29 · 29 parts 900 to 1899 revised as of july 1, 2001 labor containing a codification of documents...

29Parts 900 to 1899Revised as of July 1, 2001

Labor

Containing a codification of documentsof general applicability and future effect

As of July 1, 2001

With Ancillaries

Published byOffice of the Federal RegisterNational Archives and RecordsAdministration

A Special Edition of the Federal Register

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For sale by the Superintendent of Documents, U.S. Government Printing OfficeInternet: bookstore.gpo.gov Phone: (202) 512-1800 Fax: (202) 512-2250

Mail: Stop SSOP, Washington, DC 20402–0001


iii

Table of ContentsPage

Explanation ................................................................................................ v

Title 29:

Subtitle B—Regulations Relating to Labor (continued):

Chapter IX—Construction Industry Collective Bargaining Com-mission ........................................................................................ 5

Chapter X—National Mediation Board ............................................ 9

Chapter XII—Federal Mediation and Conciliation Service ............. 31

Chapter XIV—Equal Employment Opportunity Commission .......... 137

Finding Aids:

Table of CFR Titles and Chapters ....................................................... 409

Alphabetical List of Agencies Appearing in the CFR ......................... 427

List of CFR Sections Affected ............................................................. 437


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Cite this Code: CFR

To cite the regulations inthis volume use title,part and section num-ber. Thus, 29 CFR 901.1refers to title 29, part901, section 1.


v

Explanation

The Code of Federal Regulations is a codification of the general and permanentrules published in the Federal Register by the Executive departments and agen-cies of the Federal Government. The Code is divided into 50 titles which representbroad areas subject to Federal regulation. Each title is divided into chapterswhich usually bear the name of the issuing agency. Each chapter is further sub-divided into parts covering specific regulatory areas.

Each volume of the Code is revised at least once each calendar year and issuedon a quarterly basis approximately as follows:

Title 1 through Title 16..............................................................as of January 1Title 17 through Title 27 .................................................................as of April 1Title 28 through Title 41 ..................................................................as of July 1Title 42 through Title 50.............................................................as of October 1

The appropriate revision date is printed on the cover of each volume.

LEGAL STATUS

The contents of the Federal Register are required to be judicially noticed (44U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the textof the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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To determine whether a Code volume has been amended since its revision date(in this case, July 1, 2001, consult the ‘‘List of CFR Sections Affected (LSA),’’which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ whichappears in the Reader Aids section of the daily Federal Register. These two listswill identify the Federal Register page number of the latest amendment of anygiven rule.

EFFECTIVE AND EXPIRATION DATES

Each volume of the Code contains amendments published in the Federal Reg-ister since the last revision of that volume of the Code. Source citations forthe regulations are referred to by volume number and page number of the FederalRegister and date of publication. Publication dates and effective dates are usu-ally not the same and care must be exercised by the user in determining theactual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effectivedate. In those instances where a regulation published in the Federal Registerstates a date certain for expiration, an appropriate note will be inserted followingthe text.

OMB CONTROL NUMBERS

The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agenciesto display an OMB control number with their information collection request.


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Many agencies have begun publishing numerous OMB control numbers as amend-ments to existing regulations in the CFR. These OMB numbers are placed asclose as possible to the applicable recordkeeping or reporting requirements.

OBSOLETE PROVISIONS

Provisions that become obsolete before the revision date stated on the coverof each volume are not carried. Code users may find the text of provisions ineffect on a given date in the past by using the appropriate numerical list ofsections affected. For the period before January 1, 1986, consult either the Listof CFR Sections Affected, 1949–1963, 1964–1972, or 1973–1985, published in seven sep-arate volumes. For the period beginning January 1, 1986, a ‘‘List of CFR SectionsAffected’’ is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

A subject index to the Code of Federal Regulations is contained in a separatevolume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS.This volume contains the Parallel Table of Statutory Authorities and AgencyRules (Table I). A list of CFR titles, chapters, and parts and an alphabeticallist of agencies publishing in the CFR are also included in this volume.

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The Federal Register Index is issued monthly in cumulative form. This indexis based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg-ister.

A List of CFR Sections Affected (LSA) is published monthly, keyed to therevision dates of the 50 CFR titles.

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There are no restrictions on the republication of material appearing in theCode of Federal Regulations.

INQUIRIES

For a legal interpretation or explanation of any regulation in this volume,contact the issuing agency. The issuing agency’s name appears at the top ofodd–numbered pages.

For inquiries concerning CFR reference assistance, call 202–523–5227 or writeto the Director, Office of the Federal Register, National Archives and RecordsAdministration, Washington, DC 20408 or e-mail [email protected].

