qualified 
applicant. The burden is then on the employer to demonstrate that 
factors other than the need for an accommodation were the reason for 
rejecting the qualified applicant, or that a reasonable accommodation 
without undue hardship was not possible.



 Sec. Appendix A to Sec. Sec.  1605.2 and 1605.3--Background Information

    In 1966, the Commission adopted guidelines on religious 
discrimination which stated that an employer had an obligation to 
accommodate the religious practices of its employees or prospective 
employees unless to do so would create a ``serious inconvenience to the 
conduct of the business''. 29 CFR 1605.1(a)(2), 31 FR 3870 (1966).
    In 1967, the Commission revised these guidelines to state that an 
employer had an obligation to reasonably accommodate the religious 
practices of its employees or prospective employees, unless the employer 
could prove that to do so would create an ``undue hardship''. 29 CFR 
1605.1(b)(c), 32 FR 10298.
    In 1972, Congress amended title VII to incorporate the obligation to 
accommodate expressed in the Commission's 1967 Guidelines by adding 
section 701(j).
    In 1977, the United States Supreme Court issued its decision in the 
case of Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 
Hardison was brought under section 703(a)(1) because it involved facts 
occurring before the enactment of section 701(j). The Court applied the 
Commission's 1967 Guidelines, but indicated that the result would be the 
same under section 701(j). It stated that Trans World Airlines had made 
reasonable efforts to accommodate the religious needs of its employee, 
Hardison. The Court held that to require Trans World Airlines to make 
further attempts at accommodations--by unilaterally violating a 
seniority provision of the collective bargaining agreement, paying 
premium wages on a regular basis to another employee to replace 
Hardison, or creating a serious shortage of necessary employees in 
another department in order to replace Hardison--would create an undue 
hardship on the conduct of Trans World Airlines'

[[Page 213]]

business, and would therefore, exceed the duty to accommodate Hardison.
    In 1978, the Commission conducted public hearings on religious 
discrimination in New York City, Milwaukee, and Los Angeles in order to 
respond to the concerns raised by Hardison. Approximately 150 witnesses 
testified or submitted written statements. \5\ The witnesses included 
employers, employees, representatives of religious and labor 
organizations and representatives of Federal, State and local 
governments.
---------------------------------------------------------------------------

    \5\ The transcript of the Commission's Hearings on Religious 
Discrimination can be examined by the public at: The Equal Employment 
Opportunity Commission, 131 M Street, NE., Washington, DC 20507.
---------------------------------------------------------------------------

    The Commission found from the hearings that:
    (1) There is widespread confusion concerning the extent of 
accommodation under the Hardison decision.
    (2) The religious practices of some individuals and some groups of 
individuals are not being accommodated.
    (3) Some of those practices which are not being accommodated are:
    --Observance of a Sabbath or religious holidays;
    --Need for prayer break during working hours;
    --Practice of following certain dietary requirements;
    --Practice of not working during a mourning period for a deceased 
relative;
    --Prohibition against medical examinations;
    --Prohibition against membership in labor and other organizations; 
and
    --Practices concerning dress and other personal grooming habits.
    (4) Many of the employers who testified had developed alternative 
employment practices which accommodate the religious practices of 
employees and prospective employees and which meet the employer's 
business needs.
    (5) Little evidence was submitted by employers which showed actual 
attempts to accommodate religious practices with resultant unfavorable 
consequences to the employer's business. Employers appeared to have 
substantial anticipatory concerns but no, or very little, actual 
experience with the problems they theorized would emerge by providing 
reasonable accommodation for religious practices.
    Based on these findings, the Commission is revising its Guidelines 
to clarify the obligation imposed by section 701(j) to accommodate the 
religious practices of employees and prospective employees.

[45 FR 72612, Oct. 31, 1980, as amended at 74 FR 3430, Jan. 21, 2009]



PART 1606_GUIDELINES ON DISCRIMINATION BECAUSE OF NATIONAL ORIGIN-
-Table of Contents



Sec.
1606.1 Definition of national origin discrimination.
1606.2 Scope of title VII protection.
1606.3 The national security exception.
1606.4 The bona fide occupational qualification exception.
1606.5 Citizenship requirements.
1606.6 Selection procedures.
1606.7 Speak-English-only rules.
1606.8 Harassment.

    Authority: Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. 2000e et seq.

    Source: 45 FR 85635, Dec. 29, 1980, unless otherwise noted.



Sec.  1606.1  Definition of national origin discrimination.

    The Commission defines national origin discrimination broadly as 
including, but not limited to, the denial of equal employment 
opportunity because of an individual's, or his or her ancestor's, place 
of origin; or because an individual has the physical, cultural or 
linguistic characteristics of a national origin group. The Commission 
will examine with particular concern charges alleging that individuals 
within the jurisdiction of the Commission have been denied equal 
employment opportunity for reasons which are grounded in national origin 
considerations, such as (a) marriage to or association with persons of a 
national origin group; (b) membership in, or association with an 
organization identified with or seeking to promote the interests of 
national origin groups; (c) attendance or participation in schools, 
churches, temples or mosques, generally used by persons of a national 
origin group; and (d) because an individual's name or spouse's name is 
associated with a national origin group. In examining these charges for 
unlawful national origin discrimination, the Commission will apply 
general title VII principles, such as disparate treatment and adverse 
impact.



Sec.  1606.2  Scope of title VII protection.

    Title VII of the Civil Rights Act of 1964, as amended, protects 
individuals against employment discrimination on the basis of race, 
color, religion, sex or

[[Page 214]]

national origin. The title VII principles of disparate treatment and 
adverse impact equally apply to national origin discrimination. These 
Guidelines apply to all entities covered by title VII (collectively 
referred to as ``employer'').



Sec.  1606.3  The national security exception.

    It is not an unlawful employment practice to deny employment 
opportunities to any individual who does not fulfill the national 
security requirements stated in section 703(g) of title VII. \1\
---------------------------------------------------------------------------

    \1\ See also, 5 U.S.C. 7532, for the authority of the head of a 
Federal agency or department to suspend or remove an employee on grounds 
of national security.
---------------------------------------------------------------------------



Sec.  1606.4  The bona fide occupational qualification exception.

    The exception stated in section 703(e) of title VII, that national 
origin may be a bona fide occupational qualification, shall be strictly 
construed.



Sec.  1606.5  Citizenship requirements.

    (a) In those circumstances, where citizenship requirements have the 
purpose or effect of discriminating against an individual on the basis 
of national origin, they are prohibited by title VII. \2\
---------------------------------------------------------------------------

    \2\ See Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 92 (1973). 
See also, E.O. 11935, 5 CFR 7.4; and 31 U.S.C. 699(b), for citizenship 
requirements in certain Federal employment.
---------------------------------------------------------------------------

    (b) Some State laws prohibit the employment of non-citizens. Where 
these laws are in conflict with title VII, they are superseded under 
section 708 of the title.



Sec.  1606.6  Selection procedures.

    (a)(1) In investigating an employer's selection procedures 
(including those identified below) for adverse impact on the basis of 
national origin, the Commission will apply the Uniform Guidelines on 
Employee Selection Procedures (UGESP), 29 CFR part 1607. Employers and 
other users of selection procedures should refer to the UGESP for 
guidance on matters, such as adverse impact, validation and 
recordkeeping requirements for national origin groups.
    (2) Because height or weight requirements tend to exclude 
individuals on the basis of national origin, \3\ the user is expected to 
evaluate these selection procedures for adverse impact, regardless of 
whether the total selection process has an adverse impact based on 
national origin. Therefore, height or weight requirements are identified 
here, as they are in the UGESP, \4\ as exceptions to the ``bottom line'' 
concept.
---------------------------------------------------------------------------

    \3\ See CD 71-1529 (1971), CCH EEOC Decisions ] 6231, 3 FEP Cases 
952; CD 71-1418 (1971), CCH EEOC Decisions ] 6223, 3 FEP Cases 580; CD 
74-25 (1973), CCH EEOC Decisions ] 6400, 10 FEP Cases 260. Davis v. 
County of Los Angeles, 566 F. 2d 1334, 1341-42 (9th Cir., 1977) vacated 
and remanded as moot on other grounds, 440 U.S. 625 (1979). See also, 
Dothard v. Rawlinson, 433 U.S. 321 (1977).
    \4\ See section 4C(2) of the Uniform Guidelines on Employee 
Selection Procedures, 29 CFR 1607.4C(2).
---------------------------------------------------------------------------

    (b) The Commission has found that the use of the following selection 
procedures may be discriminatory on the basis of national origin. 
Therefore, it will carefully investigate charges involving these 
selection procedures for both disparate treatment and adverse impact on 
the basis of national origin. However, the Commission does not consider 
these to be exceptions to the ``bottom line'' concept:
    (1) Fluency-in-English requirements, such as denying employment 
opportunities because of an individual's foreign accent, \5\ or 
inability to communicate well in English. \6\
---------------------------------------------------------------------------

    \5\ See CD AL68-1-155E (1969), CCH EEOC Decisions ] 6008, 1 FEP 
Cases 921.
    \6\ See CD YAU9-048 (1969), CCH EEOC Decisions ] 6054, 2 FEP Cases 
78.
---------------------------------------------------------------------------

    (2) Training or education requirements which deny employment 
opportunities to an individual because of his or her foreign training or 
education, or which require an individual to be foreign trained or 
educated.



Sec.  1606.7  Speak-English-only rules.

    (a) When applied at all times. A rule requiring employees to speak 
only English at all times in the workplace is a burdensome term and 
condition of employment. The primary language of an individual is often 
an essential national origin characteristic. Prohibiting employees at 
all times, in the workplace, from speaking their primary language or the 
language they speak most comfortably, disadvantages

[[Page 215]]

an individual's employment opportunities on the basis of national 
origin. It may also create an atmosphere of inferiority, isolation and 
intimidation based on national origin which could result in a 
discriminatory working environment. \7\ Therefore, the Commission will 
presume that such a rule violates title VII and will closely scrutinize 
it.
---------------------------------------------------------------------------

    \7\ See CD 71-446 (1970), CCH EEOC Decisions ] 6173, 2 FEP Cases, 
1127; CD 72-0281 (1971), CCH EEOC Decisions ] 6293.
---------------------------------------------------------------------------

    (b) When applied only at certain times. An employer may have a rule 
requiring that employees speak only in English at certain times where 
the employer can show that the rule is justified by business necessity.
    (c) Notice of the rule. It is common for individuals whose primary 
language is not English to inadvertently change from speaking English to 
speaking their primary language. Therefore, if an employer believes it 
has a business necessity for a speak-English-only rule at certain times, 
the employer should inform its employees of the general circumstances 
when speaking only in English is required and of the consequences of 
violating the rule. If an employer fails to effectively notify its 
employees of the rule and makes an adverse employment decision against 
an individual based on a violation of the rule, the Commission will 
consider the employer's application of the rule as evidence of 
discrimination on the basis of national origin.



Sec.  1606.8  Harassment.

    (a) The Commission has consistently held that harassment on the 
basis of national origin is a violation of title VII. An employer has an 
affirmative duty to maintain a working environment free of harassment on 
the basis of national origin. \8\
---------------------------------------------------------------------------

    \8\ See CD CL68-12-431 EU (1969), CCH EEOC Decisions ] 6085, 2 FEP 
Cases 295; CD 72-0621 (1971), CCH EEOC Decisions ] 6311, 4 FEP Cases 
312; CD 72-1561 (1972), CCH EEOC Decisions ] 6354, 4 FEP Cases 852; CD 
74-05 (1973), CCH EEOC Decisions ] 6387, 6 FEP Cases 834; CD 76-41 
(1975), CCH EEOC Decisions ] 6632. See also, Amendment to Guidelines on 
Discrimination Because of Sex, Sec.  1604.11(a) n. 1, 45 FR 7476 sy 
74677 (November 10, 1980).
---------------------------------------------------------------------------

    (b) Ethnic slurs and other verbal or physical conduct relating to an 
individual's national origin constitute harassment when this conduct:
    (1) Has the purpose or effect of creating an intimidating, hostile 
or offensive working environment;
    (2) Has the purpose or effect of unreasonably interfering with an 
individual's work performance; or
    (3) Otherwise adversely affects an individual's employment 
opportunities.
    (c) [Reserved]
    (d) With respect to conduct between fellow employees, an employer is 
responsible for acts of harassment in the workplace on the basis of 
national origin, where the employer, its agents or supervisory 
employees, knows or should have known of the conduct, unless the 
employer can show that it took immediate and appropriate corrective 
action.
    (e) An employer may also be responsible for the acts of non-
employees with respect to harassment of employees in the workplace on 
the basis of national origin, where the employer, its agents or 
supervisory employees, knows or should have known of the conduct and 
fails to take immediate and appropriate corrective action. In reviewing 
these cases, the Commission will consider the extent of the employer's 
control and any other legal responsibility which the employer may have 
with respect to the conduct of such non-employees.

           Appendix A to Sec.  1606.8--Background Information

    The Commission has rescinded Sec.  1606.8(c) of the Guidelines on 
National Origin Harassment, which set forth the standard of employer 
liability for harassment by supervisors. That section is no longer 
valid, in light of the Supreme Court decisions in Burlington Industries, 
Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca 
Raton, 524 U.S. 775 (1998). The Commission has issued a policy document 
that examines the Faragher and Ellerth decisions and provides detailed 
guidance on the issue of vicarious liability for harassment by 
supervisors. EEOC Enforcement Guidance: Vicarious Employer Liability for 
Unlawful Harassment by Supervisors (6/18/99), EEOC Compliance Manual 
(BNA), N:4075 [Binder 3]; also available through EEOC's web site, at 
www.eeoc.gov.,

[[Page 216]]

or by calling the EEOC Publications Distribution Center, at 1-800-669-
3362 (voice), 1-800-800-3302 (TTY).

[45 FR 85635, Dec. 29, 1980, as amended at 64 FR 58334, Oct. 29, 1999]



PART 1607_UNIFORM GUIDELINES ON EMPLOYEE SELECTION PROCEDURES (1978)-
-Table of Contents



                           General Principles

Sec.
1607.1 Statement of purpose.
1607.2 Scope.
1607.3 Discrimination defined: Relationship between use of selection 
          procedures and discrimination.
1607.4 Information on impact.
1607.5 General standards for validity studies.
1607.6 Use of selection procedures which have not been validated.
1607.7 Use of other validity studies.
1607.8 Cooperative studies.
1607.9 No assumption of validity.
1607.10 Employment agencies and employment services.
1607.11 Disparate treatment.
1607.12 Retesting of applicants.
1607.13 Affirmative action.

                           Technical Standards

1607.14 Technical standards for validity studies.

              Documentation of Impact and Validity Evidence

1607.15 Documentation of impact and validity evidence.

                               Definitions

1607.16 Definitions.

                                Appendix

1607.17 Policy statement on affirmative action (see section 13B).
1607.18 Citations.

    Authority: Secs. 709 and 713, Civil Rights Act of 1964 (78 Stat. 
265) as amended by the Equal Employment Opportunity Act of 1972 (Pub. L. 
92-261); 42 U.S.C. 2000e-8, 2000e-12.

    Source: 43 FR 38295, 38312, Aug. 25, 1978, unless otherwise noted.

                           General Principles



Sec.  1607.1  Statement of purpose.

    A. Need for uniformity--Issuing agencies. The Federal government's 
need for a uniform set of principles on the question of the use of tests 
and other selection procedures has long been recognized. The Equal 
Employment Opportunity Commission, the Civil Service Commission, the 
Department of Labor, and the Department of Justice jointly have adopted 
these uniform guidelines to meet that need, and to apply the same 
principles to the Federal Government as are applied to other employers.
    B. Purpose of guidelines. These guidelines incorporate a single set 
of principles which are designed to assist employers, labor 
organizations, employment agencies, and licensing and certification 
boards to comply with requirements of Federal law prohibiting employment 
practices which discriminate on grounds of race, color, religion, sex, 
and national origin. They are designed to provide a framework for 
determining the proper use of tests and other selection procedures. 
These guidelines do not require a user to conduct validity studies of 
selection procedures where no adverse impact results. However, all users 
are encouraged to use selection procedures which are valid, especially 
users operating under merit principles.
    C. Relation to prior guidelines. These guidelines are based upon and 
supersede previously issued guidelines on employee selection procedures. 
These guidelines have been built upon court decisions, the previously 
issued guidelines of the agencies, and the practical experience of the 
agencies, as well as the standards of the psychological profession. 
These guidelines are intended to be consistent with existing law.



Sec.  1607.2  Scope.

    A. Application of guidelines. These guidelines will be applied by 
the Equal Employment Opportunity Commission in the enforcement of title 
VII of the Civil Rights Act of 1964, as amended by the Equal Employment 
Opportunity Act of 1972 (hereinafter ``title VII''); by the Department 
of Labor, and the contract compliance agencies until the transfer of 
authority contemplated by the President's Reorganization Plan No. 1 of 
1978, in the administration and enforcement of Executive Order 11246, as 
amended by Executive Order 11375 (hereinafter ``Executive Order 
11246''); by the Civil Service Commission and

[[Page 217]]

other Federal agencies subject to section 717 of title VII; by the Civil 
Service Commission in exercising its responsibilities toward State and 
local governments under section 208(b)(1) of the Intergovernmental-
Personnel Act; by the Department of Justice in exercising its 
responsibilities under Federal law; by the Office of Revenue Sharing of 
the Department of the Treasury under the State and Local Fiscal 
Assistance Act of 1972, as amended; and by any other Federal agency 
which adopts them.
    B. Employment decisions. These guidelines apply to tests and other 
selection procedures which are used as a basis for any employment 
decision. Employment decisions include but are not limited to hiring, 
promotion, demotion, membership (for example, in a labor organization), 
referral, retention, and licensing and certification, to the extent that 
licensing and certification may be covered by Federal equal employment 
opportunity law. Other selection decisions, such as selection for 
training or transfer, may also be considered employment decisions if 
they lead to any of the decisions listed above.
    C. Selection procedures. These guidelines apply only to selection 
procedures which are used as a basis for making employment decisions. 
For example, the use of recruiting procedures designed to attract 
members of a particular race, sex, or ethnic group, which were 
previously denied employment opportunities or which are currently 
underutilized, may be necessary to bring an employer into compliance 
with Federal law, and is frequently an essential element of any 
effective affirmative action program; but recruitment practices are not 
considered by these guidelines to be selection procedures. Similarly, 
these guidelines do not pertain to the question of the lawfulness of a 
seniority system within the meaning of section 703(h), Executive Order 
11246 or other provisions of Federal law or regulation, except to the 
extent that such systems utilize selection procedures to determine 
qualifications or abilities to perform the job. Nothing in these 
guidelines is intended or should be interpreted as discouraging the use 
of a selection procedure for the purpose of determining qualifications 
or for the purpose of selection on the basis of relative qualifications, 
if the selection procedure had been validated in accord with these 
guidelines for each such purpose for which it is to be used.
    D. Limitations. These guidelines apply only to persons subject to 
title VII, Executive Order 11246, or other equal employment opportunity 
requirements of Federal law. These guidelines do not apply to 
responsibilities under the Age Discrimination in Employment Act of 1967, 
as amended, not to discriminate on the basis of age, or under sections 
501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate 
on the basis of disability.
    E. Indian preference not affected. These guidelines do not restrict 
any obligation imposed or right granted by Federal law to users to 
extend a preference in employment to Indians living on or near an Indian 
reservation in connection with employment opportunities on or near an 
Indian reservation.

[43 FR 38295, 38312, Aug. 25, 1978, as amended at 74 FR 63983, Dec. 7, 
2009]



Sec.  1607.3  Discrimination defined: Relationship between use of 
selection procedures and discrimination.

    A. Procedure having adverse impact constitutes discrimination unless 
justified. The use of any selection procedure which has an adverse 
impact on the hiring, promotion, or other employment or membership 
opportunities of members of any race, sex, or ethnic group will be 
considered to be discriminatory and inconsistent with these guidelines, 
unless the procedure has been validated in accordance with these 
guidelines, or the provisions of section 6 below are satisfied.
    B. Consideration of suitable alternative selection procedures. Where 
two or more selection procedures are available which serve the user's 
legitimate interest in efficient and trustworthy workmanship, and which 
are substantially equally valid for a given purpose, the user should use 
the procedure which has been demonstrated to have the lesser adverse 
impact. Accordingly, whenever a validity study is called for by these 
guidelines, the user should include, as a part of the validity study, an 
investigation of suitable alternative

[[Page 218]]

selection procedures and suitable alternative methods of using the 
selection procedure which have as little adverse impact as possible, to 
determine the appropriateness of using or validating them in accord with 
these guidelines. If a user has made a reasonable effort to become aware 
of such alternative procedures and validity has been demonstrated in 
accord with these guidelines, the use of the test or other selection 
procedure may continue until such time as it should reasonably be 
reviewed for currency. Whenever the user is shown an alternative 
selection procedure with evidence of less adverse impact and substantial 
evidence of validity for the same job in similar circumstances, the user 
should investigate it to determine the appropriateness of using or 
validating it in accord with these guidelines. This subsection is not 
intended to preclude the combination of procedures into a significantly 
more valid procedure, if the use of such a combination has been shown to 
be in compliance with the guidelines.



Sec.  1607.4  Information on impact.

    A. Records concerning impact. Each user should maintain and have 
available for inspection records or other information which will 
disclose the impact which its tests and other selection procedures have 
upon employment opportunities of persons by identifiable race, sex, or 
ethnic group as set forth in paragraph B of this section, in order to 
determine compliance with these guidelines. Where there are large 
numbers of applicants and procedures are administered frequently, such 
information may be retained on a sample basis, provided that the sample 
is appropriate in terms of the applicant population and adequate in 
size.
    B. Applicable race, sex, and ethnic groups for recordkeeping. The 
records called for by this section are to be maintained by sex, and the 
following races and ethnic groups: Blacks (Negroes), American Indians 
(including Alaskan Natives), Asians (including Pacific Islanders), 
Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or 
South American, or other Spanish origin or culture regardless of race), 
whites (Caucasians) other than Hispanic, and totals. The race, sex, and 
ethnic classifications called for by this section are consistent with 
the Equal Employment Opportunity Standard Form 100, Employer Information 
Report EEO-1 series of reports. The user should adopt safeguards to 
insure that the records required by this paragraph are used for 
appropriate purposes such as determining adverse impact, or (where 
required) for developing and monitoring affirmative action programs, and 
that such records are not used improperly. See sections 4E and 17(4), 
below.
    C. Evaluation of selection rates. The ``bottom line.'' If the 
information called for by sections 4A and B above shows that the total 
selection process for a job has an adverse impact, the individual 
components of the selection process should be evaluated for adverse 
impact. If this information shows that the total selection process does 
not have an adverse impact, the Federal enforcement agencies, in the 
exercise of their administrative and prosecutorial discretion, in usual 
circumstances, will not expect a user to evaluate the individual 
components for adverse impact, or to validate such individual 
components, and will not take enforcement action based upon adverse 
impact of any component of that process, including the separate parts of 
a multipart selection procedure or any separate procedure that is used 
as an alternative method of selection. However, in the following 
circumstances the Federal enforcement agencies will expect a user to 
evaluate the individual components for adverse impact and may, where 
appropriate, take enforcement action with respect to the individual 
components:
    (1) Where the selection procedure is a significant factor in the 
continuation of patterns of assignments of incumbent employees caused by 
prior discriminatory employment practices, (2) where the weight of court 
decisions or administrative interpretations hold that a specific 
procedure (such as height or weight requirements or no-arrest records) 
is not job related in the same or similar circumstances. In unusual 
circumstances, other than those listed in (1) and (2) of this paragraph, 
the Federal enforcement agencies may

[[Page 219]]

request a user to evaluate the individual components for adverse impact 
and may, where appropriate, take enforcement action with respect to the 
individual component.
    D. Adverse impact and the ``four-fifths rule.'' A selection rate for 
any race, sex, or ethnic group which is less than four-fifths (\4/5\) 
(or eighty percent) of the rate for the group with the highest rate will 
generally be regarded by the Federal enforcement agencies as evidence of 
adverse impact, while a greater than four-fifths rate will generally not 
be regarded by Federal enforcement agencies as evidence of adverse 
impact. Smaller differences in selection rate may nevertheless 
constitute adverse impact, where they are significant in both 
statistical and practical terms or where a user's actions have 
discouraged applicants disproportionately on grounds of race, sex, or 
ethnic group. Greater differences in selection rate may not constitute 
adverse impact where the differences are based on small numbers and are 
not statistically significant, or where special recruiting or other 
programs cause the pool of minority or female candidates to be atypical 
of the normal pool of applicants from that group. Where the user's 
evidence concerning the impact of a selection procedure indicates 
adverse impact but is based upon numbers which are too small to be 
reliable, evidence concerning the impact of the procedure over a longer 
period of time and/or evidence concerning the impact which the selection 
procedure had when used in the same manner in similar circumstances 
elsewhere may be considered in determining adverse impact. Where the 
user has not maintained data on adverse impact as required by the 
documentation section of applicable guidelines, the Federal enforcement 
agencies may draw an inference of adverse impact of the selection 
process from the failure of the user to maintain such data, if the user 
has an underutilization of a group in the job category, as compared to 
the group's representation in the relevant labor market or, in the case 
of jobs filled from within, the applicable work force.
    E. Consideration of user's equal employment opportunity posture. In 
carrying out their obligations, the Federal enforcement agencies will 
consider the general posture of the user with respect to equal 
employment opportunity for the job or group of jobs in question. Where a 
user has adopted an affirmative action program, the Federal enforcement 
agencies will consider the provisions of that program, including the 
goals and timetables which the user has adopted and the progress which 
the user has made in carrying out that program and in meeting the goals 
and timetables. While such affirmative action programs may in design and 
execution be race, color, sex, or ethnic conscious, selection procedures 
under such programs should be based upon the ability or relative ability 
to do the work.

(Approved by the Office of Management and Budget under control number 
3046-0017)

(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[43 FR 38295, 38312, Aug. 25, 1978, as amended at 46 FR 63268, Dec. 31, 
1981]



Sec.  1607.5  General standards for validity studies.

    A. Acceptable types of validity studies. For the purposes of 
satisfying these guidelines, users may rely upon criterion-related 
validity studies, content validity studies or construct validity 
studies, in accordance with the standards set forth in the technical 
standards of these guidelines, section 14 below. New strategies for 
showing the validity of selection procedures will be evaluated as they 
become accepted by the psychological profession.
    B. Criterion-related, content, and construct validity. Evidence of 
the validity of a test or other selection procedure by a criterion-
related validity study should consist of empirical data demonstrating 
that the selection procedure is predictive of or significantly 
correlated with important elements of job performance. See section 14B 
below. Evidence of the validity of a test or other selection procedure 
by a content validity study should consist of data showing that the 
content of the selection procedure is representative of important 
aspects of performance on the job for which the candidates are to be 
evaluated. See 14C below. Evidence of the validity of a test or other 
selection

[[Page 220]]

procedure through a construct validity study should consist of data 
showing that the procedure measures the degree to which candidates have 
identifiable characteristics which have been determined to be important 
in successful performance in the job for which the candidates are to be 
evaluated. See section 14D below.
    C. Guidelines are consistent with professional standards. The 
provisions of these guidelines relating to validation of selection 
procedures are intended to be consistent with generally accepted 
professional standards for evaluating standardized tests and other 
selection procedures, such as those described in the Standards for 
Educational and Psychological Tests prepared by a joint committee of the 
American Psychological Association, the American Educational Research 
Association, and the National Council on Measurement in Education 
(American Psychological Association, Washington, DC, 1974) (hereinafter 
``A.P.A. Standards'') and standard textbooks and journals in the field 
of personnel selection.
    D. Need for documentation of validity. For any selection procedure 
which is part of a selection process which has an adverse impact and 
which selection procedure has an adverse impact, each user should 
maintain and have available such documentation as is described in 
section 15 below.
    E. Accuracy and standardization. Validity studies should be carried 
out under conditions which assure insofar as possible the adequacy and 
accuracy of the research and the report. Selection procedures should be 
administered and scored under standardized conditions.
    F. Caution against selection on basis of knowledges, skills, or 
ability learned in brief orientation period. In general, users should 
avoid making employment decisions on the basis of measures of 
knowledges, skills, or abilities which are normally learned in a brief 
orientation period, and which have an adverse impact.
    G. Method of use of selection procedures. The evidence of both the 
validity and utility of a selection procedure should support the method 
the user chooses for operational use of the procedure, if that method of 
use has a greater adverse impact than another method of use. Evidence 
which may be sufficient to support the use of a selection procedure on a 
pass/fail (screening) basis may be insufficient to support the use of 
the same procedure on a ranking basis under these guidelines. Thus, if a 
user decides to use a selection procedure on a ranking basis, and that 
method of use has a greater adverse impact than use on an appropriate 
pass/fail basis (see section 5H below), the user should have sufficient 
evidence of validity and utility to support the use on a ranking basis. 
See sections 3B, 14B (5) and (6), and 14C (8) and (9).
    H. Cutoff scores. Where cutoff scores are used, they should normally 
be set so as to be reasonable and consistent with normal expectations of 
acceptable proficiency within the work force. Where applicants are 
ranked on the basis of properly validated selection procedures and those 
applicants scoring below a higher cutoff score than appropriate in light 
of such expectations have little or no chance of being selected for 
employment, the higher cutoff score may be appropriate, but the degree 
of adverse impact should be considered.
    I. Use of selection procedures for higher level jobs. If job 
progression structures are so established that employees will probably, 
within a reasonable period of time and in a majority of cases, progress 
to a higher level, it may be considered that the applicants are being 
evaluated for a job or jobs at the higher level. However, where job 
progression is not so nearly automatic, or the time span is such that 
higher level jobs or employees' potential may be expected to change in 
significant ways, it should be considered that applicants are being 
evaluated for a job at or near the entry level. A ``reasonable period of 
time'' will vary for different jobs and employment situations but will 
seldom be more than 5 years. Use of selection procedures to evaluate 
applicants for a higher level job would not be appropriate:
    (1) If the majority of those remaining employed do not progress to 
the higher level job;

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    (2) If there is a reason to doubt that the higher level job will 
continue to require essentially similar skills during the progression 
period; or
    (3) If the selection procedures measure knowledges, skills, or 
abilities required for advancement which would be expected to develop 
principally from the training or experience on the job.
    J. Interim use of selection procedures. Users may continue the use 
of a selection procedure which is not at the moment fully supported by 
the required evidence of validity, provided: (1) The user has available 
substantial evidence of validity, and (2) the user has in progress, when 
technically feasible, a study which is designed to produce the 
additional evidence required by these guidelines within a reasonable 
time. If such a study is not technically feasible, see section 6B. If 
the study does not demonstrate validity, this provision of these 
guidelines for interim use shall not constitute a defense in any action, 
nor shall it relieve the user of any obligations arising under Federal 
law.
    K. Review of validity studies for currency. Whenever validity has 
been shown in accord with these guidelines for the use of a particular 
selection procedure for a job or group of jobs, additional studies need 
not be performed until such time as the validity study is subject to 
review as provided in section 3B above. There are no absolutes in the 
area of determining the currency of a validity study. All circumstances 
concerning the study, including the validation strategy used, and 
changes in the relevant labor market and the job should be considered in 
the determination of when a validity study is outdated.



Sec.  1607.6  Use of selection procedures which have not been validated.

    A. Use of alternate selection procedures to eliminate adverse 
impact. A user may choose to utilize alternative selection procedures in 
order to eliminate adverse impact or as part of an affirmative action 
program. See section 13 below. Such alternative procedures should 
eliminate the adverse impact in the total selection process, should be 
lawful and should be as job related as possible.
    B. Where validity studies cannot or need not be performed. There are 
circumstances in which a user cannot or need not utilize the validation 
techniques contemplated by these guidelines. In such circumstances, the 
user should utilize selection procedures which are as job related as 
possible and which will minimize or eliminate adverse impact, as set 
forth below.
    (1) Where informal or unscored procedures are used. When an informal 
or unscored selection procedure which has an adverse impact is utilized, 
the user should eliminate the adverse impact, or modify the procedure to 
one which is a formal, scored or quantified measure or combination of 
measures and then validate the procedure in accord with these 
guidelines, or otherwise justify continued use of the procedure in 
accord with Federal law.
    (2) Where formal and scored procedures are used. When a formal and 
scored selection procedure is used which has an adverse impact, the 
validation techniques contemplated by these guidelines usually should be 
followed if technically feasible. Where the user cannot or need not 
follow the validation techniques anticipated by these guidelines, the 
user should either modify the procedure to eliminate adverse impact or 
otherwise justify continued use of the procedure in accord with Federal 
law.



Sec.  1607.7  Use of other validity studies.

    A. Validity studies not conducted by the user. Users may, under 
certain circumstances, support the use of selection procedures by 
validity studies conducted by other users or conducted by test 
publishers or distributors and described in test manuals. While 
publishers of selection procedures have a professional obligation to 
provide evidence of validity which meets generally accepted professional 
standards (see section 5C above), users are cautioned that they are 
responsible for compliance with these guidelines. Accordingly, users 
seeking to obtain selection procedures from publishers and distributors 
should be careful to determine that, in the event the user becomes 
subject to the validity requirements of these guidelines, the necessary 
information to support validity

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has been determined and will be made available to the user.
    B. Use of criterion-related validity evidence from other sources. 
Criterion-related validity studies conducted by one test user, or 
described in test manuals and the professional literature, will be 
considered acceptable for use by another user when the following 
requirements are met:
    (1) Validity evidence. Evidence from the available studies meeting 
the standards of section 14B below clearly demonstrates that the 
selection procedure is valid;
    (2) Job similarity. The incumbents in the user's job and the 
incumbents in the job or group of jobs on which the validity study was 
conducted perform substantially the same major work behaviors, as shown 
by appropriate job analyses both on the job or group of jobs on which 
the validity study was performed and on the job for which the selection 
procedure is to be used; and
    (3) Fairness evidence. The studies include a study of test fairness 
for each race, sex, and ethnic group which constitutes a significant 
factor in the borrowing user's relevant labor market for the job or jobs 
in question. If the studies under consideration satisfy paragraphs (1) 
and (2) of this paragraph B.,\1/4\ above but do not contain an 
investigation of test fairness, and it is not technically feasible for 
the borrowing user to conduct an internal study of test fairness, the 
borrowing user may utilize the study until studies conducted elsewhere 
meeting the requirements of these guidelines show test unfairness, or 
until such time as it becomes technically feasible to conduct an 
internal study of test fairness and the results of that study can be 
acted upon. Users obtaining selection procedures from publishers should 
consider, as one factor in the decision to purchase a particular 
selection procedure, the availability of evidence concerning test 
fairness.
    C. Validity evidence from multiunit study. if validity evidence from 
a study covering more than one unit within an organization statisfies 
the requirements of section 14B below, evidence of validity specific to 
each unit will not be required unless there are variables which are 
likely to affect validity significantly.
    D. Other significant variables. If there are variables in the other 
studies which are likely to affect validity significantly, the user may 
not rely upon such studies, but will be expected either to conduct an 
internal validity study or to comply with section 6 above.



Sec.  1607.8  Cooperative studies.

    A. Encouragement of cooperative studies. The agencies issuing these 
guidelines encourage employers, labor organizations, and employment 
agencies to cooperate in research, development, search for lawful 
alternatives, and validity studies in order to achieve procedures which 
are consistent with these guidelines.
    B. Standards for use of cooperative studies. If validity evidence 
from a cooperative study satisfies the requirements of section 14 below, 
evidence of validity specific to each user will not be required unless 
there are variables in the user's situation which are likely to affect 
validity significantly.



Sec.  1607.9  No assumption of validity.

    A. Unacceptable substitutes for evidence of validity. Under no 
circumstances will the general reputation of a test or other selection 
procedures, its author or its publisher, or casual reports of its 
validity be accepted in lieu of evidence of validity. Specifically ruled 
out are: assumptions of validity based on a procedure's name or 
descriptive labels; all forms of promotional literature; data bearing on 
the frequency of a procedure's usage; testimonial statements and 
credentials of sellers, users, or consultants; and other nonempirical or 
anecdotal accounts of selection practices or selection outcomes.
    B. Encouragement of professional supervision. Professional 
supervision of selection activities is encouraged but is not a 
substitute for documented evidence of validity. The enforcement agencies 
will take into account the fact that a thorough job analysis was 
conducted and that careful development and use of a selection procedure 
in accordance with professional standards enhance the probability that 
the selection procedure is valid for the job.

[[Page 223]]



Sec.  1607.10  Employment agencies and employment services.

    A. Where selection procedures are devised by agency. An employment 
agency, including private employment agencies and State employment 
agencies, which agrees to a request by an employer or labor organization 
to device and utilize a selection procedure should follow the standards 
in these guidelines for determining adverse impact. If adverse impact 
exists the agency should comply with these guidelines. An employment 
agency is not relieved of its obligation herein because the user did not 
request such validation or has requested the use of some lesser standard 
of validation than is provided in these guidelines. The use of an 
employment agency does not relieve an employer or labor organization or 
other user of its responsibilities under Federal law to provide equal 
employment opportunity or its obligations as a user under these 
guidelines.
    B. Where selection procedures are devised elsewhere. Where an 
employment agency or service is requested to administer a selection 
procedure which has been devised elsewhere and to make referrals 
pursuant to the results, the employment agency or service should 
maintain and have available evidence of the impact of the selection and 
referral procedures which it administers. If adverse impact results the 
agency or service should comply with these guidelines. If the agency or 
service seeks to comply with these guidelines by reliance upon validity 
studies or other data in the possession of the employer, it should 
obtain and have available such information.



Sec.  1607.11  Disparate treatment.

    The principles of disparate or unequal treatment must be 
distinguished from the concepts of validation. A selection procedure--
even though validated against job performance in accordance with these 
guidelines--cannot be imposed upon members of a race, sex, or ethnic 
group where other employees, applicants, or members have not been 
subjected to that standard. Disparate treatment occurs where members of 
a race, sex, or ethnic group have been denied the same employment, 
promotion, membership, or other employment opportunities as have been 
available to other employees or applicants. Those employees or 
applicants who have been denied equal treatment, because of prior 
discriminatory practices or policies, must at least be afforded the same 
opportunities as had existed for other employees or applicants during 
the period of discrimination. Thus, the persons who were in the class of 
persons discriminated against during the period the user followed the 
discriminatory practices should be allowed the opportunity to qualify 
under less stringent selection procedures previously followed, unless 
the user demonstrates that the increased standards are required by 
business necessity. This section does not prohibit a user who has not 
previously followed merit standards from adopting merit standards which 
are in compliance with these guidelines; nor does it preclude a user who 
has previously used invalid or unvalidated selection procedures from 
developing and using procedures which are in accord with these 
guidelines.



Sec.  1607.12  Retesting of applicants.

    Users should provide a reasonable opportunity for retesting and 
reconsideration. Where examinations are administered periodically with 
public notice, such reasonable opportunity exists, unless persons who 
have previously been tested are precluded from retesting. The user may 
however take reasonable steps to preserve the security of its 
procedures.



Sec.  1607.13  Affirmative action.

    A. Affirmative action obligations. The use of selection procedures 
which have been validated pursuant to these guidelines does not relieve 
users of any obligations they may have to undertake affirmative action 
to assure equal employment opportunity. Nothing in these guidelines is 
intended to preclude the use of lawful selection procedures which assist 
in remedying the effects of prior discriminatory practices, or the 
achievement of affirmative action objectives.
    B. Encouragement of voluntary affirmative action programs. These 
guidelines are also intended to encourage the

[[Page 224]]

adoption and implementation of voluntary affirmative action programs by 
users who have no obligation under Federal law to adopt them; but are 
not intended to impose any new obligations in that regard. The agencies 
issuing and endorsing these guidelines endorse for all private employers 
and reaffirm for all governmental employers the Equal Employment 
Opportunity Coordinating Council's ``Policy Statement on Affirmative 
Action Programs for State and Local Government Agencies'' (41 FR 38814, 
September 13, 1976). That policy statement is attached hereto as 
appendix, section 17.

                           Technical Standards



Sec.  1607.14  Technical standards for validity studies.

    The following minimum standards, as applicable, should be met in 
conducting a validity study. Nothing in these guidelines is intended to 
preclude the development and use of other professionally acceptable 
techniques with respect to validation of selection procedures. Where it 
is not technically feasible for a user to conduct a validity study, the 
user has the obligation otherwise to comply with these guidelines. See 
sections 6 and 7 above.
    A. Validity studies should be based on review of information about 
the job. Any validity study should be based upon a review of information 
about the job for which the selection procedure is to be used. The 
review should include a job analysis except as provided in section 
14B(3) below with respect to criterion-related validity. Any method of 
job analysis may be used if it provides the information required for the 
specific validation strategy used.
    B. Technical standards for criterion-related validity studies--(1) 
Technical feasibility. Users choosing to validate a selection procedure 
by a criterion-related validity strategy should determine whether it is 
technically feasible (as defined in section 16) to conduct such a study 
in the particular employment context. The determination of the number of 
persons necessary to permit the conduct of a meaningful criterion-
related study should be made by the user on the basis of all relevant 
information concerning the selection procedure, the potential sample and 
the employment situation. Where appropriate, jobs with substantially the 
same major work behaviors may be grouped together for validity studies, 
in order to obtain an adequate sample. These guidelines do not require a 
user to hire or promote persons for the purpose of making it possible to 
conduct a criterion-related study.
    (2) Analysis of the job. There should be a review of job information 
to determine measures of work behavior(s) or performance that are 
relevant to the job or group of jobs in question. These measures or 
criteria are relevant to the extent that they represent critical or 
important job duties, work behaviors or work outcomes as developed from 
the review of job information. The possibility of bias should be 
considered both in selection of the criterion measures and their 
application. In view of the possibility of bias in subjective 
evaluations, supervisory rating techniques and instructions to raters 
should be carefully developed. All criterion measures and the methods 
for gathering data need to be examined for freedom from factors which 
would unfairly alter scores of members of any group. The relevance of 
criteria and their freedom from bias are of particular concern when 
there are significant differences in measures of job performance for 
different groups.
    (3) Criterion measures. Proper safeguards should be taken to insure 
that scores on selection procedures do not enter into any judgments of 
employee adequacy that are to be used as criterion measures. Whatever 
criteria are used should represent important or critical work 
behavior(s) or work outcomes. Certain criteria may be used without a 
full job analysis if the user can show the importance of the criteria to 
the particular employment context. These criteria include but are not 
limited to production rate, error rate, tardiness, absenteeism, and 
length of service. A standardized rating of overall work performance may 
be used where a study of the job shows that it is an appropriate 
criterion. Where performance in training is used as a criterion, success 
in training should be properly measured and the relevance of the 
training should be shown either

[[Page 225]]

through a comparsion of the content of the training program with the 
critical or important work behavior(s) of the job(s), or through a 
demonstration of the relationship between measures of performance in 
training and measures of job performance. Measures of relative success 
in training include but are not limited to instructor evaluations, 
performance samples, or tests. Criterion measures consisting of paper 
and pencil tests will be closely reviewed for job relevance.
    (4) Representativeness of the sample. Whether the study is 
predictive or concurrent, the sample subjects should insofar as feasible 
be representative of the candidates normally available in the relevant 
labor market for the job or group of jobs in question, and should 
insofar as feasible include the races, sexes, and ethnic groups normally 
available in the relevant job market. In determining the 
representativeness of the sample in a concurrent validity study, the 
user should take into account the extent to which the specific 
knowledges or skills which are the primary focus of the test are those 
which employees learn on the job.

Where samples are combined or compared, attention should be given to see 
that such samples are comparable in terms of the actual job they 
perform, the length of time on the job where time on the job is likely 
to affect performance, and other relevant factors likely to affect 
validity differences; or that these factors are included in the design 
of the study and their effects identified.
    (5) Statistical relationships. The degree of relationship between 
selection procedure scores and criterion measures should be examined and 
computed, using professionally acceptable statistical procedures. 
Generally, a selection procedure is considered related to the criterion, 
for the purposes of these guidelines, when the relationship between 
performance on the procedure and performance on the criterion measure is 
statistically significant at the 0.05 level of significance, which means 
that it is sufficiently high as to have a probability of no more than 
one (1) in twenty (20) to have occurred by chance. Absence of a 
statistically significant relationship between a selection procedure and 
job performance should not necessarily discourage other investigations 
of the validity of that selection procedure.
    (6) Operational use of selection procedures. Users should evaluate 
each selection procedure to assure that it is appropriate for 
operational use, including establishment of cutoff scores or rank 
ordering. Generally, if other factors reman the same, the greater the 
magnitude of the relationship (e.g., correlation coefficent) between 
performance on a selection procedure and one or more criteria of 
performance on the job, and the greater the importance and number of 
aspects of job performance covered by the criteria, the more likely it 
is that the procedure will be appropriate for use. Reliance upon a 
selection procedure which is significantly related to a criterion 
measure, but which is based upon a study involving a large number of 
subjects and has a low correlation coefficient will be subject to close 
review if it has a large adverse impact. Sole reliance upon a single 
selection instrument which is related to only one of many job duties or 
aspects of job performance will also be subject to close review. The 
appropriateness of a selection procedure is best evaluated in each 
particular situation and there are no minimum correlation coefficients 
applicable to all employment situations. In determining whether a 
selection procedure is appropriate for operational use the following 
considerations should also be taken into account: The degree of adverse 
impact of the procedure, the availability of other selection procedures 
of greater or substantially equal validity.
    (7) Overstatement of validity findings. Users should avoid reliance 
upon techniques which tend to overestimate validity findings as a result 
of capitalization on chance unless an appropriate safeguard is taken. 
Reliance upon a few selection procedures or criteria of successful job 
performance when many selection procedures or criteria of performance 
have been studied, or the use of optimal statistical weights for 
selection procedures computed in one sample, are techniques which tend 
to inflate validity estimates as a result of chance. Use of a large 
sample is one safeguard: cross-validation is another.

[[Page 226]]

    (8) Fairness. This section generally calls for studies of unfairness 
where technically feasible. The concept of fairness or unfairness of 
selection procedures is a developing concept. In addition, fairness 
studies generally require substantial numbers of employees in the job or 
group of jobs being studied. For these reasons, the Federal enforcement 
agencies recognize that the obligation to conduct studies of fairness 
imposed by the guidelines generally will be upon users or groups of 
users with a large number of persons in a job class, or test developers; 
and that small users utilizing their own selection procedures will 
generally not be obligated to conduct such studies because it will be 
technically infeasible for them to do so.
    (a) Unfairness defined. When members of one race, sex, or ethnic 
group characteristically obtain lower scores on a selection procedure 
than members of another group, and the differences in scores are not 
reflected in differences in a measure of job performance, use of the 
selection procedure may unfairly deny opportunities to members of the 
group that obtains the lower scores.
    (b) Investigation of fairness. Where a selection procedure results 
in an adverse impact on a race, sex, or ethnic group identified in 
accordance with the classifications set forth in section 4 above and 
that group is a significant factor in the relevant labor market, the 
user generally should investigate the possible existence of unfairness 
for that group if it is technically feasible to do so. The greater the 
severity of the adverse impact on a group, the greater the need to 
investigate the possible existence of unfairness. Where the weight of 
evidence from other studies shows that the selection procedure predicts 
fairly for the group in question and for the same or similar jobs, such 
evidence may be relied on in connection with the selection procedure at 
issue.
    (c) General considerations in fairness investigations. Users 
conducting a study of fairness should review the A.P.A. Standards 
regarding investigation of possible bias in testing. An investigation of 
fairness of a selection procedure depends on both evidence of validity 
and the manner in which the selection procedure is to be used in a 
particular employment context. Fairness of a selection procedure cannot 
necessarily be specified in advance without investigating these factors. 
Investigation of fairness of a selection procedure in samples where the 
range of scores on selection procedures or criterion measures is 
severely restricted for any subgroup sample (as compared to other 
subgroup samples) may produce misleading evidence of unfairness. That 
factor should accordingly be taken into account in conducting such 
studies and before reliance is placed on the results.
    (d) When unfairness is shown. If unfairness is demonstrated through 
a showing that members of a particular group perform better or poorer on 
the job than their scores on the selection procedure would indicate 
through comparison with how members of other groups perform, the user 
may either revise or replace the selection instrument in accordance with 
these guidelines, or may continue to use the selection instrument 
operationally with appropriate revisions in its use to assure 
compatibility between the probability of successful job performance and 
the probability of being selected.
    (e) Technical feasibility of fairness studies. In addition to the 
general conditions needed for technical feasibility for the conduct of a 
criterion-related study (see section 16, below) an investigation of 
fairness requires the following:
    (i) An adequate sample of persons in each group available for the 
study to achieve findings of statistical significance. Guidelines do not 
require a user to hire or promote persons on the basis of group 
classifications for the purpose of making it possible to conduct a study 
of fairness; but the user has the obligation otherwise to comply with 
these guidelines.
    (ii) The samples for each group should be comparable in terms of the 
actual job they perform, length of time on the job where time on the job 
is likely to affect performance, and other relevant factors likely to 
affect validity differences; or such factors should be included in the 
design of the study and their effects identified.
    (f) Continued use of selection procedures when fairness studies not 
feasible.

[[Page 227]]

If a study of fairness should otherwise be performed, but is not 
technically feasible, a selection procedure may be used which has 
otherwise met the validity standards of these guidelines, unless the 
technical infeasibility resulted from discriminatory employment 
practices which are demonstrated by facts other than past failure to 
conform with requirements for validation of selection procedures. 
However, when it becomes technically feasible for the user to perform a 
study of fairness and such a study is otherwise called for, the user 
should conduct the study of fairness.
    C. Technical standards for content validity studies--(1) 
Appropriateness of content validity studies. Users choosing to validate 
a selection procedure by a content validity strategy should determine 
whether it is appropriate to conduct such a study in the particular 
employment context. A selection procedure can be supported by a content 
validity strategy to the extent that it is a representative sample of 
the content of the job. Selection procedures which purport to measure 
knowledges, skills, or abilities may in certain circumstances be 
justified by content validity, although they may not be representative 
samples, if the knowledge, skill, or ability measured by the selection 
procedure can be operationally defined as provided in section 14C(4) 
below, and if that knowledge, skill, or ability is a necessary 
prerequisite to successful job performance.
    A selection procedure based upon inferences about mental processes 
cannot be supported solely or primarily on the basis of content 
validity. Thus, a content strategy is not appropriate for demonstrating 
the validity of selection procedures which purport to measure traits or 
constructs, such as intelligence, aptitude, personality, commonsense, 
judgment, leadership, and spatial ability. Content validity is also not 
an appropriate strategy when the selection procedure involves 
knowledges, skills, or abilities which an employee will be expected to 
learn on the job.
    (2) Job analysis for content validity. There should be a job 
analysis which includes an analysis of the important work behavior(s) 
required for successful performance and their relative importance and, 
if the behavior results in work product(s), an analysis of the work 
product(s). Any job analysis should focus on the work behavior(s) and 
the tasks associated with them. If work behavior(s) are not observable, 
the job analysis should identify and analyze those aspects of the 
behavior(s) that can be observed and the observed work products. The 
work behavior(s) selected for measurement should be critical work 
behavior(s) and/or important work behavior(s) constituting most of the 
job.
    (3) Development of selection procedures. A selection procedure 
designed to measure the work behavior may be developed specifically from 
the job and job analysis in question, or may have been previously 
developed by the user, or by other users or by a test publisher.
    (4) Standards for demonstrating content validity. To demonstrate the 
content validity of a selection procedure, a user should show that the 
behavior(s) demonstrated in the selection procedure are a representative 
sample of the behavior(s) of the job in question or that the selection 
procedure provides a representative sample of the work product of the 
job. In the case of a selection procedure measuring a knowledge, skill, 
or ability, the knowledge, skill, or ability being measured should be 
operationally defined. In the case of a selection procedure measuring a 
knowledge, the knowledge being measured should be operationally defined 
as that body of learned information which is used in and is a necessary 
prerequisite for observable aspects of work behavior of the job. In the 
case of skills or abilities, the skill or ability being measured should 
be operationally defined in terms of observable aspects of work behavior 
of the job. For any selection procedure measuring a knowledge, skill, or 
ability the user should show that (a) the selection procedure measures 
and is a representative sample of that knowledge, skill, or ability; and 
(b) that knowledge, skill, or ability is used in and is a necessary 
prerequisite to performance of critical or important work behavior(s). 
In addition, to be content valid, a selection procedure measuring a 
skill or ability should either closely approximate an

[[Page 228]]

observable work behavior, or its product should closely approximate an 
observable work product. If a test purports to sample a work behavior or 
to provide a sample of a work product, the manner and setting of the 
selection procedure and its level and complexity should closely 
approximate the work situation. The closer the content and the context 
of the selection procedure are to work samples or work behaviors, the 
stronger is the basis for showing content validity. As the content of 
the selection procedure less resembles a work behavior, or the setting 
and manner of the administration of the selection procedure less 
resemble the work situation, or the result less resembles a work 
product, the less likely the selection procedure is to be content valid, 
and the greater the need for other evidence of validity.
    (5) Reliability. The reliability of selection procedures justified 
on the basis of content validity should be a matter of concern to the 
user. Whenever it is feasible, appropriate statistical estimates should 
be made of the reliability of the selection procedure.
    (6) Prior training or experience. A requirement for or evaluation of 
specific prior training or experience based on content validity, 
including a specification of level or amount of training or experience, 
should be justified on the basis of the relationship between the content 
of the training or experience and the content of the job for which the 
training or experience is to be required or evaluated. The critical 
consideration is the resemblance between the specific behaviors, 
products, knowledges, skills, or abilities in the experience or training 
and the specific behaviors, products, knowledges, skills, or abilities 
required on the job, whether or not there is close resemblance between 
the experience or training as a whole and the job as a whole.
    (7) Content validity of training success. Where a measure of success 
in a training program is used as a selection procedure and the content 
of a training program is justified on the basis of content validity, the 
use should be justified on the relationship between the content of the 
training program and the content of the job.
    (8) Operational use. A selection procedure which is supported on the 
basis of content validity may be used for a job if it represents a 
critical work behavior (i.e., a behavior which is necessary for 
performance of the job) or work behaviors which constitute most of the 
important parts of the job.
    (9) Ranking based on content validity studies. If a user can show, 
by a job analysis or otherwise, that a higher score on a content valid 
selection procedure is likely to result in better job performance, the 
results may be used to rank persons who score above minimum levels. 
Where a selection procedure supported solely or primarily by content 
validity is used to rank job candidates, the selection procedure should 
measure those aspects of performance which differentiate among levels of 
job performance.
    D. Technical standards for construct validity studies--(1) 
Appropriateness of construct validity studies. Construct validity is a 
more complex strategy than either criterion-related or content validity. 
Construct validation is a relatively new and developing procedure in the 
employment field, and there is at present a lack of substantial 
literature extending the concept to employment practices. The user 
should be aware that the effort to obtain sufficient empirical support 
for construct validity is both an extensive and arduous effort involving 
a series of research studies, which include criterion related validity 
studies and which may include content validity studies. Users choosing 
to justify use of a selection procedure by this strategy should 
therefore take particular care to assure that the validity study meets 
the standards set forth below.
    (2) Job analysis for construct validity studies. There should be a 
job analysis. This job analysis should show the work behavior(s) 
required for successful performance of the job, or the groups of jobs 
being studied, the critical or important work behavior(s) in the job or 
group of jobs being studied, and an identification of the construct(s) 
believed to underlie successful performance of these critical or 
important work behaviors in the job or jobs in question. Each construct 
should be named and defined, so as to distinguish

[[Page 229]]

it from other constructs. If a group of jobs is being studied the jobs 
should have in common one or more critical or important work behav- iors 
at a comparable level of complexity.
    (3) Relationship to the job. A selection procedure should then be 
identified or developed which measures the construct identified in 
accord with subparagraph (2) above. The user should show by empirical 
evidence that the selection procedure is validly related to the 
construct and that the construct is validly related to the performance 
of critical or important work behavior(s). The relationship between the 
construct as measured by the selection procedure and the related work 
behavior(s) should be supported by empirical evidence from one or more 
criterion-related studies involving the job or jobs in question which 
satisfy the provisions of section 14B above.
    (4) Use of construct validity study without new criterion-related 
evidence--(a) Standards for use. Until such time as professional 
literature provides more guidance on the use of construct validity in 
employment situations, the Federal agencies will accept a claim of 
construct validity without a criterion-related study which satisfies 
section 14B above only when the selection procedure has been used 
elsewhere in a situation in which a criterion-related study has been 
conducted and the use of a criterion-related validity study in this 
context meets the standards for transportability of criterion-related 
validity studies as set forth above in section 7. However, if a study 
pertains to a number of jobs having common critical or important work 
behaviors at a comparable level of complexity, and the evidence 
satisfies subparagraphs 14B (2) and (3) above for those jobs with 
criterion-related validity evidence for those jobs, the selection 
procedure may be used for all the jobs to which the study pertains. If 
construct validity is to be generalized to other jobs or groups of jobs 
not in the group studied, the Federal enforcement agencies will expect 
at a minimum additional empirical research evidence meeting the 
standards of subparagraphs section 14B (2) and (3) above for the 
additional jobs or groups of jobs.
    (b) Determination of common work behaviors. In determining whether 
two or more jobs have one or more work behavior(s) in common, the user 
should compare the observed work behavior(s) in each of the jobs and 
should compare the observed work product(s) in each of the jobs. If 
neither the observed work behavior(s) in each of the jobs nor the 
observed work product(s) in each of the jobs are the same, the Federal 
enforcement agencies will presume that the work behavior(s) in each job 
are different. If the work behaviors are not observable, then evidence 
of similarity of work products and any other relevant research evidence 
will be considered in determining whether the work behavior(s) in the 
two jobs are the same.

              Documentation of Impact and Validity Evidence



Sec.  1607.15  Documentation of impact and validity evidence.

    A. Required information. Users of selection procedures other than 
those users complying with section 15A(1) below should maintain and have 
available for each job information on adverse impact of the selection 
process for that job and, where it is determined a selection process has 
an adverse impact, evidence of validity as set forth below.
    (1) Simplified recordkeeping for users with less than 100 employees. 
In order to minimize recordkeeping burdens on employers who employ one 
hundred (100) or fewer employees, and other users not required to file 
EEO-1, et seq., reports, such users may satisfy the requirements of this 
section 15 if they maintain and have available records showing, for each 
year:
    (a) The number of persons hired, promoted, and terminated for each 
job, by sex, and where appropriate by race and national origin;
    (b) The number of applicants for hire and promotion by sex and where 
appropriate by race and national origin; and
    (c) The selection procedures utilized (either standardized or not 
standardized).

These records should be maintained for each race or national origin 
group (see section 4 above) constituting more

[[Page 230]]

than two percent (2%) of the labor force in the relevant labor area. 
However, it is not necessary to maintain records by race and/or national 
origin (see Sec.  4 above) if one race or national origin group in the 
relevant labor area constitutes more than ninety-eight percent (98%) of 
the labor force in the area. If the user has reason to believe that a 
selection procedure has an adverse impact, the user should maintain any 
available evidence of validity for that procedure (see sections 7A and 
8).
    (2) Information on impact--(a) Collection of information on impact. 
Users of selection procedures other than those complying with section 
15A(1) above should maintain and have available for each job records or 
other information showing whether the total selection process for that 
job has an adverse impact on any of the groups for which records are 
called for by sections 4B above. Adverse impact determinations should be 
made at least annually for each such group which constitutes at least 2 
percent of the labor force in the relevant labor area or 2 percent of 
the applicable workforce. Where a total selection process for a job has 
an adverse impact, the user should maintain and have available records 
or other information showing which components have an adverse impact. 
Where the total selection process for a job does not have an adverse 
impact, information need not be maintained for individual components 
except in circumstances set forth in subsection 15A(2)(b) below. If the 
determination of adverse impact is made using a procedure other than the 
``four-fifths rule,'' as defined in the first sentence of section 4D 
above, a justification, consistent with section 4D above, for the 
procedure used to determine adverse impact should be available.
    (b) When adverse impact has been eliminated in the total selection 
process. Whenever the total selection process for a particular job has 
had an adverse impact, as defined in section 4 above, in any year, but 
no longer has an adverse impact, the user should maintain and have 
available the information on individual components of the selection 
process required in the preceding paragraph for the period in which 
there was adverse impact. In addition, the user should continue to 
collect such information for at least two (2) years after the adverse 
impact has been eliminated.
    (c) When data insufficient to determine impact. Where there has been 
an insufficient number of selections to determine whether there is an 
adverse impact of the total selection process for a particular job, the 
user should continue to collect, maintain and have available the 
information on individual components of the selection process required 
in section 15(A)(2)(a) above until the information is sufficient to 
determine that the overall selection process does not have an adverse 
impact as defined in section 4 above, or until the job has changed 
substantially.
    (3) Documentation of validity evidence--(a) Types of evidence. Where 
a total selection process has an adverse impact (see section 4 above) 
the user should maintain and have available for each component of that 
process which has an adverse impact, one or more of the following types 
of documentation evidence:
    (i) Documentation evidence showing criterion-related validity of the 
selection procedure (see section 15B, below).
    (ii) Documentation evidence showing content validity of the 
selection procedure (see section 15C, below).
    (iii) Documentation evidence showing construct validity of the 
selection procedure (see section 15D, below).
    (iv) Documentation evidence from other studies showing validity of 
the selection procedure in the user's facility (see section 15E, below).
    (v) Documentation evidence showing why a validity study cannot or 
need not be performed and why continued use of the procedure is 
consistent with Federal law.
    (b) Form of report. This evidence should be compiled in a reasonably 
complete and organized manner to permit direct evaluation of the 
validity of the selection procedure. Previously written employer or 
consultant reports of validity, or reports describing validity studies 
completed before the issuance of these guidelines are acceptable if they 
are complete in regard to the documentation requirements contained in 
this section, or if they satisfied requirements of guidelines which

[[Page 231]]

were in effect when the validity study was completed. If they are not 
complete, the required additional documentation should be appended. If 
necessary information is not available the report of the validity study 
may still be used as documentation, but its adequacy will be evaluated 
in terms of compliance with the requirements of these guidelines.
    (c) Completeness. In the event that evidence of validity is reviewed 
by an enforcement agency, the validation reports completed after the 
effective date of these guidelines are expected to contain the 
information set forth below. Evidence denoted by use of the word 
``(Essential)'' is considered critical. If information denoted essential 
is not included, the report will be considered incomplete unless the 
user affirmatively demonstrates either its unavailability due to 
circumstances beyond the user's control or special circumstances of the 
user's study which make the information irrelevant. Evidence not so 
denoted is desirable but its absence will not be a basis for considering 
a report incomplete. The user should maintain and have available the 
information called for under the heading ``Source Data'' in sections 
15B(11) and 15D(11). While it is a necessary part of the study, it need 
not be submitted with the report. All statistical results should be 
organized and presented in tabular or graphic form to the extent 
feasible.
    B. Criterion-related validity studies. Reports of criterion-related 
validity for a selection procedure should include the following 
information:
    (1) User(s), location(s), and date(s) of study. Dates and 
location(s) of the job analysis or review of job information, the 
date(s) and location(s) of the administration of the selection 
procedures and collection of criterion data, and the time between 
collection of data on selection procedures and criterion measures should 
be provided (Essential). If the study was conducted at several 
locations, the address of each location, including city and State, 
should be shown.
    (2) Problem and setting. An explicit definition of the purpose(s) of 
the study and the circumstances in which the study was conducted should 
be provided. A description of existing selection procedures and cutoff 
scores, if any, should be provided.
    (3) Job anlysis or review of job information. A description of the 
procedure used to analyze the job or group of jobs, or to review the job 
information should be provided (Essential). Where a review of job 
information results in criteria which may be used without a full job 
analysis (see section 14B(3)), the basis for the selection of these 
criteria should be reported (Essential). Where a job analysis is 
required a complete description of the work behavior(s) or work 
outcome(s), and measures of their criticality or importance should be 
provided (Essential). The report should describe the basis on which the 
behavior(s) or outcome(s) were determined to be critical or important, 
such as the proportion of time spent on the respective behaviors, their 
level of difficulty, their frequency of performance, the consequences of 
error, or other appropriate factors (Essential). Where two or more jobs 
are grouped for a validity study, the information called for in this 
subsection should be provided for each of the jobs, and the 
justification for the grouping (see section 14B(1)) should be provided 
(Essential).
    (4) Job titles and codes. It is desirable to provide the user's job 
title(s) for the job(s) in question and the corresponding job title(s) 
and code(s) from U.S. Employment Service's Dictionary of Occupational 
Titles.
    (5) Criterion measures. The bases for the selection of the criterion 
measures should be provided, together with references to the evidence 
considered in making the selection of criterion measures (essential). A 
full description of all criteria on which data were collected and means 
by which they were observed, recorded, evaluated, and quantified, should 
be provided (essential). If rating techniques are used as criterion 
measures, the appraisal form(s) and instructions to the rater(s) should 
be included as part of the validation evidence, or should be explicitly 
described and available (essential). All steps taken to insure that 
criterion measures are free from factors which would unfairly alter the 
scores of members of any group should be described (essential).

[[Page 232]]

    (6) Sample description. A description of how the research sample was 
identified and selected should be included (essential). The race, sex, 
and ethnic composition of the sample, including those groups set forth 
in section 4A above, should be described (essential). This description 
should include the size of each subgroup (essential). A description of 
how the research sample compares with the relevant labor market or work 
force, the method by which the relevant labor market or work force was 
defined, and a discussion of the likely effects on validity of 
differences between the sample and the relevant labor market or work 
force, are also desirable. Descriptions of educational levels, length of 
service, and age are also desirable.
    (7) Description of selection procedures. Any measure, combination of 
measures, or procedure studied should be completely and explicitly 
described or attached (essential). If commercially available selection 
procedures are studied, they should be described by title, form, and 
publisher (essential). Reports of reliability estimates and how they 
were established are desirable.
    (8) Techniques and results. Methods used in analyzing data should be 
described (essential). Measures of central tendency (e.g., means) and 
measures of dispersion (e.g., standard deviations and ranges) for all 
selection procedures and all criteria should be reported for each race, 
sex, and ethnic group which constitutes a significant factor in the 
relevant labor market (essential). The magnitude and direction of all 
relationships between selection procedures and criterion measures 
investigated should be reported for each relevant race, sex, and ethnic 
group and for the total group (essential). Where groups are too small to 
obtain reliable evidence of the magnitude of the relationship, need not 
be reported separately. Statements regarding the statistical 
significance of results should be made (essential). Any statistical 
adjustments, such as for less then perfect reliability or for 
restriction of score range in the selection procedure or criterion 
should be described and explained; and uncorrected correlation 
coefficients should also be shown (essential). Where the statistical 
technique categorizes continuous data, such as biserial correlation and 
the phi coefficient, the categories and the bases on which they were 
determined should be described and explained (essential). Studies of 
test fairness should be included where called for by the requirements of 
section 14B(8) (essential). These studies should include the rationale 
by which a selection procedure was determined to be fair to the group(s) 
in question. Where test fairness or unfairness has been demonstrated on 
the basis of other studies, a bibliography of the relevant studies 
should be included (essential). If the bibliography includes unpublished 
studies, copies of these studies, or adequate abstracts or summaries, 
should be attached (essential). Where revisions have been made in a 
selection procedure to assure compatability between successful job 
performance and the probability of being selected, the studies 
underlying such revisions should be included (essential). All 
statistical results should be organized and presented by relevant race, 
sex, and ethnic group (essential).
    (9) Alternative procedures investigated. The selection procedures 
investigated and available evidence of their impact should be identified 
(essential). The scope, method, and findings of the investigation, and 
the conclusions reached in light of the findings, should be fully 
described (essential).
    (10) Uses and applications. The methods considered for use of the 
selection procedure (e.g., as a screening device with a cutoff score, 
for grouping or ranking, or combined with other procedures in a battery) 
and available evidence of their impact should be described (essential). 
This description should include the rationale for choosing the method 
for operational use, and the evidence of the validity and utility of the 
procedure as it is to be used (essential). The purpose for which the 
procedure is to be used (e.g., hiring, transfer, promotion) should be 
described (essential). If weights are assigned to different parts of the 
selection procedure, these weights and the validity of the weighted 
composite should be reported (essential). If the selection procedure is 
used with a cutoff score, the user

[[Page 233]]

should describe the way in which normal expectations of proficiency 
within the work force were determined and the way in which the cutoff 
score was determined (essential).
    (11) Source data. Each user should maintain records showing all 
pertinent information about individual sample members and raters where 
they are used, in studies involving the validation of selection 
procedures. These records should be made available upon request of a 
compliance agency. In the case of individual sample members these data 
should include scores on the selection procedure(s), scores on criterion 
measures, age, sex, race, or ethnic group status, and experience on the 
specific job on which the validation study was conducted, and may also 
include such things as education, training, and prior job experience, 
but should not include names and social security numbers. Records should 
be maintained which show the ratings given to each sample member by each 
rater.
    (12) Contact person. The name, mailing address, and telephone number 
of the person who may be contacted for further information about the 
validity study should be provided (essential).
    (13) Accuracy and completeness. The report should describe the steps 
taken to assure the accuracy and completeness of the collection, 
analysis, and report of data and results.
    C. Content validity studies. Reports of content validity for a 
selection procedure should include the following information:
    (1) User(s), location(s) and date(s) of study. Dates and location(s) 
of the job analysis should be shown (essential).
    (2) Problem and setting. An explicit definition of the purpose(s) of 
the study and the circumstances in which the study was conducted should 
be provided. A description of existing selection procedures and cutoff 
scores, if any, should be provided.
    (3) Job analysis--Content of the job. A description of the method 
used to analyze the job should be provided (essential). The work 
behavior(s), the associated tasks, and, if the behavior results in a 
work product, the work products should be completely described 
(essential). Measures of criticality and/or importance of the work 
behavior(s) and the method of determining these measures should be 
provided (essential). Where the job analysis also identified the 
knowledges, skills, and abilities used in work behavior(s), an 
operational definition for each knowledge in terms of a body of learned 
information and for each skill and ability in terms of observable 
behaviors and outcomes, and the relationship between each knowledge, 
skill, or ability and each work behavior, as well as the method used to 
determine this relationship, should be provided (essential). The work 
situation should be described, including the setting in which work 
behavior(s) are performed, and where appropriate, the manner in which 
knowledges, skills, or abilities are used, and the complexity and 
difficulty of the knowledge, skill, or ability as used in the work 
behavior(s).
    (4) Selection procedure and its content. Selection procedures, 
including those constructed by or for the user, specific training 
requirements, composites of selection procedures, and any other 
procedure supported by content validity, should be completely and 
explicitly described or attached (essential). If commercially available 
selection procedures are used, they should be described by title, form, 
and publisher (essential). The behaviors measured or sampled by the 
selection procedure should be explicitly described (essential). Where 
the selection procedure purports to measure a knowledge, skill, or 
ability, evidence that the selection procedure measures and is a 
representative sample of the knowledge, skill, or ability should be 
provided (essential).
    (5) Relationship between the selection procedure and the job. The 
evidence demonstrating that the selection procedure is a representative 
work sample, a representative sample of the work behavior(s), or a 
representative sample of a knowledge, skill, or ability as used as a 
part of a work behavior and necessary for that behavior should be 
provided (essential). The user should identify the work behavior(s) 
which each item or part of the selection procedure is intended to sample 
or measure (essential). Where the selection procedure purports to sample 
a work behavior or to provide a sample of a work product,

[[Page 234]]

a comparison should be provided of the manner, setting, and the level of 
complexity of the selection procedure with those of the work situation 
(essential). If any steps were taken to reduce adverse impact on a race, 
sex, or ethnic group in the content of the procedure or in its 
administration, these steps should be described. Establishment of time 
limits, if any, and how these limits are related to the speed with which 
duties must be performed on the job, should be explained. Measures of 
central tend- ency (e.g., means) and measures of dispersion (e.g., 
standard deviations) and estimates of realibility should be reported for 
all selection procedures if available. Such reports should be made for 
relevant race, sex, and ethnic subgroups, at least on a statistically 
reliable sample basis.
    (6) Alternative procedures investigated. The alternative selection 
procedures investigated and available evidence of their impact should be 
identified (essential). The scope, method, and findings of the 
investigation, and the conclusions reached in light of the findings, 
should be fully described (essential).
    (7) Uses and applications. The methods considered for use of the 
selection procedure (e.g., as a screening device with a cutoff score, 
for grouping or ranking, or combined with other procedures in a battery) 
and available evidence of their impact should be described (essential). 
This description should include the rationale for choosing the method 
for operational use, and the evidence of the validity and utility of the 
procedure as it is to be used (essential). The purpose for which the 
procedure is to be used (e.g., hiring, transfer, promotion) should be 
described (essential). If the selection procedure is used with a cutoff 
score, the user should describe the way in which normal expectations of 
proficiency within the work force were determined and the way in which 
the cutoff score was determined (essential). In addition, if the 
selection procedure is to be used for ranking, the user should specify 
the evidence showing that a higher score on the selection procedure is 
likely to result in better job performance.
    (8) Contact person. The name, mailing address, and telephone number 
of the person who may be contacted for further information about the 
validity study should be provided (essential).
    (9) Accuracy and completeness. The report should describe the steps 
taken to assure the accuracy and completeness of the collection, 
analysis, and report of data and results.
    D. Construct validity studies. Reports of construct validity for a 
selection procedure should include the following information:
    (1) User(s), location(s), and date(s) of study. Date(s) and 
location(s) of the job analysis and the gathering of other evidence 
called for by these guidelines should be provided (essential).
    (2) Problem and setting. An explicit definition of the purpose(s) of 
the study and the circumstances in which the study was conducted should 
be provided. A description of existing selection procedures and cutoff 
scores, if any, should be provided.
    (3) Construct definition. A clear definition of the construct(s) 
which are believed to underlie successful performance of the critical or 
important work behavior(s) should be provided (essential). This 
definition should include the levels of construct performance relevant 
to the job(s) for which the selection procedure is to be used 
(essential). There should be a summary of the position of the construct 
in the psychological literature, or in the absence of such a position, a 
description of the way in which the definition and measurement of the 
construct was developed and the psychological theory underlying it 
(essential). Any quantitative data which identify or define the job 
constructs, such as factor analyses, should be provided (essential).
    (4) Job analysis. A description of the method used to analyze the 
job should be provided (essential). A complete description of the work 
behavior(s) and, to the extent appropriate, work outcomes and measures 
of their criticality and/or importance should be provided (essential). 
The report should also describe the basis on which the behavior(s) or 
outcomes were determined to be important, such as their level of 
difficulty, their frequency of performance, the consequences of error or 
other appropriate factors (essential). Where jobs are grouped or 
compared for

[[Page 235]]

the purposes of generalizing validity evidence, the work behavior(s) and 
work product(s) for each of the jobs should be described, and 
conclusions concerning the similarity of the jobs in terms of observable 
work behaviors or work products should be made (essential).
    (5) Job titles and codes. It is desirable to provide the selection 
procedure user's job title(s) for the job(s) in question and the 
corresponding job title(s) and code(s) from the United States Employment 
Service's dictionary of occupational titles.
    (6) Selection procedure. The selection procedure used as a measure 
of the construct should be completely and explicitly described or 
attached (essential). If commercially available selection procedures are 
used, they should be identified by title, form and publisher 
(essential). The research evidence of the relationship between the 
selection procedure and the construct, such as factor structure, should 
be included (essential). Measures of central tendency, variability and 
reliability of the selection procedure should be provided (essential). 
Whenever feasible, these measures should be provided separately for each 
relevant race, sex and ethnic group.
    (7) Relationship to job performance. The criterion-related 
study(ies) and other empirical evidence of the relationship between the 
construct measured by the selection procedure and the related work 
behavior(s) for the job or jobs in question should be provided 
(essential). Documentation of the criterion-related study(ies) should 
satisfy the provisions of section 15B above or section 15E(1) below, 
except for studies conducted prior to the effective date of these 
guidelines (essential). Where a study pertains to a group of jobs, and, 
on the basis of the study, validity is asserted for a job in the group, 
the observed work behaviors and the observed work products for each of 
the jobs should be described (essential). Any other evidence used in 
determining whether the work behavior(s) in each of the jobs is the same 
should be fully described (essential).
    (8) Alternative procedures investigated. The alternative selection 
procedures investigated and available evidence of their impact should be 
identified (essential). The scope, method, and findings of the 
investigation, and the conclusions reached in light of the findings 
should be fully described (essential).
    (9) Uses and applications. The methods considered for use of the 
selection procedure (e.g., as a screening device with a cutoff score, 
for grouping or ranking, or combined with other procedures in a battery) 
and available evidence of their impact should be described (essential). 
This description should include the rationale for choosing the method 
for operational use, and the evidence of the validity and utility of the 
procedure as it is to be used (essential). The purpose for which the 
procedure is to be used (e.g., hiring, transfer, promotion) should be 
described (essential). If weights are assigned to different parts of the 
selection procedure, these weights and the validity of the weighted 
composite should be reported (essential). If the selection procedure is 
used with a cutoff score, the user should describe the way in which 
normal expectations of proficiency within the work force were determined 
and the way in which the cutoff score was determined (essential).
    (10) Accuracy and completeness. The report should describe the steps 
taken to assure the accuracy and completeness of the collection, 
analysis, and report of data and results.
    (11) Source data. Each user should maintain records showing all 
pertinent information relating to its study of construct validity.
    (12) Contact person. The name, mailing address, and telephone number 
of the individual who may be contacted for further information about the 
validity study should be provided (essential).
    E. Evidence of validity from other studies. When validity of a 
selection procedure is supported by studies not done by the user, the 
evidence from the original study or studies should be compiled in a 
manner similar to that required in the appropriate section of this 
section 15 above. In addition, the following evidence should be 
supplied:
    (1) Evidence from criterion-related validity studies--a. Job 
information. A description of the important job behavior(s) of the 
user's job and the basis on

[[Page 236]]

which the behaviors were determined to be important should be provided 
(essential). A full description of the basis for determining that these 
important work behaviors are the same as those of the job in the 
original study (or studies) should be provided (essential).
    b. Relevance of criteria. A full description of the basis on which 
the criteria used in the original studies are determined to be relevant 
for the user should be provided (essential).
    c. Other variables. The similarity of important applicant pool or 
sample characteristics reported in the original studies to those of the 
user should be described (essential). A description of the comparison 
between the race, sex and ethnic composition of the user's relevant 
labor market and the sample in the original validity studies should be 
provided (essential).
    d. Use of the selection procedure. A full description should be 
provided showing that the use to be made of the selection procedure is 
consistent with the findings of the original validity studies 
(essential).
    e. Bibliography. A bibliography of reports of validity of the 
selection procedure for the job or jobs in question should be provided 
(essential). Where any of the studies included an investigation of test 
fairness, the results of this investigation should be provided 
(essential). Copies of reports published in journals that are not 
commonly available should be described in detail or attached 
(essential). Where a user is relying upon unpublished studies, a 
reasonable effort should be made to obtain these studies. If these 
unpublished studies are the sole source of validity evidence they should 
be described in detail or attached (essential). If these studies are not 
available, the name and address of the source, an adequate abstract or 
summary of the validity study and data, and a contact person in the 
source organization should be provided (essential).
    (2) Evidence from content validity studies. See section 14C(3) and 
section 15C above.
    (3) Evidence from construct validity studies. See sections 14D(2) 
and 15D above.
    F. Evidence of validity from cooperative studies. Where a selection 
procedure has been validated through a cooperative study, evidence that 
the study satisfies the requirements of sections 7, 8 and 15E should be 
provided (essential).
    G. Selection for higher level job. If a selection procedure is used 
to evaluate candidates for jobs at a higher level than those for which 
they will initially be employed, the validity evidence should satisfy 
the documentation provisions of this section 15 for the higher level job 
or jobs, and in addition, the user should provide: (1) a description of 
the job progression structure, formal or informal; (2) the data showing 
how many employees progress to the higher level job and the length of 
time needed to make this progression; and (3) an identification of any 
anticipated changes in the higher level job. In addition, if the test 
measures a knowledge, skill or ability, the user should provide evidence 
that the knowledge, skill or ability is required for the higher level 
job and the basis for the conclusion that the knowledge, skill or 
ability is not expected to develop from the training or experience on 
the job.
    H. Interim use of selection procedures. If a selection procedure is 
being used on an interim basis because the procedure is not fully 
supported by the required evidence of validity, the user should maintain 
and have available (1) substantial evidence of validity for the 
procedure, and (2) a report showing the date on which the study to 
gather the additional evidence commenced, the estimated completion date 
of the study, and a description of the data to be collected (essential).

(Approved by the Office of Management and Budget under control number 
3046-0017)

(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[43 FR 38295, 38312, Aug. 25, 1978, as amended at 46 FR 63268, Dec. 31, 
1981]

                               Definitions



Sec.  1607.16  Definitions.

    The following definitions shall apply throughout these guidelines:
    A. Ability. A present competence to perform an observable behavior 
or a behavior which results in an observable product.

[[Page 237]]

    B. Adverse impact. A substantially different rate of selection in 
hiring, promotion, or other employment decision which works to the 
disadvantage of members of a race, sex, or ethnic group. See section 4 
of these guidelines.
    C. Compliance with these guidelines. Use of a selection procedure is 
in compliance with these guidelines if such use has been validated in 
accord with these guidelines (as defined below), or if such use does not 
result in adverse impact on any race, sex, or ethnic group (see section 
4, above), or, in unusual circumstances, if use of the procedure is 
otherwise justified in accord with Federal law. See section 6B, above.
    D. Content validity. Demonstrated by data showing that the content 
of a selection procedure is representative of important aspects of 
performance on the job. See section 5B and section 14C.
    E. Construct validity. Demonstrated by data showing that the 
selection procedure measures the degree to which candidates have 
identifiable characteristics which have been determined to be important 
for successful job performance. See section 5B and section 14D.
    F. Criterion-related validity. Demonstrated by empirical data 
showing that the selection procedure is predictive of or significantly 
correlated with important elements of work behavior. See sections 5B and 
14B.
    G. Employer. Any employer subject to the provisions of the Civil 
Rights Act of 1964, as amended, including State or local governments and 
any Federal agency subject to the provisions of section 717 of the Civil 
Rights Act of 1964, as amended, and any Federal contractor or 
subcontractor or federally assisted construction contractor or 
subcontactor covered by Executive Order 11246, as amended.
    H. Employment agency. Any employment agency subject to the 
provisions of the Civil Rights Act of 1964, as amended.
    I. Enforcement action. For the purposes of section 4 a proceeding by 
a Federal enforcement agency such as a lawsuit or an administrative 
proceeding leading to debarment from or withholding, suspension, or 
termination of Federal Government contracts or the suspension or 
withholding of Federal Government funds; but not a finding of reasonable 
cause or a concil- ation process or the issuance of right to sue letters 
under title VII or under Executive Order 11246 where such finding, 
conciliation, or issuance of notice of right to sue is based upon an 
individual complaint.
    J. Enforcement agency. Any agency of the executive branch of the 
Federal Government which adopts these guidelines for purposes of the 
enforcement of the equal employment opportunity laws or which has 
responsibility for securing compliance with them.
    K. Job analysis. A detailed statement of work behaviors and other 
information relevant to the job.
    L. Job description. A general statement of job duties and 
responsibilities.
    M. Knowledge. A body of information applied directly to the 
performance of a function.
    N. Labor organization. Any labor organization subject to the 
provisions of the Civil Rights Act of 1964, as amended, and any 
committee subject thereto controlling apprenticeship or other training.
    O. Observable. Able to be seen, heard, or otherwise perceived by a 
person other than the person performing the action.
    P. Race, sex, or ethnic group. Any group of persons identifiable on 
the grounds of race, color, religion, sex, or national origin.
    Q. Selection procedure. Any measure, combination of measures, or 
procedure used as a basis for any employment decision. Selection 
procedures include the full range of assessment techniques from 
traditional paper and pencil tests, performance tests, training 
programs, or probationary periods and physical, educational, and work 
experience requirements through informal or casual interviews and 
unscored application forms.
    R. Selection rate. The proportion of applicants or candidates who 
are hired, promoted, or otherwise selected.
    S. Should. The term ``should'' as used in these guidelines is 
intended to connote action which is necessary to achieve compliance with 
the guidelines, while recognizing that there are

[[Page 238]]

circumstances where alternative courses of action are open to users.
    T. Skill. A present, observable competence to perform a learned 
psychomoter act.
    U. Technical feasibility. The exist- ence of conditions permitting 
the conduct of meaningful criterion-related validity studies. These 
conditions include: (1) An adequate sample of persons available for the 
study to achieve findings of statistical significance; (2) having or 
being able to obtain a sufficient range of scores on the selection 
procedure and job performance measures to produce validity results which 
can be expected to be representative of the results if the ranges 
normally expected were utilized; and (3) having or being able to devise 
unbiased, reliable and relevant measures of job performance or other 
criteria of employee adequacy. See section 14B(2). With respect to 
investigation of possible unfairness, the same considerations are 
applicable to each group for which the study is made. See section 
14B(8).
    V. Unfairness of selection procedure. A condition in which members 
of one race, sex, or ethnic group characteristically obtain lower scores 
on a selection procedure than members of another group, and the 
differences are not reflected in differences in measures of job 
performance. See section 14B(7).
    W. User. Any employer, labor organization, employment agency, or 
licensing or certification board, to the extent it may be covered by 
Federal equal employment opportunity law, which uses a selection 
procedure as a basis for any employment decision. Whenever an employer, 
labor organization, or employment agency is required by law to restrict 
recruitment for any occupation to those applicants who have met 
licensing or certification requirements, the licensing or certifying 
authority to the extent it may be covered by Federal equal employment 
opportunity law will be considered the user with respect to those 
licensing or certification requirements. Whenever a State employment 
agency or service does no more than administer or monitor a procedure as 
permitted by Department of Labor regulations, and does so without making 
referrals or taking any other action on the basis of the results, the 
State employment agency will not be deemed to be a user.
    X. Validated in accord with these guidelines or properly validated. 
A demonstration that one or more validity study or studies meeting the 
standards of these guidelines has been conducted, including 
investigation and, where appropriate, use of suitable alternative 
selection procedures as contemplated by section 3B, and has produced 
evidence of validity sufficient to warrant use of the procedure for the 
intended purpose under the standards of these guidelines.
    Y. Work behavior. An activity performed to achieve the objectives of 
the job. Work behaviors involve observable (physical) components and 
unobservable (mental) components. A work behavior consists of the 
performance of one or more tasks. Knowledges, skills, and abilities are 
not behaviors, although they may be applied in work behaviors.

                                Appendix



Sec.  1607.17  Policy statement on affirmative action (see section 13B).

    The Equal Employment Opportunity Coordinating Council was 
established by act of Congress in 1972, and charged with responsibility 
for developing and implementing agreements and policies designed, among 
other things, to eliminate conflict and inconsistency among the agencies 
of the Federal Government responsible for administering Federal law 
prohibiting discrimination on grounds of race, color, sex, religion, and 
national origin. This statement is issued as an initial response to the 
requests of a number of State and local officials for clarification of 
the Government's policies concerning the role of affirmative action in 
the overall equal employment opportunity program. While the Coordinating 
Council's adoption of this statement expresses only the views of the 
signatory agencies concerning this important subject, the principles set 
forth below should serve as policy guidance for other Federal agencies 
as well.
    (1) Equal employment opportunity is the law of the land. In the 
public sector of our society this means that all persons, regardless of 
race, color, religion,

[[Page 239]]

sex, or national origin shall have equal access to positions in the 
public service limited only by their ability to do the job. There is 
ample evidence in all sectors of our society that such equal access 
frequently has been denied to members of certain groups because of their 
sex, racial, or ethnic characteristics. The remedy for such past and 
present discrimination is twofold.
    On the one hand, vigorous enforcement of the laws against 
discrimination is essential. But equally, and perhaps even more 
important are affirmative, voluntary efforts on the part of public 
employers to assure that positions in the public service are genuinely 
and equally accessible to qualified persons, without regard to their 
sex, racial, or ethnic characteristics. Without such efforts equal 
employment opportunity is no more than a wish. The importance of 
voluntary affirmative action on the part of employers is underscored by 
title VII of the Civil Rights Act of 1964, Executive Order 11246, and 
related laws and regulations--all of which emphasize voluntary action to 
achieve equal employment opportunity.
    As with most management objectives, a systematic plan based on sound 
organizational analysis and problem identification is crucial to the 
accomplishment of affirmative action objectives. For this reason, the 
Council urges all State and local governments to develop and implement 
results oriented affirmative action plans which deal with the problems 
so identified.
    The following paragraphs are intended to assist State and local 
governments by illustrating the kinds of analyses and activities which 
may be appropriate for a public employer's voluntary affirmative action 
plan. This statement does not address remedies imposed after a finding 
of unlawful discrimination.
    (2) Voluntary affirmative action to assure equal employment 
opportunity is appropriate at any stage of the employment process. The 
first step in the construction of any affirmative action plan should be 
an analysis of the employer's work force to determine whether 
precentages of sex, race, or ethnic groups in individual job 
classifications are substantially similar to the precentages of those 
groups available in the relevant job market who possess the basic job-
related qualifications.
    When substantial disparities are found through such analyses, each 
element of the overall selection process should be examined to determine 
which elements operate to exclude persons on the basis of sex, race, or 
ethnic group. Such elements include, but are not limited to, 
recruitment, testing, ranking certification, interview, recommendations 
for selection, hiring, promotion, etc. The examination of each element 
of the selection process should at a minimum include a determination of 
its validity in predicting job performance.
    (3) When an employer has reason to believe that its selection 
procedures have the exclusionary effect described in paragraph 2 above, 
it should initiate affirmative steps to remedy the situation. Such 
steps, which in design and execution may be race, color, sex, or ethnic 
``conscious,'' include, but are not limited to, the following:
    (a) The establishment of a long-term goal, and short-range, interim 
goals and timetables for the specific job classifications, all of which 
should take into account the availability of basically qualified persons 
in the relevant job market;
    (b) A recruitment program designed to attract qualified members of 
the group in question;
    (c) A systematic effort to organize work and redesign jobs in ways 
that provide opportunities for persons lacking ``journeyman'' level 
knowledge or skills to enter and, with appropriate training, to progress 
in a career field;
    (d) Revamping selection instruments or procedures which have not yet 
been validated in order to reduce or eliminate exclusionary effects on 
particular groups in particular job classifications;
    (e) The initiation of measures designed to assure that members of 
the affected group who are qualified to perform the job are included 
within the pool of persons from which the selecting official makes the 
selection;
    (f) A systematic effort to provide career advancement training, both 
classroom and on-the-job, to employees locked into dead end jobs; and

[[Page 240]]

    (g) The establishment of a system for regularly monitoring the 
effectiveness of the particular affirmative action program, and 
procedures for making timely adjustments in this program where 
effectiveness is not demonstrated.
    (4) The goal of any affirmative action plan should be achievement of 
genuine equal employment opportunity for all qualified persons. 
Selection under such plans should be based upon the ability of the 
applicant(s) to do the work. Such plans should not require the selection 
of the unqualified, or the unneeded, nor should they require the 
selection of persons on the basis of race, color, sex, religion, or 
national origin. Moreover, while the Council believes that this 
statement should serve to assist State and local employers, as well as 
Federal agencies, it recognizes that affirmative action cannot be viewed 
as a standardized program which must be accomplished in the same way at 
all times in all places.

Accordingly, the Council has not attempted to set forth here either the 
minimum or maximum voluntary steps that employers may take to deal with 
their respective situations. Rather, the Council recognizes that under 
applicable authorities, State and local employers have flexibility to 
formulate affirmative action plans that are best suited to their 
particular situations. In this manner, the Council believes that 
affirmative action programs will best serve the goal of equal employment 
opportunity.

    Respectfully submitted,

                                                   Harold R. Tyler, Jr.,
Deputy Attorney General and Chairman of the Equal Employment 
Coordinating Council.
                                                      Michael H. Moskow,
Under Secretary of Labor.
                                                       Ethel Bent Walsh,
Acting Chairman, Equal Employment Opportunity Commission.
                                                      Robert E. Hampton,
Chairman, Civil Service Commission.
                                                     Arthur E. Flemming,
Chairman, Commission on Civil Rights.

    Because of its equal employment opportunity responsibilities under 
the State and Local Government Fiscal Assistance Act of 1972 (the 
revenue sharing act), the Department of Treasury was invited to 
participate in the formulation of this policy statement; and it concurs 
and joins in the adoption of this policy statement.

    Done this 26th day of August 1976.

                                                       Richard Albrecht,
                                                        General Counsel,
                                             Department of the Treasury.



Sec.  1607.18  Citations.

    The official title of these guidelines is ``Uniform Guidelines on 
Employee Selection Procedures (1978)''. The Uniform Guidelines on 
Employee Selection Procedures (1978) are intended to establish a uniform 
Federal position in the area of prohibiting discrimination in employment 
practices on grounds of race, color, religion, sex, or national origin. 
These guidelines have been adopted by the Equal Employment Opportunity 
Commission, the Department of Labor, the Department of Justice, and the 
Civil Service Commission.
    The official citation is:

    Section __, Uniform Guidelines on Employee Selection Procedure 
(1978); 43 FR __ (August 25, 1978).

    The short form citation is:

    Section __, U.G.E.S.P. (1978); 43 FR __ (August 25, 1978).

    When the guidelines are cited in connection with the activities of 
one of the issuing agencies, a specific citation to the regulations of 
that agency can be added at the end of the above citation. The specific 
additional citations are as follows:

Equal Employment Opportunity Commission
29 CFR part 1607
Department of Labor
Office of Federal Contract Compliance Programs
41 CFR part 60-3
Department of Justice
28 CFR 50.14
Civil Service Commission
5 CFR 300.103(c)


Normally when citing these guidelines, the section number immediately 
preceding the title of the guidelines will be from these guidelines 
series 1-18. If a section number from the codification for an individual 
agency is needed it can also be added at the end of the agency citation. 
For example, section

[[Page 241]]

6A of these guidelines could be cited for EEOC as follows:

    Section 6A, Uniform Guidelines on Employee Selection Procedures 
(1978); 43 FR __, (August 25, 1978); 29 CFR part 1607, section 6A.



PART 1608_AFFIRMATIVE ACTION APPROPRIATE UNDER TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, AS AMENDED--Table of Contents



Sec.
1608.1 Statement of purpose.
1608.2 Written interpretation and opinion.
1608.3 Circumstances under which voluntary affirmative action is 
          appropriate.
1608.4 Establishing affirmative action plans.
1608.5 Affirmative action compliance programs under Executive Order No. 
          11246, as amended.
1608.6 Affirmative action plans which are part of Commission 
          conciliation or settlement agreements.
1608.7 Affirmative action plans or programs under State or local law.
1608.8 Adherence to court order.
1608.9 Reliance on directions of other government agencies.
1608.10 Standard of review.
1608.11 Limitations on the application of these guidelines.
1608.12 Equal employment opportunity plans adopted pursuant to section 
          717 of title VII.

    Authority: Sec. 713 the Civil Rights Act of 1964, as amended, 42 
U.S.C. 2000e-12, 78 Stat. 265.

    Source: 44 FR 4422, Jan. 19, 1979, unless otherwise noted.



Sec.  1608.1  Statement of purpose.

    (a) Need for Guidelines. Since the passage of title VII in 1964, 
many employers, labor organizations, and other persons subject to title 
VII have changed their employment practices and systems to improve 
employment opportunities for minorities and women, and this must 
continue. These changes have been undertaken either on the initiative of 
the employer, labor organization, or other person subject to title VII, 
or as a result of conciliation efforts under title VII, action under 
Executive Order 11246, as amended, or under other Federal, State, or 
local laws, or litigation. Many decisions taken pursuant to affirmative 
action plans or programs have been race, sex, or national origin 
conscious in order to achieve the Congressional purpose of providing 
equal employment opportunity. Occasionally, these actions have been 
challenged as inconsistent with title VII, because they took into 
account race, sex, or national origin. This is the so-called ``reverse 
discrimination'' claim. In such a situation, both the affirmative action 
undertaken to improve the conditions of minorities and women, and the 
objection to that action, are based upon the principles of title VII. 
Any uncertainty as to the meaning and application of title VII in such 
situations threatens the accomplishment of the clear Congressional 
intent to encourage voluntary affirmative action. The Commission 
believes that by the enactment of title VII Congress did not intend to 
expose those who comply with the Act to charges that they are violating 
the very statute they are seeking to implement. Such a result would 
immobilize or reduce the efforts of many who would otherwise take action 
to improve the opportunities of minorities and women without litigation, 
thus frustrating the Congressional intent to encourage voluntary action 
and increasing the prospect of title VII litigation. The Commission 
believes that it is now necessary to clarify and harmonize the 
principles of title VII in order to achieve these Congressional 
objectives and protect those employers, labor organizations, and other 
persons who comply with the principles of title VII.
    (b) Purposes of title VII. Congress enacted title VII in order to 
improve the economic and social conditions of minorities and women by 
providing equality of opportunity in the work place. These conditions 
were part of a larger pattern of restriction, exclusion, discrimination, 
segregation, and inferior treatment of minorities and women in many 
areas of life. \2\ The Legislative

[[Page 242]]

Histories of title VII, the Equal Pay Act, and the Equal Employment 
Opportunity Act of 1972 contain extensive analyses of the higher 
unemployment rate, the lesser occupational status, and the consequent 
lower income levels of minorities and women. \3\ The purpose of 
Executive Order No. 11246, as amended, is similar to the purpose of 
title VII. In response to these economic and social conditions, 
Congress, by passage of title VII, established a national policy against 
discrimination in employment on grounds of race, color, religion, sex, 
and national origin. In addition, Congress strongly encouraged 
employers, labor organizations, and other persons subject to title VII 
(hereinafter referred to as ``persons,'' see section 701(a) of the Act) 
to act on a voluntary basis to modify employment practices and systems 
which constituted barriers to equal employment opportunity, without 
awaiting litigation or formal government action. Conference, 
conciliation, and persuasion were the primary processes adopted by 
Congress in 1964, and reaffirmed in 1972, to achieve these objectives, 
with enforcement action through the courts or agencies as a supporting 
procedure where voluntary action did not take place and conciliation 
failed. See section 706 of title VII.
---------------------------------------------------------------------------

    \2\ Congress has also addressed these conditions in other laws, 
including the Equal Pay Act of 1963, Pub. L. 88-38, 77 Stat. 56 (1963), 
as amended; the other titles of the Civil Rights Act of 1964, Pub. L. 
88-352, 78 Stat. 241 (1964), as amended; the Voting Rights Act of 1965, 
Pub. L. 89-110, 79 Stat. 437 (1965), as amended; the Fair Housing Act of 
1968, Pub. L. 90-284, title VII, 82 Stat. 73, 81 (1968), as amended; the 
Educational Opportunity Act (title IX), Pub. L. 92-318, 86 Stat. 373 
(1972), as amended; and the Equal Employment Opportunity Act of 1972, 
Pub. L. 92-261, 86 Stat. 103 (1972), as amended.
    \3\ Equal Pay Act of 1963: S. Rep. No. 176, 88th Cong., 1st Sess., 
1-2 (1963). Civil Rights Act of 1964: H.R. Rep. No. 914, pt. 2, 88th 
Cong., 1st Sess. (1971). Equal Employment Opportunity Act of 1972: H.R. 
Rep. No. 92-238, 92d Cong., 1st Sess. (1971); S. Rep. No. 92-415, 92d 
Cong., 1st Sess. (1971). See also, Equal Employment Opportunity 
Commission, Equal Employment Opportunity Report--1975, Job Patterns for 
Women in Private Industry (1977); Equal Employment Opportunity 
Commission, Minorities and Women in State and Local Government--1975 
(1977); United States Commission on Civil Rights, Social Indicators of 
Equality for Minorities and Women (1978).
---------------------------------------------------------------------------

    (c) Interpretation in furtherance of legislative purpose. The 
principle of nondiscrimination in employment because of race, color, 
religion, sex, or national origin, and the principle that each person 
subject to title VII should take voluntary action to correct the effects 
of past discrimination and to prevent present and future discrimination 
without awaiting litigation, are mutually consistent and interdependent 
methods of addressing social and economic conditions which precipitated 
the enactment of title VII. Voluntary affirmative action to improve 
opportunities for minorities and women must be encouraged and protected 
in order to carry out the Congressional intent embodied in title VII. 
\4\ Affirmative action under these principles means those actions 
appropriate to overcome the effects of past or present practices, 
policies, or other barriers to equal employment opportunity. Such 
voluntary affirmative action cannot be measured by the standard of 
whether it would have been required had there been litigation, for this 
standard would undermine the legislative purpose of first encouraging 
voluntary action without litigation. Rather, persons subject to title 
VII must be allowed flexibility in modifying employment systems and 
practices to comport with the purposes of title VII. Correspondingly, 
title VII must be construed to permit such voluntary action, and those 
taking such action should be afforded the protection against title VII 
liability which the Commission is authorized to provide under section 
713(b)(1).
---------------------------------------------------------------------------

    \4\ Affirmative action often improves opportunities for all members 
of the workforce, as where affirmative action includes the posting of 
notices of job vacancies. Similarly, the integration of previously 
segregated jobs means that all workers will be provided opportunities to 
enter jobs previously restricted. See, e.g., EEOC v. AT&T, 419 F. Supp. 
1022 (E.D.Pa. 1976), aff'd, 556 F. 2d 167 (3rd Cir. 1977), cert. denied, 
98 S.Ct. 3145 (1978).
---------------------------------------------------------------------------

    (d) Guidelines interpret title VII and authorize use of section 
713(b)(1). These Guidelines describe the circumstances in which persons 
subject to title VII may take or agree upon action to improve employment 
opportunities of minorities and women, and describe the kinds of actions 
they may take which are consistent with title VII. These Guidelines 
constitute the Commission's interpretation of title VII and will be 
applied in the processing of claims of discrimination which involve 
voluntary affirmative action plans and programs. In addition, these 
Guidelines

[[Page 243]]

state the circumstances under which the Commission will recognize that a 
person subject to title VII is entitled to assert that actions were 
taken ``in good faith, in conformity with, and in reliance upon a 
written interpretation or opinion of the Commission,'' including 
reliance upon the interpretation and opinion contained in these 
Guidelines, and thereby invoke the protection of section 713(b)(1) of 
title VII.
    (e) Review of existing plans recommended. Only affirmative action 
plans or programs adopted in good faith, in conformity with, and in 
reliance upon these Guidelines can receive the full protection of these 
Guidelines, including the section 713(b)(1) defense. See Sec.  1608.10. 
Therefore, persons subject to title VII who have existing affirmative 
action plans, programs, or agreements are encouraged to review them in 
light of these Guidelines, to modify them to the extent necessary to 
comply with these Guidelines, and to readopt or reaffirm them.



Sec.  1608.2  Written interpretation and opinion.

    These Guidelines constitute ``a written interpretation and opinion'' 
of the Equal Employment Opportunity Commission as that term is used in 
section 713(b)(1) of title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. 2000e-12(b)(1), and Sec.  1601.33 of the Procedural 
Regulations of the Equal Employment Opportunity Commission (29 CFR 
1601.30; 42 FR 55,394 (October 14, 1977)). Section 713(b)(1) provides:

    In any action or proceeding based on any alleged unlawful employment 
practice, no person shall be subject to any liability or punishment for 
or on account of (1) the commission by such person of an unlawful 
employment practice if he pleads and proves that the act or omission 
complained of was in good faith, in conformity with, and in reliance on 
any written interpretation or opinion of the Commission * * *. Such a 
defense, if established, shall be a bar to the action or proceeding, 
notwithstanding that * * * after such act or omission, such 
interpretation or opinion is modified or rescinded or is determined by 
judicial authority to be invalid or of no legal effect * * *.


The applicability of these Guidelines is subject to the limitations on 
use set forth in Sec.  1608.11.



Sec.  1608.3  Circumstances under which voluntary affirmative action
is appropriate.

    (a) Adverse effect. Title VII prohibits practices, procedures, or 
policies which have an adverse impact unless they are justified by 
business necessity. In addition, title VII proscribes practices which 
``tend to deprive'' persons of equal employment opportunities. 
Employers, labor organizations and other persons subject to title VII 
may take affirmative action based on an analysis which reveals facts 
constituting actual or potential adverse impact, if such adverse impact 
is likely to result from existing or contemplated practices.
    (b) Effects of prior discriminatory practices. Employers, labor 
organizations, or other persons subject to title VII may also take 
affirmative action to correct the effects of prior discriminatory 
practices. The effects of prior discriminatory practices can be 
initially identified by a comparison between the employer's work force, 
or a part thereof, and an appropriate segment of the labor force.
    (c) Limited labor pool. Because of historic restrictions by 
employers, labor organizations, and others, there are circumstances in 
which the available pool, particularly of qualified minorities and 
women, for employment or promotional opportunities is artificially 
limited. Employers, labor organizations, and other persons subject to 
title VII may, and are encouraged to take affirmative action in such 
circumstances, including, but not limited to, the following:
    (1) Training plans and programs, including on-the-job training, 
which emphasize providing minorities and women with the opportunity, 
skill, and expericence necessary to perform the functions of skilled 
trades, crafts, or professions;
    (2) Extensive and focused recruiting activity;
    (3) Elimination of the adverse impact caused by unvalidated 
selection criteria (see sections 3 and 6, Uniform Guidelines on Employee 
Selection Procedures (1978), 43 FR 30290; 38297; 38299 (August 25, 
1978));
    (4) Modification through collective bargaining where a labor 
organization represents employees, or unilaterally

[[Page 244]]

where one does not, of promotion and layoff procedures.



Sec.  1608.4  Establishing affirmative action plans.

    An affirmative action plan or program under this section shall 
contain three elements: a reasonable self analysis; a reasonable basis 
for concluding action is appropriate; and reasonable action.
    (a) Reasonable self analysis. The objective of a self analysis is to 
determine whether employment practices do, or tend to, exclude, 
disadvantage, restrict, or result in adverse impact or disparate 
treatment of previously excluded or restricted groups or leave 
uncorrected the effects of prior discrimination, and if so, to attempt 
to determine why. There is no mandatory method of conducting a self 
analysis. The employer may utilize techniques used in order to comply 
with Executive Order 11246, as amended, and its implementing 
regulations, including 41 CFR part 60-2 (known as Revised Order 4), or 
related orders issued by the Office of Federal Contract Compliance 
Programs or its authorized agencies, or may use an analysis similar to 
that required under other Federal, State, or local laws or regulations 
prohibiting employment discrimination. In conducting a self analysis, 
the employer, labor organization, or other person subject to title VII 
should be concerned with the effect on its employment practices of 
circumstances which may be the result of discrimination by other persons 
or institutions. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
    (b) Reasonable basis. If the self analysis shows that one or more 
employment practices:
    (1) Have or tend to have an adverse effect on employment 
opportunities of members of previously excluded groups, or groups whose 
employment or promotional opportunities have been artificially limited,
    (2) Leave uncorrected the effects of prior discrimination, or
    (3) Result in disparate treatment, the person making the self 
analysis has a reasonable basis for concluding that action is 
appropriate.

It is not necessary that the self analysis establish a violation of 
title VII. This reasonable basis exists without any admission or formal 
finding that the person has violated title VII, and without regard to 
whether there exists arguable defenses to a title VII action.
    (c) Reasonable action. The action taken pursuant to an affirmative 
action plan or program must be reasonable in relation to the problems 
disclosed by the self analysis. Such reasonable action may include goals 
and timetables or other appropriate employment tools which recognize the 
race, sex, or national origin of applicants or employees. It may include 
the adoption of practices which will eliminate the actual or potential 
adverse impact, disparate treatment, or effect or past discrimination by 
providing opportunities for members of groups which have been excluded, 
regardless of whether the persons benefited were themselves the victims 
of prior policies or procedures which produced the adverse impact or 
disparate treatment or which perpetuated past discrimination.
    (1) Illustrations of appropriate affirmative action. Affirmative 
action plans or programs may include, but are not limited to, those 
described in the Equal Employment Opportunity Coordinating Council 
``Policy Statement on Affirmative Action Programs for State and Local 
Government Agencies,'' 41 FR 38814 (September 13, 1976), reaffirmed and 
extended to all persons subject to Federal equal employment opportunity 
laws and orders, in the Uniform Guidelines on Employee Selection 
Procedures (1978) 43 FR 38290; 38300 (Aug. 25, 1978). That statement 
reads, in relevant part:

    When an employer has reason to believe that its selection procedures 
have * * * exclusionary effect * * *, it should initiate affirmative 
steps to remedy the situation. Such steps, which in design and execution 
may be race, color, sex or ethnic `conscious,' include, but are not 
limited to, the following:
    The establishment of a long term goal and short range, interim goals 
and timetables for the specific job classifications, all of which should 
take into account the availability of basically qualified persons in the 
relevant job market;
    A recruitment program designed to attract qualified members of the 
group in question;
    A systematic effort to organize work and re-design jobs in ways that 
provide opportunities for persons lacking `journeyman' level

[[Page 245]]

knowledge or skills to enter and, with appropriate training, to progress 
in a career field;
    Revamping selection instruments or procedures which have not yet 
been validated in order to reduce or eliminate exclusionary effects on 
particular groups in particular job classifications;
    The initiation of measures designed to assure that members of the 
affected group who are qualified to perform the job are included within 
the pool of persons from which the selecting official makes the 
selection;
    A systematic effort to provide career advancement training, both 
classroom and on-the-job, to employees locked into dead end jobs; and
    The establishment of a system for regularly monitoring the 
effectiveness of the particular affirmative action program, and 
procedures for making timely adjustments in this program where 
effectiveness is not demonstrated.

    (2) Standards of reasonable action. In considering the 
reasonableness of a particular affirmative action plan or program, the 
Commission will generally apply the following standards:
    (i) The plan should be tailored to solve the problems which were 
identified in the self analysis, see Sec.  1608.4(a), supra, and to 
ensure that employment systems operate fairly in the future, while 
avoiding unnecessary restrictions on opportunities for the workforce as 
a whole. The race, sex, and national origin conscious provisions of the 
plan or program should be maintained only so long as is necessary to 
achieve these objectives.
    (ii) Goals and timetables should be reasonably related to such 
considerations as the effects of past discrimination, the need for 
prompt elimination of adverse impact or disparate treatment, the 
availability of basically qualified or qualifiable applicants, and the 
number of employment opportunities expected to be available.
    (d) Written or unwritten plans or programs--(1) Written plans 
required for 713(b)(1) protection. The protection of section 713(b) of 
title VII will be accorded by the Commission to a person subject to 
title VII only if the self analysis and the affirmative action plan are 
dated and in writing, and the plan otherwise meets the requirements of 
section 713(b)(1). The Commission will not require that there be any 
written statement concluding that a title VII violation exists.
    (2) Reasonable cause determinations. Where an affirmative action 
plan or program is alleged to violate title VII, or is asserted as a 
defense to a charge of discrimination, the Commission will investigate 
the charge in accordance with its usual procedures and pursuant to the 
standards set forth in these Guidelines, whether or not the analysis and 
plan are in writing. However, the absence of a written self analysis and 
a written affirmative action plan or program may make it more difficult 
to provide credible evidence that the analysis was conducted, and that 
action was taken pursuant to a plan or program based on the analysis. 
Therefore, the Commission recommends that such analyses and plans be in 
writing.



Sec.  1608.5  Affirmative action compliance programs under Executive
Order No. 11246, as amended.

    Under title VII, affirmative action compliance programs adopted 
pursuant to Executive Order 11246, as amended, and its implementing 
regulations, including 41 CFR part 60-2 (Revised Order 4), will be 
considered by the Commission in light of the similar purposes of title 
VII and the Executive Order, and the Commission's responsibility under 
Executive Order 12067 to avoid potential conflict among Federal equal 
employment opportunity programs. Accordingly, the Commission will 
process title VII complaints involving such affirmative action 
compliance programs under this section.
    (a) Procedures for review of Affirmative Action Compliance Programs. 
If adherence to an affirmative action compliance program adopted 
pursuant to Executive Order 11246, as amended, and its implementing 
regulations, is the basis of a complaint filed under title VII, or is 
alleged to be the justification for an action which is challenged under 
title VII, the Commission will investigate to determine whether the 
affirmative action compliance program was adopted by a person subject to 
the Order and pursuant to the Order, and whether adherence to the 
program was the basis of the complaint or the justification.
    (1) Programs previously approved. If the Commission makes the 
determination described in paragraph (a) of this

[[Page 246]]

section and also finds that the affirmative action program has been 
approved by an appropriate official of the Department of Labor or its 
authorized agencies, or is part of a conciliation or settlement 
agreement or an order of an administrative agency, whether entered by 
consent or after contested proceedings brought to enforce Executive 
Order 11246, as amended, the Commission will issue a determination of no 
reasonable cause.
    (2) Program not previously approved. If the Commission makes the 
determination described in paragraph (a), of this section but the 
program has not been approved by an appropriate official of the 
Department of Labor or its authorized agencies, the Commission will: (i) 
Follow the procedure in Sec.  1608.10(a) and review the program, or (ii) 
refer the plan to the Department of Labor for a determination of whether 
it is to be approved under Executive Order 11246, as amended, and its 
implementing regulations. If, the Commission finds that the program does 
conform to these Guidelines, or the Department of Labor approves the 
affirmative action compliance program, the Commission will issue a 
determination of no reasonable cause under Sec.  1608.10(a).
    (b) Reliance on these guidelines. In addition, if the affirmative 
action compliance program has been adopted in good faith reliance on 
these Guidelines, the provisions of section 713(b)(1) of title VII and 
of Sec.  1608.10(b), of this part, may be asserted by the contractor.



Sec.  1608.6  Affirmative action plans which are part of Commission 
conciliation or settlement agreements.

    (a) Procedures for review of plans. If adherence to a conciliation 
or settlement agreement executed under title VII and approved by a 
responsible official of the EEOC is the basis of a complaint filed under 
title VII, or is alleged to be the justification for an action 
challenged under title VII, the Commission will investigate to 
determine:
    (1) Whether the conciliation agreement or settlement agreement was 
approved by a responsible official of the EEOC, and
    (2) Whether adherence to the agreement was the basis for the 
complaint or justification.

If the Commission so finds, it will make a determination of no 
reasonable cause under Sec.  1608.10(a) and will advise the respondent 
of its right under section 713(b)(1) of title VII to rely on the 
conciliation agreement.
    (b) Reliance on these guidelines. In addition, if the affirmative 
action plan or program has been adopted in good faith reliance on these 
Guidelines, the provisions of section 713(b)(1) of title VII and of 
Sec.  1608.10(b), of this part, may be asserted by the respondent.



Sec.  1608.7  Affirmative action plans or programs under State or
local law.

    Affirmative action plans or programs executed by agreement with 
State or local government agencies, or by order of State or local 
government agencies, whether entered by consent or after contested 
proceedings, under statutes or ordinances described in title VII, will 
be reviewed by the Commission in light of the similar purposes of title 
VII and such statutes and ordinances. Accordingly, the Commission will 
process title VII complaints involving such affirmative action plans or 
programs under this section.
    (a) Procedures for review of plans or programs. If adherence to an 
affirmative action plan or program executed pursuant to a State statute 
or local ordinance described in title VII is the basis of a complaint 
filed under title VII or is alleged to be the justification for an 
action which is challenged under Title VII, the Commission will 
investigate to determine:
    (1) Whether the affirmative action plan or program was executed by 
an employer, labor organization, or person subject to the statute or 
ordinance,
    (2) Whether the agreement was approved by an appropriate official of 
the State or local government, and
    (3) Whether adherence to the plan or program was the basis of the 
complaint or justification.
    (1) Previously approved plans or programs. If the Commission finds 
the facts described in paragraph (a) of this section, the Commission 
will, in accordance with the ``substantial weight'' provisions of 
section 706 of the

[[Page 247]]

Act, find no reasonable cause where appropriate.
    (2) Plans or programs not previously approved. If the plan or 
program has not been approved by an appropriate official of the State or 
local government, the Commission will follow the procedure of Sec.  
1608.10 of these Guidelines. If the Commission finds that the plan or 
program does conform to these Guidelines, the Commission will make a 
determination of no reasonable cause as set forth in Sec.  1608.10(a).
    (b) Reliance on these guidelines. In addition, if the affirmative 
action plan or program has been adopted in good faith reliance on these 
Guidelines, the provisions of section 713(b)(1) and Sec.  1608.10(b), of 
this part, may be asserted by the respondent.



Sec.  1608.8  Adherence to court order.

    Parties are entitled to rely on orders of courts of competent 
jurisdiction. If adherence to an Order of a United States District Court 
or other court of competent jurisdiction, whether entered by consent or 
after contested litigation, in a case brought to enforce a Federal, 
State, or local equal employment opportunity law or regulation, is the 
basis of a complaint filed under title VII or is alleged to be the 
justification for an action which is challenged under title VII, the 
Commission will investigate to determine:
    (a) Whether such an Order exists and
    (b) Whether adherence to the affirmative action plan which is part 
of the Order was the basis of the complaint or justification.

If the Commission so finds, it will issue a determination of no 
reasonable cause. The Commission interprets title VII to mean that 
actions taken pursuant to the direction of a Court Order cannot give 
rise to liability under title VII.



Sec.  1608.9  Reliance on directions of other government agencies.

    When a charge challenges an affirmative action plan or program, or 
when such a plan or program is raised as justification for an employment 
decision, and when the plan or program was developed pursuant to the 
requirements of a Federal or State law or regulation which in part seeks 
to ensure equal employment opportunity, the Commission will process the 
charge in accordance with Sec.  1608.10(a). Other agencies with equal 
employment opportunity responsibilities may apply the principles of 
these Guidelines in the exercise of their authority.



Sec.  1608.10  Standard of review.

