[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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