E8-6655. Rules Regarding Equal Opportunity

AGENCY:

Board of Governors of the Federal Reserve System.

ACTION:

Final rule.

SUMMARY:

The Board of Governors of the Federal Reserve System (the Board) has adopted a final rule that amends the section of its Rules Regarding Equal Opportunity (EEO Rules) which governs the employment of persons who are not United States citizens consistent with the Board's requirements for the security of its information. The amendment to this rule was first published on November 8, 2005, as an immediately effective interim rule with opportunity for public comment. The Board received no comments on the rule. On its own initiative, to address additional operational issues, the Board made further changes to the rule and on August 7, 2006, published a new immediately effective interim rule with opportunity for public comment. The Board received no comments on the rule. With the changes discussed below, the Board is now adopting the August 7, 2006, interim rule as the final rule.

DATES:

This final rule is effective April 2, 2008.

FOR FURTHER INFORMATION CONTACT:

Alicia S. Foster, Senior Counsel (202-452-5289), Legal Division, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW., Washington, DC 20551. For users of Telecommunications Device for the Deaf (TDD) only, contact 202-263-4869.

SUPPLEMENTARY INFORMATION:

On November 8, 2005, by an immediately effective interim rule (70 FR 67641), the Board amended § 268.205 to permit the Board to hire certain Non-Citizens into positions requiring access to information of the Federal Open Market Committee (FOMC), subject to particular conditions and a preference for U.S. citizens over equally qualified non-citizens.^[1] The Board received no comments on the November 2005 interim rule. After the Board published the November 2005 interim rule and before the Board published the rule in final form, however, it became apparent that the hiring pressures that affected positions requiring access to FOMC Information and prompted the change in the EEO Rules also existed with respect to certain positions requiring access to Confidential Supervisory Information, a second category of Sensitive Information. Therefore, on August 7, 2006, the Board published a new interim rule (71 FR 44555) that extended the hiring requirements that apply to FOMC Information to Confidential Supervisory Information and made some additional modifications that apply to access to FOMC and Confidential Supervisory Information. The 60-day comment period for the interim rule ended on October 6, 2006. The Board received no comments on the August 2006 interim rule. With the changes noted below, the Board is now adopting the August 2006 interim rule as the final rule.

The Board is making three substantive changes to the August 2006 interim rule. First, the Board is amending § 268.205(a)(9)(iii), which applies only to persons who were employed by the Federal Reserve as of January 1, 2006, and permits an employee who is a lawfully admitted permanent resident alien, an alien lawfully admitted for temporary resident, a refugee, or person granted asylum to qualify as a Protected Individual for purposes of the Board's rule even if he or she filed for citizenship beyond the six-month period set forth in 8 U.S.C. 1324b(a)(3)(B)(i). In addition to the requirements set out in the interim rule for persons in this category, the final rule is amended to reflect the current policy of the Board that these employees complete a satisfactory background check. Thus, the Board is amending § 268.205(a)(9)(iii) to add a new paragraph (E) that expressly requires that an employee may qualify under this section only if he or she also passes a background investigation acceptable to the Board. Because of the addition of this new paragraph, which is now the last paragraph in this section, punctuation changes are also being made to existing paragraphs (C) and (D).

Second, the Board is modifying § 268.205(c)(4)(i) of the interim rule, which addresses access by Reserve Bank employees to FOMC Information, to clarify the interplay between the § 268.205 rule and the separate rules of the FOMC. The FOMC's rules now apply the Board's rule under § 268.205 to access to FOMC information by non-citizens employed anywhere in the Federal Reserve System, and the Board has amended § 268.205(c)(4)(i) to reflect this action.

Third, the Board is amending the rule to include a new paragraph, § 268.205(c)(5), addressing exceptions to the rule's requirements as they apply to access to Confidential Supervisory Information. The Board believes this new exception is necessary to cover unusual, unforeseen situations that may arise. Because the need for an exception should rarely arise, however, the exception is very narrow. To be granted an exception, the requester must demonstrate that unusual circumstances exist and that the employee for whom access is being requested has a strong and particularized need for access to the Confidential Supervisory Information. All exceptions for access to Confidential Supervisory Information must be approved by the Chairman of the Board's Committee on Supervisory and Regulatory Affairs. A similar provision is not necessary for FOMC Information because the rules of the FOMC delineate when exceptions, including those on the basis of citizenship may be granted, for access to FOMC Information by Board and Reserve Bank employees and others. As a result of this new paragraph (5), the existing paragraph (c)(5) has been redesignated as paragraph (c)(6).

Finally, the Board is making editorial corrections to the phrases “appropriations laws” and the “appropriations ban” as referenced in the definition of “Country List” at § 268.205(a)(3).

Final Regulatory Flexibility Act Analysis

The Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601 et seq.), generally requires an agency to perform an assessment of the impact a rule is expected to have on small entities. However, under section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if an agency certifies, along with a statement providing the factual basis for such certification, that the rule will not have a significant economic impact on a substantial number of small entities. Because this rule governs the Board's dealings with its employees and applicants for employment and access to FOMC and Confidential Supervisory Information by Reserve Bank employees, and would not affect small entities as defined for purposes of the RFA, the Board certifies that the rule will not have a significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. ch. 3506; 5 CFR 1320 Appendix A.1), the Board reviewed the rule under the authority delegated to the Board by the Office of Management and Budget. No collections of information pursuant to the Paperwork Reduction Act are contained in this rule.

Plain Language

Section 722 of the Gramm-Leach-Bliley Act requires each federal banking agency to use plain language in all rules published after January 1, 2000. The Board has attempted to use plain language in drafting this rule. In the interim proposals, the Board invited comments on whether it could take additional steps to make the rule easier to understand. The Board received no comments on § 268.205.

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

Authority and Issuance

For the reasons discussed in the preamble, the interim rule amending 12 CFR part 268, which was published at 71 FR 44555 on August 7, 2006, is adopted as final with the following changes:

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. Amend § 268.205 as follows:

a. In paragraph (a)(3), correct “appropriations' laws” to read “appropriations laws” and correct “appropriations' ban” to read “appropriations ban”.

b. Remove the word “and” at the end of paragraph (a)(9)(iii)(C) and add “; and” at the end of paragraph (a)(9)(iii)(D).

c. Add a new paragraph (a)(9)(iii)(E).

d. Revise paragraph (c)(4)(i).

e. Redesignate paragraph (c)(5) as paragraph (c)(6), and add a new paragraph (c)(5).

The additions and revisions read as follows:

§ 268.205

Employment of aliens; Access to sensitive information.

(a) * * *

(9) * * *

(iii) * * *

(E) Has completed a background investigation acceptable to the Board.

* * * * *

(c) * * *

(4) * * *

(i) FOMC Information. By action of the FOMC, a Reserve Bank employee may access FOMC Information in accordance with these rules.

* * * * *

(5) Exceptions for access to Confidential Supervisory Information. A Board or Reserve Bank employer may request an exception for access to Confidential Supervisory Information. The requester must demonstrate that unusual circumstances exist and that the Board or Reserve Bank employee for whom access is being requested has a strong and particularized need for access to the information. All exceptions for access to Confidential Supervisory Information must be approved by the Chairman of the Board's Committee on Supervisory and Regulatory Affairs.

* * * * *

By order of the Board of Governors of the Federal Reserve System, March 27, 2008.

Jennifer J. Johnson,

Secretary of the Board.

Footnotes

1.  Access to FOMC Information is also governed by the rules of the FOMC. See, for example, 12 CFR part 271.