    (a) Affirmative action plans or programs not specifically relying on 
these guidelines. If, during the investigation of a charge of 
discrimination filed with the Commission, a respondent asserts that the 
action complained of was taken pursuant to an in accordance with a plan 
or program of the type described in these Guidelines, the Commission 
will determine whether the assertion is true, and if so, whether such a 
plan or program conforms to the requirements of these guidelines. If the 
Commission so finds, it will issue a determination of no reasonable 
cause and, where appropriate, will state that the determination 
constitutes a written interpretation or opinion of the Commission under 
section 713(b)(1). This interpretation may be relied upon by the 
respondent and asserted as a defense in the event that new charges 
involving similar facts and circumstances are thereafter filed against 
the respondent, which are based on actions taken pursuant to the 
affirmative action plan or program. If the Commission does not so find, 
it will proceed with the investigation in the usual manner.
    (b) Reliance on these guidelines. If a respondent asserts that the 
action taken was pursuant to and in accordance with a plan or program 
which was adopted or implemented in good faith, in conformity with, and 
in reliance upon these Guidelines, and the self analysis and plan are in 
writing, the Commission will determine whether such assertion is true. 
If the Commission so finds, it will so state in the determination of no 
reasonable cause and will advise the respondent that:
    (1) The Commission has found that the respondent is entitled to the 
protection of section 713(b)(1) of title VII; and
    (2) That the determination is itself an additional written 
interpretation or opinion of the Commission pursuant to section 
713(b)(1).

[[Page 248]]



Sec.  1608.11  Limitations on the application of these guidelines.

    (a) No determination of adequacy of plan or program. These 
Guidelines are applicable only with respect to the circumstances 
described in Sec.  1608.1(d), of this part. They do not apply to, and 
the section 713(b)(1) defense is not available for the purpose of, 
determining the adequacy of an affirmative action plan or program to 
eliminate discrimination. Whether an employer who takes such affirmative 
action has done enough to remedy such discrimination will remain a 
question of fact in each case.
    (b) Guidelines inapplicable in absence of affirmative action. Where 
an affirmative action plan or program does not exist, or where the plan 
or program is not the basis of the action complained of, these 
Guidelines are inapplicable.
    (c) Currency of plan or program. Under section 713(b)(1), persons 
may rely on the plan or program only during the time when it is current. 
Currency is related to such factors as progress in correcting the 
conditions disclosed by the self analysis. The currency of the plan or 
program is a question of fact to be determined on a case by case basis. 
Programs developed under Executive Order 11246, as amended, will be 
deemed current in accordance with Department of Labor regulations at 41 
CFR chapter 60, or successor orders or regulations.



Sec.  1608.12  Equal employment opportunity plans adopted pursuant to
section 717 of title VII.

    If adherence to an Equal Employment Opportunity Plan, adopted 
pursuant to section 717 of title VII, and approved by an appropriate 
official of the U.S. Civil Service Commission, is the basis of a 
complaint filed under title VII, or is alleged to be the justification 
for an action under title VII, these Guidelines will apply in a manner 
similar to that set forth in Sec.  1608.5. The Commission will issue 
regulations setting forth the procedure for processing such complaints.



PART 1610_AVAILABILITY OF RECORDS--Table of Contents



          Subpart A_Production or Disclosure Under 5 U.S.C. 552

Sec.
1610.1 Definitions.
1610.2 Statutory requirements.
1610.3 Purpose and scope.
1610.4 Public reference facilities and current index.
1610.5 Request for records.
1610.6 [Reserved]
1610.7 Where to make request; form.
1610.8 Authority to determine.
1610.9 Responses: Timing.
1610.10 Responses: Form and content.
1610.11 Appeals to the Legal Counsel from initial denials.
1610.13 Maintenance of files.
1610.14 Waiver of user charges.
1610.15 Schedule of fees and method of payment for services rendered.
1610.16 [Reserved]
1610.17 Exemptions.
1610.18 Information to be disclosed.
1610.19 Predisclosure notification procedures for confidential 
          commercial information.
1610.20 [Reserved]
1610.21 Annual report.

  Subpart B_Production in Response to Subpenas or Demands of Courts or 
                            Other Authorities

1610.30 Purpose and scope.
1610.32 Production prohibited unless approved by the Legal Counsel.
1610.34 Procedure in the event of a demand for production or disclosure.
1610.36 Procedure in the event of an adverse ruling.

    Authority: 42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by Pub. L. 
93-502, Pub. L. 99-570, and Pub. L. 105-231; for Sec.  1610.15, 
nonsearch or copy portions are issued under 31 U.S.C. 9701.



          Subpart A_Production or Disclosure Under 5 U.S.C. 552



Sec.  1610.1  Definitions.

    (a) Title VII refers to title VII of the Civil Rights Act of 1964, 
as amended by Public Law 92-261, 42 U.S.C. (Supp. II) 2000e et seq.
    (b) Commission refers to the Equal Employment Opportunity 
Commission.
    (c) Freedom of Information Act refers to 5 U.S.C. 552 (Pub. L. 90-23 
as amended by Pub. L. 93-502).

[[Page 249]]

    (d) Attestation refers to the authentication of copies of Commission 
documents by an affidavit or unsworn declaration from the records 
custodian without the Commission Seal.
    (e) Certification refers to the authentication of copies of 
Commission documents by an affidavit or unsworn declaration from the 
records custodian under the Commission Seal.
    (f) Agency record includes any information maintained for an agency 
by an entity under Government contract, for the purposes of records 
management.
    (g) FOIA Public Liaison means an agency official who is responsible 
for assisting in reducing delays, increasing transparency and 
understanding of the status of requests, and assisting in the resolution 
of disputes.

[40 FR 8171, Feb. 26, 1975, as amended at 52 FR 13830, Apr. 27, 1987; 70 
FR 57511, Oct. 3, 2005; 78 FR 36650, June 19, 2013; 81 FR 95870, Dec. 
29, 2016]



Sec.  1610.2  Statutory requirements.

    (a) This subpart contains the rules that the Commission will follow 
in processing requests for records under the Freedom of Information Act 
(``FOIA''), 5 U.S.C. 552. These rules should be read in conjunction with 
the text of the FOIA and the Uniform Freedom of Information Fee Schedule 
and Guidelines published by the Office of Management and Budget (``OMB 
Guidelines''). Requests made by individuals for records about themselves 
under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in 
accordance with the Commission's Privacy Act regulations as well as 
under this subpart. The Commission should administer the FOIA with a 
presumption of openness.
    (b) As referenced in this subpart, ``component'' means each separate 
office within the Commission that is responsible for processing FOIA 
requests. The rules described in this regulation that apply to the 
Commission also apply to its components.

[82 FR 45181, Sept. 28, 2017]



Sec.  1610.3  Purpose and scope.

    (a) This subpart contains the regulations of the Equal Employment 
Opportunity Commission implementing 5 U.S.C. 552. The regulations of 
this subpart provide information concerning the procedures by which 
records may be obtained from all organizational units within the 
Commission. Official records of the Commission made available pursuant 
to the requirements of 5 U.S.C. 552 shall be furnished to members of the 
public only as prescribed by this subpart. Officers and employees of the 
Commission may continue to furnish to the public, informally and without 
compliance with the procedures prescribed herein, information and 
records which prior to the enactment of 5 U.S.C. 552 were furnished 
customarily in the regular performance of their duties.
    (b) Nothing in this subpart shall be construed to entitle any 
person, as of right, to any service or to the disclosure of any record 
to which such person is not entitled under the FOIA.

[81 FR 95871, Dec. 29, 2016]



Sec.  1610.4  Public reference facilities and current index.

    (a) Records that the FOIA requires the Commission to make available 
for public inspection in an electronic format may be accessed through 
the Commission's Web site. The Commission is responsible for determining 
which of its records must be made publicly available, for identifying 
additional records of interest to the public that are appropriate for 
public disclosure, and for posting and indexing such records. The 
Commission must ensure that its Web site of posted records and indices 
is reviewed and updated on an ongoing basis. The Commission has a FOIA 
Requester Service Center or FOIA Public Liaison who can assist 
individuals in locating records particular to the Commission. Contact 
information is located at https://www.eeoc.gov/eeoc/foia/index.cfm. A 
list of agency FOIA Public Liaisons is available at http://www.foia.gov/
report-makerequest.html.
    (b) The Commission offices designated in Sec.  1610.4(c) shall 
maintain and make available for public inspection and copying a copy of:
    (1) The Commission's notices and regulatory amendments which are not 
yet published in the Code of Federal Regulations;
    (2) The Commission's annual reports;

[[Page 250]]

    (3) The Commission's Compliance Manual;
    (4) Blank forms relating to the Commission's procedures as they 
affect the public;
    (5) The Commission's Orders (agency directives);
    (6) ``CCH Equal Employment Opportunity Commission Decisions'' (1973 
and 1983);
    (7) Commission awarded contracts; and
    (8) Copies of all records, regardless of form or format, that 
because of the nature of their subject matter--
    (i) The Commission determines have become, or are likely to become, 
the subject of subsequent requests for substantially the same records; 
or
    (ii) That have been requested 3 or more times.
    (c) The Commission's District Offices with public reading areas are:

    Atlanta District Office, Sam Nunn Atlanta Federal Center, 100 
Alabama Street SW., Suite 4R30, Atlanta, GA 30303 (includes the Savannah 
Local Office).
    Birmingham District Office, Ridge Park Place, 1130 22nd Street 
South, Suite 2000, Birmingham, AL 35205-2397 (includes the Jackson Area 
Office and the Mobile Local Office).
    Charlotte District Office, 129 West Trade Street, Suite 400, 
Charlotte, NC 28202 (includes the Raleigh Area Office, the Greensboro 
Local Office, the Greenville Local Office, the Norfolk Local Office, and 
the Richmond Local Office).
    Chicago District Office, 500 West Madison Street, Suite 2000, 
Chicago, IL 60661 (includes the Milwaukee Area Office and the 
Minneapolis Area Office).
    Dallas District Office, 207 S. Houston Street, 3rd Floor, Dallas, TX 
75202-4726 (includes the San Antonio Field Office and the El Paso Area 
Office).
    Houston District Office, Mickey Leland Building, 1919 Smith Street, 
6th Floor, Houston, TX 77002 (includes the New Orleans Field Office).
    Indianapolis District Office, 101 West Ohio Street, Suite 1900, 
Indianapolis, IN 46204-4203 (includes the Detroit Field Office, the 
Cincinnati Area Office, and the Louisville Area Office).
    Los Angeles District Office, Roybal Federal Building, 255 East 
Temple Street, 4th Floor, Los Angeles, CA 90012 (includes the Fresno 
Local Office, the Honolulu Local Office, the Las Vegas Local Office, and 
the San Diego Local Office).
    Memphis District Office, 1407 Union Avenue, 9th Floor, Memphis, TN 
38104 (includes the Little Rock Area Office, and the Nashville Area 
Office).
    Miami District Office, Miami Tower, 100 SE 2nd Street, Suite 1500, 
Miami, FL 33131 (includes the Tampa Field Office, and the San Juan Local 
Office).
    New York District Office, 33 Whitehall Street, 5th Floor, New York, 
NY 10004 (includes the Boston Area Office, the Newark Area Office, and 
the Buffalo Local Office).
    Philadelphia District Office, 801 Market Street, Suite 1300, 
Philadelphia, PA 19107-3127 (includes the Baltimore Field Office, the 
Cleveland Field Office, and the Pittsburgh Area Office).
    Phoenix District Office, 3300 N. Central Avenue, Suite 690, Phoenix, 
AZ 85012-2504 (includes the Denver Field Office, and the Albuquerque 
Area Office).
    San Francisco District Office, 450 Golden Gate Avenue, 5 West, P.O. 
Box 36025, San Francisco, CA 94102-3661 (includes the Seattle Field 
Office, the Oakland Local Office, and the San Jose Local Office).
    St. Louis District Office, Robert A. Young Federal Building, 1222 
Spruce Street, Room 8100, St. Louis, MO 63103 (includes the Kansas City 
Area Office, and the Oklahoma City Area Office).

[78 FR 36650, June 19, 2013, as amended at 81 FR 95871, Dec. 29, 2016]



Sec.  1610.5  Request for records.

    (a) General information. (1) To make a request for records, a 
requester should write directly to the Commission's FOIA office that 
maintains the records sought. A request will receive the quickest 
possible response if it is addressed to the Commission FOIA office that 
maintains the records sought. Information concerning the Commission's 
FOIA offices is listed at: https://www.eeoc.gov/eeoc/foia/index.cfm and 
any additional requirements for submitting a request to the agency are 
listed at paragraphs (b) and (d) of this section. The Commission's Web 
site contains instructions for submitting FOIA requests and other 
resources to assist requesters in determining where to send their 
requests.
    (2) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or by 
submitting proof that the individual

[[Page 251]]

is deceased (for example, a copy of a death certificate or an obituary). 
As an exercise of administrative discretion, the Commission can require 
a requester to supply additional information if necessary in order to 
verify that a particular individual has consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable Commission personnel to 
locate them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may help the 
Commission identify the requested records, such as the date, title or 
name, author, recipient, subject matter of the record, case number, file 
designation, or reference number. Before submitting their requests, 
requesters may contact the Commission's District Office FOIA contact or 
FOIA Public Liaison to discuss the records they seek and to receive 
assistance in describing the records. If after receiving a request the 
Commission determines that it does not reasonably describe the records 
sought, the Commission must inform the requester what additional 
information is needed or why the request is otherwise insufficient. 
Requesters who are attempting to reformulate or modify such a request 
may discuss their request with the Commission's FOIA contact or FOIA 
Public Liaison. If a request does not reasonably describe the records 
sought, the agency's response to the request may be delayed.
    (1) A written request for inspection or copying of a record of the 
Commission may be presented in person, by mail, by fax, by email at 
[email protected], online at https://publicportalfoiapal.eeoc.gov/
palMain.aspx, or through the Commission employee designated in Sec.  
1610.7.
    (2) A request must be clearly and prominently identified as a 
request for information under the ``Freedom of Information Act.'' If 
submitted by mail, or otherwise submitted under any cover, the envelope 
or other cover must be similarly identified.
    (3) A respondent must always provide a copy of the ``Filed'' stamped 
court complaint when requesting a copy of a charge file. The charging 
party must provide a copy of the ``Filed'' stamped court complaint when 
requesting a copy of the charge file if the Notice of Right to Sue has 
expired as of the date of the charging party's request.
    (4) Each request must contain information which reasonably describes 
the records sought and, when known, should contain date, title or name, 
author, recipient, subject matter of the record, case number, file 
designation, or reference number and location for the records requested 
in order to permit the records to be promptly located.
    (c) Format. Requests may specify the preferred form or format 
(including electronic formats) for the records the requester seeks. The 
Commission will accommodate the request if the records are readily 
reproducible in that form or format.
    (d) Requester information. Requesters must provide contact 
information, such as their phone number, email address, and/or mailing 
address, to assist the agency in communicating with them and providing 
released records.

[82 FR 45181, Sept. 28, 2017]



Sec.  1610.6  [Reserved]



Sec.  1610.7  Where to make request; form.

    (a) In general. The Commission or component that first receives a 
request for a record and maintains that record is responsible for 
responding to the request. In determining which records are responsive 
to a request, the Commission ordinarily will include only records in its 
possession as of the date that it begins its search. If any other date 
is used, the Commission must inform the requester of that date. A record 
that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 
552(c), is not considered responsive to a request. Requests for the 
following types of records, however, should be submitted to the District 
Director for the pertinent district, field, area, or local office, at 
the district office address listed in Sec.  1610.4(c) or, in the case of 
the Washington Field Office, shall be submitted to the Field Office 
Director at 131 M Street NE., Fourth Floor, Washington, DC 20507:
    (1) Information about current or former employees of an office;

[[Page 252]]

    (2) Existing non-confidential statistical data related to the case 
processing of an office;
    (3) Agreements between the Commission and State or local fair 
employment agencies operating within the jurisdiction of an office; or
    (4) Materials in office investigative files related to charges 
under: Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 
seq.); the Equal Pay Act (29 U.S.C. 206(d)); the Age Discrimination in 
Employment Act of 1967 (29 U.S.C. 621 et seq.); the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.); or the Genetic 
Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.).
    (b) Request for other records. A request for any record which does 
not fall within the ambit of paragraph (a) of this section, or a request 
for any record the location of which is unknown to the person making the 
request, shall be submitted in writing to the Assistant Legal Counsel, 
FOIA Programs, U.S. Equal Employment Opportunity Commission, by mail to 
131 M Street NE., Suite 5NW02E, Washington, DC 20507, by fax to (202) 
827-7545, by email to [email protected], or by Internet to https://
publicportalfoiapal.eeoc.gov/palMain.aspx.
    (c) Authority to grant or deny requests. The Commission has granted 
this authority to the Legal Counsel. The Legal Counsel is authorized to 
grant or to deny any requests for records that are maintained by the 
Commission.
    (d) Re-routing of misdirected requests. Where the Commission 
determines that a request was misdirected within the agency, the 
receiving component's FOIA office must route the request to the FOIA 
office of the proper component(s) within the Commission.
    (e) Consultation, referral, and coordination. When reviewing records 
located by the Commission in response to a request, the Commission will 
determine whether another agency of the Federal Government is better 
able to determine whether the record is exempt from disclosure under the 
FOIA. As to any such record, the Commission must proceed in one of the 
following ways:
    (1) Consultation. When records originated with the Commission, but 
contain within them information of interest to another agency or other 
Federal Government office, the Commission will typically consult with 
that other entity prior to making a release determination.
    (2) Referral. (i) When the Commission believes that a different 
agency or component is best able to determine whether to disclose the 
record, the Commission typically will refer the responsibility for 
responding to the request regarding that record to that agency. 
Ordinarily, the agency that originated the record is presumed to be the 
best agency to make the disclosure determination. However, if the 
Commission is processing the request and the originating agency agrees 
that the Commission is in the best position to respond regarding the 
record, then the record may be handled as a consultation.
    (ii) Whenever the Commission refers any part of the responsibility 
for responding to a request to another agency, it must document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral, informing the requester of the name(s) of the 
agency to which the record was referred, including that agency's FOIA 
contact information.
    (3) Coordination. The standard referral procedure is not appropriate 
where disclosure of the identity of the agency to which the referral 
would be made could harm an interest protected by an applicable 
exemption, such as the exemptions that protect personal privacy or 
national security interests. For example, if a non-law enforcement 
agency responding to a request for records on a living third party 
locates within its files records originating with a law enforcement 
agency, and if the existence of that law enforcement interest in the 
third party was not publicly known, then to disclose that law 
enforcement interest could cause an unwarranted invasion of the personal 
privacy of the third party. Similarly, if the Commission locates within 
its files material originating with an Intelligence Community agency and 
the involvement of that agency in the matter is classified and not 
publicly acknowledged, then to disclose or give attribution to the 
involvement of that Intelligence Community agency could cause

[[Page 253]]

national security harms. In such instances, in order to avoid harm to an 
interest protected by an applicable exemption, the Commission will 
coordinate with the originating agency to seek its views on the 
disclosability of the record. The release determination for the record 
that is the subject of the coordination will then be conveyed to the 
requester by the Commission.
    (e) Classified information. On receipt of any request involving 
information that is marked classified, the Commission must determine 
whether the information is currently and properly classified in 
accordance with applicable classification rules. Whenever a request 
involves a record containing information that has been marked as 
classified or may be appropriate for classification by another agency 
under any applicable executive order concerning the classification of 
records, the Commission must refer the responsibility for responding to 
the request regarding that information to the agency that classified the 
information, or that should consider the information for classification. 
Whenever an agency's record contains information that has been 
derivatively classified (for example, when it contains information 
classified by another agency), the Commission must refer the 
responsibility for responding to that portion of the request to the 
agency that classified the underlying information.
    (f) Timing of responses to consultations and referrals. All 
consultations and referrals received by the Commission will be handled 
according to the date that the referring agency received the perfected 
FOIA request.
    (g) Agreements regarding consultations and referrals. The Commission 
may establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.

[81 FR 95872, Dec. 29, 2016, as amended at 87 FR 14799, Mar. 16, 2022]



Sec.  1610.8  Authority to determine.

    The Assistant Legal Counsel, FOIA Programs, the District Director, 
or the District Director's designee, when receiving a request pursuant 
to these regulations, shall grant or deny such request. That decision 
shall be final, subject only to administrative review as provided in 
Sec.  1610.11 of this subpart.

[78 FR 36651, June 19, 2013]




Sec.  1610.9  Responses: Timing.

    (a) In general. The Commission ordinarily will respond to requests 
according to their order of receipt. The various ways in which to submit 
a request to, or check on the status of a request with, EEOC are listed 
at: https://www.eeoc.gov/eeoc/foia/index.cfm. The information located at 
www.foia.gov/report-makerequest.html contains a list of all agencies and 
components that are designated to accept requests. In instances 
involving misdirected requests that are re-routed pursuant to Sec.  
1610.7(d), the response time will commence on the date that the request 
is received by the proper component office that is designated to receive 
requests, but in any event not later than 10 working days after the 
request is first received by the component office that is designated by 
these regulations to receive requests.
    (b) Multitrack processing. The Commission designates a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (f) of this section. The 
Commission also designates additional processing tracks that distinguish 
between simple and more complex requests based on the estimated amount 
of work or time needed to process the request. Among the factors 
considered are the number of records requested, the number of pages 
involved in processing the request and the need for consultations or 
referrals. The Commission must advise requesters of the track into which 
their request falls and, when appropriate, will offer the requesters an 
opportunity to narrow or modify their request so that it can be placed 
in a different processing track.
    (c) Acknowledgment. The Assistant Legal Counsel, FOIA Programs, the 
District Director, or the District Director's designee shall, within 10 
days from receipt of a request, notify the requester in writing of the 
date the Commission received the request, the expected date of issuance 
of the determination, the individualized FOIA

[[Page 254]]

tracking number assigned to the request, and the telephone number or 
Internet site where requesters may inquire about the status of their 
request.
    (d) Unusual circumstances. Whenever the Commission cannot meet the 
statutory time limit for processing a request because of ``unusual 
circumstances,'' as defined in the FOIA, and the Commission extends the 
time limit on that basis, the Commission must, before expiration of the 
20-day period to respond, notify the requester in writing of the unusual 
circumstances involved and of the date by which the agency estimates 
processing of the request will be completed. Where the extension exceeds 
10 working days, the agency must, as described by the FOIA, provide the 
requester with an opportunity to modify the request or arrange an 
alternative time period for processing the original or modified request. 
The Commission must make available its designated FOIA contact or its 
FOIA Public Liaison for this purpose. The contact information for the 
EEOC FOIA Public Liaison is located at: https://www.eeoc.gov/eeoc/foia/
index.cfm. A list of agency FOIA Public Liaisons is available at: http:/
/www.foia.gov/report-makerequest.html. The Commission must also alert 
requesters to the availability of the Office of Government Information 
Services (OGIS) to provide dispute resolution services.
    (e) Aggregating requests. To satisfy unusual circumstances under the 
FOIA, the Commission may aggregate requests in cases where it reasonably 
appears that multiple requests, submitted either by a requester or by a 
group of requesters acting in concert, constitute a single request that 
would otherwise involve unusual circumstances. The Commission cannot 
aggregate multiple requests that involve unrelated matters.
    (f) Expedited processing. (1) The Commission must process requests 
and appeals on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information.
    (2) A request for expedited processing may be made at any time. 
Requests based on paragraphs (f)(1)(i) and (ii) of this section must be 
submitted to the Commission or component of the Commission that 
maintains the records requested. When making a request for expedited 
processing of an administrative appeal, the request should be submitted 
to the Commission's Office of Legal Counsel, the office that adjudicates 
appeals.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (f)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency to 
inform the public about the government activity involved in the 
request--one that extends beyond the public's right to know about 
government activity generally. Depending on the circumstances, the 
existence of numerous recently published articles on a given subject may 
be helpful in establishing the requirement that there be an ``urgency to 
inform'' the public on the topic. This factor is not dispositive. As a 
matter of administrative discretion, the Commission may waive the formal 
certification requirement.
    (4) The Commission must notify the requester within 10 calendar days 
of the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request must be given priority, placed in the processing 
track for expedited requests, and must be processed as soon as 
practicable. If a request for expedited processing is denied, the 
Commission must act on any appeal of that decision expeditiously.
    (g) Tolling. The Commission may toll the statutory time period to 
issue its

[[Page 255]]

determination on a FOIA request one time during the processing of the 
request to obtain clarification from the requester. The statutory time 
period to issue the determination on disclosure is tolled until EEOC 
receives the information reasonably requested from the requester. The 
agency may also toll the statutory time period to issue the 
determination to clarify with the requester issues regarding fees. There 
is no limit on the number of times the agency may request clarifying fee 
information from the requester.

[81 FR 95873, Dec. 29, 2016]



Sec.  1610.10  Responses: Form and content.

    (a) In general. The Commission, to the extent practicable, will 
communicate with requesters having access to the Internet 
electronically, such as email or web portal.
    (b) Acknowledgments of requests. The Commission must acknowledge the 
request in writing and assign it an individualized tracking number if it 
will take longer than 10 working days to process. The Commission must 
include in the acknowledgment a brief description of the records sought 
to allow requesters to more easily keep track of their requests.
    (c) Estimated dates of completion and interim responses. Upon 
request, the Commission will provide an estimated date by which it 
expects to provide a response to the requester. If a request involves a 
voluminous amount of material, or searches in multiple locations, the 
Commission may provide interim responses, releasing the records on a 
rolling basis.
    (d) Grants of requests. Once the Commission determines it will grant 
a request in full or in part, it must notify the requester in writing. 
The agency must also inform the requester of any fees charged under 
Sec.  1610.15 of this part and must disclose the requested records to 
the requester promptly upon payment of any applicable fees. The 
Commission must inform the requester of the availability of its FOIA 
Public Liaison to offer assistance.
    (e) Adverse determinations of requests. If the Commission makes an 
adverse determination denying a request in any respect, it must notify 
the requester of that determination in writing. Adverse determinations, 
or denials of requests, include decisions that: The requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject to 
the FOIA; the requested record does not exist, cannot be located, or has 
been destroyed; or the requested record is not readily reproducible in 
the form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (f) Content of denial. The denial must be signed by the head of the 
Commission or designee and must include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the Commission in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation (such an estimate is not required if the volume is otherwise 
indicated by deletions marked on records that are disclosed in part or 
if providing an estimate would harm an interest protected by an 
applicable exemption);
    (4) A statement that the denial may be appealed under paragraph 
1610.11 of this section, and a description of the appeal requirements; 
and
    (5) A statement notifying the requester of the assistance available 
from the Commission's FOIA Public Liaison and the dispute resolution 
services offered by OGIS.
    (g) Markings on released documents. Records disclosed in part must 
be marked clearly to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted must also be indicated on the record, if technically 
feasible.

[81 FR 95874, Dec. 29, 2016]

[[Page 256]]



Sec.  1610.11  Appeals to the legal counsel from initial denials.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determination to the Legal Counsel, or the Assistant Legal 
Counsel, FOIA Programs. Any appeal of a determination issued by a 
District Director or the District Director's designee must include a 
copy of the District Director's or the District Director's designee's 
determination. If a FOIA appeal is misdirected to a District Office, the 
District Office shall forward the appeal to the Legal Counsel, or the 
Assistant Legal Counsel, FOIA Programs, as appropriate, within 10 
business days. Examples of adverse determinations are provided in Sec.  
1610.10(e). Requesters can submit appeals by mail, by fax to (202) 827-
7545, by email to [email protected], or online at https://
publicportalfoiapal.eeoc.gov/palMain.aspx. The requester must make the 
appeal in writing and to be considered timely it must be postmarked, or 
in the case of electronic submissions, transmitted, within 90 calendar 
days after the date of the response. The appeal should clearly identify 
the Commission determination that is being appealed and the assigned 
request number. To facilitate handling, the requester should mark both 
the appeal letter and envelope, or subject line of the electronic 
transmission, ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. (1) The Legal Counsel or designee, or 
the Assistant Legal Counsel, FOIA Programs, as appropriate, will decide 
all appeals under this section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (c) Decisions on appeals. The Commission must provide its decision 
on an appeal in writing. A decision that upholds the Commission's 
determination in whole or in part must contain a statement that 
identifies the reasons for the affirmance, including any FOIA exemptions 
applied. The decision must provide the requester with notification of 
the statutory right to file a lawsuit and will inform the requester of 
the dispute resolution services offered by the Office of Government 
Information Services of the National Archives and Records Administration 
as a non-exclusive alternative to litigation. If the Commission's 
decision is remanded or modified on appeal, the Commission will notify 
the requester of that determination in writing. The Commission will then 
further process the request in accordance with that appeal determination 
and will respond directly to the requester.
    (d) Engaging in dispute resolution services provided by OGIS. 
Dispute resolution is a voluntary process. If the Commission agrees to 
participate in the dispute resolution services provided by OGIS, it will 
actively engage as a partner to the process in an attempt to resolve the 
dispute.
    (e) When appeal is required. Before seeking review by a court of the 
Commission's adverse determination, a requester generally must first 
submit a timely administrative appeal.
    (f) No personal appearance, oral argument or hearing will ordinarily 
be permitted in connection with an appeal to the Legal Counsel or the 
Assistant Legal Counsel, FOIA Programs.
    (g) On appeal, the Legal Counsel or designee, or the Assistant Legal 
Counsel, FOIA Programs, as appropriate, may reduce any fees previously 
assessed.
    (h) In the event that the Commission terminates its proceedings on a 
charge after the District Director or the District Director's designee 
denies a request, in whole or in part, for the charge file but during 
consideration of the requester's appeal from that denial, the request 
may be remanded for redetermination. The requester retains a right to 
appeal to the Assistant Legal Counsel, FOIA Programs, from the decision 
on remand.

[78 FR 36652, June 19, 2013, as amended at 81 FR 95874, Dec. 29, 2016; 
82 FR 45182, Sept. 28, 2017; 87 FR 14799, Mar. 16, 2022]



Sec.  1610.13  Maintenance of files.

    The Commission must preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized 
pursuant to Title 44

[[Page 257]]

of the United States Code or the General Records Schedule 4.2 of the 
National Archives and Records Administration. The Commission must not 
dispose of or destroy records while they are the subject of a pending 
request, appeal, or lawsuit under the FOIA.

[82 FR 45182, Sept. 28, 2017]



Sec.  1610.14  Waiver of user charges.

    (a) Except as provided in paragraph (b) of this section, the Legal 
Counsel or designee, the Assistant Legal Counsel, FOIA Programs, and the 
District Directors or designees shall assess fees where applicable in 
accordance with Sec.  1610.15 for search, review, and duplication of 
records requested. They shall also have authority to furnish documents 
without any charge or at a reduced charge if disclosure of the 
information is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities of 
the government and is not primarily in the commercial interest of the 
requester.
    (b) District directors, field directors, area directors, local 
directors and the librarian are hereby authorized to collect fees where 
applicable in accordance with Sec.  1610.15 for duplication of records 
which are to be made available for public inspection and copying in the 
district, field, area or local office, or in the headquarters library in 
accordance with Sec.  1610.4(b). District directors, field directors, 
area directors, local directors and the librarian are hereby authorized 
to duplicate such records without charge, or at a reduced charge in 
accordance with the criteria of paragraph (a) of this section.

[52 FR 13830, Apr. 27, 1987, as amended at 54 FR 32062, Aug. 4, 1989; 56 
FR 29578, June 28, 1991; 63 FR 1342, Jan. 9, 1998; 71 FR 26830, May 9, 
2006; 78 FR 36653, June 19, 2013]



Sec.  1610.15  Schedule of fees and method of payment for services rendered.

    (a) In general. (1) The Commission will charge for processing 
requests under the FOIA in accordance with the provisions of this 
section and with the OMB Guidelines. For purposes of assessing fees, the 
FOIA establishes three categories of requesters:
    (i) Commercial use requesters;
    (ii) Non-commercial scientific or educational institutions or news 
media requesters; and
    (iii) All other requesters.
    (2) Different fees are assessed depending on the category. 
Requesters may seek a fee waiver. The Commission must consider requests 
for fee waiver in accordance with the requirements in paragraph (k) of 
this section. To resolve any fee issues that arise under this section, 
the Commission may contact a requester for additional information. The 
Commission must ensure that searches, review, and duplication are 
conducted in the most efficient and the least expensive manner. The 
Commission ordinarily will collect all applicable fees before sending 
copies of records to a requester. Requesters must pay fees by check or 
money order made payable to the Treasury of the United States, or 
through Pay.gov.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request refers to a request that asks for 
information for a use or a purpose that furthers a commercial, trade, or 
profit interest, which can include furthering those interests through 
litigation. An agency's decision to place a requester in the commercial 
use category will be made on a case-by-case basis based on the 
requester's intended use of the information. The Commission will notify 
requesters of their placement in this category.
    (2) Direct costs refers to those expenses that the Commission incurs 
in searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. For 
example, direct costs include the salary of the employee performing the 
work (for example, the basic rate of pay for the employee, plus 16 
percent of that rate to cover benefits) and the cost of operating 
computers and other electronic equipment, such as photocopiers and 
scanners. Direct costs do not include overhead expenses such as the 
costs of space, and of heating or lighting a facility.
    (3) Duplication refers to reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can

[[Page 258]]

take the form of paper, audiovisual materials, or electronic records, 
among others.
    (4) Educational institution refers to any school that operates a 
program of scholarly research. A requester in this fee category must 
show that the request is made in connection with his or her role at the 
educational institution. The Commission may seek verification from the 
requester that the request is in furtherance of scholarly research, and 
the Commission will advise requesters of their placement in this 
category.

    Example 1. A request from a professor of sociology at a university 
for records relating to women in the workplace, written on letterhead of 
the Department of Sociology, would be presumed to be from an educational 
institution.
    Example 2. A request from the same professor of sociology seeking 
candidate correspondence from the Commission in furtherance of a mystery 
book she is writing would not be presumed to be an institutional 
request, regardless of whether it was written on institutional 
stationery.
    Example 3. A student who makes a request in furtherance of her 
coursework or other school-sponsored activities and provides a copy of a 
course syllabus or other reasonable documentation to indicate the 
research purpose for the request, would qualify as part of this fee 
category.

    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial basis,'' as defined in paragraph (b)(1) 
of this section, and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. A requester in this category 
must show that the request is authorized by and is made under the 
auspices of a qualifying institution and that the records are sought to 
further scientific research and are not for a commercial use. The 
Commission will advise requesters of their placement in this category.
    (6) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
Internet. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use. ``Freelance journalists'' who demonstrate a solid basis for 
expecting publication through a news media entity will be considered 
representatives of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, the 
Commission can also consider a requester's past publication record in 
making this determination. The Commission will advise requesters of 
their placement in this category.
    (7) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time spent 
both obtaining and considering any formal objection to disclosure made 
by a confidential commercial information submitter under Sec.  1610.19, 
but it does not include time spent resolving general legal or policy 
issues regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the Commission 
will charge the following fees unless a waiver or reduction of fees has 
been granted

[[Page 259]]

under paragraph (k) of this section. Because the fee amounts provided 
below already account for the direct costs associated with a given fee 
type, the Commission will not add any additional costs to charges 
calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. The Commission will charge search 
fees for all other requesters, subject to the restrictions of paragraph 
(d) of this section. The Commission may properly charge for time spent 
searching even if it does not locate any responsive records or if it 
determines that the records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require new 
programming, the fees will be charged as follows:
    (A) By clerical personnel--at the rate of $5.00 per quarter hour.
    (B) By paralegals--at the rate of $9.00 per quarter hour.
    (C) By professional personnel--at the rate of $10.00 per quarter 
hour.
    (D) By managers--at the rate of $17.50 per quarter hour.
    (E) By SES employees--at the rate of $20.00 per quarter hour.
    (iii) The Commission will charge the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. The Commission must notify the 
requester of the costs associated with creating such a program, and the 
requester must agree to pay the associated costs before the costs may be 
incurred.
    (iv) For requests that require the retrieval of records stored by 
the Commission at a Federal Records Center operated by the National 
Archives and Records Administration (NARA), the Commission will charge 
additional costs in accordance with the Transactional Billing Rate 
Schedule established by NARA: http://www.archives.gov/dc-metro/suitland/
delivery-fees.html.
    (2) Duplication. The Commission will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The Commission must honor a requester's preference for 
receiving a record in a particular form or format where the Commission 
can readily reproduce it in the form or format requested. Where 
photocopies are supplied, the Commission will provide one copy per 
request at the cost of $.15/page. For copies of records produced on 
tapes, disks, or other media, agencies will charge the direct costs of 
producing the copy, including operator time. Where paper documents must 
be scanned in order to comply with a requester's preference to receive 
the records in an electronic format, the requester must also pay the 
direct costs associated with scanning those materials. For other forms 
of duplication, the Commission will charge the direct costs.
    (3) Review. The Commission will charge review fees to requesters who 
make commercial use requests. Review fees will be assessed in connection 
with the initial review of the record, for example, the review conducted 
by an agency to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with an agency's re-review of the records in order 
to consider the use of other exemptions may be assessed as review fees. 
Review fees will be charged at the same rates as those charged for a 
search under paragraph (c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) When the Commission 
determines that a requester is an educational institution, non-
commercial scientific institution, or representative of the news media, 
and the records are not sought for commercial use, it will not charge 
search fees.
    (2)(i) If the Commission fails to comply with the FOIA's time limits 
in which to respond to a request, it may not charge search fees, or, in 
instances of requests from requesters described in paragraph (d)(1) of 
this section, may not charge duplication fees, except as described in 
paragraphs (d)(2)(ii) through (iv) of this section.

[[Page 260]]

    (ii) If the Commission has determined that unusual circumstances as 
defined by the FOIA apply and the Commission provided timely written 
notice to the requester in accordance with the FOIA, a failure to comply 
with the time limit shall be excused for an additional 10 days.
    (iii) If the Commission has determined that unusual circumstances, 
as defined by the FOIA, apply and more than 5,000 pages are necessary to 
respond to the request, the Commission may charge search fees, or, in 
the case of requesters described in paragraph (d)(1) of this section, 
may charge duplication fees, if the following steps are taken. The 
Commission must have provided timely written notice of unusual 
circumstances to the requester in accordance with the FOIA, and the 
Commission must have discussed with the requester via written mail, 
email or telephone (or not made less than three good-faith attempts to 
do so) how the requester could effectively limit the scope of the 
request in accordance with 5 U.S.C 552(a)(6)(B)(ii). If this exception 
is satisfied, the Commission may charge all applicable fees incurred in 
the processing of the request.
    (iv) If a court has determined that exceptional circumstances exist, 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, the 
Commission must provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.00.
    (e) Notice of anticipated fees in excess of $25.00. (1) When the 
Commission determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the Commission must 
notify the requester of the actual or estimated amount of the fees, 
including a breakdown of the fees for search, review, or duplication, 
unless the requester has indicated a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the Commission will advise the requester accordingly. If the 
request is not for noncommercial use, the notice will specify that the 
requester is entitled to the statutory entitlements of 100 pages of 
duplication at no charge and, if the requester is charged search fees, 
two hours of search time at no charge, and will advise the requester 
whether those entitlements have been provided.
    (2) If the agency notifies the requester that the actual or 
estimated fees are in excess of $25.00, the request will not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees the requester is willing to pay, or in 
the case of a noncommercial use requester who has not yet been provided 
with the requester's statutory entitlements, designates that the 
requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. The Commission is not required to 
accept payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the Commission estimates that the total 
fee will exceed that amount, the Commission will toll the processing of 
the request when it notifies the requester of the estimated fees in 
excess of the amount the requester has indicated a willingness to pay. 
The Commission will inquire whether the requester wishes to revise the 
amount of fees the requester is willing to pay or modify the request. 
Once the requester responds, the time to respond will resume from where 
it was at the date of the notification.
    (4) The Commission must make available its FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to

[[Page 261]]

meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if the Commission chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same document, 
or sending records by means other than first class mail. The Commission 
charges for the following special services:
    (1) For attestation of documents--$25.00 per authenticating 
affidavit or declaration. Additionally, there may be search and review 
charges assessed in accordance with the rates listed in paragraph (c)(1) 
of this section.
    (2) For certification of document--$50.00 per authenticating 
affidavit or declaration. Additionally, there may be search and review 
charges assessed in accordance with the rates listed in paragraph (c)(1) 
of this section.
    (g) Charging interest. The Commission may charge interest on any 
unpaid bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the agency. Agencies must follow the provisions of the Debt 
Collection Act of 1982, 5 U.S.C. 5514, as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (h) Aggregating requests. When the Commission reasonably believes 
that a requester or a group of requesters acting in concert is 
attempting to divide a single request into a series of requests for the 
purpose of avoiding fees, the Commission may aggregate those requests 
and charge accordingly. The Commission may presume that multiple 
requests of this type made within a 30-day period have been made in 
order to avoid fees. For requests separated by a longer period, the 
Commission will aggregate them only where there is a reasonable basis 
for determining that aggregation is warranted in view of all the 
circumstances involved. Multiple requests involving unrelated matters 
cannot be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraph (i)(2) or (3) of this section, the Commission cannot require 
the requester to make an advance payment before work is commenced or 
continued on a request. Payment owed for work already completed (for 
example, payment before copies are sent to a requester) is not an 
advance payment.
    (2) When the Commission determines or estimates that a total fee to 
be charged under this section will exceed $250.00, it may require that 
the requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. The Commission 
may elect to process the request prior to collecting fees when it 
receives a satisfactory assurance of full payment from a requester with 
a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to the Commission within 30 calendar days of the 
billing date, the Commission may require that the requester pay the full 
amount due, plus any applicable interest on that prior request, and the 
Commission may require that the requester make an advance payment of the 
full amount of any anticipated fee before the Commission begins to 
process a new request or continues to process a pending request or any 
pending appeal. Where the Commission has a reasonable basis to believe 
that a requester has misrepresented the requester's identity in order to 
avoid paying outstanding fees, it may require that the requester provide 
proof of identity.
    (4) In cases in which the Commission requires advance payment, the 
request will not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the Commission's fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute that 
specifically requires an agency to set and collect fees for

[[Page 262]]

particular types of records. In instances where records responsive to a 
request are subject to a statutorily-based fee schedule program, the 
Commission must inform the requester of the contact information for that 
program.
    (k) Requirements for waiver or reduction of fees. (1) Requesters may 
seek a waiver of fees by submitting a written application demonstrating 
how disclosure of the requested information is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government and is not primarily 
in the commercial interest of the requester.
    (2) The Commission must furnish records responsive to a request 
without charge or at a reduced rate when it determines, based on all 
available information, that the factors described in paragraphs 
(k)(2)(i) through (iii) of this section are satisfied.
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure of 
information that already is in the public domain, in either the same or 
a substantially identical form, would not be meaningfully informative if 
nothing new would be added to the public's understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. The Commission will presume that a representative of the 
news media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, the Commission will consider the following criteria:
    (A) The Commission must identify whether the requester has any 
commercial interest that would be furthered by the requested disclosure. 
A commercial interest includes any commercial, trade, or profit 
interest. Requesters must be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, the Commission 
must determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (k)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. The Commission ordinarily will presume that 
when a news media requester has satisfied factors set forth in 
paragraphs (k)(2)(i) and (ii) of this section, the request is not 
primarily in the commercial interest of the requester. Disclosure to 
data brokers or others who merely compile and market government 
information for direct economic return will not be presumed to primarily 
serve the public interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver must be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Commission and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester must pay any costs incurred up to the date the fee waiver 
request was received.

[81 FR 95875, Dec. 29, 2016]

[[Page 263]]



Sec.  1610.16  [Reserved]



Sec.  1610.17  Exemptions.

    (a) 5 U.S.C. 552 exempts from all of its publication and disclosure 
requirements nine categories of records which are described in 552(b). 
These categories include such matters as national defense and foreign 
policy information, investigatory files, internal procedures and 
communications, materials exempted from disclosure by other statutes, 
information given in confidence, and matters involving personal privacy.
    (b) The Commission shall withhold information under the FOIA only 
if:
    (1) It reasonably foresees that disclosure would harm an interest 
protected by an exemption; or
    (2) Disclosure is prohibited by law.
    (c)(1) The Commission shall consider whether partial disclosure of 
information is possible whenever it determines that a full disclosure of 
a requested record is not possible; and
    (2) Take reasonable steps necessary to segregate and release 
nonexempt information.
    (d) Paragraph (c) of this section does not require disclosure of 
information that is otherwise prohibited from disclosure by law, or 
otherwise exempted from disclosure under Exemption 3.
    (e) Section 706(b) of title VII provides that the Commission shall 
not make public charges which have been filed. It also provides that 
(subsequent to the filing of a charge, an investigation, and a finding 
that there is reasonable cause to believe that the charge is true) 
nothing said or done during and as a part of the Commission's endeavors 
to eliminate any alleged unlawful employment practice by informal 
methods of conference, conciliation, and persuasion may be made public 
by the Commission without the written consent of the parties concerned; 
nor may it be used as evidence in a subsequent proceeding. Any officer 
or employee of the Commission who shall make public in any manner 
whatever any information in violation of section 706(b) shall be deemed 
guilty of a misdemeanor and upon conviction thereof shall be fined not 
more than $1,000 or imprisoned not more than 1 year.
    (f) Section 709 of title VII authorizes the Commission to conduct 
investigations of charges filed under section 706, engage in cooperative 
efforts with State and local agencies charged with the administration of 
State or local fair employment practices laws, and issue regulations 
concerning reports and record-keeping. Section (e) of section 709 
provides that it shall be unlawful for any officer or employee of the 
Commission to make public in any manner whatever any information 
obtained by the Commission pursuant to its authority under section 709 
prior to the institution of any proceeding under the act involving such 
information. Any officer or employee of the Commission who shall make 
public in any manner whatever any information in violation of section 
709(e) shall be guilty of a misdemeanor and upon conviction thereof 
shall be fined not more than $1,000 or imprisoned not more than 1 year.
    (g) Special disclosure rules apply to the case files for charging 
parties, aggrieved persons on whose behalf a charge has been filed, and 
entities against whom charges have been filed. The special disclosure 
rules are available in the public reading areas of the Commission. Under 
sections 706 and 709, case files involved in the administrative process 
of the Commission are not available to the public.
    (h) Each executed statistical reporting form required under part 
1602 of this chapter, such as Employer Information Report EEO-1, etc., 
relating to a particular employer is exempt from disclosure to the 
public prior to the institution of a proceeding under title VII 
involving information from such form.
    (i) Section 107 of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12117) and section 207(a) of the Genetic Information 
Nondiscrimination Act of 2008 (42 U.S.C. 2000ff-6) explicitly adopt the 
powers, remedies, and procedures set forth in sections 706 and 709 of 
title VII. Accordingly, the prohibitions on disclosure contained in 
sections 706 and 709 of title VII as outlined in paragraphs (b), (c), 
(d), and (e) of this section, apply with equal force to requests for 
information related to charges and executed statistical reporting forms

[[Page 264]]

filed with the Commission under the Americans with Disabilities Act or 
the Genetic Information Nondiscrimination Act.
    (j) Requests for information relating to open case files covering 
alleged violations of the Equal Pay Act (29 U.S.C. 206(b)) or the Age 
Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.) will 
ordinarily be denied under the seventh exemption of the Freedom of 
Information Act as investigatory records compiled for law enforcement 
purposes.
    (k) The medical, financial, and personnel files of employees of the 
Commission are exempt from disclosure to the public.
    (l) The deliberative process privilege attached to Exemption 5 shall 
not apply to records created 25 years or more before the date on which 
the records were requested.

[40 FR 8171, Feb. 26, 1975, as amended at 45 FR 40605, June 16, 1980; 56 
FR 29579, June 28, 1991; 74 FR 63983, Dec. 7, 2009; 81 FR 95878, Dec. 
29, 2016]



Sec.  1610.18  Information to be disclosed.

    The Commission will provide the following information to the public. 
This information will also be made available electronically:
    (a) The Commission will make available for inspection and copying 
certain tabulations of aggregate industry, area, and other statistics 
derived from the Commission's reporting programs authorized by section 
709(c) of title VII, provide that such tabulations: Were previously 
compiled by the Commission and are available in documentary form; 
comprise an aggregation of data from not less than three responding 
entities; and, do not reveal the identity of an individual or dominant 
entity in a particular industry or area;
    (b) All blank forms used by the Commission;
    (c) Subject to the restrictions and procedures set forth in Sec.  
1610.19, all signed contracts, final bids on all signed contracts, and 
agreements between the Commission and State or local agencies charged 
with the administration of State or local fair employment practices 
laws;
    (d) All final reports that do not contain statutorily confidential 
material in a recognizable form;
    (e) All agency correspondence to members of the public, Members of 
Congress, or other persons not government employees or special 
government employees, except those containing information that would 
produce an invasion of privacy if made public;
    (f) All administrative staff manuals and instructions to staff that 
affect members of the public unless the materials are promptly published 
and copies offered for sale; and
    (g) All final votes of each Commissioner, for every Commission 
meeting, except for votes pertaining to filing suit against respondents 
until such litigation is commenced.
    (h) Underlying annual FOIA report data.

[56 FR 29579, June 28, 1991, as amended at 63 FR 1342, Jan. 9, 1998; 78 
FR 36653, June 19, 2013]



Sec.  1610.19  Predisclosure notification procedures for confidential
commercial information.

    (a) Definitions. (1) Confidential commercial information means 
commercial or financial information obtained by the agency from a 
submitter that may be protected from disclosure under Exemption 4 of the 
FOIA, 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations expire 10 years after 
the date of the submission unless the submitter requests and provides 
justification for a longer designation period.
    (c) When notice to submitters is required. (1) The Commission must 
promptly provide written notice to the

[[Page 265]]

submitter of confidential commercial information whenever records 
containing such information are requested under the FOIA if the 
Commission determines that it may be required to disclose the records, 
provided--
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The Commission has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4, but has 
not yet determined whether the information is protected from disclosure.
    (2) The notice must either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, the Commission may post or publish a notice in a 
place or manner reasonably likely to inform the submitters of the 
proposed disclosure, instead of sending individual notifications.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) The Commission determines that the information is exempt under 
the FOIA, and therefore will not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, the Commission 
must give the submitter written notice of any final decision to disclose 
the information within 10 days prior to a specified disclosure date.
    (e) Opportunity to object to disclosure. (1) The Commission must 
specify a reasonable time period within which the submitter must respond 
to the notice referenced above.
    (2) If a submitter has any objections to disclosure, it should 
provide the agency a detailed written statement that specifies all 
grounds for withholding the particular information under any exemption 
of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, 
the submitter must explain why the information constitutes a trade 
secret or commercial or financial information that is confidential.
    (3) A submitter who fails to respond within the time period 
specified in the notice will be considered to have no objection to 
disclosure of the information. The Commission is not required to 
consider any information received after the date of any disclosure 
decision. Any information provided by a submitter under this subpart may 
itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. The Commission must consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the requested information.
    (g) Notice of intent to disclose. Whenever the Commission decides to 
disclose information over the objection of a submitter, the Commission 
must provide the submitter written notice, which must include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed or copies of 
the records as the Commission intends to release them; and
    (3) A specified disclosure date, which must be 10 days after the 
notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial information, 
the Commission must promptly notify the submitter.
    (i) Requester notification. The Commission must notify the requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.

[81 FR 95878, Dec. 29, 2016]

[[Page 266]]



Sec.  1610.20  [Reserved]



Sec.  1610.21  Annual report.

    (a) The Legal Counsel shall, on or before February 1, submit 
individual Freedom of Information Act reports for each principal agency 
FOIA component and one for the entire agency covering the preceding 
fiscal year to the Attorney General of the United States and to the 
director of the Office of Information Government Services. The reports 
shall include those matters required by 5 U.S.C. 552(e), and shall be 
made available electronically on the agency Web site.
    (b) The Commission will make each such report available for public 
inspection in an electronic format. In addition, the Commission will 
make the raw statistical data used in each report available in a timely 
manner for public inspection in an electronic format, which will be 
available--
    (1) Without charge, license, or registration requirement;
    (2) In an aggregated, searchable format; and
    (3) In a format that may be downloaded in bulk.
    (c) When and as directed by the Attorney General, the Chief FOIA 
Officer, through the Office of the Chair, shall review and report to the 
Attorney General on the agency's performance in implementing its 
responsibilities under FOIA.

[78 FR 36653, June 19, 2013, as amended at 81 FR 95879, Dec. 29, 2016]



  Subpart B_Production in Response to Subpenas or Demands of Courts or 
                            Other Authorities



Sec.  1610.30  Purpose and scope.

    This subpart contains the regulations of the Commission concerning 
procedures to be followed when a subpena, order, or other demand 
(hereinafter in this subpart referred to as a ``demand'') of a court or 
other authority is issued for the production or disclosure of (a) any 
material contained in the files of the Commission; (b) any information 
relating to material contained in the files of the Commission; or (c) 
any information or material acquired by any person while such person was 
an employee of the Commission as a part of the performance of his 
official duties or because of his official status.

[32 FR 16261, Nov. 29, 1967]



Sec.  1610.32  Production prohibited unless approved by the Legal Counsel.

    No employee or former employee of the Commission shall, in response 
to a demand of a court or other authority, produce any material 
contained in the files of the Commission or disclose any information or 
produce any material acquired as part of the performance of his official 
duties or because of his official status without the prior approval of 
the Legal Counsel.

[32 FR 16261, Nov. 29, 1967, as amended at 47 FR 46275, Oct. 18, 1982]



Sec.  1610.34  Procedure in the event of a demand for production or 
disclosure.

    (a) Whenever a demand is made upon an employee or former employee of 
the Commission for the production of material or the disclosure of 
information described in Sec.  1610.30, he shall immediately notify the 
Legal Counsel. If possible, the Legal Counsel shall be notified before 
the employee or former employee concerned replies to or appears before 
the court or other authority.
    (b) If response to the demand is required before instructions from 
the Legal Counsel are received, an attorney designated for that purpose 
by the Commission shall appear with the employee or former employee upon 
whom the demand has been made, and shall furnish the court or other 
authority with a copy of the regulations contained in this part and 
inform the court or other authority that the demand has been or is 
being, as the case may be, referred for prompt consideration by the 
Legal Counsel. The court or other authority shall be requested 
respectfully to stay the demand pending receipt of the requested 
instructions from the Legal Counsel.

[32 FR 16261, Nov. 29, 1967, as amended at 47 FR 46275, Oct. 18, 1982; 
63 FR 1342, Jan. 9, 1998]

[[Page 267]]



Sec.  1610.36  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec.  1610.34(b) 
pending receipt of instructions from the Legal Counsel, or if the court 
or other authority rules that the demand must be complied with 
irrespective of the instructions from the Legal Counsel not to produce 
the material or disclose the information sought, the employee or former 
employee upon whom the demand has been made shall respectfully decline 
to comply with the demand (United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951)).

[32 FR 16261, Nov. 29, 1967, as amended at 47 FR 46275, Oct. 18, 1982]



PART 1611_PRIVACY ACT REGULATIONS--Table of Contents



Sec.
1611.1 Purpose and scope.
1611.2 Definitions.
1611.3 Procedures for requests pertaining to individual records in a 
          record system.
1611.4 Times, places, and requirements for identification of individuals 
          making requests.
1611.5 Disclosure of requested information to individuals.
1611.6 Special procedures: Medical records.
1611.7 Request for correction or amendment to record.
1611.8 Agency review of request for correction or amendment to record.
1611.9 Appeal of initial adverse agency determination on correction or 
          amendment.
1611.10 Disclosure of record to person other than the individual to whom 
          it pertains.
1611.11 Fees.
1611.12 Penalties.
1611.13 Specific Exemptions--Charge and complaint files.
1611.14 Exemptions--Office of Inspector General Files.
1611.15 Exemption--EEOC Personnel Security Files.

    Authority: 5 U.S.C. 552a.

    Source: 42 FR 7949, Feb. 8, 1977, unless otherwise noted.



Sec.  1611.1  Purpose and scope.

    This part contains the regulations of the Equal Employment 
Opportunity Commission (the Commission) implementing the Privacy Act of 
1974, 5 U.S.C. 552a. It sets forth the basic responsibilities of the 
Commission under the Privacy Act (the Act) and offers guidance to 
members of the public who wish to exercise any of the rights established 
by the Act with regard to records maintained by the Commission. All 
records contained in system EEOC/GOVT-1, including those maintained by 
other agencies, are subject to the Commission's Privacy Act regulations. 
Requests for access to, an accounting of disclosures for, or amendment 
of records in EEOC/GOVT-1 must be processed by agency personnel in 
accordance with this part. Commission records that are contained in a 
government-wide system of records established by the U.S. Office of 
Personnel Management (OPM), the General Services Administration (GSA), 
the Merit Systems Protection Board (MSPB), the Office of Government 
Ethics (OGE) or the Department of Labor (DOL) for which those agencies 
have published systems notices are subject to the publishing agency's 
Privacy Act regulations. Where the government-wide systems notices 
permit access to these records through the employing agency, an 
individual should submit requests for access to, for amendment of or for 
an accounting of disclosures to the Commission offices as indicated in 
Sec.  1611.3(b).

[56 FR 29580, June 28, 1991]



Sec.  1611.2  Definitions.

    For purposes of this part, the terms individual, maintain, record, 
and system of records shall have the meanings set forth in 5 U.S.C. 
552a.



Sec.  1611.3  Procedures for requests pertaining to individual records
in a record system.

    (a) Any person who wishes to be notified if a system of records 
maintained by the Commission contains any record pertaining to him or 
her, or to request access to such record or to request an accounting of 
disclosures made of such record, shall submit a written request, either 
in person or by mail, in accordance with the instructions set forth in 
the system notice published in the Federal Register. The request shall 
include:

[[Page 268]]

    (1) The name of the individual making the request;
    (2) The name of the system of records (as set forth in the system 
notice to which the request relates);
    (3) Any other information specified in the system notice; and
    (4) When the request is for access to records, a statement 
indicating whether the requester desires to make a personal inspection 
of the records or be supplied with copies by mail.
    (b) Requests pertaining to records contained in a system of records 
established by the Commission and for which the Commission has published 
a system notice should be submitted to the person or office indicated in 
the system notice. Requests pertaining to Commission records contained 
in the government-wide systems of records listed below should be 
submitted as follows:
    (1) For systems OPM/GOVT-1 (General Personnel Records), OPM/GOVT-2 
(Employee Performance File System Records), OPM/GOVT-3 (Records of 
Adverse Actions and Actions Based on Unacceptable Performance), OPM/
GOVT-5 (Recruiting, Examining and Placement Records), OPM/GOVT-6 
(Personnel Research and Test Validation Records), OPM/GOVT-9 (Files on 
Position Classification Appeals, Job Grading Appeals and Retained Grade 
or Pay Appeals), OPM/GOVT-10 (Employee Medical File System Records) and 
DOL/ESA-13 (Office of Workers' Compensation Programs, Federal Employees' 
Compensation File), to the Director of Personnel Management Services, 
EEOC, 131 M Street, NE., Washington, DC 20507;
    (2) For systems OGE/GOVT-1 (Executive Branch Public Financial 
Disclosure Reports and Other Ethics Program Records), OGE/GOVT-2 
(Confidential Statements of Employment and Financial Interests) and 
MSPB/GOVT-1 (Appeal and Case Records), to the Legal Counsel, EEOC, 131 M 
Street, NE., Washington, DC 20507;
    (3) For system OPM/GOVT-7 (Applicant Race, Sex, National Origin, and 
Disability Status Records), to the Director of the Office of Equal 
Employment Opportunity, EEOC, 131 M Street NE., Washington, DC 20507;
    (4) For systems GSA/GOVT-3 (Travel Charge Card Program) and GSA/
GOVT-4 (Contracted Travel Services Program) to the Director of Financial 
and Resource Management Services, EEOC, 131 M Street, NE., Washington, 
DC 20507.
    (c) Any person whose request for access under paragraph (a) of this 
section is denied, may appeal that denial in accordance with Sec.  
1611.5(c).

[42 FR 7949, Feb. 8, 1977, as amended at 56 FR 29581, June 28, 1991; 74 
FR 3430, Jan. 21, 2009]



Sec.  1611.4  Times, places, and requirements for identification of
individuals making requests.

    (a) If a person submitting a request for access under Sec.  1611.3 
has asked that the Commission authorize a personal inspection of records 
pertaining to that person, and the appropriate Commission official has 
granted that request the requester shall present himself or herself at 
the time and place specified in the Commission's response or arrange 
another, mutually convenient time with the appropriate Commission 
official.
    (b) Prior to inspection of the records, the requester shall present 
sufficient personal identification (e.g., driver's license, employee 
identification card, social security card, credit cards). If the 
requester is unable to provide such identification, the requester shall 
complete and sign in the presence of a Commission official a signed 
statement asserting his or her identity and stipulating that he or she 
understands that knowingly or willfully seeking or obtaining access to 
records about another individual under false pretenses is a misdemeanor 
punishable by fine up to $5,000.
    (c) Any person who has requested access under Sec.  1611.3 to 
records through personal inspection, and who wishes to be accompanied by 
another person or persons during this inspection, shall submit a written 
statement authorizing disclosure of the record in such person's or 
person's presence.
    (d) If an individual submitting a request by mail under Sec.  1611.3 
wishes to have copies furnished by mail, he or she must include with the 
request a signed and notarized statement asserting his or her identity 
and stipulating

[[Page 269]]

that he or she understands that knowlingly or willfully seeking or 
obtaining access to records about another individual under false 
pretenses is a misdemeanor punishable by fine up to $5,000.
    (e) A request filed by the parent of any minor or the legal guardian 
of any incompetent person shall: state the relationship of the requester 
to the individual to whom the record pertains; present sufficient 
identification; and, if not evident from information already available 
to the Commission, present appropriate proof of the relationship or 
guardianship.
    (f) A person making a request pursuant to a power of attorney must 
possess a specific power of attorney to make that request.
    (g) No verification of identity will be required where the records 
sought are publicly available under the Freedom of Information Act.



Sec.  1611.5  Disclosure of requested information to individuals.

    (a) Upon receipt of request for notification as to whether the 
Commission maintains a record about an individual and/or request for 
access to such record:
    (1) The appropriate Commission official shall acknowledge such 
request in writing within 10 working days of receipt of the request. 
Wherever practicable, the acknowledgement should contain the 
notification and/or determination required in paragraph (a) (2) of this 
section.
    (2) The appropriate Commission official shall provide, within 30 
working days of receipt of the request, written notification to the 
requester as to the existence of the records and/or a determination as 
to whether or not access will be granted. In some cases, such as where 
records have to be recalled from the Federal Records Center, 
notification and/or a determination of access may be delayed. In the 
event of such a delay, the Commission official shall inform the 
requester of this fact, the reasons for the delay, and an estimate of 
the date on which notification and/or a determination will be 
forthcoming.
    (3) If access to a record is granted, the determination shall 
indicate when and where the record will be available for personal 
inspection. If a copy of the record has been requested, the Commission 
official shall mail that copy or retain it at the Commission to present 
to the individual, upon receipt of a check or money order in an amount 
computed pursuant to Sec.  1611.11.
    (4) When access to a record is to be granted, the appropriate 
Commission official will normally provide access within 30 working days 
of receipt of the request unless, for good cause shown, he or she is 
unable to do so, in which case the requester shall be informed within 30 
working days of receipt of the request as to those reasons and when it 
is anticipated that access will be granted.
    (5) The Commission shall not deny any request under Sec.  1611.3 
concerning the existence of records about the requester in any system of 
records it maintains, or any request for access to such records, unless 
that system is exempted from the requirements of 5 U.S.C. 552a in 
Sec. Sec.  1611.13, 1611.14, or 1611.15.
    (6) If the Commission receives a request pursuant to Sec.  1611.3 
for access to records in a system of records it maintains which is so 
exempt, the appropriate Commission official shall deny the request.
    (b) Upon request, the appropriate Commission official shall make 
available an accounting of disclosures pursuant to 5 U.S.C. 552a(c)(3), 
unless that system is exempted from the requirements of 5 U.S.C. 552a in 
Sec. Sec.  1611.13, 1611.14, or 1611.15.
    (c) If a request for access to records is denied pursuant to 
paragraph (a) or (b) of this section, the determination shall specify 
the reasons for the denial and advise the individual how to appeal the 
denial. If the request pertains to a system of records for which the 
Commission has published a system notice, any appeal must be submitted 
in writing to the Legal Counsel, EEOC, 131 M Street, NE., Washington, DC 
20507. If the request pertains to a government-wide system of records 
any appeal should be in writing, identified as a Privacy Act appeal and 
submitted as follows:
    (1) For systems established by OPM and for which OPM has published a 
system notice, to the Assistant Director

[[Page 270]]

for Workforce Information, Personnel Systems and Oversight Group, OPM, 
1900 E Street, NW., Washington, DC 20415. The OPM Privacy Act 
regulations, 5 CFR 297.207, shall govern such appeals.
    (2) For systems established by OGE and for which OGE has published a 
system notice, to the Privacy Act Officer, Office of Government Ethics, 
1201 New York Avenue, NW., Suite 500, Washington, DC 20005-3917. The OGE 
Privacy Act regulations, 5 CFR part 2606, shall govern such appeals.
    (3) For the system established by MSPB and for which MSPB has 
published a system notice, to the Deputy Executive Director for 
Management, U.S. Merit Systems Protection Board, 1120 Vermont Avenue, 
NW., Washington, DC 20419. The MSPB Privacy Act regulations, 5 CFR part 
1205, shall govern such appeals.
    (4) For systems established by GSA and for which GSA has published a 
system notice, to GSA Privacy Act Officer, General Services 
Administration (ATRAI), Washington, DC 20405. The GSA Privacy Act 
regulations, 41 CFR 105-64.301-5, shall govern such appeals.
    (5) For the system established by DOL and for which DOL has 
published a system notice, to the Solicitor of Labor, Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210. The DOL 
Privacy Act regulations, 29 CFR 70a.9, shall govern such appeals.
    (d) In the event that access to a record is denied on appeal by the 
Legal Counsel or the Legal Counsel's designee, the requestor shall be 
advised of his or her right to bring a civil action in Federal district 
court for review of the denial in accordance with 5 U.S.C. 552a(g).
    (e) Nothing in 5 U.S.C. 552a or this part allows an individual 
access to any information compiled in reasonable anticipation of a civil 
action or proceeding.

[42 FR 7949, Feb. 8, 1977, as amended at 56 FR 29581, June 28, 1991; ; 
74 FR 3430, Jan. 21, 2009; 74 FR 6831, Feb. 11, 2009]



Sec.  1611.6  Special procedures: Medical records.

    In the event the Commission receives a request pursuant to Sec.  
1611.3 for access to medical records (including psychological records) 
whose disclosure of which the appropriate Commission official determines 
could be harmful to the individual to whom they relate, he or she may 
refuse to disclose the records directly to the requester but shall 
transmit them to a physician designated by that individual.



Sec.  1611.7  Request for correction or amendment to record.

    (a) Any person who wishes to request correction or amendment of any 
record pertaining to him or her which is contained in a system of 
records maintained by the Commission, shall submit that request in 
writing in accordance with the instructions set forth in the system 
notice for that system of records. If the request is submitted by mail, 
the envelope should be clearly labeled ``Personal Information 
Amendment.'' The request shall include:
    (1) The name of the individual making the request;
    (2) The name of the system of records as set forth in the system 
notice to which the request relates;
    (3) A description of the nature (e.g., modification, addition or 
deletion) and substance of the correction or amendment requested; and
    (4) Any other information specified in the system notice.
    (b) Any person submitting a request pursuant to paragraph (a) of 
this section shall include sufficient information in support of that 
request to allow the Commission to apply the standards set forth in 5 
U.S.C. 552a (e).
    (c) All requests to amend pertaining to personnel records described 
in Sec.  1611.3(b) shall conform to the requirements of paragraphs (a) 
and (b) of this section and may be directed to the appropriate officials 
as indicated in Sec.  1611.3(b). Such requests may also be directed to 
the system manager specified in the OPM's systems notices.
    (d) Any person whose request under paragraph (a) of this section is 
denied may appeal that denial in accordance with Sec.  1611.9(a).

[42 FR 7949, Feb. 8, 1977, as amended at 56 FR 29581, June 28, 1991]

[[Page 271]]



Sec.  1611.8  Agency review of request for correction or amendment
to record.

    (a) When the Commission receives a request for amendment or 
correction under Sec.  1611.7(a), the appropriate Commission official 
shall acknowledge that request in writing within 10 working days of 
receipt. He or she shall promptly either:
    (1) Determine to grant all or any portion of a request for 
correction or amendment; and:
    (i) Advise the individual of that determination;
    (ii) Make the requested correction or amendment; and
    (iii) Inform any person or agency outside the Commission to whom the 
record has been disclosed, and where an accounting of that disclosure is 
maintained in accordance with 5 U.S.C. 552a(c), of the occurrence and 
substance of the correction or amendments, or;
    (2) Inform the requester of the refusal to amend the record in 
accordance with the request; the reason for the refusal; and the 
procedures whereby the requester can appeal the refusal to the Legal 
Counsel of the Commission.
    (b) If the Commission official informs the requester of the 
determination within the 10-day deadline, a separate acknowledgement is 
not required.
    (c) In conducting the review of a request for correction or 
amendment, the Commission official shall be guided by the requirements 
of 5 U.S.C. 552a(e).
    (d) In the event that the Commission receives a notice of correction 
or amendment from another agency that pertains to records maintained by 
the Commission, the Commission shall make the appropriate correction or 
amendment to its records and comply with paragraph (a)(1)(iii) of this 
section.
    (e) Requests for amendment or correction of records maintained in 
the government-wide systems of records listed in Sec.  1611.5(c) shall 
be governed by the appropriate agency's regulations cited in that 
paragraph. Requests for amendment or correction of records maintained by 
other agencies in system EEOC/GOVT-1 shall be governed by the 
Commission's regulations in this part.

[42 FR 7949, Feb. 8, 1977, as amended at 56 FR 29581, June 28, 1991]



Sec.  1611.9  Appeal of initial adverse agency determination on correction
or amendment.

    (a) If a request for correction or amendment of a record in a system 
of records established by EEOC is denied, the requester may appeal the 
determination in writing to the Legal Counsel, EEOC, 131 M Street, NE., 
Washington, DC 20507. If the request pertains to a record that is 
contained in the government-wide systems of records listed in Sec.  
1611.5(c), an appeal must be made in accordance with the appropriate 
agency's regulations cited in that paragraph.
    (b) The Legal Counsel or the Legal Counsel's designee shall make a 
final determination with regard to an appeal submitted under paragraph 
(a) of this section not later than 30 working days from the date on 
which the individual requests a review, unless for good cause shown, 
this 30-day period is extended and the requester is notified of the 
reasons for the extension and of the estimated date on which a final 
determination will be made. Such extensions will be used only in 
exceptional circumstances and will not normally exceed 30 working days.
    (c) In conducting the review of an appeal submitted under paragraph 
(a) of this section, the Legal Counsel or the Legal Counsel's designee 
shall be guided by the requirements of 5 U.S.C. 552a(e).
    (d) If the Legal Counsel or the Legal Counsel's designee determines 
to grant all or any portion of a request on an appeal submitted under 
paragraph (a) of this section, he or she shall so inform the requester, 
and the appropriate Commission official shall comply with the procedures 
set forth in Sec.  1611.8(a)(1)(ii) and (iii).
    (e) If the Legal Counsel or the Legal Counsel's designee determines 
in accordance with paragraphs (b) and (c) of this section not to grant 
all or any portion of a request on an appeal submitted under paragraph 
(a) of this section, he or she shall inform the requester:

[[Page 272]]

    (1) Of this determination and the reasons for it;
    (2) Of the requester's right to file a concise statement of reasons 
for disagreement with the determination of the Legal Counsel or the 
Legal Counsel's designee;
    (3) That such statements of disagreement will be made available to 
anyone to whom the record is subsequently disclosed, together with (if 
the Legal Counsel or Legal Counsel's designee deems it appropriate) a 
brief statement summarizing the Legal Counsel or Legal Counsel's 
designee's reasons for refusing to amend the record;
    (4) That prior recipients of the disputed record will be provided 
with a copy of the statement of disagreement together with (if the Legal 
Counsel or Legal Counsel's designee deems it appropriate) a brief 
statement of the Legal Counsel or Legal Counsel's designee's reasons for 
refusing to amend the record, to the extent that an accounting of 
disclosure is maintained under 5 U.S.C. 552a(c); and
    (5) Of the requester's right to file a civil action in Federal 
district court to seek a review of the determination of the Legal 
Counsel or the Legal Counsel's designee in accordance with 5 U.S.C. 
552a(g).
    (f) The Legal Counsel or the Legal Counsel's designee shall ensure 
that any statements of disagreement submitted by a requestor are made 
available or distributed in accordance with paragraphs (e) (3) and (4) 
of this section.

[56 FR 29582, June 28, 1991, as amended by; 74 FR 3430, Jan. 21, 2009]



Sec.  1611.10  Disclosure of record to person other than the individual
to whom it pertains.

    The Commission shall not disclose any record which is contained in a 
system of records it maintains, by any means of communication to any 
person or to another agency, except pursuant to a written request by, or 
with the prior written consent of the individual to whom the record 
pertains, unless the disclosure is authorized by one or more provisions 
of 5 U.S.C. 552a(b).



Sec.  1611.11  Fees.

    (a) No fee shall be charged for searches necessary to locate 
records. No charge shall be made if the total fees authorized are less 
than $1.00. Fees shall be charged for services rendered under this part 
as follows:
    (1) For copies made by photocopy--$0.15 per page (maximum of 10 
copies). For copies prepared by computer, such as tapes or printouts, 
EEOC will charge the direct cost incurred by the agency, including 
operator time. For other forms of duplication, EEOC will charge the 
actual costs of that duplication.
    (2) For attestation of documents--$25.00 per authenticating 
affidavit or declaration.
    (3) For certification of documents--$50.00 per authenticating 
affidavit or declaration.
    (b) All required fees shall be paid in full prior to issuance of 
requested copies of records. Fees are payable to ``Treasurer of the 
United States.''

[71 FR 11309, Mar. 7, 2006]



Sec.  1611.12  Penalties.

    The criminal penalties which have been established for violations of 
the Privacy Act of 1974 are set forth in 5 U.S.C. 552a(i). Penalties are 
applicable to any officer or employee of the Commission; to contractors 
and employees of such contractors who enter into contracts with the 
Commission on or after September 27, 1975, and who are considered to be 
employees of the Commission within the meaning of 5 U.S.C. 552a(m); and 
to any person who knowingly and willfully requests or obtains any record 
concerning an individual from the Commission under false pretenses.



Sec.  1611.13  Specific Exemptions--Charge and complaint files

    Pursuant to subsection (k)(2) of the Act, 5 U.S.C. 552a(k)(2), 
systems EEOC-1 (Age and Equal Pay Act Discrimination Case Files), EEOC-3 
(Title VII, Americans with Disabilities Act, and GINA Discrimination 
Case Files), EEOC-15 (Internal Harassment Inquiries) and EEOC/GOVT-1 
(Equal Employment Opportunity Complaint Records and Appeal Records) are 
exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G),

[[Page 273]]

(e)(4)(H), (e)(4)(I), and (f) of the Privacy Act. The Commission has 
determined to exempt these systems from the above named provisions of 
the Privacy Act for the following reasons:
    (a) The files in these systems contain information obtained by the 
Commission and other Federal agencies in the course of harassment 
inquiries, and investigations of charges and complaints that violations 
of Title VII of the Civil Rights Act, the Age Discrimination in 
Employment Act, the Equal Pay Act, the Americans with Disabilities Act, 
the Rehabilitation Act, and the Genetic Information Nondiscrimination 
Act have occurred. It would impede the law enforcement activities of the 
Commission and other agencies if these provisions of the Act applied to 
such records.
    (b) The subject individuals of the files in these systems know that 
the Commission or their employing agencies are maintaining a file on 
their charge, complaint, or inquiry, and the general nature of the 
information contained in it.
    (c) Subject individuals of the files in EEOC-1 (Age and Equal Pay 
Act Discrimination Case Files), EEOC-3 (Title VII, Americans with 
Disabilities Act, and GINA Discrimination Case Files), and EEOC/GOVT-1 
(Equal Employment Opportunity Complaint Records and Appeal Records) have 
been provided a means of access to their records by the Freedom of 
Information Act. Subject individuals of the charge files in system EEOC-
3 have also been provided a means of access to their records by section 
83 of the Commission's Compliance Manual. Subject individuals of the 
case files in system EEOC/GOVT-1 have also been provided a means of 
access to their records by the Commission's Equal Employment Opportunity 
in the Federal Government regulation, 29 CFR 1614.108(f).
    (d) Many of the records contained in system EEOC/GOVT-1 are obtained 
from other systems of records. If such records are incorrect, it would 
be more appropriate for an individual to seek to amend or correct those 
records in their primary filing location so that notice of the 
correction can be given to all recipients of that information.
    (e) Subject individuals of the files in each of these systems have 
access to relevant information provided by the allegedly discriminating 
employer, accuser or harasser as part of the investigatory process and 
are given the opportunity to explain or contradict such information and 
to submit any responsive evidence of their own. To allow such 
individuals the additional right to amend or correct the records 
submitted by the allegedly discriminatory employer, accuser or harasser 
would undermine the investigative process and destroy the integrity of 
the administrative record.
    (f) The Commission has determined that the exemption of these four 
systems of records from subsections (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), (e)(4)(I) and (f) of the Privacy Act is necessary for the 
agency's law enforcement efforts.

[67 FR 72373, Dec. 5, 2002, as amended at 74 FR 63983, Dec. 7, 2009]



Sec.  1611.14  Exemptions--Office of Inspector General Files.

    (a) General. The system of records entitled Office of Inspector 
General Investigative Files consists, in part, of information compiled 
by the OIG for the purpose of criminal law enforcement investigations. 
Therefore, to the extent that information in this system falls within 
the scope of Exemption (j)(2) of the Privacy Act, 5 U.S.C. 552a(j)(2), 
this system of records is exempt from the requirements of the following 
subsections of the Privacy Act, for the reasons stated below.
    (1) From subsection (c)(3), because release of an accounting of 
disclosures to an individual who is the subject of an investigation 
could reveal the nature and scope of the investigation and could result 
in the altering or destruction of evidence, improper influencing of 
witnesses, and other evasive actions that could impede or compromise the 
investigation.
    (2) From subsection (d)(1), because release of investigative records 
to an individual who is the subject of an investigation could interfere 
with pending or prospective law enforcement proceedings, constitute an 
unwarranted invasion of the personal privacy of third parties, reveal 
the identity of

[[Page 274]]

confidential sources, or reveal sensitive investigative techniques and 
procedures.
    (3) From subsection (d)(2), because amendment or correction of 
investigative records could interfere with pending or prospective law 
enforcement proceedings, or could impose an impossible administrative 
and investigative burden by requiring the OIG to continuously retrograde 
its investigations attempting to resolve questions of accuracy, 
relevance, timeliness and completeness.
    (4) From subsection (e)(1), because it is often impossible to 
determine relevance or necessity of information in the early stages of 
an investigation. The value of such information is a question of 
judgment and timing; what appears relevant and necessary when collected 
may ultimately be evaluated and viewed as irrelevant and unnecessary to 
an investigation. In addition, the OIG may obtain information concerning 
the violation of laws other than those within the scope of its 
jurisdiction. In the interest of effective law enforcement, the OIG 
should retain this information because it may aid in establishing 
patterns of unlawful activity and provide leads for other law 
enforcement agencies. Further, in obtaining evidence during an 
investigation, information may be provided to the OIG which relates to 
matters incidental to the main purpose of the investigation but which 
may be pertinent to the investigative jurisdiction of another agency. 
Such information cannot readily be identified.
    (5) From subsection (e)(2), because in a law enforcement 
investigation it is usually counterproductive to collect information to 
the greatest extent practicable from the subject thereof. It is not 
always feasible to rely upon the subject of an investigation as a source 
for information which may implicate him or her in illegal activities. In 
addition, collecting information directly from the subject could 
seriously compromise an investigation by prematurely revealing its 
nature and scope, or could provide the subject with an opportunity to 
conceal criminal activities, or intimidate potential sources, in order 
to avoid apprehension.
    (6) From subsection (e)(3), because providing such notice to the 
subject of an investigation, or to other individual sources, could 
seriously compromise the investigation by prematurely revealing its 
nature and scope, or could inhibit cooperation, permit the subject to 
evade apprehension, or cause interference with undercover activities.
    (b) Specific. The system of records entitled Office of Inspector 
General Investigative Files consists, in part, of investigatory material 
compiled by the OIG for law enforcement purposes. Therefore, to the 
extent that information in this system falls within the coverage of 
exemption (k)(2) of the Privacy Act, 5 U.S.C. 552a(k)(2), this system of 
records is exempt from the requirements of the following subsections of 
the Privacy Act, for the reasons stated below.
    (1) From subsection (c)(3), because release of an accounting of 
disclosures to an individual who is the subject of an investigation 
could reveal the nature and scope of the investigation and could result 
in the altering or destruction of evidence, improper influencing of 
witnesses, and other evasive actions that could impede or compromise the 
investigation.
    (2) From subsection (d)(1), because release of investigative records 
to an individual who is the subject of an investigation could interfere 
with pending or prospective law enforcement proceedings, constitute an 
unwarranted invasion of the personal privacy of third parties, reveal 
the identity of confidential sources, or reveal sensitive investigative 
techniques and procedures.
    (3) From subsection (d)(2), because amendment or correction of 
investigative records could interfere with pending or prospective law 
enforcement proceedings, or could impose an impossible administrative 
and investigative burden by requiring the OIG to continuously retrograde 
its investigations attempting to resolve questions of accuracy, 
relevance, timeliness and completeness.
    (4) From subsection (e)(1), because it is often impossible to 
determine relevance or necessity of information in the early stages of 
an investigation. The value of such information is a

[[Page 275]]

question of judgment and timing; what appears relevant and necessary 
when collected may ultimately be evaluated and viewed as irrelevant and 
unnecessary to investigation. In addition, the OIG may obtain 
information concerning the violation of laws other than those within the 
scope of its jurisdiction. In the interest of effective law enforcement, 
the OIG could retain this information because it may aid in establishing 
patterns of unlawful activity and provide leads for other law 
enforcement agencies. Further, in obtaining evidence during an 
investigation, information may be provided to the OIG which relates to 
matters incidental to the main purpose of the investigation but which 
may be pertinent to the investigative jurisdiction of another agency. 
Such information cannot readily be identified.

[67 FR 72374, Dec. 5, 2002]



Sec.  1611.15  Exemption--EEOC Personnel Security Files.

    EEOC's system of records entitled EEOC Personnel Security Files 
contains records that document and support decisions regarding 
suitability, eligibility and fitness for service of applicants for EEOC 
employment and contract positions. The records include background 
investigation records. Pursuant to section (k)(5) of the Privacy Act, 5 
U.S.C. 552a(k)(5), this system of records is exempt from the provisions 
of sections (c)(3) and (d)(1) of the Privacy Act, 5 U.S.C. 552a(c)(3) 
and (d)(1), but only to the extent that the accounting of disclosures or 
the disclosure of such material would reveal the identity of a source 
who furnished information to the government under an express promise 
that the identity of the source would be held in confidence.

[74 FR 6832, Feb. 11, 2009]



PART 1612_GOVERNMENT IN THE SUNSHINE ACT REGULATIONS--Table of Contents



Sec.
1612.1 Purpose and scope.
1612.2 Definitions.
1612.3 Open meeting policy.
1612.4 Exemptions to open meeting policy.
1612.5 Closed meeting procedures: agency initiated requests.
1612.6 Closed meeting procedures: request initiated by an interested 
          person.
1612.7 Public announcement of agency meetings.
1612.8 Public announcement of changes in meetings.
1612.9 Legal Counsel's certification in closing a meeting.
1612.10 Recordkeeping requirements.
1612.11 Public access to records.
1612.12 Fees.
1612.13 Meetings closed by regulation.
1612.14 Judicial review.

    Authority: 5 U.S.C. 552b, sec. 713, 78 Stat. 265; 42 U.S.C. 2000e-
12.

    Source: 42 FR 13830, Mar. 14, 1977, unless otherwise noted.



Sec.  1612.1  Purpose and scope.

    This part contains the regulations of the Equal Employment 
Opportunity Commission (hereinafter, the Commission) implementing the 
Government in the Sunshine Act of 1976, 5 U.S.C. 552b, which entitles 
the public to the fullest practicable information regarding the 
decision-making processes of the Commission. The provisions of this part 
set forth the basic responsibilities of the Commission with regard to 
the Commission's compliance with the requirements of the Sunshine Act 
and offers guidance to members of the public who wish to exercise any of 
the rights established by the Act.



Sec.  1612.2  Definitions.

    The following definitions apply for purposes of this part:
    (a) The term agency means the Equal Employment Opportunity 
Commission and any subdivision thereof authorized to act on its behalf.
    (b) The term meeting means the deliberations of at least three of 
the members of the agency, which is a quorum of Commissioners, where 
such deliberations determine or result in the joint conduct or 
disposition of official agency business (including conference calls), 
but does not include:
    (1) Individual members' consideration of official agency business 
circulated to the members in writing for disposition by notation or 
other separate, sequential consideration of Commission business by 
Commissioners,
    (2) Deliberations to decide whether a meeting or portion(s) of a 
meeting or

[[Page 276]]

series of meetings should be open or closed.
    (3) Deliberations to decide whether to withhold from disclosure 
information pertaining to a meeting or portions of a meeting or a series 
of meetings, or
    (4) Deliberations pertaining to any change in any meeting or to 
changes in the public announcement of such meeting.
    (c) The term member means each Commissioner of the agency.
    (d) The term entire membership means the number of members holding 
office at the time of the meeting in question.
    (e) The term person means any individual, partnership, corporation, 
association, or public or private organization.
    (f) The term public observation means attendance at any meeting open 
to the public but does not include participation, or attempted 
participation, in such meeting in any manner.



Sec.  1612.3  Open meeting policy.

    (a) All meetings of the Commission shall be conducted in accordance 
with the provisions of this part.
    (b) Except as otherwise provided in Sec.  1612.4, every portion of 
every meeting shall be open to public observation. Public observation 
does not include participation or disruptive conduct by observers. Any 
attempted participation or disruptive conduct by observers shall be 
cause for removal of persons so engaged at the discretion of the 
presiding member of the agency.
    (c) When holding open meetings, the Commission shall provide ample 
space, sufficient visibility, and adequate acoustics for persons in 
attendance at the meeting.
    (d) Observers may take still photographs and use portable sound 
recorders which do not require electrical outlets. Persons may take 
pictures only at the beginning of a meeting and may not use flash 
equipment. Permission to use non-battery operated sound recorders and 
visual recorders must be sought reasonably in advance of a meeting. Such 
request must be made in writing to the Commission through the Office of 
the Executive Secretariat. The Commission may permit such activities to 
be conducted under specified limitations which insure proper decorum and 
minimum interference with the meeting. In all cases, audio or visual 
recording shall not disrupt or otherwise impede the meeting.



Sec.  1612.4  Exemptions to open meeting policy.

    Except in a case where the agency finds that the public interest 
requires otherwise, the provisions of Sec.  1612.3 shall not apply to 
any meeting or portion of a meeting or portion of a meeting where the 
agency determines that an open meeting or the disclosure of information 
from such meeting or portions of a meeting is likely to:
    (a) Disclose matters that are (1) specifically authorized under 
criteria established by an Executive Order to be kept secret in the 
interests of national defense or foreign policy and (2) in fact properly 
classified pursuant to such Executive Order;
    (b) Relate solely to the internal personnel rules and practices of 
the agency;
    (c) Disclose matters specifically exempted from disclosure by 
statute (other than the Freedom of Information Act, 5 U.S.C. 552), 
provided that such statute (1) requires that the matters be withheld 
from the public in such a manner as to leave no discretion on the issue, 
or (2) establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (d) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime or formally censuring any 
person;
    (f) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would (1) interfere with enforcement proceedings, (2) 
deprive a persons of a right to a fair trial or an impartial 
adjudication, (3) constitute an unwarranted invasion of personal 
privacy, (4)

[[Page 277]]

disclose the identity of a confidential source, and, in the case of a 
record compiled by a criminal law enforcement authority in the course of 
a criminal investigation, or by an agency conducting a lawful national 
security intelligence investigation, confidential information furnished 
only by the confidential source, (5) disclose investigative techniques 
and procedures, or (6) endanger the life of physical safety of law 
enforcement personnel;
    (h) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions;
    (i) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed agency 
action, except where the agency has already disclosed to the public the 
content or nature of the disclosed action, or where the agency is 
required by law to make such disclosure on its own initiative prior to 
taking final agency action on such proposal; or
    (j) Specifically concern the agency's issuance of a subpoena, or the 
agency's participation in a civil action or proceeding, an action in a 
foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the agency of a particular case 
of formal agency adjudication pursuant to the procedures specified in 5 
U.S.C. 554 or otherwise involving a determination on the record after 
opportunity for a hearing.



Sec.  1612.5  Closed meeting procedures: agency initiated requests.

    (a) Any member of the agency, the Legal Counsel, or any other 
Commission official submitting an agenda item for the subject meeting 
may request that any meeting or portion thereof be closed to public 
observation for any of the reasons provided in Sec.  1612.4 of this part 
by submitting a request in writing to the Commission through the Office 
of the Executive Secretariat no later than fourteen (14) calendar days 
prior to the meeting.
    (b) Upon receipt of any request made under paragraph (a) of this 
section, the Executive Secretary shall submit the request to the Legal 
Counsel for certification in accordance with Sec.  1612.9 of this part.
    (c) No later than seven (7) calendar days prior to the scheduled 
meeting the members of the agency shall, upon consideration of the 
request submitted and consideration of the certified opinion of the 
Legal Counsel, determine by recorded vote whether to close the meeting 
or portion of the meeting to public observation. The members may vote 
less than seven days prior to the scheduled meeting where:
    (1) A majority of the members of the Commission determines by 
recorded vote that agency business requires that any such meeting or 
series of meetings be held at an earlier date.
    (2) A meeting is closed under the Commission's regulation as set 
forth in Sec.  1612.13(a) of this part.
    (3) A meeting is closed pursuant to a request made under Sec.  
1612.6 of this part and submitted less than seven days prior to the 
meeting.
    (4) There is a need to change the subject matter or the 
determination to open or close a meeting previously announced.
    (d) The Commissioner shall, at the same time, vote on whether to 
withhold any information pertaining to the meeting and otherwise 
required to be announced (Sec.  1612.7(a)(3)) or made publicly available 
(paragraphs (f) (2) and (3) of this section).
    (e) A meeting, portion of a meeting, or series of meetings may be 
closed to public observation only when a majority of the entire agency 
membership votes to take such action. Information pertaining to a 
meeting, portion of a meeting or series of meetings otherwise required 
to be announced (Sec.  1612.7(a)(3)) or made publicly available 
(paragraphs (f) (2) and (3) of this section) shall be withheld only when 
a majority of the entire agency membership votes to take such action.
    (f) With respect to each vote taken on whether a meeting should be 
open or closed, the agency shall, within one day of such vote, make 
publicly available the following information:
    (1) A written copy of the vote of each participating Commission 
member on the question.

[[Page 278]]

    (2) A written explanation of Commission action closing a meeting or 
portions thereof, and
    (3) The name and affiliation of any persons who are expected to 
attend a closed meeting.
    (g) The agency shall, within one day, make publicly available the 
vote of each Commission member on whether or not to withhold any of the 
information described in paragraphs (f) (2) or (3) of this section.
    (h) A separate vote shall be taken for each meeting proposed to be 
closed to the public and with respect to any information proposed to be 
withheld from the public. However, a single vote may be taken with 
respect to a series of meetings proposed to be closed to the public, and 
with respect to information concerning such series of meetings, if each 
meeting involves the same particular matters and is scheduled to be held 
no later than thirty (30) calendar days after the first meeting in the 
series.

[42 FR 13830, Mar. 14, 1977, as amended at 47 FR 46276, Oct. 18, 1982]



Sec.  1612.6  Closed meeting procedures: request initiated by an
interested person.

    (a) Any person as defined in Sec.  1612.2 of this part whose 
interest may be directly affected by a portion of a meeting may request 
that the agency close that portion of the meeting to the public for any 
of the reasons listed in Sec.  1612.4(e), (f) or (g).
    (b) Any person described in paragraph (a) of this section who 
submits a request that a portion of a meeting be closed, shall submit 
such request to the Chairman of the agency at the following address: the 
Equal Employment Opportunity Commission, 131 M Street NE., Washington, 
DC 20507. Such person shall state with particularity that portion of a 
meeting sought to be closed and the reasons for such request.
    (c) The Chairman, upon receipt of any request made under paragraph 
(a) of this section, shall furnish a copy of the request to:
    (1) Each member of the agency.
    (2) The Legal Counsel for certification in accordance with Sec.  
1612.9 of this part.
    (d) Any member of the agency may request agency action upon such 
request.
    (e) The Commission shall, upon the request of any one of its members 
and consideration of the certified opinion of the Legal Counsel, 
determine by recorded vote whether to close such meeting or portion 
thereof.
    (f) The Chairman of the Commission shall promptly communicate to any 
person making a request to close a meeting or portion of a meeting under 
this section the agency's final disposition of such request.

[42 FR 13830, Mar. 14, 1977, as amended at 47 FR 46276, Oct. 18, 1982; 
74 FR 3430, Jan. 21, 2009]



Sec.  1612.7  Public announcement of agency meetings.

    (a) Public announcement of each meeting by the agency shall be 
accomplished by recorded telephone message at telephone number (202) 
921-2750, and by posting such announcements on the Commission's public 
Web site located at http://www.eeoc.gov not later than one week prior to 
commencement of a meeting or the commencement of the first meeting in a 
series of meetings, except as otherwise provided in this section, and 
shall disclose:
    (1) The time of the meeting.
    (2) The place of the meeting.
    (3) The subject matter of each portion of the meeting or series of 
meetings.
    (4) Whether any portion(s) of a meeting will be open or closed to 
public observation.
    (5) The name and telephone number of an official designated to 
respond to requests for information about the meeting.
    (b) Where a meeting is closed to the public, the agency may withhold 
and not announce the information specified in paragraph (a)(3) of this 
section, if and to the extent that it finds that such action is 
justified under Sec.  1612.4. Information shall be withheld only by a 
recorded vote of a majority of the entire membership of the agency.
    (c) The announcement described in paragraph (a) of this section may 
be accomplished less than one week prior to the commencement of any 
meeting or series of meetings where:

[[Page 279]]

    (1) A majority of the members of the Commission determines by 
recorded vote that agency business requires that any such meeting or 
series of meetings be held at an earlier date.
    (2) A meeting is closed under the Commission's regulation as set 
forth in Sec.  1612.13(a) of this part.
    (3) A meeting is closed pursuant to a request made under Sec.  
1612.6 of this part and submitted less than seven days prior to the 
meeting.
    (4) There has been a change in the subject matter or determination 
to open or close a meeting previously announced.

In these instances, the agency shall make public announcement at the 
earliest practicable time.
    (d) Immediately following any public announcement accomplished under 
the provisions of this section, the agency shall submit a notice for 
publication in the Federal Register disclosing:
    (1) The time of the meeting.
    (2) The place of the meeting.
    (3) The subject matter of each portion of each meeting or series of 
meetings.
    (4) Whether any portion(s) of a meeting will be open or closed to 
public observation.
    (5) The name and telephone number of an official designated to 
respond to requests for information about the meeting.

[42 FR 13830, Mar. 14, 1977, as amended at 55 FR 8140, Mar. 7, 1990; 74 
FR 3430, Jan. 21, 2009; 74 FR 42025, Aug. 20, 2009; 87 FR 14799, Mar. 
16, 2022]



Sec.  1612.8  Public announcement of changes in meetings.

    (a) The agency is required to make a public announcement of any 
changes in its meeting or portion(s) thereof. If, after the announcement 
provided for in Sec.  1612.7, the time or place of a meeting is changed 
or the meeting is cancelled, the agency will announce the change at the 
earliest practicable time. The subject matter or the determination to 
open or close the meeting may be changed only if (1) a majority of the 
entire membership of the agency determines by recorded vote that agency 
business so requires and that no earlier announcement of the change was 
possible and (2) the agency publicly announces the change and the vote 
of each member upon such change at the earliest practicable time.
    (b) Immediately following any public announcement of any change 
accomplished under the provisions of this section, the agency shall 
submit a notice for publication in the Federal Register disclosing:
    (1) The time of the meeting.
    (2) The place of the meeting.
    (3) The subject matter of each portion of each meeting or series of 
meetings.
    (4) Whether any portion(s) of a meeting is open or closed to public 
observation.
    (5) Any change in paragraphs (b) (1), (2), (3), or (4) of this 
section.
    (6) The name and telephone number of the official designated to 
respond to requests for information about any meeting.



Sec.  1612.9  Legal Counsel's certification in closing a meeting.

    (a) Upon any proper request made pursuant to this part, that the 
agency close a meeting or portion(s) thereof, the Legal Counsel shall 
certify in writing to the agency, whether in his or her opinion the 
closing of a meeting or portion(s) thereof is proper under the 
provisions of this part and the terms of the Government in the Sunshine 
Act (5 U.S.C. 552b). If, in the opinion of the Legal Counsel, a meeting 
or portion(s) thereof is proper for closing under this part and the 
terms of the Government in the Sunshine Act, his or her certification of 
that opinion shall cite each applicable particular exemption of that Act 
and provision of this part.
    (b) A copy of the certification of the Legal Counsel as described in 
paragraph (a) of this section together with a statement of the presiding 
officer of the meeting setting forth the time and place of the relevant 
meeting or meetings, and the persons present, shall be maintained by the 
agency in a public file.

[42 FR 13830, Mar. 14, 1977, as amended at 47 FR 46276, Oct. 18, 1982]



Sec.  1612.10  Recordkeeping requirements.

    (a) In the case of any meeting or portion(s) thereof to be closed to 
public observation under the provisions of

[[Page 280]]

this part, the following records shall be maintained by the Executive 
Secretary of the agency:
    (1) The certification of the Legal Counsel pursuant to Sec.  1612.9 
of this part;
    (2) A statement from the presiding officer of the meeting or 
portion(s) thereof setting forth the time and place of the meeting, and 
the persons present;
    (3) A complete electronic recording adequate to record fully the 
proceedings of each meeting closed to the public observation, except 
that in a meeting closed pursuant to paragraph (h) or (j) of Sec.  
1612.4, the agency may maintain minutes in lieu of a recording. Such 
minutes shall fully, and clearly describe all matters discussed and 
shall provide a full and accurate summary of any actions taken, and the 
reasons therefor, including a description of each of the views expressed 
on any item and the record of any roll call vote. All documents 
considered in connection with any item shall be identified in the 
minutes.
    (b) If the agency has determined that the meeting or portion(s) 
thereof may properly be closed to the public, the electronic recording 
or minutes shall not be made available to the public until such future 
time, if any, as it is determined by the Commission upon request, that 
the reasons for closing the meeting no longer pertain; Provided, 
however, that any separable portion of a recording or minutes will be 
made promptly available to the public if that portion does not contain 
information properly withheld under Sec.  1612.4.
    (c) The agency shall maintain a copy of the electronic recording or 
minutes for a period of two years after the meeting, or until one year 
after the conclusion of the proceeding to which the meeting relates, 
whichever occurs later.

[42 FR 13830, Mar. 14, 1977, as amended at 47 FR 46276, Oct. 18, 1982]



Sec.  1612.11  Public access to records.

    All requests for information shall be submitted in writing to the 
Chairman of the agency. Requests to inspect or copy the electronic 
recordings or minutes of agency meetings or portions thereof will be 
considered under the provisions of Sec.  1612.4 of this part.



Sec.  1612.12  Fees.

    (a) Records provided to the public under this part shall be 
furnished at the expense of the party requesting copies of the recording 
or minutes, upon payment of the actual cost of duplication.
    (b) All required fees shall be paid in full prior to issuance of 
requested copies of records. Fees are payable to the ``Treasurer of the 
United States.''



Sec.  1612.13  Meetings closed by regulation.

    (a) This paragraph constitutes the Commission's regulation 
promulgated pursuant to paragraph (d)(4) of the Government in the 
Sunshine Act and may be invoked by the agency to close meetings or 
portions thereof where the subject matter of such meeting or portion of 
a meeting is likely to involve:
    (1) Matters pertaining to the issuance of subpoenas;
    (2) Subpoena modification and revocation requests, and
    (3) The Agency's participation in civil actions or proceedings 
pertaining thereto.
    (b) When closing a meeting or portion thereof under the Commission's 
regulation set forth in paragraph (a) of this section, a majority of the 
Commission membership shall vote at or before the beginning of such 
meeting or portion thereof to do so. The vote to close a meeting by 
regulation shall be recorded and made publicly available.
    (c) The Commission's determination to promulgate the regulation in 
paragraph (a) of this section is based upon a review of the agenda of 
Commission meetings for the two years prior to the promulgation of these 
regulations.
    (1) Since the Commission's practice of conducting weekly meetings 
began in 1975, proposed litigation against title VII respondents has 
been a regular agenda item. The tenth exemption of the Government in the 
Sunshine Act, 5 U.S.C. 552b(c)(10), exempts the discussion of these 
matters from the open meeting requirements of the Act.
    (2) Thus, the Commission has determined that a majority of its 
meetings or portions thereof may properly be

[[Page 281]]

closed to the public under the tenth exemption of the Sunshine Act, and 
that paragraph (d)(4) of the Sunshine Act is properly relied upon in 
promulgating the Commission's regulation in paragraph (a) of this 
section.



Sec.  1612.14  Judicial review.

    Any person may bring an action in a United States District Court to 
challenge or enforce the provisions of this part. Such action may be 
brought prior to or within sixty (60) calendar days after the meeting in 
question, except that if proper public announcement of the meeting is 
not made, the action may be instituted at any time within sixty (60) 
days after such announcement is made. An action may be brought where the 
agency meeting was held or in the District of Columbia.



PART 1614_FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY--Table of Contents



    Subpart A_Agency Program To Promote Equal Employment Opportunity

Sec.
1614.101 General policy.
1614.102 Agency program.
1614.103 Complaints of discrimination covered by this part.
1614.104 Agency processing.
1614.105 Pre-complaint processing.
1614.106 Individual complaints.
1614.107 Dismissals of complaints.
1614.108 Investigation of complaints.
1614.109 Hearings.
1614.110 Final action by agencies.

        Subpart B_Provisions Applicable to Particular Complaints

1614.201 Age Discrimination in Employment Act.
1614.202 Equal Pay Act.
1614.203 Rehabilitation Act.
1614.204 Class complaints.

                       Subpart C_Related Processes

1614.301 Relationship to negotiated grievance procedure.
1614.302 Mixed case complaints.
1614.303 Petitions to the EEOC from MSPB decisions on mixed case appeals 
          and complaints.
1614.304 Contents of petition.
1614.305 Consideration procedures.
1614.306 Referral of case to Special Panel.
1614.307 Organization of Special Panel.
1614.308 Practices and procedures of the Special Panel.
1614.309 Enforcement of Special Panel decision.
1614.310 Right to file a civil action.

                   Subpart D_Appeals and Civil Actions

1614.401 Appeals to the Commission.
1614.402 Time for appeals to the Commission.
1614.403 How to appeal.
1614.404 Appellate procedure.
1614.405 Decisions on appeals.
1614.406 Time limits. [Reserved]
1614.407 Civil action: Title VII, Age Discrimination in Employment Act, 
          Rehabilitation Act, and Genetic Information Nondiscrimination 
          Act.
1614.408 Civil action: Equal Pay Act.
1614.409 Effect of filing a civil action.

                   Subpart E_Remedies and Enforcement

1614.501 Remedies and relief.
1614.502 Compliance with final Commission decisions.
1614.503 Enforcement of final Commission decisions.
1614.504 Compliance with settlement agreements and final action.
1614.505 Interim relief.

               Subpart F_Matters of General Applicability

1614.601 EEO group statistics.
1614.602 Reports to the Commission.
1614.603 Voluntary settlement attempts.
1614.604 Filing and computation of time.
1614.605 Representation and official time.
1614.606 Joint processing and consolidation of complaints.
1614.607 Delegation of authority.

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

1614.701 Purpose and scope.
1614.702 Definitions.
1614.703 Manner and format of data.
1614.704 Information to be posted--all Federal agencies.
1614.705 Comparative data--all Federal agencies.
1614.706 Other data.
1614.707 Data to be posted by EEOC.

    Authority: 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.

    Source: 57 FR 12646, Apr. 10, 1992, unless otherwise noted.

[[Page 282]]



    Subpart A_Agency Program To Promote Equal Employment Opportunity



Sec.  1614.101  General policy.

    (a) It is the policy of the Government of the United States to 
provide equal opportunity in employment for all persons, to prohibit 
discrimination in employment because of race, color, religion, sex, 
national origin, age, disability, or genetic information and to promote 
the full realization of equal employment opportunity through a 
continuing affirmative program in each agency.
    (b) No person shall be subject to retaliation for opposing any 
practice made unlawful by title VII of the Civil Rights Act (title VII) 
(42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act 
(ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act (29 U.S.C. 206(d)), 
the Rehabilitation Act (29 U.S.C. 791 et seq.), or the Genetic 
Information Nondiscrimination Act (GINA) (42 U.S.C. 2000ff et seq.) or 
for participating in any stage of administrative or judicial proceedings 
under those statutes.

[74 FR 63984, Dec. 7, 2009]



Sec.  1614.102  Agency program.

    (a) Each agency shall maintain a continuing affirmative program to 
promote equal opportunity and to identify and eliminate discriminatory 
practices and policies. In support of this program, the agency shall:
    (1) Provide sufficient resources to its equal employment opportunity 
program to ensure efficient and successful operation;
    (2) Provide for the prompt, fair and impartial processing of 
complaints in accordance with this part and the instructions contained 
in the Commission's Management Directives;
    (3) Conduct a continuing campaign to eradicate every form of 
prejudice or discrimination from the agency's personnel policies, 
practices and working conditions;
    (4) Communicate the agency's equal employment opportunity policy and 
program and its employment needs to all sources of job candidates 
without regard to race, color, religion, sex, national origin, age, 
disability, or genetic information, and solicit their recruitment 
assistance on a continuing basis;
    (5) Review, evaluate and control managerial and supervisory 
performance in such a manner as to insure a continuing affirmative 
application and vigorous enforcement of the policy of equal opportunity, 
and provide orientation, training and advice to managers and supervisors 
to assure their understanding and implementation of the equal employment 
opportunity policy and program;
    (6) Take appropriate disciplinary action against employees who 
engage in discriminatory practices;
    (7) Make reasonable accommodation to the religious needs of 
applicants and employees when those accommodations can be made without 
undue hardship on the business of the agency;
    (8) Make reasonable accommodation to the known physical or mental 
limitations of qualified applicants and employees with handicaps unless 
the accommodation would impose an undue hardship on the operation of the 
agency's program;
    (9) Provide recognition to employees, supervisors, managers and 
units demonstrating superior accomplishment in equal employment 
opportunity;
    (10) Establish a system for periodically evaluating the 
effectiveness of the agency's overall equal employment opportunity 
effort;
    (11) Provide the maximum feasible opportunity to employees to 
enhance their skills through on-the-job training, work-study programs 
and other training measures so that they may perform at their highest 
potential and advance in accordance with their abilities;
    (12) Inform its employees and recognized labor organizations of the 
affirmative equal employment opportunity policy and program and enlist 
their cooperation; and
    (13) Participate at the community level with other employers, with 
schools and universities and with other public and private groups in 
cooperative action to improve employment opportunities and community 
conditions that affect employability.
    (b) In order to implement its program, each agency shall:

[[Page 283]]

    (1) Develop the plans, procedures and regulations necessary to carry 
out its program;
    (2) Establish or make available an alternative dispute resolution 
program. Such program must be available for both the pre-complaint 
process and the formal complaint process.
    (3) Appraise its personnel operations at regular intervals to assure 
their conformity with its program, this part 1614 and the instructions 
contained in the Commission's management directives;
    (4) Designate a Director of Equal Employment Opportunity (EEO 
Director), EEO Officer(s), and such Special Emphasis Program Managers 
(e.g., People With Disabilities Program, Federal Women's Program and 
Hispanic Employment Program), clerical and administrative support as may 
be necessary to carry out the functions described in this part in all 
organizational units of the agency and at all agency installations. The 
EEO Director shall be under the immediate supervision of the agency 
head;
    (5) Make written materials available to all employees and applicants 
informing them of the variety of equal employment opportunity programs 
and administrative and judicial remedial procedures available to them 
and prominently post such written materials in all personnel and EEO 
offices and throughout the workplace;
    (6) Ensure that full cooperation is provided by all agency employees 
to EEO Counselors and agency EEO personnel in the processing and 
resolution of pre-complaint matters and complaints within an agency and 
that full cooperation is provided to the Commission in the course of 
appeals, including granting the Commission routine access to personnel 
records of the agency when required in connection with an investigation; 
and
    (7) Publicize to all employees and post at all times the names, 
business telephone numbers and business addresses of the EEO Counselors 
(unless the counseling function is centralized, in which case only the 
telephone number and address need be publicized and posted), a notice of 
the time limits and necessity of contacting a Counselor before filing a 
complaint and the telephone numbers and addresses of the EEO Director, 
EEO Officer(s) and Special Emphasis Program Managers.
    (c) Under each agency program, the EEO Director shall be responsible 
for:
    (1) Advising the head of the agency with respect to the preparation 
of national and regional equal employment opportunity plans, procedures, 
regulations, reports and other matters pertaining to the policy in Sec.  
1614.101 and the agency program;
    (2) Evaluating from time to time the sufficiency of the total agency 
program for equal employment opportunity and reporting to the head of 
the agency with recommendations as to any improvement or correction 
needed, including remedial or disciplinary action with respect to 
managerial, supervisory or other employees who have failed in their 
responsibilities;
    (3) When authorized by the head of the agency, making changes in 
programs and procedures designed to eliminate discriminatory practices 
and to improve the agency's program for equal employment opportunity;
    (4) Providing for counseling of aggrieved individuals and for the 
receipt and processing of individual and class complaints of 
discrimination; and
    (5) Assuring that individual complaints are fairly and thoroughly 
investigated and that final action is taken in a timely manner in 
accordance with this part.
    (d) Directives, instructions, forms and other Commission materials 
referenced in this part may be obtained in accordance with the 
provisions of 29 CFR 1610.7 of this chapter.
    (e) Agency programs shall comply with this part and the Management 
Directives and Bulletins that the Commission issues. The Commission will 
review agency programs from time to time to ascertain whether they are 
in compliance. If an agency program is found not to be in compliance, 
efforts shall be undertaken to obtain compliance. If those efforts are 
not successful, the Chair may issue a notice to the head of any federal 
agency whose programs are not in compliance and publicly identify each 
non-compliant agency.

[[Page 284]]

    (f) Unless prohibited by law or executive order, the Commission, in 
its discretion and for good cause shown, may grant agencies prospective 
variances from the complaint processing procedures prescribed in this 
Part. Variances will permit agencies to conduct pilot projects of 
proposed changes to the complaint processing requirements of this Part 
that may later be made permanent through regulatory change. Agencies 
requesting variances must identify the specific section(s) of this Part 
from which they wish to deviate and exactly what they propose to do 
instead, explain the expected benefit and expected effect on the process 
of the proposed pilot project, indicate the proposed duration of the 
pilot project, and discuss the method by which they intend to evaluate 
the success of the pilot project. Variances will not be granted for 
individual cases and will usually not be granted for more than 24 
months. The Director of the Office of Federal Operations for good cause 
shown may grant requests for extensions of variances for up to an 
additional 12 months. Pilot projects must require that participants 
knowingly and voluntarily opt-in to the pilot project. Requests for 
variances should be addressed to the Director, Office of Federal 
Operations.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37655, July 12, 1999; 
67 FR 35735, May 21, 2002; 74 FR 63984, Dec. 7, 2009; 77 FR 43504, July 
25, 2012]



Sec.  1614.103  Complaints of discrimination covered by this part.

    (a) Individual and class complaints of employment discrimination and 
retaliation prohibited by title VII (discrimination on the basis of 
race, color, religion, sex and national origin), the ADEA 
(discrimination on the basis of age when the aggrieved individual is at 
least 40 years of age), the Rehabilitation Act (discrimination on the 
basis of disability), the Equal Pay Act (sex-based wage discrimination), 
or GINA (discrimination on the basis of genetic information) shall be 
processed in accordance with this part. Complaints alleging retaliation 
prohibited by these statutes are considered to be complaints of 
discrimination for purposes of this part.
    (b) This part applies to:
    (1) Military departments as defined in 5 U.S.C. 102;
    (2) Executive agencies as defined in 5 U.S.C. 105;
    (3) The United States Postal Service, Postal Rate Commission and 
Tennessee Valley Authority;
    (4) All units of the judicial branch of the Federal government 
having positions in the competitive service, except for complaints under 
the Rehabilitation Act;
    (5) The National Oceanic and Atmospheric Administration Commissioned 
Corps;
    (6) The Government Printing Office except for complaints under the 
Rehabilitation Act; and
    (7) The Smithsonian Institution.
    (c) Within the covered departments, agencies and units, this part 
applies to all employees and applicants for employment, and to all 
employment policies or practices affecting employees or applicants for 
employment including employees and applicants who are paid from 
nonappropriated funds, unless otherwise excluded.
    (d) This part does not apply to:
    (1) Uniformed members of the military departments referred to in 
paragraph (b)(1) of this section:
    (2) Employees of the General Accounting Office;
    (3) Employees of the Library of Congress;
    (4) Aliens employed in positions, or who apply for positions, 
located outside the limits of the United States; or
    (5) Equal Pay Act complaints of employees whose services are 
performed within a foreign country or certain United States territories 
as provided in 29 U.S.C. 213(f).

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37655, July 12, 1999; 
74 FR 63984, Dec. 7, 2009; 77 FR 43504, July 25, 2012]



Sec.  1614.104  Agency processing.

    (a) Each agency subject to this part shall adopt procedures for 
processing individual and class complaints of discrimination that 
include the provisions contained in Sec. Sec.  1614.105 through 1614.110 
and in Sec.  1614.204, and that are consistent with all other applicable 
provisions of this part and the instructions for complaint processing 
contained in

[[Page 285]]

the Commission's Management Directives.
    (b) The Commission shall periodically review agency resources and 
procedures to ensure that an agency makes reasonable efforts to resolve 
complaints informally, to process complaints in a timely manner, to 
develop adequate factual records, to issue decisions that are consistent 
with acceptable legal standards, to explain the reasons for its 
decisions, and to give complainants adequate and timely notice of their 
rights.



Sec.  1614.105  Pre-complaint processing.

    (a) Aggrieved persons who believe they have been discriminated 
against on the basis of race, color, religion, sex, national origin, 
age, disability, or genetic information must consult a Counselor prior 
to filing a complaint in order to try to informally resolve the matter.
    (1) An aggrieved person must initiate contact with a Counselor 
within 45 days of the date of the matter alleged to be discriminatory 
or, in the case of personnel action, within 45 days of the effective 
date of the action.
    (2) The agency or the Commission shall extend the 45-day time limit 
in paragraph (a)(1) of this section when the individual shows that he or 
she was not notified of the time limits and was not otherwise aware of 
them, that he or she did not know and reasonably should not have been 
known that the discriminatory matter or personnel action occurred, that 
despite due diligence he or she was prevented by circumstances beyond 
his or her control from contacting the counselor within the time limits, 
or for other reasons considered sufficient by the agency or the 
Commission.
    (b)(1) At the initial counseling session, Counselors must advise 
individuals in writing of their rights and responsibilities, including 
the right to request a hearing or an immediate final decision after an 
investigation by the agency in accordance with Sec.  1614.108(f), 
election rights pursuant to Sec. Sec.  1614.301 and 1614.302, the right 
to file a notice of intent to sue pursuant to Sec.  1614.201(a) and a 
lawsuit under the ADEA instead of an administrative complaint of age 
discrimination under this part, the duty to mitigate damages, 
administrative and court time frames, and that only the claims raised in 
precomplaint counseling (or issues or claims like or related to issues 
or claims raised in pre-complaint counseling) may be alleged in a 
subsequent complaint filed with the agency. Counselors must advise 
individuals of their duty to keep the agency and Commission informed of 
their current address and to serve copies of appeal papers on the 
agency. The notice required by paragraphs (d) or (e) of this section 
shall include a notice of the right to file a class complaint. If the 
aggrieved person informs the Counselor that he or she wishes to file a 
class complaint, the Counselor shall explain the class complaint 
procedures and the responsibilities of a class agent.
    (2) Counselors shall advise aggrieved persons that, where the agency 
agrees to offer ADR in the particular case, they may choose between 
participation in the alternative dispute resolution program and the 
counseling activities provided for in paragraph (c) of this section.
    (c) Counselors shall conduct counseling activities in accordance 
with instructions contained in Commission Management Directives. When 
advised that a complaint has been filed by an aggrieved person, the 
Counselor shall submit a written report within 15 days to the agency 
office that has been designated to accept complaints and the aggrieved 
person concerning the issues discussed and actions taken during 
counseling.
    (d) Unless the aggrieved person agrees to a longer counseling period 
under paragraph (e) of this section, or the aggrieved person chooses an 
alternative dispute resolution procedure in accordance with paragraph 
(b)(2) of this section, the Counselor shall conduct the final interview 
with the aggrieved person within 30 days of the date the aggrieved 
person contacted the agency's EEO office to request counseling. If the 
matter has not been resolved, the aggrieved person shall be informed in 
writing by the Counselor, not later than the thirtieth day after 
contacting the Counselor, of the right to file a discrimination 
complaint. The notice shall inform the complainant of

[[Page 286]]

the right to file a discrimination complaint within 15 days of receipt 
of the notice, of the appropriate official with whom to file a complaint 
and of the complainant's duty to assure that the agency is informed 
immediately if the complainant retains counsel or a representative.
    (e) Prior to the end of the 30-day period, the aggrieved person may 
agree in writing with the agency to postpone the final interview and 
extend the counseling period for an additional period of no more than 60 
days. If the matter has not been resolved before the conclusion of the 
agreed extension, the notice described in paragraph (d) of this section 
shall be issued.
    (f) Where the aggrieved person chooses to participate in an 
alternative dispute resolution procedure in accordance with paragraph 
(b)(2) of this section, the pre-complaint processing period shall be 90 
days. If the claim has not been resolved before the 90th day, the notice 
described in paragraph (d) of this section shall be issued.
    (g) The Counselor shall not attempt in any way to restrain the 
aggrieved person from filing a complaint. The Counselor shall not reveal 
the identity of an aggrieved person who consulted the Counselor, except 
when authorized to do so by the aggrieved person, or until the agency 
has received a discrimination complaint under this part from that person 
involving that same matter.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999; 
74 FR 63984, Dec. 7, 2009]



Sec.  1614.106  Individual complaints.

