[Federal Register Volume 87, Number 186 (Tuesday, September 27, 2022)]
[Proposed Rules]
[Pages 58469-58471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19868]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AB23


Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') is proposing revisions to its federal sector complaint 
processing regulations explicitly to provide for the digital 
transmission of EEO hearing and appellate documents, and to address the 
use of the Commission's Electronic Public Portal.

DATES: Comments on the Notice of Proposed Rulemaking (hereinafter 
``NPRM'') must be received on or before November 28, 2022.

ADDRESSES: You may submit comments, identified by RIN Number 3046-AB23, 
by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: (202) 663-4114. Only comments of six or fewer pages 
will be accepted via FAX transmittal, in order to assure access to the 
equipment. Receipt of FAX transmittals will not be acknowledged, except 
that the sender may request confirmation of receipt by calling the 
Executive Secretariat staff at (202) 921-2815 (voice), 1-800-669-6820 
(TTY), or 1-844-234-5122 (ASL video phone).
     Mail: Shelley E. Kahn, Acting Executive Officer, Executive 
Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street 
NE, Washington, DC 20507.
     Hand Delivery/Courier: Shelley E. Kahn, Acting Executive 
Officer, Executive Officer, Executive Secretariat, U.S. Equal 
Employment Opportunity Commission, 131 M Street NE, Washington, DC 
20507.
    Instructions: The Commission invites comments from all interested 
parties. All comment submissions must include the Regulatory 
Information Number (RIN) for this rulemaking. Comments need be 
submitted in only one of the above-listed formats. All comments 
received will be posted without change to https://www.regulations.gov, 
including any personal information you provide.
    Docket: For access to comments received, go to https://www.regulations.gov. Copies of the received comments also will be 
available for review at the Commission's library, 131 M Street NE, 
Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and 
4:30 p.m., from November 28, 2022 until the Commission publishes the 
rule in final form. Members of the public may schedule a library 
appointment by sending an email to [email protected].

FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal 
Counsel, at (202) 921-2665 or [email protected], or Gary J. 
Hozempa, Senior Staff Attorney, at (202) 921-2672 or 
[email protected], Office of Legal Counsel, U.S. Equal Employment 
Opportunity Commission. Requests for this document in an alternative 
format should be made to the EEOC's Office of Communications and 
Legislative Affairs at (202) 921-3191 (voice), 1-800-669-6820 (TTY), or 
1-844-234-5122 (ASL video phone).

SUPPLEMENTARY INFORMATION:

Introduction

    The Commission is issuing this notice of proposed rulemaking to 
amend its federal sector complaint processing regulations explicitly to 
authorize the Commission to transmit its hearing and appellate 
decisions and other documents to registered complainants through the 
EEOC Electronic Public Portal (hereinafter ``Public Portal'' or 
``Portal'') in most cases as a matter of course. The proposed rule also 
requires agencies to notify complainants that they may use the Public 
Portal to file hearing requests and appeals and communicate with the 
Commission.
    When the Commission revised 29 CFR part 1614 in 2012, it added 
paragraph (g) to Sec.  1614.403. That paragraph generally requires 
agencies to submit complaint files and appeals to the EEOC's Office of 
Federal Operations (``OFO'') in an acceptable digital format. Paragraph 
(g) also encourages appellants to submit digital appeals and supporting 
documents to OFO. The Federal Sector EEO Portal (FedSEP), an electronic 
portal available only to Federal agencies, was developed after Sec.  
1614.403(g) was promulgated. Its use by agencies has resulted in ease 
of access and communication, increased efficiency, and the elimination 
of paper.
    The EEOC's Public Portal was created after FedSEP and has been in 
existence for a number of years. Initially, the Public Portal was used 
by private sector respondents (employers, etc.) to submit certain 
documents to, and communicate with, the Commission. The Public Portal 
gradually acquired additional functionality, and private sector 
charging parties and respondents now use the Portal to communicate with 
the Commission and submit a wide variety of documents. Similarly, some 
federal sector complainants accepted the EEOC's invitation set forth in 
Sec.  1614.403(g) and use the Public Portal to request hearings, file 
appeals, and communicate with the EEOC's Administrative Judges (``AJ'') 
and Office of Federal Operations (``OFO'').
    Moreover, when a federal sector complainant mails a request for a 
hearing or an appeal, the AJ or OFO sends a letter acknowledging 
receipt and encourages the complainant to create a Public Portal 
account, explaining that documents can be uploaded and accessed using 
the Portal. In addition, when OFO issues an appellate decision, the 
decision's ``Statement of Rights'' informs the complainant that the 
complainant may file a request for reconsideration and that the 
``[c]omplainant should submit his or her request for reconsideration, 
and any statement or brief in support of his or her request, via the 
EEOC Public Portal . . . .'' (the complainant also is informed that, in 
lieu of using the

