[Federal Register Volume 60, Number 169 (Thursday, August 31, 1995)]
[Proposed Rules]
[Pages 45385-45387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21616]



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FEDERAL RESERVE SYSTEM

12 CFR Part 268

[Docket No. R-0894]


Rules Regarding Equal Opportunity

AGENCY: Board of Governors of the Federal Reserve System.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Board of Governors of the Federal Reserve System (the 
Board) is seeking public comment on a proposed amendment to its Rules 
Regarding Equal Opportunity which corrects an ambiguity in the 
provision regarding access to the investigative file. The Rules set out 
the complaint processing procedures governing complaints by Board 
employees and applicants for employment alleging discrimination in 
employment, and related matters.

DATES: Comments must be submitted on or before October 2, 1995.

ADDRESSES: Comments should refer to Docket No. R-0984, and may be 
mailed to William W. Wiles, Board of Governors of the Federal Reserve 
System, 20th Street and Constitution Avenue, NW., Washington, DC 20551. 
Comments also may be delivered to Room B-2222 of the Eccles Building, 
between 8:45 a.m. and 5:15 p.m. weekdays, or to the guard station in 
the Eccles Building courtyard on 20th Street, NW (between Constitution 
Avenue and C Street) at any time. Comments may be inspected in Room MP-
500 of the Martin Building between 9:00 a.m. and 5:00 p.m., except as 
provided in Sec. 261.8 of the Board's Rules Regarding Availability of 
Information, 12 CFR 261.8.

FOR FURTHER INFORMATION CONTACT: J. Mills Williams, Senior Attorney 
(202/452-3701), or Stephen L. Siciliano, Special Assistant to the 
General Counsel 

[[Page 45386]]
for Administrative Law (202/452-3920), Legal Division, Board of 
Governors of the Federal Reserve System, 20th Street and Constitution 
Avenue, NW., Washington, DC 20551. For users of Telecommunication 
Device for the Deaf (TDD) only, contact Dorothea Thompson (202/452-
3544).

SUPPLEMENTARY INFORMATION: The Board's current Rules Regarding Equal 
Opportunity (12 CFR part 286) provide that a person who files an 
administrative complaint of discrimination under the Rules must be 
given a copy of the investigative file relative to the complaint within 
180 days after the filing of the complaint with the Board, unless the 
time is otherwise extended. 12 CFR 268.207(f). The Rules further 
provide that the ``Board may unilaterally extend the time period * * * 
where it must sanitize a complaint file that may contain confidential 
information of the Board under 12 CFR part 261, or other privileged 
information of the Board * * *.'' 12 CFR 268.207(e). The corresponding 
language in the federal sector complaint processing regulation of the 
Equal Employment Opportunity Commission (Commission) provides that an 
``agency may unilaterally extend the time period * * * where it must 
sanitize a complaint file that may contain information classified 
pursuant to Executive Order 12356, or successor orders, as secret in 
the interest of national defense or foreign policy * * *.'' 29 CFR 
1614.108(e).
    The Board's Rules require that, at the completion of an 
investigation, the investigative file be made available to each 
complainant. 12 CFR 268.207(f). It has come to the Board's attention 
that in certain cases confidential supervisory information, as defined 
in 12 CFR 261.2(b), or other confidential information may be relevant 
to a complaint filed under the Rules. It was the Board's intention to 
provide that confidential information of the Board that is relevant to 
the complaint be included in the investigative file made available to 
the complainant and to the complainant's personal representative.
    The Board recognizes that the language in its current regulations 
with respect to an extension of time when necessary to sanitize a 
complaint file of confidential information could be interpreted as 
preventing such information from being included in such a file where 
relevant to a specific complaint. Accordingly, the Board believes this 
current provision in the Rules should be amended to make clear that, 
where relevant, confidential information of the Board may be included 
in a complaint file. Specifically, Sec. 268.207(e) of the Rules would 
be amended to provide that the time period for completing an 
investigation may be unilaterally extended by the Board only where 
classified national security information must be sanitized. The 
proposed amendment would conform this provision of the Rules to the 
corresponding provision in the complaint processing regulation of the 
Commission.
    In addition, a new paragraph (Sec. 268.207(e)(2)) would be added to 
Sec. 268.207(e) of the Board's Rules that would expressly authorize the 
placement by the investigator, the EEG Programs Director, or another 
appropriate officer of the Board of relevant confidential information 
in the investigative file that is provided to a complainant and to his 
or her personal representative.
    The new paragraph would also contain a provision making clear that 
those who have access to an investigative file, such as the complainant 
and the complainant's representative, containing any confidential 
information are subject to all applicable restrictions in existing law 
governing the disclosure of such information, in particular, the 
Board's Rules Regarding Availability of Information (12 CFR Part 261) 
and, where applicable, the Privacy Act. This means that confidential 
information in an investigatory file may be disclosed further only to 
the extent permitted by such restrictions.
    The Board notes, in this regard, that its restrictions on 
unauthorized disclosure of confidential information by persons in 
possession of such information bind all such persons, not merely those 
who are employees of the Board. 12 CFR 261.8(c), 261.13(e), 261.14.
    The Board's Rules Regarding Availability of Information (12 CFR 261 
subpart C) provide a mechanism by which a person having confidential 
information of the Board may request permission to disclose further 
such information, however. Accordingly, application must be made to the 
Board's General Counsel under 12 CFR 261.13 for approval of further 
production or disclosure by a complainant or personal representative of 
confidential information.
    Moreover, under the proposed amendment, it would be explicit that 
certain information that is not confidential supervisory information 
but nevertheless may be included in an investigative file may be 
subject to the Privacy Act or to Executive Order 12356. Such 
information also may not be disclosed to or by the complainant unless 
disclosure is authorized consistent with the requirements and/or 
prohibitions of Executive Order 12356 or of the Privacy Act (5 U.S.C. 
552a).1