    (a) A complaint must be filed with the agency that allegedly 
discriminated against the complainant.
    (b) A complaint must be filed within 15 days of receipt of the 
notice required by Sec.  1614.105 (d), (e) or (f).
    (c) A complaint must contain a signed statement from the person 
claiming to be aggrieved or that person's attorney. This statement must 
be sufficiently precise to identify the aggrieved individual and the 
agency and to describe generally the action(s) or practice(s) that form 
the basis of the complaint. The complaint must also contain a telephone 
number and address where the complainant or the representative can be 
contacted.
    (d) A complainant may amend a complaint at any time prior to the 
conclusion of the investigation to include issues or claims like or 
related to those raised in the complaint. After requesting a hearing, a 
complainant may file a motion with the administrative judge to amend a 
complaint to include issues or claims like or related to those raised in 
the complaint.
    (e) The agency shall acknowledge receipt of a complaint or an 
amendment to a complaint in writing and inform the complainant of the 
date on which the complaint or amendment was filed. The agency shall 
advise the complainant in the acknowledgment of the EEOC office and its 
address where a request for a hearing shall be sent. Such acknowledgment 
shall also advise the complainant that:
    (1) The complainant has the right to appeal the final action on or 
dismissal of a complaint; and
    (2) The agency is required to conduct an impartial and appropriate 
investigation of the complaint within 180 days of the filing of the 
complaint unless the parties agree in writing to extend the time period. 
When a complaint has been amended, the agency shall complete its 
investigation within the earlier of 180 days after the last amendment to 
the complaint or 360 days after the filing of the original complaint, 
except that the complainant may request a hearing from an administrative 
judge on the consolidated complaints any time after 180 days from the 
date of the first filed complaint.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999]



Sec.  1614.107  Dismissals of complaints.

    (a) Prior to a request for a hearing in a case, the agency shall 
dismiss an entire complaint:
    (1) That fails to state a claim under Sec.  1614.103 or Sec.  
1614.106(a) or states the same claim that is pending before or has been 
decided by the agency or Commission;
    (2) That fails to comply with the applicable time limits contained 
in Sec. Sec.  1614.105, 1614.106 and 1614.204(c), unless the agency 
extends the time limits in accordance with Sec.  1614.604(c), or that

[[Page 287]]

raises a matter that has not been brought to the attention of a 
Counselor and is not like or related to a matter that has been brought 
to the attention of a Counselor;
    (3) That is the basis of a pending civil action in a United States 
District Court in which the complainant is a party provided that at 
least 180 days have passed since the filing of the administrative 
complaint, or that was the basis of a civil action decided by a United 
States District Court in which the complainant was a party;
    (4) Where the complainant has raised the matter in a negotiated 
grievance procedure that permits allegations of discrimination or in an 
appeal to the Merit Systems Protection Board and Sec.  1614.301 or Sec.  
1614.302 indicates that the complainant has elected to pursue the non-
EEO process;
    (5) That is moot or alleges that a proposal to take a personnel 
action, or other preliminary step to taking a personnel action, is 
discriminatory, unless the complaint alleges that the proposal or 
preliminary step is retaliatory;
    (6) Where the complainant cannot be located, provided that 
reasonable efforts have been made to locate the complainant and the 
complainant has not responded within 15 days to a notice of proposed 
dismissal sent to his or her last known address;
    (7) Where the agency has provided the complainant with a written 
request to provide relevant information or otherwise proceed with the 
complaint, and the complainant has failed to respond to the request 
within 15 days of its receipt or the complainant's response does not 
address the agency's request, provided that the request included a 
notice of the proposed dismissal. Instead of dismissing for failure to 
cooperate, the complaint may be adjudicated if sufficient information 
for that purpose is available;
    (8) That alleges dissatisfaction with the processing of a previously 
filed complaint; or
    (9) Where the agency, strictly applying the criteria set forth in 
Commission decisions, finds that the complaint is part of a clear 
pattern of misuse of the EEO process for a purpose other than the 
prevention and elimination of employment discrimination. A clear pattern 
of misuse of the EEO process requires:
    (i) Evidence of multiple complaint filings; and
    (ii) Allegations that are similar or identical, lack specificity or 
involve matters previously resolved; or
    (iii) Evidence of circumventing other administrative processes, 
retaliating against the agency's in-house administrative processes or 
overburdening the EEO complaint system.
    (b) Where the agency believes that some but not all of the claims in 
a complaint should be dismissed for the reasons contained in paragraphs 
(a)(1) through (9) of this section, the agency shall notify the 
complainant in writing of its determination, the rationale for that 
determination and that those claims will not be investigated, and shall 
place a copy of the notice in the investigative file. A determination 
under this paragraph is reviewable by an administrative judge if a 
hearing is requested on the remainder of the complaint, but is not 
appealable until final action is taken on the remainder of the 
complaint.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999; 
77 FR 43504, July 25, 2012]



Sec.  1614.108  Investigation of complaints.

    (a) The investigation of complaints shall be conducted by the agency 
against which the complaint has been filed.
    (b) In accordance with instructions contained in Commission 
Management Directives, the agency shall develop an impartial and 
appropriate factual record upon which to make findings on the claims 
raised by the written complaint. An appropriate factual record is one 
that allows a reasonable fact finder to draw conclusions as to whether 
discrimination occurred. Agencies may use an exchange of letters or 
memoranda, interrogatories, investigations, fact-finding conferences or 
any other fact-finding methods that efficiently and thoroughly address 
the matters at issue. Agencies are encouraged to incorporate alternative 
dispute resolution techniques into their investigative efforts in order 
to promote early resolution of complaints.

[[Page 288]]

    (c) The procedures in paragraphs (c) (1) through (3) of this section 
apply to the investigation of complaints:
    (1) The complainant, the agency, and any employee of a Federal 
agency shall produce such documentary and testimonial evidence as the 
investigator deems necessary.
    (2) Investigators are authorized to administer oaths. Statements of 
witnesses shall be made under oath or affirmation or, alternatively, by 
written statement under penalty of perjury.
    (3) When the complainant, or the agency against which a complaint is 
filed, or its employees fail without good cause shown to respond fully 
and in timely fashion to requests for documents, records, comparative 
data, statistics, affidavits, or the attendance of witness(es), the 
investigator may note in the investigative record that the decisionmaker 
should, or the Commission on appeal may, in appropriate circumstances:
    (i) Draw an adverse inference that the requested information, or the 
testimony of the requested witness, would have reflected unfavorably on 
the party refusing to provide the requested information;
    (ii) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (iii) Exclude other evidence offered by the party failing to produce 
the requested information or witness;
    (iv) Issue a decision fully or partially in favor of the opposing 
party; or
    (v) Take such other actions as it deems appropriate.
    (d) Any investigation will be conducted by investigators with 
appropriate security clearances. The Commission will, upon request, 
supply the agency with the name of an investigator with appropriate 
security clearances.
    (e) The agency shall complete its investigation within 180 days of 
the date of filing of an individual complaint or within the time period 
contained in an order from the Office of Federal Operations on an appeal 
from a dismissal pursuant to Sec.  1614.107. By written agreement within 
those time periods, the complainant and the respondent agency may 
voluntarily extend the time period for not more than an additional 90 
days. The agency may unilaterally extend the time period or any period 
of extension for not more than 30 days where it must sanitize a 
complaint file that may contain information classified pursuant to Exec. 
Order No. 12356, or successor orders, as secret in the interest of 
national defense or foreign policy, provided the investigating agency 
notifies the parties of the extension.
    (f) Within 180 days from the filing of the complaint, or where a 
complaint was amended, within the earlier of 180 days after the last 
amendment to the complaint or 360 days after the filing of the original 
complaint, within the time period contained in an order from the Office 
of Federal Operations on an appeal from a dismissal, or within any 
period of extension provided for in paragraph (e) of this section, the 
agency shall provide the complainant with a copy of the investigative 
file, and shall notify the complainant that, within 30 days of receipt 
of the investigative file, the complainant has the right to request a 
hearing and decision from an administrative judge or may request an 
immediate final decision pursuant to Sec.  1614.110 from the agency with 
which the complaint was filed.
    (g) If the agency does not send the notice required in paragraph (f) 
of this section within the applicable time limits, it shall, within 
those same time limits, issue a written notice to the complainant 
informing the complainant that it has been unable to complete its 
investigation within the time limits required by Sec.  1614.108(f) and 
estimating a date by which the investigation will be completed. Further, 
the notice must explain that if the complainant does not want to wait 
until the agency completes the investigation, he or she may request a 
hearing in accordance with paragraph (h) of this section, or file a 
civil action in an appropriate United States District Court in 
accordance with Sec.  1614.407(b). Such notice shall contain information 
about the hearing procedures.
    (h) Where the complainant has received the notice required in 
paragraph (f) of this section or at any time after 180 days have elapsed 
from the filing of the complaint, the complainant may

[[Page 289]]

request a hearing by submitting a written request for a hearing directly 
to the EEOC office indicated in the agency's acknowledgment letter. The 
complainant shall send a copy of the request for a hearing to the agency 
EEO office. Within 15 days of receipt of the request for a hearing, the 
agency shall provide a copy of the complaint file to EEOC and, if not 
previously provided, to the complainant.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999; 
77 FR 43505, July 25, 2012]



Sec.  1614.109  Hearings.

    (a) When a complainant requests a hearing, the Commission shall 
appoint an administrative judge to conduct a hearing in accordance with 
this section. Upon appointment, the administrative judge shall assume 
full responsibility for the adjudication of the complaint, including 
overseeing the development of the record. Any hearing will be conducted 
by an administrative judge or hearing examiner with appropriate security 
clearances.
    (b) Dismissals. Administrative judges may dismiss complaints 
pursuant to Sec.  1614.107, on their own initiative, after notice to the 
parties, or upon an agency's motion to dismiss a complaint.
    (c) Offer of resolution. (1) Any time after the filing of the 
written complaint but not later than the date an administrative judge is 
appointed to conduct a hearing, the agency may make an offer of 
resolution to a complainant who is represented by an attorney.
    (2) Any time after the parties have received notice that an 
administrative judge has been appointed to conduct a hearing, but not 
later than 30 days prior to the hearing, the agency may make an offer of 
resolution to the complainant, whether represented by an attorney or 
not.
    (3) The offer of resolution shall be in writing and shall include a 
notice explaining the possible consequences of failing to accept the 
offer. The agency's offer, to be effective, must include attorney's fees 
and costs and must specify any non-monetary relief. With regard to 
monetary relief, an agency may make a lump sum offer covering all forms 
of monetary liability, or it may itemize the amounts and types of 
monetary relief being offered. The complainant shall have 30 days from 
receipt of the offer of resolution to accept it. If the complainant 
fails to accept an offer of resolution and the relief awarded in the 
administrative judge's decision, the agency's final decision, or the 
Commission decision on appeal is not more favorable than the offer, 
then, except where the interest of justice would not be served, the 
complainant shall not receive payment from the agency of attorney's fees 
or costs incurred after the expiration of the 30-day acceptance period. 
An acceptance of an offer must be in writing and will be timely if 
postmarked or received within the 30-day period. Where a complainant 
fails to accept an offer of resolution, an agency may make other offers 
of resolution and either party may seek to negotiate a settlement of the 
complaint at any time.
    (d) Discovery. The administrative judge shall notify the parties of 
the right to seek discovery prior to the hearing and may issue such 
discovery orders as are appropriate. Unless the parties agree in writing 
concerning the methods and scope of discovery, the party seeking 
discovery shall request authorization from the administrative judge 
prior to commencing discovery. Both parties are entitled to reasonable 
development of evidence on matters relevant to the issues raised in the 
complaint, but the administrative judge may limit the quantity and 
timing of discovery. Evidence may be developed through interrogatories, 
depositions, and requests for admissions, stipulations or production of 
documents. It shall be grounds for objection to producing evidence that 
the information sought by either party is irrelevant, overburdensome, 
repetitious, or privileged.
    (e) Conduct of hearing. Agencies shall provide for the attendance at 
a hearing of all employees approved as witnesses by an administrative 
judge. Attendance at hearings will be limited to persons determined by 
the administrative judge to have direct knowledge relating to the 
complaint. Hearings are part of the investigative process and are thus 
closed to the public. The administrative judge shall have the power to

[[Page 290]]

regulate the conduct of a hearing, limit the number of witnesses where 
testimony would be repetitious, and exclude any person from the hearing 
for contumacious conduct or misbehavior that obstructs the hearing. The 
administrative judge shall receive into evidence information or 
documents relevant to the complaint. Rules of evidence shall not be 
applied strictly, but the administrative judge shall exclude irrelevant 
or repetitious evidence. The administrative judge or the Commission may 
refer to the Disciplinary Committee of the appropriate Bar Association 
any attorney or, upon reasonable notice and an opportunity to be heard, 
suspend or disqualify from representing complainants or agencies in EEOC 
hearings any representative who refuses to follow the orders of an 
administrative judge, or who otherwise engages in improper conduct.
    (f) Procedures. (1) The complainant, an agency, and any employee of 
a Federal agency shall produce such documentary and testimonial evidence 
as the administrative judge deems necessary. The administrative judge 
shall serve all orders to produce evidence on both parties.
    (2) Administrative judges are authorized to administer oaths. 
Statements of witnesses shall be made under oath or affirmation or, 
alternatively, by written statement under penalty of perjury.
    (3) When the complainant, or the agency against which a complaint is 
filed, or its employees fail without good cause shown to respond fully 
and in timely fashion to an order of an administrative judge, or 
requests for the investigative file, for documents, records, comparative 
data, statistics, affidavits, or the attendance of witness(es), the 
administrative judge shall, in appropriate circumstances:
    (i) Draw an adverse inference that the requested information, or the 
testimony of the requested witness, would have reflected unfavorably on 
the party refusing to provide the requested information;
    (ii) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (iii) Exclude other evidence offered by the party failing to produce 
the requested information or witness;
    (iv) Issue a decision fully or partially in favor of the opposing 
party; or
    (v) Take such other actions as appropriate.
    (g) Summary judgment. (1) If a party believes that some or all 
material facts are not in genuine dispute and there is no genuine issue 
as to credibility, the party may, at least 15 days prior to the date of 
the hearing or at such earlier time as required by the administrative 
judge, file a statement with the administrative judge prior to the 
hearing setting forth the fact or facts and referring to the parts of 
the record relied on to support the statement. The statement must 
demonstrate that there is no genuine issue as to any such material fact. 
The party shall serve the statement on the opposing party.
    (2) The opposing party may file an opposition within 15 days of 
receipt of the statement in paragraph (d)(1) of this section. The 
opposition may refer to the record in the case to rebut the statement 
that a fact is not in dispute or may file an affidavit stating that the 
party cannot, for reasons stated, present facts to oppose the request. 
After considering the submissions, the administrative judge may order 
that discovery be permitted on the fact or facts involved, limit the 
hearing to the issues remaining in dispute, issue a decision without a 
hearing or make such other ruling as is appropriate.
    (3) If the administrative judge determines upon his or her own 
initiative that some or all facts are not in genuine dispute, he or she 
may, after giving notice to the parties and providing them an 
opportunity to respond in writing within 15 calendar days, issue an 
order limiting the scope of the hearing or issue a decision without 
holding a hearing.
    (h) Record of hearing. The hearing shall be recorded and the agency 
shall arrange and pay for verbatim transcripts. All documents submitted 
to, and accepted by, the administrative judge at the hearing shall be 
made part of the record of the hearing. If the agency submits a document 
that is accepted, it shall furnish a copy of the document to the 
complainant. If the

[[Page 291]]

complainant submits a document that is accepted, the administrative 
judge shall make the document available to the agency representative for 
reproduction.
    (i) Decisions by administrative judges. Unless the administrative 
judge makes a written determination that good cause exists for extending 
the time for issuing a decision, an administrative judge shall issue a 
decision on the complaint, and shall order appropriate remedies and 
relief where discrimination is found, within 180 days of receipt by the 
administrative judge of the complaint file from the agency. The 
administrative judge shall send copies of the hearing record, including 
the transcript, and the decision to the parties. If an agency does not 
issue a final order within 40 days of receipt of the administrative 
judge's decision in accordance with 1614.110, then the decision of the 
administrative judge shall become the final action of the agency.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37657, July 12, 1999; 
77 FR 43505, July 25, 2012]



Sec.  1614.110  Final action by agencies.

    (a) Final action by an agency following a decision by an 
administrative judge. When an administrative judge has issued a decision 
under Sec.  1614.109(b), (g) or (i), the agency shall take final action 
on the complaint by issuing a final order within 40 days of receipt of 
the hearing file and the administrative judge's decision. The final 
order shall notify the complainant whether or not the agency will fully 
implement the decision of the administrative judge and shall contain 
notice of the complainant's right to appeal to the Equal Employment 
Opportunity Commission, the right to file a civil action in federal 
district court, the name of the proper defendant in any such lawsuit and 
the applicable time limits for appeals and lawsuits. If the final order 
does not fully implement the decision of the administrative judge, then 
the agency shall simultaneously file an appeal in accordance with Sec.  
1614.403 and append a copy of the appeal to the final order. A copy of 
EEOC Form 573 shall be attached to the final order.
    (b) Final action by an agency in all other circumstances. When an 
agency dismisses an entire complaint under Sec.  1614.107, receives a 
request for an immediate final decision or does not receive a reply to 
the notice issued under Sec.  1614.108(f), the agency shall take final 
action by issuing a final decision. The final decision shall consist of 
findings by the agency on the merits of each issue in the complaint, or, 
as appropriate, the rationale for dismissing any claims in the complaint 
and, when discrimination is found, appropriate remedies and relief in 
accordance with subpart E of this part. The agency shall issue the final 
decision within 60 days of receiving notification that a complainant has 
requested an immediate decision from the agency, or within 60 days of 
the end of the 30-day period for the complainant to request a hearing or 
an immediate final decision where the complainant has not requested 
either a hearing or a decision. The final action shall contain notice of 
the right to appeal the final action to the Equal Employment Opportunity 
Commission, the right to file a civil action in federal district court, 
the name of the proper defendant in any such lawsuit and the applicable 
time limits for appeals and lawsuits. A copy of EEOC Form 573 shall be 
attached to the final action.

[64 FR 37657, July 12, 1999]



        Subpart B_Provisions Applicable to Particular Complaints



Sec.  1614.201  Age Discrimination in Employment Act.

    (a) As an alternative to filing a complaint under this part, an 
aggrieved individual may file a civil action in a United States district 
court under the ADEA against the head of an alleged discriminating 
agency after giving the Commission not less than 30 days' notice of the 
intent to file such an action. Such notice must be filed in writing with 
EEOC, at P.O. Box 77960, Washington, DC 20013, or by personal delivery 
or facsimile within 180 days of the occurrence of the alleged unlawful 
practice.
    (b) The Commission may exempt a position from the provisions of the 
ADEA if the Commission establishes a maximum age requirement for the 
position on the basis of a determination

[[Page 292]]

that age is a bona fide occupational qualification necessary to the 
performance of the duties of the position.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37658, July 12, 1999; 
74 FR 3430, Jan. 21, 2009; 85 FR 35561, June 11, 2020]



Sec.  1614.202  Equal Pay Act.

    (a) In its enforcement of the Equal Pay Act, the Commission has the 
authority to investigate an agency's employment practices on its own 
initiative at any time in order to determine compliance with the 
provisions of the Act. The Commission will provide notice to the agency 
that it will be initiating an investigation.
    (b) Complaints alleging violations of the Equal Pay Act shall be 
processed under this part.



Sec.  1614.203  Rehabilitation Act.

    (a) Definitions. The following definitions apply for purposes of 
this section:
    (1) The term ADA means title I of the Americans with Disabilities 
Act of 1990, as amended (42 U.S.C. 12101 through 12117), title V of the 
Americans with Disabilities Act, as amended (42 U.S.C. 12201 through 
12213), as it applies to employment, and the regulations of the Equal 
Employment Opportunity Commission implementing titles I and V of the ADA 
at part 1630 of this chapter.
    (2) The term disability means disability as defined under Sec.  
1630.2(g) through (l) of this chapter.
    (3) The term hiring authority that takes disability into account 
means a hiring authority that permits an agency to consider disability 
status during the hiring process, including the hiring authority for 
individuals with intellectual disabilities, severe physical 
disabilities, or psychiatric disabilities, as set forth at 5 CFR 
213.3102(u); the Veterans' Recruitment Appointment authority, as set 
forth at 5 CFR part 307; and the 30% or More Disabled Veteran authority, 
as set forth at 5 CFR 316.302(b)(4), 316.402(b)(4).
    (4) The term personal assistance service provider means an employee 
or independent contractor whose primary job functions include provision 
of personal assistance services.
    (5) The term personal assistance services means assistance with 
performing activities of daily living that an individual would typically 
perform if he or she did not have a disability, and that is not 
otherwise required as a reasonable accommodation, including, for 
example, assistance with removing and putting on clothing, eating, and 
using the restroom.
    (6) The term Plan means an affirmative action plan for the hiring, 
placement, and advancement of individuals with disabilities, as required 
under 29 U.S.C. 791(b).
    (7) The term Schedule A hiring authority for persons with certain 
disabilities means the hiring authority for individuals with 
intellectual disabilities, severe physical disabilities, or psychiatric 
disabilities, as set forth at 5 CFR 213.3102(u).
    (8) The term Section 501 means section 501 of the Rehabilitation Act 
of 1973, as amended (29 U.S.C. 791).
    (9) The term targeted disability means a disability that is 
designated as a ``targeted disability or health condition'' on the 
Office of Personnel Management's Standard Form 256 or that falls under 
one of the first 12 categories of disability listed in Part A of 
question 5 of the Equal Employment Opportunity Commission's Demographic 
Information on Applicants form.
    (10) The term undue hardship has the meaning set forth in part 1630 
of this chapter.
    (b) Nondiscrimination. Federal agencies shall not discriminate on 
the basis of disability in regard to the hiring, advancement or 
discharge of employees, employee compensation, job training, or other 
terms, conditions, and privileges of employment. The standards used to 
determine whether Section 501 has been violated in a complaint alleging 
employment discrimination under this part shall be the standards applied 
under the ADA.
    (c) Model employer. The Federal Government shall be a model employer 
of individuals with disabilities. Agencies shall give full consideration 
to the hiring, advancement, and retention of qualified individuals with 
disabilities in the federal workforce. Agencies shall also take 
affirmative action to promote the recruitment, hiring, and advancement 
of qualified individuals with disabilities, with the goal of

[[Page 293]]

eliminating under-representation of individuals with disabilities in the 
federal workforce.
    (d) Affirmative action plan. Pursuant to 29 U.S.C. 791, each agency 
shall adopt and implement a Plan that provides sufficient assurances, 
procedures, and commitments to provide adequate hiring, placement, and 
advancement opportunities for individuals with disabilities at all 
levels of federal employment. An agency fails to satisfy this 
requirement unless it has adopted and implemented a Plan that meets the 
following criteria:
    (1) Disability hiring and advancement program--(i) Recruitment. The 
Plan shall require the agency to take specific steps to ensure that a 
broad range of individuals with disabilities, including individuals with 
targeted disabilities, will be aware of and be encouraged to apply for 
job vacancies when eligible. Such steps shall include, at a minimum--
    (A) Use of programs and resources that identify job applicants with 
disabilities, including individuals with targeted disabilities, who are 
eligible to be appointed under a hiring authority that takes disability 
into account, consistent with applicable OPM regulations, examples of 
which could include programs that provide the qualifications necessary 
for particular positions within the agency to individuals with 
disabilities, databases of individuals with disabilities who previously 
applied to the agency but were not hired for the positions they applied 
for, and training and internship programs that lead directly to 
employment for individuals with disabilities; and
    (B) Establishment and maintenance of contacts (which may include 
formal agreements) with organizations that specialize in providing 
assistance to individuals with disabilities, including individuals with 
targeted disabilities, in securing and maintaining employment, such as 
American Job Centers, State Vocational Rehabilitation Agencies, the 
Veterans' Vocational Rehabilitation and Employment Program, Centers for 
Independent Living, and Employment Network service providers.
    (ii) Application process. The Plan shall ensure that the agency has 
designated sufficient staff to handle any disability-related issues that 
arise during the application and selection processes, and shall require 
the agency to provide such individuals with sufficient training, 
support, and other resources to carry out their responsibilities under 
this section. Such responsibilities shall include, at a minimum--
    (A) Ensuring that disability-related questions from members of the 
public regarding the agency's application and selection processes are 
answered promptly and correctly, including questions about reasonable 
accommodations needed by job applicants during the application and 
selection processes and questions about how individuals may apply for 
appointment under hiring authorities that take disability into account;
    (B) Processing requests for reasonable accommodations needed by job 
applicants during the application and placement processes, and ensuring 
that the agency provides such accommodations when required to do so 
under the standards set forth in part 1630 of this chapter;
    (C) Accepting applications for appointment under hiring authorities 
that take disability into account, consistent with applicable OPM 
regulations;
    (D) If an individual has applied for appointment to a particular 
position under a hiring authority that takes disability into account, 
determining whether the individual is eligible for appointment under 
such authority, and, if so, forwarding the individual's application to 
the relevant hiring officials with an explanation of how and when the 
individual may be appointed, consistent with all applicable laws;
    (E) Overseeing any other agency programs designed to increase hiring 
of individuals with disabilities.
    (iii) Advancement program. The Plan shall require the agency to take 
specific steps to ensure that current employees with disabilities have 
sufficient opportunities for advancement. Such steps may include, for 
example--
    (A) Efforts to ensure that employees with disabilities are informed 
of and have opportunities to enroll in relevant training, including 
management training when eligible;

[[Page 294]]

    (B) Development or maintenance of a mentoring program for employees 
with disabilities; and
    (C) Administration of exit interviews that include questions on how 
the agency could improve the recruitment, hiring, inclusion, and 
advancement of individuals with disabilities.
    (2) Disability anti-harassment policy. The Plan shall require the 
agency to state specifically in its anti-harassment policy that 
harassment based on disability is prohibited, and to include in its 
training materials examples of the types of conduct that would 
constitute disability-based harassment.
    (3) Reasonable accommodation--(i) Procedures. The Plan shall require 
the agency to adopt, post on its public Web site, and make available to 
all job applicants and employees in written and accessible formats, 
reasonable accommodation procedures that are easy to understand and 
that, at a minimum--
    (A) Explain relevant terms such as ``reasonable accommodation,'' 
``disability,'' ``interactive process,'' ``qualified,'' and ``undue 
hardship,'' consistent with applicable statutory and regulatory 
definitions, using examples where appropriate;
    (B) Explain that reassignment to a vacant position for which an 
employee is qualified, and not just permission to compete for such 
position, is a reasonable accommodation, and that the agency must 
consider providing reassignment to a vacant position as a reasonable 
accommodation when it determines that no other reasonable accommodation 
will permit an employee with a disability to perform the essential 
functions of his or her current position;
    (C) Notify supervisors and other relevant agency employees how and 
where they are to conduct searches for available vacancies when 
considering reassignment as a reasonable accommodation;
    (D) Explain that an individual may request a reasonable 
accommodation orally or in writing at any time, need not fill out any 
specific form in order for the interactive process to begin, and need 
not have a particular accommodation in mind before making a request, and 
that the request may be made to a supervisor or manager in the 
individual's chain of command, the office designated by the agency to 
oversee the reasonable accommodation process, any agency employee 
connected with the application process, or any other individual 
designated by the agency to accept such requests;
    (E) Include any forms the agency uses in connection with a 
reasonable accommodation request as attachments, and indicate that such 
forms are available in alternative formats that are accessible to people 
with disabilities;
    (F) Describe the agency's process for determining whether to provide 
a reasonable accommodation, including the interactive process, and 
provide contact information for the individual or program office from 
whom requesters will receive a final decision;
    (G) Provide guidance to supervisors on how to recognize requests for 
reasonable accommodation;
    (H) Require that decision makers communicate, early in the 
interactive process and periodically throughout the process, with 
individuals who have requested a reasonable accommodation;
    (I) Explain when the agency may require an individual who requests a 
reasonable accommodation to provide medical information that is 
sufficient to explain the nature of the individual's disability, his or 
her need for reasonable accommodation, and how the requested 
accommodation, if any, will assist the individual to apply for a job, 
perform the essential functions of a job, or enjoy the benefits and 
privileges of the workplace;
    (J) Explain the agency's right to request relevant supplemental 
medical information if the information submitted by the requester is 
insufficient for the purposes specified in paragraph (d)(3)(i)(I) of 
this section;
    (K) Explain the agency's right to have medical information reviewed 
by a medical expert of the agency's choosing at the agency's expense;
    (L) Explain the agency's obligation to keep medical information 
confidential, in accordance with applicable laws and regulations, and 
the limited circumstances under which such information may be disclosed;

[[Page 295]]

    (M) Designate the maximum amount of time the agency has, absent 
extenuating circumstances, to either provide a requested accommodation 
or deny the request, and explain that the time limit begins to run when 
the accommodation is first requested;
    (N) Explain that the agency will not be expected to adhere to its 
usual timelines if an individual's health professional fails to provide 
needed documentation in a timely manner;
    (O) Explain that, where a particular reasonable accommodation can be 
provided in less than the maximum amount of time permitted under 
paragraph (d)(3)(i)(M) of this section, failure to provide the 
accommodation in a prompt manner may result in a violation of the 
Rehabilitation Act;
    (P) Provide for expedited processing of requests for reasonable 
accommodations that are needed sooner than the maximum allowable time 
frame permitted under paragraph (d)(3)(i)(M) of this section;
    (Q) Explain that, when all the facts and circumstances known to the 
agency make it reasonably likely that an individual will be entitled to 
a reasonable accommodation, but the accommodation cannot be provided 
immediately, the agency shall provide an interim accommodation that 
allows the individual to perform some or all of the essential functions 
of his or her job, if it is possible to do so without imposing undue 
hardship on the agency;
    (R) Inform applicants and employees how they may track the 
processing of requests for reasonable accommodation;
    (S) Explain that, where there is a delay in either processing a 
request for or providing a reasonable accommodation, the agency must 
notify the individual of the reason for the delay, including any 
extenuating circumstances that justify the delay;
    (T) Explain that individuals who have been denied reasonable 
accommodations have the right to file complaints pursuant to 29 CFR 
1614.106;
    (U) Encourage the use of voluntary informal dispute resolution 
processes that individuals may use to obtain prompt reconsideration of 
denied requests for reasonable accommodation;
    (V) Provide that the agency shall give the requester a notice 
consistent with the requirements of paragraph (d)(3)(iii) of this 
section at the time a request for reasonable accommodation is denied; 
and
    (W) Provide information on how to access additional information 
regarding reasonable accommodation, including, at a minimum, Commission 
guidance and technical assistance documents.
    (ii) Cost of accommodations. The Plan shall require the agency to 
take specific steps to ensure that requests for reasonable accommodation 
are not denied for reasons of cost, and that individuals with 
disabilities are not excluded from employment due to the anticipated 
cost of a reasonable accommodation, if the resources available to the 
agency as a whole, excluding those designated by statute for a specific 
purpose that does not include reasonable accommodation, would enable it 
to provide an effective reasonable accommodation without undue hardship. 
Such steps shall be reasonably designed to, at a minimum--
    (A) Ensure that anyone who is authorized to grant or deny requests 
for reasonable accommodation or to make hiring decisions is aware that, 
pursuant to the regulations implementing the undue hardship defense at 
29 CFR part 1630, all resources available to the agency as a whole, 
excluding those designated by statute for a specific purpose that does 
not include reasonable accommodation, are considered when determining 
whether a denial of reasonable accommodation based on cost is lawful; 
and
    (B) Ensure that anyone authorized to grant or deny requests for 
reasonable accommodation or to make hiring decisions is aware of, and 
knows how to arrange for the use of, agency resources available to 
provide the accommodation, including any centralized fund the agency may 
have for that purpose.
    (iii) Notification of basis for denial. The Plan shall require the 
agency to provide a job applicant or employee who is denied a reasonable 
accommodation with a written notice at the time of the denial, in an 
accessible format when requested, that--

[[Page 296]]

    (A) Explains the reasons for the denial and notifies the job 
applicant or employee of any available internal appeal or informal 
dispute resolution processes;
    (B) Informs the job applicant or employee of the right to challenge 
the denial by filing a complaint of discrimination under this part;
    (C) Provides instructions on how to file such a complaint; and
    (D) Explains that, pursuant to 29 CFR 1614.105, the right to file a 
complaint will be lost unless the job applicant or employee initiates 
contact with an EEO Counselor within 45 days of the denial, regardless 
of whether the applicant or employee participates in an informal dispute 
resolution process.
    (4) Accessibility of facilities and technology--(i) Notice of 
rights. The Plan shall require the agency to adopt, post on its public 
Web site, and make available to all employees in written and accessible 
formats, a notice that--
    (A) Explains their rights under Section 508 of the Rehabilitation 
Act of 1973, 29 U.S.C. 794d, concerning the accessibility of agency 
technology, and the Architectural Barriers Act, 42 U.S.C. 4151 through 
4157, concerning the accessibility of agency building and facilities;
    (B) Provides contact information for an agency employee who is 
responsible for ensuring the physical accessibility of the agency's 
facilities under the Architectural Barriers Act of 1968, and an agency 
employee who is responsible for ensuring that the electronic and 
information technology purchased, maintained, or used by the agency is 
readily accessible to, and usable by, individuals with disabilities, as 
required by Section 508 of the Rehabilitation Act of 1973; and
    (C) Provides instructions on how to file complaints alleging 
violations of the accessibility requirements of the Architectural 
Barriers Act of 1968 and Section 508 of the Rehabilitation Act of 1973.
    (ii) Assistance with filing complaints at other agencies. If an 
agency's investigation of a complaint filed under Section 508 of the 
Rehabilitation Act of 1973 or the Architectural Barriers Act of 1968 
shows that a different entity is responsible for the alleged violation, 
the Plan shall require the agency to inform the individual who filed the 
complaint where he or she may file a complaint against the other entity, 
if possible.
    (5) Personal assistance services allowing employees to participate 
in the workplace--(i) Obligation to provide personal assistance 
services. The Plan shall require the agency to provide an employee with, 
in addition to professional services required as a reasonable 
accommodation under the standards set forth in part 1630 of this 
chapter, personal assistance services during work hours and job-related 
travel if--
    (A) The employee requires such services because of a targeted 
disability;
    (B) Provision of such services would, together with any reasonable 
accommodations required under the standards set forth in part 1630 of 
this chapter, enable the employee to perform the essential functions of 
his or her position; and
    (C) Provision of such services would not impose undue hardship on 
the agency.
    (ii) Service providers. The Plan shall state that personal 
assistance services required under paragraph (d)(5)(i) of this section 
must be performed by a personal assistance service provider. The Plan 
may permit the agency to require personal assistance service providers 
to provide personal assistance services to more than one individual. The 
Plan may also permit the agency to require personal assistance service 
providers to perform tasks unrelated to personal assistance services, 
but only to the extent that doing so does not result in failure to 
provide personal assistance services required under paragraph (d)(5)(i) 
of this section in a timely manner.
    (iii) No adverse action. The Plan shall prohibit the agency from 
taking adverse actions against job applicants or employees based on 
their need for, or perceived need for, personal assistance services.
    (iv) Selection of personal assistance service providers. The Plan 
shall require the agency, when selecting someone who will provide 
personal assistance services to a single individual, to give primary 
consideration to the individual's preferences to the extent permitted by 
law.

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    (v) Written procedures. The Plan shall require the agency to adopt, 
post on its public Web site, and make available to all job applicants 
and employees in written and accessible formats, procedures for 
processing requests for personal assistance services. An agency may 
satisfy this requirement by stating, in the procedures required under 
paragraph (d)(3)(i) of this section, that the process for requesting 
personal assistance services, the process for determining whether such 
services are required, and the agency's right to deny such requests when 
provision of the services would pose an undue hardship, are the same as 
for reasonable accommodations.
    (6) Utilization analysis--(i) Current utilization. The Plan shall 
require the agency to perform a workforce analysis annually to determine 
the percentage of its employees at each grade and salary level who have 
disabilities, and the percentage of its employees at each grade and 
salary level who have targeted disabilities.
    (ii) Source of data. For purposes of the analysis required under 
paragraph (d)(6)(i) of this section, an employee may be classified as an 
individual with a disability or an individual with a targeted disability 
on the basis of--
    (A) The individual's self-identification as an individual with a 
disability or an individual with a targeted disability on a form, 
including but not limited to the Office of Personnel Management's 
Standard Form 256, which states that the information collected will be 
kept confidential and used only for statistical purposes, and that 
completion of the form is voluntary;
    (B) Records relating to the individual's appointment under a hiring 
authority that takes disability into account, if applicable; and
    (C) Records relating to the individual's requests for reasonable 
accommodation, if any.
    (iii) Data accuracy. The Plan shall require the agency to take steps 
to ensure that data collected pursuant to paragraph (d)(6)(i) of this 
section are accurate.
    (7) Goals--(i) Adoption. The Plan shall commit the agency to the 
goal of ensuring that--
    (A) No less than 12% of employees at the GS-11 level and above, 
together with employees who are not paid under the General Schedule but 
who have salaries equal to or greater than employees at the GS-11, step 
1 level in the Washington, DC locality, are individuals with 
disabilities;
    (B) No less than 12% of employees at the GS-10 level and below, 
together with employees who are not paid under the General Schedule but 
who have salaries less than employees at the GS-11, step 1 level in the 
Washington, DC locality, are individuals with disabilities;
    (C) No less than 2% of employees at the GS-11 level and above, 
together with employees who are not paid under the General Schedule but 
who have salaries equal to or greater than employees at the GS-11, step 
1 level in the Washington, DC locality, are individuals with targeted 
disabilities; and
    (D) No less than 2% of employees at the GS-10 level and below, 
together with employees who are not paid under the General Schedule but 
who have salaries less than employees at the GS-11, step 1 level in the 
Washington, DC locality, are individuals with targeted disabilities.
    (ii) Progression toward goals. The Plan shall require the agency to 
take specific steps that are reasonably designed to gradually increase 
the number of persons with disabilities or targeted disabilities 
employed at the agency until it meets the goals established pursuant to 
paragraph (d)(7)(i) of this section. Examples of such steps include, but 
are not limited to--
    (A) Increased use of hiring authorities that take disability into 
account to hire or promote individuals with disabilities or targeted 
disabilities, as applicable;
    (B) To the extent permitted by applicable laws, consideration of 
disability or targeted disability status as a positive factor in hiring, 
promotion, or assignment decisions;
    (C) Disability-related training and education campaigns for all 
employees in the agency;
    (D) Additional outreach or recruitment efforts;
    (E) Increased efforts to hire and retain individuals who require 
supported employment because of a disability,

[[Page 298]]

who have retained the services of a job coach at their own expense or at 
the expense of a third party, and who may be given permission to use the 
job coach during work hours as a reasonable accommodation without 
imposing undue hardship on the agency; and
    (F) Adoption of training, mentoring, or internship programs for 
individuals with disabilities.
    (8) Recordkeeping. The Plan shall require the agency to keep records 
that it may use to determine whether it is complying with the 
nondiscrimination and affirmative action requirements imposed under 
Section 501, and to make such records available to the Commission upon 
the Commission's request, including, at a minimum, records of--
    (i) The number of job applications received from individuals with 
disabilities, and the number of individuals with disabilities who were 
hired by the agency;
    (ii) The number of job applications received from individuals with 
targeted disabilities, and the number of individuals with targeted 
disabilities who were hired by the agency;
    (iii) All rescissions of conditional job offers, demotions, and 
terminations taken against applicants or employees as a result of 
medical examinations or inquiries;
    (iv) All agency employees hired under the Schedule A hiring 
authority for persons with certain disabilities, and each such 
employee's date of hire, entering grade level, probationary status, and 
current grade level;
    (v) The number of employees appointed under the Schedule A hiring 
authority for persons with certain disabilities who have been converted 
to career or career-conditional appointments in the competitive service, 
and the number of such employees who were terminated prior to being 
converted to a career or career-conditional appointment in the 
competitive service; and
    (vi) Details about each request for reasonable accommodation 
including, at a minimum--
    (A) The specific reasonable accommodation requested, if any;
    (B) The job (occupational series, grade level, and agency component) 
sought by the requesting applicant or held by the requesting employee;
    (C) Whether the accommodation was needed to apply for a job, perform 
the essential functions of a job, or enjoy the benefits and privileges 
of employment;
    (D) Whether the request was granted (which may include an 
accommodation different from the one requested) or denied;
    (E) The identity of the deciding official;
    (F) If denied, the basis for such denial; and
    (G) The number of days taken to process the request.
    (e) Reporting--(1) Submission to the Commission. On an annual basis, 
each federal agency shall submit to the Commission for approval, at such 
time and in such manner as the Commission deems appropriate--
    (i) A copy of its current Plan;
    (ii) The results of the two most recent workforce analyses performed 
pursuant to paragraph (d)(6) of this section showing the percentage of 
employees with disabilities and employees with targeted disabilities in 
each of the designated pay groups;
    (iii) The number of individuals appointed to positions within the 
agency under the Schedule A hiring authority for persons with certain 
disabilities during the previous year, and the total number of employees 
whose employment at the agency began by appointment under the Schedule A 
hiring authority for persons with certain disabilities; and
    (iv) A list of changes made to the Plan since the prior submission, 
if any, and an explanation of why those changes were made.
    (2) Availability to the public. Each agency shall make the 
information submitted to the Commission pursuant to paragraph (e)(1) of 
this section available to the public by, at a minimum, posting a copy of 
the submission on its public Web site and providing a means by which 
members of the public may request copies of the submission in accessible 
formats.
    (f) Commission approval and disapproval--(1) Basis for approval. If 
the Commission determines that an agency has adopted and implemented a 
Plan

[[Page 299]]

that meets the requirements set forth in paragraph (d) of this section, 
the Commission shall approve the Plan.
    (2) Basis for disapproval. If the Commission determines that an 
agency has failed to adopt and implement a Plan that meets the 
requirements set forth in paragraph (d) of this section, the Commission 
shall disapprove the Plan as required by 29 U.S.C. 791(b). Failure to 
achieve a goal set forth in paragraph (d)(7)(i) of this section, by 
itself, is not grounds for disapproval unless the Plan fails to require 
the agency to take specific steps that are reasonably designed to 
achieve the goal.

[82 FR 677, Jan. 3, 2017]



Sec.  1614.204  Class complaints.

    (a) Definitions. (1) A class is a group of employees, former 
employees or applicants for employment who, it is alleged, have been or 
are being adversely affected by an agency personnel management policy or 
practice that discriminates against the group on the basis of their 
race, color, religion, sex, national origin, age, disability, or genetic 
information.
    (2) A class complaint is a written complaint of discrimination filed 
on behalf of a class by the agent of the class alleging that:
    (i) The class is so numerous that a consolidated complaint of the 
members of the class is impractical;
    (ii) There are questions of fact common to the class;
    (iii) The claims of the agent of the class are typical of the claims 
of the class;
    (iv) The agent of the class, or, if represented, the representative, 
will fairly and adequately protect the interests of the class.
    (3) An agent of the class is a class member who acts for the class 
during the processing of the class complaint.
    (b) Pre-complaint processing. An employee or applicant who wishes to 
file a class complaint must seek counseling and be counseled in 
accordance with Sec.  1614.105. A complainant may move for class 
certification at any reasonable point in the process when it becomes 
apparent that there are class implications to the claim raised in an 
individual complaint. If a complainant moves for class certification 
after completing the counseling process contained in Sec.  1614.105, no 
additional counseling is required. The administrative judge shall deny 
class certification when the complainant has unduly delayed in moving 
for certification.
    (c) Filing and presentation of a class complaint. (1) A class 
complaint must be signed by the agent or representative and must 
identify the policy or practice adversely affecting the class as well as 
the specific action or matter affecting the class agent.
    (2) The complaint must be filed with the agency that allegedly 
discriminated not later than 15 days after the agent's receipt of the 
notice of right to file a class complaint.
    (3) The complaint shall be processed promptly; the parties shall 
cooperate and shall proceed at all times without undue delay.
    (d) Acceptance or dismissal. (1) Within 30 days of an agency's 
receipt of a complaint, the agency shall: Designate an agency 
representative who shall not be any of the individuals referenced in 
Sec.  1614.102(b)(3), and forward the complaint, along with a copy of 
the Counselor's report and any other information pertaining to 
timeliness or other relevant circumstances related to the complaint, to 
the Commission. The Commission shall assign the complaint to an 
administrative judge or complaints examiner with a proper security 
clearance when necessary. The administrative judge may require the 
complainant or agency to submit additional information relevant to the 
complaint.
    (2) The administrative judge may dismiss the complaint, or any 
portion, for any of the reasons listed in Sec.  1614.107 or because it 
does not meet the prerequisites of a class complaint under Sec.  
1614.204(a)(2).
    (3) If the allegation is not included in the Counselor's report, the 
administrative judge shall afford the agent 15 days to state whether the 
matter was discussed with the Counselor and, if not, explain why it was 
not discussed. If the explanation is not satisfactory, the 
administrative judge shall dismiss the allegation. If the explanation is 
satisfactory, the administrative judge shall refer the allegation to the 
agency for further counseling of the agent.

[[Page 300]]

After counseling, the allegation shall be consolidated with the class 
complaint.
    (4) If an allegation lacks specificity and detail, the 
administrative judge shall afford the agent 15 days to provide specific 
and detailed information. The administrative judge shall dismiss the 
complaint if the agent fails to provide such information within the 
specified time period. If the information provided contains new 
allegations outside the scope of the complaint, the administrative judge 
shall advise the agent how to proceed on an individual or class basis 
concerning these allegations.
    (5) The administrative judge shall extend the time limits for filing 
a complaint and for consulting with a Counselor in accordance with the 
time limit extension provisions contained in Sec. Sec.  1614.105(a)(2) 
and 1614.604.
    (6) When appropriate, the administrative judge may decide that a 
class be divided into subclasses and that each subclass be treated as a 
class, and the provisions of this section then shall be construed and 
applied accordingly.
    (7) The administrative judge shall transmit his or her decision to 
accept or dismiss a complaint to the agency and the agent. The agency 
shall take final action by issuing a final order within 40 days of 
receipt of the hearing record and administrative judge's decision. The 
final order shall notify the agent whether or not the agency will 
implement the decision of the administrative judge. If the final order 
does not implement the decision of the administrative judge, the agency 
shall simultaneously appeal the administrative judge's decision in 
accordance with Sec.  1614.403 and append a copy of the appeal to the 
final order. A dismissal of a class complaint shall inform the agent 
either that the complaint is being filed on that date as an individual 
complaint of discrimination and will be processed under subpart A or 
that the complaint is also dismissed as an individual complaint in 
accordance with Sec.  1614.107. In addition, it shall inform the agent 
of the right to appeal the dismissal of the class complaint to the Equal 
Employment Opportunity Commission or to file a civil action and shall 
include EEOC Form 573, Notice of Appeal/Petition.
    (e) Notification. (1) Within 15 days of receiving notice that the 
administrative judge has accepted a class complaint or a reasonable time 
frame specified by the administrative judge, the agency shall use 
reasonable means, such as delivery, mailing to last known address or 
distribution, to notify all class members of the acceptance of the class 
complaint.
    (2) Such notice shall contain:
    (i) The name of the agency or organizational segment, its location, 
and the date of acceptance of the complaint;
    (ii) A description of the issues accepted as part of the class 
complaint;
    (iii) An explanation of the binding nature of the final decision or 
resolution of the complaint on class members; and
    (iv) The name, address and telephone number of the class 
representative.
    (f) Obtaining evidence concerning the complaint. (1) The 
administrative judge shall notify the agent and the agency 
representative of the time period that will be allowed both parties to 
prepare their cases. This time period will include at least 60 days and 
may be extended by the administrative judge upon the request of either 
party. Both parties are entitled to reasonable development of evidence 
on matters relevant to the issues raised in the complaint. Evidence may 
be developed through interrogatories, depositions, and requests for 
admissions, stipulations or production of documents. It shall be grounds 
for objection to producing evidence that the information sought by 
either party is irrelevant, overburdensome, repetitious, or privileged.
    (2) If mutual cooperation fails, either party may request the 
administrative judge to rule on a request to develop evidence. If a 
party fails without good cause shown to respond fully and in timely 
fashion to a request made or approved by the administrative judge for 
documents, records, comparative data, statistics or affidavits, and the 
information is solely in the control of one party, such failure may, in 
appropriate circumstances, caused the administrative judge:

[[Page 301]]

    (i) To draw an adverse inference that the requested information 
would have reflected unfavorably on the party refusing to provide the 
requested information;
    (ii) To consider the matters to which the requested information 
pertains to be established in favor of the opposing party;
    (iii) To exclude other evidence offered by the party failing to 
produce the requested information;
    (iv) To recommend that a decision be entered in favor of the 
opposing party; or
    (v) To take such other actions as the administrative judge deems 
appropriate.
    (3) During the period for development of evidence, the 
administrative judge may, in his or her discretion, direct that an 
investigation of facts relevant to the complaint or any portion be 
conducted by an agency certified by the Commission.
    (4) Both parties shall furnish to the administrative judge copies of 
all materials that they wish to be examined and such other material as 
may be requested.
    (g) Opportunity for resolution of the complaint. (1) The 
administrative judge shall furnish the agent and the representative of 
the agency a copy of all materials obtained concerning the complaint and 
provide opportunity for the agent to discuss materials with the agency 
representative and attempt resolution of the complaint.
    (2) The complaint may be resolved by agreement of the agency and the 
agent at any time pursuant to the notice and approval procedure 
contained in paragraph (g)(4) of this section.
    (3) If the complaint is resolved, the terms of the resolution shall 
be reduced to writing and signed by the agent and the agency.
    (4) Notice of the resolution shall be given to all class members in 
the same manner as notification of the acceptance of the class complaint 
and to the administrative judge. It shall state the relief, if any, to 
be granted by the agency and the name and address of the EEOC 
administrative judge assigned to the case. It shall state that within 30 
days of the date of the notice of resolution, any member of the class 
may petition the administrative judge to vacate the resolution because 
it benefits only the class agent, or is otherwise not fair, adequate and 
reasonable to the class as a whole. The administrative judge shall 
review the notice of resolution and consider any petitions to vacate 
filed. If the administrative judge finds that the proposed resolution is 
not fair, adequate and reasonable to the class as a whole, the 
administrative judge shall issue a decision vacating the agreement and 
may replace the original class agent with a petitioner or some other 
class member who is eligible to be the class agent during further 
processing of the class complaint. The decision shall inform the former 
class agent or the petitioner of the right to appeal the decision to the 
Equal Employment Opportunity Commission and include EEOC Form 573, 
Notice of Appeal/Petition. If the administrative judge finds that the 
resolution is fair, adequate and reasonable to the class as a whole, the 
resolution shall bind all members of the class.
    (h) Hearing. On expiration of the period allowed for preparation of 
the case, the administrative judge shall set a date for hearing. The 
hearing shall be conducted in accordance with 29 CFR 1614.109 (a) 
through (f).
    (i) Decisions: The administrative judge shall transmit to the agency 
and class agent a decision on the complaint, including findings, 
systemic relief for the class and any individual relief, where 
appropriate, with regard to the personnel action or matter that gave 
rise to the complaint. If the administrative judge finds no class relief 
appropriate, he or she shall determine if a finding of individual 
discrimination is warranted and, if so, shall order appropriate relief.
    (j) Agency final action. (1) Within 60 days of receipt of the 
administrative judge's decision on the complaint, the agency shall take 
final action by issuing a final order. The final order shall notify the 
class agent whether or not the agency will fully implement the decision 
of the administrative judge and shall contain notice of the class 
agent's right to appeal to the Equal Employment Opportunity Commission, 
the right to file a civil action in federal district court, the name of

[[Page 302]]

the proper defendant in any such lawsuit, and the applicable time limits 
for appeals and lawsuits. If the final order does not fully implement 
the decision of the administrative judge, then the agency shall 
simultaneously file an appeal in accordance with Sec.  1614.403 and 
append a copy of the appeal to the final order. A copy of EEOC Form 573 
shall be attached to the final order.
    (2) If an agency does not issue a final order within 60 days of 
receipt of the administrative judge's decision, then the decision of the 
administrative judge shall become the final action of the agency.
    (3) A final order on a class complaint shall, subject to subpart D 
of this part, be binding on all members of the class and the agency.
    (k) Notification of final action: The agency shall notify class 
members of the final action and relief awarded, if any, through the same 
media employed to give notice of the existence of the class complaint. 
The notice, where appropriate, shall include information concerning the 
rights of class members to seek individual relief, and of the procedures 
to be followed. Notice shall be given by the agency within 10 days of 
the transmittal of the final action to the agent.
    (l) Relief for individual class members. (1) When discrimination is 
found, an agency must eliminate or modify the employment policy or 
practice out of which the complaint arose and provide individual relief, 
including an award of attorney's fees and costs, to the agent in 
accordance with Sec.  1614.501.
    (2) When class-wide discrimination is not found, but it is found 
that the class agent is a victim of discrimination, Sec.  1614.501 shall 
apply. The agency shall also, within 60 days of the issuance of the 
final order finding no class-wide discrimination, issue the 
acknowledgement of receipt of an individual complaint as required by 
Sec.  1614.106(d) and process in accordance with the provisions of 
subpart A of this part, each individual complaint that was subsumed into 
the class complaint.
    (3) When discrimination is found in the final order and a class 
member believes that he or she is entitled to individual relief, the 
class member may file a written claim with the head of the agency or its 
EEO Director within 30 days of receipt of notification by the agency of 
its final order. Administrative judges shall retain jurisdiction over 
the complaint in order to resolve any disputed claims by class members. 
The claim must include a specific detailed showing that the claimant is 
a class member who was affected by the discriminatory policy or 
practice, and that this discriminatory action took place within the 
period of time for which class-wide discrimination was found in the 
final order. Where a finding of discrimination against a class has been 
made, there shall be a presumption of discrimination as to each member 
of the class. The agency must show by clear and convincing evidence that 
any class member is not entitled to relief. The administrative judge may 
hold a hearing or otherwise supplement the record on a claim filed by a 
class member. The agency or the Commission may find class-wide 
discrimination and order remedial action for any policy or practice in 
existence within 45 days of the agent's initial contact with the 
Counselor. Relief otherwise consistent with this part may be ordered for 
the time the policy or practice was in effect. The agency shall issue a 
final order on each such claim within 90 days of filing. Such decision 
must include a notice of the right to file an appeal or a civil action 
in accordance with subpart D of this part and the applicable time 
limits.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37658, July 12, 1999; 
74 FR 63984, Dec. 7, 2009; 77 FR 43505, July 25, 2012]



                       Subpart C_Related Processes



Sec.  1614.301  Relationship to negotiated grievance procedure.

    (a) When a person is employed by an agency subject to 5 U.S.C. 
7121(d) and is covered by a collective bargaining agreement that permits 
allegations of discrimination to be raised in a negotiated grievance 
procedure, a person wishing to file a complaint or a grievance on a 
matter of alleged employment discrimination must elect to raise the 
matter under either part 1614 or the negotiated grievance procedure, but 
not both. An election to proceed under this part is indicated only by 
the

[[Page 303]]

filing of a written complaint; use of the pre-complaint process as 
described in Sec.  1614.105 does not constitute an election for purposes 
of this section. An aggrieved employee who files a complaint under this 
part may not thereafter file a grievance on the same matter. An election 
to proceed under a negotiated grievance procedure is indicated by the 
filing of a timely written grievance. An aggrieved employee who files a 
grievance with an agency whose negotiated agreement permits the 
acceptance of grievances which allege discrimination may not thereafter 
file a complaint on the same matter under this part 1614 irrespective of 
whether the agency has informed the individual of the need to elect or 
of whether the grievance has raised an issue of discrimination. Any such 
complaint filed after a grievance has been filed on the same matter 
shall be dismissed without prejudice to the complainant's right to 
proceed through the negotiated grievance procedure including the right 
to appeal to the Commission from a final decision as provided in subpart 
D of this part. The dismissal of such a complaint shall advise the 
complainant of the obligation to raise discrimination in the grievance 
process and of the right to appeal the final grievance decision to the 
Commission.
    (b) When a person is not covered by a collective bargaining 
agreement that permits allegations of discrimination to be raised in a 
negotiated grievance procedure, allegations of discrimination shall be 
processed as complaints under this part.
    (c) When a person is employed by an agency not subject to 5 U.S.C 
7121(d) and is covered by a negotiated grievance procedure, allegations 
of discrimination shall be processed as complaints under this part, 
except that the time limits for processing the complaint contained in 
Sec.  1614.106 and for appeal to the Commission contained in Sec.  
1614.402 may be held in abeyance during processing of a grievance 
covering the same matter as the complaint if the agency notifies the 
complainant in writing that the complaint will be held in abeyance 
pursuant to this section.



Sec.  1614.302  Mixed case complaints.

    (a) Definitions--(1) Mixed case complaint. A mixed case complaint is 
a complaint of employment discrimination filed with a federal agency 
based on race, color, religion, sex, national origin, age, disability, 
or genetic information related to or stemming from an action that can be 
appealed to the Merit Systems Protection Board (MSPB). The complaint may 
contain only an allegation of employment discrimination or it may 
contain additional allegations that the MSPB has jurisdiction to 
address.
    (2) Mixed case appeals. A mixed case appeal is an appeal filed with 
the MSPB that alleges that an appealable agency action was effected, in 
whole or in part, because of discrimination on the basis of race, color, 
religion, sex, national origin, disability, age, or genetic information.
    (b) Election. An aggrieved person may initially file a mixed case 
complaint with an agency pursuant to this part or an appeal on the same 
matter with the MSPB pursuant to 5 CFR 1201.151, but not both. An agency 
shall inform every employee who is the subject of an action that is 
appealable to the MSPB and who has either orally or in writing raised 
the issue of discrimination during the processing of the action of the 
right to file either a mixed case complaint with the agency or to file a 
mixed case appeal with the MSPB. The person shall be advised that he or 
she may not initially file both a mixed case complaint and an appeal on 
the same matter and that whichever is filed first shall be considered an 
election to proceed in that forum. If a person files a mixed case appeal 
with the MSPB instead of a mixed case complaint and the MSPB dismisses 
the appeal for jurisdictional reasons, the agency shall promptly notify 
the individual in writing of the right to contact an EEO counselor 
within 45 days of receipt of this notice and to file an EEO complaint, 
subject to Sec.  1614.107. The date on which the person filed his or her 
appeal with MSPB shall be deemed to be the date of initial contact with 
the counselor. If a person files a timely appeal with MSPB from the 
agency's processing of a mixed case complaint and the MSPB dismisses it

[[Page 304]]

for jurisdictional reasons, the agency shall reissue a notice under 
Sec.  1614.108(f) giving the individual the right to elect between a 
hearing before an administrative judge and an immediate final decision.
    (c) Dismissal. (1) An agency may dismiss a mixed case complaint for 
the reasons contained in, and under the conditions prescribed in, Sec.  
1614.107.
    (2) An agency decision to dismiss a mixed case complaint on the 
basis of the complainant's prior election of the MSPB procedures shall 
be made as follows:
    (i) Where neither the agency nor the MSPB administrative judge 
questions the MSPB's jurisdiction over the appeal on the same matter, it 
shall dismiss the mixed case complaint pursuant to Sec.  1614.107(a)(4) 
and shall advise the complainant that he or she must bring the 
allegations of discrimination contained in the rejected complaint to the 
attention of the MSPB, pursuant to 5 CFR 1201.155. The dismissal of such 
a complaint shall advise the complainant of the right to petition the 
EEOC to review the MSPB's final decision on the discrimination issue. A 
dismissal of a mixed case complaint is not appealable to the Commission 
except where it is alleged that Sec.  1614.107(a)(4) has been applied to 
a non-mixed case matter.
    (ii) Where the agency or the MSPB administrative judge questions the 
MSPB's jurisdiction over the appeal on the same matter, the agency shall 
hold the mixed case complaint in abeyance until the MSPB's 
administrative judge rules on the jurisdictional issue, notify the 
complainant that it is doing so, and instruct him or her to bring the 
allegation of discrimination to the attention of the MSPB. During this 
period of time, all time limitations for processing or filing under this 
part will be tolled. An agency decision to hold a mixed case complaint 
in abeyance is not appealable to EEOC. If the MSPB's administrative 
judge finds that MSPB has jurisdiction over the matter, the agency shall 
dismiss the mixed case complaint pursuant to Sec.  1614.107(a)(4), and 
advise the complainant of the right to petition the EEOC to review the 
MSPB's final decision on the discrimination issue. If the MSPB's 
administrative judge finds that MSPB does not have jurisdiction over the 
matter, the agency shall recommence processing of the mixed case 
complaint as a non-mixed case EEO complaint.
    (d) Procedures for agency processing of mixed case complaints. When 
a complainant elects to proceed initially under this part rather than 
with the MSPB, the procedures set forth in subpart A shall govern the 
processing of the mixed case complaint with the following exceptions:
    (1) At the time the agency advises a complainant of the acceptance 
of a mixed case complaint, it shall also advise the complainant that:
    (i) If a final decision is not issued within 120 days of the date of 
filing of the mixed case complaint, the complainant may appeal the 
matter to the MSPB at any time thereafter as specified at 5 CFR 
1201.154(b)(2) or may file a civil action as specified at Sec.  
1614.310(g), but not both; and
    (ii) If the complainant is dissatisfied with the agency's final 
decision on the mixed case complaint, the complainant may appeal the 
matter to the MSPB (not EEOC) within 30 days of receipt of the agency's 
final decision;
    (2) Upon completion of the investigation, the notice provided the 
complainant in accordance with Sec.  1614.108(f) will advise the 
complainant that a final decision will be issued within 45 days without 
a hearing; and
    (3) At the time that the agency issues its final decision on a mixed 
case complaint, the agency shall advise the complainant of the right to 
appeal the matter to the MSPB (not EEOC) within 30 days of receipt and 
of the right to file a civil action as provided at Sec.  1614.310(a).

[57 FR 12646, Apr. 10, 1992, as amended at 61 FR 17576, Apr. 22, 1996; 
64 FR 37659, July 12, 1999; 74 FR 63984, Dec. 7, 2009; 77 FR 43505, July 
25, 2012]



Sec.  1614.303  Petitions to the EEOC from MSPB decisions on mixed case 
appeals and complaints.

    (a) Who may file. Individuals who have received a final decision 
from the MSPB on a mixed case appeal or on the appeal of a final 
decision on a mixed case complaint under 5 CFR part 1201, subpart E and 
5 U.S.C. 7702 may petition EEOC to consider that decision.

[[Page 305]]

The EEOC will not accept appeals from MSPB dismissals without prejudice.
    (b) Method of filing. Filing shall be made by certified mail, return 
receipt requested, to the Office of Federal Operations, Equal Employment 
Opportunity Commission, P.O. Box 77960, Washington, DC 20013.
    (c) Time to file. A petition must be filed with the Commission 
either within 30 days of receipt of the final decision of the MSPB or 
within 30 days of when the decision of a MSPB field office becomes 
final.
    (d) Service. The petition for review must be served upon all 
individuals and parties on the MSPB's service list by certified mail on 
or before the filing with the Commission, and the Clerk of the Board, 
MSPB, 1615 M Street, NW., Washington, DC 20419, and the petitioner must 
certify as to the date and method of service.

[74 FR 3430, Jan. 21, 2009, as amended at 77 FR 51470, Aug. 24, 2012]



Sec.  1614.304  Contents of petition.

    (a) Form. Petitions must be written or typed, but may use any format 
including a simple letter format. Petitioners are encouraged to use EEOC 
Form 573, Notice Of Appeal/Petition.
    (b) Contents. Petitions must contain the following:
    (1) The name and address of the petitioner;
    (2) The name and address of the petitioner's representative, if any;
    (3) A statement of the reasons why the decision of the MSPB is 
alleged to be incorrect, in whole or in part, only with regard to issues 
of discrimination based on race, color, religion, sex, national origin, 
age, disability, or genetic information;
    (4) A copy of the decision issued by the MSPB; and
    (5) The signature of the petitioner or representative, if any.

[57 FR 12646, Apr. 10, 1992, as amended at 74 FR 63984, Dec. 7, 2009]



Sec.  1614.305  Consideration procedures.

    (a) Once a petition is filed, the Commission will examine it and 
determine whether the Commission will consider the decision of the MSPB. 
An agency may oppose the petition, either on the basis that the 
Commission should not consider the MSPB's decision or that the 
Commission should concur in the MSPB's decision, by filing any such 
argument with the Office of Federal Operations and serving a copy on the 
petitioner within 15 days of receipt by the Commission.
    (b) The Commission shall determine whether to consider the decision 
of the MSPB within 30 days of receipt of the petition by the 
Commission's Office of Federal Operations. A determination of the 
Commission not to consider the decision shall not be used as evidence 
with respect to any issue of discrimination in any judicial proceeding 
concerning that issue.
    (c) If the Commission makes a determination to consider the 
decision, the Commission shall within 60 days of the date of its 
determination, consider the entire record of the proceedings of the MSPB 
and on the basis of the evidentiary record before the Board as 
supplemented in accordance with paragraph (d) of this section, either:
    (1) Concur in the decision of the MSPB; or
    (2) Issue in writing a decision that differs from the decision of 
the MSPB to the extent that the Commission finds that, as a matter of 
law:
    (i) The decision of the MSPB constitutes an incorrect interpretation 
of any provision of any law, rule, regulation, or policy directive 
referred to in 5 U.S.C. 7702(a)(1)(B); or
    (ii) The decision involving such provision is not supported by the 
evidence in the record as a whole.
    (d) In considering any decision of the MSPB, the Commission, 
pursuant to 5 U.S.C. 7702(b)(4), may refer the case to the MSPB for the 
taking of additional evidence within such period as permits the 
Commission to make a decision within the 60-day period prescribed or 
provide on its own for the taking of additional evidence to the extent 
the Commission considers it necessary to supplement the record.
    (e) Where the EEOC has differed with the decision of the MSPB under 
Sec.  1614.305(c)(2), the Commission shall refer the matter to the MSPB.

[[Page 306]]



Sec.  1614.306  Referral of case to Special Panel.

    If the MSPB reaffirms its decision under 5 CFR 1201.162(a)(2) with 
or without modification, the matter shall be immediately certified to 
the Special Panel established pursuant to 5 U.S.C. 7702(d). Upon 
certification, the Board shall, within five days (excluding Saturdays, 
Sundays, and Federal holidays), transmit to the Chairman of the Special 
Panel and to the Chairman of the EEOC the administrative record in the 
proceeding including--
    (a) The factual record compiled under this section, which shall 
include a transcript of any hearing(s);
    (b) The decisions issued by the Board and the Commission under 5 
U.S.C. 7702; and
    (c) A transcript of oral arguments made, or legal brief(s) filed, 
before the Board and the Commission.



Sec.  1614.307  Organization of Special Panel.

    (a) The Special Panel is composed of:
    (1) A Chairman appointed by the President with the advice and 
consent of the Senate, and whose term is 6 years;
    (2) One member of the MSPB designated by the Chairman of the Board 
each time a panel is convened; and
    (3) One member of the EEOC designated by the Chairman of the 
Commission each time a panel is convened.
    (b) Designation of Special Panel member--(1) Time of designation. 
Within five days of certification of the case to the Special Panel, the 
Chairman of the MSPB and the Chairman of the EEOC shall each designate 
one member from their respective agencies to serve on the Special Panel.
    (2) Manner of designation. Letters of designation shall be served on 
the Chairman of the Special Panel and the parties to the appeal.



Sec.  1614.308  Practices and procedures of the Special Panel.

    (a) Scope. The rules in this subpart apply to proceedings before the 
Special Panel.
    (b) Suspension of rules in this subpart. In the interest of 
expediting a decision, or for good cause shown, the Chairman of the 
Special Panel may, except where the rule in this subpart is required by 
statute, suspend the rules in this subpart on application of a party, or 
on his or her own motion, and may order proceedings in accordance with 
his or her direction.
    (c) Time limit for proceedings. Pursuant to 5 U.S.C. 7702(d)(2)(A), 
the Special Panel shall issue a decision within 45 days of the matter 
being certified to it.
    (d) Administrative assistance to Special Panel. (1) The MSPB and the 
EEOC shall provide the Panel with such reasonable and necessary 
administrative resources as determined by the Chairman of the Special 
Panel.
    (2) Assistance shall include, but is not limited to, processing 
vouchers for pay and travel expenses.
    (3) The Board and the EEOC shall be responsible for all 
administrative costs incurred by the Special Panel and, to the extent 
practicable, shall equally divide the costs of providing such 
administrative assistance. The Chairman of the Special Panel shall 
resolve the manner in which costs are divided in the event of a 
disagreement between the Board and the EEOC.
    (e) Maintenance of the official record. The Board shall maintain the 
official record. The Board shall transmit two copies of each submission 
filed to each member of the Special Panel in an expeditious manner.
    (f) Filing and service of pleadings. (1) The parties shall file the 
original and six copies of all submissions with the Clerk, Merit Systems 
Protection Board, 1120 Vermont Avenue, NW., Washington, DC 20419. One 
copy of each submission shall be served on the other parties.
    (2) A certificate of service specifying how and when service was 
made must accompany all submissions of the parties.
    (3) Service may be by mail or by personal delivery during normal 
business hours (8:15 a.m.-4:45 p.m.). Due to the short statutory time 
limit, parties are required to file their submissions by overnight 
delivery service should they file by mail.
    (4) The date of filing shall be determined by the date of mailing as 
indicated by the order date for the overnight delivery service. If the 
filing is

[[Page 307]]

by personal delivery, it shall be considered filed on that date it is 
received in the office of the Clerk, MSPB.
    (g) Briefs and responsive pleadings. If the parties wish to submit 
written argument, briefs shall be filed with the Special Panel within 15 
days of the date of the Board's certification order. Due to the short 
statutory time limit responsive pleadings will not ordinarily be 
permitted.
    (h) Oral argument. The parties have the right to oral argument if 
desired. Parties wishing to exercise this right shall so indicate at the 
time of filing their brief, or if no brief is filed, within 15 days of 
the date of the Board's certification order. Upon receipt of a request 
for argument, the Chairman of the Special Panel shall determine the time 
and place for argument and the time to be allowed each side, and shall 
so notify the parties.
    (i) Post-argument submissions. Due to the short statutory time 
limit, no post-argument submissions will be permitted except by order of 
the Chairman of the Special Panel.
    (j) Procedural matters. Any procedural matters not addressed in this 
subpart shall be resolved by written order of the Chairman of the 
Special Panel.



Sec.  1614.309  Enforcement of Special Panel decision.

    The Board shall, upon receipt of the decision of the Special Panel, 
order the agency concerned to take any action appropriate to carry out 
the decision of the Panel. The Board's regulations regarding enforcement 
of a final order of the Board shall apply. These regulations are set out 
at 5 CFR part 1201, subpart E.



Sec.  1614.310  Right to file a civil action.

    An individual who has a complaint processed pursuant to 5 CFR part 
1201, subpart E or this subpart is authorized by 5 U.S.C. 7702 to file a 
civil action in an appropriate United States District Court:
    (a) Within 30 days of receipt of a final decision issued by an 
agency on a complaint unless an appeal is filed with the MSPB; or
    (b) Within 30 days of receipt of notice of the final decision or 
action taken by the MSPB if the individual does not file a petition for 
consideration with the EEOC; or
    (c) Within 30 days of receipt of notice that the Commission has 
determined not to consider the decision of the MSPB; or
    (d) Within 30 days of receipt of notice that the Commission concurs 
with the decision of the MSPB; or
    (e) If the Commission issues a decision different from the decision 
of the MSPB, within 30 days of receipt of notice that the MSPB concurs 
in and adopts in whole the decision of the Commission; or
    (f) If the MSPB does not concur with the decision of the Commission 
and reaffirms its initial decision or reaffirms its initial decision 
with a revision, within 30 days of the receipt of notice of the decision 
of the Special Panel; or
    (g) After 120 days from the date of filing a formal complaint if 
there is no final action or appeal to the MSPB; or
    (h) After 120 days from the date of filing an appeal with the MSPB 
if the MSPB has not yet made a decision; or
    (i) After 180 days from the date of filing a petition for 
consideration with Commission if there is no decision by the Commission, 
reconsideration decision by the MSPB or decision by the Special Panel.



                   Subpart D_Appeals and Civil Actions



Sec.  1614.401  Appeals to the Commission.

    (a) A complainant may appeal an agency's final action or dismissal 
of a complaint.
    (b) An agency may appeal as provided in Sec.  1614.110(a).
    (c) A class agent or an agency may appeal an administrative judge's 
decision accepting or dismissing all or part of a class complaint; a 
class agent may appeal an agency's final action or an agency may appeal 
an administrative judge's decision on a class complaint; a class member 
may appeal a final decision on a claim for individual relief under a 
class complaint; and a class member, a class agent or an agency may 
appeal a final decision on a petition pursuant to Sec.  1614.204(g)(4).
    (d) A grievant may appeal the final decision of the agency, the 
arbitrator

[[Page 308]]

or the Federal Labor Relations Authority (FLRA) on the grievance when an 
issue of employment discrimination was raised in a negotiated grievance 
procedure that permits such issues to be raised. A grievant may not 
appeal under this part, however, when the matter initially raised in the 
negotiated grievance procedure is still ongoing in that process, is in 
arbitration, is before the FLRA, is appealable to the MSPB or if 5 
U.S.C. 7121(d) is inapplicable to the involved agency.
    (e) A complainant, agent or individual class claimant may appeal to 
the Commission an agency's alleged noncompliance with a settlement 
agreement or final decision in accordance with Sec.  1614.504.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37659, July 12, 1999; 
77 FR 43505, July 25, 2012]



Sec.  1614.402  Time for appeals to the Commission.

    (a) Appeals described in Sec.  1614.401(a) and (c) must be filed 
within 30 days of receipt of the dismissal, final action or decision. 
Appeals described in Sec.  1614.401(b) must be filed within 40 days of 
receipt of the hearing file and decision. Appeals described in Sec.  
1614.401(d) must be filed within 30 days of receipt of the final 
decision of the agency, the arbitrator or the Federal Labor Relations 
Authority. Where a complainant has notified the EEO Director of alleged 
noncompliance with a settlement agreement in accordance with Sec.  
1614.504, the complainant may file an appeal 35 days after service of 
the allegations of noncompliance, but no later than 30 days after 
receipt of an agency's determination.
    (b) If the complainant is represented by an attorney of record, then 
the 30-day time period provided in paragraph (a) of this section within 
which to appeal shall be calculated from the receipt of the required 
document by the attorney. In all other instances, the time within which 
to appeal shall be calculated from the receipt of the required document 
by the complainant.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37659, July 12, 1999; 
77 FR 43505, July 25, 2012]



Sec.  1614.403  How to appeal.

    (a) The complainant, agency, agent, grievant or individual class 
claimant (hereinafter appellant) must file an appeal with the Director, 
Office of Federal Operations, Equal Employment Opportunity Commission, 
at P.O. Box 77960, Washington, DC 20013, or electronically, or by 
personal delivery or facsimile. The appellant should use EEOC Form 573, 
Notice of Appeal/Petition, and should indicate what is being appealed.
    (b) The appellant shall furnish a copy of the appeal to the opposing 
party at the same time it is filed with the Commission. In or attached 
to the appeal to the Commission, the appellant must certify the date and 
method by which service was made on the opposing party.
    (c) If an appellant does not file an appeal within the time limits 
of this subpart, the appeal shall be dismissed by the Commission as 
untimely.
    (d) Any statement or brief on behalf of a complainant in support of 
the appeal must be submitted to the Office of Federal Operations within 
30 days of filing the notice of appeal. Any statement or brief on behalf 
of the agency in support of its appeal must be submitted to the Office 
of Federal Operations within 20 days of filing the notice of appeal. The 
Office of Federal Operations will accept statements or briefs in support 
of an appeal by facsimile transmittal, provided they are no more than 10 
pages long.
    (e) The agency must submit the complaint file to the Office of 
Federal Operations within 30 days of initial notification that the 
complainant has filed an appeal or within 30 days of submission of an 
appeal by the agency.
    (f) Any statement or brief in opposition to an appeal must be 
submitted to the Commission and served on the opposing party within 30 
days of receipt of the statement or brief supporting the appeal, or, if 
no statement or brief supporting the appeal is filed, within 60 days of 
receipt of the appeal. The Office of Federal Operations will accept 
statements or briefs in opposition to an appeal by facsimile provided 
they are no more than 10 pages long.

[[Page 309]]

    (g) Agencies are required to submit appeals, complaint files, and 
other filings to the Office of Federal Operations in a digital format 
acceptable to the Commission, absent a showing of good cause why an 
agency cannot submit digital records. Appellants are encouraged, but not 
required, to submit digital appeals and supporting documentation to the 
Office of Federal Operations in a format acceptable to the Commission.

[64 FR 37659, July 12, 1999, as amended at 74 FR 3430, Jan. 21, 2009; 77 
FR 43505, July 25, 2012]



Sec.  1614.404  Appellate procedure.

    (a) On behalf of the Commission, the Office of Federal Operations 
shall review the complaint file and all written statements and briefs 
from either party. The Commission may supplement the record by an 
exchange of letters or memoranda, investigation, remand to the agency or 
other procedures.
    (b) If the Office of Federal Operations requests information from 
one or both of the parties to supplement the record, each party 
providing information shall send a copy of the information to the other 
party.
    (c) When either party to an appeal fails without good cause shown to 
comply with the requirements of this section or to respond fully and in 
timely fashion to requests for information, the Office of Federal 
Operations shall, in appropriate circumstances:
    (1) Draw an adverse inference that the requested information would 
have reflected unfavorably on the party refusing to provide the 
requested information;
    (2) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (3) Issue a decision fully or partially in favor of the opposing 
party; or
    (4) Take such other actions as appropriate.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37659, July 12, 1999]



Sec.  1614.405  Decisions on appeals.

    (a) The Office of Federal Operations, on behalf of the Commission, 
shall issue a written decision setting forth its reasons for the 
decision. The Commission shall dismiss appeals in accordance with 
Sec. Sec.  1614.107, 1614.403(c) and 1614.409. The decision shall be 
based on the preponderance of the evidence. The decision on an appeal 
from an agency's final action shall be based on a de novo review, except 
that the review of the factual findings in a decision by an 
administrative judge issued pursuant to Sec.  1614.109(i) shall be based 
on a substantial evidence standard of review. If the decision contains a 
finding of discrimination, appropriate remedy(ies) shall be included 
and, where appropriate, the entitlement to interest, attorney's fees or 
costs shall be indicated. The decision shall reflect the date of its 
issuance, inform the complainant of his or her or her civil action 
rights, and be transmitted to the complainant and the agency by first 
class mail.
    (b) The Office of Federal Operations, on behalf of the Commission, 
shall issue decisions on appeals of decisions to accept or dismiss a 
class complaint issued pursuant to Sec.  1614.204(d)(7) within 90 days 
of receipt of the appeal.
    (c) A decision issued under paragraph (a) of this section is final 
within the meaning of Sec.  1614.407 unless a timely request for 
reconsideration is filed by a party to the case. A party may request 
reconsideration within 30 days of receipt of a decision of the 
Commission, which the Commission in its discretion may grant, if the 
party demonstrates that:
    (1) The appellate decision involved a clearly erroneous 
interpretation of material fact or law; or
    (2) The decision will have a substantial impact on the policies, 
practices or operations of the agency.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37659, July 12, 1999; 
77 FR 43505, July 25, 2012]



Sec.  1614.406  Time limits. [Reserved]



Sec.  1614.407  Civil action: Title VII, Age Discrimination in 
Employment Act, Rehabilitation Act, and Genetic Information
Nondiscrimination Act.

    A complainant who has filed an individual complaint, an agent who 
has filed a class complaint or a claimant

[[Page 310]]

who has filed a claim for individual relief pursuant to a class 
complaint is authorized under title VII, the ADEA, the Rehabilitation 
Act, and Genetic Information Nondiscrimination Act to file a civil 
action in an appropriate United States District Court:
    (a) Within 90 days of receipt of the agency final action on an 
individual or class complaint;
    (b) After 180 days from the date of filing an individual or class 
complaint if agency final action has not been taken;
    (c) Within 90 days of receipt of the Commission's final decision on 
an appeal; or
    (d) After 180 days from the date of filing an appeal with the 
Commission if there has been no final decision by the Commission.
    (e) After filing an appeal with the Commission from an agency final 
action, the complainant, class agent, or class claimant may withdraw the 
appeal and file a civil action within 90 days of receipt of the agency 
final action. If the complainant, class agent, or class claimant files 
an appeal with the Commission from a final agency action and more than 
90 days have passed since receipt of the agency final action, the 
appellant may file a civil action only in accordance with paragraph (c) 
or (d) of this section.
    (f) After filing a request for reconsideration of a Commission 
decision on an appeal, the complainant, class agent, or class claimant 
may withdraw the request and file a civil action within 90 days of 
receipt of the Commission's decision on the appeal. If the complainant, 
class agent, or class claimant files a request for reconsideration of a 
Commission decision on an appeal and more than 90 days have passed since 
the appellant received the Commission's decision on the appeal, the 
appellant may file a civil action only in accordance with paragraph (c) 
or (d) of this section.
    (g) A complainant, class agent, or class claimant who follows the 
procedures described in paragraph (e) or (f) of this section shall be 
deemed to have exhausted his or her administrative remedies.

[57 FR 12646, Apr. 10, 1992. Redesignated and amended at 64 FR 37659, 
July 12, 1999; 85 FR 35561, June 11, 2020]



Sec.  1614.408  Civil action: Equal Pay Act.

    A complainant is authorized under section 16(b) of the Fair Labor 
Standards Act (29 U.S.C. 216(b)) to file a civil action in a court of 
competent jurisdiction within two years or, if the violation is willful, 
three years of the date of the alleged violation of the Equal Pay Act 
regardless of whether he or she pursued any administrative complaint 
processing. Recovery of back wages is limited to two years prior to the 
date of filing suit, or to three years if the violation is deemed 
willful; liquidated damages in an equal amount may also be awarded. The 
filing of a complaint or appeal under this part shall not toll the time 
for filing a civil action.

[57 FR 12646, Apr. 10, 1992. Redesignated at 64 FR 37659, July 12, 1999]



Sec.  1614.409  Effect of filing a civil action.

    Filing a civil action under Sec.  1614.407 or Sec.  1614.408 shall 
terminate Commission processing of the appeal. A Commission decision on 
an appeal issued after a complainant files suit in district court will 
not be enforceable by the Commission. If private suit is filed 
subsequent to the filing of an appeal and prior to a final Commission 
decision, the complainant should notify the Commission in writing.

[85 FR 35562, June 11, 2020]



                   Subpart E_Remedies and Enforcement



Sec.  1614.501  Remedies and relief.

    (a) When an agency, or the Commission, in an individual case of 
discrimination, finds that an applicant or an employee has been 
discriminated against, the agency shall provide full relief which shall 
include the following elements in appropriate circumstances:
    (1) Notification to all employees of the agency in the affected 
facility of their right to be free of unlawful discrimination and 
assurance that the particular types of discrimination found will not 
recur;
    (2) Commitment that corrective, curative or preventive action will 
be taken, or measures adopted, to ensure

[[Page 311]]

that violations of the law similar to those found will not recur;
    (3) An unconditional offer to each identified victim of 
discrimination of placement in the position the person would have 
occupied but for the discrimination suffered by that person, or a 
substantially equivalent position;
    (4) Payment to each identified victim of discrimination on a make 
whole basis for any loss of earnings the person may have suffered as a 
result of the discrimination; and
    (5) Commitment that the agency shall cease from engaging in the 
specific unlawful employment practice found in the case.
    (b) Relief for an applicant. (1)(i) When an agency, or the 
Commission, finds that an applicant for employment has been 
discriminated against, the agency shall offer the applicant the position 
that the applicant would have occupied absent discrimination or, if 
justified by the circumstances, a substantially equivalent position 
unless clear and convincing evidence indicates that the applicant would 
not have been selected even absent the discrimination. The offer shall 
be made in writing. The individual shall have 15 days from receipt of 
the offer within which to accept or decline the offer. Failure to accept 
the offer within the 15-day period will be considered a declination of 
the offer, unless the individual can show that circumstances beyond his 
or her control prevented a response within the time limit.
    (ii) If the offer is accepted, appointment shall be retroactive to 
the date the applicant would have been hired. Back pay, computed in the 
manner prescribed by 5 CFR 550.805, shall be awarded from the date the 
individual would have entered on duty until the date the individual 
actually enters on duty unless clear and convincing evidence indicates 
that the applicant would not have been selected even absent 
discrimination. Interest on back pay shall be included in the back pay 
computation where sovereign immunity has been waived. The individual 
shall be deemed to have performed service for the agency during this 
period for all purposes except for meeting service requirements for 
completion of a required probationary or trial period.
    (iii) If the offer of employment is declined, the agency shall award 
the individual a sum equal to the back pay he or she would have 
received, computed in the manner prescribed by 5 CFR 550.805, from the 
date he or she would have been appointed until the date the offer was 
declined, subject to the limitation of paragraph (b)(3) of this section. 
Interest on back pay shall be included in the back pay computation. The 
agency shall inform the applicant, in its offer of employment, of the 
right to this award in the event the offer is declined.
    (2) When an agency, or the Commission, finds that discrimination 
existed at the time the applicant was considered for employment but also 
finds by clear and convincing evidence that the applicant would not have 
been hired even absent discrimination, the agency shall nevertheless 
take all steps necessary to eliminate the discriminatory practice and 
ensure it does not recur.
    (3) Back pay under this paragraph (b) for complaints under title VII 
or the Rehabilitation Act may not extend from a date earlier than two 
years prior to the date on which the complaint was initially filed by 
the applicant.
    (c) Relief for an employee. When an agency, or the Commission, finds 
that an employee of the agency was discriminated against, the agency 
shall provide relief, which shall include, but need not be limited to, 
one or more of the following actions:
    (1) Nondiscriminatory placement, with back pay computed in the 
manner prescribed by 5 CFR 550.805, unless clear and convincing evidence 
contained in the record demonstrates that the personnel action would 
have been taken even absent the discrimination. Interest on back pay 
shall be included in the back pay computation where sovereign immunity 
has been waived. The back pay liability under title VII or the 
Rehabilitation Act is limited to two years prior to the date the 
discrimination complaint was filed.
    (2) If clear and convincing evidence indicates that, although 
discrimination existed at the time the personnel action was taken, the 
personnel action

[[Page 312]]

would have been taken even absent discrimination, the agency shall 
nevertheless eliminate any discriminatory practice and ensure it does 
not recur.
    (3) Cancellation of an unwarranted personnel action and restoration 
of the employee.
    (4) Expunction from the agency's records of any adverse materials 
relating to the discriminatory employment practice.
    (5) Full opportunity to participate in the employee benefit denied 
(e.g., training, preferential work assignments, overtime scheduling).
    (d) The agency has the burden of proving by a preponderance of the 
evidence that the complainant has failed to mitigate his or her damages.
    (e) Attorney's fees or costs--(1) Awards of attorney's fees or 
costs. The provisions of this paragraph relating to the award of 
attorney's fees or costs shall apply to allegations of discrimination 
prohibited by title VII and the Rehabilitation Act. In a decision or 
final action, the agency, administrative judge, or Commission may award 
the applicant or employee reasonable attorney's fees (including expert 
witness fees) and other costs incurred in the processing of the 
complaint.
    (i) A finding of discrimination raises a presumption of entitlement 
to an award of attorney's fees.
    (ii) Any award of attorney's fees or costs shall be paid by the 
agency.
    (iii) Attorney's fees are allowable only for the services of members 
of the Bar and law clerks, paralegals or law students under the 
supervision of members of the Bar, except that no award is allowable for 
the services of any employee of the Federal Government.
    (iv) Attorney's fees shall be paid for services performed by an 
attorney after the filing of a written complaint, provided that the 
attorney provides reasonable notice of representation to the agency, 
administrative judge or Commission, except that fees are allowable for a 
reasonable period of time prior to the notification of representation 
for any services performed in reaching a determination to represent the 
complainant. Agencies are not required to pay attorney's fees for 
services performed during the pre-complaint process, except that fees 
are allowable when the Commission affirms on appeal an administrative 
judge's decision finding discrimination after an agency takes final 
action by not implementing an administrative judge's decision. Written 
submissions to the agency that are signed by the representative shall be 
deemed to constitute notice of representation.
    (2) Amount of awards. (i) When the agency, administrative judge or 
the Commission determines an entitlement to attorney's fees or costs, 
the complainant's attorney shall submit a verified statement of 
attorney's fees (including expert witness fees) and other costs, as 
appropriate, to the agency or administrative judge within 30 days of 
receipt of the decision and shall submit a copy of the statement to the 
agency. A statement of attorney's fees and costs shall be accompanied by 
an affidavit executed by the attorney of record itemizing the attorney's 
charges for legal services. The agency may respond to a statement of 
attorney's fees and costs within 30 days of its receipt. The verified 
statement, accompanying affidavit and any agency response shall be made 
a part of the complaint file.
    (ii)(A) The agency or administrative judge shall issue a decision 
determining the amount of attorney's fees or costs due within 60 days of 
receipt of the statement and affidavit. The decision shall include a 
notice of right to appeal to the EEOC along with EEOC Form 573, Notice 
of Appeal/Petition and shall include the specific reasons for 
determining the amount of the award.
    (B) The amount of attorney's fees shall be calculated using the 
following standards: The starting point shall be the number of hours 
reasonably expended multiplied by a reasonable hourly rate. There is a 
strong presumption that this amount represents the reasonable fee. In 
limited circumstances, this amount may be reduced or increased in 
consideration of the degree of success, quality of representation, and 
long delay caused by the agency.
    (C) The costs that may be awarded are those authorized by 28 U.S.C. 
1920 to include: Fees of the reporter for all or any of the stenographic 
transcript

[[Page 313]]

necessarily obtained for use in the case; fees and disbursements for 
printing and witnesses; and fees for exemplification and copies 
necessarily obtained for use in the case.
    (iii) Witness fees shall be awarded in accordance with the 
provisions of 28 U.S.C. 1821, except that no award shall be made for a 
Federal employee who is in a duty status when made available as a 
witness.

[57 FR 12646, Apr. 10, 1992, as amended at 60 FR 43372, Aug. 21, 1995; 
64 FR 37659, July 12, 1999]



Sec.  1614.502  Compliance with final Commission decisions.

    (a) Relief ordered in a final Commission decision is mandatory and 
binding on the agency except as provided in this section. Failure to 
implement ordered relief shall be subject to judicial enforcement as 
specified in Sec.  1614.503(g).
    (b) Notwithstanding paragraph (a) of this section, when the agency 
requests reconsideration and the case involves removal, separation, or 
suspension continuing beyond the date of the request for 
reconsideration, and when the decision orders retroactive restoration, 
the agency shall comply with the decision to the extent of the temporary 
or conditional restoration of the employee to duty status in the 
position specified by the Commission, pending the outcome of the agency 
request for reconsideration.
    (1) Service under the temporary or conditional restoration 
provisions of this paragraph (b) shall be credited toward the completion 
of a probationary or trial period, eligibility for a within-grade 
increase, or the completion of the service requirement for career 
tenure, if the Commission upholds its decision after reconsideration.
    (2) When the agency requests reconsideration, it may delay the 
payment of any amounts ordered to be paid to the complainant until after 
the request for reconsideration is resolved. If the agency delays 
payment of any amount pending the outcome of the request to reconsider 
and the resolution of the request requires the agency to make the 
payment, then the agency shall pay interest from the date of the 
original appellate decision until payment is made.
    (3) The agency shall notify the Commission and the employee in 
writing at the same time it requests reconsideration that the relief it 
provides is temporary or conditional and, if applicable, that it will 
delay the payment of any amounts owed but will pay interest as specified 
in paragraph (b)(2) of this section. Failure of the agency to provide 
notification will result in the dismissal of the agency's request.
    (c) When no request for reconsideration is filed or when a request 
for reconsideration is denied, the agency shall provide the relief 
ordered and there is no further right to delay implementation of the 
ordered relief. The relief shall be provided in full not later than 120 
days after receipt of the final decision unless otherwise ordered in the 
decision.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37660, July 12, 1999; 
77 FR 43506, July 25, 2012]



Sec.  1614.503  Enforcement of final Commission decisions.

    (a) Petition for enforcement. A complainant may petition the 
Commission for enforcement of a decision issued under the Commission's 
appellate jurisdiction. The petition shall be submitted to the Office of 
Federal Operations. The petition shall specifically set forth the 
reasons that lead the complainant to believe that the agency is not 
complying with the decision.
    (b) Compliance. On behalf of the Commission, the Office of Federal 
Operations shall take all necessary action to ascertain whether the 
agency is implementing the decision of the Commission. If the agency is 
found not to be in compliance with the decision, efforts shall be 
undertaken to obtain compliance.
    (c) Clarification. On behalf of the Commission, the Office of 
Federal Operations may, on its own motion or in response to a petition 
for enforcement or in connection with a timely request for 
reconsideration, issue a clarification of a prior decision. A 
clarification cannot change the result of a prior decision or enlarge or 
diminish the relief ordered but may further explain the meaning or 
intent of the prior decision.

[[Page 314]]

    (d) Referral to the Commission. Where the Director, Office of 
Federal Operations, is unable to obtain satisfactory compliance with the 
final decision, the Director shall submit appropriate findings and 
recommendations for enforcement to the Commission, or, as directed by 
the Commission, refer the matter to another appropriate agency.
    (e) Commission notice to show cause. The Commission may issue a 
notice to the head of any Federal agency that has failed to comply with 
a decision to show cause why there is noncompliance. Such notice may 
request the head of the agency or a representative to appear before the 
Commission or to respond to the notice in writing with adequate evidence 
of compliance or with compelling reasons for non-compliance.
    (f) Certification to the Office of Special Counsel. Where 
appropriate and pursuant to the terms of a memorandum of understanding, 
the Commission may refer the matter to the Office of Special Counsel for 
enforcement action.
    (g) Notification to complainant of completion of administrative 
efforts. Where the Commission has determined that an agency is not 
complying with a prior decision, or where an agency has failed or 
refused to submit any required report of compliance, the Commission 
shall notify the complainant of the right to file a civil action for 
enforcement of the decision pursuant to Title VII, the ADEA, the Equal 
Pay Act or the Rehabilitation Act and to seek judicial review of the 
agency's refusal to implement the ordered relief pursuant to the 
Administrative Procedure Act, 5 U.S.C. 701 et seq., and the mandamus 
statute, 28 U.S.C. 1361, or to commence de novo proceedings pursuant to 
the appropriate statutes.



Sec.  1614.504  Compliance with settlement agreements and final action.

    (a) Any settlement agreement knowingly and voluntarily agreed to by 
the parties, reached at any stage of the complaint process, shall be 
binding on both parties. Final action that has not been the subject of 
an appeal or civil action shall be binding on the agency. If the 
complainant believes that the agency has failed to comply with the terms 
of a settlement agreement or decision, the complainant shall notify the 
EEO Director, in writing, of the alleged noncompliance within 30 days of 
when the complainant knew or should have known of the alleged 
noncompliance. The complainant may request that the terms of settlement 
agreement be specifically implemented or, alternatively, that the 
complaint be reinstated for further processing from the point processing 
ceased.
    (b) The agency shall resolve the matter and respond to the 
complainant, in writing. If the agency has not responded to the 
complainant, in writing, or if the complainant is not satisfied with the 
agency's attempt to resolve the matter, the complainant may appeal to 
the Commission for a determination as to whether the agency has complied 
with the terms of the settlement agreement or decision. The complainant 
may file such an appeal 35 days after he or she has served the agency 
with the allegations of noncompliance, but must file an appeal within 30 
days of his or her receipt of an agency's determination. The complainant 
must serve a copy of the appeal on the agency and the agency may submit 
a response to the Commission within 30 days of receiving notice of the 
appeal.
    (c) Prior to rendering its determination, the Commission may request 
that parties submit whatever additional information or documentation it 
deems necessary or may direct that an investigation or hearing on the 
matter be conducted. If the Commission determines that the agency is not 
in compliance with a decision or settlement agreement, and the 
noncompliance is not attributable to acts or conduct of the complainant, 
it may order such compliance with the decision or settlement agreement, 
or, alternatively, for a settlement agreement, it may order that the 
complaint be reinstated for further processing from the point processing 
ceased. Allegations that subsequent acts of discrimination violate a 
settlement agreement shall be processed as separate complaints under 
Sec.  1614.106 or Sec.  1614.204, as appropriate, rather than under this 
section.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37660, July 12, 1999; 
77 FR 43506, July 25, 2012]

[[Page 315]]



Sec.  1614.505  Interim relief.

    (a)(1) When the agency appeals and the case involves removal, 
separation, or suspension continuing beyond the date of the appeal, and 
when the administrative judge's decision orders retroactive restoration, 
the agency shall comply with the decision to the extent of the temporary 
or conditional restoration of the employee to duty status in the 
position specified in the decision, pending the outcome of the agency 
appeal. The employee may decline the offer of interim relief.
    (2) Service under the temporary or conditional restoration 
provisions of paragraph (a)(1) of this section shall be credited toward 
the completion of a probationary or trial period, eligibility for a 
within-grade increase, or the completion of the service requirement for 
career tenure, if the Commission upholds the decision on appeal. Such 
service shall not be credited toward the completion of any applicable 
probationary or trial period or the completion of the service 
requirement for career tenure if the Commission reverses the decision on 
appeal.
    (3) When the agency appeals, it may delay the payment of any amount, 
other than prospective pay and benefits, ordered to be paid to the 
complainant until after the appeal is resolved. If the agency delays 
payment of any amount pending the outcome of the appeal and the 
resolution of the appeal requires the agency to make the payment, then 
the agency shall pay interest from the date of the original decision 
until payment is made.
    (4) The agency shall notify the Commission and the employee in 
writing at the same time it appeals that the relief it provides is 
temporary or conditional and, if applicable, that it will delay the 
payment of any amounts owed but will pay interest as specified in 
paragraph (a)(3) of this section. Failure of the agency to provide 
notification will result in the dismissal of the agency's appeal.
    (5) The agency may, by notice to the complainant, decline to return 
the complainant to his or her place of employment if it determines that 
the return or presence of the complainant will be unduly disruptive to 
the work environment. However, prospective pay and benefits must be 
provided. The determination not to return the complainant to his or her 
place of employment is not reviewable. A grant of interim relief does 
not insulate a complainant from subsequent disciplinary or adverse 
action.
    (b) If the agency files an appeal and has not provided required 
interim relief, the complainant may request dismissal of the agency's 
appeal. Any such request must be filed with the Office of Federal 
Operations within 25 days of the date of service of the agency's appeal. 
A copy of the request must be served on the agency at the same time it 
is filed with EEOC. The agency may respond with evidence and argument to 
the complainant's request to dismiss within 15 days of the date of 
service of the request.

[64 FR 37660, July 12, 1999, as amended at 85 FR 35562, June 11, 2020]



               Subpart F_Matters of General Applicability



Sec.  1614.601  EEO group statistics.

    (a) Each agency shall establish a system to collect and maintain 
accurate employment information on the race, national origin, sex and 
disability of its employees.
    (b) Data on race, national origin and sex shall be collected by 
voluntary self-identification. If an employee does not voluntarily 
provide the requested information, the agency shall advise the employee 
of the importance of the data and of the agency's obligation to report 
it. If the employee still refuses to provide the information, the agency 
must make visual identification and inform the employee of the data it 
will be reporting. If an agency believes that information provided by an 
employee is inaccurate, the agency shall advise the employee about the 
solely statistical purpose for which the data is being collected, the 
need for accuracy, the agency's recognition of the sensitivity of the 
information and the existence of procedures to prevent its unauthorized 
disclosure. If, thereafter, the employee declines to change the 
apparently inaccurate self-identification, the agency must accept it.

[[Page 316]]

    (c) The information collected under paragraph (b) of this section 
shall be disclosed only in the form of gross statistics. An agency shall 
not collect or maintain any information on the race, national origin or 
sex of individual employees except when an automated data processing 
system is used in accordance with standards and requirements prescribed 
by the Commission to insure individual privacy and the separation of 
that information from personnel record.
    (d) Each system is subject to the following controls:
    (1) Only those categories of race and national origin prescribed by 
the Commission may be used;
    (2) Only the specific procedures for the collection and maintenance 
of data that are prescribed or approved by the Commission may be used;
    (3) The Commission shall review the operation of the agency system 
to insure adherence to Commission procedures and requirements. An agency 
may make an exception to the prescribed procedures and requirements only 
with the advance written approval of the Commission.
    (e) The agency may use the data only in studies and analyses which 
contribute affirmatively to achieving the objectives of the equal 
employment opportunity program. An agency shall not establish a quota 
for the employment of persons on the basis of race, color, religion, 
sex, or national origin.
    (f) Data on disabilities shall be collected using a method permitted 
under Sec.  1614.203(d)(6)(ii) and Sec.  1614.203(d)(6)(iii).
    (g) An agency shall report to the Commission on employment by race, 
national origin, sex and disability in the form and at such times as the 
Commission may require.

[57 FR 12646, Apr. 10, 1992, as amended at 74 FR 63984, Dec. 7, 2009; 82 
FR 681, Jan. 3, 2017]



Sec.  1614.602  Reports to the Commission.

    (a) Each agency shall report to the Commission information 
concerning pre-complaint counseling and the status, processing and 
disposition of complaints under this part at such times and in such 
manner as the Commission prescribes.
    (b) Each agency shall advise the Commission whenever it is served 
with a Federal court complaint based upon a complaint that is pending on 
appeal at the Commission.
    (c) Each agency shall submit annually for the review and approval of 
the Commission written national and regional equal employment 
opportunity plans of action. Plans shall be submitted in a format 
prescribed by the Commission and shall include, but not be limited to:
    (1) Provision for the establishment of training and education 
programs designed to provide maximum opportunity for employees to 
advance so as to perform at their highest potential;
    (2) Description of the qualifications, in terms of training and 
experience relating to equal employment opportunity, of the principal 
and operating officials concerned with administration of the agency's 
equal employment opportunity program; and
    (3) Description of the allocation of personnel and resources 
proposed by the agency to carry out its equal employment opportunity 
program.



Sec.  1614.603  Voluntary settlement attempts.

    Each agency shall make reasonable efforts to voluntarily settle 
complaints of discrimination as early as possible in, and throughout, 
the administrative processing of complaints, including the pre-complaint 
counseling stage. Any settlement reached shall be in writing and signed 
by both parties and shall identify the claims resolved.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37661, July 12, 1999]



Sec.  1614.604  Filing and computation of time.

    (a) All time periods in this part that are stated in terms of days 
are calendar days unless otherwise stated.
    (b) A document shall be deemed timely if it is received or 
postmarked before the expiration of the applicable filing period, or, in 
the absence of a legible postmark, if it is received by mail within five 
days of the expiration of the applicable filing period.
    (c) The time limits in this part are subject to waiver, estoppel and 
equitable tolling.
    (d) The first day counted shall be the day after the event from 
which the

[[Page 317]]

time period begins to run and the last day of the period shall be 
included, unless it falls on a Saturday, Sunday or Federal holiday, in 
which case the period shall be extended to include the next business 
day.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37661, July 12, 1999]



Sec.  1614.605  Representation and official time.

    (a) At any stage in the processing of a complaint, including the 
counseling stage Sec.  1614.105, the complainant shall have the right to 
be accompanied, represented, and advised by a representative of 
complainant's choice.
    (b) If the complainant is an employee of the agency, he or she shall 
have a reasonable amount of official time, if otherwise on duty, to 
prepare the complaint and to respond to agency and EEOC requests for 
information. If the complainant is an employee of the agency and he 
designates another employee of the agency as his or her representative, 
the representative shall have a reasonable amount of official time, if 
otherwise on duty, to prepare the complaint and respond to agency and 
EEOC requests for information. The agency is not obligated to change 
work schedules, incur overtime wages, or pay travel expenses to 
facilitate the choice of a specific representative or to allow the 
complainant and representative to confer. The complainant and 
representative, if employed by the agency and otherwise in a pay status, 
shall be on official time, regardless of their tour of duty, when their 
presence is authorized or required by the agency or the Commission 
during the investigation, informal adjustment, or hearing on the 
complaint.
    (c) In cases where the representation of a complainant or agency 
would conflict with the official or collateral duties of the 
representative, the Commission or the agency may, after giving the 
representative an opportunity to respond, disqualify the representative.
    (d) Unless the complainant states otherwise in writing, after the 
agency has received written notice of the name, address and telephone 
number of a representative for the complainant, all official 
correspondence shall be with the representative with copies to the 
complainant. When the complainant designates an attorney as 
representative, service of all official correspondence shall be made on 
the attorney and the complainant, but time frames for receipt of 
materials shall be computed from the time of receipt by the attorney. 
The complainant must serve all official correspondence on the designated 
representative of the agency.
    (e) The Complainant shall at all times be responsible for proceeding 
with the complaint whether or not he or she has designated a 
representative.
    (f) Witnesses who are Federal employees, regardless of their tour of 
duty and regardless of whether they are employed by the respondent 
agency or some other Federal agency, shall be in a duty status when 
their presence is authorized or required by Commission or agency 
officials in connection with a complaint.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37661, July 12, 1999]



Sec.  1614.606  Joint processing and consolidation of complaints.

    Complaints of discrimination filed by two or more complainants 
consisting of substantially similar allegations of discrimination or 
relating to the same matter may be consolidated by the agency or the 
Commission for joint processing after appropriate notification to the 
parties. Two or more complaints of discrimination filed by the same 
complainant shall be consolidated by the agency for joint processing 
after appropriate notification to the complainant. When a complaint has 
been consolidated with one or more earlier filed complaints, the agency 
shall complete its investigation within the earlier of 180 days after 
the filing of the last complaint or 360 days after the filing of the 
original complaint, except that the complainant may request a hearing 
from an administrative judge on the consolidated complaints any time 
after 180 days from the date of the first filed complaint. 
Administrative judges or the Commission may, in their discretion, 
consolidate two or more complaints of discrimination filed by the same 
complainant.

[64 FR 37661, July 12, 1999]

[[Page 318]]



Sec.  1614.607  Delegation of authority.

    An agency head may delegate authority under this part, to one or 
more designees.



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

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

    Source: 71 FR 43650, Aug. 2, 2006, unless otherwise noted.



Sec.  1614.701  Purpose and scope.

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



Sec.  1614.702  Definitions.

    The following definitions apply for purposes of this subpart.
    (a) The term Federal agency or agency means an Executive agency (as 
defined in 5 U.S.C. 105), the United States Postal Service, and the 
Postal Rate Commission.
    (b) The term Commission means the Equal Employment Opportunity 
Commission and any subdivision thereof authorized to act on its behalf.
    (c) The term investigation refers to the step of the federal sector 
EEO process described in 29 CFR 1614.108 and 1614.106(e)(2) and, for 
purposes of this subpart, it commences when the complaint is filed and 
ceases when the complainant is given notice under Sec.  1614.108(f) of 
the right to request a hearing or to receive an immediate final decision 
without a hearing.
    (d) The term hearing refers to the step of the federal sector EEO 
process described in 29 CFR 1614.109 and, for purposes of Sec.  
1614.704(l)(2)(ii), it commences on the date the agency is informed by 
the complainant or EEOC, whichever occurs first, that the complainant 
has requested a hearing and ends on the date the agency receives from 
the EEOC notice that the EEOC Administrative Judge (AJ) is returning the 
case to the agency to take final action. For all other purposes under 
this subpart, a hearing commences when the AJ receives the complaint 
file from the agency and ceases when the AJ returns the case to the 
agency to take final action.
    (e) For purposes of Sec.  1614.704(i), (j), and (k) the phrase 
without a hearing refers to a final action by an agency that is 
rendered:
    (1) When an agency does not receive a reply to a notice issued under 
Sec.  1614.108(f);
    (2) After a complainant requests an immediate final decision;
    (3) After a complainant withdraws a request for a hearing; and
    (4) After an administrative judge cancels a hearing and remands the 
matter to the agency.
    (f) For purposes of Sec.  1614.704(i), (j), and (k), the term after 
a hearing refers to a final action by an agency that is rendered 
following a decision by an administrative judge under Sec.  
1614.109(f)(3)(iv), (g) or (i).
    (g) The phrase final action by an agency refers to the step of the 
federal sector EEO process described in 29 CFR 1614.110 and, for 
purposes of this subpart, it commences when the agency receives a 
decision by an Administrative Judge (AJ), receives a request from the 
complainant for an immediate final decision without a hearing or fails 
to receive a response to a notice issued under Sec.  1614.108(f) and 
ceases when the agency issues a final order or final decision on the 
complaint.
    (h) The phrase final action by an agency involving a finding of 
discrimination means:
    (1) A final order issued by an agency pursuant to Sec.  1614.110(a) 
following a finding of discrimination by an administrative judge; and
    (2) A final decision issued by an agency pursuant to Sec.  
1614.110(b) in which the agency finds discrimination.
    (i) The term appeal refers to the step of the federal sector EEO 
process described in 29 CFR 1614.401 and, for purposes of this subpart, 
it commences when the appeal is received by the Commission and ceases 
when the appellate decision is issued.

[[Page 319]]

    (j) The term basis of alleged discrimination refers to the 
individual's protected status (i.e., race, color, religion, reprisal, 
sex, national origin, Equal Pay Act, age, disability, or genetic 
information). Only those bases protected by Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., the Equal Pay 
Act of 1963, 29 U.S.C. 206(d), the Age Discrimination in Employment Act 
of 1967, as amended, 29 U.S.C. 621 et seq., the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 791 et seq., and the Genetic Information 
Nondiscrimination Act, 42 U.S.C. 2000ff 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 subordinate component refers to any organizational sub-
unit directly below the agency or department level which has 1,000 or 
more employees and is required to submit EEOC Form 715-01 to EEOC 
pursuant to EEOC Equal Employment Opportunity Management Directive 715.

[57 FR 12646, Apr. 10, 1992, as amended at 74 FR 63984, Dec. 7, 2009]



Sec.  1614.703  Manner and format of data.

    (a) Agencies shall post their statistical data in the following two 
formats: Portable Document Format (PDF); and an accessible text format 
that complies with section 508 of the Rehabilitation Act.
    (b) Agencies shall prominently post the date they last updated the 
statistical information on the Web site location containing the 
statistical data.
    (c) In addition to providing aggregate agency-wide data, an agency 
shall include separate data for each subordinate component. Such data 
shall be identified as pertaining to the particular subordinate 
component.
    (d) Data posted under this subpart will be titled ``Equal Employment 
Opportunity Data Posted Pursuant to Title III of the Notification and 
Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR 
Act), Pub. L. 107-174,'' and a hyperlink to the data, entitled ``No FEAR 
Act Data'' will be posted on the homepage of an agency's public Web 
site. In the case of agencies with subordinate components, the data 
shall be made available by hyperlinks from the homepages of the Web 
sites (if any exist) of the subordinate components as well as the 
homepage of the Web site of the parent agency.
    (e) Agencies shall post cumulative data pursuant to Sec.  1614.704 
for the current fiscal year. Agencies may not post separate quarterly 
statistics for the current fiscal year.
    (f) Data posted pursuant to Sec.  1614.704 by agencies having 100 or 
more employees, and all subordinate component data posted pursuant to 
subsection 1614.703(c), shall be presented in the manner and order set 
forth in the template EEOC has placed for this purpose on its public Web 
site.
    (1) Cumulative quarterly and fiscal year data shall appear in 
vertical columns. The oldest fiscal year data shall be listed first, 
reading left to right, with the other fiscal years appearing in the 
adjacent columns in chronological order. The current cumulative 
quarterly or year-end data shall appear in the last, or far-right, 
column.
    (2) The categories of data as set forth in Sec.  1614.704(a) through 
(m) of this subpart shall appear in horizontal rows. When reading from 
top to bottom, the order of the categories shall be in the same order as 
those categories appear in Sec.  1614.704(a) through (m).
    (3) When posting data pursuant to Sec.  1614.704(d) and (j), bases 
of discrimination shall be arranged in the order in which they appear in 
Sec.  1614.702(j). The category ``non-EEO basis'' shall be

[[Page 320]]

posted last, after the basis of ``disability.''
    (4) When posting data pursuant to Sec.  1614.704(e) and (k), issues 
of discrimination shall be arranged in the order in which they appear in 
Sec.  1614.702(k). Only those issues set forth in Sec.  1614.702(k) 
shall be listed.
    (g) Agencies shall ensure that the data they post under this subpart 
can be readily accessed through one or more commercial search engines.
    (h) Within 60 days of the effective date of this rule, an agency 
shall provide the Commission the Uniform Resource Locator (URL) for the 
data it posts under this subpart. Thereafter, new or changed URLs shall 
be provided within 30 days.
    (i) Processing times required to be posted under this subpart shall 
be recorded using number of days.



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

    Commencing on January 31, 2004 and thereafter no later than 30 days 
after the end of each fiscal quarter beginning on or after January 1, 
2004, each Federal agency shall post the following current fiscal year 
statistics on its public Internet Web site regarding EEO complaints 
filed under 29 CFR part 1614.
    (a) The number of complaints filed in such fiscal year.
    (b) The number of individuals filing those complaints (including as 
the agent of a class).
    (c) The number of individuals who filed two or more of those 
complaints.
    (d) The number of those complaints, whether initially or through 
amendment, raising each of the various bases of alleged discrimination 
and the number of complaints in which a non-EEO basis is alleged.
    (e) The number of those complaints, whether initially or through 
amendment, raising each of the various issues of alleged discrimination.
    (f) The average length of time it has taken an agency to complete, 
respectively, investigation and final action by an agency for:
    (1) All complaints pending for any length of time during such fiscal 
year;
    (2) All complaints pending for any length of time during such fiscal 
year in which a hearing was not requested; and
    (3) All complaints pending for any length of time during such fiscal 
year in which a hearing was requested.
    (g) The number of complaints dismissed by an agency pursuant to 29 
CFR 1614.107(a), and the average length of time such complaints had been 
pending prior to dismissal.
    (h) The number of complaints withdrawn by complainants.
    (i)(1) The total number of final actions by an agency rendered in 
such fiscal year involving a finding of discrimination and, of that 
number,
    (2) The number and percentage that were rendered without a hearing, 
and
    (3) The number and percentage that were rendered after a hearing.
    (j) Of the total number of final actions by an agency rendered in 
such fiscal year involving a finding of discrimination,
    (1) The number and percentage of those based on each respective 
basis,
    (2) The number and percentage for each respective basis that were 
rendered without a hearing, and
    (3) The number and percentage for each respective basis that were 
rendered after a hearing.
    (k) Of the total number of final actions by an agency rendered in 
such fiscal year involving a finding of discrimination,
    (1) The number and percentage for each respective issue,
    (2) The number and percentage for each respective issue that were 
rendered without a hearing, and
    (3) The number and percentage for each respective issue that were 
rendered after a hearing.
    (l) Of the total number of complaints pending for any length of time 
in such fiscal year,
    (1) The number that were first filed before the start of the then 
current fiscal year,
    (2) Of those complaints falling within subsection (l)(1),
    (i) The number of individuals who filed those complaints, and
    (ii) The number that are pending, respectively, at the 
investigation, hearing, final action by an agency, and appeal step of 
the process.

[[Page 321]]

    (m) Of the total number of complaints pending for any length of time 
in such fiscal year, the total number of complaints in which the agency 
has not completed its investigation within the time required by 29 CFR 
1614.106(e)(2) plus any extensions authorized by that section or Sec.  
1614.108(e).



Sec.  1614.705  Comparative data--all Federal agencies.

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



Sec.  1614.706  Other data.

    Agencies shall not include or otherwise post with the data required 
to be posted under Sec.  1614.704 and 1614.705 of this subpart any other 
data, whether or not EEO related, but may post such other data on 
another, separate, Web page.



Sec.  1614.707  Data to be posted by EEOC.

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

[[Page 322]]

    (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.
    (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.
    (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 
fiscal years.



PART 1615_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AND IN ACCESSIBILITY OF COMMISSION ELECTRONIC AND INFORMATION
TECHNOLOGY--Table of Contents



Sec.
1615.101 Purpose.
1615.102 Application.
1615.103 Definitions.
1615.104-1615.110 [Reserved]
1615.111 Notice.
1615.112-1615.129 [Reserved]
1615.130 General prohibitions against discrimination.
1615.131-1615.134 [Reserved]
1615.135 Electronic and information technology requirements.
1615.136-1615.139 [Reserved]
1615.140 Employment.
1615.141-1615.148 [Reserved]
1615.149 Program accessibility: Discrimination prohibited.
1615.150 Program accessibility: Existing facilities.
1615.151 Program accessibility: New construction and alterations.
1615.152-1615.159 [Reserved]
1615.160 Communications.
1615.161-1615.169 [Reserved]
1615.170 Compliance procedures.
1615.171-1615.999 [Reserved]

    Authority: 29 U.S.C. 794 and 29 U.S.C. 794d(f)(2).