[[Page 58470]]

portal, the complainant may send the request by regular or certified 
mail).
    The revisions proposed herein recognize the increased use of 
technology by the Commission, federal sector complainants, and 
agencies, by explicitly providing for digital transmission of complaint 
files, hearing requests, and associated hearing documents, appeals, 
briefs, and Commission decisions. In addition, the proposed revisions 
represent the Commission's commitment to expanding its use of 
technology and improving its service to the public. If implemented, 
these revisions would update the regulations to reflect the EEOC's 
current practices regarding the digital exchange of documents with 
agencies and some federal sector complainants. They also would make 
clear that receipt by digital means of hearing requests, appeals, and 
Commission hearing and appellate decisions, as well as other related 
documents, is equivalent to receipt by first class mail.
    Currently, 29 CFR 1614.109(i) provides that an Administrative Judge 
``shall send copies of the hearing . . . decision to the parties.'' 
Additionally, 29 CFR 1614.405(a) provides that a Commission appellate 
decision will be ``transmitted to the complainant and the agency by 
first class mail.'' In order to authorize the use of FedSEP and the 
Portal to issue decisions, the NPRM proposes specifying in Sec.  
1614.109(i) that hearing decisions may be transmitted through the 
Portal or by first class mail, and clarifying in Sec.  1614.405(a) 
that, for complainants who are registered with the Portal, service 
through the Portal will be the preferred method of service. The NPRM 
also proposes that the Commission confirm it will provide decisions by 
first class mail to complainants not registered with the Portal or who 
prefer receipt by first class mail.
    Regarding the issuance of appellate decisions, the Commission 
concludes that, under section 717 of Title VII of the Civil Rights Act 
of 1964, as amended, 42 U.S.C. 2000e-16, it may use the Public Portal 
to transmit federal sector final Commission decisions to complainants. 
Section 717(c), 42 U.S.C. 2000e-16(c), states: ``[w]ithin 90 days of 
receipt of notice of final action taken . . . by the Equal Employment 
Opportunity Commission . . . an employee or applicant for employment . 
. . may file a civil action . . . .'' See also 29 CFR 1614.407(c) (a 
complainant may file a civil action ``within 90 days of receipt of the 
Commission's final decision on an appeal.''). Thus, while section 717 
directs the Commission to provide the complainant notice of its final 
decision, it does not prescribe how the Commission must provide that 
notice.
    To encourage use of the Portal, the NPRM proposes revising Sec.  
1614.108(f) to provide that an agency must inform a federal sector 
complainant that a hearing request can be transmitted through the 
Portal. The NPRM also proposes revising Sec.  1614.108(h) to clarify 
that a hearing request can be filed using the Portal and adding a 
paragraph to Sec.  1614.110 specifying that an agency must inform a 
complainant that an appeal can be filed with OFO through the Portal. In 
addition, the NPRM proposes amending Sec.  1614.204(e) to allow 
agencies to use digital methods (e.g., email), in addition to the non-
digital methods listed therein, to notify class members that an 
Administrative Judge has accepted a class complaint.
