[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
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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]
BILLING CODE 6210-01-P