    Source: 54 FR 22749, May 26, 1989, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 1615 appear at 73 FR 
39866, July 11, 2008.



Sec.  1615.101  Purpose.

    (a) The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of

[[Page 323]]

the Rehabilitation Act of 1973 to prohibit discrimination on the basis 
of disability in programs or activities conducted by Executive agencies 
or the United States Postal Service.
    (b) The purpose of this part is also to effectuate section 508 of 
the Rehabilitation Act, which requires that when Federal departments and 
agencies develop, procure, maintain, or use electronic and information 
technology, they shall ensure accessibility by individuals with 
disabilities who are Federal employees or applicants, or members of the 
public.

[54 FR 22749, May 26, 1989, as amended at 73 FR 39866, July 11, 2008]



Sec.  1615.102  Application.

    This part applies to all programs or activities conducted by the 
Commission and to its development, procurement, maintenance, and use of 
electronic and information technology.

[73 FR 39866, July 11, 2008]



Sec.  1615.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Commission. For example, auxiliary aids 
useful for persons with impaired vision include readers, Brailled 
materials, audio recordings, and other similar services and devices. 
Auxiliary aids useful for persons with impaired hearing include 
telephone handset amplifiers, telephones compatible with hearing aids, 
telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices. 
Auxiliary aids useful for persons with impaired ability to reach or 
grasp include goose neck telephone headsets, mechanical page turners, 
and raised or lowered furniture. These examples are not intended to be 
exclusive either as to the persons who are entitled to such aids or as 
to the type of aids that may be required. Although auxiliary aids are 
required explicitly only by Sec.  1615.160(a)(1), they may also be 
necessary to meet other requirements of this part.
    Commission means the Equal Employment Opportunity Commission.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the Commission's actions in 
sufficient detail to inform the Commission of the nature and date of the 
alleged violation of section 504 or section 508. It shall be signed by 
the complainant or by someone authorized to do so on his or her behalf. 
Complaints filed on behalf of classes or third parties shall describe or 
identify (by name, if possible) the alleged victims of discrimination.
    Electronic and Information technology. Includes information 
technology and any equipment or interconnected system or subsystem of 
equipment that is used in the creation, conversion, or duplication of 
data or information. The term electronic and information technology 
includes, but is not limited to, telecommunications products (such as 
telephones), information kiosks and transaction machines, World Wide Web 
sites, multimedia, and office equipment such as copiers and fax 
machines. The term does not include any equipment that contains embedded 
information technology that is used as an integral part of the product, 
but the principal function of which is not the acquisition, storage, 
manipulation, management, movement, control, display, switching, 
interchange, transmission, or reception of data or information. For 
example, HVAC (heating, ventilation, and air conditioning) equipment 
such as thermostats or temperature control devices, and medical 
equipment where information technology is integral to its operation, are 
not information technology.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Individual with disabilities means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a

[[Page 324]]

record of such an impairment, or is regarded as having such an 
impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--(i) Any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: Neurological; 
musculoskeletal; special sense organs; respiratory, including speech 
organs; cardiovascular; reproductive; digestive; genitourinary; hemic 
and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic. visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having such an impairment means--(i) Has a 
physical or mental impairment that does not substantially limit major 
life activities but is treated by the agency as constituting such a 
limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having an impairment.
    Qualified individual with a disability means:
    (1) With respect to any Commission program or activity (except 
employment), an individual with a disability who, with or without 
modifications or aids required by this part, meets the essential 
eligibility requirements for participation in, or receipt of benefits 
from, that program or activity.
    (2) With respect to employment, a qualified individual with a 
disability as defined in 29 CFR 1630.2(m), which is made applicable to 
this part by Sec.  1615.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955) and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Section 508 means section 508 of the Rehabilitation Act of 1973, 
Pub. L. 93-112, Title V, Sec.  508, as added Pub. L. 99-506, Title VI, 
Sec.  603(a), Oct. 21, 1986, 100 Stat. 1830, and amended Pub. L. 100-
630, Title II, Sec.  206(f), Nov. 7, 1988, 102 Stat. 3312; Pub. L. 102-
569, Title V, Sec.  509(a), Oct. 29, 1992, 106 Stat. 4430; Pub. L. 105-
220, Title IV, Sec.  408(b), Aug. 7, 1998, 112 Stat. 1203.

[54 FR 22749, May 26, 1989, as amended at 73 FR 39866, July 11, 2008]



Sec. Sec.  1615.104-1615.110  [Reserved]



Sec.  1615.111  Notice.

    The Commission shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the Commission, and make such 
information available to them in such manner as the Chair of the 
Commission finds necessary to apprise such persons of the protections 
against discrimination assured them by section 504 and this regulation.

[54 FR 22749, May 26, 1989, as amended at 73 FR 39866, July 11, 2008]

[[Page 325]]



Sec. Sec.  1615.112-1615.129  [Reserved]



Sec.  1615.130  General prohibitions against discrimination.

    (a) No qualified individual with disabilities shall, on the basis of 
disability, be excluded from participation in, be denied the benefits 
of, or otherwise be subjected to discrimination under any program or 
activity conducted by the Commission.
    (b)(1) The Commission, in providing any aid, benefit, or service, 
may not, directly or through contractual, certifying, or other 
arrangements, on the basis of disability --
    (i) Deny a qualified individual with disabilities the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with disabilities an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with disabilities with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aid, benefits, 
or services that are as effective as those provided to others;
    (v) Deny a qualified individual with disabilities the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with disabilities in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Commission may not deny a qualified individual with 
disabilities the opportunity to participate in programs or activities 
that are not separate or different, despite the existence of permissibly 
separate or different programs or activities.
    (3) The Commission may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--(i) Subject qualified individuals with 
disabilities to discrimination on the basis of disability; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with disabilities.
    (4) The Commission may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--(i) 
Exclude individuals with disabilities from, deny them the benefits of, 
or otherwise subject them to discrimination under any program or 
activity conducted by the Commission; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
disabilities.
    (5) The Commission, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with disabilities to 
discrimination on the basis of disability.
    (c) The exclusion of individuals without disabilities from the 
benefits of a program limited by Federal statute or Executive order to 
individuals with disabilities or the exclusion of a specific class of 
individuals with disabilities from a program limited by Federal statute 
or Executive order to a different class of individuals with disabilities 
is not prohibited by this part.
    (d) The Commission shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with disabilities.

[54 FR 22749, May 26, 1989, as amended at 73 FR 39866, July 11, 2008]



Sec. Sec.  1615.131-1615.134  [Reserved]



Sec.  1615.135  Electronic and information technology requirements.

    (a) Development, procurement, maintenance, or use of electronic and 
information technology.--When developing, procuring, maintaining, or 
using electronic and information technology, the Commission shall 
ensure, unless an undue burden would be imposed on it, that the 
electronic and information

[[Page 326]]

technology allows, regardless of the type of medium of the technology--
    (1) Individuals with disabilities who are Commission employees to 
have access to and use of information and data that is comparable to the 
access to and use of the information and data by Commission employees 
who are not individuals with disabilities; and
    (2) Individuals with disabilities who are members of the public 
seeking information or services from the Commission to have access to 
and use of information and data that is comparable to the access to and 
use of the information and data by such members of the public who are 
not individuals with disabilities.
    (b) Alternative means of access when undue burden is imposed.--When 
development, procurement, maintenance, or use of electronic and 
information technology that meets the standards published by the 
Architectural and Transportation Barriers Compliance Board at 36 CFR 
part 1194 would impose an undue burden, the Commission shall provide 
individuals with disabilities covered by this section with the 
information and data involved by an alternative means of access that 
allows the individual to use the information and data.

[73 FR 39866, July 11, 2008]



Sec. Sec.  1615.136-1615.139  [Reserved]



Sec.  1615.140  Employment.

    No qualified individual with a disability shall, on the basis of 
disability, be subjected to discrimination in employment under any 
program or activity conducted by the Commission. The definitions, 
requirements, and procedures of section 501 of the Rehabilitation Act of 
1973 (29 U.S.C. 791), as established by this Commission in 29 CFR part 
1614, shall apply to employment in federally conducted programs or 
activities. As noted in 29 CFR 1614.203(b), the standards used to 
determine whether section 501 of the Rehabilitation Act has been 
violated in a complaint alleging non-affirmative action employment 
discrimination under part 1614 shall be the standards applied under 
Title I and Title V (sections 501 through 504 and 510) of the Americans 
with Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111, 
12201) as such sections relate to employment. These standards are set 
forth in the Commission's ADA regulations at 29 CFR part 1630. If a 
section 501 complaint is filed against the Commission in the part 1614 
process and it is found to include a separate section 508 claim, the 
part 1614 process will be used to process the section 501 claim. The 
section 508 claim will be processed separately in accordance with the 
procedures set forth at Sec.  1615.170.

[73 FR 39866, July 11, 2008]



Sec. Sec.  1615.141-1615.148  [Reserved]



Sec.  1615.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  1615.150, no qualified 
individual with disabilities shall, because the Commission's facilities 
are inaccessible to or unusable by individuals with disabilities, be 
denied the benefits of, be excluded from participation in, or otherwise 
be subjected to discrimination under any program or activity conducted 
by the Commission.



Sec.  1615.150  Program accessibility: Existing facilities.

    (a) General. The Commission shall operate each program or activity 
so that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with disabilities. This 
paragraph does not--
    (1) Necessarily require the Commission to make each of its existing 
facilities accessible to and usable by individuals with disabilities;
    (2) Require the Commission to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
program or activity or in undue financial and administrative burdens. In 
those circumstances where Commission personnel believe that the proposed 
action would fundamentally alter the program or activity or would result 
in undue financial and administrative burdens, the Commission has the 
burden of proving that compliance with Sec.  1615.150(a) would result in 
such alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the

[[Page 327]]

Chair of the Commission after considering all Commission resources 
available for use in the funding and operation of the conducted program 
or activity, and must be accompanied by a written statement of the 
reasons for reaching that conclusion. If an action would result in such 
an alteration or such burdens, the Commission shall take any other 
action that would not result in such an alteration or such burdens but 
would nevertheless ensure that individuals with disabilities receive the 
benefits and services of the program or activity.
    (b) Methods. The Commission may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with disabilities. The Commission is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The Commission, in 
making alterations to existing buildings, shall meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the Commission shall give priority to 
those methods that offer programs and activities to qualified 
individuals with disabilities in the most integrated setting 
appropriate.

[54 FR 22749, May 26, 1989, as amended at 73 FR 39868, July 11, 2008]



Sec.  1615.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Commission shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with disabilities. The definitions, requirements, and 
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as 
established in 41 CFR subpart 101-19.6, apply to buildings covered by 
this section.



Sec. Sec.  1615.152-1615.159  [Reserved]



Sec.  1615.160  Communications.

    (a) The Commission shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Commission shall furnish appropriate auxiliary aids where 
necessary to afford an individual with disabilities an equal opportunity 
to participate in, and enjoy the benefits of, a program or activity 
conducted by the Commission.
    (i) In determining what type of auxiliary aid is necessary, the 
Commission shall give primary consideration to the requests of the 
individual with disabilities.
    (ii) The Commission need not provide individually prescribed 
devices, readers for personal use or study, or other devices of a 
personal nature.
    (2) Where the Commission communicates with applicants and 
beneficiaries by telephone, telecommunication devices for deaf persons 
(TDD's) or equally effective telecommunication systems shall be used.
    (b) The Commission shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Commission shall provide signs at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the Commission to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where Commission personnel believe that 
the proposed action would fundamentally alter the program or activity or 
would

[[Page 328]]

result in undue financial and administrative burdens, the Commission has 
the burden of proving that compliance with Sec.  1615.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the Chair of the 
Commission after considering all Commission resources available for use 
in the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the Commission shall take 
any other action that would not result in such an alteration or such 
burdens but would nevertheless ensure that, to the maximum extent 
possible, individuals with disabilities receive the benefits and 
services of the program or activity.

[54 FR 22749, May 26, 1989, as amended at 73 FR 39866, July 11, 2008]



Sec. Sec.  1615.161-1615.169  [Reserved]



Sec.  1615.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
disability in programs or activities conducted by the Commission in 
violation of section 504. This section also applies to all complaints 
alleging a violation of the agency's responsibility to procure 
electronic and information technology under section 508 whether filed by 
members of the public or EEOC employees or applicants.
    (b) The Commission shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by EEOC in 29 CFR part 1614 pursuant to section 501 of the 
Rehabilitation Act of 1973 (29 U.S.C. 791). With regard to employee 
claims concerning agency procurements made in violation of section 508, 
the procedures set out in paragraphs (d) through (m) of this section 
shall be used.
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Director, Office of Equal Opportunity (Director 
of OEO).
    (d) Filing a complaint. (1) Any person who believes that he or she 
has been subjected to discrimination prohibited by this part or that the 
agency's procurement of electronic and information technology has 
violated section 508, or authorized representative of such person, may 
file a complaint with the Director of OEO. Any person who believes that 
any specific class of persons has been subjected to discrimination 
prohibited by this part and who is a member of that class or the 
authorized representative of a member of that class may file a complaint 
with the Director. A charge on behalf of a person or member of a class 
of persons claiming to be aggrieved may be made by any person, agency or 
organization.
    (2) Where and when to file. Complaints shall be filed with the 
Director of OEO within one hundred and eighty calendar days of the 
alleged acts of discrimination. A complaint shall be deemed filed on the 
date it is postmarked, or, in the absence of a postmark, on the date it 
is received in the Office of the Director. The Commission shall extend 
the time period for filing a complaint upon a showing of good cause. For 
example, the Commission shall extend this time limit if a complainant 
shows that he or she was not notified of the time limits and was not 
otherwise aware of them, or that he or she was prevented by 
circumstances beyond his or her control from submitting the matter 
within the time limits. A technically incomplete complaint shall be 
deemed timely if the complainant cures any defect upon request.
    (e) Acceptance of complaint. (1) The Commission shall accept a 
complete complaint that is filed in accordance with paragraph (d) of 
this section and over which it has jurisdiction. The Director, Office of 
Equal Opportunity shall notify the complainant and the respondent of 
receipt and acceptance of the complaint.
    (2) If the Director, Office of Equal Opportunity receives a 
complaint that is not complete, he or she shall notify the complainant, 
within 30 days of receipt of the incomplete complaint, that additional 
information is needed. If the complainant fails to complete the 
complaint within 30 days of receipt of this notice, the Director shall 
dismiss the

[[Page 329]]

complaint without prejudice and shall so inform the complainant.
    (f) If the Commission receives a complaint over which it does not 
have jurisdiction, it shall promptly notify the complainant and shall 
make reasonable efforts to refer the complaint to the appropriate 
government entity.
    (g) The Commission shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with disabilities.
    (h) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the Commission shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (i) Appeals of the findings of fact and conclusions of law or 
remedies must be filed with the Chair of the Commission by the 
complainant within ninety calendar days of receipt from the Commission 
of the letter required by Sec.  1615.170(h). The Commission shall extend 
this time for good cause when a complainant shows that he or she was not 
notified of the prescribed time limit and was not otherwise aware of it 
or that circumstances beyond his or her control prevented the filing of 
an appeal within the prescribed time limit. An appeal shall be deemed 
filed on the date it is postmarked, or, in the absence of a postmark, on 
the date it is received by the Chair at EEOC headquarters. It should be 
clearly marked ``Appeal of section 504 decision'' or ``Appeal of section 
508 decision'' and should contain specific objections explaining why the 
person believes the initial decision was factually or legally wrong. 
Attached to the appeal letter should be a copy of the initial decision 
being appealed.
    (j) Timely appeals shall be decided by the Chair of the Commission 
unless the Commission determines that an appeal raises a policy issue 
which should be addressed by the full Commission.
    (1) The Chair will draft a decision within 30 days of receipt of an 
appeal and circulate it to the Commission.
    (2) If a Commissioner believes an appeal raises a policy issue that 
should be addressed by the full Commission, he or she shall so inform 
the Chair by notice in writing within ten calendar days of the 
circulation of the draft decision on appeal.
    (3) If the Chair does not receive such written notice, the decision 
on appeal shall be issued.
    (4) If the Chair receives written notice as described in 
subparagraph (2), the Commission shall resolve the appeal through a 
vote.
    (k) The Commission shall notify the complainant of the results of 
the appeal within ninety calendar days of the receipt of the appeal from 
the complainant. If the Commission determines that it needs additional 
information from the complainant, it shall have sixty days from the date 
it receives the additional information to make its determination on the 
appeal.
    (l) The time limits cited in paragraphs (h) and (k) of this section 
may be extended with the permission of the Assistant Attorney General.
    (m) The Commission may delegate its authority for conducting 
complaint investigations to other Federal agencies, or may contract with 
non-Federal entities to conduct such investigations except that the 
authority for making the final determination may not be delegated.
    (n) Civil actions. The remedies, procedures, and rights set forth in 
sections 505(a)(2) and 505(b) of the Rehabilitation Act, 29 U.S.C. 
794a(a)(2) and 794a(b) shall be the remedies, procedures, and rights 
available to any individual with a disability filing a complaint under 
this section.

[54 FR 22749, May 26, 1989, as amended at 71 FR 26830, May 9, 2006; 73 
FR 39868, July 11, 2008]

    Editorial Note: At 74 FR 3430, Jan. 21, 2009, Sec.  1615.170 was 
amended by removing the text ``1801 'L' Street NW.'' and adding, in its 
place, the text ``131 M Street, NE.'' in paragraphs (d)(2) and (i); 
however, the amendment could not be incorporated because the text does 
not exist.

[[Page 330]]



Sec. Sec.  1615.171-1615.999  [Reserved]



PART 1620_THE EQUAL PAY ACT--Table of Contents



Sec.
1620.1 Basic applicability of the Equal Pay Act.
1620.2 General coverage of employees ``engaged in commerce.''
1620.3 General coverage of employees ``engaged in * * * the production 
          of goods for commerce.''
1620.4 ``Closely related'' and ``directly essential'' activities.
1620.5 What goods are considered as ``produced for commerce.''
1620.6 Coverage is not based on amount of covered activity.
1620.7 ``Enterprise'' coverage.
1620.8 ``Employer,'' ``employee,'' and ``employ'' defined.
1620.9 Meaning of ``establishment.''
1620.10 Meaning of ``wages.''
1620.11 Fringe benefits.
1620.12 Wage ``rate.''
1620.13 ``Equal Work''--What it means.
1620.14 Testing equality of jobs.
1620.15 Jobs requiring equal skill in performance.
1620.16 Jobs requiring equal effort in performance.
1620.17 Jobs requiring equal responsibility in performance.
1620.18 Jobs performed under similar working conditions.
1620.19 Equality of wages--application of the principle.
1620.20 Pay differentials claimed to be based on extra duties.
1620.21 Head of household.
1620.22 Employment cost not a ``factor other than sex.''
1620.23 Collective bargaining agreements not a defense.
1620.24 Time unit for determining violations.
1620.25 Equalization of rates.
1620.26 Red circle rates.
1620.27 Relationship to the Equal Pay Act to title VII of the Civil 
          Rights Act.
1620.28 Relationship to other equal pay laws.
1620.29 Relationship to other labor laws.
1620.30 Investigations and compliance assistance.
1620.31 Issuance of subpoenas.
1620.32 Recordkeeping requirements.
1620.33 Recovery of wages due; injunctions; penalties for willful 
          violations.
1620.34 Rules to be liberally construed.

    Authority: Sec. 1-19, 52 Stat. 1060, as amended; sec. 10, 61 Stat. 
84; Pub. L. 88-38, 77 Stat. 56 (29 U.S.C. 201 et seq.); sec. 1, Reorg. 
Plan No. 1 of 1978, 43 FR 19807; E.O. 12144, 44 FR 37193.

    Source: 51 FR 29819, Aug. 20, 1986, unless otherwise noted.



Sec.  1620.1  Basic applicability of the Equal Pay Act.

    (a) Since the Equal Pay Act, 29 U.S.C. 206(d) (hereinafter referred 
to as the EPA), is a part of the Fair Labor Standards Act, 29 U.S.C. 
201, et seq. (hereinafter referred to as the FLSA), it has the same 
basic coverage as the FLSA with two principal exceptions:
    (1) The EPA applies to executive, administrative, and professional 
employees who are normally exempted from the FLSA for most purposes by 
section 13(a)(1) of that statute, and
    (2) The EPA covers all State and local government employees unless 
they are specifically exempted under section 3(e)(2)(C) of the FLSA.
    (b) The EPA does not apply where the employer has no employees who 
are engaged in commerce or in the handling of goods that have moved in 
commerce and the employer is not an enterprise engaged in commerce or in 
the production of goods for commerce.
    (c) Men are protected under the Act equally with women. While the 
EPA was motivated by concern for the weaker bargaining position of 
women, the Act by its express terms applies to both sexes.
    (d) Most employees of the United States Government, as described in 
section 3(e)(2) (A) and (B) of the FLSA, are covered by the EPA. 
Accordingly, these interpretations and principles may generally be 
applied to Federal sector employment.



Sec.  1620.2  General coverage of employees ``engaged in commerce.''

    (a) Like the FLSA, the EPA applies to employees ``engaged in 
commerce.'' ``Commerce'' is broadly defined in section 3(b) of the FLSA. 
It includes both interstate and foreign commerce and is not limited to 
transportation across State lines, or to activity of a commercial 
character. All parts of the movement among the several States, or 
between any State and any place outside thereof, of persons or things, 
tangibles or intangibles, including communication of information and 
intelligence, constitute movement in ``commerce'' within the statutory 
definition. This

[[Page 331]]

includes those parts of any such activity which take place wholly within 
a single State. In addition, the instrumentalities for carrying on such 
commerce are so inseparable from the commerce itself that employees 
working on such instrumentalities within the borders of a single State, 
by virtue of the contribution made by their work to the movement of the 
commerce, are ``engaged in commerce'' within the meaning of the FLSA.
    (b) Consistent with the purpose of the FLSA to apply Federal 
standards ``throughout the farthest reaches of the channels of 
interstate commerce,'' the courts have made it clear that the employees 
``engaged in commerce'' include every employee employed in the channels 
of such commerce or in activities so closely related to such commerce as 
to be considered a part of it as a practical matter. Engaging ``in 
commerce'' includes activities connected therewith such as management 
and control of the various physical processes, together with the 
accompanying accounting and clerical activities. Thus, employees engaged 
in interstate or foreign commerce will typically include, among others, 
employees in distributing industries such as wholesaling or retailing 
who sell, transport, handle, or otherwise work on goods moving in 
interstate or foreign commerce as well as workers who order, receive, 
guard, pack, ship or keep records of such goods; employees who handle 
payroll or personnel functions for workers engaged in such activities; 
clerical and other workers who regularly use the mails, telephone, or 
telegraph for communication across State lines; and employees who 
regularly travel across State lines while working. For other examples, 
see 29 CFR part 776.



Sec.  1620.3  General coverage of employees ``engaged in * * * the 
production of goods for commerce.''

    (a) Like the FLSA, the EPA applies to employees ``engaged in * * * 
the production of goods for commerce.'' The broad meaning of 
``commerce'' as defined in section 3(b) of the FLSA has been outlind in 
Sec.  1620.2. ``Goods'' is also comprehensively defined in section 3(i) 
of the FLSA and includes ``articles or subjects of commerce of any 
character, or any part or ingredient thereof'' not expressly excepted by 
the statute. The activities constituting ``production'' of the goods for 
commerce are defined in section 3(j) of the FLSA. These are not limited 
to such work as manufacturing but include handling or otherwise working 
on goods intended for shipment out of the State either directly or 
indirectly or for use within the State to serve the needs of the 
instrumentalities or facilities by which interstate or foreign commerce 
is carried on. Employees engaged in any closely related process or 
occupation directly essential to such production of any goods, whether 
employed by the producer or by an independent employer, are also 
engaged, by definition, in ``production.'' Thus, employees engaged in 
the administration, planning, management, and control of the various 
physical processes together with the accompanying clerical and 
accounting activities are, from a productive standpoint and for purposes 
of the FLSA, ``engaged in the production of goods for commerce.''
    (b) Employees engaged in the production of goods for interstate or 
foreign commerce include those who work in manufacturing, processing, 
and distributing establishments, including wholesale and retail 
establishments that ``produce'' (including handling or working on) goods 
for such commerce. This includes everyone employed in such 
establishments, or elsewhere in the enterprises by which they are 
operated, whose activities constitute ``production'' of such goods under 
the principles outlined in paragraph (a) of this section. Thus, 
employees who sell, process, load, pack, or otherwise handle or work on 
goods which are to be shipped or delivered outside the State either by 
their employer or by another firm, and either in the same form or as a 
part or ingredient of other goods, are engaged in the production of 
goods for commerce within the coverage of the FLSA. So also are the 
office, management, sales, and shipping personnel, and maintenance, 
custodial, and protective employees who perform as a part of the 
integrated effort for the production of the goods for commerce, services 
related to such production or

[[Page 332]]

to such goods or to the plant, equipment, or personnel by which the 
production is accomplished.



Sec.  1620.4  ``Closely related'' and ``directly essential'' activities.

    An employee is engaged in the production of goods for interstate or 
foreign commerce within the meaning of the FLSA even if the employees's 
work is not an actual and direct part of such production, so long as the 
employee is engaged in a process or occupation which is ``closely 
related'' and ``directly essential'' to it. This is true whether the 
employee is employed by the producer of the goods or by someone else who 
provides goods or services to the producer. Typical of employees covered 
under these principles are computer operators, bookkeepers, 
stenographers, clerks, accountants, and auditors and other office and 
whitecollar workers, and employees doing payroll, timekeeping, and time 
study work for the producer of goods; employees in the personnel, labor 
relations, employee benefits, safety and health, advertising, promotion, 
and public relations activities of the producing enterprise; work 
instructors for the producers; employees maintaining, servicing, 
repairing or improving the buildings, machinery, equipment, vehicles or 
other facilities used in the production of goods for commerce, and such 
custodial and productive employees as watchmen, guards, firemen, 
patrolmen, caretakers, stockroom workers and warehousemen; and 
transportation workers bringing supplies, materials, or equipment to the 
producer's premises, removing waste materials therefrom, or transporting 
materials or other goods, or performing such other transportation 
activities, as the needs of production may require. These examples are 
illustrative, rather than exhaustive, of the employees who are ``engaged 
in the production of goods for commerce'' by reason of performing 
activities closely related and directly essential to such production.



Sec.  1620.5  What goods are considered as ``produced for commerce.''

    Goods (as defined in section 3(i) of the FLSA) are ``produced for 
commerce'' if they are ``produced, manufactured, mined, handled or in 
any other manner worked on'' in any State for sale, trade, 
transportation, transmission, shipment, or delivery, to any place 
outside thereof. Goods are produced for commerce where the producer 
intends, hopes, expects, or has reason to believe that the goods or any 
unsegregated part of them will move (in the same or in an altered form 
or as a part of ingredient of other goods) in interstate or foreign 
commerce. If such movement of the goods in commerce can reasonably be 
anticipated by the producer when the goods are produced, it makes no 
difference whether the producer or the person to whom the goods are 
transferred puts the goods in interstate or foreign commerce. The fact 
that goods do move in interstate or foreign commerce is strong evidence 
that the producer intended, hoped, expected, or had reason to believe 
that they would so move. Goods may also be produced ``for commerce'' 
where they are to be used within the State and not transported in any 
form across State lines. This is true where the goods are used to serve 
the needs of the instrumentalities or facilities by which interstate or 
foreign commerce is carried on within the State. For examples, see 29 
CFR 776.20.



Sec.  1620.6  Coverage is not based on amount of covered activity.

    The FLSA makes no distinction as to the percentage, volume, or 
amount of activities of either the employee or the employer which 
constitute engaged in commerce or in the production of goods for 
commerce. Every employee whose activities in commerce or in the 
production of goods for commerce, even though small in amount, are 
regular and recurring, is considered ``engaged in commerce or in the 
production of goods for commerce''.



Sec.  1620.7  ``Enterprise'' coverage.

    (a) The terms ``enterprise'' and ``enterprise engaged in commerce or 
in the production of goods for commerce'' are defined in subsections 
3(r) and 3(s) of the FLSA. Under the enterprise concept, if a business 
is an ``enterprise engaged in commerce or in the production of goods for 
commerce,'' every employee employed in such enterprise or

[[Page 333]]

by such enterprise is within the coverage of the EPA unless specifically 
exempted in the FLSA, regardless of whether the individual employee is 
actually engaged in commerce or in the production of goods for commerce. 
The term ``enterprise'' is not synonymous with the terms ``employer'' or 
``establishment'' although on occasion the three terms may apply to the 
same business entity. An enterprise may consist of a single 
establishment operated by one or more employers. (See definitions of 
``employer'' and ``establishment'' in Sec. Sec.  1620.8 and 1620.9.)
    (b) In order to constitute an enterprise, the activities sought to 
be aggregated must be related to each other, they must be performed 
under a unified operation or common control, and they must be performed 
for a common business purpose. Activities are related when they are the 
same or similar, or when they are auxiliary services necessary to the 
operation and maintenance of the particular business. Activities 
constitute a unified operation when the activities are operated as a 
single business unit or economic entity. Activities are performed under 
common control when the power to direct, restrict, regulate, govern or 
administer the performance of the activities resides in a single person 
or entity or when it is shared by a group of persons or entities. 
Activities are performed for a common business purpose when they are 
directed to the same or similar business objectives. A determination 
whether the statutory characteristics of an enterprise are present in 
any particular case must be made on a case-by-case basis. See generally, 
subpart C of 29 CFR part 779 for a detailed discussion of the term 
``enterprise'' under the FLSA.



Sec.  1620.8  ``Employer,'' ``employee,'' and ``employ'' defined.

    The words ``employer,'' ``employee,'' and ``employ'' as used in the 
EPA are defined in the FLSA. Economic reality rather than technical 
concepts determines whether there is employment within the meaning of 
the EPA. The common law test based upon the power to control the manner 
of performance is not applicable to the determination of whether an 
employment relationship subject to the EPA exists. An ``employer,'' as 
defined in section 3(d) of the FLSA, means ``any person acting directly 
or indirectly in the interest of an employer in relation to an 
employee'' and includes a ``public agency,'' as defined in section 3(x). 
An ``employee,'' as defined in section 3(e) of the FLSA, ``means any 
individual employed by an employer.'' ``Employ,'' as used in the EPA, is 
defined in section 3(g) of the FLSA to include ``to suffer or permit to 
work.'' Two or more employers may be both jointly or severally 
responsible for compliance with the statutory requirements applicable to 
employment of a particular employee.



Sec.  1620.9  Meaning of ``establishment.''

    (a) Although not expressly defined in the FLSA, the term 
``establishment'' had acquired a well settled meaning by the time of 
enactment of the Equal Pay Act. It refers to a distinct physical place 
of business rather than to an entire business or ``enterprise'' which 
may include several separate places of business. Accordingly, each 
physically separate place of business is ordinarily considered a 
separate establishment.
    (b) In unusual circumstances, two or more portions of a business 
enterprise, even though located in a single physical place of business, 
may constitute more than one establishment. For example, the facts might 
reveal that these portions of the enterprise are physically segregated, 
engaged in functionally separate operations, and have separate employees 
and maintain separate records. Conversely, unusual circumstances may 
call for two or more distinct physical portions of a business enterprise 
being treated as a single establishment. For example, a central 
administrative unit may hire all employees, set wages, and assign the 
location of employment; employees may frequently interchange work 
locations; and daily duties may be virtually identical and performed 
under similar working conditions. Barring unusual circumstances, 
however, the term ``establishment'' will be applied as described in 
paragraph (a) of this section.

[[Page 334]]



Sec.  1620.10  Meaning of ``wages.''

    Under the EPA, the term ``wages'' generally includes all payments 
made to [or on behalf of] an employee as remuneration for employment. 
The term includes all forms of compensation irrespective of the time of 
payment, whether paid periodically or deferred until a later date, and 
whether called wages, salary, profit sharing, expense account, monthly 
minimum, bonus, uniform cleaning allowance, hotel accommodations, use of 
company car, gasoline allowance, or some other name. Fringe benefits are 
deemed to be remuneration for employment. ``Wages'' as used in the EPA 
(the purpose of which is to assure men and women equal remuneration for 
equal work) will therefore include payments which may not be counted 
under section 3(m) of the FLSA toward the minimum wage (the purpose of 
which is to assure employees a minimum amount of remuneration 
unconditionally available in cash or in board, lodging or other 
facilities). Similarly, the provisions of section 7(e) of the FLSA under 
which some payments may be excluded in computing an employee's ``regular 
rate'' of pay for purposes of section 7 do not authorize the exclusion 
of any such remuneration from the ``wages'' of an employee in applying 
the EPA. Thus, vacation and holiday pay, and premium payments for work 
on Saturdays, Sundays, holidays, regular days of rest or other days or 
hours in excess or outside of the employee's regular days or hours of 
work are deemed remuneration for employment and therefore wage payments 
that must be considered in applying the EPA, even though not a part of 
the employee's ``regular rate.''



Sec.  1620.11  Fringe benefits.

    (a) ``Fringe benefits'' includes, e.g., such terms as medical, 
hospital, accident, life insurance and retirement benefits; profit 
sharing and bonus plans; leave; and other such concepts.
    (b) It is unlawful for an employer to discriminate between men and 
women performing equal work with regard to fringe benefits. Differences 
in the application of fringe benefit plans which are based upon sex-
based actuarial studies cannot be justified as based on ``any other 
factor other than sex.''
    (c) Where an employer conditions benefits available to employees and 
their spouses and families on whether the employee is the ``head of the 
household'' or ``principal wage earner'' in the family unit, the overall 
implementation of the plan will be closely scrutinized.
    (d) It is unlawful for an employer to make available benefits for 
the spouses or families of employees of one gender where the same 
benefits are not made available for the spouses or families of opposite 
gender employees.
    (e) It shall not be a defense under the EPA to a charge of sex 
discrimination in benefits that the cost of such benefits is greater 
with respect to one sex than the other.
    (f) It is unlawful for an employer to have a pension or retirement 
plan which, with respect to benefits, establishes different optional or 
compulsory retirement ages based on sex or which otherwise 
differentiates in benefits on the basis of sex.

[51 FR 29816, Aug. 20, 1986; 51 FR 32636, Sept. 15, 1986]



Sec.  1620.12  Wage ``rate.''

    (a) The term wage ``rate,'' as used in the EPA, refers to the 
standard or measure by which an employee's wage is determined and is 
considered to encompass all rates of wages whether calculated on a time, 
commission, piece, job incentive, profit sharing, bonus, or other basis. 
The term includes the rate at which overtime compensation or other 
special remuneration is paid as well as the rate at which straight time 
compensation for ordinary work is paid. It further includes the rate at 
which a draw, advance, or guarantee is paid against a commission 
settlement.
    (b) Where a higher wage rate is paid to one gender than the other 
for the performance of equal work, the higher rate serves as a wage 
standard. When a violation of the Act is established, the higher rate 
paid for equal work is the standard to which the lower rate must be 
raised to remedy a violation of the Act.

[[Page 335]]



Sec.  1620.13  ``Equal Work''--What it means.

    (a) In general. The EPA prohibits discrimination by employers on the 
basis of sex in the wages paid for ``equal work on jobs the performance 
of which requires equal skill, effort and responsibility and which are 
performed under similar working conditions * * *.'' The word 
``requires'' does not connote that an employer must formally assign the 
equal work to the employee; the EPA applies if the employer knowingly 
allows the employee to perform the equal work. The equal work standard 
does not require that compared jobs be identical, only that they be 
substantially equal.
    (b) ``Male jobs'' and ``female jobs.'' (1) Wage classification 
systems which designate certain jobs as ``male jobs'' and other jobs as 
``female jobs'' frequently specify markedly lower rates for the 
``females jobs.'' Such practices indicate a pay practice of 
discrimination based on sex. It should also be noted that it is an 
unlawful employment practice under title VII of the Civil Rights Act of 
1964 to classify a job as ``male'' or ``female'' unless sex is a bona 
fide occupational qualification for the job.
    (2) The EPA prohibits discrimination on the basis of sex in the 
payment of wages to employees for work on jobs which are equal under the 
standards which the Act provides. For example, where an employee of one 
sex is hired or assigned to a particular job to replace an employee of 
the opposite sex but receives a lower rate of pay than the person 
replaced, a prima facie violation of the EPA exists. When a prima facie 
violation of the EPA exists, it is incumbent on the employer to show 
that the wage differential is justified under one or more of the Act's 
four affirmative defenses.
    (3) The EPA applies when all employees of one sex are removed from a 
particular job (by transfer or discharge) so as to retain employees of 
only one sex in a job previously performed interchangeably or 
concurrently by employees of both sexes. If a prohibited sex-based wage 
differential had been established or maintained in violation of the EPA 
when the job was being performed by employees of both sexes, the 
employer's obligation to pay the higher rate for the job cannot be 
avoided or evaded by the device of later confining the job to members of 
the lower paid sex.
    (4) If a person of one sex succeeds a person of the opposite sex on 
a job at a higher rate of pay than the predecessor, and there is no 
reason for the higher rate other than difference in gender, a violation 
as to the predecessor is established and that person is entitled to 
recover the difference between his or her pay and the higher rate paid 
the successor employee.
    (5) It is immaterial that a member of the higher paid sex ceased to 
be employed prior to the period covered by the applicable statute of 
limitations period for filing a timely suit under the EPA. The 
employer's continued failure to pay the member of the lower paid sex the 
wage rate paid to the higher paid predecessor constitutes a prima facie 
continuing violation. Also, it is no defense that the unequal payments 
began prior to the statutory period.
    (c) Standards for determining rate of pay. The rate of pay must be 
equal for persons performing equal work on jobs requiring equal skill, 
effort, and responsibility, and performed under similar working 
conditions. When factors such as seniority, education, or experience are 
used to determine the rate of pay, then those standards must be applied 
on a sex neutral basis.
    (d) Inequalities in pay that raise questions under the Act. It is 
necessary to scrutinize those inequalities in pay between employees of 
opposite sexes which may indicate a pattern of discrimination in wage 
payment that is based on sex. Thus, a serious question would be raised 
where such an inequality, allegedly based on a difference in job 
content, is in fact one in which the employee occupying the job 
purportedly requiring the higher degree of skill, effort, or 
responsibility receives the lower wage rate. Likewise, because the EPA 
was designed to eliminate wage rate differentials which are based on 
sex, situations will be carefully scrutinized where employees of only 
one sex are concentrated in the lower levels of the wage scale, and 
where there does not appear to be any material relationship other than 
sex between the lower wage rates paid to

[[Page 336]]

such employees and the higher rates paid to employees of the opposite 
sex.
    (e) Job content controlling. Application of the equal pay standard 
is not dependent on job classifications or titles but depends rather on 
actual job requirements and performance. For example, the fact that jobs 
performed by male and female employees may have the same total point 
value under an evaluation system in use by the employer does not in 
itself mean that the jobs concerned are equal according to the terms of 
the statute. Conversely, although the point values allocated to jobs may 
add up to unequal totals, it does not necessarily follow that the work 
being performed in such jobs is unequal when the statutory tests of the 
equal pay standard are applied. Job titles are frequently of such a 
general nature as to provide very little guidance in determining the 
application of the equal pay standard. For example, the job title 
``clerk'' may be applied to employees who perform a variety of duties so 
dissimilar as to place many of them beyond the scope of comparison under 
the Act. Similarly, jobs included under the title ``stock clerk'' may 
include an employee of one sex who spends all or most of his or her 
working hours in shifting and moving goods in the establishment whereas 
another employee, of the opposite sex, may also be described as a 
``stock clerk'' but be engaged entirely in checking inventory. In the 
case of jobs identified by the general title ``retail clerk'', the facts 
may show that equal skill, effort, and responsibility are required in 
the jobs of male and female employees notwithstanding that they are 
engaged in selling different kinds of merchandise. In all such 
situations, the application of the equal pay standard will have to be 
determined by applying the terms of the Act to the specific facts 
involved.



Sec.  1620.14  Testing equality of jobs.

    (a) In general. What constitutes equal skill, equal effort, or equal 
responsibility cannot be precisely defined. In interpreting these key 
terms of the statute, the broad remedial purpose of the law must be 
taken into consideration. The terms constitute separate tests, each of 
which must be met in order for the equal pay standard to apply. It 
should be kept in mind that ``equal'' does not mean ``identical.'' 
Insubstantial or minor differences in the degree or amount of skill, or 
effort, or responsibility required for the performance of jobs will not 
render the equal pay standard inapplicable. On the other hand, 
substantial differences, such as those customarily associated with 
differences in wage levels when the jobs are performed by persons of one 
sex only, will ordinarily demonstrate an inequality as between the jobs 
justifying differences in pay. However, differences in skill, effort or 
responsibility which might be sufficient to justify a finding that two 
jobs are not equal within the meaning of the EPA if the greater skill, 
effort, or responsibility has been required of the higher paid sex, do 
not justify such a finding where the greater skill, effort, or 
responsibility is required of the lower paid sex. In determining whether 
job differences are so substantial as to make jobs unequal, it is 
pertinent to inquire whether and to what extent significance has been 
given to such differences in setting the wage levels for such jobs. Such 
an inquiry may, for example, disclose that apparent differences between 
jobs have not been recognized as relevant for wage purposes and that the 
facts as a whole support the conclusion that the differences are too 
insubstantial to prevent the jobs from being equal in all significant 
respects under the law.
    (b) Illustrations of the concept. Where employees of opposite sexes 
are employed in jobs in which the duties they are required to perform 
and the working conditions are substantially the same, except that an 
employee of one sex is required to perform some duty or duties involving 
a higher skill which an employee of the other sex is not required to 
perform, the fact that the duties are different in this respect is 
insufficient to remove the jobs from the application of the equal pay 
standard if it also appears that the employer is paying a lower wage 
rate to the employee performing the additional duties notwithstanding 
the additional skill which they involve. In other situations, where 
employees of the opposite sex are employed in jobs which are equal in 
the levels of skill, effort, and

[[Page 337]]

responsibility required for their performance, it may be alleged that 
the assignment to employees of one sex but not the other of certain 
duties requiring less skill makes the jobs too different for comparison 
under the equal pay provisions. But so long as the higher level of skill 
is required for the performance of the jobs occupied by employees of 
both sexes, the fact that some of the duties assigned to employees of 
one sex require less skill than the employee must have for the job as a 
whole does not warrant any conclusion that the jobs are outside the 
purview of the equal pay standard.
    (c) Determining equality of job content in general. In determining 
whether employees are performing equal work within the meaning of the 
EPA, the amounts of time which employees spend in the performance of 
different duties are not the sole criteria. It is also necessary to 
consider the degree of difference in terms of skill, effort, and 
responsibility. These factors are related in such a manner that a 
general standard to determine equality of jobs cannot be set up solely 
on the basis of a percentage of time. Consequently, a finding that one 
job requires employees to expend greater effort for a certain percentage 
of their working time than employees performing another job, would not 
in itself establish that the two jobs do not constitute equal work. 
Similarly, the performance of jobs on different machines or equipment 
would not necessarily result in a determination that the work so 
performed is unequal within the meaning of the statute if the equal pay 
provisions otherwise apply. If the difference in skill or effort 
required for the operation of such equipment is inconsequential, payment 
of a higher wage rate to employees of one sex because of a difference in 
machines or equipment would constitute a prohibited wage rate 
differential. Where greater skill or effort is required from the lower 
paid sex, the fact that the machines or equipment used to perform 
substantially equal work are different does not defeat a finding that 
the EPA has been violated. Likewise, the fact that jobs are performed in 
different departments or locations within the establishment would not 
necessarily be sufficient to demonstrate that unequal work is involved 
where the equal pay standard otherwise applies. This is particularly 
true in the case of retail establishments, and unless a showing can be 
made by the employer that the sale of one article requires such higher 
degree of skill or effort than the sale of another article as to render 
the equal pay standard inapplicable, it will be assumed that the 
salesmen and saleswomen concerned are performing equal work. Although 
the equal pay provisions apply on an establishment basis and the jobs to 
be compared are those in the particular establishment, all relevant 
evidence that may demonstrate whether the skill, effort, and 
responsibility required in the jobs in the particular establishment are 
equal should be considered, whether this relates to the performance of 
like jobs in other establishments or not.



Sec.  1620.15  Jobs requiring equal skill in performance.

    (a) In general. The jobs to which the equal pay standard is 
applicable are jobs requiring equal skill in their performance. Where 
the amount or degree of skill required to perform one job is 
substantially greater than that required to perform another job, the 
equal pay standard cannot apply even though the jobs may be equal in all 
other respects. Skill includes consideration of such factors as 
experience, training, education, and ability. It must be measured in 
terms of the performance requirements of the job. If an employee must 
have essentially the same skill in order to perform either of two jobs, 
the jobs will qualify under the EPA as jobs the performance of which 
requires equal skill, even though the employee in one of the jobs may 
not exercise the required skill as frequently or during as much of his 
or her working time as the employee in the other job. Possession of a 
skill not needed to meet the requirements of the job cannot be 
considered in making a determination regarding equality of skill. The 
efficiency of the employee's performance in the job is not in itself an 
appropriate factor to consider in evaluating skill.
    (b) Comparing skill requirements of jobs. As a simple illustration 
of the principle of equal skill, suppose that a man

[[Page 338]]

and a woman have jobs classified as administrative assistants. Both jobs 
require them to spend two-thirds of their working time facilitating and 
supervising support-staff duties, and the remaining one-third of their 
time in diversified tasks, not necessarily the same. Since there is no 
difference in the skills required for the vast majority of their work, 
whether or not these jobs require equal skill in performance will depend 
upon the nature of the work performed during the latter period to meet 
the requirements of the jobs.



Sec.  1620.16  Jobs requiring equal effort in performance.

    (a) In general. The jobs to which the equal pay standard is 
applicable are jobs that require equal effort to perform. Where 
substantial differences exist in the amount or degree of effort required 
to be expended in the performance of jobs, the equal pay standard cannot 
apply even though the jobs may be equal in all other respects. Effort is 
concerned with the measurement of the physical or mental exertion needed 
for the performance of a job. Job factors which cause mental fatigue and 
stress, as well as those which alleviate fatigue, are to be considered 
in determining the effort required by the job. ``Effort'' encompasses 
the total requirements of a job. Where jobs are otherwise equal under 
the EPA, and there is no substantial difference in the amount or degree 
of effort which must be expended in performing the jobs under 
comparison, the jobs may require equal effort in their performance even 
though the effort may be exerted in different ways on the two jobs. 
Differences only in the kind of effort required to be expended in such a 
situation will not justify wage differentials.
    (b) Comparing effort requirements of jobs. To illustrate the 
principle of equal effort exerted in different ways, suppose that a male 
checker employed by a supermarket is required to spend part of his time 
carrying out heavy packages or replacing stock involving the lifting of 
heavy items whereas a female checker is required to devote an equal 
degree of effort during a similar portion of her time to performing 
fill-in work requiring greater dexterity--such as rearranging displays 
of spices or other small items. The difference in kind of effort 
required of the employees does not appear to make their efforts unequal 
in any respect which would justify a wage differential, where such 
differences in kind of effort expended to perform the job are not 
ordinarily considered a factor in setting wage levels. Further, the 
occasional or sporadic performance of an activity which may require 
extra physical or mental exertion is not alone sufficient to justify a 
finding of unequal effort. Suppose, however, that men and women are 
working side by side on a line assembling parts. Suppose further that 
one of the men who performs the operations at the end of the line must 
also lift the assembly, as he completes his part of it, and places it on 
a waiting pallet. In such a situation, a wage rate differential might be 
justified for the person (but only for the person) who is required to 
expend the extra effort in the performance of his job, provided that the 
extra effort so expended is substantial and is performed over a 
considerable portion of the work cycle. In general, a wage rate 
differential based on differences in the degree or amount of effort 
required for performance of jobs must be applied uniformly to men and 
women. For example, if all women and some men performing a particular 
type of job never perform heavy lifting, but some men do, payment of a 
higher wage rate to all of the men would constitute a prohibited wage 
rate differential if the equal pay provisions otherwise apply.



Sec.  1620.17  Jobs requiring equal responsibility in performance.

    (a) In general. The equal pay standard applies to jobs the 
performance of which requires equal responsibility. Responsibility is 
concerned with the degree of accountability required in the performance 
of the job, with emphasis on the importance of the job obligation. 
Differences in the degree of responsibility required in the performance 
of otherwise equal jobs cover a wide variety of situations. The 
following illustrations in subsection (b), while by no means exhaustive, 
may

[[Page 339]]

suggest the nature or degree of differences in responsibility which will 
constitute unequal work.
    (b) Comparing responsibility requirements of jobs. (1) There are 
many situations where one employee of a group performing jobs which are 
equal in other respects is required from time to time to assume 
supervisory duties for reasons such as the absence of the regular 
supervisor. Suppose, for instance, that it is the employer's practice to 
pay a higher wage rate to such a ``relief'' supervisor with the 
understanding that during the intervals in which the employee performs 
supervisory duties the employee is in training for a supervisory 
position. In such a situation, payment of the higher rate to the 
employee might well be based solely on the additional responsibility 
required to perform the job and the equal pay provisions would not 
require the same rates to be paid to an employee of the opposite sex in 
the group who does not have an equal responsibility. There would clearly 
be no question concerning such a wage rate differential if the employer 
pays the higher rate to both men and women who are called upon from time 
to time to assume such supervisory responsibilities.
    (2) Other differences in responsibilities of employees in generally 
similar jobs may require similar conclusions. Sales clerks, for example, 
who are engaged primarily in selling identical or similar merchandise 
may be given different responsibilities. Suppose that one employee of 
such a group (who may be either a man or a woman) is authorized and 
required to determine whether to accept payment for purchases by 
personal checks of customers. The person having this authority to accept 
personal checks may have a considerable, additional degree of 
responsibility which may materially affect the business operations of 
the employer. In this situation, payment of a higher wage rate to this 
employee would be permissible.
    (3) On the other hand, there are situations where one employee of 
the group may be given some minor responsibility which the others do not 
have (e.g., turning out the lights in his or her department at the end 
of the business day) but which is not of sufficient consequence or 
importance to justify a finding of unequal responsibility. As another 
example of a minor difference in responsibility, suppose that office 
employees of both sexes work in jobs essentially alike but at certain 
intervals a male and female employee performing otherwise equal work 
within the meaning of the statute are responsible for the office 
payroll. One of these employees may be assigned the job of checking time 
cards and compiling the payroll list. The other, of the opposite sex, 
may be required to make out paychecks, or divide up cash and put the 
proper amounts into pay envelopes after drawing a payroll check. In such 
circumstances, although some of the employees' duties are occasionally 
dissimilar, the difference in responsibility involved would not appear 
to be of a kind that is recognized in wage administration as a 
significant factor in determining wage rates. Under such circumstances, 
this difference would seem insufficient to justify a wage rate 
differential between the man's and woman's job if the equal pay 
provisions otherwise apply.



Sec.  1620.18  Jobs performed under similar working conditions.

    (a) In general. In order for the equal pay standard to apply, the 
jobs are required to be performed under similar working conditions. It 
should be noted that the EPA adopts the flexible standard of similarity 
as a basis for testing this requirement. In determining whether the 
requirement is met, a practical judgment is required in light of whether 
the differences in working conditions are the kind customarily taken 
into consideration in setting wage levels. The mere fact that jobs are 
in different departments of an establishment will not necessarily mean 
that the jobs are performed under dissimilar working conditions. This 
may or may not be the case. The term ``similar working conditions'' 
encompasses two subfactors: ``surroundings'' and ``hazards.'' 
``Surroundings'' measure the elements, such as toxic chemicals or fumes, 
regularly encountered by a worker, their intensity and their frequency. 
``Hazards'' take into account the physical hazards regularly 
encountered, their frequency and the severity

[[Page 340]]

of injury they can cause. The phrase ``working conditions'' does not 
encompass shift differentials.
    (b) Determining similarity of working conditions. Generally, 
employees performing jobs requiring equal skill, effort, and 
responsibility are likely to be performing them under similar working 
conditions. However, in situations where some employees performing work 
meeting these standards have working conditions substantially different 
from those required for the performance of other jobs, the equal pay 
principle would not apply. On the other hand, slight or inconsequential 
differences in working conditions which are not usually taken into 
consideration by employers or in collective bargaining in setting wage 
rates would not justify a differential in pay.



Sec.  1620.19  Equality of wages--application of the principle.

    Equal wages must be paid in the same medium of exchange. In 
addition, an employer would be prohibited from paying higher hourly 
rates to all employees of one sex and then attempting to equalize the 
differential by periodically paying employees of the opposite sex a 
bonus. Comparison can be made for equal pay purposes between employees 
employed in equal jobs in the same establishment although they work in 
different departments.



Sec.  1620.20  Pay differentials claimed to be based on extra duties.

    Additional duties may not be a defense to the payment of higher 
wages to one sex where the higher pay is not related to the extra 
duties. The Commission will scrutinize such a defense to determine 
whether it is bona fide. For example, an employer cannot successfully 
assert an extra duties defense where:
    (a) Employees of the higher paid sex receive the higher pay without 
doing the extra work;
    (b) Members of the lower paid sex also perform extra duties 
requiring equal skill, effort, and responsibility;
    (c) The proffered extra duties do not in fact exist;
    (d) The extra task consumes a minimal amount of time and is of 
peripheral importance; or
    (e) Third persons (i.e., individuals who are not in the two groups 
of employees being compared) who do the extra task as their primary job 
are paid less than the members of the higher paid sex for whom there is 
an attempt to justify the pay differential.



Sec.  1620.21  Head of household.

    Since a ``head of household'' or ``head of family'' status bears no 
relationship to the requirements of the job or to the individual's 
performance on the job, such a claimed defense to an alleged EPA 
violation will be closely scrutinized as stated in Sec.  1620.11(c).



Sec.  1620.22  Employment cost not a ``factor other than sex.''

    A wage differential based on claimed differences between the average 
cost of employing workers of one sex as a group and the average cost of 
employing workers of the opposite sex as a group is discriminatory and 
does not qualify as a differential based on any ``factor other than 
sex,'' and will result in a violation of the equal pay provisions, if 
the equal pay standard otherwise applies.



Sec.  1620.23  Collective bargaining agreements not a defense.

    The establishment by collective bargaining or inclusion in a 
collective bargaining agreement of unequal rates of pay does not 
constitute a defense available to either an employer or to a labor 
organization. Any and all provisions in a collective bargaining 
agreement which provide unequal rates of pay in conflict with the 
requirements of the EPA are null and void and of no effect.



Sec.  1620.24  Time unit for determining violations.

    In applying the various tests of equality to the requirements for 
the performance of particular jobs, it is necessary to scrutinize each 
job as a whole and to look at the characteristics of the jobs being 
compared over a full work cycle. For the purpose of such a comparison, 
the appropriate work cycle to be determined would be that performed by 
members of the lower paid sex and a comparison then made with job duties 
performed by members of the higher paid sex during

[[Page 341]]

a similar work cycle. The appropriate work cycle will be determined by 
an examination of the facts of each situation. For example, where men 
and women custodial workers in a school system perform equal work during 
the academic year, but the men perform additional duties in the summer 
months, the appropriate work cycle for EPA purposes would be the 
academic year. In that instance, the additional summer duties would not 
preclude the application of the equal pay standard or justify the higher 
wage rate for men for the period when the work was equal.



Sec.  1620.25  Equalization of rates.

    Under the express terms of the EPA, when a prohibited sex-based wage 
differential has been proved, an employer can come into compliance only 
by raising the wage rate of the lower paid sex. The rate-reduction 
provision of the EPA prohibits an employer from attempting to cure a 
violation by hiring or transferring employees to perform the previously 
lower-paid job at the lower rate. Similarly, the departure of the higher 
paid sex from positions where a violation occurred, leaving only members 
of the lower paid sex being paid equally among themselves, does not cure 
the EPA violations.



Sec.  1620.26  Red circle rates.

    (a) The term ``red circle'' rate is used to describe certain 
unusual, higher than normal, wage rates which are maintained for reasons 
unrelated to sex. An example of bona fide use of a ``red circle'' rate 
might arise in a situation where a company wishes to transfer a long-
service employee, who can no longer perform his or her regular job 
because of ill health, to different work which is now being performed by 
opposite gender-employees. Under the ``red circle'' principle the 
employer may continue to pay the employee his or her present salary, 
which is greater than that paid to the opposite gender employees, for 
the work both will be doing. Under such circumstances, maintaining an 
employee's established wage rate, despite a reassignment to a less 
demanding job, is a valid reason for the differential even though other 
employees performing the less demanding work would be paid at a lower 
rate, since the differential is based on a factor other than sex. 
However, where wage rate differentials have been or are being paid on 
the basis of sex to employees performing equal work, rates of the higher 
paid employees may not be ``red circled'' in order to comply with the 
EPA. To allow this would only continue the inequities which the EPA was 
intended to cure.
    (b) For a variety of reasons an employer may require an employee, 
for a short period, to perform the work of a job classification other 
than the employee's regular classification. If the employee's rate for 
his or her regular job is higher than the rate usually paid for the work 
to which the employee is temporarily reassigned, the employer may 
continue to pay the higher rate under the ``red circle'' principle. For 
instance, an employer who must reduce help in a skilled job may transfer 
employees to less demanding work without reducing their pay, in order to 
have them available when they are again needed for their former jobs. 
Although employees traditionally engaged in performing the less 
demanding work would be paid at a lower rate than those employees 
transferred from the more skilled jobs, the resultant wage differential 
would not constitute a violation of the equal pay provisions since the 
differential is based on factors other than sex. This would be true 
during the period of time for which the ``red circle'' rate is bona 
fide. Temporary reassignments may also involve the opposite relationship 
of wage rates. Thus, an employee may be required, during the period of 
temporary reassignment, to perform work for which employees of the 
opposite sex are paid a higher wage rate than that paid for the duties 
of the employee's regular job classification. In such a situation, the 
employer may continue to pay the reassigned employee at the lower rate, 
if the rate is not based on quality or quantity of production , and if 
the reassignment is in fact a temporary one. If, however, a piece rate 
is paid employees of the opposite sex who perform the work to which the 
employee in question is reassigned, failure to pay the reassigned 
employee the same piece rate paid such other employees

[[Page 342]]

would raise questions of discrimination based on sex. Also, failure to 
pay the higher rate to a reassigned employee after it becomes known that 
the reassignment will not be of a temporary nature would raise a 
question whether sex rather than the temporary nature of the assignment 
is the real basis for the wage differential. Generally, failure to pay 
the higher rate to an employee reassigned for a period longer than one 
month will raise questions as to whether the reassignment was in fact 
intended to be temporary.



Sec.  1620.27  Relationship to the Equal Pay Act of title VII of the
Civil Rights Act.

    (a) In situations where the jurisdictional prerequisites of both the 
EPA and title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 
200e et seq., are satisfied, any violation of the Equal Pay Act is also 
a violation of title VII. However, title VII covers types of wage 
discrimination not actionable under the EPA. Therefore, an act or 
practice of an employer or labor organization that is not a violation of 
the EPA may nevertheless be a violation of title VII.
    (b) Recovery for the same period of time may be had under both the 
EPA and title VII so long as the same individual does not receive 
duplicative relief for the same wrong. Relief is computed to give each 
individual the highest benefit which entitlement under either statute 
would provide. (e.g., liquidated damages may be available under the EPA 
but not under title VII.) Relief for the same individual may be computed 
under one statute for one or more periods of the violation and under the 
other statute for other periods of the violation.
    (c) The right to equal pay under the Equal Pay Act has no 
relationship to whether the employee is in the lower paying job as a 
result of discrimination in violation of title VII. Under the EPA a 
prima facie violation is established upon a showing that an employer 
pays different wages to employees of opposite sexes for equal work on 
jobs requiring equal skill, effort and responsibility, and which are 
performed under similar working conditions. Thus, the availability of a 
remedy under title VII which would entitle the lower paid employee to be 
hired into, or to transfer to, the higher paid job does not defeat the 
right of each person employed on the lower paid job to the same wages as 
are paid to a member of the opposite sex who receives higher pay for 
equal work.



Sec.  1620.28  Relationship to other equal pay laws.

    The provisions of various State or local laws may differ from the 
equal pay provisions set forth in the FLSA. No provisions of the EPA 
will excuse noncompliance with any State or other law establishing fewer 
defenses or more liberal work criteria than those of the EPA. On the 
other hand, compliance with other applicable legislation will not excuse 
violations of the EPA.



Sec.  1620.29  Relationship to other labor laws.

    If a higher minimum wage than that required under the FLSA is 
applicable to a particular sex pursuant to State law, and the employer 
pays the higher State minimum wage to male or female employees, it must 
also pay the higher rate to employees of the opposite sex for equal work 
in order to comply with the EPA. Similarly, if overtime premiums are 
paid to members of one sex because of a legal requirement, such premiums 
must also be paid to employees of the other sex.



Sec.  1620.30  Investigations and compliance assistance.

    (a) As provided in sections 9, 11, 16, and 17 of the FLSA, the 
Commission and its authorized representatives under the Act may (1) 
investigate and gather data; (2) enter and inspect establishments and 
records, and make transcriptions thereof, and interview individuals; (3) 
advise employers regarding any changes necessary or desirable to comply 
with the Act; (4) subpoena witnesses and order production of documents 
and other evidence; (5) supervise the payment of amounts owing pursuant 
to section 16(c) of the FLSA; (6) initiate and conduct litigation.
    (b) The General Counsel, District Directors, Washington Field Office 
Director, and the Program Director, Office

[[Page 343]]

of Program Operations, or the designees of any of them are hereby 
delegated authority to exercise the powers enumerated in paragraphs (a) 
(1), (2), (3), and (5) of this section and to serve subpoenas. The 
General Counsel is delegated authority to seek preliminary relief under 
the Act. The General Counsel is hereby delegated authority to initiate 
other litigation at the direction of the Commission and to conduct such 
litigation.
    (c) The identity or identifying details of persons giving 
information in confidence as to violations of the Act shall not be 
disclosed unless necessary in a court proceeding.

[46 FR 4888, Jan. 19, 1981, as amended at 47 FR 46276, Oct. 18, 1982; 50 
FR 30700, July 29, 1985. Redesignated at 51 FR 29819, Aug. 20, 1986, and 
amended at 54 FR 32063, Aug. 4, 1989]



Sec.  1620.31  Issuance of subpoenas.

    (a) With respect to the enforcement of the Equal Pay Act, any member 
of the Commission shall have the authority to sign a subpoena requiring:
    (1) The attendance and testimony of witnesses;
    (2) The production of evidence including, but not limited to, books, 
records, correspondence, or documents, in the possession or under the 
control of the person subpoenaed; and
    (3) Access to evidence for the purposes of examination and the right 
to copy.
    (b) There is no right of appeal to the Commission from the issuance 
of such a subpoena.
    (c) Upon the failure of any person to comply with a subpoena issued 
under this section, the Commission may utilize the provisions of 
sections 49 and 50 of title 15 of the United States Code to compel 
enforcement of the subpoena.

[46 FR 4888, Jan. 19, 1981. Redesignated at 51 FR 29819, Aug. 20, 1986]



Sec.  1620.32  Recordkeeping requirements.

    (a) Employers having employees subject to the Act are required to 
keep records in accordance with U.S. Department of Labor regulations 
found at 29 CFR part 516 (Records To Be Kept by Employers Under the 
FLSA). The regulations of that part are adopted herein by reference.
    (b) Every employer subject to the equal pay provisions of the Act 
shall maintain and preserve all records required by the applicable 
sections of 29 CFR part 516 and in addition, shall preserve any records 
which he makes in the regular course of his business operation which 
relate to the payment of wages, wage rates, job evaluations, job 
descriptions, merit systems, seniority systems, collective bargaining 
agreements, description of practices or other matters which describe or 
explain the basis for payment of any wage differential to employees of 
the opposite sex in the same establishment, and which may be pertinent 
to a determination whether such differential is based on a factor other 
than sex.
    (c) Each employer shall preserve for at least two years the records 
he makes of the kind described in Sec.  1620.32(b) which explain the 
basis for payment of any wage differential to employees of the opposite 
sex in the same establishment.

(Approved by the Office of Management and Budget under control number 
3046-0019)

(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[46 FR 4888, Jan. 19, 1981, as amended at 46 FR 63268, Dec. 31, 1981. 
Redesignated at 51 FR 29819, Aug. 20, 1986]



Sec.  1620.33  Recovery of wages due; injunctions; penalties for willful
violations.

    (a) Wages withheld in violation of the Act have the status of unpaid 
minimum wages or unpaid overtime compensation under the FLSA. This is 
true both of the additional wages required by the Act to be paid to an 
employee to meet the equal pay standard, and of any wages that the 
employer should have paid an employee whose wages he reduced in 
violation of the Act in an attempt to equalize his or her pay with that 
of an employee of the opposite sex performing equal work, on jobs 
subject to the Act.
    (b) The following methods are provided under sections 16 and 17 of 
the FLSA for recovery of unpaid wages: The Commission may supervise 
payment of the back wages and may bring suit for back pay and an equal 
amount as liquidated damages. The employee may sue for back pay and an 
additional

[[Page 344]]

sum, up to the amount of back pay, as liquidated damages, plus 
attorney's fees and court costs. The employee may not bring suit if he 
or she has been paid back wages in full under supervision of the 
Commission, or if the Commission has filed suit under the Act to collect 
the wages due the employee. The Commission may also obtain a court 
injunction to restrain any person from violating the law, including the 
unlawful withholding by an employer of proper compensation. A 2-year 
statute of limitations applies to the recovery of unpaid wages, except 
that an action on a cause of action arising out of a willful violation 
may be commenced within 3 years after the cause of action accrued.
    (c) Willful violations of the Act may be prosecuted criminally and 
the violator fined up to $10,000. A second conviction for such a 
violation may result in imprisonment.
    (d) Violation of any provision of the Act by any person, including 
any labor organization or agent thereof, is unlawful, as provided in 
section 15(a) of the FLSA. Accordingly, any labor organization, or agent 
thereof, who violates any provision of the Act is subject to injunction 
proceedings in accordance with the applicable provisions of section 17 
of the FLSA. Any such labor organization, or agent thereof, who 
willfully violates the provisions of section 15 is liable to the 
penalties set forth in section 16(a) of the FLSA.

[46 FR 4888, Jan. 19, 1981. Redesignated at 51 FR 29819, Aug. 20, 1986]



Sec.  1620.34  Rules to be liberally construed.

    (a) These rules and regulations shall be liberally construed to 
effectuate the purpose and provisions of this Act and any other Act 
administered by the Commission.
    (b) Any person claiming to be aggrieved or the agent for such person 
may advise the Commission of the statute or statutes under which he or 
she wishes the Commission to commence its inquiry.
    (c) Whenever the Commission is investigating a charge or allegation 
relating to a possible violation of one of the statutes which it 
administers and finds a violation of one or more of the other statutes 
which it administers, the Commission may seek to remedy such violation 
in accordance with the procedures of all relevant statutes.

[46 FR 4888, Jan. 19, 1981. Redesignated at 51 FR 29819, Aug. 20, 1986]



PART 1621_PROCEDURES_THE EQUAL PAY ACT--Table of Contents



Sec.
1621.1 Purpose.
1621.2 Definitions.
1621.3 Procedure for requesting an opinion letter.
1621.4 Effect of opinions and interpretations of the Commission.

    Authority: Secs. 1-19, 52 Stat. 1060, as amended, secs. 10-16, 61 
Stat. 84, Pub. L. 88-38, 77 Stat. 56 (29 U.S.C. 201 et seq.); sec. 1, 
Reorgan. Plan No. 1 of 1978, 43 FR 19807; E. O. 12144, 44 FR 37193.

    Source: 49 FR 31411, Aug. 7, 1984, unless otherwise noted.



Sec.  1621.1  Purpose.

    The regulations set forth in this part contain the procedures 
established by the Equal Employment Opportunity Commission for issuing 
opinion letters under the Equal Pay Act.



Sec.  1621.2  Definitions.

    For purposes of this part, the term the Act shall mean the Equal Pay 
Act the Commission shall mean the Equal Employment Opportunity 
Commission or any of its designated representatives.



Sec.  1621.3  Procedure for requesting an opinion letter.

    (a) A request for an opinion letter should be submitted in writing 
to the Chairman, Equal Employment Opportunity Commission, 131 M Street, 
NE., Washington, DC 20507, and shall contain:
    (1) A concise statement of the issues for which an opinion is 
requested;
    (2) A full statement of the relevant facts and law; and
    (3) The names and addresses of the person(s) making the request and 
other interested persons.
    (b) Issuance of an opinion letter by the Commission is 
discretionary.
    (c) Informal advice: When the Commission, at its discretion, 
determines

[[Page 345]]

that it will not issue an opinion letter as defined in Sec.  1621.4, the 
Commission may provide informal advice or guidance to the requestor. An 
informal letter of advice does not represent the formal position of the 
Commission and does not commit the Commission to the views expressed 
therein. Any letter other than those defined in Sec.  1621.4 will be 
considered a letter of advice and may not be relied upon by any employer 
within the meaning of section 10 of the Portal to Portal Act of 1947, 29 
U.S.C. 255.

[49 FR 31411, Aug. 7, 1984, as amended at 71 FR 26831, May 9, 2006; 74 
FR 3430, Jan. 21, 2009]



Sec.  1621.4  Effect of opinions and interpretations of the Commission.

    (a) Section 10 of the Portal to Portal Act of 1947, 29 U.S.C. 255, 
which applies to the Equal Pay Act of 1963, 29 U.S.C. 206(d), provides 
that:

    In any action or proceeding based on any act or omission on or after 
the date of the enactment of this Act, no employer shall be subject to 
any liability or punishment * * * if he pleads and proves that the act 
or omission complained of was in good faith in conformity with and in 
reliance on any written administrative regulation, order, ruling, 
approval or interpretation * * * or any administrative practice or 
enforcement policy of [the Commission].


The Commission has determined that only the following documents may be 
relied upon by any employer as a ``ruling, approval or interpretation'' 
or as ``evidence of any administrative practice or enforcement policy'' 
of the Commission within the meaning of the statutory provisions quoted 
above.
    (1) A written document, entitled ``opinion letter,'' signed by the 
Legal Counsel on behalf of and as approved by the Commission;
    (2) A written document issued in the conduct of litigation, entitled 
``opinion letter,'' signed by the General Counsel on behalf of and as 
approved by the Commission;
    (3) A matter published and specifically designated as such in the 
Federal Register.
    (b) An opinion letter issued pursuant to paragraph (a)(1) or (a)(2) 
of this section, when issued to a specific addressee, has no effect upon 
circumstances beyond the situation of the specific addressee.



PART 1625_AGE DISCRIMINATION IN EMPLOYMENT ACT--Table of Contents



                        Subpart A_Interpretations

Sec.
1625.1 Definitions.
1625.2 Discrimination prohibited by the Act.
1625.3 Employment agency.
1625.4 Help wanted notices or advertisements.
1625.5 Employment applications.
1625.6 Bona fide occupational qualifications.
1625.7 Differentiations based on reasonable factors other than age.
1625.8 Bona fide seniority systems.
1625.9 Prohibition of involuntary retirement.
1625.10 Costs and benefits under employee benefit plans.
1625.11 Exemption for employees serving under a contract of unlimited 
          tenure.
1625.12 Exemption for bona fide executive or high policymaking 
          employees.

                    Subpart B_Substantive Regulations

1625.21 Apprenticeship programs.
1625.22 Waivers of rights and claims under the ADEA.
1625.23 Waivers of rights and claims: Tender back of consideration.

                   Subpart C_Administrative Exemptions

1625.30 Administrative exemptions; procedures.
1625.31 Special employment programs.
1625.32 Coordination of retiree health benefits with Medicare and State 
          health benefits.

    Authority: 29 U.S.C. 621-634; 5 U.S.C. 301; Pub. L. 99-502, 100 
Stat. 3342; Secretary's Order No. 10-68; Secretary's Order No. 11-68; 
sec. 2, Reorg. Plan No. 1 of 1978, 43 FR 19807; Executive Order 12067, 
43 FR 28967.

    Source: 46 FR 47726, Sept. 29, 1981, unless otherwise noted.



                        Subpart A_Interpretations



Sec.  1625.1  Definitions.

    The Equal Employment Opportunity Commission is hereinafter referred 
to as the Commission. The terms person, employer, employment agency, 
labor organization, and employee shall have the meanings set forth in 
section 11 of the Age Discrimination in Employment Act of 1967, as 
amended, 29 U.S.C. 621 et

[[Page 346]]

seq., hereinafter referred to as the Act. References to employers in 
this part state principles that are applicable not only to employers but 
also to labor organizations and to employment agencies.



Sec.  1625.2  Discrimination prohibited by the Act.

    It is unlawful for an employer to discriminate against an individual 
in any aspect of employment because that individual is 40 years old or 
older, unless one of the statutory exceptions applies. Favoring an older 
individual over a younger individual because of age is not unlawful 
discrimination under the ADEA, even if the younger individual is at 
least 40 years old. However, the ADEA does not require employers to 
prefer older individuals and does not affect applicable state, 
municipal, or local laws that prohibit such preferences.

[72 FR 36875, July 6, 2007]



Sec.  1625.3  Employment agency.

    (a) As long as an employment agency regularly procures employees for 
at least one covered employer, it qualifies under section 11(c) of the 
Act as an employment agency with respect to all of its activities 
whether or not such activities are for employers covered by the act.
    (b) The prohibitions of section 4(b) of the Act apply not only to 
the referral activities of a covered employment agency but also to the 
agency's own employment practices, regardless of the number of employees 
the agency may have.



Sec.  1625.4  Help wanted notices or advertisements.

    (a) Help wanted notices or advertisements may not contain terms and 
phrases that limit or deter the employment of older individuals. Notices 
or advertisements that contain terms such as age 25 to 35, young, 
college student, recent college graduate, boy, girl, or others of a 
similar nature violate the Act unless one of the statutory exceptions 
applies. Employers may post help wanted notices or advertisements 
expressing a preference for older individuals with terms such as over 
age 60, retirees, or supplement your pension.
    (b) Help wanted notices or advertisements that ask applicants to 
disclose or state their age do not, in themselves, violate the Act. But 
because asking applicants to state their age may tend to deter older 
individuals from applying, or otherwise indicate discrimination against 
older individuals, employment notices or advertisements that include 
such requests will be closely scrutinized to assure that the requests 
were made for a lawful purpose.

[72 FR 36875, July 6, 2007]



Sec.  1625.5  Employment applications.

    A request on the part of an employer for information such as Date of 
Birth or age on an employment application form is not, in itself, a 
violation of the Act. But because the request that an applicant state 
his age may tend to deter older applicants or otherwise indicate 
discrimination against older individuals, employment application forms 
that request such information will be closely scrutinized to assure that 
the request is for a permissible purpose and not for purposes proscribed 
by the Act. That the purpose is not one proscribed by the statute should 
be made known to the applicant by a reference on the application form to 
the statutory prohibition in language to the following effect:

    The Age Discrimination in Employment Act of 1967 prohibits 
discrimination on the basis of age with respect to individuals who are 
at least 40 years of age,'' or by other means. The term ``employment 
applications,'' refers to all written inquiries about employment or 
applications for employment or promotion including, but not limited to, 
r[eacute]sum[eacute]s or other summaries of the applicant's background. 
It relates not only to written preemployment inquiries, but to inquiries 
by employees concerning terms, conditions, or privileges of employment 
as specified in section 4 of the Act.

[46 FR 47726, Sept. 29, 1981, as amended at 53 FR 5972, Feb. 29, 1988; 
72 FR 36875, July 6, 2007]



Sec.  1625.6  Bona fide occupational qualifications.

    (a) Whether occupational qualifications will be deemed to be ``bona 
fide'' to a specific job and ``reasonably necessary to the normal 
operation of the

[[Page 347]]

particular business,'' will be determined on the basis of all the 
pertinent facts surrounding each particular situation. It is anticipated 
that this concept of a bona fide occupational qualification will have 
limited scope and application. Further, as this is an exception to the 
Act it must be narrowly construed.
    (b) An employer asserting a BFOQ defense has the burden of proving 
that (1) the age limit is reasonably necessary to the essence of the 
business, and either (2) that all or substantially all individuals 
excluded from the job involved are in fact disqualified, or (3) that 
some of the individuals so excluded possess a disqualifying trait that 
cannot be ascertained except by reference to age. If the employer's 
objective in asserting a BFOQ is the goal of public safety, the employer 
must prove that the challenged practice does indeed effectuate that goal 
and that there is no acceptable alternative which would better advance 
it or equally advance it with less discriminatory impact.
    (c) Many State and local governments have enacted laws or 
administrative regulations which limit employment opportunities based on 
age. Unless these laws meet the standards for the establishment of a 
valid bona fide occupational qualification under section 4(f)(1) of the 
Act, they will be considered in conflict with and effectively superseded 
by the ADEA.



Sec.  1625.7  Differentiations based on reasonable factors other than age.

    (a) Section 4(f)(1) of the Act provides that

    * * * it shall not be unlawful for an employer, employment agency, 
or labor organization * * * to take any action otherwise prohibited 
under paragraphs (a), (b), (c), or (e) of this section * * * where the 
differentiation is based on reasonable factors other than age * * *.

    (b) When an employment practice uses age as a limiting criterion, 
the defense that the practice is justified by a reasonable factor other 
than age is unavailable.
    (c) Any employment practice that adversely affects individuals 
within the protected age group on the basis of older age is 
discriminatory unless the practice is justified by a ``reasonable factor 
other than age.'' An individual challenging the allegedly unlawful 
practice is responsible for isolating and identifying the specific 
employment practice that allegedly causes any observed statistical 
disparities.
    (d) Whenever the ``reasonable factors other than age'' defense is 
raised, the employer bears the burdens of production and persuasion to 
demonstrate the defense. The ``reasonable factors other than age'' 
provision is not available as a defense to a claim of disparate 
treatment.
    (e)(1) A reasonable factor other than age is a non-age factor that 
is objectively reasonable when viewed from the position of a prudent 
employer mindful of its responsibilities under the ADEA under like 
circumstances. Whether a differentiation is based on reasonable factors 
other than age must be decided on the basis of all the particular facts 
and circumstances surrounding each individual situation. To establish 
the RFOA defense, an employer must show that the employment practice was 
both reasonably designed to further or achieve a legitimate business 
purpose and administered in a way that reasonably achieves that purpose 
in light of the particular facts and circumstances that were known, or 
should have been known, to the employer.
    (2) Considerations that are relevant to whether a practice is based 
on a reasonable factor other than age include, but are not limited to:
    (i) The extent to which the factor is related to the employer's 
stated business purpose;
    (ii) The extent to which the employer defined the factor accurately 
and applied the factor fairly and accurately, including the extent to 
which managers and supervisors were given guidance or training about how 
to apply the factor and avoid discrimination;
    (iii) The extent to which the employer limited supervisors' 
discretion to assess employees subjectively, particularly where the 
criteria that the supervisors were asked to evaluate are known to be 
subject to negative age-based stereotypes;
    (iv) The extent to which the employer assessed the adverse impact of

[[Page 348]]

its employment practice on older workers; and
    (v) The degree of the harm to individuals within the protected age 
group, in terms of both the extent of injury and the numbers of persons 
adversely affected, and the extent to which the employer took steps to 
reduce the harm, in light of the burden of undertaking such steps.
    (3) No specific consideration or combination of considerations need 
be present for a differentiation to be based on reasonable factors other 
than age. Nor does the presence of one of these considerations 
automatically establish the defense.
    (f) A differentiation based on the average cost of employing older 
employees as a group is unlawful except with respect to employee benefit 
plans which qualify for the section 4(f)(2) exception to the Act.

[46 FR 47726, Sept. 29, 1981, as amended at 77 FR 19095, Mar. 30, 2012]



Sec.  1625.8  Bona fide seniority systems.

    Section 4(f)(2) of the Act provides that

    * * * It shall not be unlawful for an employer, employment agency, 
or labor organization * * * to observe the terms of a bona fide 
seniority system * * * which is not a subterfuge to evade the purposes 
of this Act except that no such seniority system * * * shall require or 
permit the involuntary retirement of any individual specified by section 
12(a) of this Act because of the age of such individual. * * *

    (a) Though a seniority system may be qualified by such factors as 
merit, capacity, or ability, any bona fide seniority system must be 
based on length of service as the primary criterion for the equitable 
allocation of available employment opportunities and prerogatives among 
younger and older workers.
    (b) Adoption of a purported seniority system which gives those with 
longer service lesser rights, and results in discharge or less favored 
treatment to those within the protection of the Act, may, depending upon 
the circumstances, be a ``subterfuge to evade the purposes'' of the Act.
    (c) Unless the essential terms and conditions of an alleged 
seniority system have been communicated to the affected employees and 
can be shown to be applied uniformly to all of those affected, 
regardless of age, it will not be considered a bona fide seniority 
system within the meaning of the Act.
    (d) It should be noted that seniority systems which segregate, 
classify, or otherwise discriminate against individuals on the basis of 
race, color, religion, sex, or national origin, are prohibited under 
title VII of the Civil Rights Act of 1964, where that Act otherwise 
applies. The ``bona fides'' of such a system will be closely scrutinized 
to ensure that such a system is, in fact, bona fide under the ADEA.

[53 FR 15673, May 3, 1988]



Sec.  1625.9  Prohibition of involuntary retirement.

    (a)(1) As originally enacted in 1967, section 4(f)(2) of the Act 
provided:

    It shall not be unlawful * * * to observe the terms of a bona fide 
seniority system or any bona fide employee benefit plan such as a 
retirement, pension, or insurance plan, which is not a subterfuge to 
evade the purposes of this Act, except that no such employee benefit 
plan shall excuse the failure to hire any individual * * *.


The Department of Labor interpreted the provision as ``Authoriz[ing] 
involuntary retirement irrespective of age: Provided, That such 
retirement is pursuant to the terms of a retirement or pension plan 
meeting the requirements of section 4(f)(2).'' See 34 FR 9709 (June 21, 
1969). The Department took the position that in order to meet the 
requirements of section 4(f)(2), the involuntary retirement provision 
had to be (i) contained in a bona fide pension or retirement plan, (ii) 
required by the terms of the plan and not optional, and (iii) essential 
to the plan's economic survival or to some other legitimate business 
purpose--i.e., the provision was not in the plan as the result of 
arbitrary discrimination on the basis of age.
    (2) As revised by the 1978 amendments, section 4(f)(2) was amended 
by adding the following clause at the end:

    and no such seniority system or employee benefit plan shall require 
or permit the involuntary retirement of any individual specified by 
section 12(a) of this Act because of the age of such individual * * *.


[[Page 349]]



The Conference Committee Report expressly states that this amendment is 
intended ``to make absolutely clear one of the original purposes of this 
provision, namely, that the exception does not authorize an employer to 
require or permit involuntary retirement of an employee within the 
protected age group on account of age'' (H.R. Rept. No. 95-950, p. 8).
    (b)(1) The amendment applies to all new and existing seniority 
systems and employee benefit plans. Accordingly, any system or plan 
provision requiring or permitting involuntary retirement is unlawful, 
regardless of whether the provision antedates the 1967 Act or the 1978 
amendments.
    (2) Where lawsuits pending on the date of enactment (April 6, 1978) 
or filed thereafter challenge involuntary retirements which occurred 
either before or after that date, the amendment applies.
    (c)(1) The amendment protects all individuals covered by section 
12(a) of the Act. Section 12(a) was amended in October of 1986 by the 
Age Discrimination in Employment Amendments of 1986, Pub. L. 99-592, 100 
Stat. 3342 (1986), which removed the age 70 limit. Section 12(a) 
provides that the Act's prohibitions shall be limited to individuals who 
are at least forty years of age. Accordingly, unless a specific 
exemption applies, an employer can no longer force retirement or 
otherwise discriminate on the basis of age against an individual because 
(s)he is 70 or older.
    (2) The amendment to section 12(a) of the Act became effective on 
January 1, 1987, except with respect to any employee subject to a 
collective bargaining agreement containing a provision that would be 
superseded by such amendment that was in effect on June 30, 1986, and 
which terminates after January 1, 1987. In that case, the amendment is 
effective on the termination of the agreement or January 1, 1990, 
whichever comes first.
    (d) Neither section 4(f)(2) nor any other provision of the Act makes 
it unlawful for a plan to permit individuals to elect early retirement 
at a specified age at their own option. Nor is it unlawful for a plan to 
require early retirement for reasons other than age.

[46 FR 47726, Sept. 29, 1981, as amended at 52 FR 23811, June 25, 1987; 
53 FR 5973, Feb. 29, 1988]



Sec.  1625.10  Costs and benefits under employee benefit plans.

    (a)(1) General. Section 4(f)(2) of the Act provides that it is not 
unlawful for an employer, employment agency, or labor organization

    to observe the terms of * * * any bona fide employee benefit plan 
such as a retirement, pension, or insurance plan, which is not a 
subterfuge to evade the purposes of this Act, except that no such 
employee benefit plan shall excuse the failure to hire any individual, 
and no such * * * employee benefit plan shall require or permit the 
involuntary retirement of any individual specified by section 12(a) of 
this Act because of the age of such individuals.


The legislative history of this provision indicates that its purpose is 
to permit age-based reductions in employee benefit plans where such 
reductions are justified by significant cost considerations. 
Accordingly, section 4(f)(2) does not apply, for example, to paid 
vacations and uninsured paid sick leave, since reductions in these 
benefits would not be justified by significant cost considerations. 
Where employee benefit plans do meet the criteria in section 4(f)(2), 
benefit levels for older workers may be reduced to the extent necessary 
to achieve approximate equivalency in cost for older and younger 
workers. A benefit plan will be considered in compliance with the 
statute where the actual amount of payment made, or cost incurred, in 
behalf of an older worker is equal to that made or incurred in behalf of 
a younger worker, even though the older worker may thereby receive a 
lesser amount of benefits or insurance coverage. Since section 4(f)(2) 
is an exception from the general non-discrimination provisions of the 
Act, the burden is on the one seeking to invoke the exception to show 
that every element has been clearly and unmistakably met. The exception 
must be narrowly construed. The following sections explain three key 
elements of the exception:
    (i) What a ``bona fide employee benefit plan'' is;

[[Page 350]]

    (ii) What it means to ``observe the terms'' of such a plan; and
    (iii) What kind of plan, or plan provision, would be considered ``a 
subterfuge to evade the purposes of [the] Act.''

There is also a discussion of the application of the general rules 
governing all plans with respect to specific kinds of employee benefit 
plans.
    (2) Relation of section 4(f)(2) to sections 4(a), 4(b) and 4(c). 
Sections 4(a), 4(b) and 4(c) prohibit specified acts of discrimination 
on the basis of age. Section 4(a) in particular makes it unlawful for an 
employer to ``discriminate against any individual with respect to his 
compensation, terms, conditions, or privileges of employment, because of 
such individual's age * * *.'' Section 4(f)(2) is an exception to this 
general prohibition. Where an employer under an employee benefit plan 
provides the same level of benefits to older workers as to younger 
workers, there is no violation of section 4(a), and accordingly the 
practice does not have to be justified under section 4(f)(2).
    (b) Bona fide employee benefit plan. Section 4(f)(2) applies only to 
bona fide employee benefit plans. A plan is considered ``bona fide'' if 
its terms (including cessation of contributions or accruals in the case 
of retirement income plans) have been accurately described in writing to 
all employees and if it actually provides the benefits in accordance 
with the terms of the plan. Notifying employees promptly of the 
provisions and changes in an employee benefit plan is essential if they 
are to know how the plan affects them. For these purposes, it would be 
sufficient under the ADEA for employers to follow the disclosure 
requirements of ERISA and the regulations thereunder. The plan must 
actually provide the benefits its provisions describe, since otherwise 
the notification of the provisions to employees is misleading and 
inaccurate. An ``employee benefit plan'' is a plan, such as a 
retirement, pension, or insurance plan, which provides employees with 
what are frequently referred to as ``fringe benefits.'' The term does 
not refer to wages or salary in cash; neither section 4(f)(2) nor any 
other section of the Act excuses the payment of lower wages or salary to 
older employees on account of age. Whether or not any particular 
employee benefit plan may lawfully provide lower benefits to older 
employees on account of age depends on whether all of the elements of 
the exception have been met. An ``employee-pay-all'' employee benefit 
plan is one of the ``terms, conditions, or privileges of employment'' 
with respect to which discrimination on the basis of age is forbidden 
under section 4(a)(1). In such a plan, benefits for older workers may be 
reduced only to the extent and according to the same principles as apply 
to other plans under section 4(f)(2).
    (c) ``To observe the terms'' of a plan. In order for a bona fide 
employee benefit plan which provides lower benefits to older employees 
on account of age to be within the section 4(f)(2) exception, the lower 
benefits must be provided in ``observ[ance of] the terms of'' the plan. 
As this statutory text makes clear, the section 4(f)(2) exception is 
limited to otherwise discriminatory actions which are actually 
prescribed by the terms of a bona fide employee benefit plan. Where the 
employer, employment agency, or labor organization is not required by 
the express provisions of the plan to provide lesser benefits to older 
workers, section 4(f)(2) does not apply. Important purposes are served 
by this requirement. Where a discriminatory policy is an express term of 
a benefit plan, employees presumably have some opportunity to know of 
the policy and to plan (or protest) accordingly. Moreover, the 
requirement that the discrimination actually be prescribed by a plan 
assures that the particular plan provision will be equally applied to 
all employees of the same age. Where a discriminatory provision is an 
optional term of the plan, it permits individual, discretionary acts of 
discrimination, which do not fall within the section 4(f)(2) exception.
    (d) Subterfuge. In order for a bona fide employee benefit plan which 
prescribes lower benefits for older employees on account of age to be 
within the section 4(f)(2) exception, it must not be ``a subterfuge to 
evade the purposes of [the] Act.'' In general, a plan or plan provision 
which prescribes lower benefits for older employees on account of age is 
not a ``subterfuge'' within the meaning of section 4(f)(2), provided 
that the

[[Page 351]]

lower level of benefits is justified by age-related cost considerations. 
(The only exception to this general rule is with respect to certain 
retirement plans. See paragraph (f)(4) of this section.) There are 
certain other requirements that must be met in order for a plan not to 
be a subterfuge. These requirements are set forth below.
    (1) Cost data--general. Cost data used in justification of a benefit 
plan which provides lower benefits to older employees on account of age 
must be valid and reasonable. This standard is met where an employer has 
cost data which show the actual cost to it of providing the particular 
benefit (or benefits) in question over a representative period of years. 
An employer may rely in cost data for its own employees over such a 
period, or on cost data for a larger group of similarly situated 
employees. Sometimes, as a result of experience rating or other causes, 
an employer incurs costs that differ significantly from costs for a 
group of similarly situated employees. Such an employer may not rely on 
cost data for the similarly situated employees where such reliance would 
result in significantly lower benefits for its own older employees. 
Where reliable cost information is not available, reasonable projections 
made from existing cost data meeting the standards set forth above will 
be considered acceptable.
    (2) Cost data--Individual benefit basis and ``benefit package'' 
basis. Cost comparisons and adjustments under section 4(f)(2) must be 
made on a benefit-by-benefit basis or on a ``benefit package'' basis, as 
described below.
    (i) Benefit-by-benefit basis. Adjustments made on a benefit-by-
benefit basis must be made in the amount or level of a specific form of 
benefit for a specific event or contingency. For example, higher group 
term life insurance costs for older workers would justify a 
corresponding reduction in the amount of group term life insurance 
coverage for older workers, on the basis of age. However, a benefit-by-
benefit approach would not justify the substitution of one form of 
benefit for another, even though both forms of benefit are designed for 
the same contingency, such as death. See paragraph (f)(1) of this 
section.
    (ii) ``Benefit package'' basis. As an alternative to the benefit-by-
benefit basis, cost comparisons and adjustments under section 4(f)(2) 
may be made on a limited ``benefit package'' basis. Under this approach, 
subject to the limitations described below, cost comparisons and 
adjustments can be made with respect to section 4(f)(2) plans in the 
aggregate. This alternative basis provides greater flexibility than a 
benefit-by-benefit basis in order to carry out the declared statutory 
purpose ``to help employers and workers find ways of meeting problems 
arising from the impact of age on employment.'' A ``benefit package'' 
approach is an alternative approach consistent with this purpose and 
with the general purpose of section 4(f)(2) only if it is not used to 
reduce the cost to the employer or the favorability to the employees of 
overall employee benefits for older employees. A ``benefit package'' 
approach used for either of these purposes would be a subterfuge to 
evade the purposes of the Act. In order to assure that such a ``benefit 
package'' approach is not abused and is consistent with the legislative 
intent, it is subject to the limitations described in paragraph (f), 
which also includes a general example.
    (3) Cost data--five year maximum basis. Cost comparisons and 
adjustments under section 4(f)(2) may be made on the basis of age 
brackets of up to 5 years. Thus a particular benefit may be reduced for 
employees of any age within the protected age group by an amount no 
greater than that which could be justified by the additional cost to 
provide them with the same level of the benefit as younger employees 
within a specified five-year age group immediately preceding theirs. For 
example, where an employer chooses to provide unreduced group term life 
insurance benefits until age 60, benefits for employees who are between 
60 and 65 years of age may be reduced only to the extent necessary to 
achieve approximate equivalency in costs with employees who are 55 to 60 
years old. Similarly, any reductions in benefit levels for 65 to 70 year 
old employees cannot exceed an amount which is proportional to the 
additional costs for

[[Page 352]]

their coverage over 60 to 65 year old employees.
    (4) Employee contributions in support of employee benefit plans--(i) 
As a condition of employment. An older employee within the protected age 
group may not be required as a condition of employment to make greater 
contributions than a younger employee in support of an employee benefit 
plan. Such a requirement would be in effect a mandatory reduction in 
take-home pay, which is never authorized by section 4(f)(2), and would 
impose an impediment to employment in violation of the specific 
restrictions in section 4(f)(2).
    (ii) As a condition of participation in a voluntary employee benefit 
plan. An older employee within the protected age group may be required 
as a condition of participation in a voluntary employee benefit plan to 
make a greater contribution than a younger employee only if the older 
employee is not thereby required to bear a greater proportion of the 
total premium cost (employer-paid and employee-paid) than the younger 
employee. Otherwise the requirement would discriminate against the older 
employee by making compensation in the form of an employer contribution 
available on less favorable terms than for the younger employee and 
denying that compensation altogether to an older employee unwilling or 
unable to meet the less favorable terms. Such discrimination is not 
authorized by section 4(f)(2). This principle applies to three different 
contribution arrangements as follows:
    (A) Employee-pay-all plans. Older employees, like younger employees, 
may be required to contribute as a condition of participation up to the 
full premium cost for their age.
    (B) Non-contributory (``employer-pay-all'') plans. Where younger 
employees are not required to contribute any portion of the total 
premium cost, older employees may not be required to contribute any 
portion.
    (C) Contributory plans. In these plans employers and participating 
employees share the premium cost. The required contributions of 
participants may increase with age so long as the proportion of the 
total premium required to be paid by the participants does not increase 
with age.
    (iii) As an option in order to receive an unreduced benefit. An 
older employee may be given the option, as an individual, to make the 
additional contribution necessary to receive the same level of benefits 
as a younger employee (provided that the contemplated reduction in 
benefits is otherwise justified by section 4(f)(2)).
    (5) Forfeiture clauses. Clauses in employee benefit plans which 
state that litigation or participation in any manner in a formal 
proceeding by an employee will result in the forfeiture of his rights 
are unlawful insofar as they may be applied to those who seek redress 
under the Act. This is by reason of section 4(d) which provides that it 
is unlawful for an employer, employment agency, or labor organization to 
discriminate against any individual because such individual ``has made a 
charge, testified, assisted, or participated in any manner in an 
investigation, proceeding, or litigation under this Act.''
    (6) Refusal to hire clauses. Any provision of an employee benefit 
plan which requires or permits the refusal to hire an individual 
specified in section 12(a) of the Act on the basis of age is a 
subterfuge to evade the purposes of the Act and cannot be excused under 
section 4(f)(2).
    (7) Involuntary retirement clauses. Any provision of an employee 
benefit plan which requires or permits the involuntary retirement of any 
individual specified in section 12(a) of the Act on the basis of age is 
a subterfuge to evade the purpose of the Act and cannot be excused under 
section 4(f)(2).
    (e) Benefits provided by the Government. An employer does not 
violate the Act by permitting certain benefits to be provided by the 
Government, even though the availability of such benefits may be based 
on age. For example, it is not necessary for an employer to provide 
health benefits which are otherwise provided to certain employees by 
Medicare. However, the availability of benefits from the Government will 
not justify a reduction in employer-provided benefits if the result is 
that, taking the employer-provided and Government-provided benefits 
together, an older employee is entitled to a lesser benefit of any type 
(including coverage

[[Page 353]]

for family and/or dependents) than a similarly situated younger 
employee. For example, the availability of certain benefits to an older 
employee under Medicare will not justify denying an older employee a 
benefit which is provided to younger employees and is not provided to 
the older employee by Medicare.
    (f) Application of section 4(f)(2) to various employee benefit 
plans--(1) Benefit-by-benefit approach. This portion of the 
interpretation discusses how a benefit-by-benefit approach would apply 
to four of the most common types of employee benefit plans.
    (i) Life insurance. It is not uncommon for life insurance coverage 
to remain constant until a specified age, frequently 65, and then be 
reduced. This practice will not violate the Act (even if reductions 
start before age 65), provided that the reduction for an employee of a 
particular age is no greater than is justified by the increased cost of 
coverage for that employee's specific age bracket encompassing no more 
than five years. It should be noted that a total denial of life 
insurance, on the basis of age, would not be justified under a benefit-
by-benefit analysis. However, it is not unlawful for life insurance 
coverage to cease upon separation from service.
    (ii) Long-term disability. Under a benefit-by-benefit approach, 
where employees who are disabled at younger ages are entitled to long-
term disability benefits, there is no cost--based justification for 
denying such benefits altogether, on the basis of age, to employees who 
are disabled at older ages. It is not unlawful to cut off long-term 
disability benefits and coverage on the basis of some non-age factor, 
such as recovery from disability. Reductions on the basis of age in the 
level or duration of benefits available for disability are justifiable 
only on the basis of age-related cost considerations as set forth 
elsewhere in this section. An employer which provides long-term 
disability coverage to all employees may avoid any increases in the cost 
to it that such coverage for older employees would entail by reducing 
the level of benefits available to older employees. An employer may also 
avoid such cost increases by reducing the duration of benefits available 
to employees who become disabled at older ages, without reducing the 
level of benefits. In this connection, the Department would not assert a 
violation where the level of benefits is not reduced and the duration of 
benefits is reduced in the following manner:
    (A) With respect to disabilities which occur at age 60 or less, 
benefits cease at age 65.
    (B) With respect to disabilities which occur after age 60, benefits 
cease 5 years after disablement. Cost data may be produced to support 
other patterns of reduction as well.
    (iii) Retirement plans--(A) Participation. No employee hired prior 
to normal retirement age may be excluded from a defined contribution 
plan. With respect to defined benefit plans not subject to the Employee 
Retirement Income Security Act (ERISA), Pub. L. 93-406, 29 U.S.C. 1001, 
1003 (a) and (b), an employee hired at an age more than 5 years prior to 
normal retirement age may not be excluded from such a plan unless the 
exclusion is justifiable on the basis of cost considerations as set 
forth elsewhere in this section. With respect to defined benefit plans 
subject to ERISA, such an exclusion would be unlawful in any case. An 
employee hired less than 5 years prior to normal retirement age may be 
excluded from a defined benefit plan, regardless of whether or not the 
plan is covered by ERISA. Similarly, any employee hired after normal 
retirement age may be excluded from a defined benefit plan.
    (2) ``Benefit package'' approach. A ``benefit package'' approach to 
compliance under section 4(f)(2) offers greater flexibility than a 
benefit-by-benefit approach by permitting deviations from a benefit-by-
benefit approach so long as the overall result is no lesser cost to the 
employer and no less favorable benefits for employees. As previously 
noted, in order to assure that such an approach is used for the benefit 
of older workers and not to their detriment, and is otherwise consistent 
with the legislative intent, it is subject to limitations as set forth 
below:
    (i) A benefit package approach shall apply only to employee benefit 
plans which fall within section 4(f)(2).

[[Page 354]]

    (ii) A benefit package approach shall not apply to a retirement or 
pension plan. The 1978 legislative history sets forth specific and 
comprehensive rules governing such plans, which have been adopted above. 
These rules are not tied to actuarially significant cost considerations 
but are intended to deal with the special funding arrangements of 
retirement or pension plans. Variations from these special rules are 
therefore not justified by variations from the cost-based benefit-by-
benefit approach in other benefit plans, nor may variations from the 
special rules governing pension and retirement plans justify variations 
from the benefit-by-benefit approach in other benefit plans.
    (iii) A benefit package approach shall not be used to justify 
reductions in health benefits greater than would be justified under a 
benefit-by-benefit approach. Such benefits appear to be of particular 
importance to older workers in meeting ``problems arising from the 
impact of age'' and were of particular concern to Congress. Therefore, 
the ``benefit package'' approach may not be used to reduce health 
insurance benefits by more than is warranted by the increase in the cost 
to the employer of those benefits alone. Any greater reduction would be 
a subterfuge to evade the purpose of the Act.
    (iv) A benefit reduction greater than would be justified under a 
benefit-by-benefit approach must be offset by another benefit available 
to the same employees. No employees may be deprived because of age of 
one benefit without an offsetting benefit being made available to them.
    (v) Employers who wish to justify benefit reductions under a benefit 
package approach must be prepared to produce data to show that those 
reductions are fully justified. Thus employers must be able to show that 
deviations from a benefit-by-benefit approach do not result in lesser 
cost to them or less favorable benefits to their employees. A general 
example consistent with these limitations may be given. Assume two 
employee benefit plans, providing Benefit ``A'' and Benefit ``B.'' Both 
plans fall within section 4(f)(2), and neither is a retirement or 
pension plan subject to special rules. Both benefits are available to 
all employees. Age-based cost increases would justify a 10% decrease in 
both benefits on a benefit-by-benefit basis. The affected employees 
would, however, find it more favorable--that is, more consistent with 
meeting their needs--for no reduction to be made in Benefit ``A'' and a 
greater reduction to be made in Benefit ``B.'' This ``trade-off'' would 
not result in a reduction in health benefits. The ``trade-off'' may 
therefore be made. The details of the ``trade-off'' depend on data on 
the relative cost to the employer of the two benefits. If the data show 
that Benefit ``A'' and Benefit ``B'' cost the same, Benefit ``B'' may be 
reduced up to 20% if Benefit ``A'' is unreduced. If the data show that 
Benefit ``A'' costs only half as much as Benefit ``B'', however, Benefit 
``B'' may be reduced up to only 15% if Benefit ``A'' is unreduced, since 
a greater reduction in Benefit ``B'' would result in an impermissible 
reduction in total benefit costs.
    (g) Relation of ADEA to State laws. The ADEA does not preempt State 
age discrimination in employment laws. However, the failure of the ADEA 
to preempt such laws does not affect the issue of whether section 514 of 
the Employee Retirement Income Security Act (ERISA) preempts State laws 
which related to employee benefit plans.

[44 FR 30658, May 25, 1979, as amended at 52 FR 8448, Mar. 18, 1987. 
Redesignated and amended at 52 FR 23812, June 25, 1987; 53 FR 5973, Feb. 
29, 1988]



Sec.  1625.11  Exemption for employees serving under a contract of
unlimited tenure.

    (a)(1) Section 12(d) of the Act, added by the 1986 amendments, 
provides:

    Nothing in this Act shall be construed to prohibit compulsory 
retirement of any employee who has attained 70 years of age, and who is 
serving under a contract of unlimited tenure (or similar arrangement 
providing for unlimited tenure) at an institution of higher education 
(as defined by section 1201(a) of the Higher Education Act of 1965).

    (2) This exemption from the Act's protection of covered individuals 
took effect on January 1, 1987, and is repealed on December 31, 1993 
(see section 6 of the Age Discrimination in Employment Act Amendments of 
1986, Pub. L.

[[Page 355]]

99-592, 100 Stat. 3342). The Equal Employment Opportunity Commission is 
required to enter into an agreement with the National Academy of 
Sciences, for the conduct of a study to analyze the potential 
consequences of the elimination of mandatory retirement on institutions 
of higher education.
    (b) Since section 12(d) is an exemption from the nondiscrimination 
requirements of the Act, the burden is on the one seeking to invoke the 
exemption to show that every element has been clearly and unmistakably 
met. Moreover, as with other exemptions from the ADEA, this exemption 
must be narrowly construed.
    (c) Section 1201(a) of the Higher Education Act of 1965, as amended, 
and set forth in 20 U.S.C. 1141(a), provides in pertinent part:

    The term institution of higher education means an educational 
institution in any State which (1) admits as regular students only 
persons having a certificate of graduation from a school providing 
secondary education, or the recognized equivalent of such a certificate, 
(2) is legally authorized within such State to provide a program of 
education beyond secondary education, (3) provides an educational 
program for which it awards a bachelor's degree or provides not less 
than a two-year program which is acceptable for full credit toward such 
a degree, (4) is a public or other nonprofit institution, and (5) is 
accredited by a nationally recognized accrediting agency or association 
or, if not so accredited, (A) is an institution with respect to which 
the Commissioner has determined that there is satisfactory assurance, 
considering the resources available to the institution, the period of 
time, if any, during which it has operated, the effort it is making to 
meet accreditation standards, and the purpose for which this 
determination is being made, that the institution will meet the 
accreditation standards of such an agency or association within a 
reasonable time, or (B) is an institution whose credits are accepted, on 
transfer, by not less than three institutions which are so accredited, 
for credit on the same basis as if transferred from an institution so 
accredited.


The definition encompasses almost all public and private universities 
and two and four year colleges. The omitted portion of the text of 
section 1201(a) refers largely on one-year technical schools which 
generally do not grant tenure to employees but which, if they do, are 
also eligible to claim the exemption.
    (d)(1) Use of the term any employee indicates that application of 
the exemption is not limited to teachers, who are traditional recipients 
of tenure. The exemption may also be available with respect to other 
groups, such as academic deans, scientific researchers, professional 
librarians and counseling staff, who frequently have tenured status.
    (2) The Conference Committee Report on the 1978 amendments expressly 
states that the exemption does not apply to Federal employees covered by 
section 15 of the Act (H.R. Rept. No. 95-950, p. 10).
    (e)(1) The phrase unlimited tenure is not defined in the Act. 
However, the almost universally accepted definition of academic 
``tenure'' is an arrangement under which certain appointments in an 
institution of higher education are continued until retirement for age 
of physical disability, subject to dismissal for adequate cause or under 
extraordinary circumstances on account of financial exigency or change 
of institutional program. Adopting that definition, it is evident that 
the word unlimited refers to the duration of tenure. Therefore, a 
contract (or other similar arrangement) which is limited to a specific 
term (for example, one year or 10 years) will not meet the requirements 
of the exemption.
    (2) The legislative history shows that Congress intented the 
exemption to apply only where the minimum rights and privileges 
traditionally associated with tenure are guaranteed to an employee by 
contract or similar arrangement. While tenure policies and practices 
vary greatly from one institution to another, the minimum standards set 
forth in the 1940 Statement of Principles on Academic Freedom and 
Tenure, jointly developed by the Association of American Colleges and 
the American Association of University Professors, have enjoyed 
widespread adoption or endorsement. The 1940 Statement of Principles on 
academic tenure provides as follows:

    (a) After the expiration of a probationary period, teachers or 
investigators should have permanent or continuous tenure, and their

[[Page 356]]

service should be terminated only for adequate cause, except in the case 
of retirement for age, or under extraordinary circumstances because of 
financial exigencies.
    In the interpretation of this principle it is understood that the 
following represents acceptable academic practice:
    (1) The precise terms and conditions of every appointment should be 
stated in writing and be in the possession of both institution and 
teacher before the appointment is consumated.
    (2) Beginning with appointment to the rank of full-time instructor 
or a higher rank, the probationary period should not exceed seven years, 
including within this period full-time service in all institutions of 
higher education; but subject to the proviso that when, after a term of 
probationary service of more than three years in one or more 
institutions, a teacher is called to another institution it may be 
agreed in writing that his new appointment is for a probationary period 
of not more than four years, even though thereby the person's total 
probationary period in the academic profession is extended beyond the 
normal maximum of seven years. Notice should be given at least one year 
prior to the expiration of the probationary period if the teacher is not 
to be continued in service after the expiration of that period.
    (3) During the probationary period a teacher should have the 
academic freedom that all other members of the faculty have.
    (4) Termination for cause of a continuous appointment, or the 
dismissal for cause of a teacher previous to the expiration of a term 
appointment, should, if possible, be considered by both a faculty 
committee and the governing board of the institution. In all cases where 
the facts are in dispute, the accused teacher should be informed before 
the hearing in writing of the charges against him and should have the 
opportunity to be heard in his own defense by all bodies that pass 
judgment upon his case. He should be permitted to have with him an 
advisor of his own choosing who may act as counsel. There should be a 
full stenographic record of the hearing available to the parties 
concerned. In the hearing of charges of incompetence the testimony 
should include that of teachers and other scholars, either from his own 
or from other institutions. Teachers on continuous appointment who are 
dismissed for reasons not involving moral turpitude should receive their 
salaries for at least a year from the date of notification of dismissal 
whether or not they are continued in their duties at the institution.
    (5) Termination of a continuous appointment because of financial 
exigency should be demonstrably bona fide.

    (3) A contract or similar arrangement which meets the standards in 
the 1940 Statement of Principles will satisfy the tenure requirements of 
the exemption. However, a tenure arrangement will not be deemed 
inadequate solely because it fails to meet these standards in every 
respect. For example, a tenure plan will not be deemed inadequate solely 
because it includes a probationary period somewhat longer than seven 
years. Of course, the greater the deviation from the standards in the 
1940 Statement of Principles, the less likely it is that the employee in 
question will be deemed subject to ``unlimited tenure'' within the 
meaning of the exemption. Whether or not a tenure arrangement is 
adequate to satisfy the requirements of the exemption must be determined 
on the basis of the facts of each case.
    (f) Employees who are not assured of a continuing appointment either 
by contract of unlimited tenure or other similar arrangement (such as a 
State statute) would not, of course, be exempted from the prohibitions 
against compulsory retirement, even if they perform functions identical 
to those performed by employees with appropriate tenure.
    (g) An employee within the exemption can lawfully be forced to 
retire on account of age at age 70 (see paragraph (a)(1) of this 
section). In addition, the employer is free to retain such employees, 
either in the same position or status or in a different position or 
status: Provided, That the employee voluntarily accepts this new 
position or status. For example, an employee who falls within the 
exemption may be offered a nontenured position or part-time employment. 
An employee who accepts a nontenured position or part-time employment, 
however, may not be treated any less favorably, on account of age, than 
any similarly situated younger employee (unless such less favorable 
treatment is excused by an exception to the Act).

[44 FR 66799, Nov. 21, 1979; 45 FR 43704, June 30, 1980, as amended at 
53 FR 5973, Feb. 29, 1988]

[[Page 357]]



Sec.  1625.12  Exemption for bona fide executive or high policymaking
employees.

    (a) Section 12(c)(1) of the Act, added by the 1978 amendments and as 
amended in 1984 and 1986, provides:

    Nothing in this Act shall be construed to prohibit compulsory 
retirement of any employee who has attained 65 years of age, and who, 
for the 2-year period immediately before retirement, is employed in a 
bona fide executive or higher policymaking position, if such employee is 
entitled to an immediate nonforfeitable annual retirement benefit from a 
pension, profit-sharing, savings, or deferred compensation plan, or any 
combination of such plans, of the employer of such employee which 
equals, in the aggregate, at least $44,000.

    (b) Since this provision is an exemption from the non-discrimination 
requirements of the Act, the burden is on the one seeking to invoke the 
exemption to show that every element has been clearly and unmistakably 
met. Moreover, as with other exemptions from the Act, this exemption 
must be narrowly construed.
    (c) An employee within the exemption can lawfully be forced to 
retire on account of age at age 65 or above. In addition, the employer 
is free to retain such employees, either in the same position or status 
or in a different position or status. For example, an employee who falls 
within the exemption may be offered a position of lesser status or a 
part-time position. An employee who accepts such a new status or 
position, however, may not be treated any less favorably, on account of 
age, than any similarly situated younger employee.
    (d)(1) In order for an employee to qualify as a ``bona fide 
executive,'' the employer must initially show that the employee 
satisfies the definition of a bona fide executive set forth in Sec.  
541.1 of this chapter. Each of the requirements in paragraphs (a) 
through (e) of Sec.  541.1 must be satisfied, regardless of the level of 
the employee's salary or compensation.
    (2) Even if an employee qualifies as an executive under the 
definition in Sec.  541.1 of this chapter, the exemption from the ADEA 
may not be claimed unless the employee also meets the further criteria 
specified in the Conference Committee Report in the form of examples 
(see H.R. Rept. No. 95-950, p. 9). The examples are intended to make 
clear that the exemption does not apply to middle-management employees, 
no matter how great their retirement income, but only to a very few top 
level employees who exercise substantial executive authority over a 
significant number of employees and a large volume of business. As 
stated in the Conference Report (H.R. Rept. No. 95-950, p. 9):
    Typically the head of a significant and substantial local or 
regional operation of a corporation [or other business organization], 
such as a major production facility or retail establishment, but not the 
head of a minor branch, warehouse or retail store, would be covered by 
the term ``bona fide executive.'' Individuals at higher levels in the 
corporate organizational structure who possess comparable or greater 
levels of responsibility and authority as measured by established and 
recognized criteria would also be covered.
    The heads of major departments or divisions of corporations [or 
other business organizations] are usually located at corporate or 
regional headquarters. With respect to employees whose duties are 
associated with corporate headquarters operations, such as finance, 
marketing, legal, production and manufacturing (or in a corporation 
organized on a product line basis, the management of product lines), the 
definition would cover employees who head those divisions.
    In a large organization the immediate subordinates of the heads of 
these divisions sometimes also exercise executive authority, within the 
meaning of this exemption. The conferees intend the definition to cover 
such employees if they possess responsibility which is comparable to or 
greater than that possessed by the head of a significant and substantial 
local operation who meets the definition.

    (e) The phrase ``high policymaking position,'' according to the 
Conference Report (H.R. Rept. No. 95-950, p. 10), is limited to ``* * * 
certain top level employees who are not `bona fide executives' * * *.'' 
Specifically, these are:

    * * * individuals who have little or no line authority but whose 
position and responsibility are such that they play a significant role 
in the development of corporate policy and effectively recommend the 
implementation thereof.
    For example, the chief economist or the chief research scientist of 
a corporation typically has little line authority. His duties would be 
primarily intellectual as opposed to

[[Page 358]]

executive or managerial. His responsibility would be to evaluate 
significant economic or scientific trends and issues, to develop and 
recommend policy direction to the top executive officers of the 
corporation, and he would have a significant impact on the ultimate 
decision on such policies by virtue of his expertise and direct access 
to the decisionmakers. Such an employee would meet the definition of a 
``high policymaking'' employee.


On the other hand, as this description makes clear, the support 
personnel of a ``high policymaking'' employee would not be subject to 
the exemption even if they supervise the development, and draft the 
recommendation, of various policies submitted by their supervisors.
    (f) In order for the exemption to apply to a particular employee, 
the employee must have been in a ``bona fide executive or high 
policymaking position,'' as those terms are defined in this section, for 
the two-year period immediately before retirement. Thus, an employee who 
holds two or more different positions during the two-year period is 
subject to the exemption only if each such job is an executive or high 
policymaking position.
    (g) The Conference Committee Report expressly states that the 
exemption is not applicable to Federal employees covered by section 15 
of the Act (H.R. Rept. No. 95-950, p. 10).
    (h) The ``annual retirement benefit,'' to which covered employees 
must be entitled, is the sum of amounts payable during each one-year 
period from the date on which such benefits first become receivable by 
the retiree. Once established, the annual period upon which calculations 
are based may not be changed from year to year.
    (i) The annual retirement benefit must be immediately available to 
the employee to be retired pursuant to the exemption. For purposes of 
determining compliance, ``immediate'' means that the payment of plan 
benefits (in a lump sum or the first of a series of periodic payments) 
must occur not later than 60 days after the effective date of the 
retirement in question. The fact that an employee will receive benefits 
only after expiration of the 60-day period will not preclude his 
retirement pursuant to the exemption, if the employee could have elected 
to receive benefits within that period.
    (j)(1) The annual retirement benefit must equal, in the aggregate, 
at least $44,000. The manner of determining whether this requirement has 
been satisfied is set forth in Sec.  1627.17(c).
    (2) In determining whether the aggregate annual retirement benefit 
equals at least $44,000, the only benefits which may be counted are 
those authorized by and provided under the terms of a pension, profit-
sharing, savings, or deferred compensation plan. (Regulations issued 
pursuant to section 12(c)(2) of the Act, regarding the manner of 
calculating the amount of qualified retirement benefits for purposes of 
the exemption, are set forth in Sec.  1627.17 of this chapter.)
    (k)(1) The annual retirement benefit must be ``nonforfeitable.'' 
Accordingly, the exemption may not be applied to any employee subject to 
plan provisions which could cause the cessation of payments to a retiree 
or result in the reduction of benefits to less than $44,000 in any one 
year. For example, where a plan contains a provision under which 
benefits would be suspended if a retiree engages in litigation against 
the former employer, or obtains employment with a competitor of the 
former employer, the retirement benefit will be deemed to be 
forfeitable. However, retirement benefits will not be deemed forfeitable 
solely because the benefits are discontinued or suspended for reasons 
permitted under section 411(a)(3) of the Internal Revenue Code.
    (2) An annual retirement benefit will not be deemed forfeitable 
merely because the minimum statutory benefit level is not guaranteed 
against the possibility of plan bankruptcy or is subject to benefit 
restrictions in the event of early termination of the plan in accordance 
with Treasury Regulation 1.401-4(c). However, as of the effective date 
of the retirement in question, there must be at least a reasonable 
expectation that the plan will meet its obligations.