    The NPRM further proposes adding new paragraph (d) to Sec.  
1614.604 to make clear that parties, AJs, and OFO may use digital 
methods in addition to, or in lieu of, those listed in the designated 
rules, to communicate and transmit documents during the hearing or 
appeal stages. With respect to complainants who have not registered 
through the Public Portal or who, having registered, inform OFO that 
they prefer receipt via first class mail, OFO will continue to use 
first class mail to communicate and send documents, even while 
transmitting the same document to the agency via FedSEP.
    Finally, the Commission especially seeks comments regarding whether 
its final rule should add a new subsection addressing when receipt of a 
Commission decision transmitted through the Portal is deemed to occur. 
For example, the U.S. Merit Systems Protection Board's rule pertaining 
to electronic filing states that ``MSPB documents served electronically 
on registered e-filers are deemed received on the date of electronic 
submission.'' 5 CFR 1201.14(m)(2). Receipt of a Commission decision 
could be deemed to occur instead when a complainant accesses the 
decision for the first time. Or a rule could state that a Commission 
decision is deemed to be received when the complainant accesses the 
decision, or within 5 days of when the decision is uploaded to the 
Portal, whichever occurs first (such a rule would be modeled on the 
Commission's rule about mailed documents, 29 CFR 1614.604(b), which 
states that ``in the absence of a legible postmark, [a document is 
deemed timely filed] if it is received by mail within five days of the 
expiration of the applicable filing period.''). If commenters think 
that the final rule should not address a receipt date, the Commission 
is interested in hearing that opinion as well.
    Currently, regardless of whether a complainant is registered with 
the Portal, OFO uploads all appellate records (e.g., briefs, other 
relevant documents, decisions) to the Portal. If OFO has a 
complainant's or representative's email address, the Commission 
transmits a notification that a document has been added to the Portal. 
Should the Commission implement this proposed rule, OFO will continue 
this practice. Upon receiving an email notice, registered complainants 
and representatives can log onto their Portal accounts and click a link 
to review and download the uploaded document.
    Additionally, should this proposed rule become final, the 
Commission will notify complainants with registered Portal accounts 
that they will be able to access documents, orders, and decisions from 
the Commission only via the Portal. If, in response, a registered 
complainant informs the Commission that the complainant would prefer 
receipt through first class mail, the Commission will communicate with 
the complainant using first class mail.
    Finally, the Commission recognizes that not all complainants will 
have access to the technology necessary to avail themselves of the 
Public Portal. For these reasons, as set forth in the NPRM, the 
Commission is not making use of the Public Portal mandatory and will 
issue decisions via first-class mail to complainants who do not have 
registered Portal accounts. Complainants who do not register with the 
Portal will be able to file hearing requests, appeals, and related 
documents through the current methods available (first class and 
registered mail, facsimile, personal delivery, and email).