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The Office of the Federal Register also offers a free service on the NationalArchives and Records Administration’s (NARA) World Wide Web site for publiclaw numbers, Federal Register finding aids, and related information. Connectto NARA’s web site at www.nara.gov/fedreg. The NARA site also contains linksto GPO Access.

RAYMOND A. MOSLEY,

Director,

Office of the Federal Register.

July 1, 2001.


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THIS TITLE

Title 29—LABOR is composed of nine volumes. The parts in these volumes arearranged in the following order: parts 0–99, parts 100–499, parts 500–899, parts 900–1899, parts 1900–1910 (§§ 1901.1–1910.999), part 1910 (§ 1910.1000–End), parts 1911–1925,part 1926, and part 1927 to end. The contents of these volumes represent all cur-rent regulations codified under this title as of July 1, 2001.

Subject indexes appear following the occupational safety and health standards(part 1910), and following the safety and health regulations for: Longshoring (part1918), Gear Certification (part 1919), and Construction (part 1926).

Redesignation tables appear in the Finding Aids section of the eighth volume.


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1

Title 29—Labor(This volume contains parts 900 to 1899)

Part

SUBTITLE B—REGULATIONS RELATING TO LABOR (CONTINUED)

CHAPTER IX— Construction Industry Collective BargainingCommission ........................................................................ 901

CHAPTER X— National Mediation Board ................................ 1200

CHAPTER XII— Federal Mediation and Conciliation Service .. 1400

CHAPTER XIV— Equal Employment Opportunity Commission 1600

CROSS REFERENCES: Railroad Retirement Board: See Employees’ Benefits, 20 CFR chapter II.Social Security Administration: See Employees’ Benefits, 20 CFR chapter III.Other regulations issued by the Department of Labor appear in 20 CFR chapters I, IV, V,

VI, and VII; 29 CFR subtitle A, chapters II, IV, XVII, and XXV; 41 CFR chapters 50, 60, and61; and 48 CFR chapter 29. For Standards for a Merit System of Personnel Administration:See 5 CFR part 900.

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3

Subtitle B—RegulationsRelating to Labor

(Continued)


5

CHAPTER IX—CONSTRUCTIONINDUSTRY COLLECTIVE

BARGAINING COMMISSION

Part Page900 [Reserved]901 Policy statement on collective bargaining disputes

and applicable procedures .................................... 7


7

PART 900 [RESERVED]

PART 901—POLICY STATEMENT ONCOLLECTIVE BARGAINING DIS-PUTES AND APPLICABLE PROCE-DURES

Sec.901.1 Scope and application.901.2 Policy of Commission.901.3 Participation by Commission.901.4 Handling of disputes by Commission.901.5 Agreement to refrain from strike or

lockout.901.6 Authority of Executive Director.901.7 Inquiries and correspondence with

Commission.

AUTHORITY: E.O. 11482; 3 CFR, 1969 Comp.,p. 139.

SOURCE: 35 FR 4752, Mar. 19, 1970, unlessotherwise noted.

§ 901.1 Scope and application.The Construction Industry Collective

Bargaining Commission hereby statesits policy and sets forth procedures forhandling disputes involving the stand-ard labor and management organiza-tions in the building and constructionindustry. These procedures are pursu-ant to the authority set forth in Execu-tive Order 11482, dated September 22,1969. Section 6 of the order states that,‘‘The Commission is authorized toissue such rules and regulations, and toadopt such procedures governing its af-fairs, including the conduct of its dis-putes settlement functions, as shall benecesssary and appropriate to effec-tuate the objectives of this order.’’

§ 901.2 Policy of Commission.Section 3(c) of the Executive order

provides that it is an objective of theCommission ‘‘to establish more effec-tive machinery for the resolution ofdisputes over the terms of collectivebargaining agreements which at thesame time recognizes the interests ofeach branch of the industry and pre-serves existing procedures that havebeen effective.’’ Accordingly, it is thepolicy of the Commission:

(a) To encourage each branch of theindustry without such a procedure toestablish its own procedures to facili-tate the settlement of disputes overthe terms and application of collectivebargaining agreements.

(b) To encourage each branch of theindustry having such a procedure, butwhich procedure is limited in applica-tion, to expand the application of suchprocedure.

(c) To encourage parties in eachbranch of construction with a proce-dure to utilize that machinery in allpossible cases.

(d) To encourage the Federal Medi-ation and Conciliation Service to referdisputes wherever possible to such ma-chinery established in various branchesof the industry.