(Sec. 12(c)(1) of the Age Discrimination In Employment Act of 1967, as 
amended by sec. 802(c)(1) of the Older Americans Act Amendments of 1984, 
Pub. L. 98-459, 98 Stat. 1792))

[44 FR 66800, Nov. 21, 1979; 45 FR 43704, June 30, 1980, as amended at 
50 FR 2544, Jan. 17, 1985; 53 FR 5973, Feb. 29, 1988]

[[Page 359]]



                    Subpart B_Substantive Regulations



Sec.  1625.21  Apprenticeship programs.

    All apprenticeship programs, including those apprenticeship programs 
created or maintained by joint labor-management organizations, are 
subject to the prohibitions of sec. 4 of the Age Discrimination in 
Employment Act of 1967, as amended, 29 U.S.C. 623. Age limitations in 
apprenticeship programs are valid only if excepted under sec. 4(f)(1) of 
the Act, 29 U.S.C. 623(f)(1), or exempted by the Commission under sec. 9 
of the Act, 29 U.S.C. 628, in accordance with the procedures set forth 
in 29 CFR 1625.30.

[80 FR 60540, Oct. 7, 2015]



Sec.  1625.22  Waivers of rights and claims under the ADEA.

    (a) Introduction. (1) Congress amended the ADEA in 1990 to clarify 
the prohibitions against discrimination on the basis of age. In Title II 
of OWBPA, Congress addressed waivers of rights and claims under the 
ADEA, amending section 7 of the ADEA by adding a new subsection (f).
    (2) Section 7(f)(1) of the ADEA expressly provides that waivers may 
be valid and enforceable under the ADEA only if the waiver is ``knowing 
and voluntary''. Sections 7(f)(1) and 7(f)(2) of the ADEA set out the 
minimum requirements for determining whether a waiver is knowing and 
voluntary.
    (3) Other facts and circumstances may bear on the question of 
whether the waiver is knowing and voluntary, as, for example, if there 
is a material mistake, omission, or misstatement in the information 
furnished by the employer to an employee in connection with the waiver.
    (4) The rules in this section apply to all waivers of ADEA rights 
and claims, regardless of whether the employee is employed in the 
private or public sector, including employment by the United States 
Government.
    (b) Wording of Waiver Agreements. (1) Section 7(f)(1)(A) of the ADEA 
provides, as part of the minimum requirements for a knowing and 
voluntary waiver, that:

    The waiver is part of an agreement between the individual and the 
employer that is written in a manner calculated to be understood by such 
individual, or by the average individual eligible to participate.

    (2) The entire waiver agreement must be in writing.
    (3) Waiver agreements must be drafted in plain language geared to 
the level of understanding of the individual party to the agreement or 
individuals eligible to participate. Employers should take into account 
such factors as the level of comprehension and education of typical 
participants. Consideration of these factors usually will require the 
limitation or elimination of technical jargon and of long, complex 
sentences.
    (4) The waiver agreement must not have the effect of misleading, 
misinforming, or failing to inform participants and affected 
individuals. Any advantages or disadvantages described shall be 
presented without either exaggerating the benefits or minimizing the 
limitations.
    (5) Section 7(f)(1)(H) of the ADEA, relating to exit incentive or 
other employment termination programs offered to a group or class of 
employees, also contains a requirement that information be conveyed ``in 
writing in a manner calculated to be understood by the average 
participant.'' The same standards applicable to the similar language in 
section 7(f)(1)(A) of the ADEA apply here as well.
    (6) Section 7(f)(1)(B) of the ADEA provides, as part of the minimum 
requirements for a knowing and voluntary waiver, that ``the waiver 
specifically refers to rights or claims under this Act.'' Pursuant to 
this subsection, the waiver agreement must refer to the Age 
Discrimination in Employment Act (ADEA) by name in connection with the 
waiver.
    (7) Section 7(f)(1)(E) of the ADEA requires that an individual must 
be ``advised in writing to consult with an attorney prior to executing 
the agreement.''
    (c) Waiver of future rights. (1) Section 7(f)(1)(C) of the ADEA 
provides that:

    A waiver may not be considered knowing and voluntary unless at a 
minimum . . . the individual does not waive rights or claims

[[Page 360]]

that may arise after the date the waiver is executed.

    (2) The waiver of rights or claims that arise following the 
execution of a waiver is prohibited. However, section 7(f)(1)(C) of the 
ADEA does not bar, in a waiver that otherwise is consistent with 
statutory requirements, the enforcement of agreements to perform future 
employment-related actions such as the employee's agreement to retire or 
otherwise terminate employment at a future date.
    (d) Consideration. (1) Section 7(f)(1)(D) of the ADEA states that:

    A waiver may not be considered knowing and voluntary unless at a 
minimum * * * the individual waives rights or claims only in exchange 
for consideration in addition to anything of value to which the 
individual already is entitled.

    (2) ``Consideration in addition'' means anything of value in 
addition to that to which the individual is already entitled in the 
absence of a waiver.
    (3) If a benefit or other thing of value was eliminated in 
contravention of law or contract, express or implied, the subsequent 
offer of such benefit or thing of value in connection with a waiver will 
not constitute ``consideration'' for purposes of section 7(f)(1) of the 
ADEA. Whether such elimination as to one employee or group of employees 
is in contravention of law or contract as to other employees, or to that 
individual employee at some later time, may vary depending on the facts 
and circumstances of each case.
    (4) An employer is not required to give a person age 40 or older a 
greater amount of consideration than is given to a person under the age 
of 40, solely because of that person's membership in the protected class 
under the ADEA.
    (e) Time periods. (1) Section 7(f)(1)(F) of the ADEA states that:

    A waiver may not be considered knowing and voluntary unless at a 
minimum * * *
    (i) The individual is given a period of at least 21 days within 
which to consider the agreement; or
    (ii) If a waiver is requested in connection with an exit incentive 
or other employment termination program offered to a group or class of 
employees, the individual is given a period of at least 45 days within 
which to consider the agreement.

    (2) Section 7(f)(1)(G) of the ADEA states:

    A waiver may not be considered knowing and voluntary unless at a 
minimum . . . the agreement provides that for a period of at least 7 
days following the execution of such agreement, the individual may 
revoke the agreement, and the agreement shall not become effective or 
enforceable until the revocation period has expired.

    (3) The term ``exit incentive or other employment termination 
program'' includes both voluntary and involuntary programs.
    (4) The 21 or 45 day period runs from the date of the employer's 
final offer. Material changes to the final offer restart the running of 
the 21 or 45 day period; changes made to the final offer that are not 
material do not restart the running of the 21 or 45 day period. The 
parties may agree that changes, whether material or immaterial, do not 
restart the running of the 21 or 45 day period.
    (5) The 7 day revocation period cannot be shortened by the parties, 
by agreement or otherwise.
    (6) An employee may sign a release prior to the end of the 21 or 45 
day time period, thereby commencing the mandatory 7 day revocation 
period. This is permissible as long as the employee's decision to accept 
such shortening of time is knowing and voluntary and is not induced by 
the employer through fraud, misrepresentation, a threat to withdraw or 
alter the offer prior to the expiration of the 21 or 45 day time period, 
or by providing different terms to employees who sign the release prior 
to the expiration of such time period. However, if an employee signs a 
release before the expiration of the 21 or 45 day time period, the 
employer may expedite the processing of the consideration provided in 
exchange for the waiver.
    (f) Informational requirements. (1) Introduction. (i) Section 
7(f)(1)(H) of the ADEA provides that:

    A waiver may not be considered knowing and voluntary unless at a 
minimum . . . if a waiver is requested in connection with an exit 
incentive or other employment termination program offered to a group or 
class of employees, the employer (at the commencement of the period 
specified in subparagraph (F)) [which provides time periods for 
employees to consider the waiver] informs the individual in writing in a 
manner calculated to

[[Page 361]]

be understood by the average individual eligible to participate, as to--
    (i) Any class, unit, or group of individuals covered by such 
program, any eligibility factors for such program, and any time limits 
applicable to such program; and
    (ii) The job titles and ages of all individuals eligible or selected 
for the program, and the ages of all individuals in the same job 
classification or organizational unit who are not eligible or selected 
for the program.

    (ii) Section 7(f)(1)(H) of the ADEA addresses two principal issues: 
to whom information must be provided, and what information must be 
disclosed to such individuals.
    (iii)(A) Section 7(f)(1)(H) of the ADEA references two types of 
``programs'' under which employers seeking waivers must make written 
disclosures: ``exit incentive programs'' and ``other employment 
termination programs.'' Usually an ``exit incentive program'' is a 
voluntary program offered to a group or class of employees where such 
employees are offered consideration in addition to anything of value to 
which the individuals are already entitled (hereinafter in this section, 
``additional consideration'') in exchange for their decision to resign 
voluntarily and sign a waiver. Usually ``other employment termination 
program'' refers to a group or class of employees who were involuntarily 
terminated and who are offered additional consideration in return for 
their decision to sign a waiver.
    (B) The question of the existence of a ``program'' will be decided 
based upon the facts and circumstances of each case. A ``program'' 
exists when an employer offers additional consideration for the signing 
of a waiver pursuant to an exit incentive or other employment 
termination (e.g., a reduction in force) to two or more employees. 
Typically, an involuntary termination program is a standardized formula 
or package of benefits that is available to two or more employees, while 
an exit incentive program typically is a standardized formula or package 
of benefits designed to induce employees to sever their employment 
voluntarily. In both cases, the terms of the programs generally are not 
subject to negotiation between the parties.
    (C) Regardless of the type of program, the scope of the terms 
``class,'' ``unit,'' ``group,'' ``job classification,'' and 
``organizational unit'' is determined by examining the ``decisional 
unit'' at issue. (See paragraph (f)(3) of this section, ``The Decisional 
Unit.'')
    (D) A ``program'' for purposes of the ADEA need not constitute an 
``employee benefit plan'' for purposes of the Employee Retirement Income 
Security Act of 1974 (ERISA). An employer may or may not have an ERISA 
severance plan in connection with its OWBPA program.
    (iv) The purpose of the informational requirements is to provide an 
employee with enough information regarding the program to allow the 
employee to make an informed choice whether or not to sign a waiver 
agreement.
    (2) To whom must the information be given. The required information 
must be given to each person in the decisional unit who is asked to sign 
a waiver agreement.
    (3) The decisional unit. (i)(A) The terms ``class,'' ``unit,'' or 
``group'' in section 7(f)(1)(H)(i) of the ADEA and ``job classification 
or organizational unit'' in section 7(f)(1)(H)(ii) of the ADEA refer to 
examples of categories or groupings of employees affected by a program 
within an employer's particular organizational structure. The terms are 
not meant to be an exclusive list of characterizations of an employer's 
organization.
    (B) When identifying the scope of the ``class, unit, or group,'' and 
``job classification or organizational unit,'' an employer should 
consider its organizational structure and decision-making process. A 
``decisional unit'' is that portion of the employer's organizational 
structure from which the employer chose the persons who would be offered 
consideration for the signing of a waiver and those who would not be 
offered consideration for the signing of a waiver. The term ``decisional 
unit'' has been developed to reflect the process by which an employer 
chose certain employees for a program and ruled out others from that 
program.
    (ii)(A) The variety of terms used in section 7(f)(1)(H) of the ADEA 
demonstrates that employers often use differing terminology to describe 
their organizational structures. When identifying the population of the 
decisional unit, the employer acts on a case-by-

[[Page 362]]

case basis, and thus the determination of the appropriate class, unit, 
or group, and job classification or organizational unit for purposes of 
section 7(f)(1)(H) of the ADEA also must be made on a case-by-case 
basis.
    (B) The examples in paragraph (f)(3)(iii), of this section 
demonstrate that in appropriate cases some subgroup of a facility's work 
force may be the decisional unit. In other situations, it may be 
appropriate for the decisional unit to comprise several facilities. 
However, as the decisional unit is typically no broader than the 
facility, in general the disclosure need be no broader than the 
facility. ``Facility'' as it is used throughout this section generally 
refers to place or location. However, in some circumstances terms such 
as ``school,'' ``plant,'' or ``complex'' may be more appropriate.
    (C) Often, when utilizing a program an employer is attempting to 
reduce its workforce at a particular facility in an effort to eliminate 
what it deems to be excessive overhead, expenses, or costs from its 
organization at that facility. If the employer's goal is the reduction 
of its workforce at a particular facility and that employer undertakes a 
decision-making process by which certain employees of the facility are 
selected for a program, and others are not selected for a program, then 
that facility generally will be the decisional unit for purposes of 
section 7(f)(1)(H) of the ADEA.
    (D) However, if an employer seeks to terminate employees by 
exclusively considering a particular portion or subgroup of its 
operations at a specific facility, then that subgroup or portion of the 
workforce at that facility will be considered the decisional unit.
    (E) Likewise, if the employer analyzes its operations at several 
facilities, specifically considers and compares ages, seniority rosters, 
or similar factors at differing facilities, and determines to focus its 
workforce reduction at a particular facility, then by the nature of that 
employer's decision-making process the decisional unit would include all 
considered facilities and not just the facility selected for the 
reductions.
    (iii) The following examples are not all-inclusive and are meant 
only to assist employers and employees in determining the appropriate 
decisional unit. Involuntary reductions in force typically are 
structured along one or more of the following lines:
    (A) Facility-wide: Ten percent of the employees in the Springfield 
facility will be terminated within the next ten days;
    (B) Division-wide: Fifteen of the employees in the Computer Division 
will be terminated in December;
    (C) Department-wide: One-half of the workers in the Keyboard 
Department of the Computer Division will be terminated in December;
    (D) Reporting: Ten percent of the employees who report to the Vice 
President for Sales, wherever the employees are located, will be 
terminated immediately;
    (E) Job Category: Ten percent of all accountants, wherever the 
employees are located, will be terminated next week.
    (iv) In the examples in paragraph (f)(3)(iii) of this section, the 
decisional units are, respectively:
    (A) The Springfield facility;
    (B) The Computer Division;
    (C) The Keyboard Department;
    (D) All employees reporting to the Vice President for Sales; and
    (E) All accountants.
    (v) While the particular circumstances of each termination program 
will determine the decisional unit, the following examples also may 
assist in determining when the decisional unit is other than the entire 
facility:
    (A) A number of small facilities with interrelated functions and 
employees in a specific geographic area may comprise a single decisional 
unit;
    (B) If a company utilizes personnel for a common function at more 
than one facility, the decisional unit for that function (i.e., 
accounting) may be broader than the one facility;
    (C) A large facility with several distinct functions may comprise a 
number of decisional units; for example, if a single facility has 
distinct internal functions with no employee overlap (i.e., 
manufacturing, accounting, human resources), and the program is confined 
to a distinct function, a

[[Page 363]]

smaller decisional unit may be appropriate.
    (vi)(A) For purposes of this section, higher level review of 
termination decisions generally will not change the size of the 
decisional unit unless the reviewing process alters its scope. For 
example, review by the Human Resources Department to monitor compliance 
with discrimination laws does not affect the decisional unit. Similarly, 
when a regional manager in charge of more than one facility reviews the 
termination decisions regarding one of those facilities, the review does 
not alter the decisional unit, which remains the one facility under 
consideration.
    (B) However, if the regional manager in the course of review 
determines that persons in other facilities should also be considered 
for termination, the decisional unit becomes the population of all 
facilities considered. Further, if, for example, the regional manager 
and his three immediate subordinates jointly review the termination 
decisions, taking into account more than one facility, the decisional 
unit becomes the populations of all facilities considered.
    (vii) This regulatory section is limited to the requirements of 
section 7(f)(1)(H) and is not intended to affect the scope of discovery 
or of substantive proceedings in the processing of charges of violation 
of the ADEA or in litigation involving such charges.
    (4) Presentation of information. (i) The information provided must 
be in writing and must be written in a manner calculated to be 
understood by the average individual eligible to participate.
    (ii) Information regarding ages should be broken down according to 
the age of each person eligible or selected for the program and each 
person not eligible or selected for the program. The use of age bands 
broader than one year (such as ``age 20-30'') does not satisfy this 
requirement.
    (iii) In a termination of persons in several established grade 
levels and/or other established subcategories within a job category or 
job title, the information shall be broken down by grade level or other 
subcategory.
    (iv) If an employer in its disclosure combines information 
concerning both voluntary and involuntary terminations, the employer 
shall present the information in a manner that distinguishes between 
voluntary and involuntary terminations.
    (v) If the terminees are selected from a subset of a decisional 
unit, the employer must still disclose information for the entire 
population of the decisional unit. For example, if the employer decides 
that a 10% RIF in the Accounting Department will come from the 
accountants whose performance is in the bottom one-third of the 
Division, the employer still must disclose information for all employees 
in the Accounting Department, even those who are the highest rated.
    (vi) An involuntary termination program in a decisional unit may 
take place in successive increments over a period of time. Special rules 
apply to this situation. Specifically, information supplied with regard 
to the involuntary termination program should be cumulative, so that 
later terminees are provided ages and job titles or job categories, as 
appropriate, for all persons in the decisional unit at the beginning of 
the program and all persons terminated to date. There is no duty to 
supplement the information given to earlier terminees so long as the 
disclosure, at the time it is given, conforms to the requirements of 
this section.
    (vii) The following example demonstrates one way in which the 
required information could be presented to the employees. (This example 
is not presented as a prototype notification agreement that 
automatically will comply with the ADEA. Each information disclosure 
must be structured based upon the individual case, taking into account 
the corporate structure, the population of the decisional unit, and the 
requirements of section 7(f)(1)(H) of the ADEA): Example: Y Corporation 
lost a major construction contract and determined that it must terminate 
10% of the employees in the Construction Division. Y decided to offer 
all terminees $20,000 in severance pay in exchange for a waiver of all 
rights. The waiver provides the section 7(f)(1)(H) of the ADEA 
information as follows:

[[Page 364]]

    (A) The decisional unit is the Construction Division.
    (B) All persons in the Construction Division are eligible for the 
program. All persons who are being terminated in our November RIF are 
selected for the program.
    (C) All persons who are being offered consideration under a waiver 
agreement must sign the agreement and return it to the Personnel Office 
within 45 days after receiving the waiver. Once the signed waiver is 
returned to the Personnel Office, the employee has 7 days to revoke the 
waiver agreement.
    (D) The following is a listing of the ages and job titles of persons 
in the Construction Division who were and were not selected for 
termination and the offer of consideration for signing a waiver:

----------------------------------------------------------------------------------------------------------------
                                                                                            No.        No. not
                 Job Title                                      Age                       Selected     selected
----------------------------------------------------------------------------------------------------------------
(1) Mechanical Engineers, I................  25.......................................           21           48
                                             26.......................................           11           73
                                             63.......................................            4           18
                                             64.......................................            3           11
(2) Mechanical Engineers, II...............  28.......................................            3           10
                                             29.......................................           11           17
                                             Etc., for all ages
(3) Structural Engineers, I................  21.......................................            5            8
                                             Etc., for all ages
(4) Structural Engineers, II...............  23.......................................            2            4
                                             Etc., for all ages
(5) Purchasing Agents......................  26.......................................           10           11
                                             Etc., for all ages
----------------------------------------------------------------------------------------------------------------

    (g) Waivers settling charges and lawsuits. (1) Section 7(f)(2) of 
the ADEA provides that:

    A waiver in settlement of a charge filed with the Equal Employment 
Opportunity Commission, or an action filed in court by the individual or 
the individual's representative, alleging age discrimination of a kind 
prohibited under section 4 or 15 may not be considered knowing and 
voluntary unless at a minimum--
    (A) Subparagraphs (A) through (E) of paragraph (1) have been met; 
and
    (B) The individual is given a reasonable period of time within which 
to consider the settlement agreement.

    (2) The language in section 7(f)(2) of the ADEA, ``discrimination of 
a kind prohibited under section 4 or 15'' refers to allegations of age 
discrimination of the type prohibited by the ADEA.
    (3) The standards set out in paragraphs (b), (c), and (d) of this 
section for complying with the provisions of section 7(f)(1)(A)-(E) of 
the ADEA also will apply for purposes of complying with the provisions 
of section 7(f)(2)(A) of the ADEA.
    (4) The term ``reasonable time within which to consider the 
settlement agreement'' means reasonable under all the circumstances, 
including whether the individual is represented by counsel or has the 
assistance of counsel.
    (5) However, while the time periods under section 7(f)(1) of the 
ADEA do not apply to subsection 7(f)(2) of the ADEA, a waiver agreement 
under this subsection that provides an employee the time periods 
specified in section 7(f)(1) of the ADEA will be considered 
``reasonable'' for purposes of section 7(f)(2)(B) of the ADEA.
    (6) A waiver agreement in compliance with this section that is in 
settlement of an EEOC charge does not require the participation or 
supervision of EEOC.
    (h) Burden of proof. In any dispute that may arise over whether any 
of the requirements, conditions, and circumstances set forth in section 
7(f) of the ADEA, subparagraph (A), (B), (C), (D), (E), (F), (G), or (H) 
of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been 
met, the party asserting the validity of a waiver shall have the burden 
of proving in a court of competent jurisdiction that a waiver was 
knowing and voluntary pursuant to paragraph (1) or (2) of section 7(f) 
of the ADEA.
    (i) EEOC's enforcement powers. (1) Section 7(f)(4) of the ADEA 
states:


[[Page 365]]


    No waiver agreement may affect the Commission's rights and 
responsibilities to enforce [the ADEA]. No waiver may be used to justify 
interfering with the protected right of an employee to file a charge or 
participate in an investigation or proceeding conducted by the 
Commission.

    (2) No waiver agreement may include any provision prohibiting any 
individual from:
    (i) Filing a charge or complaint, including a challenge to the 
validity of the waiver agreement, with EEOC, or
    (ii) Participating in any investigation or proceeding conducted by 
EEOC.
    (3) No waiver agreement may include any provision imposing any 
condition precedent, any penalty, or any other limitation adversely 
affecting any individual's right to:
    (i) File a charge or complaint, including a challenge to the 
validity of the waiver agreement, with EEOC, or
    (ii) Participate in any investigation or proceeding conducted by 
EEOC.
    (j) Effective date of this section. (1) This section is effective 
July 6, 1998.
    (2) This section applies to waivers offered by employers on or after 
the effective date specified in paragraph (j)(1) of this section.
    (3) No inference is to be drawn from this section regarding the 
validity of waivers offered prior to the effective date.
    (k) Statutory authority. The regulations in this section are 
legislative regulations issued pursuant to section 9 of the ADEA and 
Title II of OWBPA.

[63 FR 30628, June 5, 1998, as amended at 79 FR 13547, Mar. 11, 2014]



Sec.  1625.23  Waivers of rights and claims: Tender back of consideration.

    (a) An individual alleging that a waiver agreement, covenant not to 
sue, or other equivalent arrangement was not knowing and voluntary under 
the ADEA is not required to tender back the consideration given for that 
agreement before filing either a lawsuit or a charge of discrimination 
with EEOC or any state or local fair employment practices agency acting 
as an EEOC referral agency for purposes of filing the charge with EEOC. 
Retention of consideration does not foreclose a challenge to any waiver 
agreement, covenant not to sue, or other equivalent arrangement; nor 
does the retention constitute the ratification of any waiver agreement, 
covenant not to sue, or other equivalent arrangement.
    (b) No ADEA waiver agreement, covenant not to sue, or other 
equivalent arrangement may impose any condition precedent, any penalty, 
or any other limitation adversely affecting any individual's right to 
challenge the agreement. This prohibition includes, but is not limited 
to, provisions requiring employees to tender back consideration 
received, and provisions allowing employers to recover attorneys' fees 
and/or damages because of the filing of an ADEA suit. This rule is not 
intended to preclude employers from recovering attorneys' fees or costs 
specifically authorized under federal law.
    (c) Restitution, recoupment, or setoff. (1) Where an employee 
successfully challenges a waiver agreement, covenant not to sue, or 
other equivalent arrangement, and prevails on the merits of an ADEA 
claim, courts have the discretion to determine whether an employer is 
entitled to restitution, recoupment or setoff (hereinafter, 
``reduction'') against the employee's monetary award. A reduction never 
can exceed the amount recovered by the employee, or the consideration 
the employee received for signing the waiver agreement, covenant not to 
sue, or other equivalent arrangement, whichever is less.
    (2) In a case involving more than one plaintiff, any reduction must 
be applied on a plaintiff-by-plaintiff basis. No individual's award can 
be reduced based on the consideration received by any other person.
    (d) No employer may abrogate its duties to any signatory under a 
waiver agreement, covenant not to sue, or other equivalent arrangement, 
even if one or more of the signatories or the EEOC successfully 
challenges the validity of that agreement under the ADEA.

[65 FR 77446, Dec. 11, 2000]

[[Page 366]]



                   Subpart C_Administrative Exemptions

    Source: 44 FR 38459, July 2, 1979, unless otherwise noted. 
Redesignated at 72 FR 72944, Dec. 26, 2007.



Sec.  1625.30  Administrative exemptions; procedures.

    (a) Section 9 of the Act provides that,

    In accordance with the provisions of subchapter II of chapter 5, of 
title 5, United States Code, the Secretary of Labor * * * may establish 
such reasonable exemptions to and from any or all provisions of this Act 
as he may find necessary and proper in the public interest.

    (b) The authority conferred on the Commission by section 9 of the 
Act to establish reasonable exemptions will be exercised with caution 
and due regard for the remedial purpose of the statute to promote 
employment of older persons based on their ability rather than age and 
to prohibit arbitrary age discrimination in employment. Administrative 
action consistent with this statutory purpose may be taken under this 
section, with or without a request therefor, when found necessary and 
proper in the public interest in accordance with the statutory 
standards. No formal procedures have been prescribed for requesting such 
action. However, a reasonable exemption from the Act's provisions will 
be granted only if it is decided, after notice published in the Federal 
Register giving all interested persons an opportunity to present data, 
views, or arguments, that a strong and affirmative showing has been made 
that such exemption is in fact necessary and proper in the public 
interest. Request for such exemption shall be submitted in writing to 
the Commission.



Sec.  1625.31  Special employment programs.

    (a) Pursuant to the authority contained in section 9 of the Act and 
in accordance with the procedure provided therein and in Sec.  
1625.30(b) of this part, it has been found necessary and proper in the 
public interest to exempt from all prohibitions of the Act all 
activities and programs under Federal contracts or grants, or carried 
out by the public employment services of the several States, designed 
exclusively to provide employment for, or to encourage the employment 
of, persons with special employment problems, including employment 
activities and programs under the Manpower Development and Training Act 
of 1962, Pub. L. No. 87-415, 76 Stat. 23 (1962), as amended, and the 
Economic Opportunity Act of 1964, Pub. L. No. 88-452, 78 Stat. 508 
(1964), as amended, for persons among the long-term unemployed, 
individuals with disabilities, members of minority groups, older 
workers, or youth. Questions concerning the application of this 
exemption shall be referred to the Commission for decision.
    (b) Any employer, employment agency, or labor organization the 
activities of which are exempt from the prohibitions of the Act under 
paragraph (a) of this section shall maintain and preserve records 
containing the same information and data that is required of employers, 
employment agencies, and labor organizations under Sec. Sec.  1627.3, 
1627.4, and 1627.5, respectively.

[44 FR 38459, July 2, 1979, as amended at 52 FR 32296, Aug. 27, 1987; 55 
FR 24078, June 14, 1990; 57 FR 4158, Feb. 4, 1992; 72 FR 72944, Dec. 26, 
2007; 74 FR 63984, Dec. 7, 2009]



Sec.  1625.32  Coordination of retiree health benefits with Medicare and
State health benefits.

    (a) Definitions. (1) Employee benefit plan means an employee benefit 
plan as defined in 29 U.S.C. 1002(3).
    (2) Medicare means the health insurance program available pursuant 
to Title XVIII of the Social Security Act, 42 U.S.C. 1395 et seq.
    (3) Comparable State health benefit plan means a State-sponsored 
health benefit plan that, like Medicare, provides retired participants 
who have attained a minimum age with health benefits, whether or not the 
type, amount or value of those benefits is equivalent to the type, 
amount or value of the health benefits provided under Medicare.
    (b) Exemption. Some employee benefit plans provide health benefits 
for retired participants that are altered, reduced or eliminated when 
the participant is eligible for Medicare health benefits or for health 
benefits under a comparable State health benefit plan,

[[Page 367]]

whether or not the participant actually enrolls in the other benefit 
program. Pursuant to the authority contained in section 9 of the Act, 
and in accordance with the procedures provided therein and in Sec.  
1625.30(b) of this part, it is hereby found necessary and proper in the 
public interest to exempt from all prohibitions of the Act such 
coordination of retiree health benefits with Medicare or a comparable 
State health benefit plan.
    (c) Scope of exemption. This exemption shall be narrowly construed. 
No other aspects of ADEA coverage or employment benefits other than 
those specified in paragraph (b) of this section are affected by the 
exemption. Thus, for example, the exemption does not apply to the use of 
eligibility for Medicare or a comparable State health benefit plan in 
connection with any act, practice or benefit of employment not specified 
in paragraph (b) of this section. Nor does it apply to the use of the 
age of eligibility for Medicare or a comparable State health benefit 
plan in connection with any act, practice or benefit of employment not 
specified in paragraph (b) of this section.

Appendix to Sec.  1625.32--Questions and Answers Regarding Coordination 
   of Retiree Health Benefits With Medicare and State Health Benefits

    Q1. Why is the Commission issuing an exemption from the Act?
    A1. The Commission recognizes that while employers are under no 
legal obligation to offer retiree health benefits, some employers choose 
to do so in order to maintain a competitive advantage in the 
marketplace--using these and other benefits to attract and retain the 
best talent available to work for their organizations. Further, retiree 
health benefits clearly benefit workers, allowing such individuals to 
acquire affordable health insurance coverage at a time when private 
health insurance coverage might otherwise be cost prohibitive. The 
Commission believes that it is in the best interest of both employers 
and employees for the Commission to pursue a policy that permits 
employers to offer these benefits to the greatest extent possible.
    Q2. Does the exemption mean that the Act no longer applies to 
retirees?
    A2. No. Only the practice of coordinating retiree health benefits 
with Medicare (or a comparable State health benefit plan) as specified 
in paragraph (b) of this section is exempt from the Act. In all other 
contexts, the Act continues to apply to retirees to the same extent that 
it did prior to the issuance of this section.
    Q3. May an employer offer a ``carve-out plan'' for retirees who are 
eligible for Medicare or a comparable State health plan?
    A3. Yes. A ``carve-out plan'' reduces the benefits available under 
an employee benefit plan by the amount payable by Medicare or a 
comparable State health plan. Employers may continue to offer such 
``carve-out plans''and make Medicare or a comparable State health plan 
the primary payer of health benefits for those retirees eligible for 
Medicare or the comparable State health plan.
    Q4. Does the exemption also apply to dependent and/or spousal health 
benefits that are included as part of the health benefits provided for 
retired participants?
    A4. Yes. Because dependent and/or spousal health benefits are 
benefits provided to the retired participant, the exemption applies to 
these benefits, just as it does to the health benefits for the retired 
participant. However, dependent and/or spousal benefits need not be 
identical to the health benefits provided for retired participants. 
Consequently, dependent and/or spousal benefits may be altered, reduced 
or eliminated pursuant to the exemption whether or not the health 
benefits provided for retired participants are similarly altered, 
reduced or eliminated.
    Q5. Does the exemption address how the ADEA may apply to other acts, 
practices or employment benefits not specified in the rule?
    A5. No. The exemption only applies to the practice of coordinating 
employer-sponsored retiree health benefits with eligibility for Medicare 
or a comparable State health benefit program. No other aspects of ADEA 
coverage or employment benefits other than retiree health benefits are 
affected by the exemption.
    Q6. Does the exemption apply to existing, as well as to newly 
created, employee benefit plans?
    A6. Yes. The exemption applies to all retiree health benefits that 
coordinate with Medicare (or a comparable State health benefit plan) as 
specified in paragraph (b) of this section, whether those benefits are 
provided for in an existing or newly created employee benefit plan.
    Q7. Does the exemption apply to health benefits that are provided to 
current employees who are at or over the age of Medicare eligibility (or 
the age of eligibility for a comparable State health benefit plan)?
    A7. No. The exemption applies only to retiree health benefits, not 
to health benefits that are provided to current employees. Thus, health 
benefits for current employees must be provided in a manner that 
comports with the requirements of the Act. Moreover,

[[Page 368]]

under the laws governing the Medicare program, an employer must offer to 
current employees who are at or over the age of Medicare eligibility the 
same health benefits, under the same conditions, that it offers to any 
current employee under the age of Medicare eligibility.

[72 FR 72945, Dec. 26, 2007]



PART 1626_PROCEDURES_AGE DISCRIMINATION IN EMPLOYMENT ACT-
-Table of Contents



Sec.
1626.1 Purpose.
1626.2 Terms defined in the Age Discrimination in Employment Act of 
          1967, as amended.
1626.3 Other definitions.
1626.4 Information concerning alleged violations of the Act.
1626.5 Where to submit complaints and charges.
1626.6 Form of charge.
1626.7 Timeliness of charge.
1626.8 Contents of charge; amendment of charge.
1626.9 Referral to and from State agencies; referral States.
1626.10 Agreements with State or local fair employment practices 
          agencies.
1626.11 Notice of charge.
1626.12 Conciliation efforts pursuant to section 7(d) of the Act.
1626.13 Withdrawal of charge.
1626.14 Right to inspect or copy data.
1626.15 Commission enforcement.
1626.16 Subpoenas.
1626.17 Notice of dismissal or termination.
1626.18 Filing of private lawsuit.
1626.19 Filing of Commission lawsuit.
1626.20 Procedure for requesting an opinion letter.
1626.21 Effect of opinions and interpretations of the Commission.
1626.22 Rules to be liberally construed.

    Authority: Sec. 9, 81 Stat. 605, 29 U.S.C. 628; sec. 2, Reorg. Plan 
No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.

    Source: 48 FR 140, Jan. 3, 1983, unless otherwise noted.



Sec.  1626.1  Purpose.

    The regulations set forth in this part contain the procedures 
established by the Equal Employment Opportunity Commission for carrying 
out its responsibilities in the administration and enforcement of the 
Age Discrimination in Employment Act of 1967, as amended.



Sec.  1626.2  Terms defined in the Age Discrimination in Employment
Act of 1967, as amended.

    The terms person, employer, employment agency, labor organization, 
employee, commerce, industry affecting commerce, and State as used 
herein shall have the meanings set forth in section 11 of the Age 
Discrimination in Employment Act, as amended.



Sec.  1626.3  Other definitions.

    (a) For the purposes of this part, the term the Act shall mean the 
Age Discrimination in Employment Act of 1967, as amended; the EEOC or 
Commission shall mean the Equal Employment Opportunity Commission or any 
of its designated representatives; charge shall mean a statement filed 
with the Commission by or on behalf of an aggrieved person which alleges 
that the named prospective defendant has engaged in or is about to 
engage in actions in violation of the Act; complaint shall mean 
information received from any source, that is not a charge, which 
alleges that a named prospective defendant has engaged in or is about to 
engage in actions in violation of the Act; charging party means the 
person filing a charge; complainant means the person filing a complaint; 
and respondent means the person named as a prospective defendant in a 
charge or complaint, or as a result of a Commission-initiated 
investigation.

[48 FR 140, Jan. 3, 1983, as amended at 85 FR 65219, Oct. 15, 2020]



Sec.  1626.4  Information concerning alleged violations of the Act.

    The Commission may, on its own initiative, conduct investigations of 
employers, employment agencies and labor organizations, in accordance 
with the powers vested in it pursuant to sections 6 and 7 of the Act. 
The Commission shall also receive information concerning alleged 
violations of the Act, including charges and complaints, from any 
source. Where the information discloses a possible violation, the 
appropriate Commission office may render assistance in the filing of a 
charge. The identity of a complainant, confidential witness, or 
aggrieved person on whose behalf a charge was filed will ordinarily not 
be disclosed without prior

[[Page 369]]

written consent, unless necessary in a court proceeding.



Sec.  1626.5  Where to submit complaints and charges.

    Complaints and charges may be made through the EEOC's designated 
digital systems, in person, by telephone, by facsimile, or by mail to 
any EEOC office or any designated representative of the Commission. The 
current addresses of the EEOC's offices appear at www.eeoc.gov.

[85 FR 65219, Oct. 15, 2020]



Sec.  1626.6  Form of charge.

    A charge shall be in writing and shall name the prospective 
respondent and shall generally allege the discriminatory act(s). Charges 
received in person or by telephone shall be reduced to writing.



Sec.  1626.7  Timeliness of charge.

    (a) Potential charging parties will be advised that, pursuant to 
section 7(d) (1) and (2) of the Act, no civil suit may be commenced by 
an individual until 60 days after a charge has been filed on the subject 
matter of the suit, and such charge shall be filed with the Commission 
or its designated agent within 180 days of the alleged discriminatory 
action, or, in a case where the alleged discriminatory action occurs in 
a State which has its own age discrimination law and authority 
administering that law, within 300 days of the alleged discriminatory 
action, or 30 days after receipt of notice of termination of State 
proceedings, whichever is earlier.
    (b) For purposes of determining the date of filing with the 
Commission, the following applies:
    (1) Charges filed digitally: Date of transmission;
    (2) Charges filed by mail:
    (i) Date of postmark, if legible,
    (ii) Date of letter, if postmark is illegible,
    (iii) Date of receipt by Commission, or its designated agent, if 
postmark and letter date are illegible and/or cannot be accurately 
affixed;
    (3) Written charges filed in person: Date of receipt;
    (4) Oral charges filed in person or by telephone, as reduced to 
writing: Date of oral communication received by Commission.

[48 FR 140, Jan. 3, 1983, as amended at 68 FR 70152, Dec. 17, 2003; 85 
FR 65219, Oct. 15, 2020]



Sec.  1626.8  Contents of charge; amendment of charge.

    (a) In addition to the requirements of Sec.  1626.6, each charge 
should contain the following:
    (1) The full name and contact information of the person making the 
charge except as provided in Sec.  1626.8(d) below;
    (2) The full name and contact information of the person against whom 
the charge is made, if known (hereinafter referred to as the 
respondent);
    (3) A clear and concise statement of the facts, including pertinent 
dates, constituting the alleged unlawful employment practices;
    (4) If known, the approximate number of employees of the prospective 
defendant employer or members of the prospective defendant labor 
organization.
    (5) A statement disclosing whether proceedings involving the alleged 
unlawful employment practice have been commenced before a State agency 
charged with the enforcement of fair employment practice laws and, if 
so, the date of such commencement and the name of the agency.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
a charge is sufficient when the Commission receives from the person 
making the charge either a written statement or information reduced to 
writing by the Commission that conforms to the requirements of Sec.  
1626.6.
    (c) A charge may be amended to clarify or amplify allegations made 
therein. Such amendments and amendments alleging additional acts which 
constitute unlawful employment practices related to or growing out of 
the subject matter of the original charge will relate back to the date 
the charge was first received. A charge that has been so amended shall 
not again be referred to the appropriate State agency.
    (d) A charge that any person has engaged in or is engaging in an 
unlawful employment practice within the meaning of the ADEA may be made 
by or on

[[Page 370]]

behalf of any person claiming to be aggrieved. A charge on behalf of a 
person claiming to be aggrieved may be made by any person, agency, or 
organization. The written charge need not identify by name the person on 
whose behalf it is made. The person making the charge, however, must 
provide the Commission with the name and contact information of the 
person on whose behalf the charge is made. During the Commission 
investigation, Commission personnel shall verify the authorization of 
such charge by the person on whose behalf the charge is made. Any such 
person may request that the Commission shall keep his or her identity 
confidential. However, such request for confidentiality shall not 
prevent the Commission from disclosing the identity to Federal, State or 
local agencies that have agreed to keep such information confidential. 
If this condition is violated by a recipient agency, the Commission may 
decline to honor subsequent requests for such information.
    (e) The person claiming to be aggrieved has the responsibility to 
provide the Commission with notice of a change in contact information so 
that he or she can be contacted when necessary during the Commission's 
consideration of the charge.

[48 FR 140, Jan. 3, 1983, as amended at 85 FR 65219, Oct. 15, 2020]



Sec.  1626.9  Referral to and from State agencies; referral States.

    The Commission may refer all charges to any appropriate State agency 
and will encourage State agencies to refer charges to the Commission in 
order to assure that the prerequisites for private law suits, as set out 
in section 14(b) of the Act, are met. Charges so referred shall be 
deemed to have been filed with the Commission in accordance with the 
specifications contained in Sec.  1626.7(b). The Commission may process 
any charge at any time, notwithstanding provisions for referral to and 
from appropriate State agencies.

[48 FR 140, Jan. 3, 1983, as amended at 68 FR 70152, Dec. 17, 2003]



Sec.  1626.10  Agreements with State or local fair employment 
practices agencies.

    (a) Pursuant to sections 6 and 7 of the ADEA and section 11(b) of 
the FLSA, the Commission may enter into agreements with State or local 
fair employment practices agencies to cooperate in enforcement, 
technical assistance, research, or public informational activities, and 
may engage the services of such agencies in processing charges assuring 
the safeguard of the Federal rights of aggrieved persons.
    (b) The Commission may enter into agreements with State or local 
agencies which authorize such agencies to receive charges and complaints 
pursuant to Sec.  1626.5 and in accordance with the specifications 
contained in Sec. Sec.  1626.7 and 1626.8.
    (c) When a worksharing agreement with a State agency is in effect, 
the State agency will act on certain charges and the Commission will 
promptly process charges which the State agency does not pursue. Charges 
received by one agency under the agreement shall be deemed received by 
the other agency for purposes of Sec.  1626.7



Sec.  1626.11  Notice of charge.

    Upon receipt of a charge, the Commission shall promptly notify the 
respondent that a charge has been filed.



Sec.  1626.12  Conciliation efforts pursuant to section 7(d) of the Act.

    (a) Upon receipt of a charge, the Commission shall promptly attempt 
to eliminate any alleged unlawful practice by informal methods of 
conciliation, conference, and persuasion. Upon failure of such 
conciliation the Commission will notify the charging party. Such 
notification enables the charging party or any person aggrieved by the 
subject matter of the charge to commence action to enforce their rights 
without waiting for the lapse of 60 days. Notification under this 
section is not a Notice of Dismissal or Termination under Sec.  1626.17.
    (b) In any conciliation process pursuant to this section the 
Commission will:
    (1) If it has not already done so, provide the respondent with a 
written summary of the known facts and non-

[[Page 371]]

privileged information that form the basis of the allegation(s), 
including identifying known aggrieved individuals or known groups of 
aggrieved individuals, for whom relief is being sought, but not if the 
individual(s) has requested anonymity. In the event that it is 
anticipated that a claims process will be used subsequently to identify 
aggrieved individuals, if it has not already done so, identify for 
respondent the criteria that will be used to identify victims from the 
pool of potential class members;
    (2) If it has not already done so, provide the respondent with a 
written summary of the legal basis for the allegation(s). In addition, 
the Commission may, but is not required to provide a response to the 
defenses raised by respondent;
    (3) Provide a written basis for any monetary or other relief 
including the calculations underlying the initial conciliation proposal, 
and an explanation thereof. A written explanation is not required for 
subsequent offers and counteroffers;
    (4) If it has not already done so, advise the respondent in writing 
that the Commission has designated the case as systemic, class, or 
pattern or practice, if the designation has been made at the time of the 
conciliation, and the basis for the designation; and
    (5) Provide the respondent at least 14 calendar days to respond to 
the Commission's initial conciliation proposal.
    (c) The Commission shall not disclose any information pursuant to 
paragraph (b) of this section where another federal law prohibits 
disclosure of that information or where the information is protected by 
privilege.
    (d) Any information the Commission provides pursuant to paragraph 
(b) of this section to the respondent, except for information about 
another charging party or aggrieved individual, will also be provided to 
the charging party, upon request. Any information the Commission 
provides pursuant to paragraph (b) of this section to the respondent 
about an aggrieved individual will be provided to the aggrieved 
individual, upon request.

[86 FR 2985, Jan. 14, 2021]



Sec.  1626.13  Withdrawal of charge.

    Charging parties may request withdrawal of a charge. Because the 
Commission has independent investigative authority, see Sec.  1626.4, it 
may continue any investigation and may secure relief for all affected 
persons notwithstanding a request by a charging party to withdraw a 
charge.



Sec.  1626.14  Right to inspect or copy data.

    A person who submits data or evidence to the Commission may retain 
or, on payment of lawfully prescribed costs, procure a copy or 
transcript thereof, except that a witness may for good cause be limited 
to inspection of the official transcript of his or her testimony.



Sec.  1626.15  Commission enforcement.

    (a) As provided in sections 9, 11, 16 and 17 of the Fair Labor 
Standards Act of 1938, as amended (29 U.S.C. 209, 211, 216 and 217) 
(FLSA) and sections 6 and 7 of this Act, the Commission and its 
authorized representatives may (1) investigate and gather data; (2) 
enter and inspect establishments and records and make transcripts 
thereof; (3) interview employees; (4) impose on persons subject to the 
Act appropriate recordkeeping and reporting requirements; (5) advise 
employers, employment agencies and labor organizations with regard to 
their obligations under the Act and any changes necessary in their 
policies, practices and procedures to assure compliance with the Act; 
(6) subpoena witnesses and require the production of documents and other 
evidence; (7) supervise the payment of amounts owing pursuant to section 
16(c) of the FLSA, and (8) institute action under section 16(c) or 
section 17 of the FLSA or both to obtain appropriate relief.
    (b) Whenever the Commission has a reasonable basis to conclude that 
a violation of the Act has occurred or will occur, it may commence 
conciliation under section 7(b) of the Act. Notice of commencement of 
will ordinarily be issued in the form of a letter of violation; 
provided, however, that failure to issue a written violation letter 
shall in no instance be construed as a finding of

[[Page 372]]

no violation. The Commission will ordinarily notify the respondent and 
aggrieved persons of its determination. In the process of conducting any 
investigation or conciliation under this Act, the identity of persons 
who have provided information in confidence shall not be disclosed 
except in accordance with Sec.  1626.4.
    (c) Any agreement reached as a result of efforts undertaken pursuant 
to this section shall, as far as practicable, require the respondent to 
eliminate the unlawful practice(s) and provide appropriate affirmative 
relief. Such agreement shall be reduced to writing and will ordinarily 
be signed by the Commission's delegated representative, the respondent, 
and the charging party, if any. The signed agreement shall be sent to 
all the signatories thereto.
    (d) Upon the failure of informal conciliation, conference and 
persuasion under section 7(b) of the Act, the Commission may initiate 
and conduct litigation. Any conciliation process under this paragraph 
shall follow the procedures as described in Sec.  1626.12.
    (e) The District Directors, Field Directors, Area Directors, and 
Local Directors, the Director of the Office of Field Programs or their 
designees, are hereby delegated authority to exercise the powers 
enumerated in Sec.  1626.15(a) (1) through (7) and (b) and (c). The 
General Counsel or his/her designee is hereby delegated the authority to 
exercise the powers in paragraph (a) of this section and at the 
direction of the Commission to initiate and conduct litigation.

[48 FR 140, Jan. 3, 1983, as amended at 54 FR 32063, Aug. 4, 1989; 54 FR 
33503, Aug. 15, 1989; 68 FR 70152, Dec. 17, 2003; 71 FR 26831, May 9, 
2006; 85 FR 65219, Oct. 15, 2020; 86 FR 2985, Jan. 14, 2021]



Sec.  1626.16  Subpoenas.

    (a) To effectuate the purposes of the Act the Commission shall have 
the authority to issue a subpoena requiring:
    (1) The attendance and testimony of witnesses;
    (2) The production of evidence including, but not limited to, books, 
records, correspondence, or documents, in the possession or under the 
control of the person subpoenaed; and
    (3) Access to evidence for the purpose of examination and the right 
to copy.
    (b) The power to issue subpoenas has been delegated by the 
Commission, pursuant to section 6(a) of the Act, to the General Counsel, 
the District Directors, Field Directors, Area Directors, and Local 
Directors, the Director of the Office of Field Programs, or their 
designees. The subpoena shall state the name, address and title of the 
issuer, identify the person or evidence subpoenaed, the name of the 
person to whom the subpoena is returnable, the date, time and place that 
testimony is to be given or that documents are to be provided or access 
provided.
    (c) A subpoena issued by the Commission or its designee pursuant to 
the Act is not subject to review or appeal.
    (d) Upon the failure of any person to comply with a subpoena issued 
under this section, the Commission may utilize the provisions of 
sections 9 and 10 of the Federal Trade Commission Act, 15 U.S.C. 49 and 
50, to compel compliance with the subpoena.
    (e) Persons subpoenaed shall be entitled to the same fees and 
mileage that are paid witnesses in the courts of the United States.

[48 FR 140, Jan. 3, 1983, as amended at 54 FR 32063, Aug. 4, 1989; 71 FR 
26831, May 9, 2006; 85 FR 65220, Oct. 15, 2020]



Sec.  1626.17  Notice of dismissal or termination.

    (a) Issuance of Notice of Dismissal or Termination. (1) Where a 
charge filed with the Commission under the ADEA is dismissed or the 
Commission's proceedings are otherwise terminated, the Commission will 
issue a Notice of Dismissal or Termination on the charge as described in 
paragraph (c) of this section to the person(s) claiming to be aggrieved. 
In the case of a charge concerning more than one aggrieved person, the 
Commission will only issue a Notice of Dismissal or Termination when the 
charge is dismissed or proceedings are otherwise terminated as to all 
aggrieved persons.
    (2) Where the charge has been filed under the ADEA and title VII, 
the Americans with Disabilities Act (ADA), or the Genetic Information 
Nondiscrimination Act (GINA), the Commission will issue a Notice of 
Dismissal or Termination under the ADEA at the same time it issues the 
Notice of Right

[[Page 373]]

to Sue under title VII, the ADA, or GINA .
    (3) The issuance of a Notice of Dismissal or Termination does not 
preclude the Commission from offering such assistance to a person 
receiving the notice as the Commission deems necessary or appropriate. 
The issuance does not preclude or interfere with the Commission's 
continuing right to investigate and litigate the same matter or any ADEA 
matter under its enforcement authority.
    (b) Delegation of Authority To Issue Notices of Dismissal or 
Termination. The Commission hereby delegates authority to issue Notices 
of Dismissal or Termination, in accordance with this section, to: 
Directors of District, Field, Area and Local offices; the Director of 
the Office of Field Programs; the Director of Field Management Programs, 
Office of Field Programs; the General Counsel; or their designees.
    (c) Contents of the Notice of Dismissal or Termination. The Notice 
of Dismissal or Termination shall include:
    (1) A copy of the charge;
    (2) Notification that the charge has been dismissed or the 
Commission's proceedings have otherwise been terminated; and
    (3) Notification that the aggrieved person's right to file a civil 
action against the respondent on the subject charge under the ADEA will 
expire 90 days after receipt of such notice.

[68 FR 70152, Dec. 17, 2003, as amended at 71 FR 26831, May 9, 2006; 85 
FR 65220, Oct. 15, 2020]



Sec.  1626.18  Filing of private lawsuit.

    (a) An aggrieved person may file a civil action against the 
respondent named in the charge in either Federal or State court under 
section 7 of the ADEA.
    (b) An aggrieved person whose claims are the subject of a timely 
pending charge may file a civil action at any time after 60 days have 
elapsed from the filing of the charge with the Commission (or as 
provided in Sec.  1626.12) without waiting for a Notice of Dismissal or 
Termination to be issued.
    (c) The right of an aggrieved person to file suit expires 90 days 
after receipt of the Notice of Dismissal or Termination or upon 
commencement of an action by the Commission to enforce the right of such 
person.
    (d) If the Commission becomes aware that the aggrieved person whose 
claim is the subject of a pending ADEA charge has filed an ADEA lawsuit 
against the respondent named in the charge, it shall terminate further 
processing of the charge or portion of the charge affecting that person 
unless the District Director; Field Director; Area Director; Local 
Director; Director of the Office of Field Programs; the General Counsel; 
the Director of Field Management Programs; or their designees determine 
at that time or at a later time that it would effectuate the purpose of 
the ADEA to further process the charge.

[68 FR 70152, Dec. 17, 2003, as amended at 71 FR 26831, May 9, 2006]



Sec.  1626.19  Filing of Commission lawsuit.

    The right of the Commission to file a civil action under the ADEA is 
not dependent on the filing of a charge and is not affected by the 
issuance of a Notice of Dismissal or Termination to any aggrieved 
person.

[68 FR 70152, Dec. 17, 2003]



Sec.  1626.20  Procedure for requesting an opinion letter.

    (a) A request for an opinion letter should be submitted in writing 
to the Chair, Equal Employment Opportunity Commission, 131 M Street, 
NE., Washington DC 20507, and shall contain:
    (1) A concise statement of the issues on which an opinion is 
requested;
    (2) As full a statement as possible of relevant facts and law; and
    (3) The names and addresses of the person making the request and 
other interested persons.
    (b) Issuance of an opinion letter by the Commission is 
discretionary.
    (c) Informal advice. When the Commission, at its discretion, 
determines that it will not issue an opinion letter as defined in Sec.  
1626.21, the Commission may provide informal advice or guidance to the 
requestor. An informal letter of advice does not represent the formal 
position of the Commission and does not commit the Commission to the 
views expressed therein. Any letter other than those defined in

[[Page 374]]

Sec.  1626.21(a)(1) will be considered a letter of advice and may not be 
relied upon by any employer within the meaning of section 10 of the 
Portal to Portal Act of 1947, incorporated into the Age Discrimination 
in Employment Act of 1967 through section 7(e)(1) of the Act.

[48 FR 140, Jan. 3, 1983, as amended at 54 FR 32063, Aug. 4, 1989. 
Redesignated at 68 FR 70152, Dec. 17, 2003; 74 FR 3430, Jan. 21, 2009 ; 
85 FR 65220, Oct. 15, 2020]



Sec.  1626.21  Effect of opinions and interpretations of the Commission.

    (a) Section 10 of the Portal to Portal Act of 1947, incorporated 
into the Age Discrimination in Employment Act of 1967 through section 
7(e)(1) of the Act, provides that:

    In any action or proceeding based on any act or omission on or after 
the date of the enactment of this Act, no employer shall be subject to 
any liability or punishment * * * if he pleads and proves that the act 
or omission complained of was in good faith in conformity with and in 
reliance on any written administrative regulations, order, ruling, 
approval or interpretation * * * or any administrative practice or 
enforcement policy of [the Commission].


The Commission has determined that only (1) a written document, entitled 
``opinion letter,'' signed by the Legal Counsel on behalf of and as 
approved by the Commission, or (2) a written document issued in the 
conduct of litigation, entitled ``opinion letter,'' signed by the 
General Counsel on behalf of and as approved by the Commission, or (3) 
matter published and specifically designated as such in the Federal 
Register, may be relied upon by any employer as a ``written regulation, 
order, ruling, approval or interpretation'' or ``evidence of any 
administrative practice or enforcement policy'' of the Commission ``with 
respect to the class of employers to which he belongs,'' within the 
meaning of the statutory provisions quoted above.
    (b) An opinion letter issued pursuant to paragraph (a)(1) of this 
section, when issued to the specific addressee, has no effect upon 
situations other than that of the specific addressee.
    (c) When an opinion letter, as defined in paragraph (a)(1) of this 
section, is requested, the procedure stated in Sec.  1626.20 shall be 
followed.

[48 FR 140, Jan. 3, 1983. Redesignated at 68 FR 70152, Dec. 17, 2003; 85 
FR 65220, Oct. 15, 2020]



Sec.  1626.22  Rules to be liberally construed.

    (a) These rules and regulations shall be liberally construed to 
effectuate the purposes and provisions of this Act and any other acts 
administered by the Commission.
    (b) Whenever the Commission receives a charge or obtains information 
relating to possible violations of one of the statutes which it 
administers and the charge or information reveals possible violations of 
one or more of the other statutes which it administers, the Commission 
will treat such charges or information in accordance with all such 
relevant statutes.
    (c) Whenever a charge is filed under one statute and it is 
subsequently believed that the alleged discrimination constitutes an 
unlawful employment practice under another statute administered and 
enforced by the Commission, the charge may be so amended and timeliness 
determined from the date of filing of the original charge.

[48 FR 140, Jan. 3, 1983. Redesignated at 68 FR 70152, Dec. 17, 2003]



PART 1627_RECORDS TO BE MADE OR KEPT RELATING TO AGE: NOTICES TO BE
POSTED--Table of Contents



                            Subpart A_General

Sec.
1627.1 Purpose and scope.

  Subpart B_Records To Be Made or Kept Relating to Age; Notices To Be 
                                 Posted

1627.2 Forms of records.
1627.3 Records to be kept by employers.
1627.4 Records to be kept by employment agencies.
1627.5 Records to be kept by labor organizations.
1627.6 Availability of records for inspection.
1627.7 Transcriptions and reports.
1627.8-1627.9 [Reserved]
1627.10 Notices to be posted.
1627.11 Petitions for recordkeeping exceptions.

[[Page 375]]

                      Subpart D_Statutory Exemption

1627.17 Calculating the amount of qualified retirement benefits for 
          purposes of the exemption for bona fide executives or high 
          policymaking employees.

    Authority: Sec. 7, 81 Stat. 604; 29 U.S.C. 626; sec. 11, 52 Stat. 
1066, 29 U.S.C. 211; sec. 12, 29 U.S.C. 631, Pub. L. 99-592, 100 Stat. 
3342; sec. 2, Reorg. Plan No. 1 of 1978, 43 FR 19807.

    Source: 44 FR 38459, July 2, 1979, unless otherwise noted.



                            Subpart A_General



Sec.  1627.1  Purpose and scope.

    (a) Section 7 of the Age Discrimination in Employment Act of 1967 
(hereinafter referred to in this part as the Act) empowers the 
Commission to require the keeping of records which are necessary or 
appropriate for the administration of the Act in accordance with the 
powers contained in section 11 of the Fair Labor Standards Act of 1938. 
Subpart B of this part sets forth the recordkeeping and posting 
requirements which are prescribed by the Commission for employers, 
employment agencies, and labor organizations which are subject to the 
Act. Reference should be made to section 11 of the Act for definitions 
of the terms ``employer'', ``employment agency'', and ``labor 
organization''. General interpretations of the Act and of this part are 
published in part 1625 of this chapter. This part also reflects 
pertinent delegations of the Commission's duties.
    (b) Subpart D of this part sets forth the Commission's regulations 
issued pursuant to section 12(c)(2) of the Act, providing that the 
Secretary of Labor, after consultation with the Secretary of the 
Treasury, shall prescribe the manner of calculating the amount of 
qualified retirement benefits for purposes of the exemption in section 
12(c)(1) of the Act.

[44 FR 38459, July 2, 1979, as amended at 44 FR 66797, Nov. 21, 1979; 72 
FR 72944, Dec. 26, 2007]



  Subpart B_Records To Be Made or Kept Relating to Age; Notices To Be 
                                 Posted



Sec.  1627.2  Forms of records.

    No particular order or form of records is required by the 
regulations in this part 1627. It is required only that the records 
contain in some form the information specified. If the information 
required is available in records kept for other purposes, or can be 
obtained readily by recomputing or extending data recorded in some other 
form, no further records are required to be made or kept on a routine 
basis by this part 1627.



Sec.  1627.3  Records to be kept by employers.

    (a) Every employer shall make and keep for 3 years payroll or other 
records for each of his employees which contain:
    (1) Name;
    (2) Address;
    (3) Date of birth;
    (4) Occupation;
    (5) Rate of pay, and
    (6) Compensation earned each week.
    (b)(1) Every employer who, in the regular course of his business, 
makes, obtains, or uses, any personnel or employment records related to 
the following, shall, except as provided in paragraphs (b) (3) and (4) 
of this section, keep them for a period of 1 year from the date of the 
personnel action to which any records relate:
    (i) Job applications, resumes, or any other form of employment 
inquiry whenever submitted to the employer in response to his 
advertisement or other notice of existing or anticipated job openings, 
including records pertaining to the failure or refusal to hire any 
individual,
    (ii) Promotion, demotion, transfer, selection for training, layoff, 
recall, or discharge of any employee,
    (iii) Job orders submitted by the employer to an employment agency 
or labor organization for recruitment of personnel for job openings,
    (iv) Test papers completed by applicants or candidates for any 
position which disclose the results of any employer-administered 
aptitude or other

[[Page 376]]

employment test considered by the employer in connection with any 
personnel action,
    (v) The results of any physical examination where such examination 
is considered by the employer in connection with any personnel action,
    (vi) Any advertisements or notices to the public or to employees 
relating to job openings, promotions, training programs, or 
opportunities for overtime work.
    (2) Every employer shall keep on file any employee benefit plans 
such as pension and insurance plans, as well as copies of any seniority 
systems and merit systems which are in writing, for the full period the 
plan or system is in effect, and for at least 1 year after its 
termination. If the plan or system is not in writing, a memorandum fully 
outlining the terms of such plan or system and the manner in which it 
has been communicated to the affected employees, together with notations 
relating to any changes or revisions thereto, shall be kept on file for 
a like period.
    (3) When an enforcement action is commenced under section 7 of the 
Act regarding a particular applicant or employee, the Commission or its 
authorized representative shall require the employer to retain any 
record required to be kept under paragraph (b) (1) or (2) of this 
section which is relative to such action until the final disposition 
thereof.

(Approved by the Office of Management and Budget under control number 
3046-0018)

(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[44 FR 38459, July 2, 1979, as amended at 46 FR 63268, Dec. 31, 1981; 56 
FR 35756, July 26, 1991]



Sec.  1627.4  Records to be kept by employment agencies.

    (a)(1) Every employment agency which, in the regular course of its 
business, makes, obtains, or uses, any records related to the following, 
shall, except as provided in paragraphs (a) (2) and (3) of this section, 
keep them for a period of 1 year from the date of the action to which 
the records relate:
    (i) Placements;
    (ii) Referrals, where an individual is referred to an employer for a 
known or reasonably anticipated job opening;
    (iii) Job orders from employers seeking individuals for job 
openings;
    (iv) Job applications, resumes, or any other form of employment 
inquiry or record of any individual which identifies his qualifications 
for employment, whether for a known job opening at the time of 
submission or for future referral to an employer;
    (v) Test papers completed by applicants or candidates for any 
position which disclose the results of any agency-administered aptitude 
or other employment test considered by the agency in connection with any 
referrals;
    (vi) Advertisements or notices relative to job openings.
    (2) When an enforcement action is commenced under section 7 of the 
Act regarding a particular applicant, the Commission or its authorized 
representative shall require the employment agency to retain any record 
required to be kept under paragraph (a)(1) of this section which is 
relative to such action until the final disposition thereof.
    (b) Whenever an employment agency has an obligation as an 
``employer'' or a ``labor organization'' under the Act, the employment 
agency must also comply with the recordkeeping requirements set forth in 
Sec.  1627.3 or Sec.  1627.5, as appropriate.

(Approved by the Office of Management and Budget under control number 
3046-0018)

(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[44 FR 38459, July 2, 1979, as amended at 46 FR 63268, Dec. 31, 1981; 56 
FR 35756, July 26, 1991]



Sec.  1627.5  Records to be kept by labor organizations.

    (a) Every labor organization shall keep current records identifying 
its members by name, address, and date of birth.
    (b) Every labor organization shall, except as provided in paragraph 
(c) of this section, keep for a period of 1 year from the making 
thereof, a record of the name, address, and age of any individual 
seeking membership in the organization. An individual seeking membership 
is considered to be a person

[[Page 377]]

who files an application for membership or who, in some other manner, 
indicates a specific intention to be considered for membership, but does 
not include any individual who is serving for a stated limited 
probationary period prior to permanent employment and formal union 
membership. A person who merely makes an inquiry about the labor 
organization or, for example, about its general program, is not 
considered to be an individual seeking membership in a labor 
organization.
    (c) When an enforcement action is commenced under section 7 of the 
Act regarding a labor organization, the Commission or its authorized 
representative shall require the labor organization to retain any record 
required to be kept under paragraph (b) of this section which is 
relative to such action until the final disposition thereof.
    (d) Whenever a labor organization has an obligation as an 
``employer'' or as an ``employment agency'' under the Act, the labor 
organization must also comply with the recordkeeping requirements set 
forth in Sec.  1627.3 or Sec.  1627.4, as appropriate.

(Approved by the Office of Management and Budget under control number 
3046-0018)

(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[44 FR 38459, July 2, 1979, as amended at 46 FR 63268, Dec. 31, 1981; 56 
FR 35756, July 26, 1991]



Sec.  1627.6  Availability of records for inspection.

    (a) Place records are to be kept. The records required to be kept by 
this part shall be kept safe and accessible at the place of employment 
or business at which the individual to whom they relate is employed or 
has applied for employment or membership, or at one or more established 
central recordkeeping offices.
    (b) Inspection of records. All records required by this part to be 
kept shall be made available for inspection and transcription by 
authorized representatives of the Commission during business hours 
generally observed by the office at which they are kept or in the 
community generally. Where records are maintained at a central 
recordkeeping office pursuant to paragraph (a) of this section, such 
records shall be made available at the office at which they would 
otherwise be required to be kept within 72 hours following request from 
the Commission or its authorized representative.

(Approved by the Office of Management and Budget under control number 
3046-0018)

(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[44 FR 38459, July 2, 1979, as amended at 46 FR 63268, Dec. 31, 1981]



Sec.  1627.7  Transcriptions and reports.

    Every person required to maintain records under the Act shall make 
such extension, recomputation or transcriptions of his records and shall 
submit such reports concerning actions taken and limitations and 
classifications of individuals set forth in records as the Commission or 
its authorized representative may request in writing.

(Approved by the Office of Management and Budget under control number 
3046-0018)

(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[44 FR 38459, July 2, 1979, as amended at 46 FR 63268, Dec. 31, 1981]



Sec. Sec.  1627.8-1627.9  [Reserved]



Sec.  1627.10  Notices to be posted.

    Every employer, employment agency, and labor organization which has 
an obligation under the Age Discrimination in Employment Act of 1967 
shall post and keep posted in conspicuous places upon its premises the 
notice pertaining to the applicability of the Act prescribed by the 
Commission or its authorized representative. Such a notice must be 
posted in prominent and accessible places where it can readily be 
observed by employees, applicants for employment and union members.



Sec.  1627.11  Petitions for recordkeeping exceptions.

    (a) Submission of petitions for relief. Each employer, employment 
agency, or labor organization who for good cause wishes to maintain 
records in a manner other than required in this part, or to be relieved 
of preserving certain records for the period or periods prescribed in 
this part, may submit in

[[Page 378]]

writing a petition to the Commission requesting such relief setting 
forth the reasons therefor and proposing alternative recordkeeping or 
record-retention procedures.
    (b) Action on petitions. If, no review of the petition and after 
completion of any necessary or appropriate investigation supplementary 
thereto, the Commission shall find that the alternative procedure 
proposed, if granted, will not hamper or interfere with the enforcement 
of the Act, and will be of equivalent usefulness in its enforcement, the 
Commission may grant the petition subject to such conditions as it may 
determine appropriate and subject to revocation. Whenever any relief 
granted to any person is sought to be revoked for failure to comply with 
the conditions of the Commission, that person shall be notified in 
writing of the facts constituting such failure and afforded an 
opportunity to achieve or demonstrate compliance.
    (c) Compliance after submission of petitions. The submission of a 
petition or any delay of the Commission in acting upon such petition 
shall not relieve any employer, employment agency, or labor organization 
from any obligations to comply with this part. However, the Commission 
shall give notice of the denial of any petition with due promptness.



                      Subpart D_Statutory Exemption



Sec.  1627.17  Calculating the amount of qualified retirement benefits
for purposes of the exemption for bona fide executives or high policymaking
employees.

    (a) Section 12(c)(1) of the Act, added by the 1978 amendments and 
amended in 1984 and 1986, provides:

    Nothing in this Act shall be construed to prohibit compulsory 
retirement of any employee who has attained 65 years of age, and who, 
for the 2-year period immediately before retirement, is employed in a 
bona fide executive or high policymaking position, if such employee is 
entitled to an immediate nonforfeitable annual retirement benefit from a 
pension, profit-sharing, savings, or deferred compensation plan, or any 
combination of such plans, of the employer of such employee, which 
equals, in the aggregate, at least $44,000.


The Commission's interpretative statements regarding this exemption are 
set forth in section 1625 of this chapter.
    (b) Section 12(c)(2) of the Act provides:

    In applying the retirement benefit test of paragraph (a) of this 
subsection, if any such retirement benefit is in a form other than a 
straight life annuity (with no ancillary benefits), or if employees 
contribute to any such plan or make rollover contributions, such benefit 
shall be adjusted in accordance with regulations prescribed by the 
Commission, after consultation with the Secretary of the Treasury, so 
that the benefit is the equivalent of a straight life annuity (with no 
ancillary benefits) under a plan to which employees do not contribute 
and under which no rollover contributions are made.

    (c)(1) The requirement that an employee be entitled to the 
equivalent of a $44,000 straight life annuity (with no ancillary 
benefits) is statisfied in any case where the employee has the option of 
receiving, during each year of his or her lifetime following retirement, 
an annual payment of at least $44,000, or periodic payments on a more 
frequent basis which, in the aggregate, equal at least $44,000 per year: 
Provided, however, that the portion of the retirement income figure 
attributable to Social Security, employee contributions, rollover 
contributions and contributions of prior employers is excluded in the 
manner described in paragraph (e) of this section. (A retirement benefit 
which excludes these amounts is sometimes referred to herein as a 
``qualified'' retirement benefit.)
    (2) The requirment is also met where the employee has the option of 
receiving, upon retirement, a lump sum payment with which it is possible 
to purchase a single life annuity (with no ancillary benefits) yielding 
at least $44,000 per year as adjusted.
    (3) The requirement is also satisfied where the employee is entitled 
to receive, upon retirement, benefits whose aggregate value, as of the 
date of the employee's retirement, with respect to those payments which 
are scheduled to be made within the period of life expectancy of the 
employee, is $44,000 per year as adjusted.
    (4) Where an employee has one or more of the options described in 
paragraphs (c)(1) through (3) of this section, but instead selects 
another option (or

[[Page 379]]

options), the test is also met. On the other hand, where an employee has 
no choice but to have certain benefits provided after his or her death, 
the value of these benefits may not be included in this determination.
    (5) The determination of the value of those benefits which may be 
counted towards the $44,000 requirement must be made on the basis of 
reasonable actuarial assumptions with respect to mortality and interest. 
For purposes of excluding from this determination any benefits which are 
available only after death, it is not necessary to determine the life 
expectancy of each person on an individual basis. A reasonable actuarial 
assumption with respect to mortality will suffice.
    (6) The benefits computed under paragraphs (c)(1), (2) and (3) of 
this section shall be aggregated for purposes of determining whether the 
$44,000 requirement has been met.
    (d) The only retirement benefits which may be counted towards the 
$44,000 annual benefit are those from a pension, profit-sharing, 
savings, or deferred compensation plan, or any combination of such 
plans. Such plans include, but are not limited to, stock bonus, thrift 
and simplified employee pensions. The value of benefits from any other 
employee benefit plans, such as health or life insurance, may not be 
counted.
    (e) In calculating the value of a pension, profit-sharing, savings, 
or deferred compensation plan (or any combination of such plans), 
amounts attributable to Social Security, employee contributions, 
contributions of prior employers, and rollover contributions must be 
excluded. Specific rules are set forth below.
    (1) Social Security. Amounts attributable to Social Security must be 
excluded. Since these amounts are readily determinable, no specific 
rules are deemed necessary.
    (2) Employee contributions. Amounts attributable to employee 
contributions must be excluded. The regulations governing this 
requirement are based on section 411(c) of the Internal Revenue Code and 
Treasury Regulations thereunder (Sec.  1.411(c)-(1)), relating to the 
allocation of accrued benefits between employer and employee 
contributions. Different calculations are needed to determine the amount 
of employee contributions, depending upon whether the retirement income 
plan is a defined contribution plan or a defined benefit plan. Defined 
contribution plans (also referred to as individual account plans) 
generally provide that each participant has an individual account and 
the participant's benefits are based solely on the account balance. No 
set benefit is promised in defined contribution plans, and the final 
amount is a result not only of the actual contributions, but also of 
other factors, such as investment gains and losses. Any retirement 
income plan which is not an individual account plan is a defined benefit 
plan. Defined benefit plans generally provide a definitely determinable 
benefit, by specifying either a flat monthly payment or a schedule of 
payments based on a formula (frequently involving salary and years of 
service), and they are funded according to actuarial principles over the 
employee's period of participation.
    (i) Defined contribution plans--(A) Separate accounts maintained. If 
a separate account is maintained with respect to an employee's 
contributions and all income, expenses, gains and losses attributable 
thereto, the balance in such an account represents the amount 
attributable to employee contributions.
    (B) Separate accounts not maintained. If a separate account is not 
maintained with respect to an employee's contributions and the income, 
expenses, gains and losses attributable thereto, the proportion of the 
total benefit attributable to employee contributions is determined by 
multiplying that benefit by a fraction:
    (1) The numerator of which is the total amount of the employee's 
contributions under the plan (less withdrawals), and
    (2) The denominator of which is the sum of the numerator and the 
total contributions made under the plan by the employer on behalf of the 
employee (less withdrawals).

    Example: A defined contribution plan does not maintain separate 
accounts for employee contributions. An employee's annual retirement 
benefit under the plan is $40,000. The

[[Page 380]]

employee has contributed $96,000 and the employer has contributed 
$144,000 to the employee's individual account; no withdrawals have been 
made. The amount of the $40,000 annual benefit attributable to employee 
contributions is $40,000 x $96,000/$96,000 + $144,000 = $16,000. Hence 
the employer's share of the $40,000 annual retirement benefit is $40,000 
minus $16,000 or $24,000--too low to fall within the exemption.

    (ii) Defined benefit plans--(A) Separate accounts maintained. If a 
separate account is maintained with respect to an employee's 
contributions and all income, expenses, gains and losses attributable 
thereto, the balance in such an account represents the amount 
attributable to employee contributions.
    (B) Separate accounts not maintained. If a separate account is not 
maintained with respect to an employee's contributions and the income, 
expenses, gains and losses attributable thereto, all of the 
contributions made by an employee must be converted actuarially to a 
single life annuity (without ancillary benefits) commencing at the age 
of forced retirement. An employee's accumulated contributions are the 
sum of all contributions (mandatory and, if not separately accounted 
for, voluntary) made by the employee, together with interest on the sum 
of all such contributions compounded annually at the rate of 5 percent 
per annum from the time each such contribution was made until the date 
of retirement. Provided, however, That prior to the date any plan became 
subject to section 411(c) of the Internal Revenue Code, interest will be 
credited at the rate (if any) specified in the plan. The amount of the 
employee's accumulated contribution described in the previous sentence 
must be multiplied by an ``appropriate conversion factor'' in order to 
convert it to a single life annuity (without ancillary benefits) 
commencing at the age of actual retirement. The appropriate conversion 
factor depends upon the age of retirement. In accordance with Rev. Rul. 
76-47, 1976-2 C.B. 109, the following conversion factors shall be used 
with respect to the specified retirement ages:

------------------------------------------------------------------------
                                                              Conversion
                       Retirement age                           factor
                                                                percent
------------------------------------------------------------------------
65 through 66...............................................          10
67 through 68...............................................          11
69..........................................................          12
------------------------------------------------------------------------

    Example: An employee is scheduled to receive a pension from a 
defined benefit plan of $50,000 per year. Over the years he has 
contributed $150,000 to the plan, and at age 65 this amount, when 
contributions have been compounded at appropriate annual interest rates, 
is equal to $240,000. In accordance with Rev. Rul. 76-47, 10 percent is 
an appropriate conversion factor. When the $240,000 is multiplied by 
this conversion factor, the product is $24,000, which represents that 
part of the $50,000 annual pension payment which is attributable to 
employee contributions. The difference--$26,000--represents the 
employer's contribution, which is too low to meet the test in the 
exemption.

    (3) Contributions of prior employers. Amounts attributable to 
contributions of prior employers must be excluded.
    (i) Current employer distinguished from prior employers. Under the 
section 12(c) exemption, for purposes of excluding contributions of 
prior employers, a prior employer is every previous employer of the 
employee except those previous employers which are members of a 
``controlled group of corporations'' with, or ``under common control'' 
with, the employer which forces the employee to retire, as those terms 
are used in sections 414 (b) and 414(c) of the Internal Revenue Code, as 
modified by section 414(h) (26 U.S.C. 414(b), (c) and (h)).
    (ii) Benefits attributable to current employer and to prior 
employers. Where the current employer maintains or contributes to a plan 
which is separate from plans maintained or contributed to by prior 
employers, the amount of the employee's benefit attributable to those 
prior employers can be readily determined. However, where the current 
employer maintains or contributes to the same plan as prior employers, 
the following rule shall apply. The benefit attributable to the current 
employer shall be the total benefit received by the employee, reduced by 
the benefit that the employee would have received from the plan if he or 
she had never worked for the current employer. For purposes of this 
calculation, it shall be assumed that all benefits have always been 
vested, even if benefits accrued as

[[Page 381]]

a result of service with a prior employer had not in fact been vested.
    (4) Rollover contributions. Amounts attributable to rollover 
contributions must be excluded. For purposes of Sec.  1627.17(e), a 
rollover contribution (as defined in sections 402(a)(5), 403(a)(4), 
408(d)(3) and 409(b)(3)(C) of the Internal Revenue Code) shall be 
treated as an employee contribution. These amounts have already been 
excluded as a result of the computations set forth in Sec.  
1627.17(e)(2). Accordingly, no separate calculation is necessary to 
comply with this requirement.

(Sec. 12(c)(1) of the Age Discrimination In Employment Act of 1967, as 
amended by sec. 802(c)(1) of the Older Americans Act Amendments of 1984, 
Pub. L. 98-459, 98 Stat. 1792))

[44 FR 66797, Nov. 21, 1979, as amended at 50 FR 2544, Jan. 17, 1985; 53 
FR 5973, Feb. 29, 1988]



PART 1630_REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF 
THE AMERICANS WITH DISABILITIES ACT--Table of Contents



Sec.
1630.1 Purpose, applicability, and construction.
1630.2 Definitions.
1630.3 Exceptions to the definitions of ``Disability'' and ``Qualified 
          Individual with a Disability.''
1630.4 Discrimination prohibited.
1630.5 Limiting, segregating, and classifying.
1630.6 Contractual or other arrangements.
1630.7 Standards, criteria, or methods of administration.
1630.8 Relationship or association with an individual with a disability.
1630.9 Not making reasonable accommodation.
1630.10 Qualification standards, tests, and other selection criteria.
1630.11 Administration of tests.
1630.12 Retaliation and coercion.
1630.13 Prohibited medical examinations and inquiries.
1630.14 Medical examinations and inquiries specifically permitted.
1630.15 Defenses.
1630.16 Specific activities permitted.

Appendix to Part 1630--Interpretive Guidance on Title I of the Americans 
          with Disabilities Act

    Authority: 42 U.S.C. 12116 and 12205a of the Americans with 
Disabilities Act, as amended.

    Source: 56 FR 35734, July 26, 1991, unless otherwise noted.



Sec.  1630.1  Purpose, applicability, and construction.

    (a) Purpose. The purpose of this part is to implement title I of the 
Americans with Disabilities Act (ADA), as amended by the ADA Amendments 
Act of 2008 (ADAAA or Amendments Act), 42 U.S.C. 12101, et seq., 
requiring equal employment opportunities for individuals with 
disabilities. The ADA as amended, and these regulations, are intended to 
provide a clear and comprehensive national mandate for the elimination 
of discrimination against individuals with disabilities, and to provide 
clear, strong, consistent, enforceable standards addressing 
discrimination.
    (b) Applicability. This part applies to ``covered entities'' as 
defined at Sec.  1630.2(b).
    (c) Construction--(1) In general. Except as otherwise provided in 
this part, this part does not apply a lesser standard than the standards 
applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790-
794a, as amended), or the regulations issued by Federal agencies 
pursuant to that title.
    (2) Relationship to other laws. This part does not invalidate or 
limit the remedies, rights, and procedures of any Federal law or law of 
any State or political subdivision of any State or jurisdiction that 
provides greater or equal protection for the rights of individuals with 
disabilities than is afforded by this part.
    (3) State workers' compensation laws and disability benefit 
programs. Nothing in this part alters the standards for determining 
eligibility for benefits under State workers' compensation laws or under 
State and Federal disability benefit programs.
    (4) Broad coverage. The primary purpose of the ADAAA is to make it 
easier for people with disabilities to obtain protection under the ADA. 
Consistent with the Amendments Act's purpose of reinstating a broad 
scope of protection under the ADA, the definition of ``disability'' in 
this part shall be construed

[[Page 382]]

broadly in favor of expansive coverage to the maximum extent permitted 
by the terms of the ADA. The primary object of attention in cases 
brought under the ADA should be whether covered entities have complied 
with their obligations and whether discrimination has occurred, not 
whether the individual meets the definition of disability. The question 
of whether an individual meets the definition of disability under this 
part should not demand extensive analysis.

[76 FR 16999, Mar. 25, 2011]



Sec.  1630.2  Definitions.

    (a) Commission means the Equal Employment Opportunity Commission 
established by section 705 of the Civil Rights Act of 1964 (42 U.S.C. 
2000e-4).
    (b) Covered Entity means an employer, employment agency, labor 
organization, or joint labor management committee.
    (c) Person, labor organization, employment agency, commerce and 
industry affecting commerce shall have the same meaning given those 
terms in section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e).
    (d) State means each of the several States, the District of 
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the 
Virgin Islands, the Trust Territory of the Pacific Islands, and the 
Commonwealth of the Northern Mariana Islands.
    (e) Employer--(1) In general. The term employer means a person 
engaged in an industry affecting commerce who has 15 or more employees 
for each working day in each of 20 or more calendar weeks in the current 
or preceding calendar year, and any agent of such person, except that, 
from July 26, 1992 through July 25, 1994, an employer means a person 
engaged in an industry affecting commerce who has 25 or more employees 
for each working day in each of 20 or more calendar weeks in the current 
or preceding year and any agent of such person.
    (2) Exceptions. The term employer does not include--
    (i) The United States, a corporation wholly owned by the government 
of the United States, or an Indian tribe; or
    (ii) A bona fide private membership club (other than a labor 
organization) that is exempt from taxation under section 501(c) of the 
Internal Revenue Code of 1986.
    (f) Employee means an individual employed by an employer.
    (g) Definition of ``disability''--(1) In general. Disability means, 
with respect to an individual--
    (i) A physical or mental impairment that substantially limits one or 
more of the major life activities of such individual;
    (ii) A record of such an impairment; or
    (iii) Being regarded as having such an impairment as described in 
paragraph (l) of this section. This means that the individual has been 
subjected to an action prohibited by the ADA as amended because of an 
actual or perceived impairment that is not both ``transitory and 
minor.''
    (2) An individual may establish coverage under any one or more of 
these three prongs of the definition of disability, i.e., paragraphs 
(g)(1)(i) (the ``actual disability'' prong), (g)(1)(ii) (the ``record 
of'' prong), and/or (g)(1)(iii) (the ``regarded as'' prong) of this 
section.
    (3) Where an individual is not challenging a covered entity's 
failure to make reasonable accommodations and does not require a 
reasonable accommodation, it is generally unnecessary to proceed under 
the ``actual disability'' or ``record of'' prongs, which require a 
showing of an impairment that substantially limits a major life activity 
or a record of such an impairment. In these cases, the evaluation of 
coverage can be made solely under the ``regarded as'' prong of the 
definition of disability, which does not require a showing of an 
impairment that substantially limits a major life activity or a record 
of such an impairment. An individual may choose, however, to proceed 
under the ``actual disability'' and/or ``record of'' prong regardless of 
whether the individual is challenging a covered entity's failure to make 
reasonable accommodations or requires a reasonable accommodation.
    Note to paragraph (g): See Sec.  1630.3 for exceptions to this 
definition.
    (h) Physical or mental impairment means--

[[Page 383]]

    (1) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more body systems, such as 
neurological, musculoskeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, immune, circulatory, hemic, lymphatic, skin, and 
endocrine; or
    (2) Any mental or psychological disorder, such as an intellectual 
disability (formerly termed ``mental retardation''), organic brain 
syndrome, emotional or mental illness, and specific learning 
disabilities.
    (i) Major life activities--(1) In general. Major life activities 
include, but are not limited to:
    (i) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, communicating, interacting with others, and working; and
    (ii) The operation of a major bodily function, including functions 
of the immune system, special sense organs and skin; normal cell growth; 
and digestive, genitourinary, bowel, bladder, neurological, brain, 
respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, 
musculoskeletal, and reproductive functions. The operation of a major 
bodily function includes the operation of an individual organ within a 
body system.
    (2) In determining other examples of major life activities, the term 
``major'' shall not be interpreted strictly to create a demanding 
standard for disability. ADAAA section 2(b)(4) (Findings and Purposes). 
Whether an activity is a ``major life activity'' is not determined by 
reference to whether it is of ``central importance to daily life.''
    (j) Substantially limits--(1) Rules of construction. The following 
rules of construction apply when determining whether an impairment 
substantially limits an individual in a major life activity:
    (i) The term ``substantially limits'' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by the 
terms of the ADA. ``Substantially limits'' is not meant to be a 
demanding standard.
    (ii) An impairment is a disability within the meaning of this 
section if it substantially limits the ability of an individual to 
perform a major life activity as compared to most people in the general 
population. An impairment need not prevent, or significantly or severely 
restrict, the individual from performing a major life activity in order 
to be considered substantially limiting. Nonetheless, not every 
impairment will constitute a disability within the meaning of this 
section.
    (iii) The primary object of attention in cases brought under the ADA 
should be whether covered entities have complied with their obligations 
and whether discrimination has occurred, not whether an individual's 
impairment substantially limits a major life activity. Accordingly, the 
threshold issue of whether an impairment ``substantially limits'' a 
major life activity should not demand extensive analysis.
    (iv) The determination of whether an impairment substantially limits 
a major life activity requires an individualized assessment. However, in 
making this assessment, the term ``substantially limits'' shall be 
interpreted and applied to require a degree of functional limitation 
that is lower than the standard for ``substantially limits'' applied 
prior to the ADAAA.
    (v) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical analysis. Nothing in this paragraph is intended, 
however, to prohibit the presentation of scientific, medical, or 
statistical evidence to make such a comparison where appropriate.
    (vi) The determination of whether an impairment substantially limits 
a major life activity shall be made without regard to the ameliorative 
effects of mitigating measures. However, the ameliorative effects of 
ordinary eyeglasses or contact lenses shall be considered in determining 
whether an impairment substantially limits a major life activity.
    (vii) An impairment that is episodic or in remission is a disability 
if it

[[Page 384]]

would substantially limit a major life activity when active.
    (viii) An impairment that substantially limits one major life 
activity need not substantially limit other major life activities in 
order to be considered a substantially limiting impairment.
    (ix) The six-month ``transitory'' part of the ``transitory and 
minor'' exception to ``regarded as'' coverage in Sec.  1630.15(f) does 
not apply to the definition of ``disability'' under paragraphs (g)(1)(i) 
(the ``actual disability'' prong) or (g)(1)(ii) (the ``record of'' 
prong) of this section. The effects of an impairment lasting or expected 
to last fewer than six months can be substantially limiting within the 
meaning of this section.
    (2) Non-applicability to the ``regarded as'' prong. Whether an 
individual's impairment ``substantially limits'' a major life activity 
is not relevant to coverage under paragraph (g)(1)(iii) (the ``regarded 
as'' prong) of this section.
    (3) Predictable assessments--(i) The principles set forth in 
paragraphs (j)(1)(i) through (ix) of this section are intended to 
provide for more generous coverage and application of the ADA's 
prohibition on discrimination through a framework that is predictable, 
consistent, and workable for all individuals and entities with rights 
and responsibilities under the ADA as amended.
    (ii) Applying the principles set forth in paragraphs (j)(1)(i) 
through (ix) of this section, the individualized assessment of some 
types of impairments will, in virtually all cases, result in a 
determination of coverage under paragraphs (g)(1)(i) (the ``actual 
disability'' prong) or (g)(1)(ii) (the ``record of'' prong) of this 
section. Given their inherent nature, these types of impairments will, 
as a factual matter, virtually always be found to impose a substantial 
limitation on a major life activity. Therefore, with respect to these 
types of impairments, the necessary individualized assessment should be 
particularly simple and straightforward.
    (iii) For example, applying the principles set forth in paragraphs 
(j)(1)(i) through (ix) of this section, it should easily be concluded 
that the following types of impairments will, at a minimum, 
substantially limit the major life activities indicated: Deafness 
substantially limits hearing; blindness substantially limits seeing; an 
intellectual disability (formerly termed mental retardation) 
substantially limits brain function; partially or completely missing 
limbs or mobility impairments requiring the use of a wheelchair 
substantially limit musculoskeletal function; autism substantially 
limits brain function; cancer substantially limits normal cell growth; 
cerebral palsy substantially limits brain function; diabetes 
substantially limits endocrine function; epilepsy substantially limits 
neurological function; Human Immunodeficiency Virus (HIV) infection 
substantially limits immune function; multiple sclerosis substantially 
limits neurological function; muscular dystrophy substantially limits 
neurological function; and major depressive disorder, bipolar disorder, 
post-traumatic stress disorder, obsessive compulsive disorder, and 
schizophrenia substantially limit brain function. The types of 
impairments described in this section may substantially limit additional 
major life activities not explicitly listed above.
    (4) Condition, manner, or duration--
    (i) At all times taking into account the principles in paragraphs 
(j)(1)(i) through (ix) of this section, in determining whether an 
individual is substantially limited in a major life activity, it may be 
useful in appropriate cases to consider, as compared to most people in 
the general population, the condition under which the individual 
performs the major life activity; the manner in which the individual 
performs the major life activity; and/or the duration of time it takes 
the individual to perform the major life activity, or for which the 
individual can perform the major life activity.
    (ii) Consideration of facts such as condition, manner, or duration 
may include, among other things, consideration of the difficulty, 
effort, or time required to perform a major life activity; pain 
experienced when performing a major life activity; the length of time a 
major life activity can be performed; and/or the way an impairment 
affects the operation of a major bodily

[[Page 385]]

function. In addition, the non-ameliorative effects of mitigating 
measures, such as negative side effects of medication or burdens 
associated with following a particular treatment regimen, may be 
considered when determining whether an individual's impairment 
substantially limits a major life activity.
    (iii) In determining whether an individual has a disability under 
the ``actual disability'' or ``record of'' prongs of the definition of 
disability, the focus is on how a major life activity is substantially 
limited, and not on what outcomes an individual can achieve. For 
example, someone with a learning disability may achieve a high level of 
academic success, but may nevertheless be substantially limited in the 
major life activity of learning because of the additional time or effort 
he or she must spend to read, write, or learn compared to most people in 
the general population.
    (iv) Given the rules of construction set forth in paragraphs 
(j)(1)(i) through (ix) of this section, it may often be unnecessary to 
conduct an analysis involving most or all of these types of facts. This 
is particularly true with respect to impairments such as those described 
in paragraph (j)(3)(iii) of this section, which by their inherent nature 
should be easily found to impose a substantial limitation on a major 
life activity, and for which the individualized assessment should be 
particularly simple and straightforward.
    (5) Examples of mitigating measures--Mitigating measures include, 
but are not limited to:
    (i) Medication, medical supplies, equipment, or appliances, low-
vision devices (defined as devices that magnify, enhance, or otherwise 
augment a visual image, but not including ordinary eyeglasses or contact 
lenses), prosthetics including limbs and devices, hearing aid(s) and 
cochlear implant(s) or other implantable hearing devices, mobility 
devices, and oxygen therapy equipment and supplies;
    (ii) Use of assistive technology;
    (iii) Reasonable accommodations or ``auxiliary aids or services'' 
(as defined by 42 U.S.C. 12103(1));
    (iv) Learned behavioral or adaptive neurological modifications; or
    (v) Psychotherapy, behavioral therapy, or physical therapy.
    (6) Ordinary eyeglasses or contact lenses--defined. Ordinary 
eyeglasses or contact lenses are lenses that are intended to fully 
correct visual acuity or to eliminate refractive error.
    (k) Has a record of such an impairment--(1) In general. An 
individual has a record of a disability if the individual has a history 
of, or has been misclassified as having, a mental or physical impairment 
that substantially limits one or more major life activities.
    (2) Broad construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity shall be 
construed broadly to the maximum extent permitted by the ADA and should 
not demand extensive analysis. An individual will be considered to have 
a record of a disability if the individual has a history of an 
impairment that substantially limited one or more major life activities 
when compared to most people in the general population, or was 
misclassified as having had such an impairment. In determining whether 
an impairment substantially limited a major life activity, the 
principles articulated in paragraph (j) of this section apply.
    (3) Reasonable accommodation. An individual with a record of a 
substantially limiting impairment may be entitled, absent undue 
hardship, to a reasonable accommodation if needed and related to the 
past disability. For example, an employee with an impairment that 
previously limited, but no longer substantially limits, a major life 
activity may need leave or a schedule change to permit him or her to 
attend follow-up or ``monitoring'' appointments with a health care 
provider.
    (l) ``Is regarded as having such an impairment.'' The following 
principles apply under the ``regarded as'' prong of the definition of 
disability (paragraph (g)(1)(iii) of this section) above:
    (1) Except as provided in Sec.  1630.15(f), an individual is 
``regarded as having such an impairment'' if the individual is subjected 
to a prohibited action because of an actual or perceived physical or 
mental impairment, whether or

[[Page 386]]

not that impairment substantially limits, or is perceived to 
substantially limit, a major life activity. Prohibited actions include 
but are not limited to refusal to hire, demotion, placement on 
involuntary leave, termination, exclusion for failure to meet a 
qualification standard, harassment, or denial of any other term, 
condition, or privilege of employment
    (2) Except as provided in Sec.  1630.15(f), an individual is 
``regarded as having such an impairment'' any time a covered entity 
takes a prohibited action against the individual because of an actual or 
perceived impairment, even if the entity asserts, or may or does 
ultimately establish, a defense to such action.
    (3) Establishing that an individual is ``regarded as having such an 
impairment'' does not, by itself, establish liability. Liability is 
established under title I of the ADA only when an individual proves that 
a covered entity discriminated on the basis of disability within the 
meaning of section 102 of the ADA, 42 U.S.C. 12112.
    (m) The term ``qualified,'' with respect to an individual with a 
disability, means that the individual satisfies the requisite skill, 
experience, education and other job-related requirements of the 
employment position such individual holds or desires and, with or 
without reasonable accommodation, can perform the essential functions of 
such position. See Sec.  1630.3 for exceptions to this definition.
    (n) Essential functions--(1) In general. The term essential 
functions means the fundamental job duties of the employment position 
the individual with a disability holds or desires. The term ``essential 
functions'' does not include the marginal functions of the position.
    (2) A job function may be considered essential for any of several 
reasons, including but not limited to the following:
    (i) The function may be essential because the reason the position 
exists is to perform that function;
    (ii) The function may be essential because of the limited number of 
employees available among whom the performance of that job function can 
be distributed; and/or
    (iii) The function may be highly specialized so that the incumbent 
in the position is hired for his or her expertise or ability to perform 
the particular function.
    (3) Evidence of whether a particular function is essential includes, 
but is not limited to:
    (i) The employer's judgment as to which functions are essential;
    (ii) Written job descriptions prepared before advertising or 
interviewing applicants for the job;
    (iii) The amount of time spent on the job performing the function;
    (iv) The consequences of not requiring the incumbent to perform the 
function;
    (v) The terms of a collective bargaining agreement;
    (vi) The work experience of past incumbents in the job; and/or
    (vii) The current work experience of incumbents in similar jobs.
    (o) Reasonable accommodation. (1) The term reasonable accommodation 
means:
    (i) Modifications or adjustments to a job application process that 
enable a qualified applicant with a disability to be considered for the 
position such qualified applicant desires; or
    (ii) Modifications or adjustments to the work environment, or to the 
manner or circumstances under which the position held or desired is 
customarily performed, that enable an individual with a disability who 
is qualified to perform the essential functions of that position; or
    (iii) Modifications or adjustments that enable a covered entity's 
employee with a disability to enjoy equal benefits and privileges of 
employment as are enjoyed by its other similarly situated employees 
without disabilities.
    (2) Reasonable accommodation may include but is not limited to:
    (i) Making existing facilities used by employees readily accessible 
to and usable by individuals with disabilities; and
    (ii) Job restructuring; part-time or modified work schedules; 
reassignment to a vacant position; acquisition or modifications of 
equipment or devices;

[[Page 387]]

appropriate adjustment or modifications of examinations, training 
materials, or policies; the provision of qualified readers or 
interpreters; and other similar accommodations for individuals with 
disabilities.
    (3) To determine the appropriate reasonable accommodation it may be 
necessary for the covered entity to initiate an informal, interactive 
process with the individual with a disability in need of the 
accommodation. This process should identify the precise limitations 
resulting from the disability and potential reasonable accommodations 
that could overcome those limitations.
    (4) A covered entity is required, absent undue hardship, to provide 
a reasonable accommodation to an otherwise qualified individual who 
meets the definition of disability under the ``actual disability'' prong 
(paragraph (g)(1)(i) of this section), or ``record of'' prong (paragraph 
(g)(1)(ii) of this section), but is not required to provide a reasonable 
accommodation to an individual who meets the definition of disability 
solely under the ``regarded as'' prong (paragraph (g)(1)(iii) of this 
section).
    (p) Undue hardship--(1) In general. Undue hardship means, with 
respect to the provision of an accommodation, significant difficulty or 
expense incurred by a covered entity, when considered in light of the 
factors set forth in paragraph (p)(2) of this section.
    (2) Factors to be considered. In determining whether an 
accommodation would impose an undue hardship on a covered entity, 
factors to be considered include:
    (i) The nature and net cost of the accommodation needed under this 
part, taking into consideration the availability of tax credits and 
deductions, and/or outside funding;
    (ii) The overall financial resources of the facility or facilities 
involved in the provision of the reasonable accommodation, the number of 
persons employed at such facility, and the effect on expenses and 
resources;
    (iii) The overall financial resources of the covered entity, the 
overall size of the business of the covered entity with respect to the 
number of its employees, and the number, type and location of its 
facilities;
    (iv) The type of operation or operations of the covered entity, 
including the composition, structure and functions of the workforce of 
such entity, and the geographic separateness and administrative or 
fiscal relationship of the facility or facilities in question to the 
covered entity; and
    (v) The impact of the accommodation upon the operation of the 
facility, including the impact on the ability of other employees to 
perform their duties and the impact on the facility's ability to conduct 
business.
    (q) Qualification standards means the personal and professional 
attributes including the skill, experience, education, physical, 
medical, safety and other requirements established by a covered entity 
as requirements which an individual must meet in order to be eligible 
for the position held or desired.
    (r) Direct Threat means a significant risk of substantial harm to 
the health or safety of the individual or others that cannot be 
eliminated or reduced by reasonable accommodation. The determination 
that an individual poses a ``direct threat'' shall be based on an 
individualized assessment of the individual's present ability to safely 
perform the essential functions of the job. This assessment shall be 
based on a reasonable medical judgment that relies on the most current 
medical knowledge and/or on the best available objective evidence. In 
determining whether an individual would pose a direct threat, the 
factors to be considered include:
    (1) The duration of the risk;
    (2) The nature and severity of the potential harm;
    (3) The likelihood that the potential harm will occur; and
    (4) The imminence of the potential harm.

[56 FR 35734, July 26, 1991, as amended at 76 FR 16999, Mar. 25, 2011]



Sec.  1630.3  Exceptions to the definitions of ``Disability'' and 
``Qualified Individual with a Disability.''

    (a) The terms disability and qualified individual with a disability 
do not include individuals currently engaging in the illegal use of 
drugs, when the covered entity acts on the basis of such use.

[[Page 388]]

    (1) Drug means a controlled substance, as defined in schedules I 
through V of section 202 of the Controlled Substances Act (21 U.S.C 812)
    (2) Illegal use of drugs means the use of drugs the possession or 
distribution of which is unlawful under the Controlled Substances Act, 
as periodically updated by the Food and Drug Administration. This term 
does not include the use of a drug taken under the supervision of a 
licensed health care professional, or other uses authorized by the 
Controlled Substances Act or other provisions of Federal law.
    (b) However, the terms disability and qualified individual with a 
disability may not exclude an individual who:
    (1) Has successfully completed a supervised drug rehabilitation 
program and is no longer engaging in the illegal use of drugs, or has 
otherwise been rehabilitated successfully and is no longer engaging in 
the illegal use of drugs; or
    (2) Is participating in a supervised rehabilitation program and is 
no longer engaging in such use; or
    (3) Is erroneously regarded as engaging in such use, but is not 
engaging in such use.
    (c) It shall not be a violation of this part for a covered entity to 
adopt or administer reasonable policies or procedures, including but not 
limited to drug testing, designed to ensure that an individual described 
in paragraph (b) (1) or (2) of this section is no longer engaging in the 
illegal use of drugs. (See Sec.  1630.16(c) Drug testing).
    (d) Disability does not include:
    (1) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (2) Compulsive gambling, kleptomania, or pyromania; or
    (3) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    (e) Homosexuality and bisexuality are not impairments and so are not 
disabilities as defined in this part.



Sec.  1630.4  Discrimination prohibited.

    (a) In general--(1) It is unlawful for a covered entity to 
discriminate on the basis of disability against a qualified individual 
in regard to:
    (i) Recruitment, advertising, and job application procedures;
    (ii) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (iii) Rates of pay or any other form of compensation and changes in 
compensation;
    (iv) Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and seniority 
lists;
    (v) Leaves of absence, sick leave, or any other leave;
    (vi) Fringe benefits available by virtue of employment, whether or 
not administered by the covered entity;
    (vii) Selection and financial support for training, including: 
apprenticeships, professional meetings, conferences and other related 
activities, and selection for leaves of absence to pursue training;
    (viii) Activities sponsored by a covered entity, including social 
and recreational programs; and
    (ix) Any other term, condition, or privilege of employment.
    (2) The term discrimination includes, but is not limited to, the 
acts described in Sec. Sec.  1630.4 through 1630.13 of this part.
    (b) Claims of no disability. Nothing in this part shall provide the 
basis for a claim that an individual without a disability was subject to 
discrimination because of his lack of disability, including a claim that 
an individual with a disability was granted an accommodation that was 
denied to an individual without a disability.

[76 FR 17002, Mar. 25, 2011]



Sec.  1630.5  Limiting, segregating, and classifying.

    It is unlawful for a covered entity to limit, segregate, or classify 
a job applicant or employee in a way that adversely affects his or her 
employment opportunities or status on the basis of disability.

[[Page 389]]



Sec.  1630.6  Contractual or other arrangements.

    (a) In general. It is unlawful for a covered entity to participate 
in a contractual or other arrangement or relationship that has the 
effect of subjecting the covered entity's own qualified applicant or 
employee with a disability to the discrimination prohibited by this 
part.
    (b) Contractual or other arrangement defined. The phrase contractual 
or other arrangement or relationship includes, but is not limited to, a 
relationship with an employment or referral agency; labor union, 
including collective bargaining agreements; an organization providing 
fringe benefits to an employee of the covered entity; or an organization 
providing training and apprenticeship programs.
    (c) Application. This section applies to a covered entity, with 
respect to its own applicants or employees, whether the entity offered 
the contract or initiated the relationship, or whether the entity 
accepted the contract or acceded to the relationship. A covered entity 
is not liable for the actions of the other party or parties to the 
contract which only affect that other party's employees or applicants.



Sec.  1630.7  Standards, criteria, or methods of administration.

    It is unlawful for a covered entity to use standards, criteria, or 
methods of administration, which are not job-related and consistent with 
business necessity, and:
    (a) That have the effect of discriminating on the basis of 
disability; or
    (b) That perpetuate the discrimination of others who are subject to 
common administrative control.



Sec.  1630.8  Relationship or association with an individual with a 
disability.

    It is unlawful for a covered entity to exclude or deny equal jobs or 
benefits to, or otherwise discriminate against, a qualified individual 
because of the known disability of an individual with whom the qualified 
individual is known to have a family, business, social or other 
relationship or association.



Sec.  1630.9  Not making reasonable accommodation.

    (a) It is unlawful for a covered entity not to make reasonable 
accommodation to the known physical or mental limitations of an 
otherwise qualified applicant or employee with a disability, unless such 
covered entity can demonstrate that the accommodation would impose an 
undue hardship on the operation of its business.
    (b) It is unlawful for a covered entity to deny employment 
opportunities to an otherwise qualified job applicant or employee with a 
disability based on the need of such covered entity to make reasonable 
accommodation to such individual's physical or mental impairments.
    (c) A covered entity shall not be excused from the requirements of 
this part because of any failure to receive technical assistance 
authorized by section 507 of the ADA, including any failure in the 
development or dissemination of any technical assistance manual 
authorized by that Act.
    (d) An individual with a disability is not required to accept an 
accommodation, aid, service, opportunity or benefit which such qualified 
individual chooses not to accept. However, if such individual rejects a 
reasonable accommodation, aid, service, opportunity or benefit that is 
necessary to enable the individual to perform the essential functions of 
the position held or desired, and cannot, as a result of that rejection, 
perform the essential functions of the position, the individual will not 
be considered qualified.
    (e) A covered entity is required, absent undue hardship, to provide 
a reasonable accommodation to an otherwise qualified individual who 
meets the definition of disability under the ``actual disability'' prong 
(Sec.  1630.2(g)(1)(i)), or ``record of'' prong (Sec.  
1630.2(g)(1)(ii)), but is not required to provide a reasonable 
accommodation to an individual who meets the definition of disability 
solely under the ``regarded as'' prong (Sec.  1630.2(g)(1)(iii)).

[56 FR 35734, July 26, 1991, as amended at 76 FR 17002, Mar. 25, 2011]

[[Page 390]]



Sec.  1630.10  Qualification standards, tests, and other selection
criteria.

    (a) In general. It is unlawful for a covered entity to use 
qualification standards, employment tests or other selection criteria 
that screen out or tend to screen out an individual with a disability or 
a class of individuals with disabilities, on the basis of disability, 
unless the standard, test, or other selection criteria, as used by the 
covered entity, is shown to be job related for the position in question 
and is consistent with business necessity.
    (b) Qualification standards and tests related to uncorrected vision. 
Notwithstanding Sec.  1630.2(j)(1)(vi) of this part, a covered entity 
shall not use qualification standards, employment tests, or other 
selection criteria based on an individual's uncorrected vision unless 
the standard, test, or other selection criterion, as used by the covered 
entity, is shown to be job related for the position in question and is 
consistent with business necessity. An individual challenging a covered 
entity's application of a qualification standard, test, or other 
criterion based on uncorrected vision need not be a person with a 
disability, but must be adversely affected by the application of the 
standard, test, or other criterion.

[76 FR 17002, Mar. 25, 2011]



Sec.  1630.11  Administration of tests.

    It is unlawful for a covered entity to fail to select and administer 
tests concerning employment in the most effective manner to ensure that, 
when a test is administered to a job applicant or employee who has a 
disability that impairs sensory, manual or speaking skills, the test 
results accurately reflect the skills, aptitude, or whatever other 
factor of the applicant or employee that the test purports to measure, 
rather than reflecting the impaired sensory, manual, or speaking skills 
of such employee or applicant (except where such skills are the factors 
that the test purports to measure).



Sec.  1630.12  Retaliation and coercion.

    (a) Retaliation. It is unlawful to discriminate against any 
individual because that individual has opposed any act or practice made 
unlawful by this part or because that individual made a charge, 
testified, assisted, or participated in any manner in an investigation, 
proceeding, or hearing to enforce any provision contained in this part.
    (b) Coercion, interference or intimidation. It is unlawful to 
coerce, intimidate, threaten, harass or interfere with any individual in 
the exercise or enjoyment of, or because that individual aided or 
encouraged any other individual in the exercise of, any right granted or 
protected by this part.



Sec.  1630.13  Prohibited medical examinations and inquiries.

    (a) Pre-employment examination or inquiry. Except as permitted by 
Sec.  1630.14, it is unlawful for a covered entity to conduct a medical 
examination of an applicant or to make inquiries as to whether an 
applicant is an individual with a disability or as to the nature or 
severity of such disability.
    (b) Examination or inquiry of employees. Except as permitted by 
Sec.  1630.14, it is unlawful for a covered entity to require a medical 
examination of an employee or to make inquiries as to whether an 
employee is an individual with a disability or as to the nature or 
severity of such disability.



Sec.  1630.14  Medical examinations and inquiries specifically permitted.

    (a) Acceptable pre-employment inquiry. A covered entity may make 
pre-employment inquiries into the ability of an applicant to perform 
job-related functions, and/or may ask an applicant to describe or to 
demonstrate how, with or without reasonable accommodation, the applicant 
will be able to perform job-related functions.
    (b) Employment entrance examination. A covered entity may require a 
medical examination (and/or inquiry) after making an offer of employment 
to a job applicant and before the applicant begins his or her employment 
duties, and may condition an offer of employment on the results of such 
examination (and/or inquiry), if all entering employees in the same job 
category are subjected to such an examination (and/or inquiry) 
regardless of disability.
    (1) Information obtained under paragraph (b) of this section 
regarding the

[[Page 391]]

medical condition or history of the applicant shall be collected and 
maintained on separate forms and in separate medical files and be 
treated as a confidential medical record, except that:
    (i) Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of the employee and necessary 
accommodations;
    (ii) First aid and safety personnel may be informed, when 
appropriate, if the disability might require emergency treatment; and
    (iii) Government officials investigating compliance with this part 
shall be provided relevant information on request.
    (2) The results of such examination shall not be used for any 
purpose inconsistent with this part.
    (3) Medical examinations conducted in accordance with this section 
do not have to be job-related and consistent with business necessity. 
However, if certain criteria are used to screen out an employee or 
employees with disabilities as a result of such an examination or 
inquiry, the exclusionary criteria must be job-related and consistent 
with business necessity, and performance of the essential job functions 
cannot be accomplished with reasonable accommodation as required in this 
part. (See Sec.  1630.15(b) Defenses to charges of discriminatory 
application of selection criteria.)
    (c) Examination of employees. A covered entity may require a medical 
examination (and/or inquiry) of an employee that is job-related and 
consistent with business necessity. A covered entity may make inquiries 
into the ability of an employee to perform job-related functions.
    (1) Information obtained under paragraph (c) of this section 
regarding the medical condition or history of any employee shall be 
collected and maintained on separate forms and in separate medical files 
and be treated as a confidential medical record, except that:
    (i) Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of the employee and necessary 
accommodations;
    (ii) First aid and safety personnel may be informed, when 
appropriate, if the disability might require emergency treatment; and
    (iii) Government officials investigating compliance with this part 
shall be provided relevant information on request.
    (2) Information obtained under paragraph (c) of this section 
regarding the medical condition or history of any employee shall not be 
used for any purpose inconsistent with this part.
    (d) Other acceptable examinations and inquiries. A covered entity 
may conduct voluntary medical examinations and activities, including 
voluntary medical histories, which are part of an employee health 
program available to employees at the work site.
    (1) Employee health program. An employee health program, including 
any disability-related inquiries or medical examinations that are part 
of such program, must be reasonably designed to promote health or 
prevent disease. A program satisfies this standard if it has a 
reasonable chance of improving the health of, or preventing disease in, 
participating employees, and it is not overly burdensome, is not a 
subterfuge for violating the ADA or other laws prohibiting employment 
discrimination, and is not highly suspect in the method chosen to 
promote health or prevent disease. A program consisting of a 
measurement, test, screening, or collection of health-related 
information without providing results, follow-up information, or advice 
designed to improve the health of participating employees is not 
reasonably designed to promote health or prevent disease, unless the 
collected information actually is used to design a program that 
addresses at least a subset of the conditions identified. A program also 
is not reasonably designed if it exists mainly to shift costs from the 
covered entity to targeted employees based on their health or simply to 
give an employer information to estimate future health care costs. 
Whether an employee health program is reasonably designed to promote 
health or prevent disease is evaluated in light of all the relevant 
facts and circumstances.

[[Page 392]]

    (2) Voluntary. An employee health program that includes disability-
related inquiries or medical examinations (including disability-related 
inquiries or medical examinations that are part of a health risk 
assessment) is voluntary as long as a covered entity:
    (i) Does not require employees to participate;
    (ii) Does not deny coverage under any of its group health plans or 
particular benefits packages within a group health plan for non-
participation, or limit the extent of benefits (except as allowed under 
paragraph (d)(3) of this section) for employees who do not participate;
    (iii) Does not take any adverse employment action or retaliate 
against, interfere with, coerce, intimidate, or threaten employees 
within the meaning of Section 503 of the ADA, codified at 42 U.S.C. 
12203; and
    (iv) Provides employees with a notice that:
    (A) Is written so that the employee from whom medical information is 
being obtained is reasonably likely to understand it;
    (B) Describes the type of medical information that will be obtained 
and the specific purposes for which the medical information will be 
used; and
    (C) Describes the restrictions on the disclosure of the employee's 
medical information, the employer representatives or other parties with 
whom the information will be shared, and the methods that the covered 
entity will use to ensure that medical information is not improperly 
disclosed (including whether it complies with the measures set forth in 
the HIPAA regulations codified at 45 CFR parts 160 and 164).
    (3) [Reserved]
    (4)(i) Confidentiality. Information obtained under paragraph (d) of 
this section regarding the medical condition or history of any employee 
shall be collected and maintained on separate forms and in separate 
medical files and be treated as a confidential medical record, except 
that:
    (A) Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of the employee and necessary 
accommodations;
    (B) First aid and safety personnel may be informed, when 
appropriate, if the disability might require emergency treatment; and
    (C) Government officials investigating compliance with this part 
shall be provided relevant information on request.
    (ii) Information obtained under paragraph (d) of this section 
regarding the medical condition or history of any employee shall not be 
used for any purpose inconsistent with this part.
    (iii) Except as permitted under paragraph (d)(4)(i) of this section 
and as is necessary to administer the health plan, information obtained 
under this paragraph (d) regarding the medical information or history of 
any individual may only be provided to an ADA covered entity in 
aggregate terms that do not disclose, or are not reasonably likely to 
disclose, the identity of any employee.
    (iv) A covered entity shall not require an employee to agree to the 
sale, exchange, sharing, transfer, or other disclosure of medical 
information (except to the extent permitted by this part to carry out 
specific activities related to the wellness program), or to waive any 
confidentiality protections in this part as a condition for 
participating in a wellness program or for earning any incentive the 
covered entity offers in connection with such a program.
    (5) Compliance with the requirements of this paragraph (d), 
including the limit on incentives under the ADA, does not relieve a 
covered entity from the obligation to comply in all respects with the 
nondiscrimination provisions of Title VII of the Civil Rights Act of 
1964, 42 U.S.C. 2000e et seq., the Equal Pay Act of 1963, 29 U.S.C. 
206(d), the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 
et seq., Title II of the Genetic Information Nondiscrimination Act of 
2008, 42 U.S.C. 2000ff, et seq., or other sections of Title I of the 
ADA.
    (6) The ``safe harbor'' provisions in Sec.  1630.16(f) of this part 
applicable to health insurance, life insurance, and other benefit plans 
do not apply to wellness programs, even if such plans

[[Page 393]]

are part of a covered entity's health plan.

[56 FR 35734, July 26, 1991, as amended at 81 FR 31139, May 17, 2016; 83 
FR 65296, Dec. 20, 2018]



Sec.  1630.15  Defenses.

    Defenses to an allegation of discrimination under this part may 
include, but are not limited to, the following:
    (a) Disparate treatment charges. It may be a defense to a charge of 
disparate treatment brought under Sec. Sec.  1630.4 through 1630.8 and 
1630.11 through 1630.12 that the challenged action is justified by a 
legitimate, nondiscriminatory reason.
    (b) Charges of discriminatory application of selection criteria--(1) 
In general. It may be a defense to a charge of discrimination, as 
described in Sec.  1630.10, that an alleged application of qualification 
standards, tests, or selection criteria that screens out or tends to 
screen out or otherwise denies a job or benefit to an individual with a 
disability has been shown to be job-related and consistent with business 
necessity, and such performance cannot be accomplished with reasonable 
accommodation, as required in this part.
    (2) Direct threat as a qualification standard. The term 
``qualification standard'' may include a requirement that an individual 
shall not pose a direct threat to the health or safety of the individual 
or others in the workplace. (See Sec.  1630.2(r) defining direct 
threat.)
    (c) Other disparate impact charges. It may be a defense to a charge 
of discrimination brought under this part that a uniformly applied 
standard, criterion, or policy has a disparate impact on an individual 
with a disability or a class of individuals with disabilities that the 
challenged standard, criterion or policy has been shown to be job-
related and consistent with business necessity, and such performance 
cannot be accomplished with reasonable accommodation, as required in 
this part.
    (d) Charges of not making reasonable accommodation. It may be a 
defense to a charge of discrimination, as described in Sec.  1630.9, 
that a requested or necessary accommodation would impose an undue 
hardship on the operation of the covered entity's business.
    (e) Conflict with other Federal laws. It may be a defense to a 
charge of discrimination under this part that a challenged action is 
required or necessitated by another Federal law or regulation, or that 
another Federal law or regulation prohibits an action (including the 
provision of a particular reasonable accommodation) that would otherwise 
be required by this part.
    (f) Claims based on transitory and minor impairments under the 
``regarded as'' prong. It may be a defense to a charge of discrimination 
by an individual claiming coverage under the ``regarded as'' prong of 
the definition of disability that the impairment is (in the case of an 
actual impairment) or would be (in the case of a perceived impairment) 
``transitory and minor.'' To establish this defense, a covered entity 
must demonstrate that the impairment is both ``transitory'' and 
``minor.'' Whether the impairment at issue is or would be ``transitory 
and minor'' is to be determined objectively. A covered entity may not 
defeat ``regarded as'' coverage of an individual simply by demonstrating 
that it subjectively believed the impairment was transitory and minor; 
rather, the covered entity must demonstrate that the impairment is (in 
the case of an actual impairment) or would be (in the case of a 
perceived impairment) both transitory and minor. For purposes of this 
section, ``transitory'' is defined as lasting or expected to last six 
months or less.
    (g) Additional defenses. It may be a defense to a charge of 
discrimination under this part that the alleged discriminatory action is 
specifically permitted by Sec.  1630.14 or Sec.  1630.16.