Regulatory Procedures

Executive Order 12866

    The Commission has complied with the principles in section 1(b) of 
Executive Order 12866, Regulatory Planning and Review. This NPRM is not 
a ``significant regulatory action'' under section 3(f) of the order and 
does not require an assessment of potential costs and benefits under 
section 6(a)(3) of the order.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to 
rulemakings in which an agency creates a new paperwork burden on 
regulated entities or modifies an existing burden. This final rule 
contains no new

[[Page 58471]]

information collection requirements on the public, and therefore, will 
create no new paperwork burdens or modifications to existing burdens 
that are subject to review by the Office of Management and Budget under 
the PRA.

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that this NPRM will 
not have a significant economic impact on a substantial number of small 
entities because it applies exclusively to employees, applicants for 
employment, and agencies of the Federal Government and does not impose 
a burden on any business entities. For this reason, a regulatory 
flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

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

Congressional Review Act

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

List of Subjects in 29 CFR Part 1614

    Administrative practice and procedure, Age discrimination, Color 
discrimination, Equal employment opportunity, Equal pay, Genetic 
information discrimination, Government employees, Individuals with 
disabilities, National origin discrimination, Race discrimination, 
Religious discrimination, Sex discrimination.

    Accordingly, for the reasons set forth in the preamble, the Equal 
Employment Opportunity Commission proposes to amend chapter XIV of 
title 29 of the Code of Federal Regulations as follows:

PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY [AMENDED]

0
1. The authority citation for 29 CFR part 1614 continues to read as 
follows:

    Authority:  29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C. 
2000e-16 and 2000ff-6(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p. 
218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR, 
1969 Comp., p. 133; E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg. 
Plan No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.

0
2. Amend Sec.  1614.108 by:
0
a. Adding a sentence at the end of paragraph (f); and ``
0
b. Adding at the end of the first sentence in paragraph (h) the words 
``or by filing a request for a hearing through the EEOC Public 
Portal.''
    The additions read as follows:


Sec.  1614.108  Investigation of complaints.

* * * * *
    (f) * * * The notice that the complainant has the right to request 
a hearing and decision from an administrative judge shall inform the 
complainant that the hearing request may be filed using the EEOC Public 
Portal, available at https://publicportal.eeoc.gov.
* * * * *
    (h) * * * or by filing a request for a hearing through the EEOC 
Public Portal. * * *


Sec.  1614.109  [Amended]

0
3. In Sec.  1614.109 paragraph (i) in the second sentence removing the 
word ``send'' and adding in its place the word ``transmit''.
0
4. In Sec.  1614.110 add paragraph (c) to read as follows:


Sec.  1614.110  Final action by agencies.

* * * * *
    (c) When an agency takes final action by issuing a final order or 
decision that requires the agency to include a notice that the 
complainant has the right to file an appeal with the EEOC, the notice 
shall inform the complainant that the appeal may be filed using the 
EEOC Public Portal, available at https://publicportal.eeoc.gov.


Sec.  1614.204  [Amended]

0
5. Amend Sec.  1614.204 paragraph (e)(1) by removing the word ``or'' 
after ``address'' and adding in its place ``,'', and adding after the 
word ``distribution'' the words ``, or digital transmission,''.


Sec.  1614.403  [Amended]

0
6. Amend Sec.  1614.403 paragraph (a) by adding the words ``through 
FedSEP or the EEOC's Public Portal, as applicable,'' after the word 
``electronically''.
0
7. Amend Sec.  1614.405 by:
0
a. Removing in the last sentence of paragraph (a), the second 
appearance of the words ``or her'', and removing the words ``by first 
class mail'', and
0
b. Adding a new sentence at the end of paragraph (a).
    The additions read as follows:


Sec.  1614.405  Decisions on appeals.

    (a) * * * For complainants who are not registered with the EEOC 
Public Portal, or who are registered but inform the Commission they 
prefer receipt by first class mail, the decision will be transmitted by 
first class mail. For all other complainants who are registered with 
the Public Portal, the decision will be transmitted via the Portal. The 
Commission will transmit the decision to the agency via FedSEP
* * * * *
0
8. Amend Sec.  1614.604 by:
0
a. Redesignating paragraphs (c) and (d) as paragraphs (e) and (f).
0
b. Adding new paragraph (c) and (d).
    The additions read as follows:


Sec.  1614.604  Filing and computation of time.

* * * * *
    (c) An appeal, brief, or other document filed by an agency using 
FedSEP, or filed by a complainant using the EEOC Public Portal, shall 
be deemed filed on the date the document is uploaded to FedSEP or the 
Public Portal.
    (d) For the purposes of Sec. Sec.  1614.108 and 1614.109, and 
Sec. Sec.  1614.401 through 1614.405, the terms accept, file, filed, 
filing, issue, issuance, issuing, notify, notified, receive, receipt, 
send, serve, served, service, submit, submission, submitted, transmit, 
and transmitted, shall include digital transmissions made through 
FedSEP or the EEOC Public Portal.

    Dated: September 8, 2022.
Charlotte A. Burrows,
Chair.
[FR Doc. 2022-19868 Filed 9-26-22; 8:45 am]
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