    \1\ Information subject to the Privacy Act may thereafter be 
disclosed when necessary in accordance with the routine use 
provision 12 CFR a.10(b)(3). See Board System of Records, BGFRS-5, 
Federal Reserve Regulatory Service para. 8-338. A federal criminal 
statute regarding the unauthorized conversion of Board property may 
restrict disclosure of confidential Board information in certain 
cases unless authorization has been specifically given. 18 U.S.C. 
641.
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    Although these revisions to the Board's Rules Regarding Equal 
Opportunity may be viewed as an interpretative rule with regard to the 
rights of complainants and the duties of complainants and their 
personal representatives, the revisions clarify that confidential 
information regarding the affairs of nonparties may be made available 
to a complainant, and to his or her personal representative, in 
appropriate cases. Accordingly, since the interests of nonparties may 
be affected, the Board deems it appropriate to treat this revision as a 
substantive rule and to solicit public comment.

List of Subjects in 12 CFR Part 268

    Administrative practice and procedure, Aged, Civil rights, Equal 
employment opportunity, Federal buildings and facilities, Federal 
Reserve System, Government employees, Individuals with disabilities, 
Religious discrimination, Sex discrimination, Wages.
    For the reasons set forth in the preamble, the Board proposes to 
amend 12 CFR part 268 as set forth below:

PART 268--RULES REGARDING EQUAL OPPORTUNITY

    1. The authority citation for part 268 continues to read as 
follows:

    Authority: 12 U.S.C. 244 and 248 (i), (k) and (l).

    2. In Sec. 268.207, paragraph (e) is revised to read as follows:


Sec. 268.207   Investigation of complaints.

* * * * *
    (e)(1) The Board shall complete its investigation within 180 days 
of the date of the filing of an individual complaint or within the time 
period contained in the determination of the Commission on review of a 
dismissal pursuant to Sec. 268.206 of this part. By written agreement 
within those time periods, the complainant and the Board may 
voluntarily extend the time period for not more than an additional 90 
days. The Board may unilaterally extend the 

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time period or any period of extension for not more than 30 days where 
it must sanitize an investigative file that may contain information 
classified pursuant to Executive Order No. 12356, or successor orders, 
as secret in the interest of national defense or foreign policy, 
provided the Board notifies the complainant of the extension.
    (2) Confidential supervisory information, as defined in 12 CFR 
261.2(b), and other confidential information of the Board may be 
included in the investigative file by the investigator, the EEG 
Programs Director, or another appropriate officer of the Board, where 
such information is relevant to the complaint. Neither the complainant 
nor the complainant's personal representative may make further 
disclosure of such information, however, except in compliance with the 
Board's Rules Regarding Availability of Information, 12 CFR part 261, 
and where applicable, the Board's Rules Regarding Access to and Review 
of Personal Information in Systems of Records, 12 CFR part 261a.
* * * * *
    By order of the Board of Governors of the Federal Reserve 
System, August 25, 1995.
Jennifer J. Johnson,
Deputy Secretary of the Board.
[FR Doc. 95-21616 Filed 8-30-95; 8:45 am]
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