[56 FR 35734, July 26, 1991, as amended at 76 FR 17003, Mar. 25, 2011]



Sec.  1630.16  Specific activities permitted.

    (a) Religious entities. A religious corporation, association, 
educational institution, or society is permitted to give preference in 
employment to individuals of a particular religion to perform work 
connected with the carrying on by that corporation, association, 
educational institution, or society of its activities. A religious 
entity may require that all applicants and employees conform to the 
religious tenets of such organization. However, a religious

[[Page 394]]

entity may not discriminate against a qualified individual, who 
satisfies the permitted religious criteria, on the basis of his or her 
disability.
    (b) Regulation of alcohol and drugs. A covered entity:
    (1) May prohibit the illegal use of drugs and the use of alcohol at 
the workplace by all employees;
    (2) May require that employees not be under the influence of alcohol 
or be engaging in the illegal use of drugs at the workplace;
    (3) May require that all employees behave in conformance with the 
requirements established under the Drug-Free Workplace Act of 1988 (41 
U.S.C. 701 et seq.);
    (4) May hold an employee who engages in the illegal use of drugs or 
who is an alcoholic to the same qualification standards for employment 
or job performance and behavior to which the entity holds its other 
employees, even if any unsatisfactory performance or behavior is related 
to the employee's drug use or alcoholism;
    (5) May require that its employees employed in an industry subject 
to such regulations comply with the standards established in the 
regulations (if any) of the Departments of Defense and Transportation, 
and of the Nuclear Regulatory Commission, regarding alcohol and the 
illegal use of drugs; and
    (6) May require that employees employed in sensitive positions 
comply with the regulations (if any) of the Departments of Defense and 
Transportation and of the Nuclear Regulatory Commission that apply to 
employment in sensitive positions subject to such regulations.
    (c) Drug testing--(1) General policy. For purposes of this part, a 
test to determine the illegal use of drugs is not considered a medical 
examination. Thus, the administration of such drug tests by a covered 
entity to its job applicants or employees is not a violation of Sec.  
1630.13 of this part. However, this part does not encourage, prohibit, 
or authorize a covered entity to conduct drug tests of job applicants or 
employees to determine the illegal use of drugs or to make employment 
decisions based on such test results.
    (2) Transportation employees. This part does not encourage, 
prohibit, or authorize the otherwise lawful exercise by entities subject 
to the jurisdiction of the Department of Transportation of authority to:
    (i) Test employees of entities in, and applicants for, positions 
involving safety sensitive duties for the illegal use of drugs or for 
on-duty impairment by alcohol; and
    (ii) Remove from safety-sensitive positions persons who test 
positive for illegal use of drugs or on-duty impairment by alcohol 
pursuant to paragraph (c)(2)(i) of this section.
    (3) Confidentiality. Any information regarding the medical condition 
or history of any employee or applicant obtained from a test to 
determine the illegal use of drugs, except information regarding the 
illegal use of drugs, is subject to the requirements of Sec.  1630.14(b) 
(2) and (3) of this part.
    (d) Regulation of smoking. A covered entity may prohibit or impose 
restrictions on smoking in places of employment. Such restrictions do 
not violate any provision of this part.
    (e) Infectious and communicable diseases; food handling jobs--(1) In 
general. Under title I of the ADA, section 103(d)(1), the Secretary of 
Health and Human Services is to prepare a list, to be updated annually, 
of infectious and communicable diseases which are transmitted through 
the handling of food. (Copies may be obtained from Center for Infectious 
Diseases, Centers for Disease Control, 1600 Clifton Road, NE., Mailstop 
C09, Atlanta, GA 30333.) If an individual with a disability is disabled 
by one of the infectious or communicable diseases included on this list, 
and if the risk of transmitting the disease associated with the handling 
of food cannot be eliminated by reasonable accommodation, a covered 
entity may refuse to assign or continue to assign such individual to a 
job involving food handling. However, if the individual with a 
disability is a current employee, the employer must consider whether he 
or she can be accommodated by reassignment to a vacant position not 
involving food handling.
    (2) Effect on State or other laws. This part does not preempt, 
modify, or amend any State, county, or local law,

[[Page 395]]

ordinance or regulation applicable to food handling which:
    (i) Is in accordance with the list, referred to in paragraph (e)(1) 
of this section, of infectious or communicable diseases and the modes of 
transmissibility published by the Secretary of Health and Human 
Services; and
    (ii) Is designed to protect the public health from individuals who 
pose a significant risk to the health or safety of others, where that 
risk cannot be eliminated by reasonable accommodation.
    (f) Health insurance, life insurance, and other benefit plans--(1) 
An insurer, hospital, or medical service company, health maintenance 
organization, or any agent or entity that administers benefit plans, or 
similar organizations may underwrite risks, classify risks, or 
administer such risks that are based on or not inconsistent with State 
law.
    (2) A covered entity may establish, sponsor, observe or administer 
the terms of a bona fide benefit plan that are based on underwriting 
risks, classifying risks, or administering such risks that are based on 
or not inconsistent with State law.
    (3) A covered entity may establish, sponsor, observe, or administer 
the terms of a bona fide benefit plan that is not subject to State laws 
that regulate insurance.
    (4) The activities described in paragraphs (f) (1), (2), and (3) of 
this section are permitted unless these activities are being used as a 
subterfuge to evade the purposes of this part.

[56 FR 35734, July 26, 1991, 76 FR 17003, Mar. 25, 2011]



  Sec. Appendix to Part 1630--Interpretive Guidance on Title I of the 
                     Americans With Disabilities Act

                              Introduction

    The Americans with Disabilities Act (ADA) is a landmark piece of 
civil rights legislation signed into law on July 26, 1990, and amended 
effective January 1, 2009. See 42 U.S.C. 12101 et seq., as amended. In 
passing the ADA, Congress recognized that ``discrimination against 
individuals with disabilities continues to be a serious and pervasive 
social problem'' and that the ``continuing existence of unfair and 
unnecessary discrimination and prejudice denies people with disabilities 
the opportunity to compete on an equal basis and to pursue those 
opportunities for which our free society is justifiably famous, and 
costs the United States billions of dollars in unnecessary expenses 
resulting from dependency and nonproductivity.'' 42 U.S.C. 12101(a)(2), 
(8). Discrimination on the basis of disability persists in critical 
areas such as housing, public accommodations, education, transportation, 
communication, recreation, institutionalization, health services, 
voting, access to public services, and employment. 42 U.S.C. 
12101(a)(3). Accordingly, the ADA prohibits discrimination in a wide 
range of areas, including employment, public services, and public 
accommodations.
    Title I of the ADA prohibits disability-based discrimination in 
employment. The Equal Employment Opportunity Commission (the Commission 
or the EEOC) is responsible for enforcement of title I (and parts of 
title V) of the ADA. Pursuant to the ADA as amended, the EEOC is 
expressly granted the authority and is expected to amend these 
regulations. 42 U.S.C. 12205a. Under title I of the ADA, covered 
entities may not discriminate against qualified individuals on the basis 
of disability in regard to job application procedures, the hiring, 
advancement or discharge of employees, employee compensation, job 
training, or other terms, conditions, and privileges of employment. 42 
U.S.C. 12112(a). For these purposes, ``discriminate'' includes (1) 
limiting, segregating, or classifying a job applicant or employee in a 
way that adversely affects the opportunities or status of the applicant 
or employee; (2) participating in a contractual or other arrangement or 
relationship that has the effect of subjecting a covered entity's 
qualified applicants or employees to discrimination; (3) utilizing 
standards, criteria, or other methods of administration that have the 
effect of discrimination on the basis of disability; (4) not making 
reasonable accommodation to the known physical or mental limitations of 
an otherwise qualified individual with a disability, unless the covered 
entity can demonstrate that the accommodation would impose an undue 
hardship on the operation of the business of the covered entity; (5) 
denying employment opportunities to a job applicant or employee who is 
otherwise qualified, if such denial is based on the need to make 
reasonable accommodation; (6) using qualification standards, employment 
tests or other selection criteria that screen out or tend to screen out 
an individual with a disability or a class of individuals with 
disabilities unless the standard, test or other selection criterion is 
shown to be job related for the position in question and is consistent 
with business necessity; and (7) subjecting applicants or employees to 
prohibited medical inquiries or examinations. See 42 U.S.C. 12112(b), 
(d).
    As with other civil rights laws, individuals seeking protection 
under these anti-discrimination provisions of the ADA generally

[[Page 396]]

must allege and prove that they are members of the ``protected class.'' 
\1\ Under the ADA, this typically means they have to show that they meet 
the statutory definition of ``disability.'' 2008 House Judiciary 
Committee Report at 5. However, ``Congress did not intend for the 
threshold question of disability to be used as a means of excluding 
individuals from coverage.'' Id.
---------------------------------------------------------------------------

    \1\ Claims of improper disability-related inquiries or medical 
examinations, improper disclosure of confidential medical information, 
or retaliation may be brought by any applicant or employee, not just 
individuals with disabilities. See, e.g., Cossette v. Minnesota Power & 
Light, 188 F.3d 964, 969-70 (8th Cir. 1999); Fredenburg v. Contra Costa 
County Dep't of Health Servs., 172 F.3d 1176, 1182 (9th Cir. 1999); 
Griffin v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir. 1998). Likewise, 
a nondisabled applicant or employee may challenge an employment action 
that is based on the disability of an individual with whom the applicant 
or employee is known to have a relationship or association. See 42 
U.S.C. 12112(b)(4).
---------------------------------------------------------------------------

    In the original ADA, Congress defined ``disability'' as (1) a 
physical or mental impairment that substantially limits one or more 
major life activities of an individual; (2) a record of such an 
impairment; or (3) being regarded as having such an impairment. 42 
U.S.C. 12202(2). Congress patterned these three parts of the definition 
of disability--the ``actual,'' ``record of,'' and ``regarded as'' 
prongs--after the definition of ``handicap'' found in the Rehabilitation 
Act of 1973. 2008 House Judiciary Committee Report at 6. By doing so, 
Congress intended that the relevant case law developed under the 
Rehabilitation Act would be generally applicable to the term 
``disability'' as used in the ADA. H.R. Rep. No. 485 part 3, 101st 
Cong., 2d Sess. 27 (1990) (1990 House Judiciary Report or House 
Judiciary Report); See also S. Rep. No. 116, 101st Cong., 1st Sess. 21 
(1989) (1989 Senate Report or Senate Report); H.R. Rep. No. 485 part 2, 
101st Cong., 2d Sess. 50 (1990) (1990 House Labor Report or House Labor 
Report). Congress expected that the definition of disability and related 
terms, such as ``substantially limits'' and ``major life activity,'' 
would be interpreted under the ADA ``consistently with how courts had 
applied the definition of a handicapped individual under the 
Rehabilitation Act''--i.e., expansively and in favor of broad coverage. 
ADA Amendments Act of 2008 (ADAAA or Amendments Act) at section 2(a)(1)-
(8) and (b)(1)-(6) (Findings and Purposes); See also Senate Statement of 
the Managers to Accompany S. 3406 (2008 Senate Statement of Managers) at 
3 (``When Congress passed the ADA in 1990, it adopted the functional 
definition of disability from section 504 of the Rehabilitation Act of 
1973, in part, because after 17 years of development through case law 
the requirements of the definition were well understood. Within this 
framework, with its generous and inclusive definition of disability, 
courts treated the determination of disability as a threshold issue but 
focused primarily on whether unlawful discrimination had occurred.''); 
2008 House Judiciary Committee Report at 6 & n.6 (noting that courts had 
interpreted this Rehabilitation Act definition ``broadly to include 
persons with a wide range of physical and mental impairments'').
    That expectation was not fulfilled. ADAAA section 2(a)(3). The 
holdings of several Supreme Court cases sharply narrowed the broad scope 
of protection Congress originally intended under the ADA, thus 
eliminating protection for many individuals whom Congress intended to 
protect. Id. For example, in Sutton v. United Air Lines, Inc., 527 U.S. 
471 (1999), the Court ruled that whether an impairment substantially 
limits a major life activity is to be determined with reference to the 
ameliorative effects of mitigating measures. In Sutton, the Court also 
adopted a restrictive reading of the meaning of being ``regarded as'' 
disabled under the ADA's definition of disability. Subsequently, in 
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), the Court 
held that the terms ``substantially'' and ``major'' in the definition of 
disability ``need to be interpreted strictly to create a demanding 
standard for qualifying as disabled'' under the ADA, and that to be 
substantially limited in performing a major life activity under the ADA, 
``an individual must have an impairment that prevents or severely 
restricts the individual from doing activities that are of central 
importance to most people's daily lives.''
    As a result of these Supreme Court decisions, lower courts ruled in 
numerous cases that individuals with a range of substantially limiting 
impairments were not individuals with disabilities, and thus not 
protected by the ADA. See 2008 Senate Statement of Managers at 3 
(``After the Court's decisions in Sutton that impairments must be 
considered in their mitigated state and in Toyota that there must be a 
demanding standard for qualifying as disabled, lower courts more often 
found that an individual's impairment did not constitute a disability. 
As a result, in too many cases, courts would never reach the question 
whether discrimination had occurred.''). Congress concluded that these 
rulings imposed a greater degree of limitation and expressed a higher 
standard than it had originally intended, and coupled with the EEOC's 
1991 ADA regulations which had defined the term ``substantially limits'' 
as ``significantly restricted,'' unduly precluded many individuals from 
being covered under the ADA. Id. (``[t]hus, some 18 years later we are 
faced with a situation in

[[Page 397]]

which physical or mental impairments that would previously have been 
found to constitute disabilities are not considered disabilities under 
the Supreme Court's narrower standard'' and ``[t]he resulting court 
decisions contribute to a legal environment in which individuals must 
demonstrate an inappropriately high degree of functional limitation in 
order to be protected from discrimination under the ADA'').
    Consequently, Congress amended the ADA with the Americans with 
Disabilities Act Amendments Act of 2008. The ADAAA was signed into law 
on September 25, 2008, and became effective on January 1, 2009. This 
legislation is the product of extensive bipartisan efforts, and the 
culmination of collaboration and coordination between legislators and 
stakeholders, including representatives of the disability, business, and 
education communities. See Statement of Representatives Hoyer and 
Sensenbrenner, 154 Cong. Rec. H8294-96 (daily ed. Sept. 17, 2008) 
(Hoyer-Sensenbrenner Congressional Record Statement); Senate Statement 
of Managers at 1. The express purposes of the ADAAA are, among other 
things:
    (1) To carry out the ADA's objectives of providing ``a clear and 
comprehensive national mandate for the elimination of discrimination'' 
and ``clear, strong, consistent, enforceable standards addressing 
discrimination'' by reinstating a broad scope of protection under the 
ADA;
    (2) To reject the requirement enunciated in Sutton and its companion 
cases that whether an impairment substantially limits a major life 
activity is to be determined with reference to the ameliorative effects 
of mitigating measures;
    (3) To reject the Supreme Court's reasoning in Sutton with regard to 
coverage under the third prong of the definition of disability and to 
reinstate the reasoning of the Supreme Court in School Board of Nassau 
County v. Arline, 480 U.S. 273 (1987), which set forth a broad view of 
the third prong of the definition of handicap under the Rehabilitation 
Act of 1973;
    (4) To reject the standards enunciated by the Supreme Court in 
Toyota that the terms ``substantially'' and ``major'' in the definition 
of disability under the ADA ``need to be interpreted strictly to create 
a demanding standard for qualifying as disabled,'' and that to be 
substantially limited in performing a major life activity under the ADA 
``an individual must have an impairment that prevents or severely 
restricts the individual from doing activities that are of central 
importance to most people's daily lives'';
    (5) To convey congressional intent that the standard created by the 
Supreme Court in Toyota for ``substantially limits,'' and applied by 
lower courts in numerous decisions, has created an inappropriately high 
level of limitation necessary to obtain coverage under the ADA;
    (6) To convey that it is the intent of Congress that the primary 
object of attention in cases brought under the ADA should be whether 
entities covered under the ADA have complied with their obligations, and 
to convey that the question of whether an individual's impairment is a 
disability under the ADA should not demand extensive analysis; and
    (7) To express Congress' expectation that the EEOC will revise that 
portion of its current regulations that defines the term ``substantially 
limits'' as ``significantly restricted'' to be consistent with the ADA 
as amended.
    ADAAA section 2(b). The findings and purposes of the ADAAA ``give[] 
clear guidance to the courts and * * * [are] intend[ed] to be applied 
appropriately and consistently.'' 2008 Senate Statement of Managers at 
5.
    The EEOC has amended its regulations to reflect the ADAAA's findings 
and purposes. The Commission believes that it is essential also to amend 
its appendix to the original regulations at the same time, and to 
reissue this interpretive guidance as amended concurrently with the 
issuance of the amended regulations. This will help to ensure that 
individuals with disabilities understand their rights, and to facilitate 
and encourage compliance by covered entities under this part.
    Accordingly, this amended appendix addresses the major provisions of 
this part and explains the major concepts related to disability-based 
employment discrimination. This appendix represents the Commission's 
interpretation of the issues addressed within it, and the Commission 
will be guided by this appendix when resolving charges of employment 
discrimination.

                    Note on Certain Terminology Used

    The ADA, the EEOC's ADA regulations, and this appendix use the term 
``disabilities'' rather than the term ``handicaps'' which was originally 
used in the Rehabilitation Act of 1973, 29 U.S.C. 701-796. 
Substantively, these terms are equivalent. As originally noted by the 
House Committee on the Judiciary, ``[t]he use of the term `disabilities' 
instead of the term `handicaps' reflects the desire of the Committee to 
use the most current terminology. It reflects the preference of persons 
with disabilities to use that term rather than `handicapped' as used in 
previous laws, such as the Rehabilitation Act of 1973 * * *.'' 1990 
House Judiciary Report at 26-27; See also 1989 Senate Report at 21; 1990 
House Labor Report at 50-51.
    In addition, consistent with the Amendments Act, revisions have been 
made to the regulations and this appendix to refer to ``individual with 
a disability'' and ``qualified individual'' as separate terms, and to 
change the prohibition on discrimination to ``on the

[[Page 398]]

basis of disability'' instead of prohibiting discrimination against a 
qualified individual ``with a disability because of the disability of 
such individual.'' ``This ensures that the emphasis in questions of 
disability discrimination is properly on the critical inquiry of whether 
a qualified person has been discriminated against on the basis of 
disability, and not unduly focused on the preliminary question of 
whether a particular person is a `person with a disability.' '' 2008 
Senate Statement of Managers at 11.
    The use of the term ``Americans'' in the title of the ADA, in the 
EEOC's regulations, or in this appendix as amended is not intended to 
imply that the ADA only applies to United States citizens. Rather, the 
ADA protects all qualified individuals with disabilities, regardless of 
their citizenship status or nationality, from discrimination by a 
covered entity.
    Finally, the terms ``employer'' and ``employer or other covered 
entity'' are used interchangeably throughout this appendix to refer to 
all covered entities subject to the employment provisions of the ADA.

         Section 1630.1 Purpose, Applicability and Construction

                        Section 1630.1(a) Purpose

    The express purposes of the ADA as amended are to provide a clear 
and comprehensive national mandate for the elimination of discrimination 
against individuals with disabilities; to provide clear, strong, 
consistent, enforceable standards addressing discrimination against 
individuals with disabilities; to ensure that the Federal Government 
plays a central role in enforcing the standards articulated in the ADA 
on behalf of individuals with disabilities; and to invoke the sweep of 
congressional authority to address the major areas of discrimination 
faced day-to-day by people with disabilities. 42 U.S.C. 12101(b). The 
EEOC's ADA regulations are intended to implement these Congressional 
purposes in simple and straightforward terms.

                     Section 1630.1(b) Applicability

    The EEOC's ADA regulations as amended apply to all ``covered 
entities'' as defined at Sec.  1630.2(b). The ADA defines ``covered 
entities'' to mean an employer, employment agency, labor organization, 
or joint labor-management committee. 42 U.S.C. 12111(2). All covered 
entities are subject to the ADA's rules prohibiting discrimination. 42 
U.S.C. 12112.

                     Section 1630.1(c) Construction

    The ADA must be construed as amended. The primary purpose of the 
Amendments Act was to make it easier for people with disabilities to 
obtain protection under the ADA. See Joint Hoyer-Sensenbrenner Statement 
on the Origins of the ADA Restoration Act of 2008, H.R. 3195 (reviewing 
provisions of H.R. 3195 as revised following negotiations between 
representatives of the disability and business communities) (Joint 
Hoyer-Sensenbrenner Statement) at 2. Accordingly, under the ADA as 
amended and the EEOC's regulations, the definition of ``disability'' 
``shall be construed in favor of broad coverage of individuals under 
[the ADA], to the maximum extent permitted by the terms of [the ADA].'' 
42 U.S.C. 12102(4)(A); See also 2008 Senate Statement of Managers at 3 
(``The ADA Amendments Act * * * reiterates that Congress intends that 
the scope of the [ADA] be broad and inclusive.''). This construction is 
also intended to reinforce the general rule that civil rights statutes 
must be broadly construed to achieve their remedial purpose. Id. at 2; 
See also 2008 House Judiciary Committee Report at 19 (this rule of 
construction ``directs courts to construe the definition of `disability' 
broadly to advance the ADA's remedial purposes'' and thus ``brings 
treatment of the ADA's definition of disability in line with treatment 
of other civil rights laws, which should be construed broadly to 
effectuate their remedial purposes'').
    The ADAAA and the EEOC's regulations also make clear that the 
primary object of attention in cases brought under the ADA should be 
whether entities covered under the ADA have complied with their 
obligations, not whether the individual meets the definition of 
disability. ADAAA section 2(b)(5). This means, for example, examining 
whether an employer has discriminated against an employee, including 
whether an employer has fulfilled its obligations with respect to 
providing a ``reasonable accommodation'' to an individual with a 
disability; or whether an employee has met his or her responsibilities 
under the ADA with respect to engaging in the reasonable accommodation 
``interactive process.'' See also 2008 Senate Statement of Managers at 4 
(``[L]ower court cases have too often turned solely on the question of 
whether the plaintiff is an individual with a disability rather than the 
merits of discrimination claims, such as whether adverse decisions were 
impermissibly made by the employer on the basis of disability, 
reasonable accommodations were denied, or qualification standards were 
unlawfully discriminatory.''); 2008 House Judiciary Committee Report at 
6 (``An individual who does not qualify as disabled * * * does not meet 
th[e] threshold question of coverage in the protected class and is 
therefore not permitted to attempt to prove his or her claim of 
discriminatory treatment.'').
    Further, the question of whether an individual has a disability 
under this part ``should not demand extensive analysis.'' ADAAA section 
2(b)(5). See also House Education and Labor Committee Report at 9

[[Page 399]]

(``The Committee intends that the establishment of coverage under the 
ADA should not be overly complex nor difficult. * * *'').
    In addition, unless expressly stated otherwise, the standards 
applied in the ADA are intended to provide at least as much protection 
as the standards applied under the Rehabilitation Act of 1973.
    The ADA does not preempt any Federal law, or any State or local law, 
that grants to individuals with disabilities protection greater than or 
equivalent to that provided by the ADA. This means that the existence of 
a lesser standard of protection to individuals with disabilities under 
the ADA will not provide a defense to failing to meet a higher standard 
under another law. Thus, for example, title I of the ADA would not be a 
defense to failing to prepare and maintain an affirmative action program 
under section 503 of the Rehabilitation Act. On the other hand, the 
existence of a lesser standard under another law will not provide a 
defense to failing to meet a higher standard under the ADA. See 1990 
House Labor Report at 135; 1990 House Judiciary Report at 69-70.
    This also means that an individual with a disability could choose to 
pursue claims under a State discrimination or tort law that does not 
confer greater substantive rights, or even confers fewer substantive 
rights, if the potential available remedies would be greater than those 
available under the ADA and this part. The ADA does not restrict an 
individual with a disability from pursuing such claims in addition to 
charges brought under this part. 1990 House Judiciary Report at 69-70.
    The ADA does not automatically preempt medical standards or safety 
requirements established by Federal law or regulations. It does not 
preempt State, county, or local laws, ordinances or regulations that are 
consistent with this part and designed to protect the public health from 
individuals who pose a direct threat to the health or safety of others 
that cannot be eliminated or reduced by reasonable accommodation. 
However, the ADA does preempt inconsistent requirements established by 
State or local law for safety or security sensitive positions. See 1989 
Senate Report at 27; 1990 House Labor Report at 57.
    An employer allegedly in violation of this part cannot successfully 
defend its actions by relying on the obligation to comply with the 
requirements of any State or local law that imposes prohibitions or 
limitations on the eligibility of individuals with disabilities who are 
qualified to practice any occupation or profession. For example, suppose 
a municipality has an ordinance that prohibits individuals with 
tuberculosis from teaching school children. If an individual with 
dormant tuberculosis challenges a private school's refusal to hire him 
or her on the basis of the tuberculosis, the private school would not be 
able to rely on the city ordinance as a defense under the ADA.
    Paragraph (c)(3) is consistent with language added to section 501 of 
the ADA by the ADA Amendments Act. It makes clear that nothing in this 
part is intended to alter the determination of eligibility for benefits 
under state workers' compensation laws or Federal and State disability 
benefit programs. State workers' compensation laws and Federal 
disability benefit programs, such as programs that provide payments to 
veterans with service-connected disabilities and the Social Security 
Disability Insurance program, have fundamentally different purposes than 
title I of the ADA.

                       Section 1630.2 Definitions

         Sections 1630.2(a)-(f) Commission, Covered Entity, etc.

    The definitions section of part 1630 includes several terms that are 
identical, or almost identical, to the terms found in title VII of the 
Civil Rights Act of 1964. Among these terms are ``Commission,'' 
``Person,'' ``State,'' and ``Employer.'' These terms are to be given the 
same meaning under the ADA that they are given under title VII. In 
general, the term ``employee'' has the same meaning that it is given 
under title VII. However, the ADA's definition of ``employee'' does not 
contain an exception, as does title VII, for elected officials and their 
personal staffs. It should further be noted that all State and local 
governments are covered by title II of the ADA whether or not they are 
also covered by this part. Title II, which is enforced by the Department 
of Justice, became effective on January 26, 1992. See 28 CFR part 35.
    The term ``covered entity'' is not found in title VII. However, the 
title VII definitions of the entities included in the term ``covered 
entity'' (e.g., employer, employment agency, labor organization, etc.) 
are applicable to the ADA.

                      Section 1630.2(g) Disability

    In addition to the term ``covered entity,'' there are several other 
terms that are unique to the ADA as amended. The first of these is the 
term ``disability.'' ``This definition is of critical importance because 
as a threshold issue it determines whether an individual is covered by 
the ADA.'' 2008 Senate Statement of Managers at 6.
    In the original ADA, ``Congress sought to protect anyone who 
experiences discrimination because of a current, past, or perceived 
disability.'' 2008 Senate Statement of Managers at 6. Accordingly, the 
definition of the term ``disability'' is divided into three prongs: An 
individual is considered to have a ``disability'' if that individual (1) 
has a physical or mental impairment that substantially limits one or 
more of that person's

[[Page 400]]

major life activities (the ``actual disability'' prong); (2) has a 
record of such an impairment (the ``record of'' prong); or (3) is 
regarded by the covered entity as an individual with a disability as 
defined in Sec.  1630.2(l) (the ``regarded as'' prong). The ADAAA 
retained the basic structure and terms of the original definition of 
disability. However, the Amendments Act altered the interpretation and 
application of this critical statutory term in fundamental ways. See 
2008 Senate Statement of Managers at 1 (``The bill maintains the ADA's 
inherently functional definition of disability'' but ``clarifies and 
expands the definition's meaning and application.'').
    As noted above, the primary purpose of the ADAAA is to make it 
easier for people with disabilities to obtain protection under the ADA. 
See Joint Hoyer-Sensenbrenner Statement at 2. Accordingly, the ADAAA 
provides rules of construction regarding the definition of disability. 
Consistent with the congressional intent to reinstate a broad scope of 
protection under the ADA, the ADAAA's rules of construction require that 
the definition of ``disability'' ``shall be construed in favor of broad 
coverage of individuals under [the ADA], to the maximum extent permitted 
by the terms of [the ADA].'' 42 U.S.C. 12102(4)(A). The legislative 
history of the ADAAA is replete with references emphasizing this 
principle. See Joint Hoyer-Sensenbrenner Statement at 2 (``[The bill] 
establishes that the definition of disability must be interpreted 
broadly to achieve the remedial purposes of the ADA''); 2008 Senate 
Statement of Managers at 1 (the ADAAA's purpose is to ``enhance the 
protections of the [ADA]'' by ``expanding the definition, and by 
rejecting several opinions of the United States Supreme Court that have 
had the effect of restricting the meaning and application of the 
definition of disability''); id. (stressing the importance of removing 
barriers ``to construing and applying the definition of disability more 
generously''); id. at 4 (``The managers have introduced the [ADAAA] to 
restore the proper balance and application of the ADA by clarifying and 
broadening the definition of disability, and to increase eligibility for 
the protections of the ADA.''); id. (``It is our expectation that 
because the bill makes the definition of disability more generous, some 
people who were not covered before will now be covered.''); id. (warning 
that ``the definition of disability should not be unduly used as a tool 
for excluding individuals from the ADA's protections''); id. (this 
principle ``sends a clear signal of our intent that the courts must 
interpret the definition of disability broadly rather than 
stringently''); 2008 House Judiciary Committee Report at 5 (``The 
purpose of the bill is to restore protection for the broad range of 
individuals with disabilities as originally envisioned by Congress by 
responding to the Supreme Court's narrow interpretation of the 
definition of disability.'').
    Further, as the purposes section of the ADAAA explicitly cautions, 
the ``primary object of attention'' in cases brought under the ADA 
should be whether entities covered under the ADA have complied with 
their obligations. As noted above, this means, for example, examining 
whether an employer has discriminated against an employee, including 
whether an employer has fulfilled its obligations with respect to 
providing a ``reasonable accommodation'' to an individual with a 
disability; or whether an employee has met his or her responsibilities 
under the ADA with respect to engaging in the reasonable accommodation 
``interactive process.'' ADAAA section 2(b)(5); See also 2008 Senate 
Statement of Managers at 4 (``[L]ower court cases have too often turned 
solely on the question of whether the plaintiff is an individual with a 
disability rather than the merits of discrimination claims, such as 
whether adverse decisions were impermissibly made by the employer on the 
basis of disability, reasonable accommodations were denied, or 
qualification standards were unlawfully discriminatory.''); 2008 House 
Judiciary Committee Report (criticizing pre-ADAAA court decisions which 
``prevented individuals that Congress unquestionably intended to cover 
from ever getting a chance to prove their case''). Accordingly, the 
threshold coverage question of whether an individual's impairment is a 
disability under the ADA ``should not demand extensive analysis.'' ADAAA 
section 2(b)(5).
    Section 1630.2(g)(2) provides that an individual may establish 
coverage under any one or more (or all three) of the prongs in the 
definition of disability. However, to be an individual with a 
disability, an individual is only required to satisfy one prong.
    As Sec.  1630.2(g)(3) indicates, in many cases it may be unnecessary 
for an individual to resort to coverage under the ``actual disability'' 
or ``record of'' prongs. Where the need for a reasonable accommodation 
is not at issue--for example, where there is no question that the 
individual is ``qualified'' without a reasonable accommodation and is 
not seeking or has not sought a reasonable accommodation--it would not 
be necessary to determine whether the individual is substantially 
limited in a major life activity (under the actual disability prong) or 
has a record of a substantially limiting impairment (under the record of 
prong). Such claims could be evaluated solely under the ``regarded as'' 
prong of the definition. In fact, Congress expected the first and second 
prongs of the definition of disability ``to be used only by people who 
are affirmatively seeking reasonable accommodations * * *'' and that 
``[a]ny individual who has been discriminated against because of an 
impairment--short of being granted a reasonable

[[Page 401]]

accommodation * * *--should be bringing a claim under the third prong of 
the definition which will require no showing with regard to the severity 
of his or her impairment.'' Joint Hoyer-Sensenbrenner Statement at 4. An 
individual may choose, however, to proceed under the ``actual 
disability'' and/or ``record of'' prong regardless of whether the 
individual is challenging a covered entity's failure to make reasonable 
accommodation or requires a reasonable accommodation.
    To fully understand the meaning of the term ``disability,'' it is 
also necessary to understand what is meant by the terms ``physical or 
mental impairment,'' ``major life activity,'' ``substantially limits,'' 
``record of,'' and ``regarded as.'' Each of these terms is discussed 
below.

             Section 1630.2(h) Physical or Mental Impairment

    Neither the original ADA nor the ADAAA provides a definition for the 
terms ``physical or mental impairment.'' However, the legislative 
history of the Amendments Act notes that Congress ``expect[s] that the 
current regulatory definition of these terms, as promulgated by agencies 
such as the U.S. Equal Employment Opportunity Commission (EEOC), the 
Department of Justice (DOJ) and the Department of Education Office of 
Civil Rights (DOE OCR) will not change.'' 2008 Senate Statement of 
Managers at 6. The definition of ``physical or mental impairment'' in 
the EEOC's regulations remains based on the definition of the term 
``physical or mental impairment'' found in the regulations implementing 
section 504 of the Rehabilitation Act at 34 CFR part 104. However, the 
definition in EEOC's regulations adds additional body systems to those 
provided in the section 504 regulations and makes clear that the list is 
non-exhaustive.
    It is important to distinguish between conditions that are 
impairments and physical, psychological, environmental, cultural, and 
economic characteristics that are not impairments. The definition of the 
term ``impairment'' does not include physical characteristics such as 
eye color, hair color, left-handedness, or height, weight, or muscle 
tone that are within ``normal'' range and are not the result of a 
physiological disorder. The definition, likewise, does not include 
characteristic predisposition to illness or disease. Other conditions, 
such as pregnancy, that are not the result of a physiological disorder 
are also not impairments. However, a pregnancy-related impairment that 
substantially limits a major life activity is a disability under the 
first prong of the definition. Alternatively, a pregnancy-related 
impairment may constitute a ``record of'' a substantially limiting 
impairment,'' or may be covered under the ``regarded as'' prong if it is 
the basis for a prohibited employment action and is not ``transitory and 
minor.''
    The definition of an impairment also does not include common 
personality traits such as poor judgment or a quick temper where these 
are not symptoms of a mental or psychological disorder. Environmental, 
cultural, or economic disadvantages such as poverty, lack of education, 
or a prison record are not impairments. Advanced age, in and of itself, 
is also not an impairment. However, various medical conditions commonly 
associated with age, such as hearing loss, osteoporosis, or arthritis 
would constitute impairments within the meaning of this part. See 1989 
Senate Report at 22-23; 1990 House Labor Report at 51-52; 1990 House 
Judiciary Report at 28-29.

                 Section 1630.2(i) Major Life Activities

    The ADAAA provided significant new guidance and clarification on the 
subject of ``major life activities.'' As the legislative history of the 
Amendments Act explains, Congress anticipated that protection under the 
ADA would now extend to a wider range of cases, in part as a result of 
the expansion of the category of major life activities. See 2008 Senate 
Statement of Managers at 8 n.17.
    For purposes of clarity, the Amendments Act provides an illustrative 
list of major life activities, including caring for oneself, performing 
manual tasks, seeing, hearing, eating, sleeping, walking, standing, 
lifting, bending, speaking, breathing, learning, reading, concentrating, 
thinking, communicating, and working. The ADA Amendments expressly made 
this statutory list of examples of major life activities non-exhaustive, 
and the regulations include sitting, reaching, and interacting with 
others as additional examples. Many of these major life activities 
listed in the ADA Amendments Act and the regulations already had been 
included in the EEOC's 1991 now-superseded regulations implementing 
title I of the ADA and in sub-regulatory documents, and already were 
recognized by the courts.
    The ADA as amended also explicitly defines ``major life activities'' 
to include the operation of ``major bodily functions.'' This was an 
important addition to the statute. This clarification was needed to 
ensure that the impact of an impairment on the operation of a major 
bodily function would not be overlooked or wrongly dismissed as falling 
outside the definition of ``major life activities'' under the ADA. 2008 
House Judiciary Committee Report at 16; See also 2008 Senate Statement 
of Managers at 8 (``for the first time [in the ADAAA], the category of 
`major life activities' is defined to include the operation of major 
bodily functions, thus better addressing chronic impairments that can be 
substantially limiting'').
    The regulations include all of those major bodily functions 
identified in the ADA

[[Page 402]]

Amendments Act's non-exhaustive list of examples and add a number of 
others that are consistent with the body systems listed in the 
regulations' definition of ``impairment'' (at Sec.  1630.2(h)) and with 
the U.S. Department of Labor's nondiscrimination and equal employment 
opportunity regulations implementing section 188 of the Workforce 
Investment Act of 1998, 29 U.S.C. 2801, et seq. Thus, special sense 
organs, skin, genitourinary, cardiovascular, hemic, lymphatic, and 
musculoskeletal functions are major bodily functions not included in the 
statutory list of examples but included in Sec.  1630.2(i)(1)(ii). The 
Commission has added these examples to further illustrate the non-
exhaustive list of major life activities, including major bodily 
functions, and to emphasize that the concept of major life activities is 
to be interpreted broadly consistent with the Amendments Act. The 
regulations also provide that the operation of a major bodily function 
may include the operation of an individual organ within a body system. 
This would include, for example, the operation of the kidney, liver, 
pancreas, or other organs.
    The link between particular impairments and various major bodily 
functions should not be difficult to identify. Because impairments, by 
definition, affect the functioning of body systems, they will generally 
affect major bodily functions. For example, cancer affects an 
individual's normal cell growth; diabetes affects the operation of the 
pancreas and also the function of the endocrine system; and Human 
Immunodeficiency Virus (HIV) infection affects the immune system. 
Likewise, sickle cell disease affects the functions of the hemic system, 
lymphedema affects lymphatic functions, and rheumatoid arthritis affects 
musculoskeletal functions.
    In the legislative history of the ADAAA, Congress expressed its 
expectation that the statutory expansion of ``major life activities'' to 
include major bodily functions (along with other statutory changes) 
would lead to more expansive coverage. See 2008 Senate Statement of 
Managers at 8 n.17 (indicating that these changes will make it easier 
for individuals to show that they are eligible for the ADA's protections 
under the first prong of the definition of disability). The House 
Education and Labor Committee explained that the inclusion of major 
bodily functions would ``affect cases such as U.S. v. Happy Time Day 
Care Ctr. in which the courts struggled to analyze whether the impact of 
HIV infection substantially limits various major life activities of a 
five-year-old child, and recognizing, among other things, that `there is 
something inherently illogical about inquiring whether' a five-year-
old's ability to procreate is substantially limited by his HIV 
infection; Furnish v. SVI Sys., Inc, in which the court found that an 
individual with cirrhosis of the liver caused by Hepatitis B is not 
disabled because liver function--unlike eating, working, or 
reproducing--`is not integral to one's daily existence;' and Pimental v. 
Dartmouth-Hitchcock Clinic, in which the court concluded that the 
plaintiff's stage three breast cancer did not substantially limit her 
ability to care for herself, sleep, or concentrate. The Committee 
expects that the plaintiffs in each of these cases could establish a 
[substantial limitation] on major bodily functions that would qualify 
them for protection under the ADA.'' 2008 House Education and Labor 
Committee Report at 12.
    The examples of major life activities (including major bodily 
functions) in the ADAAA and the EEOC's regulations are illustrative and 
non-exhaustive, and the absence of a particular life activity or bodily 
function from the examples does not create a negative implication as to 
whether an omitted activity or function constitutes a major life 
activity under the statute. See 2008 Senate Statement of Managers at 8; 
See also 2008 House Committee on Educ. and Labor Report at 11; 2008 
House Judiciary Committee Report at 17.
    The Commission anticipates that courts will recognize other major 
life activities, consistent with the ADA Amendments Act's mandate to 
construe the definition of disability broadly. As a result of the ADA 
Amendments Act's rejection of the holding in Toyota Motor Mfg., Ky., 
Inc. v. Williams, 534 U.S. 184 (2002), whether an activity is a ``major 
life activity'' is not determined by reference to whether it is of 
``central importance to daily life.'' See Toyota, 534 U.S. at 197 
(defining ``major life activities'' as activities that are of ``central 
importance to most people's daily lives''). Indeed, this holding was at 
odds with the earlier Supreme Court decision of Bragdon v. Abbott, 524 
U.S. 624 (1998), which held that a major life activity (in that case, 
reproduction) does not have to have a ``public, economic or daily 
aspect.'' Id. at 639.
    Accordingly, the regulations provide that in determining other 
examples of major life activities, the term ``major'' shall not be 
interpreted strictly to create a demanding standard for disability. Cf. 
2008 Senate Statement of Managers at 7 (indicating that a person is 
considered an individual with a disability for purposes of the first 
prong when one or more of the individual's ``important life activities'' 
are restricted) (citing 1989 Senate Report at 23). The regulations also 
reject the notion that to be substantially limited in performing a major 
life activity, an individual must have an impairment that prevents or 
severely restricts the individual from doing ``activities that are of 
central importance to most people's daily lives.'' Id.; see also 2008 
Senate Statement of Managers at 5 n.12.
    Thus, for example, lifting is a major life activity regardless of 
whether an individual

[[Page 403]]

who claims to be substantially limited in lifting actually performs 
activities of central importance to daily life that require lifting. 
Similarly, the Commission anticipates that the major life activity of 
performing manual tasks (which was at issue in Toyota) could have many 
different manifestations, such as performing tasks involving fine motor 
coordination, or performing tasks involving grasping, hand strength, or 
pressure. Such tasks need not constitute activities of central 
importance to most people's daily lives, nor must an individual show 
that he or she is substantially limited in performing all manual tasks.

                 Section 1630.2(j) Substantially Limits

    In any case involving coverage solely under the ``regarded as'' 
prong of the definition of ``disability'' (e.g., cases where reasonable 
accommodation is not at issue), it is not necessary to determine whether 
an individual is ``substantially limited'' in any major life activity. 
See 2008 Senate Statement of Managers at 10; id. at 13 (``The functional 
limitation imposed by an impairment is irrelevant to the third `regarded 
as' prong.''). Indeed, Congress anticipated that the first and second 
prongs of the definition of disability would ``be used only by people 
who are affirmatively seeking reasonable accommodations * * * '' and 
that ``[a]ny individual who has been discriminated against because of an 
impairment--short of being granted a reasonable accommodation * * *--
should be bringing a claim under the third prong of the definition which 
will require no showing with regard to the severity of his or her 
impairment.'' Joint Hoyer-Sensenbrenner Statement at 4. Of course, an 
individual may choose, however, to proceed under the ``actual 
disability'' and/or ``record of'' prong regardless of whether the 
individual is challenging a covered entity's failure to make reasonable 
accommodations or requires a reasonable accommodation. The concept of 
``substantially limits'' is only relevant in cases involving coverage 
under the ``actual disability'' or ``record of'' prong of the definition 
of disability. Thus, the information below pertains to these cases only.

               Section 1630.2(j)(1) Rules of Construction

    It is clear in the text and legislative history of the ADAAA that 
Congress concluded the courts had incorrectly construed ``substantially 
limits,'' and disapproved of the EEOC's now-superseded 1991 regulation 
defining the term to mean ``significantly restricts.'' See 2008 Senate 
Statement of Managers at 6 (``We do not believe that the courts have 
correctly instituted the level of coverage we intended to establish with 
the term `substantially limits' in the ADA'' and ``we believe that the 
level of limitation, and the intensity of focus, applied by the Supreme 
Court in Toyota goes beyond what we believe is the appropriate standard 
to create coverage under this law.''). Congress extensively deliberated 
over whether a new term other than ``substantially limits'' should be 
adopted to denote the appropriate functional limitation necessary under 
the first and second prongs of the definition of disability. See 2008 
Senate Statement of Managers at 6-7. Ultimately, Congress affirmatively 
opted to retain this term in the Amendments Act, rather than replace it. 
It concluded that ``adopting a new, undefined term that is subject to 
widely disparate meanings is not the best way to achieve the goal of 
ensuring consistent and appropriately broad coverage under this Act.'' 
Id. Instead, Congress determined ``a better way * * * to express [its] 
disapproval of Sutton and Toyota (along with the current EEOC 
regulation) is to retain the words `substantially limits,' but clarify 
that it is not meant to be a demanding standard.'' Id. at 7. To achieve 
that goal, Congress set forth detailed findings and purposes and ``rules 
of construction'' to govern the interpretation and application of this 
concept going forward. See ADAAA Sections 2-4; 42 U.S.C. 12102(4).
    The Commission similarly considered whether to provide a new 
definition of ``substantially limits'' in the regulation. Following 
Congress's lead, however, the Commission ultimately concluded that a new 
definition would inexorably lead to greater focus and intensity of 
attention on the threshold issue of coverage than intended by Congress. 
Therefore, the regulations simply provide rules of construction that 
must be applied in determining whether an impairment substantially 
limits (or substantially limited) a major life activity. These are each 
discussed in greater detail below.

  Section 1630.2(j)(1)(i) Broad Construction; not a Demanding Standard

    Section 1630.2(j)(1)(i) states: ``The term `substantially limits' 
shall be construed broadly in favor of expansive coverage, to the 
maximum extent permitted by the terms of the ADA. `Substantially limits' 
is not meant to be a demanding standard.''
    Congress stated in the ADA Amendments Act that the definition of 
disability ``shall be construed in favor of broad coverage,'' and that 
``the term `substantially limits' shall be interpreted consistently with 
the findings and purposes of the ADA Amendments Act of 2008.'' 42 U.S.C. 
12101(4)(A)-(B), as amended. ``This is a textual provision that will 
legally guide the agencies and courts in properly interpreting the term 
`substantially limits.' '' Hoyer-Sensenbrenner Congressional Record 
Statement at H8295. As Congress noted in the legislative history of the 
ADAAA, ``[t]o be clear, the purposes section conveys our intent to 
clarify not only that `substantially

[[Page 404]]

limits' should be measured by a lower standard than that used in Toyota, 
but also that the definition of disability should not be unduly used as 
a tool for excluding individuals from the ADA's protections.'' 2008 
Senate Statement of Managers at 5 (also stating that ``[t]his rule of 
construction, together with the rule of construction providing that the 
definition of disability shall be construed in favor of broad coverage 
of individuals sends a clear signal of our intent that the courts must 
interpret the definition of disability broadly rather than 
stringently''). Put most succinctly, ``substantially limits'' ``is not 
meant to be a demanding standard.'' 2008 Senate Statement of Managers at 
7.

Section 1630.2(j)(1)(ii) Significant or Severe Restriction Not Required; 
       Nonetheless, Not Every Impairment Is Substantially Limiting

    Section 1630.2(j)(1)(ii) states: ``An impairment is a disability 
within the meaning of this section if it substantially limits the 
ability of an individual to perform a major life activity as compared to 
most people in the general population. An impairment need not prevent, 
or significantly or severely restrict, the individual from performing a 
major life activity in order to be considered substantially limiting. 
Nonetheless, not every impairment will constitute a `disability' within 
the meaning of this section.''
    In keeping with the instruction that the term ``substantially 
limits'' is not meant to be a demanding standard, the regulations 
provide that an impairment is a disability if it substantially limits 
the ability of an individual to perform a major life activity as 
compared to most people in the general population. However, to be 
substantially limited in performing a major life activity an individual 
need not have an impairment that prevents or significantly or severely 
restricts the individual from performing a major life activity. See 2008 
Senate Statement of Managers at 2, 6-8 & n.14; 2008 House Committee on 
Educ. and Labor Report at 9-10 (``While the limitation imposed by an 
impairment must be important, it need not rise to the level of severely 
restricting or significantly restricting the ability to perform a major 
life activity to qualify as a disability.''); 2008 House Judiciary 
Committee Report at 16 (similarly requiring an ``important'' 
limitation). The level of limitation required is ``substantial'' as 
compared to most people in the general population, which does not 
require a significant or severe restriction. Multiple impairments that 
combine to substantially limit one or more of an individual's major life 
activities also constitute a disability. Nonetheless, not every 
impairment will constitute a ``disability'' within the meaning of this 
section. See 2008 Senate Statement of Managers at 4 (``We reaffirm that 
not every individual with a physical or mental impairment is covered by 
the first prong of the definition of disability in the ADA.'')

 Section 1630.2(j)(1)(iii) Substantial Limitation Should Not Be Primary 
           Object of Attention; Extensive Analysis Not Needed

    Section 1630.2(j)(1)(iii) states: ``The primary object of attention 
in cases brought under the ADA should be whether covered entities have 
complied with their obligations, not whether an individual's impairment 
substantially limits a major life activity. Accordingly, the threshold 
issue of whether an impairment `substantially limits' a major life 
activity should not demand extensive analysis.''
    Congress retained the term ``substantially limits'' in part because 
it was concerned that adoption of a new phrase--and the resulting need 
for further judicial scrutiny and construction--would not ``help move 
the focus from the threshold issue of disability to the primary issue of 
discrimination.'' 2008 Senate Statement of Managers at 7.
    This was the primary problem Congress sought to solve in enacting 
the ADAAA. It recognized that ``clearing the initial [disability] 
threshold is critical, as individuals who are excluded from the 
definition `never have the opportunity to have their condition evaluated 
in light of medical evidence and a determination made as to whether they 
[are] `otherwise qualified.' '' 2008 House Judiciary Committee Report at 
7; See also id. (expressing concern that ``[a]n individual who does not 
qualify as disabled does not meet th[e] threshold question of coverage 
in the protected class and is therefore not permitted to attempt to 
prove his or her claim of discriminatory treatment''); 2008 Senate 
Statement of Managers at 4 (criticizing pre-ADAAA lower court cases that 
``too often turned solely on the question of whether the plaintiff is an 
individual with a disability rather than the merits of discrimination 
claims, such as whether adverse decisions were impermissibly made by the 
employer on the basis of disability, reasonable accommodations were 
denied, or qualification standards were unlawfully discriminatory'').
    Accordingly, the Amendments Act and the amended regulations make 
plain that the emphasis in ADA cases now should be squarely on the 
merits and not on the initial coverage question. The revised regulations 
therefore provide that an impairment is a disability if it substantially 
limits the ability of an individual to perform a major life activity as 
compared to most people in the general population and deletes the 
language to which Congress objected. The Commission believes that this 
provides a useful framework in which to analyze whether an impairment 
satisfies the definition of disability. Further, this framework better 
reflects

[[Page 405]]

Congress's expressed intent in the ADA Amendments Act that the 
definition of the term ``disability'' shall be construed broadly, and is 
consistent with statements in the Amendments Act's legislative history. 
See 2008 Senate Statement of Managers at 7 (stating that ``adopting a 
new, undefined term'' and the ``resulting need for further judicial 
scrutiny and construction will not help move the focus from the 
threshold issue of disability to the primary issue of discrimination,'' 
and finding that `` `substantially limits' as construed consistently 
with the findings and purposes of this legislation establishes an 
appropriate functionality test of determining whether an individual has 
a disability'' and that ``using the correct standard--one that is lower 
than the strict or demanding standard created by the Supreme Court in 
Toyota--will make the disability determination an appropriate threshold 
issue but not an onerous burden for those seeking accommodations or 
modifications'').
    Consequently, this rule of construction makes clear that the 
question of whether an impairment substantially limits a major life 
activity should not demand extensive analysis. As the legislative 
history explains, ``[w]e expect that courts interpreting [the ADA] will 
not demand such an extensive analysis over whether a person's physical 
or mental impairment constitutes a disability.'' Hoyer-Sensenbrenner 
Congressional Record Statement at H8295; see id. (``Our goal throughout 
this process has been to simplify that analysis.'')

 Section 1630.2(j)(1)(iv) Individualized Assessment Required, But With 
                 Lower Standard Than Previously Applied

    Section 1630.2(j)(1)(iv) states: ``The determination of whether an 
impairment substantially limits a major life activity requires an 
individualized assessment. However, in making this assessment, the term 
`substantially limits' shall be interpreted and applied to require a 
degree of functional limitation that is lower than the standard for 
`substantially limits' applied prior to the ADAAA.''
    By retaining the essential elements of the definition of disability 
including the key term ``substantially limits,'' Congress reaffirmed 
that not every individual with a physical or mental impairment is 
covered by the first prong of the definition of disability in the ADA. 
See 2008 Senate Statement of Managers at 4. To be covered under the 
first prong of the definition, an individual must establish that an 
impairment substantially limits a major life activity. That has not 
changed--nor will the necessity of making this determination on an 
individual basis. Id. However, what the ADAAA changed is the standard 
required for making this determination. Id. at 4-5.
    The Amendments Act and the EEOC's regulations explicitly reject the 
standard enunciated by the Supreme Court in Toyota Motor Mfg., Ky., Inc. 
v. Williams, 534 U.S. 184 (2002), and applied in the lower courts in 
numerous cases. See ADAAA section 2(b)(4). That previous standard 
created ``an inappropriately high level of limitation necessary to 
obtain coverage under the ADA.'' Id. at section 2(b)(5). The Amendments 
Act and the EEOC's regulations reject the notion that ``substantially 
limits'' should be interpreted strictly to create a demanding standard 
for qualifying as disabled. Id. at section 2(b)(4). Instead, the ADAAA 
and these regulations establish a degree of functional limitation 
required for an impairment to constitute a disability that is consistent 
with what Congress originally intended. 2008 Senate Statement of 
Managers at 7. This will make the disability determination an 
appropriate threshold issue but not an onerous burden for those seeking 
to prove discrimination under the ADA. Id.

Section 1630.2(j)(1)(v) Scientific, Medical, or Statistical Analysis Not 
               Required, But Permissible When Appropriate

    Section 1630.2(j)(1)(v) states: ``The comparison of an individual's 
performance of a major life activity to the performance of the same 
major life activity by most people in the general population usually 
will not require scientific, medical, or statistical analysis. Nothing 
in this paragraph is intended, however, to prohibit the presentation of 
scientific, medical, or statistical evidence to make such a comparison 
where appropriate.''
    The term ``average person in the general population,'' as the basis 
of comparison for determining whether an individual's impairment 
substantially limits a major life activity, has been changed to ``most 
people in the general population.'' This revision is not a substantive 
change in the concept, but rather is intended to conform the language to 
the simpler and more straightforward terminology used in the legislative 
history to the Amendments Act. The comparison between the individual and 
``most people'' need not be exacting, and usually will not require 
scientific, medical, or statistical analysis. Nothing in this 
subparagraph is intended, however, to prohibit the presentation of 
scientific, medical, or statistical evidence to make such a comparison 
where appropriate.
    The comparison to most people in the general population continues to 
mean a comparison to other people in the general population, not a 
comparison to those similarly situated. For example, the ability of an 
individual with an amputated limb to perform a major life activity is 
compared to other people in the general population, not to other 
amputees. This does not mean that disability cannot be shown where an 
impairment, such as a learning disability, is clinically diagnosed based 
in part on a disparity between

[[Page 406]]

an individual's aptitude and that individual's actual versus expected 
achievement, taking into account the person's chronological age, 
measured intelligence, and age-appropriate education. Individuals 
diagnosed with dyslexia or other learning disabilities will typically be 
substantially limited in performing activities such as learning, 
reading, and thinking when compared to most people in the general 
population, particularly when the ameliorative effects of mitigating 
measures, including therapies, learned behavioral or adaptive 
neurological modifications, assistive devices (e.g., audio recordings, 
screen reading devices, voice activated software), studying longer, or 
receiving more time to take a test, are disregarded as required under 
the ADA Amendments Act.

              Section 1630.2(j)(1)(vi) Mitigating Measures

    Section 1630.2(j)(1)(vi) states: ``The determination of whether an 
impairment substantially limits a major life activity shall be made 
without regard to the ameliorative effects of mitigating measures. 
However, the ameliorative effects of ordinary eyeglasses or contact 
lenses shall be considered in determining whether an impairment 
substantially limits a major life activity.''
    The ameliorative effects of mitigating measures shall not be 
considered in determining whether an impairment substantially limits a 
major life activity. Thus, ``[w]ith the exception of ordinary eyeglasses 
and contact lenses, impairments must be examined in their unmitigated 
state.'' See 2008 Senate Statement of Managers at 5.
    This provision in the ADAAA and the EEOC's regulations ``is intended 
to eliminate the catch-22 that exist[ed] * * * where individuals who are 
subjected to discrimination on the basis of their disabilities [we]re 
frequently unable to invoke the ADA's protections because they [we]re 
not considered people with disabilities when the effects of their 
medication, medical supplies, behavioral adaptations, or other 
interventions [we]re considered.'' Joint Hoyer-Sensenbrenner Statement 
at 2; See also 2008 Senate Statement of Managers at 9 (``This provision 
is intended to eliminate the situation created under [prior] law in 
which impairments that are mitigated [did] not constitute disabilities 
but [were the basis for discrimination].''). To the extent cases pre-
dating the 2008 Amendments Act reasoned otherwise, they are contrary to 
the law as amended. See 2008 House Judiciary Committee Report at 9 & 
nn.25, 20-21 (citing, e.g., McClure v. General Motors Corp., 75 F. App'x 
983 (5th Cir. 2003) (court held that individual with muscular dystrophy 
who, with the mitigating measure of ``adapting'' how he performed manual 
tasks, had successfully learned to live and work with his disability was 
therefore not an individual with a disability); Orr v. Wal-Mart Stores, 
Inc., 297 F.3d 720 (8th Cir. 2002) (court held that Sutton v. United Air 
Lines, Inc., 527 U.S. 471 (1999), required consideration of the 
ameliorative effects of plaintiff's careful regimen of medicine, 
exercise and diet, and declined to consider impact of uncontrolled 
diabetes on plaintiff's ability to see, speak, read, and walk); Gonzales 
v. National Bd. of Med. Examiners, 225 F.3d 620 (6th Cir. 2000) (where 
the court found that an individual with a diagnosed learning disability 
was not substantially limited after considering the impact of self-
accommodations that allowed him to read and achieve academic success); 
McMullin v. Ashcroft, 337 F. Supp. 2d 1281 (D. Wyo. 2004) (individual 
fired because of clinical depression not protected because of the 
successful management of the condition with medication for fifteen 
years); Eckhaus v. Consol. Rail Corp., 2003 WL 23205042 (D.N.J. Dec. 24, 
2003) (individual fired because of a hearing impairment was not 
protected because a hearing aid helped correct that impairment); Todd v. 
Academy Corp., 57 F. Supp. 2d 448, 452 (S.D. Tex. 1999) (court held that 
because medication reduced the frequency and intensity of plaintiff's 
seizures, he was not disabled)).
    An individual who, because of the use of a mitigating measure, has 
experienced no limitations, or only minor limitations, related to the 
impairment may still be an individual with a disability, where there is 
evidence that in the absence of an effective mitigating measure the 
individual's impairment would be substantially limiting. For example, 
someone who began taking medication for hypertension before experiencing 
substantial limitations related to the impairment would still be an 
individual with a disability if, without the medication, he or she would 
now be substantially limited in functions of the cardiovascular or 
circulatory system.
    Evidence showing that an impairment would be substantially limiting 
in the absence of the ameliorative effects of mitigating measures could 
include evidence of limitations that a person experienced prior to using 
a mitigating measure, evidence concerning the expected course of a 
particular disorder absent mitigating measures, or readily available and 
reliable information of other types. However, we expect that consistent 
with the Amendments Act's command (and the related rules of construction 
in the regulations) that the definition of disability ``should not 
demand extensive analysis,'' covered entities and courts will in many 
instances be able to conclude that a substantial limitation has been 
shown without resort to such evidence.
    The Amendments Act provides an ``illustrative but non-comprehensive 
list of the types of mitigating measures that are not to be 
considered.'' See 2008 Senate Statement of

[[Page 407]]

Managers at 9. Section 1630.2(j)(5) of the regulations includes all of 
those mitigating measures listed in the ADA Amendments Act's 
illustrative list of mitigating measures, including reasonable 
accommodations (as applied under title I) or ``auxiliary aids or 
services'' (as defined by 42 U.S.C. 12103(1) and applied under titles II 
and III).
    Since it would be impossible to guarantee comprehensiveness in a 
finite list, the list of examples of mitigating measures provided in the 
ADA and the regulations is non-exhaustive. See 2008 House Judiciary 
Committee Report at 20. The absence of any particular mitigating measure 
from the list in the regulations should not convey a negative 
implication as to whether the measure is a mitigating measure under the 
ADA. See 2008 Senate Statement of Managers at 9.
    For example, the fact that mitigating measures include ``reasonable 
accommodations'' generally makes it unnecessary to mention specific 
kinds of accommodations. Nevertheless, the use of a service animal, job 
coach, or personal assistant on the job would certainly be considered 
types of mitigating measures, as would the use of any device that could 
be considered assistive technology, and whether individuals who use 
these measures have disabilities would be determined without reference 
to their ameliorative effects. See 2008 House Judiciary Committee Report 
at 20; 2008 House Educ. & Labor Rep. at 15. Similarly, adaptive 
strategies that might mitigate, or even allow an individual to otherwise 
avoid performing particular major life activities, are mitigating 
measures and also would not be considered in determining whether an 
impairment is substantially limiting. Id.
    The determination of whether or not an individual's impairment 
substantially limits a major life activity is unaffected by whether the 
individual chooses to forgo mitigating measures. For individuals who do 
not use a mitigating measure (including for example medication or 
reasonable accommodation that could alleviate the effects of an 
impairment), the availability of such measures has no bearing on whether 
the impairment substantially limits a major life activity. The 
limitations posed by the impairment on the individual and any negative 
(non-ameliorative) effects of mitigating measures used determine whether 
an impairment is substantially limiting. The origin of the impairment, 
whether its effects can be mitigated, and any ameliorative effects of 
mitigating measures in fact used may not be considered in determining if 
the impairment is substantially limiting. However, the use or non-use of 
mitigating measures, and any consequences thereof, including any 
ameliorative and non-ameliorative effects, may be relevant in 
determining whether the individual is qualified or poses a direct threat 
to safety.
    The ADA Amendments Act and the regulations state that ``ordinary 
eyeglasses or contact lenses'' shall be considered in determining 
whether someone has a disability. This is an exception to the rule that 
the ameliorative effects of mitigating measures are not to be taken into 
account. ``The rationale behind this exclusion is that the use of 
ordinary eyeglasses or contact lenses, without more, is not significant 
enough to warrant protection under the ADA.'' Joint Hoyer-Sensenbrenner 
Statement at 2. Nevertheless, as discussed in greater detail below at 
Sec.  1630.10(b), if an applicant or employee is faced with a 
qualification standard that requires uncorrected vision (as the 
plaintiffs in the Sutton case were), and the applicant or employee who 
is adversely affected by the standard brings a challenge under the ADA, 
an employer will be required to demonstrate that the qualification 
standard is job related and consistent with business necessity. 2008 
Senate Statement of Managers at 9.
    The ADAAA and the EEOC's regulations both define the term ``ordinary 
eyeglasses or contact lenses'' as lenses that are ``intended to fully 
correct visual acuity or eliminate refractive error.'' So, if an 
individual with severe myopia uses eyeglasses or contact lenses that are 
intended to fully correct visual acuity or eliminate refractive error, 
they are ordinary eyeglasses or contact lenses, and therefore any 
inquiry into whether such individual is substantially limited in seeing 
or reading would be based on how the individual sees or reads with the 
benefit of the eyeglasses or contact lenses. Likewise, if the only 
visual loss an individual experiences affects the ability to see well 
enough to read, and the individual's ordinary reading glasses are 
intended to completely correct for this visual loss, the ameliorative 
effects of using the reading glasses must be considered in determining 
whether the individual is substantially limited in seeing. Additionally, 
eyeglasses or contact lenses that are the wrong prescription or an 
outdated prescription may nevertheless be ``ordinary'' eyeglasses or 
contact lenses, if a proper prescription would fully correct visual 
acuity or eliminate refractive error.
    Both the statute and the regulations distinguish ``ordinary 
eyeglasses or contact lenses'' from ``low vision devices,'' which 
function by magnifying, enhancing, or otherwise augmenting a visual 
image, and which are not considered when determining whether someone has 
a disability. The regulations do not establish a specific level of 
visual acuity (e.g., 20/20) as the basis for determining whether 
eyeglasses or contact lenses should be considered ``ordinary'' 
eyeglasses or contact lenses. Whether lenses fully correct visual acuity 
or eliminate refractive error is best determined on a case-by-case 
basis, in light of current and objective medical evidence. Moreover, 
someone who uses ordinary

[[Page 408]]

eyeglasses or contact lenses is not automatically considered to be 
outside the ADA's protection. Such an individual may demonstrate that, 
even with the use of ordinary eyeglasses or contact lenses, his vision 
is still substantially limited when compared to most people.

 Section 1630.2(j)(1)(vii) Impairments That Are Episodic or in Remission

    Section 1630.2(j)(1)(vii) states: ``An impairment that is episodic 
or in remission is a disability if it would substantially limit a major 
life activity when active.''
    An impairment that is episodic or in remission is a disability if it 
would substantially limit a major life activity in its active state. 
``This provision is intended to reject the reasoning of court decisions 
concluding that certain individuals with certain conditions--such as 
epilepsy or post traumatic stress disorder--were not protected by the 
ADA because their conditions were episodic or intermittent.'' Joint 
Hoyer-Sensenbrenner Statement at 2-3. The legislative history provides: 
``This * * * rule of construction thus rejects the reasoning of the 
courts in cases like Todd v. Academy Corp. [57 F. Supp. 2d 448, 453 
(S.D. Tex. 1999)] where the court found that the plaintiff's epilepsy, 
which resulted in short seizures during which the plaintiff was unable 
to speak and experienced tremors, was not sufficiently limiting, at 
least in part because those seizures occurred episodically. It similarly 
rejects the results reached in cases [such as Pimental v. Dartmouth-
Hitchock Clinic, 236 F. Supp. 2d 177, 182-83 (D.N.H. 2002)] where the 
courts have discounted the impact of an impairment [such as cancer] that 
may be in remission as too short-lived to be substantially limiting. It 
is thus expected that individuals with impairments that are episodic or 
in remission (e.g., epilepsy, multiple sclerosis, cancer) will be able 
to establish coverage if, when active, the impairment or the manner in 
which it manifests (e.g., seizures) substantially limits a major life 
activity.'' 2008 House Judiciary Committee Report at 19-20.
    Other examples of impairments that may be episodic include, but are 
not limited to, hypertension, diabetes, asthma, major depressive 
disorder, bipolar disorder, and schizophrenia. See 2008 House Judiciary 
Committee Report at 19-20. The fact that the periods during which an 
episodic impairment is active and substantially limits a major life 
activity may be brief or occur infrequently is no longer relevant to 
determining whether the impairment substantially limits a major life 
activity. For example, a person with post-traumatic stress disorder who 
experiences intermittent flashbacks to traumatic events is substantially 
limited in brain function and thinking.

Section 1630.2(j)(1)(viii) Substantial Limitation in Only One Major Life 
                            Activity Required

    Section 1630.2(j)(1)(viii) states: ``An impairment that 
substantially limits one major life activity need not substantially 
limit other major life activities in order to be considered a 
substantially limiting impairment.''
    The ADAAA explicitly states that an impairment need only 
substantially limit one major life activity to be considered a 
disability under the ADA. See ADAAA Section 4(a); 42 U.S.C. 12102(4)(C). 
``This responds to and corrects those courts that have required 
individuals to show that an impairment substantially limits more than 
one life activity.'' 2008 Senate Statement of Managers at 8. In 
addition, this rule of construction is ``intended to clarify that the 
ability to perform one or more particular tasks within a broad category 
of activities does not preclude coverage under the ADA.'' Id. To the 
extent cases pre-dating the applicability of the 2008 Amendments Act 
reasoned otherwise, they are contrary to the law as amended. Id. (citing 
Holt v. Grand Lake Mental Health Ctr., Inc., 443 F. 3d 762 (10th Cir. 
2006) (holding an individual with cerebral palsy who could not 
independently perform certain specified manual tasks was not 
substantially limited in her ability to perform a ``broad range'' of 
manual tasks)); See also 2008 House Judiciary Committee Report at 19 & 
n.52 (this legislatively corrects court decisions that, with regard to 
the major life activity of performing manual tasks, ``have offset 
substantial limitation in the performance of some tasks with the ability 
to perform others'' (citing Holt)).
    For example, an individual with diabetes is substantially limited in 
endocrine function and thus an individual with a disability under the 
first prong of the definition. He need not also show that he is 
substantially limited in eating to qualify for coverage under the first 
prong. An individual whose normal cell growth is substantially limited 
due to lung cancer need not also show that she is substantially limited 
in breathing or respiratory function. And an individual with HIV 
infection is substantially limited in the function of the immune system, 
and therefore is an individual with a disability without regard to 
whether his or her HIV infection substantially limits him or her in 
reproduction.
    In addition, an individual whose impairment substantially limits a 
major life activity need not additionally demonstrate a resulting 
limitation in the ability to perform activities of central importance to 
daily life in order to be considered an individual with a disability 
under Sec.  1630.2(g)(1)(i) or Sec.  1630.2(g)(1)(ii), as cases relying 
on the Supreme Court's decision in Toyota Motor Mfg.,

[[Page 409]]

Ky., Inc. v. Williams, 534 U.S. 184 (2002), had held prior to the ADA 
Amendments Act.
    Thus, for example, someone with an impairment resulting in a 20-
pound lifting restriction that lasts or is expected to last for several 
months is substantially limited in the major life activity of lifting, 
and need not also show that he is unable to perform activities of daily 
living that require lifting in order to be considered substantially 
limited in lifting. Similarly, someone with monocular vision whose depth 
perception or field of vision would be substantially limited, with or 
without any compensatory strategies the individual may have developed, 
need not also show that he is unable to perform activities of central 
importance to daily life that require seeing in order to be 
substantially limited in seeing.

Section 1630.2(j)(1)(ix) Effects of an Impairment Lasting Fewer Than Six 
                  Months Can Be Substantially Limiting

    Section 1630.2(j)(1)(ix) states: ``The six-month `transitory' part 
of the `transitory and minor' exception to `regarded as' coverage in 
Sec.  1630.2(l) does not apply to the definition of `disability' under 
Sec.  1630.2(g)(1)(i) or Sec.  1630.2(g)(1)(ii). The effects of an 
impairment lasting or expected to last fewer than six months can be 
substantially limiting within the meaning of this section.''
    The regulations include a clear statement that the definition of an 
impairment as transitory, that is, ``lasting or expected to last for six 
months or less,'' only applies to the ``regarded as'' (third) prong of 
the definition of ``disability'' as part of the ``transitory and minor'' 
defense to ``regarded as'' coverage. It does not apply to the first or 
second prong of the definition of disability. See Joint Hoyer-
Sensenbrenner Statement at 3 (``[T]here is no need for the transitory 
and minor exception under the first two prongs because it is clear from 
the statute and the legislative history that a person can only bring a 
claim if the impairment substantially limits one or more major life 
activities or the individual has a record of an impairment that 
substantially limits one or more major life activities.'').
    Therefore, an impairment does not have to last for more than six 
months in order to be considered substantially limiting under the first 
or the second prong of the definition of disability. For example, as 
noted above, if an individual has a back impairment that results in a 
20-pound lifting restriction that lasts for several months, he is 
substantially limited in the major life activity of lifting, and 
therefore covered under the first prong of the definition of disability. 
At the same time, ``[t]he duration of an impairment is one factor that 
is relevant in determining whether the impairment substantially limits a 
major life activity. Impairments that last only for a short period of 
time are typically not covered, although they may be covered if 
sufficiently severe.'' Joint Hoyer-Sensenbrenner Statement at 5.

              Section 1630.2(j)(3) Predictable Assessments

    As the regulations point out, disability is determined based on an 
individualized assessment. There is no ``per se'' disability. However, 
as recognized in the regulations, the individualized assessment of some 
kinds of impairments will virtually always result in a determination of 
disability. The inherent nature of these types of medical conditions 
will in virtually all cases give rise to a substantial limitation of a 
major life activity. Cf. Heiko v. Columbo Savings Bank, F.S.B., 434 F.3d 
249, 256 (4th Cir. 2006) (stating, even pre-ADAAA, that ``certain 
impairments are by their very nature substantially limiting: the major 
life activity of seeing, for example, is always substantially limited by 
blindness''). Therefore, with respect to these types of impairments, the 
necessary individualized assessment should be particularly simple and 
straightforward.
    This result is the consequence of the combined effect of the 
statutory changes to the definition of disability contained in the 
Amendments Act and flows from application of the rules of construction 
set forth in Sec. Sec.  1630.2(j)(1)(i)-(ix) (including the lower 
standard for ``substantially limits''; the rule that major life 
activities include major bodily functions; the principle that 
impairments that are episodic or in remission are disabilities if they 
would be substantially limiting when active; and the requirement that 
the ameliorative effects of mitigating measures (other than ordinary 
eyeglasses or contact lenses) must be disregarded in assessing whether 
an individual has a disability).
    The regulations at Sec.  1630.2(j)(3)(iii) provide examples of the 
types of impairments that should easily be found to substantially limit 
a major life activity. The legislative history states that Congress 
modeled the ADA definition of disability on the definition contained in 
the Rehabilitation Act, and said it wished to return courts to the way 
they had construed that definition. See 2008 House Judiciary Committee 
Report at 6. Describing this goal, the legislative history states that 
courts had interpreted the Rehabilitation Act definition ``broadly to 
include persons with a wide range of physical and mental impairments 
such as epilepsy, diabetes, multiple sclerosis, and intellectual and 
developmental disabilities * * * even where a mitigating measure--like 
medication or a hearing aid--might lessen their impact on the 
individual.'' Id.; See also id. at 9 (referring to individuals with 
disabilities that had been covered under the Rehabilitation Act and that 
Congress intended to include under the ADA--``people with serious health 
conditions like epilepsy, diabetes, cancer, cerebral

[[Page 410]]

palsy, multiple sclerosis, intellectual and developmental 
disabilities''); id. at n.6 (citing cases also finding that cerebral 
palsy, hearing impairments, mental retardation, heart disease, and 
vision in only one eye were disabilities under the Rehabilitation Act); 
id. at 10 (citing testimony from Rep. Steny H. Hoyer, one of the 
original lead sponsors of the ADA in 1990, stating that ``we could not 
have fathomed that people with diabetes, epilepsy, heart conditions, 
cancer, mental illnesses and other disabilities would have their ADA 
claims denied because they would be considered too functional to meet 
the definition of disability''); 2008 Senate Statement of Managers at 3 
(explaining that ``we [we]re faced with a situation in which physical or 
mental impairments that would previously [under the Rehabilitation Act] 
have been found to constitute disabilities [we]re not considered 
disabilities'' and citing individuals with impairments such as 
amputation, intellectual disabilities, epilepsy, multiple sclerosis, 
diabetes, muscular dystrophy, and cancer as examples).
    Of course, the impairments listed in subparagraph 1630.2(j)(3)(iii) 
may substantially limit a variety of other major life activities in 
addition to those listed in the regulation. For example, mobility 
impairments requiring the use of a wheelchair substantially limit the 
major life activity of walking. Diabetes may substantially limit major 
life activities such as eating, sleeping, and thinking. Major depressive 
disorder may substantially limit major life activities such as thinking, 
concentrating, sleeping, and interacting with others. Multiple sclerosis 
may substantially limit major life activities such as walking, bending, 
and lifting.
    By using the term ``brain function'' to describe the system affected 
by various mental impairments, the Commission is expressing no view on 
the debate concerning whether mental illnesses are caused by 
environmental or biological factors, but rather intends the term to 
capture functions such as the ability of the brain to regulate thought 
processes and emotions.

           Section 1630.2(j)(4) Condition, Manner, or Duration

    The regulations provide that facts such as the ``condition, manner, 
or duration'' of an individual's performance of a major life activity 
may be useful in determining whether an impairment results in a 
substantial limitation. In the legislative history of the ADAAA, 
Congress reiterated what it had said at the time of the original ADA: 
``A person is considered an individual with a disability for purposes of 
the first prong of the definition when [one or more of] the individual's 
important life activities are restricted as to the conditions, manner, 
or duration under which they can be performed in comparison to most 
people.'' 2008 Senate Statement of Managers at 7 (citing 1989 Senate 
Report at 23). According to Congress: ``We particularly believe that 
this test, which articulated an analysis that considered whether a 
person's activities are limited in condition, duration and manner, is a 
useful one. We reiterate that using the correct standard--one that is 
lower than the strict or demanding standard created by the Supreme Court 
in Toyota--will make the disability determination an appropriate 
threshold issue but not an onerous burden for those seeking 
accommodations * * *. At the same time, plaintiffs should not be 
constrained from offering evidence needed to establish that their 
impairment is substantially limiting.'' 2008 Senate Statement of 
Managers at 7.
    Consistent with the legislative history, an impairment may 
substantially limit the ``condition'' or ``manner'' under which a major 
life activity can be performed in a number of ways. For example, the 
condition or manner under which a major life activity can be performed 
may refer to the way an individual performs a major life activity. Thus, 
the condition or manner under which a person with an amputated hand 
performs manual tasks will likely be more cumbersome than the way that 
someone with two hands would perform the same tasks.
    Condition or manner may also describe how performance of a major 
life activity affects the individual with an impairment. For example, an 
individual whose impairment causes pain or fatigue that most people 
would not experience when performing that major life activity may be 
substantially limited. Thus, the condition or manner under which someone 
with coronary artery disease performs the major life activity of walking 
would be substantially limiting if the individual experiences shortness 
of breath and fatigue when walking distances that most people could walk 
without experiencing such effects. Similarly, condition or manner may 
refer to the extent to which a major life activity, including a major 
bodily function, can be performed. For example, the condition or manner 
under which a major bodily function can be performed may be 
substantially limited when the impairment ``causes the operation [of the 
bodily function] to over-produce or under-produce in some harmful 
fashion.'' See 2008 House Judiciary Committee Report at 17.
    ``Duration'' refers to the length of time an individual can perform 
a major life activity or the length of time it takes an individual to 
perform a major life activity, as compared to most people in the general 
population. For example, a person whose back or leg impairment precludes 
him or her from standing for more than two hours without significant 
pain would be substantially limited in standing, since most people can 
stand for more than two hours without significant pain.

[[Page 411]]

However, a person who can walk for ten miles continuously is not 
substantially limited in walking merely because on the eleventh mile, he 
or she begins to experience pain because most people would not be able 
to walk eleven miles without experiencing some discomfort. See 2008 
Senate Statement of Managers at 7 (citing 1989 Senate Report at 23).
    The regulations provide that in assessing substantial limitation and 
considering facts such as condition, manner, or duration, the non-
ameliorative effects of mitigating measures may be considered. Such 
``non-ameliorative effects'' could include negative side effects of 
medicine, burdens associated with following a particular treatment 
regimen, and complications that arise from surgery, among others. Of 
course, in many instances, it will not be necessary to assess the 
negative impact of a mitigating measure in determining that a particular 
impairment substantially limits a major life activity. For example, 
someone with end-stage renal disease is substantially limited in kidney 
function, and it thus is not necessary to consider the burdens that 
dialysis treatment imposes.
    Condition, manner, or duration may also suggest the amount of time 
or effort an individual has to expend when performing a major life 
activity because of the effects of an impairment, even if the individual 
is able to achieve the same or similar result as someone without the 
impairment. For this reason, the regulations include language which says 
that the outcome an individual with a disability is able to achieve is 
not determinative of whether he or she is substantially limited in a 
major life activity.
    Thus, someone with a learning disability may achieve a high level of 
academic success, but may nevertheless be substantially limited in the 
major life activity of learning because of the additional time or effort 
he or she must spend to read, write, or learn compared to most people in 
the general population. As Congress emphasized in passing the Amendments 
Act, ``[w]hen considering the condition, manner, or duration in which an 
individual with a specific learning disability performs a major life 
activity, it is critical to reject the assumption that an individual who 
has performed well academically cannot be substantially limited in 
activities such as learning, reading, writing, thinking, or speaking.'' 
2008 Senate Statement of Managers at 8. Congress noted that: ``In 
particular, some courts have found that students who have reached a high 
level of academic achievement are not to be considered individuals with 
disabilities under the ADA, as such individuals may have difficulty 
demonstrating substantial limitation in the major life activities of 
learning or reading relative to `most people.' When considering the 
condition, manner or duration in which an individual with a specific 
learning disability performs a major life activity, it is critical to 
reject the assumption that an individual who performs well academically 
or otherwise cannot be substantially limited in activities such as 
learning, reading, writing, thinking, or speaking. As such, the 
Committee rejects the findings in Price v. National Board of Medical 
Examiners, Gonzales v. National Board of Medical Examiners, and Wong v. 
Regents of University of California. The Committee believes that the 
comparison of individuals with specific learning disabilities to `most 
people' is not problematic unto itself, but requires a careful analysis 
of the method and manner in which an individual's impairment limits a 
major life activity. For the majority of the population, the basic 
mechanics of reading and writing do not pose extraordinary lifelong 
challenges; rather, recognizing and forming letters and words are 
effortless, unconscious, automatic processes. Because specific learning 
disabilities are neurologically-based impairments, the process of 
reading for an individual with a reading disability (e.g. dyslexia) is 
word-by-word, and otherwise cumbersome, painful, deliberate and slow--
throughout life. The Committee expects that individuals with specific 
learning disabilities that substantially limit a major life activity 
will be better protected under the amended Act.'' 2008 House Educ. & 
Labor Rep. at 10-11.
    It bears emphasizing that while it may be useful in appropriate 
cases to consider facts such as condition, manner, or duration, it is 
always necessary to consider and apply the rules of construction in 
Sec.  1630.2(j)(1)(i)-(ix) that set forth the elements of broad coverage 
enacted by Congress. 2008 Senate Statement of Managers at 6. 
Accordingly, while the Commission's regulations retain the concept of 
``condition, manner, or duration,'' they no longer include the 
additional list of ``substantial limitation'' factors contained in the 
previous version of the regulations (i.e., the nature and severity of 
the impairment, duration or expected duration of the impairment, and 
actual or expected permanent or long-term impact of or resulting from 
the impairment).
    Finally, ``condition, manner, or duration'' are not intended to be 
used as a rigid three-part standard that must be met to establish a 
substantial limitation. ``Condition, manner, or duration'' are not 
required ``factors'' that must be considered as a talismanic test. 
Rather, in referring to ``condition, manner, or duration,'' the 
regulations make clear that these are merely the types of facts that may 
be considered in appropriate cases. To the extent such aspects of 
limitation may be useful or relevant to show a substantial limitation in 
a particular fact pattern, some or all of them (and related facts) may 
be considered, but evidence relating to each of these facts may not be 
necessary to establish coverage.

[[Page 412]]

    At the same time, individuals seeking coverage under the first or 
second prong of the definition of disability should not be constrained 
from offering evidence needed to establish that their impairment is 
substantially limiting. See 2008 Senate Statement of Managers at 7. Of 
course, covered entities may defeat a showing of ``substantial 
limitation'' by refuting whatever evidence the individual seeking 
coverage has offered, or by offering evidence that shows an impairment 
does not impose a substantial limitation on a major life activity. 
However, a showing of substantial limitation is not defeated by facts 
related to ``condition, manner, or duration'' that are not pertinent to 
the substantial limitation the individual has proffered.

Sections 1630.2(j)(5) and (6) Examples of Mitigating Measures; Ordinary 
                      Eyeglasses or Contact Lenses

    These provisions of the regulations provide numerous examples of 
mitigating measures and the definition of ``ordinary eyeglasses or 
contact lenses.'' These definitions have been more fully discussed in 
the portions of this interpretive guidance concerning the rules of 
construction in Sec.  1630.2(j)(1).

                    Substantially Limited in Working

    The Commission has removed from the text of the regulations a 
discussion of the major life activity of working. This is consistent 
with the fact that no other major life activity receives special 
attention in the regulation, and with the fact that, in light of the 
expanded definition of disability established by the Amendments Act, 
this major life activity will be used in only very targeted situations.
    In most instances, an individual with a disability will be able to 
establish coverage by showing substantial limitation of a major life 
activity other than working; impairments that substantially limit a 
person's ability to work usually substantially limit one or more other 
major life activities. This will be particularly true in light of the 
changes made by the ADA Amendments Act. See, e.g., Corley v. Dep't of 
Veterans Affairs ex rel Principi, 218 F. App'x. 727, 738 (10th Cir. 
2007) (employee with seizure disorder was not substantially limited in 
working because he was not foreclosed from jobs involving driving, 
operating machinery, childcare, military service, and other jobs; 
employee would now be substantially limited in neurological function); 
Olds v. United Parcel Serv., Inc., 127 F. App'x. 779, 782 (6th Cir. 
2005) (employee with bone marrow cancer was not substantially limited in 
working due to lifting restrictions caused by his cancer; employee would 
now be substantially limited in normal cell growth); Williams v. 
Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 763-64 (3d Cir. 
2004) (issue of material fact concerning whether police officer's major 
depression substantially limited him in performing a class of jobs due 
to restrictions on his ability to carry a firearm; officer would now be 
substantially limited in brain function).\2\
---------------------------------------------------------------------------

    \2\ In addition, many cases previously analyzed in terms of whether 
the plaintiff was ``substantially limited in working'' will now be 
analyzed under the ``regarded as'' prong of the definition of disability 
as revised by the Amendments Act. See, e.g., Cannon v. Levi Strauss & 
Co., 29 F. App'x. 331 (6th Cir. 2002) (factory worker laid off due to 
her carpal tunnel syndrome not regarded as substantially limited in 
working because her job of sewing machine operator was not a ``broad 
class of jobs''; she would now be protected under the third prong 
because she was fired because of her impairment, carpal tunnel 
syndrome); Bridges v. City of Bossier, 92 F.3d 329 (5th Cir. 1996) 
(applicant not hired for firefighting job because of his mild hemophilia 
not regarded as substantially limited in working; applicant would now be 
protected under the third prong because he was not hired because of his 
impairment, hemophilia).
---------------------------------------------------------------------------

    In the rare cases where an individual has a need to demonstrate that 
an impairment substantially limits him or her in working, the individual 
can do so by showing that the impairment substantially limits his or her 
ability to perform a class of jobs or broad range of jobs in various 
classes as compared to most people having comparable training, skills, 
and abilities. In keeping with the findings and purposes of the 
Amendments Act, the determination of coverage under the law should not 
require extensive and elaborate assessment, and the EEOC and the courts 
are to apply a lower standard in determining when an impairment 
substantially limits a major life activity, including the major life 
activity of working, than they applied prior to the Amendments Act. The 
Commission believes that the courts, in applying an overly strict 
standard with regard to ``substantially limits'' generally, have reached 
conclusions with regard to what is necessary to demonstrate a 
substantial limitation in the major life activity of working that would 
be inconsistent with the changes now made by the Amendments Act. 
Accordingly, as used in this section the terms ``class of jobs'' and 
``broad range of jobs in various classes'' will be applied in a more 
straightforward and simple manner than they were applied by the courts 
prior to the Amendments Act.\3\
---------------------------------------------------------------------------

    \3\ In analyzing working as a major life activity in the past, some 
courts have imposed a complex and onerous standard that would be 
inappropriate under the Amendments Act. See, e.g., Duncan v. WMATA, 240 
F.3d 1110, 1115 (DC Cir. 2001) (manual laborer whose back injury 
prevented him from lifting more than 20 pounds was not substantially 
limited in working because he did not present evidence of the number and 
types of jobs available to him in the Washington area; testimony 
concerning his inquiries and applications for truck driving jobs that 
all required heavy lifting was insufficient); Taylor v. Federal Express 
Corp., 429 F.3d 461, 463-64 (4th Cir. 2005) (employee's impairment did 
not substantially limit him in working because, even though evidence 
showed that employee's injury disqualified him from working in numerous 
jobs in his geographic region, it also showed that he remained qualified 
for many other jobs). Under the Amendments Act, the determination of 
whether a person is substantially limited in working is more 
straightforward and simple than it was prior to the Act.

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

[[Page 413]]

    Demonstrating a substantial limitation in performing the unique 
aspects of a single specific job is not sufficient to establish that a 
person is substantially limited in the major life activity of working.
    A class of jobs may be determined by reference to the nature of the 
work that an individual is limited in performing (such as commercial 
truck driving, assembly line jobs, food service jobs, clerical jobs, or 
law enforcement jobs) or by reference to job-related requirements that 
an individual is limited in meeting (for example, jobs requiring 
repetitive bending, reaching, or manual tasks, jobs requiring repetitive 
or heavy lifting, prolonged sitting or standing, extensive walking, 
driving, or working under conditions such as high temperatures or noise 
levels).
    For example, if a person whose job requires heavy lifting develops a 
disability that prevents him or her from lifting more than fifty pounds 
and, consequently, from performing not only his or her existing job but 
also other jobs that would similarly require heavy lifting, that person 
would be substantially limited in working because he or she is 
substantially limited in performing the class of jobs that require heavy 
lifting.

     Section 1630.2(k) Record of a Substantially Limiting Impairment

    The second prong of the definition of ``disability'' provides that 
an individual with a record of an impairment that substantially limits 
or limited a major life activity is an individual with a disability. The 
intent of this provision, in part, is to ensure that people are not 
discriminated against because of a history of disability. For example, 
the ``record of'' provision would protect an individual who was treated 
for cancer ten years ago but who is now deemed by a doctor to be free of 
cancer, from discrimination based on that prior medical history. This 
provision also ensures that individuals are not discriminated against 
because they have been misclassified as disabled. For example, 
individuals misclassified as having learning disabilities or 
intellectual disabilities (formerly termed ``mental retardation'') are 
protected from discrimination on the basis of that erroneous 
classification. Senate Report at 23; House Labor Report at 52-53; House 
Judiciary Report at 29; 2008 House Judiciary Report at 7-8 & n.14. 
Similarly, an employee who in the past was misdiagnosed with bipolar 
disorder and hospitalized as the result of a temporary reaction to 
medication she was taking has a record of a substantially limiting 
impairment, even though she did not actually have bipolar disorder.
    This part of the definition is satisfied where evidence establishes 
that an individual has had a substantially limiting impairment. The 
impairment indicated in the record must be an impairment that would 
substantially limit one or more of the individual's major life 
activities. There are many types of records that could potentially 
contain this information, including but not limited to, education, 
medical, or employment records.
    Such evidence that an individual has a past history of an impairment 
that substantially limited a major life activity is all that is 
necessary to establish coverage under the second prong. An individual 
may have a ``record of'' a substantially limiting impairment--and thus 
be protected under the ``record of'' prong of the statute--even if a 
covered entity does not specifically know about the relevant record. Of 
course, for the covered entity to be liable for discrimination under 
title I of the ADA, the individual with a ``record of'' a substantially 
limiting impairment must prove that the covered entity discriminated on 
the basis of the record of the disability.
    The terms ``substantially limits'' and ``major life activity'' under 
the second prong of the definition of ``disability'' are to be construed 
in accordance with the same principles applicable under the ``actual 
disability'' prong, as set forth in Sec.  1630.2(j).
    Individuals who are covered under the ``record of'' prong will often 
be covered under the first prong of the definition of disability as 
well. This is a consequence of the rule of construction in the ADAAA and 
the regulations providing that an individual with an impairment that is 
episodic or in remission can be protected under the first prong if the 
impairment would be substantially limiting when active. See 42 U.S.C. 
12102(4)(D); Sec.  1630.2(j)(1)(vii). Thus, an individual who has cancer 
that is currently in remission is an

[[Page 414]]

individual with a disability under the ``actual disability'' prong 
because he has an impairment that would substantially limit normal cell 
growth when active. He is also covered by the ``record of'' prong based 
on his history of having had an impairment that substantially limited 
normal cell growth.
    Finally, this section of the EEOC's regulations makes it clear that 
an individual with a record of a disability is entitled to a reasonable 
accommodation currently needed for limitations resulting from or 
relating to the past substantially limiting impairment. This conclusion, 
which has been the Commission's long-standing position, is confirmed by 
language in the ADA Amendments Act stating that individuals covered only 
under the ``regarded as'' prong of the definition of disability are not 
entitled to reasonable accommodation. See 42 U.S.C. 12201(h). By 
implication, this means that individuals covered under the first or 
second prongs are otherwise eligible for reasonable accommodations. See 
2008 House Judiciary Committee Report at 22 (``This makes clear that the 
duty to accommodate . . . arises only when an individual establishes 
coverage under the first or second prong of the definition.''). Thus, as 
the regulations explain, an employee with an impairment that previously 
substantially limited but no longer substantially limits, a major life 
activity may need leave or a schedule change to permit him or her to 
attend follow-up or ``monitoring'' appointments from a health care 
provider.

  Section 1630.2(l) Regarded as Substantially Limited in a Major Life 
                                Activity

    Coverage under the ``regarded as'' prong of the definition of 
disability should not be difficult to establish. See 2008 House 
Judiciary Committee Report at 17 (explaining that Congress never 
expected or intended it would be a difficult standard to meet). Under 
the third prong of the definition of disability, an individual is 
``regarded as having such an impairment'' if the individual is subjected 
to an action prohibited by the ADA because of an actual or perceived 
impairment that is not ``transitory and minor.''
    This third prong of the definition of disability was originally 
intended to express Congress's understanding that ``unfounded concerns, 
mistaken beliefs, fears, myths, or prejudice about disabilities are 
often just as disabling as actual impairments, and [its] corresponding 
desire to prohibit discrimination founded on such perceptions.'' 2008 
Senate Statement of Managers at 9; 2008 House Judiciary Committee Report 
at 17 (same). In passing the original ADA, Congress relied extensively 
on the reasoning of School Board of Nassau County v. Arline \4\ ``that 
the negative reactions of others are just as disabling as the actual 
impact of an impairment.'' 2008 Senate Statement of Managers at 9. The 
ADAAA reiterates Congress's reliance on the broad views enunciated in 
that decision, and Congress ``believe[s] that courts should continue to 
rely on this standard.'' Id.
---------------------------------------------------------------------------

    \4\ 480 U.S. at 282-83.
---------------------------------------------------------------------------

    Accordingly, the ADA Amendments Act broadened the application of the 
``regarded as'' prong of the definition of disability. 2008 Senate 
Statement of Managers at 9-10. In doing so, Congress rejected court 
decisions that had required an individual to establish that a covered 
entity perceived him or her to have an impairment that substantially 
limited a major life activity. This provision is designed to restore 
Congress's intent to allow individuals to establish coverage under the 
``regarded as'' prong by showing that they were treated adversely 
because of an impairment, without having to establish the covered 
entity's beliefs concerning the severity of the impairment. Joint Hoyer-
Sensenbrenner Statement at 3.
    Thus it is not necessary, as it was prior to the ADA Amendments Act, 
for an individual to demonstrate that a covered entity perceived him as 
substantially limited in the ability to perform a major life activity in 
order for the individual to establish that he or she is covered under 
the ``regarded as'' prong. Nor is it necessary to demonstrate that the 
impairment relied on by a covered entity is (in the case of an actual 
impairment) or would be (in the case of a perceived impairment) 
substantially limiting for an individual to be ``regarded as having such 
an impairment.'' In short, to qualify for coverage under the ``regarded 
as'' prong, an individual is not subject to any functional test. See 
2008 Senate Statement of Managers at 13 (``The functional limitation 
imposed by an impairment is irrelevant to the third `regarded as' 
prong.''); 2008 House Judiciary Committee Report at 17 (that is, ``the 
individual is not required to show that the perceived impairment limits 
performance of a major life activity''). The concepts of ``major life 
activities'' and ``substantial limitation'' simply are not relevant in 
evaluating whether an individual is ``regarded as having such an 
impairment.''
    To illustrate how straightforward application of the ``regarded as'' 
prong is, if an employer refused to hire an applicant because of skin 
graft scars, the employer has regarded the applicant as an individual 
with a disability. Similarly, if an employer terminates an employee 
because he has cancer, the employer has regarded the employee as an 
individual with a disability.
    A ``prohibited action'' under the ``regarded as'' prong refers to an 
action of the type that would be unlawful under the ADA (but for any 
defenses to liability). Such prohibited

[[Page 415]]

actions include, but are not limited to, refusal to hire, demotion, 
placement on involuntary leave, termination, exclusion for failure to 
meet a qualification standard, harassment, or denial of any other term, 
condition, or privilege of employment.
    Where an employer bases a prohibited employment action on an actual 
or perceived impairment that is not ``transitory and minor,'' the 
employer regards the individual as disabled, whether or not myths, 
fears, or stereotypes about disability motivated the employer's 
decision. Establishing that an individual is ``regarded as having such 
an impairment'' does not, by itself, establish liability. Liability is 
established only if an individual meets the burden of proving that the 
covered entity discriminated unlawfully within the meaning of section 
102 of the ADA, 42 U.S.C. 12112.
    Whether a covered entity can ultimately establish a defense to 
liability is an inquiry separate from, and follows after, a 
determination that an individual was regarded as having a disability. 
Thus, for example, an employer who terminates an employee with angina 
from a manufacturing job that requires the employee to work around 
machinery, believing that the employee will pose a safety risk to 
himself or others if he were suddenly to lose consciousness, has 
regarded the individual as disabled. Whether the employer has a defense 
(e.g., that the employee posed a direct threat to himself or coworkers) 
is a separate inquiry.
    The fact that the ``regarded as'' prong requires proof of causation 
in order to show that a person is covered does not mean that proving a 
``regarded as'' claim is complex. While a person must show, for both 
coverage under the ``regarded as'' prong and for ultimate liability, 
that he or she was subjected to a prohibited action because of an actual 
or perceived impairment, this showing need only be made once. Thus, 
evidence that a covered entity took a prohibited action because of an 
impairment will establish coverage and will be relevant in establishing 
liability, although liability may ultimately turn on whether the covered 
entity can establish a defense.
    As prescribed in the ADA Amendments Act, the regulations provide an 
exception to coverage under the ``regarded as'' prong where the 
impairment on which a prohibited action is based is both transitory 
(having an actual or expected duration of six months or less) and minor. 
The regulations make clear (at Sec.  1630.2(l)(2) and Sec.  1630.15(f)) 
that this exception is a defense to a claim of discrimination. 
``Providing this exception responds to concerns raised by employer 
organizations and is reasonable under the `regarded as' prong of the 
definition because individuals seeking coverage under this prong need 
not meet the functional limitation requirement contained in the first 
two prongs of the definition.'' 2008 Senate Statement of Managers at 10; 
See also 2008 House Judiciary Committee Report at 18 (explaining that 
``absent this exception, the third prong of the definition would have 
covered individuals who are regarded as having common ailments like the 
cold or flu, and this exception responds to concerns raised by members 
of the business community regarding potential abuse of this provision 
and misapplication of resources on individuals with minor ailments that 
last only a short period of time''). However, as an exception to the 
general rule for broad coverage under the ``regarded as'' prong, this 
limitation on coverage should be construed narrowly. 2008 House 
Judiciary Committee Report at 18.
    The relevant inquiry is whether the actual or perceived impairment 
on which the employer's action was based is objectively ``transitory and 
minor,'' not whether the employer claims it subjectively believed the 
impairment was transitory and minor. For example, an employer who 
terminates an employee whom it believes has bipolar disorder cannot take 
advantage of this exception by asserting that it believed the employee's 
impairment was transitory and minor, since bipolar disorder is not 
objectively transitory and minor. At the same time, an employer that 
terminated an employee with an objectively ``transitory and minor'' hand 
wound, mistakenly believing it to be symptomatic of HIV infection, will 
nevertheless have ``regarded'' the employee as an individual with a 
disability, since the covered entity took a prohibited employment action 
based on a perceived impairment (HIV infection) that is not ``transitory 
and minor.''
    An individual covered only under the ``regarded as'' prong is not 
entitled to reasonable accommodation. 42 U.S.C. 12201(h). Thus, in cases 
where reasonable accommodation is not at issue, the third prong provides 
a more straightforward framework for analyzing whether discrimination 
occurred. As Congress observed in enacting the ADAAA: ``[W]e expect [the 
first] prong of the definition to be used only by people who are 
affirmatively seeking reasonable accommodations or modifications. Any 
individual who has been discriminated against because of an impairment--
short of being granted a reasonable accommodation or modification--
should be bringing a claim under the third prong of the definition which 
will require no showing with regard to the severity of his or her 
impairment.'' Joint Hoyer-Sensenbrenner Statement at 6.

                 Section 1630.2(m) Qualified Individual

    The ADA prohibits discrimination on the basis of disability against 
a qualified individual. The determination of whether an individual with 
a disability is ``qualified'' should be made in two steps. The first 
step is

[[Page 416]]

to determine if the individual satisfies the prerequisites for the 
position, such as possessing the appropriate educational background, 
employment experience, skills, licenses, etc. For example, the first 
step in determining whether an accountant who is paraplegic is qualified 
for a certified public accountant (CPA) position is to examine the 
individual's credentials to determine whether the individual is a 
licensed CPA. This is sometimes referred to in the Rehabilitation Act 
caselaw as determining whether the individual is ``otherwise qualified'' 
for the position. See Senate Report at 33; House Labor Report at 64-65. 
(See Sec.  1630.9 Not Making Reasonable Accommodation).
    The second step is to determine whether or not the individual can 
perform the essential functions of the position held or desired, with or 
without reasonable accommodation. The purpose of this second step is to 
ensure that individuals with disabilities who can perform the essential 
functions of the position held or desired are not denied employment 
opportunities because they are not able to perforn marginal functions of 
the position. House Labor Report at 55.
    The determination of whether an individual with a disability is 
qualified is to be made at the time of the employment decision. This 
determination should be based on the capabilities of the individual with 
a disability at the time of the employment decision, and should not be 
based on speculation that the employee may become unable in the future 
or may cause increased health insurance premiums or workers compensation 
costs.

                  Section 1630.2(n) Essential Functions

    The determination of which functions are essential may be critical 
to the determination of whether or not the individual with a disability 
is qualified. The essential functions are those functions that the 
individual who holds the position must be able to perform unaided or 
with the assistance of a reasonable accommodation.
    The inquiry into whether a particular function is essential 
initially focuses on whether the employer actually requires employees in 
the position to perform the functions that the employer asserts are 
essential. For example, an employer may state that typing is an 
essential function of a position. If, in fact, the employer has never 
required any employee in that particular position to type, this will be 
evidence that typing is not actually an essential function of the 
position.
    If the individual who holds the position is actually required to 
perform the function the employer asserts is an essential function, the 
inquiry will then center around whether removing the function would 
fundamentally alter that position. This determination of whether or not 
a particular function is essential will generally include one or more of 
the following factors listed in part 1630.
    The first factor is whether the position exists to perform a 
particular function. For example, an individual may be hired to 
proofread documents. The ability to proofread the documents would then 
be an essential function, since this is the only reason the position 
exists.
    The second factor in determining whether a function is essential is 
the number of other employees available to perform that job function or 
among whom the performance of that job function can be distributed. This 
may be a factor either because the total number of available employees 
is low, or because of the fluctuating demands of the business operation. 
For example, if an employer has a relatively small number of available 
employees for the volume of work to be performed, it may be necessary 
that each employee perform a multitude of different functions. 
Therefore, the performance of those functions by each employee becomes 
more critical and the options for reorganizing the work become more 
limited. In such a situation, functions that might not be essential if 
there were a larger staff may become essential because the staff size is 
small compared to the volume of work that has to be done. See Treadwell 
v. Alexander, 707 F.2d 473 (11th Cir. 1983).
    A similar situation might occur in a larger work force if the 
workflow follows a cycle of heavy demand for labor intensive work 
followed by low demand periods. This type of workflow might also make 
the performance of each function during the peak periods more critical 
and might limit the employer's flexibility in reorganizing operating 
procedures. See Dexler v. Tisch, 660 F. Supp. 1418 (D. Conn. 1987).
    The third factor is the degree of expertise or skill required to 
perform the function. In certain professions and highly skilled 
positions the employee is hired for his or her expertise or ability to 
perform the particular function. In such a situation, the performance of 
that specialized task would be an essential function.
    Whether a particular function is essential is a factual 
determination that must be made on a case by case basis. In determining 
whether or not a particular function is essential, all relevant evidence 
should be considered. Part 1630 lists various types of evidence, such as 
an established job description, that should be considered in determining 
whether a particular function is essential. Since the list is not 
exhaustive, other relevant evidence may also be presented. Greater 
weight will not be granted to the types of evidence included on the list 
than to the types of evidence not listed.

[[Page 417]]

    Although part 1630 does not require employers to develop or maintain 
job descriptions, written job descriptions prepared before advertising 
or interviewing applicants for the job, as well as the employer's 
judgment as to what functions are essential are among the relevant 
evidence to be considered in determining whether a particular function 
is essential. The terms of a collective bargaining agreement are also 
relevant to the determination of whether a particular function is 
essential. The work experience of past employees in the job or of 
current employees in similar jobs is likewise relevant to the 
determination of whether a particular function is essential. See H.R. 
Conf. Rep. No. 101-596, 101st Cong., 2d Sess. 58 (1990) [hereinafter 
Conference Report]; House Judiciary Report at 33-34. See also Hall v. 
U.S. Postal Service, 857 F.2d 1073 (6th Cir. 1988).
    The time spent performing the particular function may also be an 
indicator of whether that function is essential. For example, if an 
employee spends the vast majority of his or her time working at a cash 
register, this would be evidence that operating the cash register is an 
essential function. The consequences of failing to require the employee 
to perform the function may be another indicator of whether a particular 
function is essential. For example, although a firefighter may not 
regularly have to carry an unconscious adult out of a burning building, 
the consequence of failing to require the firefighter to be able to 
perform this function would be serious.
    It is important to note that the inquiry into essential functions is 
not intended to second guess an employer's business judgment with regard 
to production standards, whether qualitative or quantitative, nor to 
require employers to lower such standards. (See Sec.  1630.10 
Qualification Standards, Tests and Other Selection Criteria). If an 
employer requires its typists to be able to accurately type 75 words per 
minute, it will not be called upon to explain why an inaccurate work 
product, or a typing speed of 65 words per minute, would not be 
adequate. Similarly, if a hotel requires its service workers to 
thoroughly clean 16 rooms per day, it will not have to explain why it 
requires thorough cleaning, or why it chose a 16 room rather than a 10 
room requirement. However, if an employer does require accurate 75 word 
per minute typing or the thorough cleaning of 16 rooms, it will have to 
show that it actually imposes such requirements on its employees in 
fact, and not simply on paper. It should also be noted that, if it is 
alleged that the employer intentionally selected the particular level of 
production to exclude individuals with disabilities, the employer may 
have to offer a legitimate, nondiscriminatory reason for its selection.

               Section 1630.2(o) Reasonable Accommodation

    An individual with a disability is considered ``qualified'' if the 
individual can perform the essential functions of the position held or 
desired with or without reasonable accommodation. A covered entity is 
required, absent undue hardship, to provide reasonable accommodation to 
an otherwise qualified individual with a substantially limiting 
impairment or a ``record of'' such an impairment. However, a covered 
entity is not required to provide an accommodation to an individual who 
meets the definition of disability solely under the ``regarded as'' 
prong.
    The legislative history of the ADAAA makes clear that Congress 
included this provision in response to various court decisions that had 
held (pre-Amendments Act) that individuals who were covered solely under 
the ``regarded as'' prong were eligible for reasonable accommodations. 
In those cases, the plaintiffs had been found not to be covered under 
the first prong of the definition of disability ``because of the overly 
stringent manner in which the courts had been interpreting that prong.'' 
2008 Senate Statement of Managers at 11. The legislative history goes on 
to explain that ``[b]ecause of [Congress's] strong belief that 
accommodating individuals with disabilities is a key goal of the ADA, 
some members [of Congress] continue to have reservations about this 
provision.'' Id. However, Congress ultimately concluded that clarifying 
that individuals covered solely under the ``regarded as'' prong are not 
entitled to reasonable accommodations ``is an acceptable compromise 
given our strong expectation that such individuals would now be covered 
under the first prong of the definition [of disability], properly 
applied''). Further, individuals covered only under the third prong 
still may bring discrimination claims (other than failure-to-accommodate 
claims) under title I of the ADA. 2008 Senate Statement of Managers at 
9-10.
    In general, an accommodation is any change in the work environment 
or in the way things are customarily done that enables an individual 
with a disability to enjoy equal employment opportunities. There are 
three categories of reasonable accommodation. These are (1) 
accommodations that are required to ensure equal opportunity in the 
application process; (2) accommodations that enable the employer's 
employees with disabilities to perform the essential functions of the 
position held or desired; and (3) accommodations that enable the 
employer's employees with disabilities to enjoy equal benefits and 
privileges of employment as are enjoyed by employees without 
disabilities. It should be noted that nothing in this part prohibits 
employers or other covered entities

[[Page 418]]

from providing accommodations beyond those required by this part.
    Part 1630 lists the examples, specified in title I of the ADA, of 
the most common types of accommodation that an employer or other covered 
entity may be required to provide. There are any number of other 
specific accommodations that may be appropriate for particular 
situations but are not specifically mentioned in this listing. This 
listing is not intended to be exhaustive of accommodation possibilities. 
For example, other accommodations could include permitting the use of 
accrued paid leave or providing additional unpaid leave for necessary 
treatment, making employer provided transportation accessible, and 
providing reserved parking spaces. Providing personal assistants, such 
as a page turner for an employee with no hands or a travel attendant to 
act as a sighted guide to assist a blind employee on occasional business 
trips, may also be a reasonable accommodation. Senate Report at 31; 
House Labor Report at 62; House Judiciary Report at 39.
    It may also be a reasonable accommodation to permit an individual 
with a disability the opportunity to provide and utilize equipment, aids 
or services that an employer is not required to provide as a reasonable 
accommodation. For example, it would be a reasonable accommodation for 
an employer to permit an individual who is blind to use a guide dog at 
work, even though the employer would not be required to provide a guide 
dog for the employee.
    The accommodations included on the list of reasonable accommodations 
are generally self explanatory. However, there are a few that require 
further explanation. One of these is the accommodation of making 
existing facilities used by employees readily accessible to, and usable 
by, individuals with disabilities. This accommodation includes both 
those areas that must be accessible for the employee to perform 
essential job functions, as well as non-work areas used by the 
employer's employees for other purposes. For example, accessible break 
rooms, lunch rooms, training rooms, restrooms etc., may be required as 
reasonable accommodations.
    Another of the potential accommodations listed is ``job 
restructuring.'' An employer or other covered entity may restructure a 
job by reallocating or redistributing nonessential, marginal job 
functions. For example, an employer may have two jobs, each of which 
entails the performance of a number of marginal functions. The employer 
hires an individual with a disability who is able to perform some of the 
marginal functions of each job but not all of the marginal functions of 
either job. As an accommodation, the employer may redistribute the 
marginal functions so that all of the marginal functions that the 
individual with a disability can perform are made a part of the position 
to be filled by the individual with a disability. The remaining marginal 
functions that the individual with a disability cannot perform would 
then be transferred to the other position. See Senate Report at 31; 
House Labor Report at 62.
    An employer or other covered entity is not required to reallocate 
essential functions. The essential functions are by definition those 
that the individual who holds the job would have to perform, with or 
without reasonable accommodation, in order to be considered qualified 
for the position. For example, suppose a security guard position 
requires the individual who holds the job to inspect identification 
cards. An employer would not have to provide an individual who is 
legally blind with an assistant to look at the identification cards for 
the legally blind employee. In this situation the assistant would be 
performing the job for the individual with a disability rather than 
assisting the individual to perform the job. See Coleman v. Darden, 595 
F.2d 533 (10th Cir. 1979).
    An employer or other covered entity may also restructure a job by 
altering when and/or how an essential function is performed. For 
example, an essential function customarily performed in the early 
morning hours may be rescheduled until later in the day as a reasonable 
accommodation to a disability that precludes performance of the function 
at the customary hour. Likewise, as a reasonable accommodation, an 
employee with a disability that inhibits the ability to write, may be 
permitted to computerize records that were customarily maintained 
manually.
    Reassignment to a vacant position is also listed as a potential 
reasonable accommodation. In general, reassignment should be considered 
only when accommodation within the individual's current position would 
pose an undue hardship. Reassignment is not available to applicants. An 
applicant for a position must be qualified for, and be able to perform 
the essential functions of, the position sought with or without 
reasonable accommodation.
    Reassignment may not be used to limit, segregate, or otherwise 
discriminate against employees with disabilities by forcing 
reassignments to undesirable positions or to designated offices or 
facilities. Employers should reassign the individual to an equivalent 
position, in terms of pay, status, etc., if the individual is qualified, 
and if the position is vacant within a reasonable amount of time. A 
``reasonable amount of time'' should be determined in light of the 
totality of the circumstances. As an example, suppose there is no vacant 
position available at the time that an individual with a disability 
requests reassignment as a reasonable accommodation. The employer, 
however, knows that an equivalent position for which the individual is 
qualified, will become vacant next week. Under these circumstances, the 
employer

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should reassign the individual to the position when it becomes 
available.
    An employer may reassign an individual to a lower graded position if 
there are no accommodations that would enable the employee to remain in 
the current position and there are no vacant equivalent positions for 
which the individual is qualified with or without reasonable 
accommodation. An employer, however, is not required to maintain the 
reassigned individual with a disability at the salary of the higher 
graded position if it does not so maintain reassigned employees who are 
not disabled. It should also be noted that an employer is not required 
to promote an individual with a disability as an accommodation. See 
Senate Report at 31-32; House Labor Report at 63.
    The determination of which accommodation is appropriate in a 
particular situation involves a process in which the employer and 
employee identify the precise limitations imposed by the disability and 
explore potential accommodations that would overcome those limitations. 
This process is discussed more fully in Sec.  1630.9 Not Making 
Reasonable Accommodation.

                    Section 1630.2(p) Undue Hardship

    An employer or other covered entity is not required to provide an 
accommodation that will impose an undue hardship on the operation of the 
employer's or other covered entity's business. The term ``undue 
hardship'' means significant difficulty or expense in, or resulting 
from, the provision of the accommodation. The ``undue hardship'' 
provision takes into account the financial realities of the particular 
employer or other covered entity. However, the concept of undue hardship 
is not limited to financial difficulty. ``Undue hardship'' refers to any 
accommodation that would be unduly costly, extensive, substantial, or 
disruptive, or that would fundamentally alter the nature or operation of 
the business. See Senate Report at 35; House Labor Report at 67.
    For example, suppose an individual with a disabling visual 
impairment that makes it extremely difficult to see in dim lighting 
applies for a position as a waiter in a nightclub and requests that the 
club be brightly lit as a reasonable accommodation. Although the 
individual may be able to perform the job in bright lighting, the 
nightclub will probably be able to demonstrate that that particular 
accommodation, though inexpensive, would impose an undue hardship if the 
bright lighting would destroy the ambience of the nightclub and/or make 
it difficult for the customers to see the stage show. The fact that that 
particular accommodation poses an undue hardship, however, only means 
that the employer is not required to provide that accommodation. If 
there is another accommodation that will not create an undue hardship, 
the employer would be required to provide the alternative accommodation.
    An employer's claim that the cost of a particular accommodation will 
impose an undue hardship will be analyzed in light of the factors 
outlined in part 1630. In part, this analysis requires a determination 
of whose financial resources should be considered in deciding whether 
the accommodation is unduly costly. In some cases the financial 
resources of the employer or other covered entity in its entirety should 
be considered in determining whether the cost of an accommodation poses 
an undue hardship. In other cases, consideration of the financial 
resources of the employer or other covered entity as a whole may be 
inappropriate because it may not give an accurate picture of the 
financial resources available to the particular facility that will 
actually be required to provide the accommodation. See House Labor 
Report at 68-69; House Judiciary Report at 40-41; see also Conference 
Report at 56-57.
    If the employer or other covered entity asserts that only the 
financial resources of the facility where the individual will be 
employed should be considered, part 1630 requires a factual 
determination of the relationship between the employer or other covered 
entity and the facility that will provide the accommodation. As an 
example, suppose that an independently owned fast food franchise that 
receives no money from the franchisor refuses to hire an individual with 
a hearing impairment because it asserts that it would be an undue 
hardship to provide an interpreter to enable the individual to 
participate in monthly staff meetings. Since the financial relationship 
between the franchisor and the franchise is limited to payment of an 
annual franchise fee, only the financial resources of the franchise 
would be considered in determining whether or not providing the 
accommodation would be an undue hardship. See House Labor Report at 68; 
House Judiciary Report at 40.
    If the employer or other covered entity can show that the cost of 
the accommodation would impose an undue hardship, it would still be 
required to provide the accommodation if the funding is available from 
another source, e.g., a State vocational rehabilitation agency, or if 
Federal, State or local tax deductions or tax credits are available to 
offset the cost of the accommodation. If the employer or other covered 
entity receives, or is eligible to receive, monies from an external 
source that would pay the entire cost of the accommodation, it cannot 
claim cost as an undue hardship. In the absence of such funding, the 
individual with a disability requesting the accommodation should be 
given the option of providing the accommodation or of paying that 
portion of the cost which constitutes the undue hardship on the 
operation of the business. To the extent that such monies pay or would 
pay for only part of the cost

[[Page 420]]

of the accommodation, only that portion of the cost of the accommodation 
that could not be recovered--the final net cost to the entity--may be 
considered in determining undue hardship. (See Sec.  1630.9 Not Making 
Reasonable Accommodation). See Senate Report at 36; House Labor Report 
at 69.

