[Federal Register Volume 61, Number 3 (Thursday, January 4, 1996)]
[Rules and Regulations]
[Pages 251-252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-90]



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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: Final rule.

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SUMMARY: The Board of Governors of the Federal Reserve System (the 
Board) has amended its Rules Regarding Equal Opportunity (Rules) to 
correct 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.

EFFECTIVE DATE: February 5, 1996.

FOR FURTHER INFORMATION CONTACT: J. Mills Williams, Senior Attorney 
(202/452-3701), or Stephen L. Siciliano, Special Assistant to the 
General Counsel 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 amendment to the Rules is hereby issued 
as a final rule. The Board sought comments on the proposed amendment on 
August 31, 1995 (60 FR 45385), and no comments were received. No 
changes have been made in the amendment as proposed.
    The Board's Rules Regarding Equal Opportunity (12 CFR part 268) 
prior to this amendment provided 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 
provided 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 was and continues to be 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 was concerned, however, that the prior language of 
Sec. 268.207(e) could be interpreted as preventing confidential Board 
information that is relevant to a complainant from being included in 
the investigative file and thus being made available to a complainant. 
The Board believes that its Rules must make clear that, where relevant, 
confidential information of the 

[[Page 252]]
Board may be included in a complaint file. Accordingly, Sec. 268.207(e) 
of the Rules has been 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. 
This amendment conforms the Rules to the corresponding provision in the 
complaint processing regulation of the Commission.
    In addition, a new paragraph (Sec. 268.207(e)(2)) has been added to 
Sec. 268.207(e) of the Board's Rules that expressly authorizes the 
placement by the investigator, the EEO 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 contains a provision making clear that those who 
have access to an investigative file, such as the complainant and the 
complainant's personal 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 may 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.
    In addition, aside from confidential supervisory information, a 
particular investigatory file may include information that is subject 
to the Privacy Act. Such information also may not be disclosed to or by 
the complainant unless disclosure is authorized consistent with the 
requirements and/or prohibitions of the Privacy Act (5 U.S.C. 
552a).1 Information subject to Executive Order 12356 may not at 
any point be included in the investigatory file and would not be made 
available to the complainant or to his/her personal representative.

    \1\ Information subject to the Privacy Act may thereafter be 
disclosed when necessary in accordance with the routine use 
provision. 12 CFR 261a.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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    In addition, the Board has made a technical correction to 
Sec. 268.304(a)(3)(i)(A) by substituting a reference to Executive Order 
No. 12356, dealing with national security classified information, for 
the former reference (Executive Order No. 10450). The Board has 
determined that this technical correction is not subject to provisions 
of the Administrative Procedure Act regarding notice and public comment 
because good cause exists to support the conclusion that notice and 
public procedure thereon are unnecessary. 5 U.S.C. 553(b)(B) and (d).

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 amends 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 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 EEO 
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.
* * * * *


Sec. 268.304  [Amended]

    3. In Sec. 268.304(a)(3)(i)(A), remove the words ``Executive Order 
No. 10450 (3 CFR, 1949-1953 Comp., P. 936)'' and add in their place, 
the words ``Executive Order No. 12356 (3 CFR, 1982 Comp.; p. 166)''.

    By order of the Board of Governors of the Federal Reserve 
System, December 28, 1995.
Jennifer J. Johnson,
Deputy Secretary of the Board.
[FR Doc. 96-90 Filed 1-3-96; 8:45 am]
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