                     Section 1630.2(r) Direct Threat

    An employer may require, as a qualification standard, that an 
individual not pose a direct threat to the health or safety of himself/
herself or others. Like any other qualification standard, such a 
standard must apply to all applicants or employees and not just to 
individuals with disabilities. If, however, an individual poses a direct 
threat as a result of a disability, the employer must determine whether 
a reasonable accommodation would either eliminate the risk or reduce it 
to an acceptable level. If no accommodation exists that would either 
eliminate or reduce the risk, the employer may refuse to hire an 
applicant or may discharge an employee who poses a direct threat.
    An employer, however, is not permitted to deny an employment 
opportunity to an individual with a disability merely because of a 
slightly increased risk. The risk can only be considered when it poses a 
significant risk, i.e., high probability, of substantial harm; a 
speculative or remote risk is insufficient. See Senate Report at 27; 
House Report Labor Report at 56-57; House Judiciary Report at 45.
    Determining whether an individual poses a significant risk of 
substantial harm to others must be made on a case by case basis. The 
employer should identify the specific risk posed by the individual. For 
individuals with mental or emotional disabilities, the employer must 
identify the specific behavior on the part of the individual that would 
pose the direct threat. For individuals with physical disabilities, the 
employer must identify the aspect of the disability that would pose the 
direct threat. The employer should then consider the four factors listed 
in part 1630:
    (1) The duration of the risk;
    (2) The nature and severity of the potential harm;
    (3) The likelihood that the potential harm will occur; and
    (4) The imminence of the potential harm.
    Such consideration must rely on objective, factual evidence--not on 
subjective perceptions, irrational fears, patronizing attitudes, or 
stereotypes--about the nature or effect of a particular disability, or 
of disability generally. See Senate Report at 27; House Labor Report at 
56-57; House Judiciary Report at 45-46. See also Strathie v. Department 
of Transportation, 716 F.2d 227 (3d Cir. 1983). Relevant evidence may 
include input from the individual with a disability, the experience of 
the individual with a disability in previous similar positions, and 
opinions of medical doctors, rehabilitation counselors, or physical 
therapists who have expertise in the disability involved and/or direct 
knowledge of the individual with the disability.
    An employer is also permitted to require that an individual not pose 
a direct threat of harm to his or her own safety or health. If 
performing the particular functions of a job would result in a high 
probability of substantial harm to the individual, the employer could 
reject or discharge the individual unless a reasonable accommodation 
that would not cause an undue hardship would avert the harm. For 
example, an employer would not be required to hire an individual, 
disabled by narcolepsy, who frequently and unexpectedly loses 
consciousness for a carpentry job the essential functions of which 
require the use of power saws and other dangerous equipment, where no 
accommodation exists that will reduce or eliminate the risk.
    The assessment that there exists a high probability of substantial 
harm to the individual, like the assessment that there exists a high 
probability of substantial harm to others, must be strictly based on 
valid medical analyses and/or on other objective evidence. This 
determination must be based on individualized factual data, using the 
factors discussed above, rather than on stereotypic or patronizing 
assumptions and must consider potential reasonable accommodations. 
Generalized fears about risks from the employment environment, such as 
exacerbation of the disability caused by stress, cannot be used by an 
employer to disqualify an individual with a disability. For example, a 
law firm could not reject an applicant with a history of disabling 
mental illness based on a generalized fear that the stress of trying to 
make partner might trigger a relapse of the individual's mental illness. 
Nor can generalized fears about risks to individuals with disabilities 
in the event of an evacuation or other emergency be used by an employer 
to disqualify an individual with a disability. See Senate Report at 56; 
House Labor Report at 73-74; House Judiciary Report at 45. See also 
Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985); Bentivegna v. U.S. 
Department of Labor, 694 F.2d 619 (9th Cir.1982).

   Section 1630.3 Exceptions to the Definitions of ``Disability'' and 
               ``Qualified Individual with a Disability''

           Section 1630.3 (a) through (c) Illegal Use of Drugs

    Part 1630 provides that an individual currently engaging in the 
illegal use of drugs is not an individual with a disability for purposes 
of this part when the employer or other covered entity acts on the basis 
of such use. Illegal use of drugs refers both to the use of unlawful 
drugs, such as cocaine, and to the unlawful use of prescription drugs.

[[Page 421]]

    Employers, for example, may discharge or deny employment to persons 
who illegally use drugs, on the basis of such use, without fear of being 
held liable for discrimination. The term ``currently engaging'' is not 
intended to be limited to the use of drugs on the day of, or within a 
matter of days or weeks before, the employment action in question. 
Rather, the provision is intended to apply to the illegal use of drugs 
that has occurred recently enough to indicate that the individual is 
actively engaged in such conduct. See Conference Report at 64.
    Individuals who are erroneously perceived as engaging in the illegal 
use of drugs, but are not in fact illegally using drugs are not excluded 
from the definitions of the terms ``disability'' and ``qualified 
individual with a disability.'' Individuals who are no longer illegally 
using drugs and who have either been rehabilitated successfully or are 
in the process of completing a rehabilitation program are, likewise, not 
excluded from the definitions of those terms. The term ``rehabilitation 
program'' refers to both in-patient and out-patient programs, as well as 
to appropriate employee assistance programs, professionally recognized 
self-help programs, such as Narcotics Anonymous, or other programs that 
provide professional (not necessarily medical) assistance and counseling 
for individuals who illegally use drugs. See Conference Report at 64; 
see also House Labor Report at 77; House Judiciary Report at 47.
    It should be noted that this provision simply provides that certain 
individuals are not excluded from the definitions of ``disability'' and 
``qualified individual with a disability.'' Consequently, such 
individuals are still required to establish that they satisfy the 
requirements of these definitions in order to be protected by the ADA 
and this part. An individual erroneously regarded as illegally using 
drugs, for example, would have to show that he or she was regarded as a 
drug addict in order to demonstrate that he or she meets the definition 
of ``disability'' as defined in this part.
    Employers are entitled to seek reasonable assurances that no illegal 
use of drugs is occurring or has occurred recently enough so that 
continuing use is a real and ongoing problem. The reasonable assurances 
that employers may ask applicants or employees to provide include 
evidence that the individual is participating in a drug treatment 
program and/or evidence, such as drug test results, to show that the 
individual is not currently engaging in the illegal use of drugs. An 
employer, such as a law enforcement agency, may also be able to impose a 
qualification standard that excludes individuals with a history of 
illegal use of drugs if it can show that the standard is job-related and 
consistent with business necessity. (See Sec.  1630.10 Qualification 
Standards, Tests and Other Selection Criteria) See Conference Report at 
64.

                Section 1630.4 Discrimination Prohibited

    Paragraph (a) of this provision prohibits discrimination on the 
basis of disability against a qualified individual in all aspects of the 
employment relationship. The range of employment decisions covered by 
this nondiscrimination mandate is to be construed in a manner consistent 
with the regulations implementing section 504 of the Rehabilitation Act 
of 1973.
    Paragraph (b) makes it clear that the language ``on the basis of 
disability'' is not intended to create a cause of action for an 
individual without a disability who claims that someone with a 
disability was treated more favorably (disparate treatment), or was 
provided a reasonable accommodation that an individual without a 
disability was not provided. See 2008 House Judiciary Committee Report 
at 21 (this provision ``prohibits reverse discrimination claims by 
disallowing claims based on the lack of disability''). Additionally, the 
ADA and this part do not affect laws that may require the affirmative 
recruitment or hiring of individuals with disabilities, or any voluntary 
affirmative action employers may undertake on behalf of individuals with 
disabilities. However, part 1630 is not intended to limit the ability of 
covered entities to choose and maintain a qualified workforce. Employers 
can continue to use criteria that are job related and consistent with 
business necessity to select qualified employees, and can continue to 
hire employees who can perform the essential functions of the job.
    The Amendments Act modified title I's nondiscrimination provision to 
replace the prohibition on discrimination ``against a qualified 
individual with a disability because of the disability of such 
individual'' with a prohibition on discrimination ``against a qualified 
individual on the basis of disability.'' As the legislative history of 
the ADAAA explains: ``[T]he bill modifies the ADA to conform to the 
structure of Title VII and other civil rights laws by requiring an 
individual to demonstrate discrimination `on the basis of disability' 
rather than discrimination `against an individual with a disability' 
because of the individual's disability. We hope this will be an 
important signal to both lawyers and courts to spend less time and 
energy on the minutia of an individual's impairment, and more time and 
energy on the merits of the case--including whether discrimination 
occurred because of the disability, whether an individual was qualified 
for a job or eligible for a service, and whether a reasonable 
accommodation or modification was called for under the law.'' Joint 
Hoyer-Sensenbrenner Statement at 4; See also 2008 House Judiciary Report 
at 21

[[Page 422]]

(``This change harmonizes the ADA with other civil rights laws by 
focusing on whether a person who has been discriminated against has 
proven that the discrimination was based on a personal characteristic 
(disability), not on whether he or she has proven that the 
characteristic exists.'').

          Section 1630.5 Limiting, Segregating and Classifying

    This provision and the several provisions that follow describe 
various specific forms of discrimination that are included within the 
general prohibition of Sec.  1630.4. The capabilities of qualified 
individuals must be determined on an individualized, case by case basis. 
Covered entities are also prohibited from segregating qualified 
employees into separate work areas or into separate lines of advancement 
on the basis of their disabilities.
    Thus, for example, it would be a violation of this part for an 
employer to limit the duties of an employee with a disability based on a 
presumption of what is best for an individual with such a disability, or 
on a presumption about the abilities of an individual with such a 
disability. It would be a violation of this part for an employer to 
adopt a separate track of job promotion or progression for employees 
with disabilities based on a presumption that employees with 
disabilities are uninterested in, or incapable of, performing particular 
jobs. Similarly, it would be a violation for an employer to assign or 
reassign (as a reasonable accommodation) employees with disabilities to 
one particular office or installation, or to require that employees with 
disabilities only use particular employer provided non-work facilities 
such as segregated break-rooms, lunch rooms, or lounges. It would also 
be a violation of this part to deny employment to an applicant or 
employee with a disability based on generalized fears about the safety 
of an individual with such a disability, or based on generalized 
assumptions about the absenteeism rate of an individual with such a 
disability.
    In addition, it should also be noted that this part is intended to 
require that employees with disabilities be accorded equal access to 
whatever health insurance coverage the employer provides to other 
employees. This part does not, however, affect pre-existing condition 
clauses included in health insurance policies offered by employers. 
Consequently, employers may continue to offer policies that contain such 
clauses, even if they adversely affect individuals with disabilities, so 
long as the clauses are not used as a subterfuge to evade the purposes 
of this part.
    So, for example, it would be permissible for an employer to offer an 
insurance policy that limits coverage for certain procedures or 
treatments to a specified number per year. Thus, if a health insurance 
plan provided coverage for five blood transfusions a year to all covered 
employees, it would not be discriminatory to offer this plan simply 
because a hemophiliac employee may require more than five blood 
transfusions annually. However, it would not be permissible to limit or 
deny the hemophiliac employee coverage for other procedures, such as 
heart surgery or the setting of a broken leg, even though the plan would 
not have to provide coverage for the additional blood transfusions that 
may be involved in these procedures. Likewise, limits may be placed on 
reimbursements for certain procedures or on the types of drugs or 
procedures covered (e.g. limits on the number of permitted X-rays or 
non-coverage of experimental drugs or procedures), but that limitation 
must be applied equally to individuals with and without disabilities. 
See Senate Report at 28-29; House Labor Report at 58-59; House Judiciary 
Report at 36.
    Leave policies or benefit plans that are uniformly applied do not 
violate this part simply because they do not address the special needs 
of every individual with a disability. Thus, for example, an employer 
that reduces the number of paid sick leave days that it will provide to 
all employees, or reduces the amount of medical insurance coverage that 
it will provide to all employees, is not in violation of this part, even 
if the benefits reduction has an impact on employees with disabilities 
in need of greater sick leave and medical coverage. Benefits reductions 
adopted for discriminatory reasons are in violation of this part. See 
Alexander v. Choate, 469 U.S. 287 (1985). See Senate Report at 85; House 
Labor Report at 137. (See also, the discussion at Sec.  1630.16(f) 
Health Insurance, Life Insurance, and Other Benefit Plans).

            Section 1630.6 Contractual or Other Arrangements

    An employer or other covered entity may not do through a contractual 
or other relationship what it is prohibited from doing directly. This 
provision does not affect the determination of whether or not one is a 
``covered entity'' or ``employer'' as defined in Sec.  1630.2.
    This provision only applies to situations where an employer or other 
covered entity has entered into a contractual relationship that has the 
effect of discriminating against its own employees or applicants with 
disabilities. Accordingly, it would be a violation for an employer to 
participate in a contractual relationship that results in discrimination 
against the employer's employees with disabilities in hiring, training, 
promotion, or in any other aspect of the employment relationship. This 
provision applies whether or not the employer or other covered entity 
intended for the contractual relationship to have the discriminatory 
effect.

[[Page 423]]

    Part 1630 notes that this provision applies to parties on either 
side of the contractual or other relationship. This is intended to 
highlight that an employer whose employees provide services to others, 
like an employer whose employees receive services, must ensure that 
those employees are not discriminated against on the basis of 
disability. For example, a copier company whose service representative 
is a dwarf could be required to provide a stepstool, as a reasonable 
accommodation, to enable him to perform the necessary repairs. However, 
the employer would not be required, as a reasonable accommodation, to 
make structural changes to its customer's inaccessible premises.
    The existence of the contractual relationship adds no new 
obligations under part 1630. The employer, therefore, is not liable 
through the contractual arrangement for any discrimination by the 
contractor against the contractors own employees or applicants, although 
the contractor, as an employer, may be liable for such discrimination.
    An employer or other covered entity, on the other hand, cannot evade 
the obligations imposed by this part by engaging in a contractual or 
other relationship. For example, an employer cannot avoid its 
responsibility to make reasonable accommodation subject to the undue 
hardship limitation through a contractual arrangement. See Conference 
Report at 59; House Labor Report at 59-61; House Judiciary Report at 36-
37.
    To illustrate, assume that an employer is seeking to contract with a 
company to provide training for its employees. Any responsibilities of 
reasonable accommodation applicable to the employer in providing the 
training remain with that employer even if it contracts with another 
company for this service. Thus, if the training company were planning to 
conduct the training at an inaccessible location, thereby making it 
impossible for an employee who uses a wheelchair to attend, the employer 
would have a duty to make reasonable accommodation unless to do so would 
impose an undue hardship. Under these circumstances, appropriate 
accommodations might include (1) having the training company identify 
accessible training sites and relocate the training program; (2) having 
the training company make the training site accessible; (3) directly 
making the training site accessible or providing the training company 
with the means by which to make the site accessible; (4) identifying and 
contracting with another training company that uses accessible sites; or 
(5) any other accommodation that would result in making the training 
available to the employee.
    As another illustration, assume that instead of contracting with a 
training company, the employer contracts with a hotel to host a 
conference for its employees. The employer will have a duty to ascertain 
and ensure the accessibility of the hotel and its conference facilities. 
To fulfill this obligation the employer could, for example, inspect the 
hotel first-hand or ask a local disability group to inspect the hotel. 
Alternatively, the employer could ensure that the contract with the 
hotel specifies it will provide accessible guest rooms for those who 
need them and that all rooms to be used for the conference, including 
exhibit and meeting rooms, are accessible. If the hotel breaches this 
accessibility provision, the hotel may be liable to the employer, under 
a non-ADA breach of contract theory, for the cost of any accommodation 
needed to provide access to the hotel and conference, and for any other 
costs accrued by the employer. (In addition, the hotel may also be 
independently liable under title III of the ADA). However, this would 
not relieve the employer of its responsibility under this part nor 
shield it from charges of discrimination by its own employees. See House 
Labor Report at 40; House Judiciary Report at 37.

  Section 1630.8 Relationship or Association With an Individual With a 
                               Disability

    This provision is intended to protect any qualified individual, 
whether or not that individual has a disability, from discrimination 
because that person is known to have an association or relationship with 
an individual who has a known disability. This protection is not limited 
to those who have a familial relationship with an individual with a 
disability.
    To illustrate the scope of this provision, assume that a qualified 
applicant without a disability applies for a job and discloses to the 
employer that his or her spouse has a disability. The employer thereupon 
declines to hire the applicant because the employer believes that the 
applicant would have to miss work or frequently leave work early in 
order to care for the spouse. Such a refusal to hire would be prohibited 
by this provision. Similarly, this provision would prohibit an employer 
from discharging an employee because the employee does volunteer work 
with people who have AIDS, and the employer fears that the employee may 
contract the disease.
    This provision also applies to other benefits and privileges of 
employment. For example, an employer that provides health insurance 
benefits to its employees for their dependents may not reduce the level 
of those benefits to an employee simply because that employee has a 
dependent with a disability. This is true even if the provision of such 
benefits would result in increased health insurance costs for the 
employer.
    It should be noted, however, that an employer need not provide the 
applicant or employee without a disability with a reasonable

[[Page 424]]

accommodation because that duty only applies to qualified applicants or 
employees with disabilities. Thus, for example, an employee would not be 
entitled to a modified work schedule as an accommodation to enable the 
employee to care for a spouse with a disability. See Senate Report at 
30; House Labor Report at 61-62; House Judiciary Report at 38-39.

           Section 1630.9 Not Making Reasonable Accommodation

    The obligation to make reasonable accommodation is a form of non-
discrimination. It applies to all employment decisions and to the job 
application process. This obligation does not extend to the provision of 
adjustments or modifications that are primarily for the personal benefit 
of the individual with a disability. Thus, if an adjustment or 
modification is job-related, e.g., specifically assists the individual 
in performing the duties of a particular job, it will be considered a 
type of reasonable accommodation. On the other hand, if an adjustment or 
modification assists the individual throughout his or her daily 
activities, on and off the job, it will be considered a personal item 
that the employer is not required to provide. Accordingly, an employer 
would generally not be required to provide an employee with a disability 
with a prosthetic limb, wheelchair, or eyeglasses. Nor would an employer 
have to provide as an accommodation any amenity or convenience that is 
not job-related, such as a private hot plate, hot pot or refrigerator 
that is not provided to employees without disabilities. See Senate 
Report at 31; House Labor Report at 62.
    It should be noted, however, that the provision of such items may be 
required as a reasonable accommodation where such items are specifically 
designed or required to meet job-related rather than personal needs. An 
employer, for example, may have to provide an individual with a 
disabling visual impairment with eyeglasses specifically designed to 
enable the individual to use the office computer monitors, but that are 
not otherwise needed by the individual outside of the office.
    The term ``supported employment,'' which has been applied to a wide 
variety of programs to assist individuals with severe disabilities in 
both competitive and non-competitive employment, is not synonymous with 
reasonable accommodation. Examples of supported employment include 
modified training materials, restructuring essential functions to enable 
an individual to perform a job, or hiring an outside professional (``job 
coach'') to assist in job training. Whether a particular form of 
assistance would be required as a reasonable accommodation must be 
determined on an individualized, case by case basis without regard to 
whether that assistance is referred to as ``supported employment.'' For 
example, an employer, under certain circumstances, may be required to 
provide modified training materials or a temporary ``job coach'' to 
assist in the training of an individual with a disability as a 
reasonable accommodation. However, an employer would not be required to 
restructure the essential functions of a position to fit the skills of 
an individual with a disability who is not otherwise qualified to 
perform the position, as is done in certain supported employment 
programs. See 34 CFR part 363. It should be noted that it would not be a 
violation of this part for an employer to provide any of these personal 
modifications or adjustments, or to engage in supported employment or 
similar rehabilitative programs.
    The obligation to make reasonable accommodation applies to all 
services and programs provided in connection with employment, and to all 
non-work facilities provided or maintained by an employer for use by its 
employees. Accordingly, the obligation to accommodate is applicable to 
employer sponsored placement or counseling services, and to employer 
provided cafeterias, lounges, gymnasiums, auditoriums, transportation 
and the like.
    The reasonable accommodation requirement is best understood as a 
means by which barriers to the equal employment opportunity of an 
individual with a disability are removed or alleviated. These barriers 
may, for example, be physical or structural obstacles that inhibit or 
prevent the access of an individual with a disability to job sites, 
facilities or equipment. Or they may be rigid work schedules that permit 
no flexibility as to when work is performed or when breaks may be taken, 
or inflexible job procedures that unduly limit the modes of 
communication that are used on the job, or the way in which particular 
tasks are accomplished.
    The term ``otherwise qualified'' is intended to make clear that the 
obligation to make reasonable accommodation is owed only to an 
individual with a disability who is qualified within the meaning of 
Sec.  1630.2(m) in that he or she satisfies all the skill, experience, 
education and other job-related selection criteria. An individual with a 
disability is ``otherwise qualified,'' in other words, if he or she is 
qualified for a job, except that, because of the disability, he or she 
needs a reasonable accommodation to be able to perform the job's 
essential functions.
    For example, if a law firm requires that all incoming lawyers have 
graduated from an accredited law school and have passed the bar 
examination, the law firm need not provide an accommodation to an 
individual with a visual impairment who has not met these selection 
criteria. That individual is not entitled to a reasonable accommodation 
because the individual is not ``otherwise qualified'' for the position.

[[Page 425]]

    On the other hand, if the individual has graduated from an 
accredited law school and passed the bar examination, the individual 
would be ``otherwise qualified.'' The law firm would thus be required to 
provide a reasonable accommodation, such as a machine that magnifies 
print, to enable the individual to perform the essential functions of 
the attorney position, unless the necessary accommodation would impose 
an undue hardship on the law firm. See Senate Report at 33-34; House 
Labor Report at 64-65.
    The reasonable accommodation that is required by this part should 
provide the individual with a disability with an equal employment 
opportunity. Equal employment opportunity means an opportunity to attain 
the same level of performance, or to enjoy the same level of benefits 
and privileges of employment as are available to the average similarly 
situated employee without a disability. Thus, for example, an 
accommodation made to assist an employee with a disability in the 
performance of his or her job must be adequate to enable the individual 
to perform the essential functions of the relevant position. The 
accommodation, however, does not have to be the ``best'' accommodation 
possible, so long as it is sufficient to meet the job-related needs of 
the individual being accommodated. Accordingly, an employer would not 
have to provide an employee disabled by a back impairment with a state-
of-the art mechanical lifting device if it provided the employee with a 
less expensive or more readily available device that enabled the 
employee to perform the essential functions of the job. See Senate 
Report at 35; House Labor Report at 66; see also Carter v. Bennett, 840 
F.2d 63 (DC Cir. 1988).
    Employers are obligated to make reasonable accommodation only to the 
physical or mental limitations resulting from the disability of an 
individual with a disability that is known to the employer. Thus, an 
employer would not be expected to accommodate disabilities of which it 
is unaware. If an employee with a known disability is having difficulty 
performing his or her job, an employer may inquire whether the employee 
is in need of a reasonable accommodation. In general, however, it is the 
responsibility of the individual with a disability to inform the 
employer that an accommodation is needed. When the need for an 
accommodation is not obvious, an employer, before providing a reasonable 
accommodation, may require that the individual with a disability provide 
documentation of the need for accommodation.
    See Senate Report at 34; House Labor Report at 65.

     Process of Determining the Appropriate Reasonable Accommodation

    Once an individual with a disability has requested provision of a 
reasonable accommodation, the employer must make a reasonable effort to 
determine the appropriate accommodation. The appropriate reasonable 
accommodation is best determined through a flexible, interactive process 
that involves both the employer and the individual with a disability. 
Although this process is described below in terms of accommodations that 
enable the individual with a disability to perform the essential 
functions of the position held or desired, it is equally applicable to 
accommodations involving the job application process, and to 
accommodations that enable the individual with a disability to enjoy 
equal benefits and privileges of employment. See Senate Report at 34-35; 
House Labor Report at 65-67.
    When an individual with a disability has requested a reasonable 
accommodation to assist in the performance of a job, the employer, using 
a problem solving approach, should:
    (1) Analyze the particular job involved and determine its purpose 
and essential functions;
    (2) Consult with the individual with a disability to ascertain the 
precise job-related limitations imposed by the individual's disability 
and how those limitations could be overcome with a reasonable 
accommodation;
    (3) In consultation with the individual to be accommodated, identify 
potential accommodations and assess the effectiveness each would have in 
enabling the individual to perform the essential functions of the 
position; and
    (4) Consider the preference of the individual to be accommodated and 
select and implement the accommodation that is most appropriate for both 
the employee and the employer.
    In many instances, the appropriate reasonable accommodation may be 
so obvious to either or both the employer and the individual with a 
disability that it may not be necessary to proceed in this step-by-step 
fashion. For example, if an employee who uses a wheelchair requests that 
his or her desk be placed on blocks to elevate the desktop above the 
arms of the wheelchair and the employer complies, an appropriate 
accommodation has been requested, identified, and provided without 
either the employee or employer being aware of having engaged in any 
sort of ``reasonable accommodation process.''
    However, in some instances neither the individual requesting the 
accommodation nor the employer can readily identify the appropriate 
accommodation. For example, the individual needing the accommodation may 
not know enough about the equipment used by the employer or the exact 
nature of the work site to suggest an appropriate accommodation. 
Likewise, the employer may not know enough about the individual's 
disability or the limitations that disability would impose on the 
performance of the job

[[Page 426]]

to suggest an appropriate accommodation. Under such circumstances, it 
may be necessary for the employer to initiate a more defined problem 
solving process, such as the step-by-step process described above, as 
part of its reasonable effort to identify the appropriate reasonable 
accommodation.
    This process requires the individual assessment of both the 
particular job at issue, and the specific physical or mental limitations 
of the particular individual in need of reasonable accommodation. With 
regard to assessment of the job, ``individual assessment'' means 
analyzing the actual job duties and determining the true purpose or 
object of the job. Such an assessment is necessary to ascertain which 
job functions are the essential functions that an accommodation must 
enable an individual with a disability to perform.
    After assessing the relevant job, the employer, in consultation with 
the individual requesting the accommodation, should make an assessment 
of the specific limitations imposed by the disability on the 
individual's performance of the job's essential functions. This 
assessment will make it possible to ascertain the precise barrier to the 
employment opportunity which, in turn, will make it possible to 
determine the accommodation(s) that could alleviate or remove that 
barrier.
    If consultation with the individual in need of the accommodation 
still does not reveal potential appropriate accommodations, then the 
employer, as part of this process, may find that technical assistance is 
helpful in determining how to accommodate the particular individual in 
the specific situation. Such assistance could be sought from the 
Commission, from State or local rehabilitation agencies, or from 
disability constituent organizations. It should be noted, however, that, 
as provided in Sec.  1630.9(c) of this part, the failure to obtain or 
receive technical assistance from the Federal agencies that administer 
the ADA will not excuse the employer from its reasonable accommodation 
obligation.
    Once potential accommodations have been identified, the employer 
should assess the effectiveness of each potential accommodation in 
assisting the individual in need of the accommodation in the performance 
of the essential functions of the position. If more than one of these 
accommodations will enable the individual to perform the essential 
functions or if the individual would prefer to provide his or her own 
accommodation, the preference of the individual with a disability should 
be given primary consideration. However, the employer providing the 
accommodation has the ultimate discretion to choose between effective 
accommodations, and may choose the less expensive accommodation or the 
accommodation that is easier for it to provide. It should also be noted 
that the individual's willingness to provide his or her own 
accommodation does not relieve the employer of the duty to provide the 
accommodation should the individual for any reason be unable or 
unwilling to continue to provide the accommodation.

              Reasonable Accommodation Process Illustrated

    The following example illustrates the informal reasonable 
accommodation process. Suppose a Sack Handler position requires that the 
employee pick up fifty pound sacks and carry them from the company 
loading dock to the storage room, and that a sack handler who is 
disabled by a back impairment requests a reasonable accommodation. Upon 
receiving the request, the employer analyzes the Sack Handler job and 
determines that the essential function and purpose of the job is not the 
requirement that the job holder physically lift and carry the sacks, but 
the requirement that the job holder cause the sack to move from the 
loading dock to the storage room.
    The employer then meets with the sack handler to ascertain precisely 
the barrier posed by the individual's specific disability to the 
performance of the job's essential function of relocating the sacks. At 
this meeting the employer learns that the individual can, in fact, lift 
the sacks to waist level, but is prevented by his or her disability from 
carrying the sacks from the loading dock to the storage room. The 
employer and the individual agree that any of a number of potential 
accommodations, such as the provision of a dolly, hand truck, or cart, 
could enable the individual to transport the sacks that he or she has 
lifted.
    Upon further consideration, however, it is determined that the 
provision of a cart is not a feasible effective option. No carts are 
currently available at the company, and those that can be purchased by 
the company are the wrong shape to hold many of the bulky and 
irregularly shaped sacks that must be moved. Both the dolly and the hand 
truck, on the other hand, appear to be effective options. Both are 
readily available to the company, and either will enable the individual 
to relocate the sacks that he or she has lifted. The sack handler 
indicates his or her preference for the dolly. In consideration of this 
expressed preference, and because the employer feels that the dolly will 
allow the individual to move more sacks at a time and so be more 
efficient than would a hand truck, the employer ultimately provides the 
sack handler with a dolly in fulfillment of the obligation to make 
reasonable accommodation.

                            Section 1630.9(b)

    This provision states that an employer or other covered entity 
cannot prefer or select

[[Page 427]]

a qualified individual without a disability over an equally qualified 
individual with a disability merely because the individual with a 
disability will require a reasonable accommodation. In other words, an 
individual's need for an accommodation cannot enter into the employer's 
or other covered entity's decision regarding hiring, discharge, 
promotion, or other similar employment decisions, unless the 
accommodation would impose an undue hardship on the employer. See House 
Labor Report at 70.

                            Section 1630.9(d)

    The purpose of this provision is to clarify that an employer or 
other covered entity may not compel an individual with a disability to 
accept an accommodation, where that accommodation is neither requested 
nor needed by the individual. However, if a necessary reasonable 
accommodation is refused, the individual may not be considered 
qualified. For example, an individual with a visual impairment that 
restricts his or her field of vision but who is able to read unaided 
would not be required to accept a reader as an accommodation. However, 
if the individual were not able to read unaided and reading was an 
essential function of the job, the individual would not be qualified for 
the job if he or she refused a reasonable accommodation that would 
enable him or her to read. See Senate Report at 34; House Labor Report 
at 65; House Judiciary Report at 71-72.

                            Section 1630.9(e)

    The purpose of this provision is to incorporate the clarification 
made in the ADA Amendments Act of 2008 that an individual is not 
entitled to reasonable accommodation under the ADA if the individual is 
only covered under the ``regarded as'' prong of the definition of 
``individual with a disability.'' However, if the individual is covered 
under both the ``regarded as'' prong and one or both of the other two 
prongs of the definition of disability, the ordinary rules concerning 
the provision of reasonable accommodation apply.

  Section 1630.10 Qualification Standards, Tests, and Other Selection 
                                Criteria

                     Section 1630.10(a)--In General

    The purpose of this provision is to ensure that individuals with 
disabilities are not excluded from job opportunities unless they are 
actually unable to do the job. It is to ensure that there is a fit 
between job criteria and an applicant's (or employee's) actual ability 
to do the job. Accordingly, job criteria that even unintentionally 
screen out, or tend to screen out, an individual with a disability or a 
class of individuals with disabilities because of their disability may 
not be used unless the employer demonstrates that those criteria, as 
used by the employer, are job related for the position to which they are 
being applied and are consistent with business necessity. The concept of 
``business necessity'' has the same meaning as the concept of ``business 
necessity'' under section 504 of the Rehabilitation Act of 1973.
    Selection criteria that exclude, or tend to exclude, an individual 
with a disability or a class of individuals with disabilities because of 
their disability but do not concern an essential function of the job 
would not be consistent with business necessity.
    The use of selection criteria that are related to an essential 
function of the job may be consistent with business necessity. However, 
selection criteria that are related to an essential function of the job 
may not be used to exclude an individual with a disability if that 
individual could satisfy the criteria with the provision of a reasonable 
accommodation. Experience under a similar provision of the regulations 
implementing section 504 of the Rehabilitation Act indicates that 
challenges to selection criteria are, in fact, often resolved by 
reasonable accommodation.
    This provision is applicable to all types of selection criteria, 
including safety requirements, vision or hearing requirements, walking 
requirements, lifting requirements, and employment tests. See 1989 
Senate Report at 37-39; House Labor Report at 70-72; House Judiciary 
Report at 42. As previously noted, however, it is not the intent of this 
part to second guess an employer's business judgment with regard to 
production standards. See Sec.  1630.2(n) (Essential Functions). 
Consequently, production standards will generally not be subject to a 
challenge under this provision.
    The Uniform Guidelines on Employee Selection Procedures (UGESP) 29 
CFR part 1607 do not apply to the Rehabilitation Act and are similarly 
inapplicable to this part.

    Section 1630.10(b)--Qualification Standards and Tests Related to 
                           Uncorrected Vision

    This provision allows challenges to qualification standards based on 
uncorrected vision, even where the person excluded by a standard has 
fully corrected vision with ordinary eyeglasses or contact lenses. An 
individual challenging a covered entity's application of a qualification 
standard, test, or other criterion based on uncorrected vision need not 
be a person with a disability. In order to have standing to challenge 
such a standard, test, or criterion, however, a person must be adversely 
affected by such standard, test or criterion. The Commission also 
believes that such individuals will usually be covered under the 
``regarded as'' prong of the definition of disability. Someone who wears 
eyeglasses or contact lenses

[[Page 428]]

to correct vision will still have an impairment, and a qualification 
standard that screens the individual out because of the impairment by 
requiring a certain level of uncorrected vision to perform a job will 
amount to an action prohibited by the ADA based on an impairment. (See 
Sec.  1630.2(l); appendix to Sec.  1630.2(l).)
    In either case, a covered entity may still defend a qualification 
standard requiring a certain level of uncorrected vision by showing that 
it is job related and consistent with business necessity. For example, 
an applicant or employee with uncorrected vision of 20/100 who wears 
glasses that fully correct his vision may challenge a police 
department's qualification standard that requires all officers to have 
uncorrected vision of no less than 20/40 in one eye and 20/100 in the 
other, and visual acuity of 20/20 in both eyes with correction. The 
department would then have to establish that the standard is job related 
and consistent with business necessity.

                 Section 1630.11 Administration of Tests

    The intent of this provision is to further emphasize that 
individuals with disabilities are not to be excluded from jobs that they 
can actually perform merely because a disability prevents them from 
taking a test, or negatively influences the results of a test, that is a 
prerequisite to the job. Read together with the reasonable accommodation 
requirement of section 1630.9, this provision requires that employment 
tests be administered to eligible applicants or employees with 
disabilities that impair sensory, manual, or speaking skills in formats 
that do not require the use of the impaired skill.
    The employer or other covered entity is, generally, only required to 
provide such reasonable accommodation if it knows, prior to the 
administration of the test, that the individual is disabled and that the 
disability impairs sensory, manual or speaking skills. Thus, for 
example, it would be unlawful to administer a written employment test to 
an individual who has informed the employer, prior to the administration 
of the test, that he is disabled with dyslexia and unable to read. In 
such a case, as a reasonable accommodation and in accordance with this 
provision, an alternative oral test should be administered to that 
individual. By the same token, a written test may need to be substituted 
for an oral test if the applicant taking the test is an individual with 
a disability that impairs speaking skills or impairs the processing of 
auditory information.
    Occasionally, an individual with a disability may not realize, prior 
to the administration of a test, that he or she will need an 
accommodation to take that particular test. In such a situation, the 
individual with a disability, upon becoming aware of the need for an 
accommodation, must so inform the employer or other covered entity. For 
example, suppose an individual with a disabling visual impairment does 
not request an accommodation for a written examination because he or she 
is usually able to take written tests with the aid of his or her own 
specially designed lens. When the test is distributed, the individual 
with a disability discovers that the lens is insufficient to distinguish 
the words of the test because of the unusually low color contrast 
between the paper and the ink, the individual would be entitled, at that 
point, to request an accommodation. The employer or other covered entity 
would, thereupon, have to provide a test with higher contrast, schedule 
a retest, or provide any other effective accommodation unless to do so 
would impose an undue hardship.
    Other alternative or accessible test modes or formats include the 
administration of tests in large print or braille, or via a reader or 
sign interpreter. Where it is not possible to test in an alternative 
format, the employer may be required, as a reasonable accommodation, to 
evaluate the skill to be tested in another manner (e.g., through an 
interview, or through education license, or work experience 
requirements). An employer may also be required, as a reasonable 
accommodation, to allow more time to complete the test. In addition, the 
employer's obligation to make reasonable accommodation extends to 
ensuring that the test site is accessible. (See Sec.  1630.9 Not Making 
Reasonable Accommodation) See Senate Report at 37-38; House Labor Report 
at 70-72; House Judiciary Report at 42; see also Stutts v. Freeman, 694 
F.2d 666 (11th Cir. 1983); Crane v. Dole, 617 F. Supp. 156 (D.D.C. 
1985).
    This provision does not require that an employer offer every 
applicant his or her choice of test format. Rather, this provision only 
requires that an employer provide, upon advance request, alternative, 
accessible tests to individuals with disabilities that impair sensory, 
manual, or speaking skills needed to take the test.
    This provision does not apply to employment tests that require the 
use of sensory, manual, or speaking skills where the tests are intended 
to measure those skills. Thus, an employer could require that an 
applicant with dyslexia take a written test for a particular position if 
the ability to read is the skill the test is designed to measure. 
Similarly, an employer could require that an applicant complete a test 
within established time frames if speed were one of the skills for which 
the applicant was being tested. However, the results of such a test 
could not be used to exclude an individual with a disability unless the 
skill was necessary to perform an essential function of the position and 
no reasonable accommodation was available to enable the individual to 
perform that function, or the necessary accommodation would impose an 
undue hardship.

[[Page 429]]

      Section 1630.13 Prohibited Medical Examinations and Inquiries

        Section 1630.13(a) Pre-employment Examination or Inquiry

    This provision makes clear that an employer cannot inquire as to 
whether an individual has a disability at the pre-offer stage of the 
selection process. Nor can an employer inquire at the pre-offer stage 
about an applicant's workers' compensation history.
    Employers may ask questions that relate to the applicant's ability 
to perform job-related functions. However, these questions should not be 
phrased in terms of disability. An employer, for example, may ask 
whether the applicant has a driver's license, if driving is a job 
function, but may not ask whether the applicant has a visual disability. 
Employers may ask about an applicant's ability to perform both essential 
and marginal job functions. Employers, though, may not refuse to hire an 
applicant with a disability because the applicant's disability prevents 
him or her from performing marginal functions. See Senate Report at 39; 
House Labor Report at 72-73; House Judiciary Report at 42-43.

         Section 1630.13(b) Examination or Inquiry of Employees

    The purpose of this provision is to prevent the administration to 
employees of medical tests or inquiries that do not serve a legitimate 
business purpose. For example, if an employee suddenly starts to use 
increased amounts of sick leave or starts to appear sickly, an employer 
could not require that employee to be tested for AIDS, HIV infection, or 
cancer unless the employer can demonstrate that such testing is job-
related and consistent with business necessity. See Senate Report at 39; 
House Labor Report at 75; House Judiciary Report at 44.

    Section 1630.14 Medical Examinations and Inquiries Specifically 
                                Permitted

                Section 1630.14(a) Pre-employment Inquiry

    Employers are permitted to make pre-employment inquiries into the 
ability of an applicant to perform job-related functions. This inquiry 
must be narrowly tailored. The employer may describe or demonstrate the 
job function and inquire whether or not the applicant can perform that 
function with or without reasonable accommodation. For example, an 
employer may explain that the job requires assembling small parts and 
ask if the individual will be able to perform that function, with or 
without reasonable accommodation. See Senate Report at 39; House Labor 
Report at 73; House Judiciary Report at 43.
    An employer may also ask an applicant to describe or to demonstrate 
how, with or without reasonable accommodation, the applicant will be 
able to perform job-related functions. Such a request may be made of all 
applicants in the same job category regardless of disability. Such a 
request may also be made of an applicant whose known disability may 
interfere with or prevent the performance of a job-related function, 
whether or not the employer routinely makes such a request of all 
applicants in the job category. For example, an employer may ask an 
individual with one leg who applies for a position as a home washing 
machine repairman to demonstrate or to explain how, with or without 
reasonable accommodation, he would be able to transport himself and his 
tools down basement stairs. However, the employer may not inquire as to 
the nature or severity of the disability. Therefore, for example, the 
employer cannot ask how the individual lost the leg or whether the loss 
of the leg is indicative of an underlying impairment.
    On the other hand, if the known disability of an applicant will not 
interfere with or prevent the performance of a job-related function, the 
employer may only request a description or demonstration by the 
applicant if it routinely makes such a request of all applicants in the 
same job category. So, for example, it would not be permitted for an 
employer to request that an applicant with one leg demonstrate his 
ability to assemble small parts while seated at a table, if the employer 
does not routinely request that all applicants provide such a 
demonstration.
    An employer that requires an applicant with a disability to 
demonstrate how he or she will perform a job-related function must 
either provide the reasonable accommodation the applicant needs to 
perform the function or permit the applicant to explain how, with the 
accommodation, he or she will perform the function. If the job-related 
function is not an essential function, the employer may not exclude the 
applicant with a disability because of the applicant's inability to 
perform that function. Rather, the employer must, as a reasonable 
accommodation, either provide an accommodation that will enable the 
individual to perform the function, transfer the function to another 
position, or exchange the function for one the applicant is able to 
perform.
    An employer may not use an application form that lists a number of 
potentially disabling impairments and ask the applicant to check any of 
the impairments he or she may have. In addition, as noted above, an 
employer may not ask how a particular individual became disabled or the 
prognosis of the individual's disability. The employer is also 
prohibited from asking how often the individual will require leave for 
treatment or

[[Page 430]]

use leave as a result of incapacitation because of the disability. 
However, the employer may state the attendance requirements of the job 
and inquire whether the applicant can meet them.
    An employer is permitted to ask, on a test announcement or 
application form, that individuals with disabilities who will require a 
reasonable accommodation in order to take the test so inform the 
employer within a reasonable established time period prior to the 
administration of the test. The employer may also request that 
documentation of the need for the accommodation accompany the request. 
Requested accommodations may include accessible testing sites, modified 
testing conditions and accessible test formats. (See Sec.  1630.11 
Administration of Tests).
    Physical agility tests are not medical examinations and so may be 
given at any point in the application or employment process. Such tests 
must be given to all similarly situated applicants or employees 
regardless of disability. If such tests screen out or tend to screen out 
an individual with a disability or a class of individuals with 
disabilities, the employer would have to demonstrate that the test is 
job-related and consistent with business necessity and that performance 
cannot be achieved with reasonable accommodation. (See Sec.  1630.9 Not 
Making Reasonable Accommodation: Process of Determining the Appropriate 
Reasonable Accommodation).
    As previously noted, collecting information and inviting individuals 
to identify themselves as individuals with disabilities as required to 
satisfy the affirmative action requirements of section 503 of the 
Rehabilitation Act is not restricted by this part. (See Sec.  1630.1 (b) 
and (c) Applicability and Construction).

           Section 1630.14(b) Employment Entrance Examination

    An employer is permitted to require post-offer medical examinations 
before the employee actually starts working. The employer may condition 
the offer of employment on the results of the examination, provided that 
all entering employees in the same job category are subjected to such an 
examination, regardless of disability, and that the confidentiality 
requirements specified in this part are met.
    This provision recognizes that in many industries, such as air 
transportation or construction, applicants for certain positions are 
chosen on the basis of many factors including physical and psychological 
criteria, some of which may be identified as a result of post-offer 
medical examinations given prior to entry on duty. Only those employees 
who meet the employer's physical and psychological criteria for the job, 
with or without reasonable accommodation, will be qualified to receive 
confirmed offers of employment and begin working.
    Medical examinations permitted by this section are not required to 
be job-related and consistent with business necessity. However, if an 
employer withdraws an offer of employment because the medical 
examination reveals that the employee does not satisfy certain 
employment criteria, either the exclusionary criteria must not screen 
out or tend to screen out an individual with a disability or a class of 
individuals with disabilities, or they must be job-related and 
consistent with business necessity. As part of the showing that an 
exclusionary criteria is job-related and consistent with business 
necessity, the employer must also demonstrate that there is no 
reasonable accommodation that will enable the individual with a 
disability to perform the essential functions of the job. See Conference 
Report at 59-60; Senate Report at 39; House Labor Report at 73-74; House 
Judiciary Report at 43.
    As an example, suppose an employer makes a conditional offer of 
employment to an applicant, and it is an essential function of the job 
that the incumbent be available to work every day for the next three 
months. An employment entrance examination then reveals that the 
applicant has a disabling impairment that, according to reasonable 
medical judgment that relies on the most current medical knowledge, will 
require treatment that will render the applicant unable to work for a 
portion of the three month period. Under these circumstances, the 
employer would be able to withdraw the employment offer without 
violating this part.
    The information obtained in the course of a permitted entrance 
examination or inquiry is to be treated as a confidential medical record 
and may only be used in a manner not inconsistent with this part. State 
workers' compensation laws are not preempted by the ADA or this part. 
These laws require the collection of information from individuals for 
State administrative purposes that do not conflict with the ADA or this 
part. Consequently, employers or other covered entities may submit 
information to State workers' compensation offices or second injury 
funds in accordance with State workers' compensation laws without 
violating this part.
    Consistent with this section and with Sec.  1630.16(f) of this part, 
information obtained in the course of a permitted entrance examination 
or inquiry may be used for insurance purposes described in Sec.  
1630.16(f).

               Section 1630.14(c) Examination of Employees

    This provision permits employers to make inquiries or require 
medical examinations (fitness for duty exams) when there is a need to 
determine whether an employee is still able to perform the essential 
functions of his or her job. The provision permits employers or other 
covered entities to make inquiries

[[Page 431]]

or require medical examinations necessary to the reasonable 
accommodation process described in this part. This provision also 
permits periodic physicals to determine fitness for duty or other 
medical monitoring if such physicals or monitoring are required by 
medical standards or requirements established by Federal, State, or 
local law that are consistent with the ADA and this part (or in the case 
of a Federal standard, with section 504 of the Rehabilitation Act) in 
that they are job-related and consistent with business necessity.
    Such standards may include Federal safety regulations that regulate 
bus and truck driver qualifications, as well as laws establishing 
medical requirements for pilots or other air transportation personnel. 
These standards also include health standards promulgated pursuant to 
the Occupational Safety and Health Act of 1970, the Federal Coal Mine 
Health and Safety Act of 1969, or other similar statutes that require 
that employees exposed to certain toxic and hazardous substances be 
medically monitored at specific intervals. See House Labor Report at 74-
75.
    The information obtained in the course of such examination or 
inquiries is to be treated as a confidential medical record and may only 
be used in a manner not inconsistent with this part.

                  Section 1630.14(d)(1): Health Program

    Part 1630 permits voluntary medical examinations and inquiries, 
including voluntary medical histories, as part of employee health 
programs. These health programs include many wellness programs, which 
often incorporate, for example: A health risk assessment (HRA) 
consisting of a medical questionnaire, with or without medical 
examinations, to determine risk factors; medical screening for high 
blood pressure, cholesterol, or glucose; classes to help employees stop 
smoking or lose weight; physical activities in which employees can 
engage (such as walking or exercising daily); coaching to help employees 
meet health goals; and/or the administration of flu shots. Many 
employers offer wellness programs as part of a group health plan as a 
means of improving overall employee health with the goal of realizing 
lower health care costs. Other employers offer wellness programs that 
are available to all employees, regardless of whether they are in 
enrolled in a group health plan, while some employers offer wellness 
programs but do not sponsor a group health plan or group health 
insurance.
    It is not sufficient for a covered entity merely to claim that its 
collection of medical information is part of a wellness program; the 
program, including any disability-related inquiries and medical 
examinations that are part of such program, must be reasonably designed 
to promote health or prevent disease. In order to meet this standard, 
the program must have a reasonable chance of improving the health of, or 
preventing disease in, participating employees, and must not be overly 
burdensome, a subterfuge for violating the ADA or other laws prohibiting 
employment discrimination, or highly suspect in the method chosen to 
promote health or prevent disease. Asking employees to complete a HRA 
and/or undergo a biometric screening for the purpose of alerting them to 
health risks of which they may have been unaware would meet this 
standard, as would the use of aggregate information from HRAs by an 
employer to design and offer health programs aimed at specific 
conditions identified by the information collected. An employer might 
conclude from aggregate information, for example, that a significant 
number of its employees have diabetes or high blood pressure and might 
design specific programs that would enable employees to treat or manage 
these conditions. On the other hand, collecting medical information on a 
health questionnaire without providing employees meaningful follow-up 
information or advice, such as providing feedback about specific risk 
factors or using aggregate information to design programs or treat any 
specific conditions, would not be reasonably designed to promote health 
or prevent disease. Additionally, a program is not reasonably designed 
to promote health or prevent disease if it imposes, as a condition to 
obtaining a reward, an overly burdensome amount of time for 
participation, requires unreasonably intrusive procedures, or places 
significant costs related to medical examinations on employees. A 
program also is not reasonably designed if it exists mainly to shift 
costs from the covered entity to targeted employees based on their 
health or simply to give an employer information to estimate future 
health care costs.

           Section 1630.14(d)(2): Definition of ``Voluntary''

    Section 1630.14(d)(2)(i) through (iii) of this part says that 
participation in employee health programs that include disability-
related inquiries or medical examinations (such as disability-related 
inquiries or medical examinations that are part of a HRA) must be 
voluntary in order to comply with the ADA. This means that covered 
entities may not require employees to participate in such programs, may 
not deny employees access to health coverage under any of their group 
health plans or particular benefits packages within a group health plan 
for non-participation, may not limit coverage under their health plans 
for such employees, except to the extent the limitation (e.g., having to 
pay a higher deductible) may be the result of forgoing a financial 
incentive permissible under Sec.  1630.14(d)(3), and may not take any 
other adverse action against employees who

[[Page 432]]

choose not to answer disability-related inquiries or undergo medical 
examinations. Additionally, covered entities may not retaliate against, 
interfere with, coerce, intimidate, or threaten employees within the 
meaning of Section 503 of the ADA, codified at 42 U.S.C. 12203. For 
example, an employer may not retaliate against an employee who declines 
to participate in a health program or files a charge with the EEOC 
concerning the program, may not coerce an employee into participating in 
a health program or into giving the employer access to medical 
information collected as part of the program, and may not threaten an 
employee with discipline if the employee does not participate in a 
health program. See 42 U.S.C. 12203(a),(b); 29 CFR 1630.12.
    Section 1630.14(d)(2)(iv) of this part also states that for a 
wellness program that includes disability-related inquiries or medical 
examinations to be voluntary, an employer must provide employees with a 
notice clearly explaining what medical information will be obtained, how 
the medical information will be used, who will receive the medical 
information, the restrictions on its disclosure, and the methods the 
covered entity uses to prevent improper disclosure of medical 
information.

            Section 1630.14(d)(3): Limitations on Incentives

    The ADA, interpreted in light of the Health Insurance Portability 
and Accountability Act (HIPAA), as amended by the Affordable Care Act, 
does not prohibit the use of incentives to encourage participation in 
employee health programs, but it does place limits on them. In general, 
the use of limited incentives (which include both financial and in-kind 
incentives, such as time-off awards, prizes, or other items of value) in 
a wellness program will not render a wellness program involuntary. 
However, the maximum allowable incentive for a participatory program 
that involves asking disability-related questions or conducting medical 
examinations (such as having employees complete a HRA) or for a health-
contingent program that requires participants to satisfy a standard 
related to a health factor may not exceed: (i) 30 Percent of the total 
cost of self-only coverage (including both the employee's and employer's 
contribution) where participation in a wellness program depends on 
enrollment in a particular health plan; (ii) 30 percent of the total 
cost of self-only coverage when the covered entity offers only one group 
health plan and participation in a wellness program is offered to all 
employees regardless of whether they are enrolled in the plan; (iii) 30 
percent of the total cost of the lowest cost self-only coverage under a 
major medical group health plan where the covered entity offers more 
than one group health plan but participation in the wellness program is 
offered to employees whether or not they are enrolled in a particular 
plan; or (iv) 30 percent of the cost to a 40-year-old non-smoker of the 
second lowest cost Silver Plan (available under the Affordable Care Act) 
in the location that the employer identifies as its principal place of 
business, where the covered entity does not offer a group health plan or 
group health insurance coverage. The following examples illustrate how 
to calculate the permissible incentive limits in each of these 
situations.
    Where an employee participates in a wellness program that is only 
offered to employees enrolled in a group health plan and the total cost 
of self-only coverage under that plan is $6,000 annually, the maximum 
allowable incentive is $1,800 (30 percent of $6,000). The same incentive 
would be available if this employer offers only one group health plan 
and allowed employees to participate in the wellness program regardless 
of whether they are enrolled in the health plan. Suppose, however, an 
employer offers three different group health plans with the total cost 
of self-only coverage under its major medical group health plans ranging 
in cost from $5,000 to $8,000 annually and wants to offer employees 
incentives for participating in a wellness program that includes a HRA 
and medical examination regardless of whether they are enrolled in a 
particular health plan. In that case, the maximum allowable incentive is 
$1,500 (30 percent of the total cost of the lowest cost self-only 
coverage under a major medical group health plan). Finally, if the 
employer does not offer health insurance but wants to offer an incentive 
for employees to participate in a wellness program that includes 
disability-related inquiries or medical examinations, the maximum 
allowable incentive is 30 percent of what it would cost a 40-year-old 
non-smoker to purchase the second lowest cost Silver Plan on the federal 
or state health care Exchange in the location that the employer 
identifies as its principal place of business. Thus, if such a plan 
would cost $4,000, the maximum allowable incentive would be $1,200.
    Not all wellness programs require disability-related inquiries or 
medical examinations in order to earn an incentive. Examples may include 
attending nutrition, weight loss, or smoking cessation classes. These 
types of programs are not subject to the ADA incentive rules discussed 
here, although programs that qualify as health-contingent programs (such 
as an activity-based program that requires employees to exercise or 
walk) and that are part of a group health plan are subject to HIPAA 
incentive limits.
    Under the ADA, regardless of whether a wellness program includes 
disability-related

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inquiries or medical examinations, reasonable accommodations must be 
provided, absent undue hardship, to enable employees with disabilities 
to earn whatever financial incentive an employer or other covered entity 
offers. Providing a reasonable alternative standard and notice to the 
employee of the availability of a reasonable alternative under HIPAA and 
the Affordable Care Act as part of a health-contingent program would 
generally fulfill a covered entity's obligation to provide a reasonable 
accommodation under the ADA. However, under the ADA, a covered entity 
would have to provide a reasonable accommodation for a participatory 
program even though HIPAA and the Affordable Care Act do not require 
such programs to offer a reasonable alternative standard, and reasonable 
alternative standards are not required at all if the program is not part 
of a group health plan.
    For example, an employer that offers employees a financial incentive 
to attend a nutrition class, regardless of whether they reach a healthy 
weight as a result, would have to provide a sign language interpreter so 
that an employee who is deaf and who needs an interpreter to understand 
the information communicated in the class could earn the incentive, as 
long as providing the interpreter would not result in undue hardship to 
the employer. Similarly, an employer would, absent undue hardship, have 
to provide written materials that are part of a wellness program in an 
alternate format, such as in large print or on computer disk, for 
someone with a vision impairment. An individual with a disability also 
may need a reasonable accommodation to participate in a wellness program 
that includes disability-related inquiries or medical examinations, 
including a waiver of a generally applicable requirement. For example, 
an employer that offers a reward for completing a biometric screening 
that includes a blood draw would have to provide an alternative test (or 
certification requirement) so that an employee with a disability that 
makes drawing blood dangerous can participate and earn the incentive.

   Application of Section 1630.14(d)(3) to Smoking Cessation Programs

    Regulations implementing the wellness provisions in HIPAA, as 
amended by the Affordable Care Act, permit covered entities to offer 
incentives as high as 50 percent of the total cost of self-only coverage 
for tobacco-related wellness programs, such as smoking cessation 
programs. As noted above, the incentive rules in paragraph 1630.14(d)(3) 
apply only to employee health programs that include disability-related 
inquiries or medical examinations. A smoking cessation program that 
merely asks employees whether or not they use tobacco (or whether or not 
they ceased using tobacco upon completion of the program) is not an 
employee health program that includes disability-related inquiries or 
medical examinations. The incentive rules in Sec.  1630.14(d)(3) would 
not apply to incentives a covered entity could offer in connection with 
such a program. Therefore, a covered entity would be permitted to offer 
incentives as high as 50 percent of the cost of self-only coverage for 
that smoking cessation program, pursuant to the regulations implementing 
HIPAA, as amended by the Affordable Care Act, without implicating the 
disability-related inquiries or medical examinations provision of the 
ADA. The ADA nondiscrimination requirements, such as the need to provide 
reasonable accommodations that provide employees with disabilities equal 
access to benefits, would still apply.
    By contrast, a biometric screening or other medical examination that 
tests for the presence of nicotine or tobacco is a medical examination. 
The ADA financial incentive rules discussed supra would therefore apply 
to a wellness program that included such a screening.

          Section 1630.14(d)(4)(i) Through (v): Confidentiality

    Paragraphs (d)(4)(i) and (ii) say that medical records developed in 
the course of providing voluntary health services to employees, 
including wellness programs, must be maintained in a confidential manner 
and must not be used for any purpose in violation of this part, such as 
limiting insurance eligibility. See House Labor Report at 75; House 
Judiciary Report at 43-44. Further, although an exception to 
confidentiality that tracks the language of the ADA itself states that 
information gathered in the course of providing employees with voluntary 
health services may be disclosed to managers and supervisors in 
connection with necessary work restrictions or accommodations, such an 
exception would rarely, if ever, apply to medical information collected 
as part of a wellness program, and sharing such information could be 
inconsistent with the definition of an employee health program. In 
addition, as described more fully below, certain disclosures that are 
permitted for employee health programs generally may not be permissible 
under the HIPAA Privacy Rule for wellness programs that are part of a 
group health plan without the written authorization of the individual.
    Section 1630.14(d)(4)(iii) says that a covered entity only may 
receive information collected as part of an employee health program in 
aggregate form that does not disclose, and

[[Page 434]]

is not reasonably likely to disclose, the identity of specific 
individuals except as is necessary to administer the plan or as 
permitted by Sec.  1630.14(d)(4)(i). Notably, both employers that 
sponsor employee health programs and the employee health programs 
themselves (if they are administered by the employer or qualify as the 
employer's agent) are responsible for ensuring compliance with this 
provision.
    Where a wellness program is part of a group health plan, the 
individually identifiable health information collected from or created 
about participants as part of the wellness program is protected health 
information (PHI) under the HIPAA Privacy, Security, and Breach 
Notification Rules. (45 CFR parts 160 and 164.) The HIPAA Privacy, 
Security, and Breach Notification Rules apply to HIPAA covered entities, 
which include group health plans, and generally protect identifiable 
health information maintained by or on behalf of such entities, by among 
other provisions, setting limits and conditions on the uses and 
disclosures that may be made of such information.
    PHI is information, including demographic data that identifies the 
individual or for which there is a reasonable basis to believe it can be 
used to identify the individual (including, for example, address, birth 
date, or social security number), and that relates to: An individual's 
past, present, or future physical or mental health or condition; the 
provision of health care to the individual; or the past, present, or 
future payment for the provision of health care to the individual. HIPAA 
covered entities may not disclose PHI to an individual's employer except 
in limited circumstances. For example, as discussed more fully below, an 
employer that sponsors a group health plan may receive PHI to administer 
the plan (without authorization of the individual), but only if the 
employer certifies to the plan that it will safeguard the information 
and not improperly use or share the information. See Standards for 
Privacy of Individually Identifiable Health Information (``Privacy 
Rule''), Public Law 104-191; 45 CFR part 160 and Part 164, Subparts A 
and E. However, there are no restrictions on the use or disclosure of 
health information that has been de-identified in accordance with the 
HIPAA Privacy Rule. Individuals may file a complaint with HHS if they 
believe a health plan fails to comply with privacy requirements and HHS 
may require corrective action or impose civil money penalties for 
noncompliance.
    A wellness program that is part of a HIPAA covered entity likely 
will be able to comply with its obligation under Sec.  
1630.14(d)(4)(iii) by complying with the HIPAA Privacy Rule. An employer 
that is a health plan sponsor and receives individually identifiable 
health information from or on behalf of the group health plan, as 
permitted by HIPAA when the plan sponsor is administering aspects of the 
plan, may generally satisfy its requirement to comply with Sec.  
1630.14(d)(4)(iii) by certifying to the group health plan, as provided 
by 45 CFR 164.504(f)(2)(ii), that it will not use or disclose the 
information for purposes not permitted by its plan documents and the 
Privacy Rule, such as for employment purposes, and abiding by that 
certification. Further, if an employer is not performing plan 
administration functions on behalf of the group health plan, it may 
receive aggregate information from the wellness program under Sec.  
1630.14(d)(4)(iii) only so long as the information is de-identified in 
accordance with the HIPAA Privacy Rule. In addition, disclosures of 
protected health information from the wellness program may only be made 
in accordance with the Privacy Rule. Thus, certain disclosures that are 
otherwise permitted under Sec.  1630.14(d)(4)(i) and (ii) for employee 
health programs generally may not be permissible under the Privacy Rule 
for wellness programs that are part of a group health plan without the 
written authorization of the individual. For example, the ADA allows 
disclosures of medical information when an employee needs a reasonable 
accommodation or requires emergency treatment at work.
    Section 1630.14(d)(4)(iv) says that a covered entity may not require 
an employee to agree to the sale, exchange, sharing, transfer, or other 
disclosure of medical information (except to the extent permitted by 
this part to carry out specific activities related to the wellness 
program), or waive confidentiality protections available under the ADA 
as a condition for participating in a wellness program or receiving a 
wellness program incentive.
    Employers and wellness program providers must take steps to protect 
the confidentiality of employee medical information provided as part of 
an employee health program. Some of the following steps may be required 
by law; others may be best practices. It is critical to properly train 
all individuals who handle medical information about the requirements of 
the ADA and, as applicable, HIPAA's privacy, security, and breach 
requirements and any other privacy laws. Employers and program providers 
should have clear privacy policies and procedures related to the 
collection, storage, and disclosure of medical information. On-line 
systems and other technology should guard against unauthorized access, 
such as through use of encryption for medical information stored 
electronically. Breaches of confidentiality should be reported to 
affected employees immediately and should be thoroughly investigated. 
Employers should make clear that individuals responsible for disclosures 
of confidential medical information will be disciplined and should 
consider discontinuing

[[Page 435]]

relationships with vendors responsible for breaches of confidentiality.
    Individuals who handle medical information that is part of an 
employee health program should not be responsible for making decisions 
related to employment, such as hiring, termination, or discipline. Use 
of a third-party vendor that maintains strict confidentiality and data 
security procedures may reduce the risk that medical information will be 
disclosed to individuals who make employment decisions, particularly for 
employers whose organizational structure makes it difficult to provide 
adequate safeguards. If an employer uses a third-party vendor, it should 
be familiar with the vendor's privacy policies for ensuring the 
confidentiality of medical information. Employers that administer their 
own wellness programs need adequate firewalls in place to prevent 
unintended disclosure. If individuals who handle medical information 
obtained through a wellness program do act as decision-makers (which may 
be the case for a small employer that administers its own wellness 
program), they may not use the information to discriminate on the basis 
of disability in violation of the ADA.

        Section 1630.14(d)(5): Compliance With Other Employment 
                         Nondiscrimination Laws

    Section 1630.14(d)(5) clarifies that compliance with the 
requirements of paragraph (d) of this section, including the limits on 
incentives applicable under the ADA, does not mean that a covered entity 
complies with other federal employment nondiscrimination laws, such as 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., the 
Equal Pay Act of 1963, 29 U.S.C. 206(d), the Age Discrimination in 
Employment Act of 1967, 29 U.S.C. 621 et seq., Title II of the Genetic 
Information Nondiscrimination Act of 2008, 42 U.S.C. 2000ff et seq., and 
other sections of Title I of the ADA. Thus, even though an employer's 
wellness program might comply with the incentive limits set out in 
paragraph (d)(3), the employer would violate federal nondiscrimination 
statutes if that program discriminates on the basis of race, sex 
(including pregnancy, gender identity, transgender status, and sexual 
orientation), color, religion, national origin, or age. Additionally, if 
a wellness program requirement (such as a particular blood pressure or 
glucose level or body mass index) disproportionately affects individuals 
on the basis of some protected characteristic, an employer may be able 
to avoid a disparate impact claim by offering and providing a reasonable 
alternative standard.

    Section 1630.14(d)(6): Inapplicability of the ADA's Safe Harbor 
                                Provision

    Finally, section 1630.14(d)(6) states that the ``safe harbor'' 
provision, set forth in section 501(c) of the ADA, 42 U.S.C. 12201(c), 
that allows insurers and benefit plans to classify, underwrite, and 
administer risks, does not apply to wellness programs, even if such 
programs are part of a covered entity's health plan. The safe harbor 
permits insurers and employers (as sponsors of health or other insurance 
benefits) to treat individuals differently based on disability, but only 
where justified according to accepted principles of risk classification 
(some of which became unlawful subsequent to passage of the ADA). See 
Senate Report at 85-86; House Education and Labor Report at 137-38. It 
does not apply simply because a covered entity asserts that it used 
information collected as part of a wellness program to estimate, or to 
try to reduce, its risks or health care costs.

                        Section 1630.15 Defenses

    The section on defenses in part 1630 is not intended to be 
exhaustive. However, it is intended to inform employers of some of the 
potential defenses available to a charge of discrimination under the ADA 
and this part.

             Section 1630.15(a) Disparate Treatment Defenses

    The ``traditional'' defense to a charge of disparate treatment under 
title VII, as expressed in McDonnell Douglas Corp. v. Green, 411 U.S. 
792 (1973), Texas Department of Community Affairs v. Burdine, 450 U.S. 
248 (1981), and their progeny, may be applicable to charges of disparate 
treatment brought under the ADA. See Prewitt v. U.S. Postal Service, 662 
F.2d 292 (5th Cir. 1981). Disparate treatment means, with respect to 
title I of the ADA, that an individual was treated differently on the 
basis of his or her disability. For example, disparate treatment has 
occurred where an employer excludes an employee with a severe facial 
disfigurement from staff meetings because the employer does not like to 
look at the employee. The individual is being treated differently 
because of the employer's attitude towards his or her perceived 
disability. Disparate treatment has also occurred where an employer has 
a policy of not hiring individuals with AIDS regardless of the 
individuals' qualifications.
    The crux of the defense to this type of charge is that the 
individual was treated differently not because of his or her disability 
but for a legitimate nondiscriminatory reason such as poor performance 
unrelated to the individual's disability. The fact that the individual's 
disability is not covered by the employer's current insurance plan or 
would cause the employer's insurance premiums or workers' compensation 
costs to increase, would not be a legitimate nondiscriminatory reason 
justifying disparate treatment of an individual with a disability. 
Senate Report at 85; House Labor Report at 136 and House

[[Page 436]]

Judiciary Report at 70. The defense of a legitimate nondiscriminatory 
reason is rebutted if the alleged nondiscriminatory reason is shown to 
be pretextual.

          Section 1630.15 (b) and (c) Disparate Impact Defenses

    Disparate impact means, with respect to title I of the ADA and this 
part, that uniformly applied criteria have an adverse impact on an 
individual with a disability or a disproportionately negative impact on 
a class of individuals with disabilities. Section 1630.15(b) clarifies 
that an employer may use selection criteria that have such a disparate 
impact, i.e., that screen out or tend to screen out an individual with a 
disability or a class of individuals with disabilities only when they 
are job-related and consistent with business necessity.
    For example, an employer interviews two candidates for a position, 
one of whom is blind. Both are equally qualified. The employer decides 
that while it is not essential to the job it would be convenient to have 
an employee who has a driver's license and so could occasionally be 
asked to run errands by car. The employer hires the individual who is 
sighted because this individual has a driver's license. This is an 
example of a uniformly applied criterion, having a driver's permit, that 
screens out an individual who has a disability that makes it impossible 
to obtain a driver's permit. The employer would, thus, have to show that 
this criterion is job-related and consistent with business necessity. 
See House Labor Report at 55.
    However, even if the criterion is job-related and consistent with 
business necessity, an employer could not exclude an individual with a 
disability if the criterion could be met or job performance accomplished 
with a reasonable accommodation. For example, suppose an employer 
requires, as part of its application process, an interview that is job-
related and consistent with business necessity. The employer would not 
be able to refuse to hire a hearing impaired applicant because he or she 
could not be interviewed. This is so because an interpreter could be 
provided as a reasonable accommodation that would allow the individual 
to be interviewed, and thus satisfy the selection criterion.
    With regard to safety requirements that screen out or tend to screen 
out an individual with a disability or a class of individuals with 
disabilities, an employer must demonstrate that the requirement, as 
applied to the individual, satisfies the ``direct threat'' standard in 
Sec.  1630.2(r) in order to show that the requirement is job-related and 
consistent with business necessity.
    Section 1630.15(c) clarifies that there may be uniformly applied 
standards, criteria and policies not relating to selection that may also 
screen out or tend to screen out an individual with a disability or a 
class of individuals with disabilities. Like selection criteria that 
have a disparate impact, non-selection criteria having such an impact 
may also have to be job-related and consistent with business necessity, 
subject to consideration of reasonable accommodation.
    It should be noted, however, that some uniformly applied employment 
policies or practices, such as leave policies, are not subject to 
challenge under the adverse impact theory. ``No-leave'' policies (e.g., 
no leave during the first six months of employment) are likewise not 
subject to challenge under the adverse impact theory. However, an 
employer, in spite of its ``no-leave'' policy, may, in appropriate 
circumstances, have to consider the provision of leave to an employee 
with a disability as a reasonable accommodation, unless the provision of 
leave would impose an undue hardship. See discussion at Sec.  1630.5 
Limiting, Segregating and Classifying, and Sec.  1630.10 Qualification 
Standards, Tests, and Other Selection Criteria.

    Section 1630.15(d) Defense To Not Making Reasonable Accommodation

    An employer or other covered entity alleged to have discriminated 
because it did not make a reasonable accommodation, as required by this 
part, may offer as a defense that it would have been an undue hardship 
to make the accommodation.
    It should be noted, however, that an employer cannot simply assert 
that a needed accommodation will cause it undue hardship, as defined in 
Sec.  1630.2(p), and thereupon be relieved of the duty to provide 
accommodation. Rather, an employer will have to present evidence and 
demonstrate that the accommodation will, in fact, cause it undue 
hardship. Whether a particular accommodation will impose an undue 
hardship for a particular employer is determined on a case by case 
basis. Consequently, an accommodation that poses an undue hardship for 
one employer at a particular time may not pose an undue hardship for 
another employer, or even for the same employer at another time. 
Likewise, an accommodation that poses an undue hardship for one employer 
in a particular job setting, such as a temporary construction worksite, 
may not pose an undue hardship for another employer, or even for the 
same employer at a permanent worksite. See House Judiciary Report at 42.
    The concept of undue hardship that has evolved under section 504 of 
the Rehabilitation Act and is embodied in this part is unlike the 
``undue hardship'' defense associated with the provision of religious 
accommodation under title VII of the Civil Rights Act of 1964. To 
demonstrate undue hardship pursuant to the ADA and this part, an 
employer must show substantially more difficulty or expense than would 
be needed to satisfy the ``de minimis'' title VII standard of undue

[[Page 437]]

hardship. For example, to demonstrate that the cost of an accommodation 
poses an undue hardship, an employer would have to show that the cost is 
undue as compared to the employer's budget. Simply comparing the cost of 
the accommodation to the salary of the individual with a disability in 
need of the accommodation will not suffice. Moreover, even if it is 
determined that the cost of an accommodation would unduly burden an 
employer, the employer cannot avoid making the accommodation if the 
individual with a disability can arrange to cover that portion of the 
cost that rises to the undue hardship level, or can otherwise arrange to 
provide the accommodation. Under such circumstances, the necessary 
accommodation would no longer pose an undue hardship. See Senate Report 
at 36; House Labor Report at 68-69; House Judiciary Report at 40-41.
    Excessive cost is only one of several possible bases upon which an 
employer might be able to demonstrate undue hardship. Alternatively, for 
example, an employer could demonstrate that the provision of a 
particular accommodation would be unduly disruptive to its other 
employees or to the functioning of its business. The terms of a 
collective bargaining agreement may be relevant to this determination. 
By way of illustration, an employer would likely be able to show undue 
hardship if the employer could show that the requested accommodation of 
the upward adjustment of the business' thermostat would result in it 
becoming unduly hot for its other employees, or for its patrons or 
customers. The employer would thus not have to provide this 
accommodation. However, if there were an alternate accommodation that 
would not result in undue hardship, the employer would have to provide 
that accommodation.
    It should be noted, moreover, that the employer would not be able to 
show undue hardship if the disruption to its employees were the result 
of those employees fears or prejudices toward the individual's 
disability and not the result of the provision of the accommodation. Nor 
would the employer be able to demonstrate undue hardship by showing that 
the provision of the accommodation has a negative impact on the morale 
of its other employees but not on the ability of these employees to 
perform their jobs.

  Section 1630.15(e) Defense--Conflicting Federal Laws and Regulations

    There are several Federal laws and regulations that address medical 
standards and safety requirements. If the alleged discriminatory action 
was taken in compliance with another Federal law or regulation, the 
employer may offer its obligation to comply with the conflicting 
standard as a defense. The employer's defense of a conflicting Federal 
requirement or regulation may be rebutted by a showing of pretext, or by 
showing that the Federal standard did not require the discriminatory 
action, or that there was a nonexclusionary means to comply with the 
standard that would not conflict with this part. See House Labor Report 
at 74.

  Section 1630.15(f) Claims Based on Transitory and Minor Impairments 
                     Under the ``Regarded As'' Prong

    It may be a defense to a charge of discrimination where coverage 
would be shown solely under the ``regarded as'' prong of the definition 
of disability that the impairment is (in the case of an actual 
impairment) or would be (in the case of a perceived impairment) both 
transitory and minor. Section 1630.15(f)(1) explains that an individual 
cannot be ``regarded as having such an impairment'' if the impairment is 
both transitory (defined by the ADAAA as lasting or expected to last 
less than six months) and minor. Section 1630.15(f)(2) explains that the 
determination of ``transitory and minor'' is made objectively. For 
example, an individual who is denied a promotion because he has a minor 
back injury would be ``regarded as'' an individual with a disability if 
the back impairment lasted or was expected to last more than six months. 
Although minor, the impairment is not transitory. Similarly, if an 
employer discriminates against an employee based on the employee's 
bipolar disorder (an impairment that is not transitory and minor), the 
employee is ``regarded as'' having a disability even if the employer 
subjectively believes that the employee's disorder is transitory and 
minor.

              Section 1630.16 Specific Activities Permitted

                  Section 1630.16(a) Religious Entities

    Religious organizations are not exempt from title I of the ADA or 
this part. A religious corporation, association, educational 
institution, or society may give a preference in employment to 
individuals of the particular religion, and may require that applicants 
and employees conform to the religious tenets of the organization. 
However, a religious organization may not discriminate against an 
individual who satisfies the permitted religious criteria because that 
individual is disabled. The religious entity, in other words, is 
required to consider individuals with disabilities who are qualified and 
who satisfy the permitted religious criteria on an equal basis with 
qualified individuals without disabilities who similarly satisfy the 
religious criteria. See Senate Report at 42; House Labor Report at 76-
77; House Judiciary Report at 46.

[[Page 438]]

           Section 1630.16(b) Regulation of Alcohol and Drugs

    This provision permits employers to establish or comply with certain 
standards regulating the use of drugs and alcohol in the workplace. It 
also allows employers to hold alcoholics and persons who engage in the 
illegal use of drugs to the same performance and conduct standards to 
which it holds all of its other employees. Individuals disabled by 
alcoholism are entitled to the same protections accorded other 
individuals with disabilities under this part. As noted above, 
individuals currently engaging in the illegal use of drugs are not 
individuals with disabilities for purposes of part 1630 when the 
employer acts on the basis of such use.

                     Section 1630.16(c) Drug Testing

    This provision reflects title I's neutrality toward testing for the 
illegal use of drugs. Such drug tests are neither encouraged, authorized 
nor prohibited. The results of such drug tests may be used as a basis 
for disciplinary action. Tests for the illegal use of drugs are not 
considered medical examinations for purposes of this part. If the 
results reveal information about an individual's medical condition 
beyond whether the individual is currently engaging in the illegal use 
of drugs, this additional information is to be treated as a confidential 
medical record. For example, if a test for the illegal use of drugs 
reveals the presence of a controlled substance that has been lawfully 
prescribed for a particular medical condition, this information is to be 
treated as a confidential medical record. See House Labor Report at 79; 
House Judiciary Report at 47.

 Section 1630.16(e) Infectious and Communicable Diseases; Food Handling 
                                  Jobs

    This provision addressing food handling jobs applies the ``direct 
threat'' analysis to the particular situation of accommodating 
individuals with infectious or communicable diseases that are 
transmitted through the handling of food. The Department of Health and 
Human Services is to prepare a list of infectious and communicable 
diseases that are transmitted through the handling of food. If an 
individual with a disability has one of the listed diseases and works in 
or applies for a position in food handling, the employer must determine 
whether there is a reasonable accommodation that will eliminate the risk 
of transmitting the disease through the handling of food. If there is an 
accommodation that will not pose an undue hardship, and that will 
prevent the transmission of the disease through the handling of food, 
the employer must provide the accommodation to the individual. The 
employer, under these circumstances, would not be permitted to 
discriminate against the individual because of the need to provide the 
reasonable accommodation and would be required to maintain the 
individual in the food handling job.
    If no such reasonable accommodation is possible, the employer may 
refuse to assign, or to continue to assign the individual to a position 
involving food handling. This means that if such an individual is an 
applicant for a food handling position the employer is not required to 
hire the individual. However, if the individual is a current employee, 
the employer would be required to consider the accommodation of 
reassignment to a vacant position not involving food handling for which 
the individual is qualified. Conference Report at 61-63. (See Sec.  
1630.2(r) Direct Threat).

 Section 1630.16(f) Health Insurance, Life Insurance, and Other Benefit 
                                  Plans

    This provision is a limited exemption that is only applicable to 
those who establish, sponsor, observe or administer benefit plans, such 
as health and life insurance plans. It does not apply to those who 
establish, sponsor, observe or administer plans not involving benefits, 
such as liability insurance plans.
    The purpose of this provision is to permit the development and 
administration of benefit plans in accordance with accepted principles 
of risk assessment. This provision is not intended to disrupt the 
current regulatory structure for self-insured employers. These employers 
may establish, sponsor, observe, or administer the terms of a bona fide 
benefit plan not subject to State laws that regulate insurance. This 
provision is also not intended to disrupt the current nature of 
insurance underwriting, or current insurance industry practices in 
sales, underwriting, pricing, administrative and other services, claims 
and similar insurance related activities based on classification of 
risks as regulated by the States.
    The activities permitted by this provision do not violate part 1630 
even if they result in limitations on individuals with disabilities, 
provided that these activities are not used as a subterfuge to evade the 
purposes of this part. Whether or not these activities are being used as 
a subterfuge is to be determined without regard to the date the 
insurance plan or employee benefit plan was adopted.
    However, an employer or other covered entity cannot deny an 
individual with a disability who is qualified equal access to insurance 
or subject an individual with a disability who is qualified to different 
terms or conditions of insurance based on disability alone, if the 
disability does not pose increased risks. Part 1630 requires that 
decisions not based on risk classification be made in conformity with 
non-discrimination requirements. See Senate Report at 84-86; House Labor 
Report at 136-138; House Judiciary Report at 70-71. See the discussion 
of

[[Page 439]]

Sec.  1630.5 Limiting, Segregating and Classifying.

[56 FR 35734, July 26, 1991, as amended at 65 FR 36327, June 8, 2000;
76 FR 17003, Mar. 25, 2011; 81 FR 31140, May 17, 2016]



PART 1635_GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008-
-Table of Contents



Sec.
1635.1 Purpose.
1635.2 Definitions--general.
1635.3 Definitions specific to GINA.
1635.4 Prohibited practices--in general.
1635.5 Limiting, segregating, and classifying.
1635.6 Causing a covered entity to discriminate.
1635.7 Retaliation.
1635.8 Acquisition of genetic information.
1635.9 Confidentiality.
1635.10 Enforcement and remedies.
1635.11 Construction.
1635.12 Medical information that is not genetic information.

    Authority: 29 U.S.C. 2000ff.

    Source: 75 FR 68932, Nov. 9, 2010, unless otherwise noted.



Sec.  1635.1  Purpose.

    (a) The purpose of this part is to implement Title II of the Genetic 
Information Nondiscrimination Act of 2008, 42 U.S.C. 2000ff, et seq. 
Title II of GINA:
    (1) Prohibits use of genetic information in employment decision-
making;
    (2) Restricts employers and other entities subject to Title II of 
GINA from requesting, requiring, or purchasing genetic information;
    (3) Requires that genetic information be maintained as a 
confidential medical record, and places strict limits on disclosure of 
genetic information; and
    (4) Provides remedies for individuals whose genetic information is 
acquired, used, or disclosed in violation of its protections.
    (b) This part does not apply to actions of covered entities that do 
not pertain to an individual's status as an employee, member of a labor 
organization, or participant in an apprenticeship program. For example, 
this part would not apply to:
    (1) A medical examination of an individual for the purpose of 
diagnosis and treatment unrelated to employment, which is conducted by a 
health care professional at the hospital or other health care facility 
where the individual is an employee; or
    (2) Activities of a covered entity carried on in its capacity as a 
law enforcement agency investigating criminal conduct, even where the 
subject of the investigation is an employee of the covered entity.



Sec.  1635.2  Definitions--general.

    (a) Commission means the Equal Employment Opportunity Commission, as 
established by section 705 of the Civil Rights Act of 1964, 42 U.S.C. 
2000e-4.
    (b) Covered Entity means an employer, employing office, employment 
agency, labor organization, or joint labor-management committee.
    (c) Employee means an individual employed by a covered entity, as 
well as an applicant for employment and a former employee. An employee, 
including an applicant for employment and a former employee, is:
    (1) As defined by section 701 of the Civil Rights Act of 1964, 42 
U.S.C. 2000e, an individual employed by a person engaged in an industry 
affecting commerce who has fifteen or more employees for each working 
day in each of twenty or more calendar weeks in the current or preceding 
calendar year and any agent of such a person;
    (2) As defined by section 304(a) of the Government Employee Rights 
Act, 42 U.S.C. 2000e-16c(a), a person chosen or appointed by an 
individual elected to public office by a State or political subdivision 
of a State to serve as part of the personal staff of the elected 
official, to serve the elected official on a policy-making level, or to 
serve the elected official as the immediate advisor on the exercise of 
the elected official's constitutional or legal powers.
    (3) As defined by section 101 of the Congressional Accountability 
Act, 2 U.S.C. 1301, any employee of the House of Representatives, the 
Senate, the Capitol Guide Service, the Capitol Police, the Congressional 
Budget Office, the Office of the Architect of the Capitol, the Office of 
the Attending Physician, the Office of Compliance, or the Office of 
Technology Assessment;

[[Page 440]]

    (4) As defined by, and subject to the limitations in, section 2(a) 
of the Presidential and Executive Office Accountability Act, 3 U.S.C. 
411(c), any employee of the executive branch not otherwise covered by 
section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, section 
15 of the Age Discrimination in Employment Act of 1967, 29 U.S.C. 633a, 
or section 501 of the Rehabilitation Act of 1973, 29 U.S.C. 791, whether 
appointed by the President or any other appointing authority in the 
executive branch, including an employee of the Executive Office of the 
President;
    (5) As defined by, and subject to the limitations in, section 717 of 
the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, and regulations of the 
Equal Employment Opportunity Commission at 29 CFR 1614.103, an employee 
of a federal executive agency, the United States Postal Service and the 
Postal Rate Commission, the Tennessee Valley Authority, the National 
Oceanic and Atmospheric Administration Commissioned Corps, the 
Government Printing Office, and the Smithsonian Institution; an employee 
of the federal judicial branch having a position in the competitive 
service; and an employee of the Library of Congress.
    (d) Employer means any person that employs an employee defined in 
Sec.  1635.2(c) of this part, and any agent of such person, except that, 
as limited by section 701(b)(1) and (2) of the Civil Rights Act of 1964, 
42 U.S.C. 2000e(b)(1) and (2), an employer does not include an Indian 
tribe, or a bona fide private club (other than a labor organization) 
that is exempt from taxation under section 501(c) of the Internal 
Revenue Code of 1986.
    (e) Employing office is defined in the Congressional Accountability 
Act, 2 U.S.C. 1301(9), to mean the personal office of a Member of the 
House of Representatives or of a Senator; a committee of the House of 
Representatives or the Senate or a joint committee; any other office 
headed by a person with the final authority to appoint, hire, discharge, 
and set the terms, conditions, or privileges of the employment of an 
employee of the House of Representatives or the Senate; or the Capitol 
Guide Board, the Capitol Police Board, the Congressional Budget Office, 
the Office of the Architect of the Capitol, the Office of the Attending 
Physician, the Office of Compliance, and the Office of Technology 
Assessment.
    (f) Employment agency is defined in 42 U.S.C. 2000e(c) to mean any 
person regularly undertaking with or without compensation to procure 
employees for an employer or to procure for employees opportunities to 
work for an employer and includes an agent of such a person.
    (g) Joint labor-management committee is defined as an entity that 
controls apprenticeship or other training or retraining programs, 
including on-the-job training programs.
    (h) Labor organization is defined at 42 U.S.C. 2000e(d) to mean an 
organization with fifteen or more members engaged in an industry 
affecting commerce, and any agent of such an organization in which 
employees participate and which exists for the purpose, in whole or in 
part, of dealing with employers concerning grievances, labor disputes, 
wages, rates of pay, hours, or other terms or conditions of employment.
    (i) Member includes, with respect to a labor organization, an 
applicant for membership.
    (j) Person is defined at 42 U.S.C. 2000e(a) to mean one or more 
individuals, governments, governmental agencies, political subdivisions, 
labor unions, partnerships, associations, corporations, legal 
representatives, mutual companies, joint-stock companies, trusts, 
unincorporated organizations, trustees, trustees in cases under title 
11, or receivers.
    (k) State is defined at 42 U.S.C. 2000e(i) and includes a State of 
the United States, the District of Columbia, Puerto Rico, the Virgin 
Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer 
Continental Shelf lands defined in the Outer Continental Shelf Lands Act 
(43 U.S.C. 1331 et seq.).



Sec.  1635.3  Definitions specific to GINA.

    (a) Family member means with respect to any individual:
    (1) A person who is a dependent of that individual as the result of 
marriage, birth, adoption, or placement for adoption; or

[[Page 441]]

    (2) A first-degree, second-degree, third-degree, or fourth-degree 
relative of the individual, or of a dependent of the individual as 
defined in Sec.  1635.3(a)(1).
    (i) First-degree relatives include an individual's parents, 
siblings, and children.
    (ii) Second-degree relatives include an individual's grandparents, 
grandchildren, uncles, aunts, nephews, nieces, and half-siblings.
    (iii) Third-degree relatives include an individual's great-
grandparents, great grandchildren, great uncles/aunts, and first 
cousins.
    (iv) Fourth-degree relatives include an individual's great-great-
grandparents, great-great-grandchildren, and first cousins once-removed 
(i.e., the children of the individual's first cousins).
    (b) Family medical history. Family medical history means information 
about the manifestation of disease or disorder in family members of the 
individual.
    (c) Genetic information. (1) Genetic information means information 
about:
    (i) An individual's genetic tests;
    (ii) The genetic tests of that individual's family members;
    (iii) The manifestation of disease or disorder in family members of 
the individual (family medical history);
    (iv) An individual's request for, or receipt of, genetic services, 
or the participation in clinical research that includes genetic services 
by the individual or a family member of the individual; or
    (v) The genetic information of a fetus carried by an individual or 
by a pregnant woman who is a family member of the individual and the 
genetic information of any embryo legally held by the individual or 
family member using an assisted reproductive technology.
    (2) Genetic information does not include information about the sex 
or age of the individual, the sex or age of family members, or 
information about the race or ethnicity of the individual or family 
members that is not derived from a genetic test.
    (d) Genetic monitoring means the periodic examination of employees 
to evaluate acquired modifications to their genetic material, such as 
chromosomal damage or evidence of increased occurrence of mutations, 
caused by the toxic substances they use or are exposed to in performing 
their jobs, in order to identify, evaluate, and respond to the effects 
of, or to control adverse environmental exposures in the workplace.
    (e) Genetic services. Genetic services means a genetic test, genetic 
counseling (including obtaining, interpreting, or assessing genetic 
information), or genetic education.
    (f) Genetic test--(1) In general. ``Genetic test'' means an analysis 
of human DNA, RNA, chromosomes, proteins, or metabolites that detects 
genotypes, mutations, or chromosomal changes.
    (2) Genetic tests include, but are not limited to:
    (i) A test to determine whether someone has the BRCA1 or BRCA2 
variant evidencing a predisposition to breast cancer, a test to 
determine whether someone has a genetic variant associated with 
hereditary nonpolyposis colon cancer, and a test for a genetic variant 
for Huntington's Disease;
    (ii) Carrier screening for adults using genetic analysis to 
determine the risk of conditions such as cystic fibrosis, sickle cell 
anemia, spinal muscular atrophy, or fragile X syndrome in future 
offspring;
    (iii) Amniocentesis and other evaluations used to determine the 
presence of genetic abnormalities in a fetus during pregnancy;
    (iv) Newborn screening analysis that uses DNA, RNA, protein, or 
metabolite analysis to detect or indicate genotypes, mutations, or 
chromosomal changes, such as a test for PKU performed so that treatment 
can begin before a disease manifests;
    (v) Preimplantation genetic diagnosis performed on embryos created 
using invitro fertilization;
    (vi) Pharmacogenetic tests that detect genotypes, mutations, or 
chromosomal changes that indicate how an individual will react to a drug 
or a particular dosage of a drug;
    (vii) DNA testing to detect genetic markers that are associated with 
information about ancestry; and
    (viii) DNA testing that reveals family relationships, such as 
paternity.

[[Page 442]]

    (3) The following are examples of tests or procedures that are not 
genetic tests:
    (i) An analysis of proteins or metabolites that does not detect 
genotypes, mutations, or chromosomal changes;
    (ii) A medical examination that tests for the presence of a virus 
that is not composed of human DNA, RNA, chromosomes, proteins, or 
metabolites;
    (iii) A test for infectious and communicable diseases that may be 
transmitted through food handling;
    (iv) Complete blood counts, cholesterol tests, and liver-function 
tests.
    (4) Alcohol and Drug Testing--
    (i) A test for the presence of alcohol or illegal drugs is not a 
genetic test.
    (ii) A test to determine whether an individual has a genetic 
predisposition for alcoholism or drug use is a genetic test.
    (g) Manifestation or manifested means, with respect to a disease, 
disorder, or pathological condition, that an individual has been or 
could reasonably be diagnosed with the disease, disorder, or 
pathological condition by a health care professional with appropriate 
training and expertise in the field of medicine involved. For purposes 
of this part, a disease, disorder, or pathological condition is not 
manifested if the diagnosis is based principally on genetic information.



Sec.  1635.4  Prohibited practices--in general.

    (a) It is unlawful for an employer to discriminate against an 
individual on the basis of the genetic information of the individual in 
regard to hiring, discharge, compensation, terms, conditions, or 
privileges of employment.
    (b) It is unlawful for an employment agency to fail or refuse to 
refer any individual for employment or otherwise discriminate against 
any individual because of genetic information of the individual.
    (c) It is unlawful for a labor organization to exclude or to expel 
from the membership of the organization, or otherwise to discriminate 
against, any member because of genetic information with respect to the 
member.
    (d) It is an unlawful employment practice for any employer, labor 
organization, or joint labor-management committee controlling 
apprenticeship or other training or retraining programs, including on-
the-job training programs to discriminate against any individual because 
of the individual's genetic information in admission to, or employment 
in, any program established to provide apprenticeship or other training 
or retraining.



Sec.  1635.5  Limiting, segregating, and classifying.

    (a) A covered entity may not limit, segregate, or classify an 
individual, or fail or refuse to refer for employment any individual, in 
any way that would deprive or tend to deprive the individual of 
employment opportunities or otherwise affect the status of the 
individual as an employee, because of genetic information with respect 
to the individual. A covered entity will not be deemed to have violated 
this section if it limits or restricts an employee's job duties based on 
genetic information because it was required to do so by a law or 
regulation mandating genetic monitoring, such as regulations 
administered by the Occupational and Safety Health Administration 
(OSHA). See 1635.8(b)(5) and 1635.11(a).
    (b) Notwithstanding any language in this part, a cause of action for 
disparate impact within the meaning of section 703(k) of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e-2(k), is not available under this 
part.



Sec.  1635.6  Causing a covered entity to discriminate.

    A covered entity may not cause or attempt to cause another covered 
entity, or its agent, to discriminate against an individual in violation 
of this part, including with respect to the individual's participation 
in an apprenticeship or other training or retraining program, or with 
respect to a member's participation in a labor organization.



Sec.  1635.7  Retaliation.

    A covered entity may not discriminate against any individual because 
such individual has opposed any act or practice made unlawful by this 
title or because such individual made a charge, testified, assisted, or 
participated in any manner in an investigation, proceeding, or hearing 
under this title.

[[Page 443]]



Sec.  1635.8  Acquisition of genetic information.

    (a) General prohibition. A covered entity may not request, require, 
or purchase genetic information of an individual or family member of the 
individual, except as specifically provided in paragraph (b) of this 
section. ``Request'' includes conducting an Internet search on an 
individual in a way that is likely to result in a covered entity 
obtaining genetic information; actively listening to third-party 
conversations or searching an individual's personal effects for the 
purpose of obtaining genetic information; and making requests for 
information about an individual's current health status in a way that is 
likely to result in a covered entity obtaining genetic information.
    (b) Exceptions. The general prohibition against requesting, 
requiring, or purchasing genetic information does not apply:
    (1) Where a covered entity inadvertently requests or requires 
genetic information of the individual or family member of the 
individual.
    (i) Requests for Medical Information:
    (A) If a covered entity acquires genetic information in response to 
a lawful request for medical information, the acquisition of genetic 
information will not generally be considered inadvertent unless the 
covered entity directs the individual and/or health care provider from 
whom it requested medical information (in writing, or verbally, where 
the covered entity does not typically make requests for medical 
information in writing) not to provide genetic information.
    (B) If a covered entity uses language such as the following, any 
receipt of genetic information in response to the request for medical 
information will be deemed inadvertent: ``The Genetic Information 
Nondiscrimination Act of 2008 (GINA) prohibits employers and other 
entities covered by GINA Title II from requesting or requiring genetic 
information of an individual or family member of the individual, except 
as specifically allowed by this law. To comply with this law, we are 
asking that you not provide any genetic information when responding to 
this request for medical information. `Genetic information' as defined 
by GINA, includes an individual's family medical history, the results of 
an individual's or family member's genetic tests, the fact that an 
individual or an individual's family member sought or received genetic 
services, and genetic information of a fetus carried by an individual or 
an individual's family member or an embryo lawfully held by an 
individual or family member receiving assistive reproductive services.''
    (C) A covered entity's failure to give such a notice or to use this 
or similar language will not prevent it from establishing that a 
particular receipt of genetic information was inadvertent if its request 
for medical information was not ``likely to result in a covered entity 
obtaining genetic information'' (for example, where an overly broad 
response is received in response to a tailored request for medical 
information).
    (D) Situations to which the requirements of subsection (b)(1)(i) 
apply include, but are not limited to the following:
    (1) Where a covered entity requests documentation to support a 
request for reasonable accommodation under Federal, State, or local law, 
as long as the covered entity's request for such documentation is 
lawful. A request for documentation supporting a request for reasonable 
accommodation is lawful only when the disability and/or the need for 
accommodation is not obvious; the documentation is no more than is 
sufficient to establish that an individual has a disability and needs a 
reasonable accommodation; and the documentation relates only to the 
impairment that the individual claims to be a disability that requires 
reasonable accommodation;
    (2) Where an employer requests medical information from an 
individual as required, authorized, or permitted by Federal, State, or 
local law, such as where an employee requests leave under the Family and 
Medical Leave Act (FMLA) to attend to the employee's own serious health 
condition or where an employee complies with the FMLA's employee return 
to work certification requirements; or
    (3) Where a covered entity requests documentation to support a 
request for leave that is not governed by Federal, State, or local laws 
requiring leave, as

[[Page 444]]

long as the documentation required to support the request otherwise 
complies with the requirements of the Americans with Disabilities Act 
and other laws limiting a covered entity's access to medical 
information.
    (ii) The exception for inadvertent acquisition of genetic 
information also applies in, but is not necessarily limited to, 
situations where--
    (A) A manager, supervisor, union representative, or employment 
agency representative learns genetic information about an individual by 
overhearing a conversation between the individual and others;
    (B) A manager, supervisor, union representative, or employment 
agency representative learns genetic information about an individual by 
receiving it from the individual or third-parties during a casual 
conversation, including in response to an ordinary expression of concern 
that is the subject of the conversation. For example, the exception 
applies when the covered entity, acting through a supervisor or other 
official, receives family medical history directly from an individual 
following a general health inquiry (e.g., ``How are you?'' or ``Did they 
catch it early?'' asked of an employee who was just diagnosed with 
cancer) or a question as to whether the individual has a manifested 
condition. Similarly, a casual question between colleagues, or between a 
supervisor and subordinate, concerning the general well-being of a 
parent or child would not violate GINA (e.g., ``How's your son feeling 
today?'', ``Did they catch it early?'' asked of an employee whose family 
member was just diagnosed with cancer, or ``Will your daughter be 
OK?''). However, this exception does not apply where an employer follows 
up a question concerning a family member's general health with questions 
that are probing in nature, such as whether other family members have 
the condition, or whether the individual has been tested for the 
condition, because the covered entity should know that these questions 
are likely to result in the acquisition of genetic information;
    (C) A manager, supervisor, union representative, or employment 
agency representative learns genetic information from the individual or 
a third-party without having solicited or sought the information (e.g., 
where a manager or supervisor receives an unsolicited email about the 
health of an employee's family member from a co-worker); or
    (D) A manager, supervisor, union representative, or employment 
agency representative inadvertently learns genetic information from a 
social media platform which he or she was given permission to access by 
the creator of the profile at issue (e.g., a supervisor and employee are 
connected on a social networking site and the employee provides family 
medical history on his page).
    (2) Where a covered entity offers health or genetic services, 
including such services offered as part of a voluntary wellness program.
    (i) This exception applies only where--
    (A) The health or genetic services, including any acquisition of 
genetic information that is part of those services, are reasonably 
designed to promote health or prevent disease. A program satisfies this 
standard if it has a reasonable chance of improving the health of, or 
preventing disease in, participating individuals, and it is not overly 
burdensome, is not a subterfuge for violating Title II of GINA or other 
laws prohibiting employment discrimination, and is not highly suspect in 
the method chosen to promote health or prevent disease. A program is not 
reasonably designed to promote health or prevent disease if it imposes a 
penalty or disadvantage on an individual because a spouse's 
manifestation of disease or disorder prevents or inhibits the spouse 
from participating or from achieving a certain health outcome. For 
example, an employer may not deny an employee an inducement for 
participation of either the employee or the spouse in an employer-
sponsored wellness program because the employee's spouse has blood 
pressure, a cholesterol level, or a blood glucose level that the 
employer considers too high. In addition, a program consisting of a 
measurement, test, screening, or collection of health-related 
information without providing participants with results, follow-up 
information, or advice designed to improve the participant's

[[Page 445]]

health is not reasonably designed to promote health or prevent disease, 
unless the collected information actually is used to design a program 
that addresses at least a subset of conditions identified. Whether 
health or genetic services are reasonably designed to promote health or 
prevent disease is evaluated in light of all the relevant facts and 
circumstances.
    (B) The provision of genetic information by the individual is 
voluntary, meaning the covered entity neither requires the individual to 
provide genetic information nor penalizes those who choose not to 
provide it;
    (C) The individual provides prior knowing, voluntary, and written 
authorization, which may include authorization in electronic format. 
This requirement is only met if the covered entity uses an authorization 
form that:
    (1) Is written so that the individual from whom the genetic 
information is being obtained is reasonably likely to understand it;
    (2) Describes the type of genetic information that will be obtained 
and the general purposes for which it will be used; and
    (3) Describes the restrictions on disclosure of genetic information;
    (D) Individually identifiable genetic information is provided only 
to the individual (or family member if the family member is receiving 
genetic services) and the licensed health care professionals or board 
certified genetic counselors involved in providing such services, and is 
not accessible to managers, supervisors, or others who make employment 
decisions, or to anyone else in the workplace; and
    (E) Any individually identifiable genetic information provided under 
paragraph (b)(2) of this section is only available for purposes of such 
services and is not disclosed to the covered entity except in aggregate 
terms that do not disclose the identity of specific individuals (a 
covered entity will not violate the requirement that it receive 
information only in aggregate terms if it receives information that, for 
reasons outside the control of the provider or the covered entity (such 
as the small number of participants), makes the genetic information of a 
particular individual readily identifiable with no effort on the covered 
entity's part).
    (ii) Consistent with, and in addition to, the requirements of 
paragraph (b)(2)(i) of this section, a covered entity may not offer an 
inducement (financial or in-kind), whether in the form of a reward or 
penalty, for individuals to provide genetic information, except as 
described in paragraphs (b)(2)(iii) and (iv) of this section, but may 
offer inducements for completion of health risk assessments that include 
questions about family medical history or other genetic information, 
provided the covered entity makes clear, in language reasonably likely 
to be understood by those completing the health risk assessment, that 
the inducement will be made available whether or not the participant 
answers questions regarding genetic information.
    (A) A covered entity offers $150 to employees who complete a health 
risk assessment with 100 questions, the last 20 of them concerning 
family medical history and other genetic information. The instructions 
for completing the health risk assessment make clear that the inducement 
will be provided to all employees who respond to the first 80 questions, 
whether or not the remaining 20 questions concerning family medical 
history and other genetic information are answered. This health risk 
assessment does not violate Title II of GINA.
    (B) Same facts as the previous example, except that the instructions 
do not indicate which questions request genetic information; nor does 
the assessment otherwise make clear which questions must be answered in 
order to obtain the inducement. This health risk assessment violates 
Title II of GINA.
    (iii) [Reserved]
    (iv) A covered entity may not, however, condition participation in 
an employer-sponsored wellness program or provide any inducement to an 
employee, or the spouse or other covered dependent of the employee, in 
exchange for an agreement permitting the sale, exchange, sharing, 
transfer, or other disclosure of genetic information, including 
information about the manifestation of disease or disorder of an 
employee's family member (except to the extent permitted by paragraph

[[Page 446]]

(b)(2)(i)(D)) of this section, or otherwise waiving the protections of 
Sec.  1635.9.
    (v) A covered entity may not deny access to health insurance or any 
package of health insurance benefits to an employee, or the spouse or 
other covered dependent of the employee, or retaliate against an 
employee, due to a spouse's refusal to provide information about his or 
her manifestation of disease or disorder to an employer-sponsored 
wellness program.
    (vi) A covered entity may offer financial inducements to encourage 
individuals who have voluntarily provided genetic information (e.g., 
family medical history) that indicates that they are at increased risk 
of acquiring a health condition in the future to participate in disease 
management programs or other programs that promote healthy lifestyles, 
and/or to meet particular health goals as part of a health or genetic 
service. However, to comply with Title II of GINA, these programs must 
also be offered to individuals with current health conditions and/or to 
individuals whose lifestyle choices put them at increased risk of 
developing a condition. For example:
    (A) Employees who voluntarily disclose a family medical history of 
diabetes, heart disease, or high blood pressure on a health risk 
assessment that meets the requirements of (b)(2)(ii) of this section and 
employees who have a current diagnosis of one or more of these 
conditions are offered $150 to participate in a wellness program 
designed to encourage weight loss and a healthy lifestyle. This does not 
violate Title II of GINA.
    (B) The program in the previous example offers an additional 
inducement to individuals who achieve certain health outcomes. 
Participants may earn points toward ``prizes'' totaling $150 in a single 
year for lowering their blood pressure, glucose, and cholesterol levels, 
or for losing weight. This inducement would not violate Title II of 
GINA.
    (vii) Nothing contained in paragraphs (b)(2)(ii) through (v) of this 
section limits the rights or protections of an individual under the 
Americans with Disabilities Act (ADA), as amended, or other applicable 
civil rights laws, or under the Health Insurance Portability and 
Accountability Act (HIPAA), as amended by GINA. For example, if an 
employer offers an inducement for participation in disease management 
programs or other programs that promote healthy lifestyles and/or 
require individuals to meet particular health goals, the employer must 
make reasonable accommodations to the extent required by the ADA; that 
is, the employer must make modifications or adjustments that enable a 
covered entity's employee with a disability to enjoy equal benefits and 
privileges of employment as are enjoyed by its other similarly situated 
employees without disabilities unless such covered entity can 
demonstrate that the accommodation would impose an undue hardship on the 
operation of its business. See 29 CFR 1630.2(o)(1)(iii) and 29 CFR 
1630.9(a). In addition, if the employer's wellness program provides 
(directly, through reimbursement, or otherwise) medical care (including 
genetic counseling), the program may constitute a group health plan and 
must comply with the special requirements for employer-sponsored 
wellness programs that condition rewards on an individual satisfying a 
standard related to a health factor, including the requirement to 
provide an individual with a reasonable alternative (or waiver of the 
otherwise applicable standard) under HIPAA, when it is unreasonably 
difficult due to a medical condition to satisfy or medically inadvisable 
to attempt to satisfy the otherwise applicable standard. See section 
9802 of the Internal Revenue Code (26 U.S.C. 9802, 26 CFR 54.9802-1 and 
54.9802-3T), section 702 of the Employee Retirement Income Security Act 
of 1974 (ERISA) (29 U.S.C. 1182, 29 CFR 2590.702 and 2590.702-1), and 
section 2705 of the Public Health Service (PHS) Act (45 CFR 146.121, 
146.122, and 147.110), as amended by section 1201 of the Affordable Care 
Act.
    (3) Where the covered entity requests family medical history to 
comply with the certification provisions of the Family and Medical Leave 
Act of 1993 (29 U.S.C. 2601 et seq.) or State or local family and 
medical leave laws, or pursuant to a policy (even in the absence of 
requirements of Federal, State, or local leave laws) that permits the 
use

[[Page 447]]

of leave to care for a sick family member and that requires all 
employees to provide information about the health condition of the 
family member to substantiate the need for leave.
    (4) Where the covered entity acquires genetic information from 
documents that are commercially and publicly available for review or 
purchase, including newspapers, magazines, periodicals, or books, or 
through electronic media, such as information communicated through 
television, movies, or the Internet, except that this exception does not 
apply--
    (i) To medical databases, court records, or research databases 
available to scientists on a restricted basis;
    (ii) To genetic information acquired through sources with limited 
access, such as social networking sites and other media sources which 
require permission to access from a specific individual or where access 
is conditioned on membership in a particular group, unless the covered 
entity can show that access is routinely granted to all who request it;
    (iii) To genetic information obtained through commercially and 
publicly available sources if the covered entity sought access to those 
sources with the intent of obtaining genetic information; or
    (iv) To genetic information obtained through media sources, whether 
or not commercially and publicly available, if the covered entity is 
likely to acquire genetic information by accessing those sources, such 
as Web sites and on-line discussion groups that focus on issues such as 
genetic testing of individuals and genetic discrimination.
    (5) Where the covered entity acquires genetic information for use in 
the genetic monitoring of the biological effects of toxic substances in 
the workplace. In order for this exception to apply, the covered entity 
must provide written notice of the monitoring to the individual and the 
individual must be informed of the individual monitoring results. The 
covered entity may not retaliate or otherwise discriminate against an 
individual due to his or her refusal to participate in genetic 
monitoring that is not required by federal or state law. This exception 
further provides that such monitoring:
    (i) Is either required by federal or state law or regulation, or is 
conducted only where the individual gives prior knowing, voluntary and 
written authorization. The requirement for individual authorization is 
only met if the covered entity uses an authorization form that:
    (A) Is written so that the individual from whom the genetic 
information is being obtained is reasonably likely to understand the 
form;
    (B) Describes the genetic information that will be obtained; and
    (C) Describes the restrictions on disclosure of genetic information;
    (ii) Is conducted in compliance with any Federal genetic monitoring 
regulations, including any regulations that may be promulgated by the 
Secretary of Labor pursuant to the Occupational Safety and Health Act of 
1970 (29 U.S.C. 651 et seq.), the Federal Mine Safety and Health Act of 
1977 (30 U.S.C. 801 et seq.), or the Atomic Energy Act of 1954 (42 
U.S.C. 2011 et seq.); or State genetic monitoring regulations, in the 
case of a State that is implementing genetic monitoring regulations 
under the authority of the Occupational Safety and Health Act of 1970 
(29 U.S.C. 651 et seq.); and
    (iii) Provides for reporting of the results of the monitoring to the 
covered entity, excluding any licensed health care professional or board 
certified genetic counselor involved in the genetic monitoring program, 
only in aggregate terms that do not disclose the identity of specific 
individuals.
    (6) Where an employer conducts DNA analysis for law enforcement 
purposes as a forensic laboratory or for purposes of human remains 
identification and requests or requires genetic information of its 
employees, apprentices, or trainees, but only to the extent that the 
genetic information is used for analysis of DNA identification markers 
for quality control to detect sample contamination and is maintained and 
disclosed in a manner consistent with such use.
    (c) Inquiries Made of Family Members Concerning a Manifested 
Disease, Disorder, or Pathological Condition. (1) A covered entity does 
not violate this section when it requests, requires, or

[[Page 448]]

purchases information about a manifested disease, disorder, or 
pathological condition of an employee, member, or apprenticeship program 
participant whose family member is an employee for the same employer, a 
member of the same labor organization, or a participant in the same 
apprenticeship program. For example, an employer will not violate this 
section by asking someone whose sister also works for the employer to 
take a post-offer medical examination that does not include requests for 
genetic information.
    (2) A covered entity does not violate this section when it requests, 
requires, or purchases genetic information or information about the 
manifestation of a disease, disorder, or pathological condition of an 
individual's family member who is receiving health or genetic services 
on a voluntary basis, as long as the requirements of paragraph (b)(2) of 
this section, including those concerning authorization and inducements, 
are met. For example, an employer does not unlawfully acquire genetic 
information about an employee when it asks the employee's family member 
who is receiving health services from the employer if her diabetes is 
under control. Nor does an employer unlawfully acquire genetic 
information about an employee when it seeks information--through a 
medical questionnaire, a medical examination, or both--about the 
manifestation of disease, disorder, or pathological condition of the 
employee's family member who is completing a health risk assessment on a 
voluntary basis in connection with the family member's receipt of health 
or genetic services (including health or genetic services provided as 
part of an employer-sponsored wellness program) offered by the employer 
in compliance with paragraph (b)(2) of this section.
    (d) Medical examinations related to employment. The prohibition on 
acquisition of genetic information, including family medical history, 
applies to medical examinations related to employment. A covered entity 
must tell health care providers not to collect genetic information, 
including family medical history, as part of a medical examination 
intended to determine the ability to perform a job, and must take 
additional reasonable measures within its control if it learns that 
genetic information is being requested or required. Such reasonable 
measures may depend on the facts and circumstances under which a request 
for genetic information was made, and may include no longer using the 
services of a health care professional who continues to request or 
require genetic information during medical examinations after being 
informed not to do so.
    (e) A covered entity may not use genetic information obtained 
pursuant to subparagraphs (b) or (c) of this section to discriminate, as 
defined by Sec. Sec.  1635.4, 1635.5, or 1635.6, and must keep such 
information confidential as required by Sec.  1635.9.

[75 FR 68932, Nov. 9, 2010, as amended at 81 FR 31157, May 17, 2016; 83 
FR 65297, Dec. 20, 2018]



Sec.  1635.9  Confidentiality.

    (a) Treatment of genetic information. (1) A covered entity that 
possesses genetic information in writing about an employee or member 
must maintain such information on forms and in medical files (including 
where the information exists in electronic forms and files) that are 
separate from personnel files and treat such information as a 
confidential medical record.
    (2) A covered entity may maintain genetic information about an 
employee or member in the same file in which it maintains confidential 
medical information subject to section 102(d)(3)(B) of the Americans 
with Disabilities Act, 42 U.S.C. 12112(d)(3)(B).
    (3) Genetic information that a covered entity receives orally need 
not be reduced to writing, but may not be disclosed, except as permitted 
by this part.
    (4) Genetic information that a covered entity acquires through 
sources that are commercially and publicly available, as provided by, 
and subject to the limitations in, 1635.8(b)(4) of this part, is not 
considered confidential genetic information, but may not be used to 
discriminate against an individual as described in Sec. Sec.  1635.4, 
1635.5, or 1635.6 of this part.
    (5) Genetic information placed in personnel files prior to November 
21, 2009 need not be removed and a covered entity will not be liable 
under this part

[[Page 449]]

for the mere existence of the information in the file. However, the 
prohibitions on use and disclosure of genetic information apply to all 
genetic information that meets the statutory definition, including 
genetic information requested, required, or purchased prior to November 
21, 2009.
    (b) Exceptions to limitations on disclosure. A covered entity that 
possesses any genetic information, regardless of how the entity obtained 
the information (except for genetic information acquired through 
commercially and publicly available sources), may not disclose it 
except:
    (1) To the employee or member (or family member if the family member 
is receiving the genetic services) about whom the information pertains 
upon receipt of the employee's or member's written request;
    (2) To an occupational or other health researcher if the research is 
conducted in compliance with the regulations and protections provided 
for under 45 CFR part 46;
    (3) In response to an order of a court, except that the covered 
entity may disclose only the genetic information expressly authorized by 
such order; and if the court order was secured without the knowledge of 
the employee or member to whom the information refers, the covered 
entity shall inform the employee or member of the court order and any 
genetic information that was disclosed pursuant to such order;
    (4) To government officials investigating compliance with this title 
if the information is relevant to the investigation;
    (5) To the extent that such disclosure is made in support of an 
employee's compliance with the certification provisions of section 103 
of the Family and Medical Leave Act of 1993 (29 U.S.C. 2613) or such 
requirements under State family and medical leave laws; or
    (6) To a Federal, State, or local public health agency only with 
regard to information about the manifestation of a disease or disorder 
that concerns a contagious disease that presents an imminent hazard of 
death or life-threatening illness, provided that the individual whose 
family member is the subject of the disclosure is notified of such 
disclosure.
    (c) Relationship to HIPAA Privacy Regulations. Pursuant to Sec.  
1635.11(d) of this part, nothing in this section shall be construed as 
applying to the use or disclosure of genetic information that is 
protected health information subject to the regulations issued pursuant 
to section 264(c) of the Health Insurance Portability and Accountability 
Act of 1996.



Sec.  1635.10  Enforcement and remedies.

    (a) Powers and procedures: The following powers and procedures shall 
apply to allegations that Title II of GINA has been violated:
    (1) The powers and procedures provided to the Commission, the 
Attorney General, or any person by sections 705 through 707 and 709 
through 711 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-4 through 
2000e-6 and 2000e-8 through 2000e-10, where the alleged discrimination 
is against an employee defined in 1635.2(c)(1) of this part or against a 
member of a labor organization;
    (2) The powers and procedures provided to the Commission and any 
person by sections 302 and 304 of the Government Employees Rights Act, 
42 U.S.C. 2000e-16b and 2000e-16c, and in regulations at 29 CFR part 
1603, where the alleged discrimination is against an employee as defined 
in Sec.  1635.2(c)(2) of this part;
    (3) The powers and procedures provided to the Board of Directors of 
the Office of Compliance and to any person under the Congressional 
Accountability Act, 2 U.S.C. 1301 et seq. (including the provisions of 
Title 3 of that act, 2 U.S.C. 1381 et seq.), where the alleged 
discrimination is against an employee defined in Sec.  1635.2(c)(3) of 
this part;
    (4) The powers and procedures provided in 3 U.S.C. 451 et seq., to 
the President, the Commission, or any person in connection with an 
alleged violation of section 3 U.S.C. 411(a)(1), where the alleged 
discrimination is against an employee defined in Sec.  1635.2(c)(4) of 
this part;
    (5) The powers and procedures provided to the Commission, the 
Librarian of Congress, and any person by section 717 of the Civil Rights 
Act, 42 U.S.C. 2000e-16, where the alleged discrimination is against an 
employee defined in Sec.  1635.2(c)(5) of this part.

[[Page 450]]

    (b) Remedies. The following remedies are available for violations of 
GINA sections 202, 203, 204, 205, 206, and 207(f):
    (1) Compensatory and punitive damages as provided for, and limited 
by, 42 U.S.C. 1981a(a)(1) and (b);
    (2) Reasonable attorney's fees, including expert fees, as provided 
for, and limited by, 42 U.S.C. 1988(b) and (c); and
    (3) Injunctive relief, including reinstatement and hiring, back pay, 
and other equitable remedies as provided for, and limited by, 42 U.S.C. 
2000e-5(g).
    (c) Posting of Notices. (1) Every covered entity shall post and keep 
posted in conspicuous places upon its premises where notices to 
employees, applicants for employment, and members are customarily posted 
a notice to be prepared or approved by the Commission setting forth 
excerpts from or, summaries of, the pertinent provisions of this 
regulation and information pertinent to the filing of a complaint.
    (2) A willful violation of this requirement shall be punishable by a 
fine of not more than $100 for each separate offense.



Sec.  1635.11  Construction.

    (a) Relationship to other laws, generally. This part does not--
    (1) Limit the rights or protections of an individual under any other 
Federal, State, or local law that provides equal or greater protection 
to an individual than the rights or protections provided for under this 
part, including the Americans with Disabilities Act of 1990 (42 U.S.C. 
12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), 
and State and local laws prohibiting genetic discrimination or 
discrimination on the basis of disability;
    (2) Apply to the Armed Forces Repository of Specimen Samples for the 
Identification of Remains;
    (3) Limit or expand the protections, rights, or obligations of 
employees or employers under applicable workers' compensation laws;
    (4) Limit the authority of a Federal department or agency to conduct 
or sponsor occupational or other health research in compliance with the 
regulations and protections provided for under 45 CFR part 46;
    (5) Limit the statutory or regulatory authority of the Occupational 
Safety and Health Administration or the Mine Safety and Health 
Administration to promulgate or enforce workplace safety and health laws 
and regulations; or
    (6) Require any specific benefit for an employee or member or a 
family member of an employee or member (such as additional coverage for 
a particular health condition that may have a genetic basis) under any 
group health plan or health insurance issuer offering group health 
insurance coverage in connection with a group health plan.
    (b) Relation to certain Federal laws governing health coverage--(1) 
General: Nothing in GINA Title II provides for enforcement of, or 
penalties for, violation of any requirement or prohibition of a covered 
entity subject to enforcement under:
    (i) Amendments made by Title I of GINA.
    (ii) Section 701(a) of the Employee Retirement Income Security Act 
(29 U.S.C. 1181) (ERISA), section 2704(a) of the Public Health Service 
Act, and section 9801(a) of the Internal Revenue Code (26 U.S.C. 
9801(a)), as such sections apply with respect to genetic information 
pursuant to section 701(b)(1)(B) of ERISA, section 2704(b)(1)(B) of the 
Public Health Service Act, and section 9801(b)(1)(B) of the Internal 
Revenue Code, respectively, of such sections, which prohibit a group 
health plan or a health insurance issuer in the group market from 
imposing a preexisting condition exclusion based solely on genetic 
information, in the absence of a diagnosis of a condition;
    (iii) Section 702(a)(1)(F) of ERISA (29 U.S.C. 1182(a)(1)(F)), 
section 2705(a)(6) of the PHS Act, as amended by section 1201 of the 
Affordable Care Act and section 9802(a)(1)(F) of the Internal Revenue 
Code (26 U.S.C. 9802(a)(1)(F)), which prohibit a group health plan or a 
health insurance issuer in the group or individual market from 
discriminating against individuals in eligibility and continued 
eligibility for benefits based on genetic information; or
    (iv) Section 702(b)(1) of ERISA (29 U.S.C. 1182(b)(1)), section 
2705(b)(1) of the PHS Act, as amended by section 1201 of the Affordable 
Care Act and section 9802(b)(1) of the Internal Revenue

[[Page 451]]

Code (26 U.S.C. 9802(b)(1)), as such sections apply with respect to 
genetic information as a health status-related factor, which prohibit a 
group health plan or a health insurance issuer in the group or 
individual market from discriminating against individuals in premium or 
contribution rates under the plan or coverage based on genetic 
information.
    (2) Application. The application of paragraph (b)(1) of this section 
is intended to prevent Title II causes of action from being asserted 
regarding matters subject to enforcement under Title I or the other 
genetics provisions for group coverage in ERISA, the Public Health 
Service Act, and the Internal Revenue Code. The firewall seeks to ensure 
that health plan or issuer provisions or actions are addressed and 
remedied through ERISA, the Public Health Service Act, or the Internal 
Revenue Code, while actions taken by employers and other GINA Title II 
covered entities are remedied through GINA Title II. Employers and other 
GINA Title II covered entities would remain liable for any of their 
actions that violate Title II, even where those actions involve access 
to health benefits, because such benefits are within the definition of 
compensation, terms, conditions, or privileges of employment. For 
example, an employer that fires an employee because of anticipated high 
health claims based on genetic information remains subject to liability 
under Title II. On the other hand, health plan or issuer provisions or 
actions related to the imposition of a preexisting condition exclusion; 
a health plan's or issuer's discrimination in health plan eligibility, 
benefits, or premiums based on genetic information; a health plan's or 
issuer's request that an individual undergo a genetic test; and/or a 
health plan's or issuer's collection of genetic information remain 
subject to enforcement under Title I exclusively. For example:
    (i) If an employer contracts with a health insurance issuer to 
request genetic information, the employer has committed a Title II 
violation. In addition, the issuer may have violated Title I of GINA.
    (ii) If an employer directs his employees to undergo mandatory 
genetic testing in order to be eligible for health benefits, the 
employer has committed a Title II violation.
    (iii) If an employer or union amends a health plan to require an 
individual to undergo a genetic test, then the employer or union is 
liable for a violation of Title II. In addition, the health plan's 
implementation of the requirement may subject the health plan to 
liability under Title I.
    (c) Relationship to authorities under GINA Title I. GINA Title II 
does not prohibit any group health plan or health insurance issuer 
offering group health insurance coverage in connection with a group 
health plan from engaging in any action that is authorized under any 
provision of law noted in Sec.  1635.11(b) of this part, including any 
implementing regulations noted in Sec.  1635.11(b).
    (d) Relationship to HIPAA Privacy Regulations. This part does not 
apply to genetic information that is protected health information 
subject to the regulations issued by the Secretary of Health and Human 
Services pursuant to section 264(c) of the Health Insurance Portability 
and Accountability Act of 1996.

[75 FR 68932, Nov. 9, 2010, as amended at 81 FR 31159, May 17, 2016]



Sec.  1635.12  Medical information that is not genetic information.

    (a) Medical information about a manifested disease, disorder, or 
pathological condition. (1) A covered entity shall not be considered to 
be in violation of this part based on the use, acquisition, or 
disclosure of medical information that is not genetic information about 
a manifested disease, disorder, or pathological condition of an employee 
or member, even if the disease, disorder, or pathological condition has 
or may have a genetic basis or component.
    (2) Notwithstanding paragraph (a)(1) of this section, the 
acquisition, use, and disclosure of medical information that is not 
genetic information about a manifested disease, disorder, or 
pathological condition is subject to applicable limitations under 
sections 103(d)(1)-(4) of the Americans with Disabilities Act (42 U.S.C. 
12112(d)(1)-(4)), and regulations at 29 CFR 1630.13, 1630.14, and 
1630.16.

[[Page 452]]

    (b) Genetic information related to a manifested disease, disorder, 
or pathological condition. Notwithstanding paragraph (a) of this 
section, genetic information about a manifested disease, disorder, or 
pathological condition is subject to the requirements and prohibitions 
in sections 202 through 206 of GINA and Sec. Sec.  1635.4 through 1635.9 
of this part.



PART 1640_PROCEDURES FOR COORDINATING THE INVESTIGATION OF COMPLAINTS OR
CHARGES OF EMPLOYMENT DISCRIMINATION BASED ON DISABILITY SUBJECT TO 
THE AMERICANS WITH DISABILITIES ACT AND SECTION 504 OF THE REHABILITATION
ACT OF 1973--Table of Contents



Sec.
1640.1 Purpose and application.
1640.2 Definitions.
1640.3 Exchange of information.
1640.4 Confidentiality.
1640.5 Date of receipt.
1640.6 Processing of complaints of employment discrimination filed with 
          an agency other than the EEOC.
1640.7 Processing of charges of employment discrimination filed with the 
          EEOC.
1640.8 Processing of complaints or charges of employment discrimination 
          filed with both the EEOC and a section 504 agency.
1640.9 Processing of complaints or charges of employment discrimination 
          filed with a designated agency and either a section 504 
          agency, the EEOC, or both.
1640.10 Section 504 agency review of deferred complaints.
1640.11 EEOC review of deferred charges.
1640.12 Standards.
1640.13 Agency specific memoranda of understanding.

    Authority: 5 U.S.C. 301; 29 U.S.C. 794(d); 42 U.S.C. 12117(b).

    Source: 59 FR 39904, 39908, Aug. 4, 1994, unless otherwise noted.



Sec.  1640.1  Purpose and application.

    (a) This part establishes the procedures to be followed by the 
Federal agencies responsible for processing and resolving complaints or 
charges of employment discrimination filed against recipients of Federal 
financial assistance when jurisdiction exists under both section 504 and 
title I.
    (b) This part also repeats the provisions established by 28 CFR 
35.171 for determining which Federal agency shall process and resolve 
complaints or charges of employment discrimination:
    (1) That fall within the overlapping jurisdiction of titles I and II 
(but are not covered by section 504); and
    (2) That are covered by title II, but not title I (whether or not 
they are also covered by section 504).
    (c) This part also describes the procedures to be followed when a 
complaint or charge arising solely under section 504 or title I is filed 
with a section 504 agency or the EEOC.
    (d) This part does not apply to complaints or charges against 
Federal contractors under section 503 of the Rehabilitation Act.
    (e) This part does not create rights in any person or confer agency 
jurisdiction not created or conferred by the ADA or section 504 over any 
complaint or charge.



Sec.  1640.2  Definitions.

    As used in this part, the term:
    Americans with Disabilities Act of 1990 or ADA means the Americans 
with Disabilities Act of 1990 (Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 
12101-12213 and 47 U.S.C. 225 and 611).
    Assistant Attorney General refers to the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice, or his or 
her designee.
    Chairman of the Equal Employment Opportunity Commission refers to 
the Chairman of the United States Equal Employment Opportunity 
Commission, or his or her designee.
    Civil Rights Division means the Civil Rights Division of the United 
States Department of Justice.
    Designated agency means any one of the eight agencies designated 
under Sec.  35.190 of 28 CFR part 35 (the Department's title II 
regulation) to implement and enforce title II of the ADA with respect to 
the functional areas within their jurisdiction.
    Dual-filed complaint or charge means a complaint or charge of 
employment discrimination that:
    (1) Arises under both section 504 and title I;
    (2) Has been filed with both a section 504 agency that has 
jurisdiction under

[[Page 453]]

section 504 and with the EEOC, which has jurisdiction under title I; and
    (3) Alleges the same facts and raises the same issues in both 
filings.
    Due weight shall mean, with respect to the weight a section 504 
agency or the EEOC shall give to the other agency's findings and 
conclusions, such full and careful consideration as is appropriate, 
taking into account such factors as:
    (1) The extent to which the underlying investigation is complete and 
the evidence is supportive of the findings and conclusions;
    (2) The nature and results of any subsequent proceedings;
    (3) The extent to which the findings, conclusions and any actions 
taken:
    (i) Under title I are consistent with the effective enforcement of 
section 504; or
    (ii) Under section 504 are consistent with the effective enforcement 
of title I; and
    (4) The section 504 agency's responsibilities under section 504 or 
the EEOC's responsibilities under title I.
    Equal Employment Opportunity Commission or EEOC refers to the United 
States Equal Employment Opportunity Commission, and, when appropriate, 
to any of its headquarters, district, area, local, or field offices.
    Federal financial assistance shall have the meaning, with respect to 
each section 504 agency, as defined in such agency's regulations 
implementing section 504 for Federally- assisted programs.
    Program or activity shall have the meaning defined in the 
Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 
794), as amended.
    Public entity means:
    (1) Any State or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and
    (3) The National Railroad Passenger Corporation, and any commuter 
authority (as defined in section 103(8) of the Rail Passenger Service 
Act, 45 U.S.C. 502(8)).
    Recipient means any State, political subdivision of any State, or 
instrumentality of any State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assignee, or transferee thereof, but such term 
does not include any ultimate beneficiary under such program.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 794), as amended.
    Section 504 agency means any Federal department or agency that 
extends Federal financial assistance to programs or activities of 
recipients.
    Title I means title I of the ADA.
    Title II means subtitle A of title II of the ADA.



Sec.  1640.3  Exchange of information.

    The EEOC, section 504 agencies, and designated agencies shall share 
any information relating to the employment policies and practices of a 
respondent that may assist each agency in carrying out its 
responsibilities, to the extent permissible by law. Such information 
shall include, but is not limited to, complaints, charges, investigative 
files, compliance review reports and files, affirmative action programs, 
and annual employment reports.



Sec.  1640.4  Confidentiality.

    (a) When a section 504 agency or a designated agency receives 
information obtained by the EEOC, such agency shall observe the 
confidentiality requirements of section 706(b) and section 709(e) of the 
Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-5(b) and 2000e-
8(e)), as incorporated by section 107(a) of the ADA, to the same extent 
as these provisions would bind the EEOC, except when the agency receives 
the same information from a source independent of the EEOC. Agency 
questions concerning the confidentiality requirements of title I shall 
be directed to the Associate Legal Counsel for Legal Services, Office of 
Legal Counsel, the EEOC.
    (b) When the EEOC receives information from a section 504 or a 
designated agency, the EEOC shall observe any confidentiality 
requirements applicable to that information.

[[Page 454]]



Sec.  1640.5  Date of receipt.

    A complaint or charge of employment discrimination is deemed to be 
filed, for purposes of determining timeliness, on the date the complaint 
or charge is first received by a Federal agency with section 504 or ADA 
jurisdiction, regardless of whether it is subsequently transferred to 
another agency for processing.



Sec.  1640.6  Processing of complaints of employment discrimination filed
with an agency other than the EEOC.

    (a) Agency determination of jurisdiction. Upon receipt of a 
complaint of employment discrimination, an agency other than the EEOC 
shall:
    (1) Determine whether it has jurisdiction over the complaint under 
section 504 or under title II of the ADA; and
    (2) Determine whether the EEOC may have jurisdiction over the 
complaint under title I of the ADA.
    (b) Referral to the Civil Rights Division. If the agency determines 
that it does not have jurisdiction under section 504 or title II, and 
determines that the EEOC does not have jurisdiction under title I, the 
agency shall promptly refer the complaint to the Civil Rights Division. 
The Civil Rights Division shall determine if another Federal agency may 
have jurisdiction over the complaint under section 504 or title II, and, 
if so, shall promptly refer the complaint to a section 504 or a 
designated agency with jurisdiction over the complaint.
    (c) Referral to the EEOC--(1) Referral by an agency without 
jurisdiction. If an agency determines that it does not have jurisdiction 
over a complaint of employment discrimination under either section 504 
or title II and determines that the EEOC may have jurisdiction under 
title I, the agency shall promptly refer the complaint to the EEOC for 
investigation and processing under title I of the ADA.
    (2) Referral by a section 504 agency. (i) A section 504 agency that 
otherwise has jurisdiction over a complaint of employment discrimination 
under section 504 shall promptly refer to the EEOC, for investigation 
and processing under title I of the ADA, any complaint of employment 
discrimination that solely alleges discrimination against an individual 
(and that does not allege discrimination in both employment and in other 
practices or services of the respondent or a pattern or practice of 
employment discrimination), unless:
    (A) The section 504 agency determines that the EEOC does not have 
jurisdiction over the complaint under title I; or
    (B) The EEOC has jurisdiction over the complaint under title I, but 
the complainant, either independently, or following receipt of the 
notification letter required to be sent to the complainant pursuant to 
paragraph (c)(2)(ii) of this section, specifically requests that the 
complaint be investigated by the section 504 agency.
    (ii) Prior to referring an individual complaint of employment 
discrimination to the EEOC pursuant to paragraph (c)(2)(i) of this 
section (but not prior to making such a referral pursuant to paragraph 
(c)(1) of this section), a section 504 agency that otherwise has 
jurisdiction over the complaint shall promptly notify the complainant, 
in writing, of its intention to make such a referral. The notice letter 
shall:
    (A) Inform the complainant that, unless the agency receives a 
written request from the complainant within twenty days of the date of 
the notice letter requesting that the agency retain the complaint for 
investigation, the agency will forward the complaint to the EEOC for 
investigation and processing; and
    (B) Describe the basic procedural differences between an 
investigation under section 504 and an investigation under title I, and 
inform the complainant of the potential for differing remedies under 
each statute.
    (3) Referral by a designated agency. A designated agency that does 
not have section 504 jurisdiction over a complaint of employment 
discrimination and that has determined that the EEOC may have 
jurisdiction over the complaint under title I shall promptly refer the 
complaint to the EEOC.
    (4) Processing of complaints referred to the EEOC. (i) A complaint 
referred to the EEOC in accordance with this section by an agency with 
jurisdiction over the complaint under section 504

[[Page 455]]

shall be deemed to be a dual-filed complaint under section 504 and title 
I. When a section 504 agency with jurisdiction over a complaint refers 
the complaint to the EEOC, the section 504 agency shall defer its 
processing of the complaint pursuant to Sec.  1640.10, pending 
resolution by the EEOC.
    (ii) A complaint referred to the EEOC by an agency that has 
jurisdiction over the complaint solely under title II (and not under 
section 504) will be treated as a complaint filed under title I only.
    (iii) Any complaint referred to the EEOC pursuant to this section 
shall be processed by the EEOC under its title I procedures.
    (d) Retention by the agency for investigation--(1) Retention by a 
section 504 agency. A section 504 agency shall retain a complaint for 
investigation when the agency determines that it has jurisdiction over 
the complaint under section 504, and one or more of the following 
conditions are met:
    (i) The EEOC does not have jurisdiction over the complaint under 
title I; or
    (ii) The EEOC has jurisdiction over the complaint, but the 
complainant elects to have the section 504 agency process the complaint 
and the section 504 agency receives a written request from the 
complainant for section 504 agency processing within twenty days of the 
date of the notice letter required to be sent pursuant to paragraph 
(c)(2)(ii) of this section; or
    (iii) The complaint alleges discrimination in both employment and in 
other practices or services of the respondent that are covered by 
section 504; or
    (iv) The complaint alleges a pattern or practice of employment 
discrimination.
    (2) Retention by a designated agency. A designated agency that does 
not have jurisdiction over the complaint under section 504 shall retain 
a complaint for investigation when the agency determines that it has 
jurisdiction over the complaint under title II of the ADA and that the 
EEOC does not have jurisdiction over the complaint under title I.
    (3) Processing of complaints retained by an agency. Any complaint 
retained for investigation and processing by an agency pursuant to 
paragraphs (d)(1) and (d)(2) of this section will be investigated and 
processed under section 504, title II, or both, as applicable, and will 
not be considered to be dual filed under title I.



Sec.  1640.7  Processing of charges of employment discrimination filed
with the EEOC.

    (a) EEOC determination of jurisdiction. Upon receipt of a charge of 
employment discrimination, the EEOC shall:
    (1) Determine whether it has jurisdiction over the charge under 
title I of the ADA. If it has jurisdiction, except as provided in 
paragraph (b)(2) of this section, the EEOC shall process the charge 
pursuant to title I procedures.
    (2) If the EEOC determines that it does not have jurisdiction under 
title I, the EEOC shall promptly refer the charge to the Civil Rights 
Division. The Civil Rights Division shall determine if a Federal agency 
may have jurisdiction over the charge under section 504 or title II, 
and, if so, shall refer the charge to a section 504 agency or to a 
designated agency with jurisdiction over the complaint.
    (b) Retention by the EEOC for investigation. (1) The EEOC shall 
retain a charge for investigation when it determines that it has 
jurisdiction over the charge under title I.
    (2) Referral to an agency. Any charge retained by the EEOC for 
investigation and processing will be investigated and processed under 
title I only, and will not be deemed dual filed under section 504, 
except that ADA cause charges (as defined in 29 CFR 1601.21) that also 
fall within the jurisdiction of a section 504 agency and that the EEOC 
(or the Civil Rights Division, if such a charge is against a government, 
governmental agency, or political subdivision) has declined to litigate 
shall be referred to the appropriate section 504 agency for review of 
the file and any administrative or other action deemed appropriate under 
section 504. Such charges shall be deemed complaints, dual filed under 
section 504, solely for the purposes of the agency review and action 
described in this paragraph. The date of such dual filing shall be 
deemed to be the date the complaint was received by the EEOC.

[[Page 456]]



Sec.  1640.8  Processing of complaints or charges of employment 
discrimination filed with both the EEOC and a section 504 agency.

    (a) Procedures for handling dual-filed complaints or charges. As 
between the EEOC and a section 504 agency, except as provided in 
paragraph (e) of this section, a complaint or charge of employment 
discrimination that is dual filed with both the EEOC and a section 504 
agency shall be processed as follows:
    (1) EEOC processing. The EEOC shall investigate and process the 
charge when the EEOC determines that it has jurisdiction over the charge 
under title I and the charge solely alleges employment discrimination 
against an individual, unless the charging party elects to have the 
section 504 agency process the charge and the section 504 agency 
receives a written request from the complainant for section 504 agency 
processing within twenty days of the date of the notice letter required 
to be sent pursuant to Sec.  1640.6(c)(2)(ii).
    (2) Section 504 agency processing. A section 504 agency shall 
investigate and process the complaint when the agency determines that it 
has jurisdiction over the complaint under section 504, and:
    (i) The complaint alleges discrimination in both employment and in 
other practices or services of the respondent; or
    (ii) The complaint alleges a pattern or practice of discrimination 
in employment; or
    (iii) In the case of a complaint solely alleging employment 
discrimination against an individual, the complainant elects to have a 
section 504 agency process the complaint and the section 504 agency 
receives a written request from the complainant for section 504 agency 
processing within twenty days of the date of the notice letter required 
to be sent pursuant to Sec.  1640.6(c)(2)(ii).
    (b) Referral to the Civil Rights Division. If the EEOC determines 
that it does not have jurisdiction under title I, and the section 504 
agency determines that it does not have jurisdiction under section 504 
or title II, the complaint or charge shall be promptly referred to the 
Civil Rights Division. The Civil Rights Division shall determine if 
another Federal agency may have jurisdiction over the complaint under 
section 504 or title II, and, if so, shall promptly refer the complaint 
to a section 504 or a designated agency with jurisdiction over the 
complaint.
    (c) Procedures for determining whether a complaint or charge has 
been dual filed. The EEOC and each agency with jurisdiction to 
investigate and process complaints of employment discrimination under 
section 504 shall jointly develop procedures for determining whether 
complaints or charges of discrimination have been dual filed with the 
EEOC and with one or more other agencies.
    (d) Notification of deferral. The agency required to process a dual-
filed complaint or charge under this section shall notify the 
complainant or charging party and the respondent that the complaint or 
charge was dual filed with one or more other agencies and that such 
other agencies have agreed to defer processing and will take no further 
action except as provided in Sec.  1640.10 or Sec.  1640.11, as 
applicable.
    (e) Exceptions. When special circumstances make deferral as provided 
in this section inappropriate, the EEOC, and an agency with 
investigative authority under section 504, may jointly determine to 
reallocate investigative responsibilities. Special circumstances 
include, but are not limited to, cases in which the EEOC has already 
commenced its investigation at the time that the agency discovers that 
the complaint or charge is a dual-filed complaint or charge in which the 
complainant has elected section 504 processing, alleged discrimination 
in both employment and in other practices or services of the respondent, 
or alleged a pattern or practice of employment discrimination.



Sec.  1640.9  Processing of complaints or charges of employment 
discrimination filed with a designated agency and either a section 504 
agency, the EEOC, or both.

    (a) Designated agency processing. A designated agency shall 
investigate and process a complaint that has been filed with it and with 
the EEOC, a section 504 agency, or both, when either of the following 
conditions is met:

[[Page 457]]

    (1) The designated agency determines that it has jurisdiction over 
the complaint under title II and that neither the EEOC nor a section 504 
agency (other than the designated agency, if the designated agency is 
also a section 504 agency) has jurisdiction over the complaint; or
    (2) The designated agency determines that it has jurisdiction over 
the complaint under section 504 and the complaint meets the requirements 
for processing by a section 504 agency set forth in Sec.  1640.8(a)(2).
    (b) Referral by a designated agency. A designated agency that has 
jurisdiction over a complaint solely under title II (and not under 
section 504) shall forward a complaint that has been filed with it and 
with the EEOC, a section 504 agency, or both, to either the EEOC or to a 
section 504 agency, as follows:
    (1) If the designated agency determines that the EEOC is the sole 
agency, other than the designated agency, with jurisdiction over the 
complaint, the designated agency shall forward the complaint to the EEOC 
for processing under title I; or
    (2) If the designated agency determines that the section 504 agency 
is the sole agency, other than the designated agency, with jurisdiction 
over the complaint, the designated agency shall forward the complaint to 
the section 504 agency for processing under section 504; or
    (3) If the designated agency determines that both the EEOC and a 
section 504 agency have jurisdiction over the complaint, the designated 
agency shall forward the complaint to the EEOC if it determines that the 
complaint solely alleges employment discrimination against an 
individual, or it shall forward the complaint to the section 504 agency 
if it determines that the complaint meets the requirements for 
processing by a section 504 agency set out in Sec.  1640.8(a)(2)(i) or 
(a)(2)(ii).



Sec.  1640.10  Section 504 agency review of deferred complaints.

    (a) Deferral by the section 504 agency. When a section 504 agency 
refers a complaint to the EEOC pursuant to Sec.  1640.6(c)(2) or when it 
is determined that, as between the EEOC and a section 504 agency, the 
EEOC is the agency that shall process a dual-filed complaint or charge 
under Sec.  1640.8(a)(1) or Sec.  1640.8(e), the section 504 agency 
shall defer further action until:
    (1) The EEOC issues a no cause finding and a notice of right-to-sue 
pursuant to 29 CFR 1601.19; or
    (2) The EEOC enters into a conciliation agreement; or
    (3) The EEOC issues a cause finding and a notice of failure of 
conciliation pursuant to 29 CFR 1601.21, and:
    (i) If the recipient is not a government, governmental agency, or 
political subdivision, the EEOC completes enforcement proceedings or 
issues a notice of right-to-sue in accordance with 29 CFR 1601.28; or
    (ii) If the recipient is a government, governmental agency, or 
political subdivision, the EEOC refers the charge to the Civil Rights 
Division in accordance with 29 CFR 1601.29, and the Civil Rights 
Division completes enforcement proceedings or issues a notice of right-
to-sue in accordance with 29 CFR 1601.28(d); or
    (4) The EEOC or, when a case has been referred pursuant to 29 CFR 
1601.29, the Civil Rights Division, otherwise resolves the charge.
    (b) Notification of the deferring agency. The EEOC or the Civil 
Rights Division, as appropriate, shall notify the agency that has 
deferred processing of the charge upon resolution of any dual-filed 
complaint or charge.
    (c) Agency review. After receipt of notification that the EEOC or 
the Civil Rights Division, as appropriate, has resolved the complaint or 
charge, the agency shall promptly determine what further action by the 
agency is warranted. In reaching that determination, the agency shall 
give due weight to the findings and conclusions of the EEOC and to those 
of the Civil Rights Division, as applicable. If the agency proposes to 
take an action inconsistent with the EEOC's or the Civil Rights 
Division's findings and conclusions as to whether a violation has 
occurred, the agency shall notify in writing the Assistant Attorney 
General, the Chairman of the EEOC, and the head of the EEOC office that 
processed the complaint. In the written notification, the agency shall 
state the action that it

[[Page 458]]

proposes to take and the basis of its decision to take such action.
    (d) Provision of information. Upon written request, the EEOC or the 
Civil Rights Division shall provide the section 504 agency with any 
materials relating to its resolution of the charge, including its 
findings and conclusions, investigative reports and files, and any 
conciliation agreement.



Sec.  1640.11  EEOC review of deferred charges.

    (a) Deferral by the EEOC. When it is determined that a section 504 
agency is the agency that shall process a dual-filed complaint or charge 
under Sec.  1640.8(a)(2) or Sec.  1640.8(e), the EEOC shall defer 
further action until the section 504 agency takes one of the following 
actions:
    (1) Makes a finding that a violation has not occurred;
    (2) Enters into a voluntary compliance agreement;
    (3) Following a finding that a violation has occurred, refers the 
complaint to the Civil Rights Division for judicial enforcement and the 
Civil Rights Division resolves the complaint;
    (4) Following a finding that a violation has occurred, resolves the 
complaint through final administrative enforcement action; or
    (5) Otherwise resolves the charge.
    (b) Notification of the EEOC. The section 504 agency shall notify 
the EEOC upon resolution of any dual-filed complaint or charge.
    (c) Agency review. After receipt of notification that the section 
504 agency has resolved the complaint, the EEOC shall promptly determine 
what further action by the EEOC is warranted. In reaching that 
determination, the EEOC shall give due weight to the section 504 
agency's findings and conclusions. If the EEOC proposes to take an 
action inconsistent with the section 504 agency's findings and 
conclusions as to whether a violation has occurred, the EEOC shall 
notify in writing the Assistant Attorney General, the Chairman of the 
EEOC, and the head of the section 504 agency that processed the 
complaint. In the written notification, the EEOC shall state the action 
that it proposes to take and the basis of its decision to take such 
action.
    (d) Provision of information. Upon written request, the section 504 
agency shall provide the EEOC with any materials relating to its 
resolution of the complaint, including its conclusions, investigative 
reports and files, and any voluntary compliance agreement.



Sec.  1640.12  Standards.

    In any investigation, compliance review, hearing or other 
proceeding, the standards used to determine whether section 504 has been 
violated in a complaint alleging employment discrimination shall be the 
standards applied under title I of the ADA and the provisions of 
sections 501 through 504, and 510, of the ADA, as such sections relate 
to employment. Section 504 agencies shall consider the regulations and 
appendix implementing title I of the ADA, set forth at 29 CFR part 1630, 
and case law arising under such regulations, in determining whether a 
recipient of Federal financial assistance has engaged in an unlawful 
employment practice.



Sec.  1640.13  Agency specific memoranda of understanding.

    When a section 504 agency amends its regulations to make them 
consistent with title I of the ADA, the EEOC and the individual section 
504 agency may elect to enter into a memorandum of understanding 
providing for the investigation and processing of complaints dual filed 
under both section 504 and title I of the ADA by the section 504 agency.



      PART 1641_PROCEDURES FOR COMPLAINTS/CHARGES OF EMPLOYMENT 
      DISCRIMINATION BASED ON DISABILITY FILED AGAINST EMPLOYERS HOLDING 
      GOVERNMENT CONTRACTS OR SUBCONTRACTS--Table of Contents



Sec.
1641.1 Purpose and application.
1641.2 Exchange of information.
1641.3 Confidentiality.
1641.4 Standards for investigations, hearings, determinations and other 
          proceedings.
1641.5 Processing of complaints filed with OFCCP.

[[Page 459]]

1641.6 Processing of charges filed with EEOC.
1641.7 Review of this part.
1641.8 Definitions.

    Authority: 42 U.S.C. 12117(b).

    Source: 57 FR 2962, 2964, Jan. 24, 1992, unless otherwise noted.



Sec.  1641.1  Purpose and application.

    The purpose of this part is to implement procedures for processing 
and resolving complaints/charges of employment discrimination filed 
against employers holding government contracts or subcontracts, where 
the complaints/charges fall within the jurisdiction of both section 503 
of the Rehabilitation Act of 1973 (hereinafter ``Section 503'') and the 
Americans with Disabilities Act of 1990 (hereinafter ``ADA''). The 
promulgation of this part is required pursuant to section 107(b) of the 
ADA. Nothing in this part should be deemed to affect the Department of 
Labor's (hereinafter ``DOL'') Office of Federal Contract Compliance 
Programs' (hereinafter ``OFCCP'') conduct of compliance reviews of 
government contractors and subcontractors under section 503. Nothing in 
this part is intended to create rights in any person.



Sec.  1641.2  Exchange of information.

    (a) EEOC and OFCCP shall share any information relating to the 
employment policies and practices of employers holding government 
contracts or subcontracts that may assist each office in carrying out 
its responsibilities. Such information shall include, but not 
necessarily be limited to, affirmative action programs, annual 
employment reports, complaints, charges, investigative files, and 
compliance review reports and files.
    (b) All requests by third parties for disclosure of the information 
described in paragraph (a) of this section shall be coordinated with the 
agency which initially compiled or collected the information.
    (c) Paragraph (b) of this section is not applicable to requests for 
data in EEOC files made by any State or local agency designated as a 
``FEP agency'' with which EEOC has a charge resolution contract and a 
work-sharing agreement containing the confidentiality requirements of 
sections 706(b) and 709(e) of title VII of the Civil Rights Act of 1964 
(42 U.S.C. 2000e et seq.). However, such an agency shall not disclose 
any of the information, initially compiled by OFCCP, to the public 
without express written approval by the Director of OFCCP.



Sec.  1641.3  Confidentiality.

    When the Department of Labor receives information obtained by EEOC, 
the Department of Labor shall observe the confidentiality requirements 
of sections 706(b) and 709(e) of title VII of the Civil Rights Act of 
1964, as incorporated by section 107(a) of the ADA, as would EEOC, 
except in cases where DOL receives the same information from a source 
independent of EEOC. Questions concerning confidentiality shall be 
directed to the Associate Legal Counsel for Legal Services, Office of 
Legal Counsel of EEOC.



Sec.  1641.4  Standards for investigations, hearings, determinations
and other proceedings.

    In any OFCCP investigation, hearing, determination or other 
proceeding involving a complaint/charge that is dual filed under both 
section 503 and the ADA, OFCCP will utilize legal standards consistent 
with those applied under the ADA in determining whether an employer has 
engaged in an unlawful employment practice. EEOC and OFCCP will 
coordinate the arrangement of any necessary training regarding the 
substantive or procedural provisions of the ADA, and of EEOC's 
implementing regulations (29 CFR part 1630 and 29 CFR part 1601).



Sec.  1641.5  Processing of complaints filed with OFCCP.

    (a) Complaints of employment discrimination filed with OFCCP will be 
considered charges, simultaneously dual filed, under the ADA whenever 
the complaints also fall within the jurisdiction of the ADA. OFCCP will 
act as EEOC's agent for the sole purposes of receiving, investigating 
and processing the ADA charge component of a section 503 complaint dual 
filed under the ADA, except as otherwise set forth in paragraph (e) of 
this section.

[[Page 460]]

    (b) Within ten days of receipt of a complaint of employment 
discrimination under section 503 (charge under the ADA), OFCCP shall 
notify the contractor/respondent that it has received a complaint of 
employment discrimination under section 503 (charge under the ADA). This 
notification shall state the date, place and circumstances of the 
alleged unlawful employment practice.
    (c) Pursuant to work-sharing agreements between EEOC and State and 
local agencies designated as FEP agencies, the deferral period for 
section 503 complaints/ADA charges dual filed with OFCCP will be waived.
    (d) OFCCP shall transfer promptly to EEOC a complaint of employment 
discrimination over which it does not have jurisdiction but over which 
EEOC may have jurisdiction. At the same time, OFCCP shall notify the 
complainant and the contractor/respondent of the transfer, the reason 
for the transfer, the location of the EEOC office to which the complaint 
was transferred and that the date OFCCP received the complaint will be 
deemed the date it was received by EEOC.
    (e) OFCCP shall investigate and process as set forth in this section 
all section 503 complaints/ADA charges dual filed with OFCCP, except as 
specifically provided in this paragraph. Section 503 complaints/ADA 
charges raising Priority List issues, those which also include 
allegations of discrimination of an individual nature on the basis of 
race, color, religion, sex, or national origin, and those which also 
include an allegation of discrimination on the basis of age will be 
referred in their entirety by OFCCP to EEOC for investigation, 
processing and final resolution, provided that such complaints/charges 
do not include allegations of violation of affirmative action 
requirements under section 503. In such a situation, OFCCP will 
bifurcate the complaints/charges and refer to EEOC the Priority List 
issues or allegations of discrimination on the basis of race, color, 
religion, sex, national origin, or age. OFCCP shall normally retain, 
investigate, process and resolve all allegations of discrimination, over 
which it has jurisdiction, of a systemic or class nature on the basis of 
race, color, religion, sex, or national origin that it receives. 
However, in appropriate cases the EEOC may request that it be referred 
such allegations so as to avoid duplication of effort and assure 
effective law enforcement.
    (1) No cause section 503 complaints/ADA charges. If the OFCCP 
investigation of the section 503 complaint/ADA charge results in a 
finding of no violation under section 503 (no cause under the ADA), 
OFCCP will issue a determination of no violation/no cause under both 
section 503 and the ADA, and issue a right-to-sue letter under the ADA, 
closing the complaint/charge.
    (2) Cause section 503 complaints/ADA charges--(i) Successful 
conciliation. If the OFCCP investigation of the section 503 complaint/
ADA charge results in a finding of violation under section 503 (cause 
under the ADA), OFCCP will issue a finding of violation/cause under both 
section 503 and ADA. OFCCP shall attempt conciliation to obtain 
appropriate full relief for the complainant (charging party), consistent 
with EEOC's standards for remedies. If conciliation is successful and 
the contractor/respondent agrees to provide full relief, the section 503 
complaint/ADA charge will be closed and the conciliation agreement will 
state that the complainant (charging party) agrees to waive the right to 
pursue the subject issues further under section 503 and/or the ADA.
    (ii) Unsuccessful conciliation. All section 503 complaints/ADA 
charges not successfully conciliated will be considered for OFCCP 
administrative litigation under section 503, consistent with OFCCP's 
usual procedures. (See 41 CFR part 60-741, subpart B.) If OFCCP pursues 
administrative litigation under section 503, OFCCP will close the 
complaint/charge at the conclusion of the litigation process (including 
the imposition of appropriate sanctions), unless the complaint/charge is 
dismissed on procedural grounds or because of a lack of jurisdiction, or 
the contractor/respondent fails to comply with an order to provide make 
whole relief. In these three cases, OFCCP will refer the matter to EEOC 
for any action it deems appropriate. If EEOC declines to pursue further 
action, it will issue a notice of right-to-sue. If OFCCP does not pursue

[[Page 461]]

administrative enforcement, it will close the section 503 component of 
the complaint/charge and refer the ADA charge component to EEOC for 
litigation review under the ADA. If EEOC declines to litigate, EEOC will 
close the ADA charge and issue a notice of right-to-sue.
    (f) Consistent with the ADA procedures set forth at 29 CFR 1601.28, 
OFCCP shall promptly issue upon request a notice of right-to-sue after 
180 days from the date the complaint/charge was filed. Issuance of a 
notice of right-to-sue shall terminate further OFCCP processing of any 
complaint/charge unless it is determined at that time or at a later time 
that it would effectuate the purposes of section 503 and/or the ADA to 
further process the complaint/charge.
    (g) If an individual who has already filed a section 503 complaint 
with OFCCP subsequently attempts to file or files an ADA charge with 
EEOC covering the same facts and issues, EEOC will decline to accept the 
charge (or, alternatively, dismiss a charge that has been filed) on the 
grounds that such charge has already been filed under the ADA, 
simultaneous with the filing of the earlier section 503 complaint, and 
will be processed by OFCCP in accordance with the provisions of this 
section.



Sec.  1641.6  Processing of charges filed with EEOC.

    (a) ADA cause charges falling within the jurisdiction of section 503 
that the Commission has declined to litigate. ADA cause charges that 
also fall within the jurisdiction of section 503 and that the Commission 
has declined to litigate will be referred to OFCCP for review of the 
file and any administrative action deemed appropriate under section 503. 
Such charges will be considered to be complaints, simultaneously dual 
filed under section 503, solely for the purposes of OFCCP review and 
administrative action described in this paragraph.
    (b) ADA charges which also include allegations of failure to comply 
with section 503 affirmative action requirements. ADA charges filed with 
EEOC, in which both allegations of discrimination under the ADA and 
violation of affirmative action requirements under section 503 are made, 
will be referred in their entirety to OFCCP for processing and 
resolution under section 503 and the ADA, unless the charges also 
include allegations of discrimination on the basis of race, color, 
religion, sex, national origin or age, or include allegations involving 
Priority List issues, or the charges are otherwise deemed of particular 
importance to EEOC's enforcement of the ADA. In such situations, EEOC 
will bifurcate the charges and retain the ADA component of the charges 
(and when applicable, the allegations pertaining to discrimination on 
the basis of race, color, religion, sex, national origin or age), 
referring the section 503 affirmative action component of the charges to 
OFCCP for processing and resolution under section 503. ADA charges which 
raise both discrimination issues under the ADA and section 503 
affirmative action issues will be considered complaints, simultaneously 
dual filed under section 503, solely for the purposes of referral to 
OFCCP for processing, as described in this paragraph.
    (c) EEOC shall transfer promptly to OFCCP a charge of disability-
related employment discrimination over which it does not have 
jurisdiction, but over which OFCCP may have jurisdiction. At the same 
time, EEOC shall notify the charging party and the contractor/respondent 
of the transfer, the reason for the transfer, the location of the OFCCP 
office to which the charge was transferred and that the date EEOC 
received the charge will be deemed the date it was received by OFCCP.
    (d) Except as otherwise stated in paragraphs (a) and (b) of this 
section, individuals alleging violations of laws enforced by DOL and 
over which EEOC has no jurisdiction will be referred to DOL to file a 
complaint.
    (e) If an individual who has already filed an ADA charge with EEOC 
subsequently attempts to file or files a section 503 complaint with 
OFCCP covering the same facts and issues, OFCCP will accept the 
complaint, but will adopt as a disposition of the complaint EEOC's 
resolution of the ADA charge (including EEOC's termination of 
proceedings upon its issuance of a notice of right-to-sue).

[[Page 462]]



Sec.  1641.7  Review of this part.

    This part shall be reviewed by the Chairman of the EEOC and the 
Director of OFCCP periodically, and as appropriate, to determine whether 
changes to the part are necessary or desirable, and whether the part 
should remain in effect.



Sec.  1641.8  Definitions.

    As used in this part, the term:
    ADA refers to title I of the Americans with Disabilities Act of 1990 
(42 U.S.C. 12101 et seq.).
    Affirmative action requirements refers to affirmative action 
requirements required by DOL pursuant to section 503 of the 
Rehabilitation Act of 1973, that go beyond the nondiscrimination 
requirements imposed by the ADA.
    Chairman of the EEOC refers to the Chairman of the U.S. Equal 
Employment Opportunity Commission, or his or her designee.
    Complaint/Charge means a section 503 complaint/ADA charge. The terms 
are used interchangeably.
    Director of the Office of Federal Contract Compliance Programs 
refers to that individual or his or her designee.
    DOL means the U.S. Department of Labor, and where appropriate, any 
of its headquarters or regional offices.
    EEOC means the U.S. Equal Employment Opportunity Commission, and 
where appropriate, any of its headquarters, district, area, local, or 
field offices.
    Government means the government of the United States of America.
    Priority List refers to a document listing a limited number of 
controversial topics under the ADA on which there is not yet definitive 
guidance setting forth EEOC's position. The Priority List will be 
jointly developed and periodically reviewed by EEOC and DOL. Any policy 
documents involving Priority List issues will be coordinated between DOL 
and EEOC pursuant to Executive Order 12067 (3 CFR, 1978 Comp., p. 206) 
prior to final approval by EEOC.
    OFCCP means the Office of Federal Contract Compliance Programs, and 
where appropriate, any of its regional or district offices.
    Section 503 refers to section 503 of the Rehabilitation Act of 1973 
(29 U.S.C. 793).
    Section 503 complaint/ADA charge refers to a complaint that has been 
filed with OFCCP under section 503 of the Rehabilitation Act, and has 
been deemed to be simultaneously dual filed with EEOC under the ADA.



PART 1650_DEBT COLLECTION--Table of Contents



    Subpart A_Procedures for the Collection of Debts by Salary Offset

Sec.
1650.101 Purpose.
1650.102 Delegation of authority.
1650.103 Scope.
1650.104 Definitions.
1650.105 Notice of Debt.
1650.106 Right to inspect and copy records related to the debt.
1650.107 Voluntary repayment agreements.
1650.108 Waiver.
1650.109 Hearing.
1650.110 Procedures for salary offset.
1650.111 Recovery from other payments due a separated employee.
1650.112 Interest, penalties, and administrative costs.
1650.113 Non-waiver of rights by payments.
1650.114 Refunds.

 Subpart B_Procedures for the Collection of Debts by Federal Tax Refund 
                                 Offset

1650.201 Purpose.
1650.202 Past-due legally enforceable debt.
1650.203 Notification of intent to collect.
1650.204 Reasonable attempt to notify.
1650.205 Consideration of evidence submitted as a result of notification 
          of intent.
1650.206 Notification to Treasury.
1650.207 Administrative charges.

  Subpart C_Procedures for Collection of Debts by Administrative Offset

1650.301 Purpose and regulatory procedures for the collection of debts 
          by administrative offset.

Subpart D_Procedures for the Collection of Debts by Administrative Wage 
                               Garnishment

1650.401 Purpose and regulatory procedures for the collection of debts 
          by administrative wage garnishment.

    Authority: 31 U.S.C. 3701 et seq.
    Subpart A also issued under 5 U.S.C. 5514; 5 CFR 550.1101.
    Subpart B also issued under 31 U.S.C. 3720A; 31 CFR 285.5(d)(4).
    Subpart C also issued under 31 U.S.C. 3716.

[[Page 463]]

    Subpart D also issued under 31 U.S.C. 3720D.

    Source: 73 FR 49093, Aug. 20, 2008, unless otherwise noted.



    Subpart A_Procedures for the Collection of Debts by Salary Offset



Sec.  1650.101  Purpose.

    This subpart sets forth the procedures to be followed in the 
collection by salary offset of debts owed to the United States under 5 
U.S.C. 5514. The general standards and procedures governing the 
collection, compromise, termination, and referral to the Department of 
Justice of claims for money and property that are prescribed in the 
regulations issued jointly by the Secretary of the Treasury and the 
Attorney General of the United States, the Federal Claims Collection 
Standards (31 CFR Parts 900-904), apply to the administrative collection 
activities of the EEOC. Debts owed by current federal employees to 
Government travel charge card contractors will be collected in 
accordance with the regulations issued by the General Services 
Administration at 41 CFR part 301-54.



Sec.  1650.102  Delegation of authority.

    The Chair delegated to the Chief Human Capital Officer the authority 
to collect debts owed by current EEOC employees, and to the Chief 
Financial Officer the authority to collect debts owed by former EEOC 
employees and non-EEOC employees.



Sec.  1650.103  Scope.

    (a) This subpart applies to the collection of certain debts by 
salary offset against an employee's disposable pay.
    (1) This subpart applies to collections by the EEOC from:
    (i) Federal employees who are indebted to the EEOC; and
    (ii) EEOC employees who are indebted to other agencies.
    (2) This subpart does not apply:
    (i) To debts or claims arising under the Internal Revenue Code of 
1986 (26 U.S.C. 1 et seq.), the Social Security Act 42 U.S.C. 301 et 
seq., or the tariff laws of the United States;
    (ii) In any case where collection of a debt is explicitly provided 
for or prohibited by another statute (e.g., travel advances in 5 U.S.C. 
5705 and employee training expenses in 5 U.S.C. 4108).
    (b) Nothing in this subpart precludes the compromise, suspension, or 
termination of collection actions where appropriate under the standards 
implementing the Federal Claims Collection Act, 31 U.S.C. 3711, namely, 
31 CFR Parts 900-904; or the waiver of a debt where appropriate under 5 
U.S.C. 5584 or 5 U.S.C. 5524a.



Sec.  1650.104  Definitions.

    For the purpose of this subpart, terms are defined as follows:
    (a) Agency means:
    (1) An Executive agency as defined in section 105 of title 5, United 
States Code, including the U.S. Postal Service and the U.S. Postal Rate 
Commission;
    (2) A military department as defined in section 102 of title 5, 
United States Code;
    (3) An agency or court in the judicial branch, including a court as 
defined in section 610 of title 28, United States Code, the District 
Court for the Northern Mariana Islands, and the Judicial Panel on 
Multidistrict Litigation;
    (4) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (5) Other independent establishments that are entities of the 
Federal Government.
    (b) Commission means those officers, employees, and agents of the 
Equal Employment Opportunity Commission who are responsible for debt 
collection activities.
    (c) Debt means money owed by an employee of the Federal Government 
to an agency of the Federal Government, including direct loans, loans 
insured or guaranteed by the United States and all other amounts due the 
Government from fees, leases, rents, royalties, services, sales of real 
or personal property, overpayments, penalties, damages, interest, fines 
and forfeitures (except those arising under the Uniform Code of Military 
Justice), erroneous salary payments, and all other similar amounts owing 
to the Federal Government.

[[Page 464]]

    (d) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, or, in the case of an 
employee not entitled to basic pay, other authorized pay remaining after 
the deduction of any amount required by law to be withheld. Deductions 
described in 5 CFR 581.105(b) through (f) will be used to determine 
disposable pay subject to salary offset.
    (e) Employee means a current employee of an agency, including a 
current member of the Armed Forces or a Reserve of the Armed Forces 
(Reserves).
    (f) Salary Offset means the collection of a debt under 5 U.S.C. 5514 
by deduction(s) at one or more officially established pay intervals from 
the current pay account of an employee without his or her consent.



Sec.  1650.105  Notice of Debt.

    (a) Timing and contents of notice. Notice of the Commission's intent 
to collect a debt by salary offset shall be given at least 30 days 
before salary offset deductions are to begin. The written notice shall 
include the following:
    (1) The Commission's determination that a debt is owed, including 
the origin, nature, and amount of the debt;
    (2) The Commission's intention to collect the debt by means of 
deduction from the employee's current disposable pay account until the 
debt and all accumulated interest, penalties, and administrative costs 
are paid in full;
    (3) The estimated amount, frequency, beginning date, and duration of 
the intended deductions;
    (4) An explanation of the Commission's policy concerning interest, 
penalties, and administrative costs;
    (5) The employee's right to inspect and copy the Commission's 
records pertaining to the debt or to receive copies of such records if 
the employee is unable personally to inspect the records, due to 
geographical or other constraints;
    (6) The opportunity to propose a voluntary repayment schedule and 
agreement that is acceptable to the Commission in lieu of the proposed 
offset;
    (7) The employee's right to a hearing conducted by an impartial 
hearing official (an Administrative Law Judge or an individual not under 
the supervision or control of the Chair) with respect to the existence 
and amount of the debt claimed or the repayment schedule (i.e., the 
percentage of disposable pay to be deducted each pay period); the method 
and time period for requesting a hearing; that the timely request for a 
hearing will stay the commencement of collection proceedings; and that a 
final decision will be issued at the earliest practical date, but not 
later than 60 days after receipt of the hearing request;
    (8) The employee's right to request a waiver under 5 U.S.C. 5584 or 
5 U.S.C. 5524a, or compromise under 31 U.S.C. 3711;
    (9) The making of any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under 5 U.S.C. chapter 75, 5 
CFR part 752, or any other applicable statutes or regulations;
    (ii) Penalties under the False Claims Act, 31 U.S.C. 3729 et seq., 
or under any other applicable statutory authority; or
    (iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or 
under any other applicable statutory authority; and
    (10) Unless there are applicable contractual or statutory provisions 
to the contrary, amounts paid on or deducted from debts that are later 
waived or found not to be owed to the United States will be promptly 
refunded to the employee.
    (b) Exception to the advance notice requirement. Advance notice 
under paragraph (a) of this section is not required:
    (1) Where an adjustment to pay arises out of an employee's election 
of coverage, or change in coverage, under a Federal benefits program 
requiring periodic deductions from the employee's pay and the amount to 
be recovered was accumulated over four pay periods or less;
    (2) Where a routine intra-agency adjustment of pay is made to 
correct an overpayment of pay attributable to clerical or administrative 
errors or delays in processing pay documents, if the overpayment 
occurred within the

[[Page 465]]

four pay periods preceding the adjustment and, at the time of such 
adjustment, or as soon thereafter as practical, the individual is 
provided written notice of the nature and the amount of the adjustment 
and a point of contact for contesting such adjustment;
    (3) Where any adjustment of pay to collect a debt amounting to $50 
or less is made, if, at the time of such adjustment, or as soon 
thereafter as practical, the individual is provided written notice of 
the nature and the amount of the adjustment and a point of contact for 
contesting such adjustment; or
    (4) Where an employee consents to withholdings from his or her 
current pay account.
    (c) Receipt of notice of debt. The Notice of Debt will be sent by 
certified mail, return-receipt requested. The date on which the return-
receipt is signed is the date on which the employee is deemed to have 
received the Notice of Debt.



Sec.  1650.106  Right to inspect and copy records related to the debt.

    An employee who desires to inspect or copy Commission records 
related to the debt must send a request to the official designated in 
the Notice of Debt. In response, the Commission will notify the employee 
of the location and time when the employee may inspect and copy the 
records or send copies of such records to the employee.



Sec.  1650.107  Voluntary repayment agreements.

    (a) In response to a Notice of Debt, an employee may propose a 
written repayment schedule in lieu of the proposed salary offset. Any 
proposal under this subsection must be received by the office of the 
official designated in the notice within 15 calendar days after receipt 
of the Notice of Debt.
    (b) It is within the Commission's discretion to accept or reject a 
voluntary repayment proposal. The Commission shall send the employee a 
written decision.
    (c) If the Commission decides that the proposed repayment schedule 
is unacceptable, and that the written proposed repayment schedule was 
timely received, the employee shall have a further 15 days from the date 
he or she received the decision on the proposed repayment schedule in 
which to file a request for a hearing.
    (d) If the Commission decides that the proposed repayment schedule 
is acceptable, the agreement shall be put in writing and signed by both 
the employee and the Commission.



Sec.  1650.108  Waiver.

    The Commission may waive debts, to the extent authorized by 5 U.S.C. 
5584, arising out of erroneous payments of pay, when collection would be 
against equity and good conscience and not in the best interests of the 
United States, and so long as there is no indication of fraud, fault, or 
lack of good faith on the part of the employee. Interest, penalties, and 
administrative costs may also be waived under 31 U.S.C. 3717(h) and 31 
CFR 901.9(g), on a case-by-case basis, if collection would be against 
equity and good conscience and not in the best interests of the United 
States.



Sec.  1650.109  Hearing.

    (a) Request for a hearing. An employee who wants a hearing on the 
existence of the debt, its amount, or on the proposed offset schedule 
must send a written request to the official designated in the Notice of 
Debt. The request for a hearing must be received by the designated 
office on or before the 15th calendar day following receipt by the 
employee of the Notice of Debt. The request must be signed by the 
employee and must contain a brief summary of the facts, evidence, and 
witnesses, if any, that the employee believes support his or her 
position. If the employee wants an oral hearing, the request must also 
explain why the matter cannot be resolved by review of documentary 
evidence alone (e.g., how an issue of credibility or veracity is 
involved). Because proof of the existence or amount of a debt rarely 
requires an evaluation of the credibility of witnesses, oral hearings 
will only rarely be granted. The timely filing of a request for hearing 
shall automatically stay the commencement of collection proceedings.
    (b) Failure to timely submit. If the request for hearing is late, 
the Commission may still grant the request if the employee can show that 
the delay was

[[Page 466]]

the result of circumstances beyond his or her control or that he or she 
failed to receive actual notice of the filing deadline.
    (c) Procedure--(1) Hearing official. The hearing official will be an 
Administrative Law Judge or an individual who is not under the 
supervision or control of the Chair.
    (2) Notice. The hearing official shall notify the employee whether 
the hearing will be oral or documentary. If the hearing will be oral, 
the notice shall set forth the date, time, and location of the hearing, 
which must occur no more than 30 days after the request is received. If 
the hearing will be conducted by examination of documents, the employee 
shall be notified that he or she should submit evidence and arguments in 
writing to the hearing official by a specified date after which the 
record shall be closed. This date shall give the employee reasonable 
time to submit documentation.
    (3) Oral hearing. The hearing official may grant a request for an 
oral hearing if he or she determines that the issues raised by the 
employee cannot be resolved by review of documentary evidence alone 
(e.g., when credibility or veracity are at issue). An oral hearing is 
not required to be an adversarial adjudication, and the hearing official 
is not required to apply rules of evidence. Oral hearings may take the 
form of, but are not limited to:
    (i) Informal conferences with the hearing official in which the 
employee and agency representative are given a full opportunity to 
present evidence, witnesses, and argument;
    (ii) Informal meetings in which the hearing examiner interviews the 
employee and, as necessary, others with relevant evidence; or
    (iii) Formal written submissions followed by an opportunity for oral 
presentation. Witnesses who testify in oral hearings shall do so under 
oath or affirmation.
    (4) Documentary hearing. If an oral hearing is not necessary, the 
hearing official shall make the determination based upon a review of the 
written record.
    (d) Record. The hearing official shall maintain a summary record of 
any hearing conducted under this section.
    (e) Date of decision. The hearing official shall issue a written 
decision as soon as practicable after the hearing, but not later than 60 
days after the date on which the request for hearing was received by the 
Commission, unless the hearing was delayed at the request of the 
employee, in which case the 60 day decision period shall be extended by 
the number of days by which the hearing was postponed.
    (f) Content of decision. The written decision shall include:
    (1) A summary of the facts concerning the origin, nature, and amount 
of the debt;
    (2) The hearing official's findings, analysis, and conclusions; and
    (3) The revised terms of any repayment schedule, if applicable.
    (g) Failure to appear. In the absence of good cause, if the employee 
or the representative of the agency fails to appear, the hearing 
official shall proceed with the hearing as scheduled, and make his or 
her determination based upon the oral testimony presented and the 
documentation submitted by both parties.



Sec.  1650.110  Implementation of salary offset.

    (a) Method of collection. A debt will be collected in a lump sum or 
by installment deductions at officially established pay intervals from 
an employee's current pay account, unless the employee and the 
Commission agree in writing to alternate arrangements for repayment.
    (b) Source of deductions. Deductions will be made only from basic 
pay, special pay, incentive pay, retired pay, retainer pay or in the 
case of an employee not entitled to basic pay, other authorized pay.
    (c) Duration of deductions. Debts will be collected in one lump sum 
when possible to minimize interest costs and administrative processing 
fees for the employee. If the employee is financially unable to pay in 
one lump sum and the amount of debt exceeds 15 percent of the employee's 
disposable pay for an officially established pay interval, collection by 
offset will be made in installments. Such installment deductions will be 
made over a period not greater than the anticipated period of

[[Page 467]]

active duty or employment of the employee and, except in rare 
circumstances, not to exceed 3 years.
    (d) Limitation on amount of deductions. The size and frequency of 
installment deductions will bear a reasonable relationship to the size 
of the debt and the employee's ability to pay. The amount deducted for 
any period, however, will not exceed 15 percent of the disposable pay 
from which the deduction is made, unless the employee has agreed in 
writing to the deduction of a greater amount. Installment payments of 
less than $25 will be accepted only in the most unusual circumstances.
    (e) When deductions may begin. (1) If the employee files a timely 
request for hearing, or a proposed voluntary repayment agreement, 
deductions will begin in the next bi-weekly salary payment after a final 
decision is issued on the request or repayment proposal.
    (2) If the employee fails to submit a timely request for hearing or 
proposal for a voluntary repayment agreement, deductions will commence 
in the next bi-weekly salary payment after the expiration of 30 days 
following the employee's receipt of the Notice of Debt under 
1650.105(c).
    (f) Lump-sum deduction from final check. When the employee retires, 
resigns, or ends his or her period of active duty before the debt is 
collected in full, the employee's debt will be automatically deducted 
from the final payments (e.g., final salary payment, lump-sum leave, 
etc.) due the employee to the extent necessary to liquidate the debt. If 
the employee's final pay is not sufficient to permit all deductions to 
be made, the order of precedence for the deductions will be: Retirement 
and FICA; Medicare; Federal income taxes; health benefits; group life 
insurance; indebtedness due to the United States; State income taxes; 
and voluntary deductions and allotments.



Sec.  1650.111  Recovery from other payments due a separated employee.

    When a debt owed to EEOC has not been completely liquidated through 
salary offset and the employee has separated from EEOC, the Commission 
shall, pursuant to 31 U.S.C. 3716 and the Federal Claims Collection 
Standards, 31 CFR parts 900-904, seek to offset the balance of the debt 
against any financial payment due the employee from the U.S. Government.



Sec.  1650.112  Interest, penalties, and administrative costs.

    Unless a debt is paid in full within 30 days of receipt of the 
Notice of Debt, the Commission will charge interest at the rate 
established in accordance with 31 U.S.C. 3717 effective on the date of 
delinquency, and a processing charge pursuant to 31 U.S.C. 3717. The 
Commission will charge a penalty, pursuant to 31 U.S.C. 3717(e)(2) not 
to exceed 6 percent a year, on the amount due on a debt that is 
delinquent more than 90 days. This charge shall accrue from the date of 
delinquency. If an employee files a timely proposal for a repayment 
agreement, request for waiver, or a request for a hearing, interest, 
penalties, and administrative costs will be suspended during the time 
the Commission is considering such request(s).



Sec.  1650.113  Non-waiver of rights by payments.

    An employee's payment of all or any portion of a debt collected by 
salary offset will not be construed as a waiver of any right the 
employee may have under 5 U.S.C. 5514 or any other provision of contract 
or law, unless there are statutory or contractual provisions to the 
contrary.



Sec.  1650.114  Refunds.

    Amounts paid, or deducted by salary offset, by an employee for a 
debt that is waived or otherwise not found owing to the United States 
will be refunded promptly to the employee. Refunds do not bear interest 
unless required by law or contract.



 Subpart B_Procedures for the Collection of Debts by Federal Tax Refund 
                                 Offset



Sec.  1650.201  Purpose.

    This subpart establishes procedures for EEOC to refer past-due 
legally enforceable debts to the Department of the Treasury (Treasury) 
for offset against the income tax refunds of persons owing debts to EEOC 
pursuant to 31 U.S.C. 3720A and 31 CFR 285.2. The

[[Page 468]]

general standards and procedures governing the collection, compromise, 
termination, and referral to the Department of Justice of claims for 
money and property that are prescribed in the regulations issued jointly 
by the Secretary of the Treasury and the Attorney General of the United 
States, the Federal Claims Collection Standards (31 CFR parts 900-904), 
apply to the administrative collection activities of the EEOC.



Sec.  1650.202  Past-due legally enforceable debt.

    A past due, legally enforceable debt is a debt:
    (a) That accrued within ten years of referral to Treasury;
    (b) That is at least $25.00; and
    (c) That the agency has made reasonable efforts to collect by:
    (1) Submitting the debt to Treasury, Financial Management Service, 
for collection by Administrative Offset and complying with 31 U.S.C. 
3716(a) and related regulations, to the extent that collection by 
administrative offset is not prohibited by statute;
    (2) Notifying, or making a reasonable attempt to notify, the debtor 
that the debt is past-due, and unless repaid within 60 days after the 
date of the notice, will be referred to Treasury for tax refund offset;
    (3) Giving the debtor at least 60 days from the date of notification 
to present evidence that all or part of the debt is not past-due or 
legally enforceable, considering any evidence presented by such debtor, 
and determining that an amount of such debt is past-due and legally 
enforceable; and
    (4) Providing the debtor with an opportunity to make a written 
agreement to repay the amount of the debt.



Sec.  1650.203  Notification of intent to collect.

    EEOC's notification of intent to collect by tax refund offset shall 
provide:
    (a) The amount of the debt;
    (b) That unless the debt is repaid within 60 days from the date of 
EEOC's notification of intent, EEOC intends to collect the debt by 
requesting Treasury to offset an amount equal to the amount of the debt 
and all accumulating interest and other charges against any overpayment 
of tax after liabilities subject to 26 U.S.C. 6402(a) and (c) have been 
satisfied;
    (c) A mailing address for forwarding any written correspondence and 
a contact and a telephone number for any questions;
    (d) That the debtor may make a written agreement with EEOC to repay 
the amount of the debt; and
    (e) That the debtor may present evidence within 60 days to EEOC that 
all or part of the debt is not past due or legally enforceable by:
    (1) Sending a written request for a review of the evidence to the 
address provided in the notification;
    (2) Stating in the request for review the amount disputed and the 
reasons why the debtor believes that the debt is not past-due or is not 
legally enforceable; and
    (3) Including in the request for review any documents that the 
debtor wishes to be considered, or stating that the additional 
information will be submitted within the remainder of the 60 day period.



Sec.  1650.204  Reasonable attempt to notify.

    In order to constitute a reasonable attempt to notify the debtor, 
EEOC may use the last known address on record with the EEOC. In 
addition, the EEOC may attempt to obtain a more current address from 
notices returned by the United States Postal Service, or by using the 
Treasury's Internal Revenue Service (IRS) address inquiry. If the debtor 
cannot be notified by EEOC through these procedures, the debt will be 
sent to Treasury for collection.



Sec.  1650.205  Consideration of evidence submitted as a result of 
notification of intent.

    (a) Consideration of evidence. If, as a result of the notification 
of intent, EEOC receives notice that the debtor will submit additional 
evidence or receives additional evidence from the debtor within the 
prescribed time period, collection will be stayed until EEOC:
    (1) Considers the evidence presented by the debtor;

[[Page 469]]

    (2) Determines whether all or a portion of the debt is still past-
due and legally enforceable; and
    (3) Notifies the debtor of its determination.


Failure to submit the evidence within 60 days from the date of 
notification of intent will result in a referral of the debt to 
Treasury.
    (b) Notification to the debtor. Following its review of the 
evidence, EEOC will issue a written decision notifying the debtor 
whether EEOC has sustained, amended, or canceled its determination that 
the debt is past-due and legally enforceable. The notice will advise the 
debtor of any further action to be taken, such as any modification of 
the debt amount and/or referral of the debt to Treasury, and explain the 
supporting rationale for the decision.



Sec.  1650.206  Notification to Treasury.

    (a) When referring a debt to Treasury, EEOC will certify that the 
debt meets all of the requirements in Sec.  1650.202 and will provide 
the name, taxpayer identifying number (as defined in 26 U.S.C. 6109) of 
the debtor, the amount of the debt, the date on which the debt became 
past-due, and the designation of EEOC as the agency referring the debt.
    (b) After EEOC's initial notification and referral of a debt to 
Treasury for offset against a debtor's Federal income tax refund, EEOC 
will promptly notify Treasury of any changes in the notification, if 
EEOC:
    (1) Determines that an error has been made with respect to the 
information contained in the notification;
    (2) Receives a payment or credits a payment to the account of the 
debtor named in the notification that reduces the amount of the debt 
referred to Treasury for offset; or
    (3) Refunds all or part of the offset amount to the debtor.
    (c) When EEOC requests Treasury to increase the amount of a debt 
owed by a debtor named in EEOC's original notification to Treasury, EEOC 
will certify that the additional amount meets all of the requirements in 
Sec.  1650.202.
    (d) If the amount of a debt is reduced after referral by EEOC and 
offset by the Treasury, EEOC will refund to the debtor any excess amount 
and will promptly notify the Treasury of any refund made by EEOC.



Sec.  1650.207  Administrative charges.

    All administrative charges incurred in connection with the referral 
of a debt to the Treasury and all costs of collection of the debt will 
be assessed on the debt and thus increase the amount of the offset.



  Subpart C_Procedures for Collection of Debts by Administrative Offset



Sec.  1650.301  Purpose and regulatory procedures for the collection of
debts by administrative offset.

    The Commission hereby adopts by cross-reference the administrative 
offset regulation issued by the Department of the Treasury at 31 CFR 
285.5. The general standards and procedures governing the collection, 
compromise, termination, and referral to the Department of Justice of 
claims for money and property that are prescribed in the regulations 
issued jointly by the Secretary of the Treasury and the Attorney General 
of the United States, the Federal Claims Collection Standards (31 CFR 
Parts 900-904), apply to the administrative collection activities of the 
EEOC. The authority to collect debts by administrative offset is 
delegated to the CFO.



Subpart D_Procedures for the Collection of Debts by Administrative Wage 
                               Garnishment



Sec.  1650.401  Purpose and regulatory procedures for the collection of
debts by administrative wage garnishment.

    The Commission hereby adopts by cross-reference the administrative 
wage garnishment regulation issued by the Department of the Treasury at 
31 CFR 285.11. The general standards and procedures governing the 
collection, compromise, termination, and referral to the Department of 
Justice of claims for money and property that are prescribed in the 
regulations issued jointly by the Secretary of the Treasury and the 
Attorney General of the United States, the Federal Claims Collection 
Standards (31 CFR Parts 900-904), apply

[[Page 470]]

to the administrative collection activities of the EEOC. The authority 
to collect debts by administrative wage garnishment is delegated to the 
CFO.



PART 1690_PROCEDURES ON INTERAGENCY COORDINATION OF EQUAL EMPLOYMENT 
OPPORTUNITY ISSUANCES--Table of Contents



                            Subpart A_General

Sec.
1690.101 Subject.
1690.102 Purpose.
1690.103 Supersession.
1690.104 Authority.
1690.105 Policy intent.
1690.106 Scope.
1690.107 Definitions.

                       Subpart B_Responsibilities

1690.201 Responsibilities.

                    Subpart C_Policies and Procedures

1690.301 Notification to EEOC during development of issuances.
1690.302 Issuances proposed by EEOC.
1690.303 Consultation with affected agencies.
1690.304 Coordination of proposed issuance.
1690.305 Nondisclosure of proposed issuances.
1690.306 Formal submission in absence of consultation.
1690.307 Temporary waivers.
1690.308 Notice of unresolved disputes.
1690.309 Interpretation of the Order.

                    Subpart D_Reporting Requirements

1690.401 Reporting requirements.

    Authority: Sec. 715 of title VII of the Civil Rights Act of 1964, as 
amended, (42 U.S.C. 2000e-14); Reorganization Plan No. 1 of 1978, 43 FR 
19807; E.O. 12067, 43 FR 28967.

    Source: 45 FR 68361, Oct. 14, 1980, unless otherwise noted.



                            Subpart A_General



Sec.  1690.101  Subject.

    Procedures on Interagency Coordination of Equal Employment 
Opportunity Issuances.



Sec.  1690.102  Purpose.

    These regulations prescribe the means by which review and 
consultation shall occur between the Equal Employment Opportunity 
Commission and other Federal agencies having responsibility for 
enforcement of Federal statutes, Executive Orders, regulations and 
policies which require equal employment opportunity without regard to 
race, color, religion, sex, national origin, age or disability. 
Subsequent regulations will expand on standards for the coordination of 
specific matters referenced or alluded to herein.

[45 FR 68361, Oct. 14, 1980, as amended at 74 FR 63984, Dec. 7, 2009]



Sec.  1690.103  Supersession.

    None. These regulations are the first in a series of instructions 
issued by EEOC pursuant to its authority under Executive Order 12067.



Sec.  1690.104  Authority.

    These regulations are prepared pursuant to the Equal Employment 
Opportunity Commission's obligation and authority under sections 1-303 
and 1-304 of Executive Order 12067 (Providing for Coordination of 
Federal Equal Employment Opportunity Programs) 43 FR 28967, July 5, 
1978. (These regulations will also appear as EEOC Management Directive 
No. 1000).



Sec.  1690.105  Policy intent.

    These procedures will govern the conduct of such agencies in the 
development of uniform standards, guidelines and policies for defining 
discrimination, uniform procedures for investigations and compliance 
reviews and uniform recordkeeping and reporting requirements and 
training programs. These procedures will also facilitate information 
sharing and programs to develop appropriate publications and other 
cooperative programs. The goals of uniformity and consistency are to be 
achieved with the maximum participation and review on both an informal 
and formal basis by the relevant Federal agencies and, finally, by the 
public.



Sec.  1690.106  Scope.

    These regulations apply to Federal agencies having equal employment 
opportunity program responsibilities or authority other than equal 
employment responsibilities for their own Federal employees or 
applicants for

[[Page 471]]

employment. Its provisions do not apply to issuances related to internal 
management or administration of the agency.



Sec.  1690.107  Definitions.

    (a) Affected agency means any agency whose programs, policies, 
procedures, authority or other statutory mandates (including coverage of 
groups of employers, unions, State and local governments or other 
organizations mandated by statute or Executive Order) indicate that the 
agency may have an interest in the proposed issuance.
    (b) Agencies means those Executive and independent agencies, agency 
components, regulatory commissions, and advisory bodies having equal 
employment opportunity program responsibilities or authority other than 
equal employment opportunity responsibilities for their own Federal 
employees.
    (c) Consultation means the exchange of advice and opinions on a 
subject occurring among the EEOC and affected agencies before formal 
submission of the issuance.
    (d) Formal submission means the transmittal of a written, 
publication-ready document by the issuing agency to the EEOC and other 
affected agencies for at least 15 working days from date of receipt. The 
formal submission shall take place before the publication of any 
issuance as a final document.
    (e) Internal or administrative documents, pursuant to 1-304 of the 
Order, may include, but are not limited to, forms for internal audit and 
recordkeeping; forms for performance and program evaluation; internal 
directives dealing with program accountability; routine intra-agency 
budget forms; intra-agency agreements; correspondence which does not 
transmit significant new policy interpretations or program standards 
having an impact upon other Federal agencies; tables of organization; 
and other documents setting forth administrative procedures for the 
conduct of programs. Internal or administrative documents do not include 
compliance manuals, training materials, publications or any other 
internal documents setting forth procedures for the resolution of 
complaints, standards of review or proof, or any other policies, 
standards or directives having implications for non-Federal employees.
    (f) Issuance refers to any rule, regulation, guideline, order, 
policy directive, procedural directive, legislative proposal, 
publication, or data collection or recordkeeping instrument. It also 
includes agency documents as described above, or revisions of such 
documents, developed pursuant to court order. Issuance does not include 
orders issued to specific parties as a result of adjudicatory-type 
processes.
    (g) Order means Executive Order 12067 (Providing for Coordination of 
Federal Equal Employment Opportunity Programs).
    (h) Public announcement means the publication of a document in final 
form in the Federal Register or any other promulgation for general 
agency or public reference.
    (i) Significant issuance means any issuance which the public must be 
afforded an opportunity to comment upon. In determining whether an 
issuance is significant, the EEOC shall apply the following criteria:
    (1) The type and number of individuals, businesses, organizations, 
employers, labor unions, or State and local governments affected;
    (2) The compliance and reporting requirements likely to be involved;
    (3) The impact on the identification and elimination of 
discrimination in employment;
    (4) The relationship of the proposed issuance to those of other 
programs and agencies.

[45 FR 68361, Oct. 14, 1980, as amended at 45 FR 71799, Oct. 30, 1980]



                       Subpart B_Responsibilities



Sec.  1690.201  Responsibilities.

    (a) The Associate Legal Counsel, Coordination and Guidance Services 
is responsible for coordinating the consultation and review process with 
other agencies on any issuances covered by the Order.
    (b) All Federal agencies shall advise and offer to consult with the 
EEOC during the development of any proposed issuances, concerning equal 
employment opportunity which affect the

[[Page 472]]

obligations of employers, labor organizations, employment agencies or 
other Federal agencies.
    (c) The Equal Employment Opportunity Commission shall advise and 
offer to consult with the affected Federal agencies during the 
development of any proposed issuances concerning equal employment 
opportunity which affect the obligations of employers, labor 
organizations, employment agencies or other Federal agencies.

[45 FR 68361, Oct. 14, 1980, as amended at 47 FR 46276, Oct. 18, 1982]



                    Subpart C_Policies and Procedures



Sec.  1690.301  Notification to EEOC during development of issuances.

    (a) Agencies shall notify the Commission whenever they intend to 
develop a significant issuance or an issuance affecting other agencies 
so that potential duplication, overlap, or inconsistency with the 
proposed issuances of other agencies can be identified before 
substantial agency time and resources have been expended. The 
requirement for consultation applies whether or not the agency plans to 
publish the issuance in the Federal Register for public comment.
    (b) Whenever an agency of the Federal government (initiating agency) 
develops a proposed issuance which will require consultation among the 
affected agencies, a responsible official of that agency or agency 
component shall initiate consultation by submitting an early draft of 
the appropriate documents, preferably after review at the first or 
second supervisory level, to the chair of the EEOC (ATTN: Associate 
Legal Counsel, Coordination and Guidance Services). The submission shall 
be made prior to the point that the issuance is deemed final and ready 
for publication and shall indicate the appropriate office or person 
responsible for development of the issuance.
    (c) EEOC recognizes that subsequent intra-agency clearance 
activities may change the policies outlined in the issuance and may add 
or delete items included in prior drafts. Therefore, during this period 
of policy development, an initiating agency shall not be bound by the 
contents of drafts which precede the final draft.
    (d) Except as provided in Sec.  1690.307, in no instance shall there 
be formal submission to the EEOC or the affected agencies without prior 
consultation pursuant to section 1-304 of the Order.
    (e) Where an agency issuance is related to the internal management 
or administration of the agency, the issuance is exempt from the 
consultation process under the Order. The initiating agencies will make 
the determination of what must be submitted. When the agencies are in 
doubt, EEOC will determine the extent to which a particular issuance is 
covered by this exemption.

[45 FR 68361, Oct. 14, 1980, as amended at 47 FR 46276, Oct. 18, 1982]



Sec.  1690.302  Issuances proposed by EEOC.

    Whenever the EEOC proposes to develop a significant issuance or any 
issuance requiring consultation, the procedure outlined in these 
regulations, shall also apply, as set forth in section 1-303 of the 
Order. The EEOC shall advise and consult with other affected agencies 
whenever it develops an issuance, in the same manner and to the same 
extent as other agencies are required to do in Sec.  1690.301 of this 
part, and in other sections below.



Sec.  1690.303  Consultation with affected agencies.

    At the start of consultation, the EEOC shall determine which other 
agencies would be affected by the proposed issuance, and the initiating 
agency shall consult with such agencies. Initiating agencies shall also 
consult with other agencies which claim that their internal equal 
employment opportunity or personnel programs are affected by proposed 
issuances otherwise directed at external equal employment opportunity 
efforts. Agencies may consult with any other agencies that they believe 
would be affected by the issuance. The consultation period shall be 
determined by the parties. During the consultation period, the EEOC 
shall seek to resolve any disputes with the initiating agency before 
publication.

[[Page 473]]



Sec.  1690.304  Coordination of proposed issuance.

    (a) Procedure for publication of proposed issuance. (1) If the 
initiating agency, after consultation with EEOC, proposes to publish the 
issuance for purposes of receiving comments from the public, it shall 
confer with EEOC and agree on a mutually agreeable length of time, no 
less than 15 working days, during which the proposal shall be submitted 
to all affected Federal agencies pursuant to section 1-304 of the Order. 
The period of review shall be sufficient to allow all affected agencies 
reasonable time in which to properly review the proposal.
    (2) When an affected agency wishes an extension of the review 
period, it shall make such request of the initiating agency. If the 
initiating agency does not grant the request, the affected agency may 
then make that request of EEOC. EEOC may, at its discretion, grant the 
additional time requested, whereupon EEOC will inform the initiating 
agency which shall extend the review period. EEOC shall also inform the 
initiating agency of the reasons for the extension.
    (3) After 15 working days, if the EEOC has not requested an 
extension of time or otherwise communicated the need for more time to 
review the proposal, the initiating agency may proceed to publication of 
the proposed significant issuance for public comment for at least 60 
days.
    (4) During this public comment period, certain issues may be 
submitted to employer and employee representatives for comment pursuant 
to section 2(c) of Executive Order 12044 (Improving Government 
Regulations) which requires that agencies give the public an early and 
meaningful opportunity to participate in the development of significant 
regulations.
    (b) Procedure for publication of final issuance. After the period 
for public comment has closed, the initiating agency shall then 
incorporate the changes it deems appropriate and forward to EEOC for 
review, a copy of the document as published, a copy of the document as 
amended, with changes highlighted, any staff analysis, and a list of 
commentors. EEOC or affected agencies may review and copy the comments 
received. The time needed to review these materials shall be agreed on 
by the EEOC and the initiating agency. After completion of this review, 
the initiating agency shall formally submit the proposed final issuance 
to all affected agencies for at least 15 working days prior to 
publication.



Sec.  1690.305  Nondisclosure of proposed issuances.

    (a) In the interest of encouraging full interagency discussion of 
these matters and expediting the coordination process, the EEOC will not 
discuss the proposed issuances of other agencies at an open Commission 
meeting where disclosure of information would be likely to significantly 
frustrate implementation of a proposed agency action. The Commission 
will make this determination on a case by case basis.
    (b) Requests by the public for drafts of proposed issuances of 
another agency will be coordinated, in appropriate circumstances, with 
that agency and the person submitting the request shall be so notified. 
The decision made by that agency with respect to such proposed issuances 
will be honored by the Commission.

[45 FR 68361, Oct. 14, 1980, as amended at 45 FR 71799, Oct. 30, 1980]



Sec.  1690.306  Formal submission in absence of consultation.

    If an initiating agency has an issuance which was already under 
development on or before July 1, 1978, when Executive Order 12067 became 
effective, and on which there has been no consultation, the agency shall 
immediately notify the EEOC of the existence of such proposals and the 
following procedure shall apply:
    (a) EEOC shall confer with the initiating agency and shall determine 
whether the proposal should be the subject of informal consultation and/
or formal submission to other affected Federal agencies pursuant to 
section 1-304 of the Order. This does not preclude the right of the 
agency to consult with any other agency it wishes.
    (b) If the EEOC decides that informal consultation and/or formal 
submission is necessary, it shall confer with the proposing agency and 
agree on a mutually acceptable length of time for one

[[Page 474]]

or both (the informal consultation and/or formal submission).
    (c) The period of formal submission shall be sufficient to allow all 
affected agencies time in which to properly review the proposal. While 
such period may be longer, in no instance may it be shorter than 15 
working days.



Sec.  1690.307  Temporary waivers.

    (a) In the event that the proposed issuance is of great length or 
complexity, the EEOC may, at its discretion, grant a temporary waiver of 
the requirements contained in Sec.  1690.303 or Sec.  1690.304. Such 
waivers may be granted if:
    (1) The period of consultation and thorough review required for 
these documents would be so long as to disrupt normal agency operations; 
or
    (2) The initiating agency is issuing a document to meet an immediate 
statutory deadline; or
    (3) The initiating agency presents other compelling reasons why 
interim issuance is essential.
    (b) In the event of a waiver, the initiating agency shall clearly 
indicate that the issuance is interim, has been published pursuant to a 
wavier, and is subject to review. EEOC reserves the right, after 
publication, to review the document in light of the objectives of the 
Order. The initiating agency may make substantive conforming changes in 
light of comments by EEOC and other affected agencies.

[45 FR 68361, Oct. 14, 1980, as amended at 45 FR 71799, Oct. 30, 1980]



Sec.  1690.308  Notice of unresolved disputes.

    (a) The disputes resolution mechanism in section 1-307 of the 
Executive Order should be used only in extraordinary circumstances, and 
only when further good faith efforts on the part of the EEOC and the 
agency involved would be ineffective in achieving a resolution of the 
dispute. Before using the disputes resolution mechanism, the EEOC or the 
initiating agency must have fully participated in the coordination 
process, including giving notification to the EEOC and the affected 
agencies of its intention to publish in final within 15 working days.
    (b) EEOC or the affected agency shall then send written notification 
of the dispute and the reasons for it to the EEOC and to the other 
affected agencies. Thereafter, but within the 15 day notice period, the 
EEOC or the affected agency may refer the dispute to the Executive 
Office of the President. Such reference may be made by the Chair of the 
EEOC or the head of the Federal agency. If no reference is made within 
15 working days, the decision of the agency which initiated the proposed 
issuance will become effective.



Sec.  1690.309  Interpretation of the Order.

    Subject to the dispute resolution procedures set forth above and in 
accordance with the objectives set forth in 1-201 and the procedures in 
1-303 of the Order, the EEOC shall interpret the meaning and intent of 
the Order. EEOC also will issue procedural changes under the Order, as 
appropriate, after advice and consultation with affected agencies as 
provided for in these procedures.



                    Subpart D_Reporting Requirements



Sec.  1690.401  Reporting requirements.

    The regulations do not establish reporting requirements other than 
the required notices of proposed rulemaking and formal and informal 
review.



PART 1691_PROCEDURES FOR COMPLAINTS OF EMPLOYMENT DISCRIMINATION FILED
AGAINST RECIPIENTS OF FEDERAL FINANCIAL ASSISTANCE--Table of Contents



Sec.
1691.1 Purpose and application.
1691.2 Exchange of information.
1691.3 Confidentiality.
1691.4 Standards for investigation, reviews and hearings.
1691.5 Agency processing of complaints of employment discrimination.
1691.6 General rules concerning EEOC action on complaints.
1691.7 EEOC dismissals of complaints.
1691.8 Agency action on complaints dismissed by EEOC.
1691.9 EEOC reasonable cause determinations and conciliation efforts.

[[Page 475]]

1691.10 Agency enforcement of unresolved complaints.
1691.11 EEOC negotiated settlements and conciliation agreements.
1691.12 Interagency consultation.
1691.13 Definitions.

    Authority: E.O. 12250, 45 FR 72995 (November 4, 1980) and E.O. 
12067, 43 FR 28967 (June 30, 1978).

    Source: 48 FR 3574, Jan. 25, 1983, unless otherwise noted.



Sec.  1691.1  Purpose and application.

    The purpose of this regulation is to implement procedures for 
processing and resolving complaints of employment discrimination filed 
against recipients of Federal financial assistance subject to title VI 
of the Civil Rights Act of 1964, title IX of the Education Amendments of 
1972, the State and Local Fiscal Assistance Act of 1972, as amended, and 
provisions similar to title VI and title IX in Federal grant statutes. 
Enforcement of such provisions in Federal grant statutes is covered by 
this regulation to the extent they relate to prohibiting employment 
discrimination on the ground of race, color, national origin, religion 
or sex in programs receiving Federal financial assistance of the type 
subject to title VI or title IX. This regulation does not, however, 
apply to the Omnibus Crime Control and Safe Streets Act of 1968, as 
amended, the Juvenile Justice and Delinquency Prevention Act, as 
amended, the Comprehensive Employment Training Act of 1973, as amended, 
or Executive Order 11246.



Sec.  1691.2  Exchange of information.

    EEOC and agencies shall share any information relating to the 
employment policies and practices of recipients of Federal financial 
assistance that may assist each office in carrying out its 
responsibilities. Such information shall include, but not necessarily be 
limited to, affirmative action programs, annual employment reports, 
complaints, investigative files, conciliation or compliance agreements, 
and compliance review reports and files.



Sec.  1691.3  Confidentiality.

    When an agency receives information obtained by EEOC, the agency 
shall observe the confidentiality requirements of sections 706(b) and 
709(e) of title VII as would EEOC, except in cases where the agency 
receives the same information from a source independent of EEOC or has 
referred a joint complaint to EEOC under this regulation. In such cases, 
the agency may use independent source information or information 
obtained by EEOC under the agency's investigative authority in a 
subsequent title VI, title IX or revenue sharing act enforcement 
proceeding. Agency questions concerning confidentiality shall be 
directed to the Deputy Legal Counsel, EEOC.

[48 FR 3574, Jan. 25, 1983, as amended at 52 FR 4902, Feb. 18, 1987]



Sec.  1691.4  Standards for investigation, reviews and hearings.

    In any investigation, compliance review, hearing or other 
proceeding, agencies shall consider title VII case law and EEOC 
Guidelines, 29 CFR parts 1604-1607, unless inapplicable, in determining 
whether a recipient of Federal financial assistance has engaged in an 
unlawful employment practice.



Sec.  1691.5  Agency processing of complaints of employment discrimination.

    (a) Within ten days of receipt of a complaint of employment 
discrimination, an agency shall notify the respondent that it has 
received a complaint of employment discrimination, including the date, 
place and circumstances of the alleged unlawful employment practice.
    (b) Within thirty days of receipt of a complaint of employment 
discrimination an agency shall:
    (1) Determine whether it has jurisdiction over the complaint under 
title VI, title IX, or the revenue sharing act; and
    (2) Determine whether EEOC may have jurisdiction over the complaint 
under title VII or the Equal Pay Act.
    (c) An agency shall transfer to EEOC a complaint of employment 
discrimination over which it does not have jurisdiction but over which 
EEOC may have jurisdiction within thirty days of receipt of a complaint. 
At the same time, the agency shall notify the complainant and the 
respondent of the transfer,

[[Page 476]]

the reason for the transfer, the location of the EEOC office to which 
the complaint was transferred and that the date the agency received the 
complaint will be deemed the date it was received by EEOC.
    (d) If an agency determines that a complaint of employment 
discrimination is a joint complaint, then the agency may refer the 
complaint to EEOC. The agency need not consult with EEOC prior to such a 
referral. An agency referral of a joint complaint should occur within 
thirty days of receipt of the complaint.
    (e) An agency shall refer to EEOC all joint complaints solely 
alleging employment discrimination against an individual. If an agency 
determines that special circumstances warrant its investigation of such 
a joint complaint, then the agency shall determine whether the 
complainant has filed a similar charge of employment discrimination with 
EEOC.
    (1) If an agency determines that the complainant has filed a similar 
charge of employment discrimination with EEOC, then the agency may 
investigate the complaint if EEOC agrees to defer its investigation 
pending the agency investigation.
    (2) If an agency determines that the complainant has not filed a 
similar charge of employment discrimination with EEOC, then the agency 
may investigate the complaint if special circumstances warrant such 
action. In such cases, EEOC shall defer its investigation of the 
referred joint complaint pending the agency investigation.
    (f) An agency shall not refer to EEOC a joint complaint alleging a 
pattern or practice of employment discrimination unless special 
circumstances warrant agency referral of the complaint to EEOC.
    (g) If a joint complaint alleges discrimination in employment and in 
other practices of a recipient, an agency should, absent special 
circumstances, handle the entire complaint under the agency's own 
investigation procedures. In such cases, the agency shall determine 
whether the complainant has filed a similar charge of employment 
discrimination with EEOC. If such a charge has been filed, the agency 
and EEOC shall coordinate their activities. Upon agency request, EEOC 
should ordinarily defer its investigation pending the agency 
investigation.
    (h) When a joint complaint is referred to EEOC for investigation, 
the agency shall advise EEOC of the relevant civil rights provision(s) 
applicable to the employment practices of the recipient, whether the 
agency wants to receive advance notice of any conciliation negotiations, 
whether the agency wants EEOC to seek information concerning the 
relationship between the alleged discrimination and the recipient's 
Federally assisted programs or activities and, where appropriate, 
whether a primary objective of the Federal financial assistance is to 
provide employment. The agency shall also notify the complainant and the 
recipient of the referral, the location of the EEOC office to which the 
complaint was referred, the identity of the civil rights provision(s) 
involved, the authority of EEOC under this regulation and that the date 
the agency received the complaint will be deemed the date it was 
received by EEOC. Specifically, the notice shall inform the recipient 
that the agency has delegated to EEOC its investigative authority under 
title VI, title IX, or the revenue sharing act, and the relevant act's 
implementing regulations. The agency, therefore, may use information 
obtained by EEOC under the agency's investigative authority in a 
subsequent title VI, title IX or revenue sharing act enforcement 
proceeding.



Sec.  1691.6  General rules concerning EEOC action on complaints.

    (a) A complaint of employment discrimination filed with an agency, 
which is transferred or referred to EEOC under this regulation, shall be 
deemed a charge received by EEOC. For all purposes under title VII and 
the Equal Pay Act, the date such a complaint was received by an agency 
shall be deemed the date it was received by EEOC.
    (b) When EEOC investigates a joint complaint it shall, where 
appropriate, seek sufficient information to allow the referring agency 
to determine whether the alleged employment discrimination is in a 
program or activity

[[Page 477]]

that receives Federal financial assistance and/or whether the alleged 
employment discrimination causes discrimination with respect to 
beneficiaries or potential beneficiaries of the assisted program.
    (c) Upon referral of a joint complaint alleging a pattern or 
practice of employment discrimination, EEOC generally will limit its 
investigation to the allegation(s) which directly affect the 
complainant.
    (d) If EEOC, in the course of an investigation of a joint complaint, 
is unable to obtain information from a recipient through voluntary 
means, EEOC shall consult with the referring agency to determine an 
appropriate course of action.
    (e) If EEOC agrees to defer its investigation of a complaint of 
employment discrimination pending an agency investigation of the 
complaint, then EEOC shall give due weight to the agency's determination 
concerning the complaint.



Sec.  1691.7  EEOC dismissals of complaints.

    If EEOC determines that the title VII allegations of a joint 
complaint should be dismissed, EEOC shall notify the complainant and the 
recipient of the reason for the dismissal and the effect the dismissal 
has on the complainant's rights under the relevant civil rights 
provision(s) of the referring agency, and issue a notice of right to sue 
under title VII. At the same time, EEOC shall transmit to the referring 
agency a copy of EEOC's file.



Sec.  1691.8  Agency action on complaints dismissed by EEOC.

    Upon EEOC's transmittal of a dismissal under Sec.  1691.7 of this 
part, the referring agency shall determine within thirty days, what, if 
any, action the agency intends to take with respect to the complaint and 
then notify the complainant and the recipient. In reaching that 
determination, the referring agency shall give due weight to EEOC's 
determination that the title VII allegations of the joint complaint 
should be dismissed. If the referring agency decides to take action with 
respect to a complaint that EEOC has dismissed for lack of reasonable 
cause to believe that title VII has been violated, the agency shall 
notify the Assistant Attorney General and the Chairman of the EEOC in 
writing of the action it plans to take and the basis of its decision to 
take such action.



Sec.  1691.9  EEOC reasonable cause determinations and conciliation 
efforts.

    (a) If EEOC, after investigation of a joint complaint, determines 
that reasonable cause exists to believe that title VII has been 
violated, EEOC shall advise the referring agency, the complainant and 
the recipient of that determination and attempt to resolve the complaint 
by informal methods of conference, conciliation and persuasion. If EEOC 
would like the referring agency to participate in conciliation 
negotiations, EEOC shall so notify the agency and the agency shall 
participate. EEOC shall provide advance notice of any conciliation 
negotiations to referring agencies that request such notice, whether or 
not EEOC requests their participation in the negotiations.
    (b) If EEOC's efforts to resolve the complaint by informal methods 
of conference, conciliation and persuasion fail, EEOC shall:
    (1) Issue a notice of failure of conciliation to the recipient in 
accordance with 29 CFR 1601.25;
    (2) Transmit to the referring agency a copy of EEOC's investigative 
file, including its Letter of Determination and notice of failure of 
conciliation;
    (3) If the recipient is not a government, governmental entity or 
political subdivision, determine whether EEOC will bring suit under 
title VII and, in accordance with 29 CFR 1601.28, issue a notice of 
right to sue under title VII;
    (4) If the recipient is a government, governmental entity or 
political subdivision, refer the matter to the Attorney General in 
accordance with 29 CFR 1601.29. The Attorney General, or his or her 
delegate, will determine whether the Department of Justice will bring 
suit under title VII and, in accordance with 29 CFR 1601.28, issue a 
notice of right to sue under title VII.



Sec.  1691.10  Agency enforcement of unresolved complaints.

    (a) Upon EEOC's transmittal of a reasonable cause determination and 
notice

[[Page 478]]

of failure of conciliation under Sec.  1691.9(b)(2) of this regulation, 
the referring agency shall determine, within thirty days, whether the 
recipient has violated any applicable civil rights provision(s) which 
the agency has a responsibility to enforce. The referring agency shall 
give due weight to EEOC's determination that reasonable cause exists to 
believe that title VII has been violated.
    (b) If the referring agency determines that the recipient has 
violated any applicable civil rights provision(s) which the agency has a 
responsibility to enforce, the agency shall so notify the complainant 
and the recipient and determine whether further efforts to obtain 
voluntary compliance are warranted. In reaching that determination, the 
agency shall give due weight to the failure of EEOC's efforts to resolve 
the complaint by informal methods. If the referring agency determines 
that further efforts to obtain voluntary compliance are not warranted or 
if such further efforts fail, the agency shall initiate appropriate 
enforcement proceedings under its own regulations.
    (c) If the referring agency determines that the recipient has not 
violated any applicable civil rights provision(s) which the agency has a 
responsibility to enforce, the agency shall notify the complainant, the 
recipient, the Assistant Attorney General and the Chairman of the EEOC 
in writing of the basis of that determination.



Sec.  1691.11  EEOC negotiated settlements and conciliation agreements.

    If the parties enter into a negotiated settlement (as described in 
29 CFR 1601.20) prior to a determination or a conciliation agreement (as 
described in 29 CFR 1601.24) after a determination, EEOC shall notify 
the referring agency that the complaint has been settled. The agency 
shall take no further action on the complaint of employment 
discrimination thereafter except that the agency may take the existence 
of the complaint into account in scheduling the recipient for a review 
under the agency's regulations.



Sec.  1691.12  Interagency consultation.

    (a) Before investigating whether the employment practices of a 
recipient of Federal financial assistance constitute a pattern or 
practice of unlawful discrimination or initiating formal administrative 
enforcement procedures on that basis, an agency shall, to the extent 
practical, consult with the Chairman of the EEOC and the Assistant 
Attorney General to assure that duplication of effort will be minimized.
    (b) Prior to the initiation of any legal action against a recipient 
of Federal financial assistance alleging unlawful employment practices, 
the Department of Justice and/or EEOC shall, to the extent practical, 
notify the appropriate agency or agencies of the proposed action and the 
substance of the allegations.



Sec.  1691.13  Definitions.

    As used in this regulation, the term:
    (a) Agency means any Federal department or agency which extends 
Federal financial assistance subject to any civil rights provision(s) to 
which this regulation applies.
    (b) Assistant Attorney General refers to the Assistant Attorney 
General, Civil Rights Division, United States Department of Justice, or 
his or her delegate.
    (c) Chairman of the EEOC refers to the Chairman of the Equal 
Employment Opportunity Commission, or his or her delegate.
    (d) EEOC means the Equal Employment Opportunity Commission and, 
where appropriate, any of its District Offices and its Washington Field 
Office.
    (e) Federal financial assistance includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interests in 
property,
    (3) The detail of Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.

[[Page 479]]


For purposes of this regulation, the term Federal financial assistance 
also includes funds disbursed under the revenue sharing act.
    (f) Joint complaint means a complaint of employment discrimination 
covered by title VII or the Equal Pay Act and by title VI, title IX, or 
the revenue sharing act.
    (g) Recipient means any State, political subdivision of any State, 
or instrumentality of any State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assign, or transferee thereof, but such term 
does not include any ultimate beneficiary under such program.
    (h) Revenue sharing act refers to the State and Local Fiscal 
Assistance Act of 1972, as amended, 31 U.S.C. 1221 et seq.
    (i) Title VI refers to title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d to 2000d-4. Where appropriate, title VI also refers to the 
civil rights provisions of other Federal statutes or regulations to the 
extent that they prohibit employment discrimination on the grounds of 
race, color, religion, sex or national origin in programs receiving 
Federal financial assistance of the type subject to title VI itself.
    (j) Title VII refers to title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. 2000e, et seq.
    (k) Title IX refers to title IX of the Education Amendments of 1972, 
20 U.S.C. 1681 to 1683.

[48 FR 3574, Jan. 25, 1983, as amended at 54 FR 32063, Aug. 4, 1989]

                       PARTS 1692	1694 [RESERVED]



PART 1695_GUIDANCE PROCEDURES--Table of Contents



Sec.
1695.0 Applicability.
1695.1 Definitions.
1695.2 Guidance requirements.
1695.3 Good faith cost estimates.
1695.4 Significance determination.
1695.5 Significant guidance requirements.
1695.6 Notice and public comment.
1695.7 Petitions.
1695.8 Public access to current guidance documents.
1695.9 Rescinded guidance.
1695.10 No judicial review or enforceable rights.

    Authority: 5 U.S.C. 553, 42 U.S.C. 2000e-12, 29 U.S.C. 201 et seq., 
29 U.S.C. 628, 42 U.S.C. 12116, 42 U.S.C. 2000ff-10; E.O. 13891, 84 FR 
55235; OMB Memorandum M-20-02.

    Source: 85 FR 69170, Nov. 2, 2020, unless otherwise noted.



Sec.  1695.0  Applicability.

    This part prescribes general procedures that apply to guidance 
documents of the Equal Employment Opportunity Commission (EEOC or 
Commission) under all statutes enforced by the Commission.



Sec.  1695.1  Definitions.

    (a) Guidance document means any statement of Commission policy or 
interpretation concerning a statute, regulation, or technical matter 
within its jurisdiction that is intended to have general applicability 
and future effect, but which is not intended to be binding in its own 
right and is not otherwise required by statute to satisfy the rulemaking 
procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556. The term is not 
confined to formal written documents, and may include letters, 
memoranda, circulars, bulletins, and advisories that set forth for the 
first time a new regulatory policy. It may also include equivalent 
video, audio, and web-based formats. The definition does not apply to:
    (1) Rules promulgated pursuant to notice and comment requirements 
under 5 U.S.C. 553 or similar statutory provisions.
    (2) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a);
    (3) Rules of Commission organization, procedure, or practice;
    (4) Decisions of Commission adjudications under 5 U.S.C. 554 or 
similar statutory provisions;
    (5) Internal executive branch legal advice or legal advisory 
opinions addressed to executive branch officials;
    (6) Commission statements of specific applicability, including 
advisory or legal opinions directed to particular parties about 
circumstance-specific questions, notices regarding particular

[[Page 480]]

locations or facilities, and correspondence with individual persons or 
entities;
    (7) Legal briefs, other court filings, or positions taken in 
litigation or enforcement actions;
    (8) Commission statements that do not set forth a policy on a 
statutory, regulatory, or technical issue or an interpretation of a 
statute or regulation, including speeches and individual presentations, 
PowerPoint slides, editorials, media interviews, press materials, or 
congressional testimony that do not set forth for the first time a new 
regulatory policy;
    (9) Guidance pertaining to military or foreign affairs functions;
    (10) Grant solicitations and awards;
    (11) Contract solicitations and awards; or
    (12) Purely internal Commission policies or guidance directed solely 
to EEOC employees or contractors or to other Federal agencies that are 
not anticipated to have substantial future effect on the behavior of 
regulated parties outside of the government; for example, Volume I of 
the Commission's Compliance Manual, which is only for internal use.
    (b) Significant guidance document. (1) Significant guidance document 
means a guidance document that will be disseminated to regulated 
entities or the general public and that may reasonably be anticipated:
    (i) To lead to an annual effect on the economy of $100 million or 
more or adversely affect in a material way the U.S. economy, a sector of 
the U.S. economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities;
    (ii) To create serious inconsistency or otherwise interfere with an 
action taken or planned by another Federal agency;
    (iii) To alter materially the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (iv) To raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
E.O. 12866, as further amended.
    (2) It does not include any other category of guidance documents 
exempted in writing by OMB's Office of Information and Regulatory 
Affairs (OIRA).



Sec.  1695.2  Guidance requirements.

    (a) Each guidance document shall comply with all relevant statutes 
and regulations.
    (b) It shall be written in plain and understandable English and 
avoid using mandatory language, such as ``shall,'' ``must,'' 
``required,'' or ``requirement,'' unless the language describes an 
established statutory or regulatory requirement or is addressed to EEOC 
staff and will not foreclose the Commission's consideration of positions 
advanced by affected private parties;
    (c) It shall identify or include:
    (1) The term ``guidance'' or its functional equivalent and that the 
Commission is issuing the document;
    (2) A unique identifier that provides information on whether the 
document was subject to a vote (CV) or not (NVTA), the year of issuance, 
and unique number of its issuance and, if applicable, a Z-RIN;
    (3) The activity or entities to which the guidance applies;
    (4) A short summary of the subject matter covered in the guidance 
document at the top of the document.
    (5) A statement noting whether the guidance is intended to revise or 
replace any previously issued guidance and, if so, sufficient 
information to identify the previously issued guidance; and
    (6) Citations to applicable statutes and regulations;
    (7)(i) A clear and prominent statement of the following: ``The 
contents of this document do not have the force and effect of law and 
are not meant to bind the public in any way. This document is intended 
only to provide clarity to the public regarding existing requirements 
under the law or Commission policies.''
    (ii) When binding guidance is authorized by law or is incorporated 
into contract, the language in paragraph (c)(7)(i) of this section may 
be modified to reflect either of those facts.
    (d) If the guidance document sets forth the Commission's position on 
a

[[Page 481]]

legal principle for the first time or changes the Commission's legal 
position on any issue, the Commission must approve the guidance document 
by majority vote. Any significant guidance or guidance that is otherwise 
subject to notice and comment procedures must be approved by a 
Commission vote. Any guidance document that requires a vote of the 
Commission to be approved shall be circulated to the Commissioners, and, 
if approved, shall be signed by the Chair on behalf of the Commission. 
If the document is not setting forth a new or changed legal position, is 
reiterating already established Commission policies, or is otherwise 
simply providing technical assistance on the laws the Commission 
enforces without announcing any new policy or legal position, it shall 
be circulated to the Commission for informational purposes for a period 
of not less than five days, unless emergency circumstances do not allow, 
and shall only require approval, but not signature, by the Chair.



Sec.  1695.3  Good faith cost estimates.

    (a) A good faith effort shall be made, to the extent practicable, to 
estimate the likely economic cost impact of the guidance document to 
determine whether the document might be significant. It may, however, be 
difficult to predict with precision the economic impact of voluntary 
guidance.
    (b) When determining the likely economic cost impact, the same level 
of analysis should be given as that required for a major determination 
under the Congressional Review Act (5 U.S.C. 801 et seq.) and the 
economic impact on small entities under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.).



Sec.  1695.4  Significance determination.

    (a) Prior to issuance, the Commission shall provide OIRA with an 
opportunity to review a guidance document to determine if it meets the 
definition of ``significant guidance document.''
    (b) If the guidance document is determined not to be significant, 
the Commission shall proceed with issuance of the guidance without going 
through the procedures described in Sec.  1695.5.
    (c) In emergency situations, or when required by statutory deadline 
or court order to act more quickly than normal review procedures allow, 
the Chair shall notify OIRA and all Commissioners as soon as possible 
and, to the extent practicable, comply with the requirements of this 
part at the earliest opportunity.



Sec.  1695.5  Significant guidance requirements.

    (a) Each proposed significant guidance document shall be:
    (1) Approved by the Commission before issuance and assigned a Z-RIN 
through the Regulatory Management System (RMS), or a successor data 
management system.
    (2) Comply with the applicable requirements for regulations, 
including significant regulatory actions, in E.O. 12866, E.O. 13563, 
E.O. 13609, E.O. 13771, and E.O. 13777.
    (3) Submitted to OMB for coordinated review. Proposed guidance 
documents that are otherwise important to the Commission's interests may 
also be submitted for review.
    (4) Reviewed by OIRA under E.O. 12866 before issuance.
    (b) The Chair may determine that it is appropriate to coordinate 
with OMB in the review of guidance documents that are otherwise of 
importance to the Commission's interests.



Sec.  1695.6  Notice and public comment.

    (a) Each proposed significant guidance document shall have a period 
of notice and public comment of at least 30 days, unless the Commission, 
in consultation with OIRA, finds good cause that such notice and public 
comment are impracticable, unnecessary, or contrary to the public 
interest, and incorporates such finding and a brief statement of reasons 
therefor into the guidance document.
    (b) Notice shall be published in the Federal Register announcing 
that a draft of the proposed guidance document is publicly available on 
the Federal e-regulation website, and the proposed significant guidance 
document also shall be posted on the Commission website.

[[Page 482]]

    (c) The Commission shall prepare and post a public response to major 
concerns raised in the comments, as appropriate, either before or when 
the significant guidance document is finalized and issued.
    (d) When appropriate, the Chair may determine that a guidance 
document that is not otherwise required to go through notice and public 
comment shall also be subject to a period of public comment following 
the document's approval by the Commission before the document becomes 
effective.
    (e) Unless otherwise determined in writing by the Chair, upon 
issuing a significant guidance document, a report shall be submitted to 
Congress and GAO in accordance with the procedures described in 5 U.S.C. 
801 (the ``Congressional Review Act'').



Sec.  1695.7  Petitions.

    (a) Any interested person may petition the Commission, in writing, 
for the issuance, amendment, or repeal of a guidance. Such petition 
shall state the guidance, regulation, or rule, together with a statement 
of grounds in support of such petition.
    (b) Petitions may be filed with the EEOC, Office of Executive 
Secretariat, either electronically at the EEOC guidance portal, http://
www.eeoc.gov/guidance, or in hard copy to U.S. Equal Employment 
Opportunity Commission, Executive Secretariat, 131 M Street NE, 
Washington, DC 20507.
    (c) Upon the filing of such petition, the Commission shall consider 
the same and may thereupon either grant or deny the petition in whole or 
in part, conduct an appropriate proceeding thereon, or make other 
disposition of the petition.
    (d) The Commission should respond to all petitions in a timely 
manner, but no later than 90 days after receipt of the petition, as to 
how it intends to proceed. Should the petition be denied in whole or in 
part, prompt notice shall be given of the denial, accompanied by a 
simple statement of the grounds unless the denial be self-explanatory.
    (e) The issuance, amendment, or repeal of a guidance in response to 
a petition shall be considered by the Commission pursuant to its regular 
procedures.



Sec.  1695.8  Public access to current guidance documents.

    (a) All current guidance documents shall be published with a unique 
identifier including, at a minimum, the document's title, date of 
issuance or revision, and its Z-RIN (if applicable).
    (b) All current guidance documents shall made available through a 
single ``guidance portal'' on the Commission website, together with a 
single, searchable, indexed database available to the public;
    (c) The guidance portal shall include a statement that guidance 
documents lack the force and effect of law, except as authorized by law 
or as incorporated into a contract;
    (d) The Commission shall maintain and advertise on its website a 
means for the public to comment electronically on any guidance documents 
that are subject to the notice and comment procedures described in Sec.  
1695.6 and to submit requests electronically for issuance, 
reconsideration, modification, or rescission of guidance documents in 
accordance with Sec.  1695.7; and
    (e) Designate an office to receive and address complaints from the 
public that the Commission is not following the relevant requirements 
for issuing guidance or is improperly treating a guidance document as a 
binding requirement.



Sec.  1695.9  Rescinded guidance.

    The Commission shall not cite, use, or rely on guidance documents 
that are rescinded, except to establish historical facts.



Sec.  1695.10  No judicial review or enforceable rights.

    This part is intended to improve the internal management of the 
Commission. As such, it is for the use of EEOC personnel only and is not 
intended to, and does not, create any right or benefit, substantive or 
procedural, enforceable at law or in equity by any party against the 
United States, its agencies or other entities, its officers or 
employees, or any other person.

                       PARTS 1696	1899 [RESERVED]

[[Page 483]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 485]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2022)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 486]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 487]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  U.S. International Development Finance Corporation 
                (Parts 4300--4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 488]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)
        CI  National Mediation Board (Parts 10100--10199)
       CII  U.S. Office of Special Counsel (Parts 10200--10299)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 800--899)

[[Page 489]]

        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  [Reserved]
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  [Reserved]
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

[[Page 490]]

         L  Rural Business-Cooperative Service, and Rural 
                Utilities Service, Department of Agriculture 
                (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Agricultural Marketing Service (Fair Trade Practices 
                Program), Department of Agriculture (Parts 200--
                299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  [Reserved]
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  (Parts 900--999) [Reserved]
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)

[[Page 491]]

        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research, Department of the 
                Treasury (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)

[[Page 492]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
        XV  Office of the Under-Secretary for Economic Affairs, 
                Department of Commerce (Parts 1500--1599)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399) [Reserved]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

[[Page 493]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Agency for Global Media (Parts 500--599)
       VII  U.S. International Development Finance Corporation 
                (Parts 700--799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 494]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799) 
                [Reserved]
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]

[[Page 495]]

        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--799)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)

[[Page 496]]

        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance

[[Page 497]]

         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Department of Defense, Defense Logistics Agency (Parts 
                1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (Parts 200--399)
        IV  Great Lakes St. Lawrence Seaway Development 
                Corporation, Department of Transportation (Parts 
                400--499)

[[Page 498]]

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Career, Technical, and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)

[[Page 499]]

       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)
        IX  Federal Permitting Improvement Steering Council (Part 
                1900)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 500]]

       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Federal Acquisition Supply Chain Security
       201  Federal Acquisition Security Council (Parts 201-1--
                201-99)
            Subtitle E [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 501]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

[[Page 502]]

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)

[[Page 503]]

        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199) [Reserved]
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 504]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 505]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2022)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, VIII, IX, X, XI; 9, 
                                                  II
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, VIII, IX, X, XI; 9, 
                                                  II
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 506]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI; 38, II
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
  Federal Acquisition Regulation                  48, 19
Career, Technical, and Adult Education, Office    34, IV
     of
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazard Investigation Board    40, VI
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Affairs, Office of the Under-          15, XV
       Secretary for
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I

[[Page 507]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy, Department of                             32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Office of the Under-Secretary   15, XV
     for
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical, and Adult Education, Office  34, IV
       of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 5, XXIII; 10, II, 
                                                  III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, II
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV

[[Page 508]]

Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Acquisition Security Council              41, 201
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Permitting Improvement Steering Council   40, IX
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 509]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes St. Lawrence Seaway Development       33, IV
     Corporation
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
   Secretary
[[Page 510]]

Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Environmental Enforcement, Bureau    30, II
       of
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Development Finance Corporation,    5, XXXIII; 22, VII
     U.S.
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice, Department of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Federal Acquisition Regulation                  48, 29

[[Page 511]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VI
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI; 47, II

[[Page 512]]

National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII
Natural Resource Revenue, Office of               30, XII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, IV, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Contracts, Department of Labor             41, 50
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Safety and Environmental Enforcement, Bureau of   30, II
Science and Technology Policy, Office of          32, XXIV; 47, II
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State, Department of                              2, VI; 22, I; 28, XI

[[Page 513]]

  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Great Lakes St. Lawrence Seaway Development     33, IV
       Corporation
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of the                       2, X; 5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
Truman, Harry S. Scholarship Foundation           45, XVIII
United States Agency for Global Media             22, V
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
U.S. Office of Special Counsel                    5, CII
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 515]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2017 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.govinfo.gov. For changes to this volume of the 
CFR prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 
1964-1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. 
The ``List of CFR Sections Affected 1986-2000'' is available at 
www.govinfo.gov.

                                  2017

29 CFR
                                                                   82 FR
                                                                    Page
Chapter X
1208 Revised........................................................8895
Chapter XIV
1601.30 (b) revised.................................................8813
1610.2 Revised.....................................................45181
1610.5 Revised.....................................................45181
1610.11 (c) and (d) revised........................................45182
1610.13 Revised....................................................45182
1614 Technical correction...........................................3171
1614.203 Revised.....................................................677
    Regulation at 82 FR 677 eff. date delayed to 3-21-17...........10863
1614.601 (f) revised.................................................681
    Regulation at 82 FR 681 eff. date delayed to 3-21-17...........10863

                                  2018

29 CFR
                                                                   83 FR
                                                                    Page
Chapter XIV
1601.30 (b) revised.................................................2537
1614.304 (b)(4) reinstated; CFR correction.........................30035
1630.14 (d)(3) removed.............................................65296
1635.8 (b)(2)(iii) removed.........................................65297

                                  2019

29 CFR
                                                                   84 FR
                                                                    Page
Chapter XII
1404 Revised.......................................................16206
Chapter XIV
1601.30 (b) revised................................................10411
1602 Reinstated....................................................18383
1602 Policy statement..............................................18974

                                  2020

29 CFR
                                                                   85 FR
                                                                    Page
Chapter XII
1473 Added.........................................................21771
Chapter XIV
1601 Correction: authority citation revised........................11294
1601.2 Amended.....................................................65217
1601.3 (a) amended; (b) redesignated as (c); new (b) added.........65217
1601.4 Revised.....................................................65217
1601.5 Heading revised; amended....................................65217
1601.7 (a) amended; (b) revised....................................65217
1601.8 Revised.....................................................65217
1601.12 (a)(1) and (2) revised.....................................65217
1601.13 (a)(2), (3) introductory text, (4) introductory text, 
        (i)(A), and (B) revised; (a)(4)(ii)(B) and (b)(2)(iii) 
        amended....................................................65217
1601.14 (a) amended................................................65218

[[Page 516]]

1601.16 (b)(1) revised; (d) amended................................65218
1601.18 (b) and (c) amended........................................65218
1601.19 Revised....................................................65218
1601.20 (a) amended................................................65218
1601.21 (b) introductory text, (1), (d) introductory text, and (1) 
        amended....................................................65218
1601.24 (b) amended................................................65219
1601.28 (c) footnote 1 removed; (d) heading and introductory text 
        amended; (e)(3) revised....................................65219
1601.30 (b) revised................................................15376
1601.30 (a) amended................................................65219
1601.70 (a)(1) revised; (b) and (e) amended........................65219
1601.71 (c) amended................................................65219
1601.75 (b)(2) revised; (c) amended................................65219
1601.76 Amended....................................................65219
1601.78 Introductory text amended..................................65219
1601.92 Introductory text amended..................................65219
1614.201 (c) removed...............................................35561
1614.407 Heading revised; introductory text amended; (a) and (b) 
        revised; (e), (f), and (g) added...........................35561
1614.409 Revised...................................................35562
1614.505 (a)(4) amended............................................35562
1626.3 Existing text redesignated as (a); new (a) amended; (b) 
        added......................................................65219
1626.5 Revised.....................................................65219
1626.7 (b)(1) through (3) redesignated as (b)(2) through (4); new 
        (b)(1) added...............................................65219
1626.8 (a)(1) and (2) revised; (d) and (e) added...................65219
1626.15 (c) and (e) amended........................................65219
1626.16 (b) amended................................................65220
1626.17 (a)(2) amended.............................................65220
1626.20 (a) introductory text and (c) amended......................65220
1626.21 (c) amended................................................65220
1695 Added.........................................................69170

                                  2021

29 CFR
                                                                   86 FR
                                                                    Page
Chapter XII
1400.735-12 Removed................................................54851
1401.20--1401.30 (Subpart B) Revised...............................53543
1402.1 Revised.....................................................50855
1473 Removed.......................................................29197
Chapter XIV
1601 Authority citation revised....................................28264
1601.24 (d) through (f) added.......................................2985
1601.30 (b) revised................................................28264
1626.12 Revised.....................................................2985
1626.15 (d) amended.................................................2986

                                  2022

   (Regulations published from January 1, 2022, through July 1, 2022)

29 CFR
                                                                   87 FR
                                                                    Page
Chapter XIV
1601.30 (b) revised................................................10073
1610.7 (b) amended.................................................14799
1610.11 (a) amended................................................14799
1612.7 (a) amended.................................................14799


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