§ 901.3 Participation by Commission.(a) The Commission will consider

participation in specific disputes whichconform with the following criteria:

(1) The disputes will have a signifi-cant impact on construction activityin the area involved.

(2) The dispute concerns negotiationsfor a new or expiring agreement, or aquestion of interpretation or applica-tion of an existing agreement, whereall other internal methods of resolu-tion have been exhausted.

(b) The Commission will normally re-frain from participating in specific dis-putes where;

(1) The dispute involved concerns ju-risdiction of work.

(2) The parties have failed to utilizean independent disputes handling pro-cedure presently in existence or subse-quently established. (A number of suchprocedures exists currently in severalbranches of the industry.)

(3) The parties have not fully utilizedthe service of the Federal Mediationand Conciliation Service.

(c) In setting forth a disputes proce-dure the Commission emphasizes thatit is not intended to provide a sub-stitute for the collective bargainingprocess. Nor is it a means to bypass orneglect existing mediation facilities orindustry branch dispute settling proce-dures. The standard procedure for theCommission to accept cognizance overa collective bargaining dispute isthrough referral to the Commission bythe Director of the Federal Mediationand Conciliation Service. The Commis-sion will exercise its judgment in ac-cepting or declining specific disputes.The staff of the Commission is directedto maintain close contact with the


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29 CFR Ch. IX (7–1–01 Edition)§ 901.4

Federal Mediation and ConciliationService on all aspects of bargaining inthe construction industry and to seethat critical disputes are brought tothe attention of the appropriate Inter-national Union and the national officesof an appropriate contractor associa-tion.

§ 901.4 Handling of disputes by Com-mission.

The Commission will determine theparticular method of dispute handlingappropriate for each dispute. Section5(a) of the Executive order states,

The Commission or a panel designated bythe Commission may, with the assistance ofnational labor organizations and nationalcontractor associations where appropriate,seek to mediate such dispute, or make an in-vestigation of the facts of the dispute andmake such recommendations to the partiesfor the resolution thereof as it determinesappropriate.

§ 901.5 Agreement to refrain fromstrike or lockout.

As part of its conditions for enteringthe dispute, the Commission may re-

quest the parties to continue the termsor conditions of employment withoutthe occurrence of a strike or lockoutfor a 30-day period, as set forth in sec-tion 5(a) of the Executive Order, to en-hance the functions of mediation andother related activities.

§ 901.6 Authority of Executive Direc-tor.

The Commission delegates authorityto the Executive Director to accept orreject requests for Commission in-volvement in those instances where aCommission meeting would not occurin sufficient time prior to a contractexpiration date to permit such involve-ment.

§ 901.7 Inquiries and correspondencewith Commission.

Inquiries to the Commission aboutthe status of disputes or other mattersshould be directed as follows:

Executive Director, Construction IndustryCollective Bargaining Commission, room5220, Department of Labor Building, 14thand Constitution Avenue NW., Washington,DC 20210. Telephone: (202) 961–3736.


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CHAPTER X—NATIONAL MEDIATIONBOARD

Part Page1201 Definitions .............................................................. 111202 Rules of procedure ................................................... 111203 Applications for service .......................................... 141204 Labor contracts ....................................................... 151205 Notices in re: Railway Labor Act ............................ 161206 Handling representation disputes under the Rail-

way Labor Act ...................................................... 161207 Establishment of special adjustment boards ........... 181208 Availability of information ..................................... 201209 Public observation of National Mediation Board

meetings ............................................................... 26

ABBREVIATION:The following abbreviation is used in this chapter:NMB = National Mediation Board.


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PART 1201—DEFINITIONS

Sec.1201.1 Carrier.1201.2 Exceptions.1201.3 Determination as to electric lines.1201.4 Employee.1201.5 Exceptions.1201.6 Representatives.

AUTHORITY: 44 Stat. 577, as amended; 45U.S.C. 151–163.

SOURCE: 11 FR 177A–922, Sept. 11, 1946, un-less otherwise noted. Redesignated at 13 FR8740, Dec. 30, 1948.

§ 1201.1 Carrier.The term carrier includes any express

company, sleeping car company, car-rier by railroad, subject to the Inter-state Commerce Act (24 Stat. 379, asamended; 49 U.S.C. 1 et seq.), and anycompany which is directly or indirectlyowned or controlled by or under com-mon control with any carrier by rail-road and which operates any equip-ment or facilities or performs any serv-ice (other than trucking service) inconnection with the transportation, re-ceipt, delivery, elevation, transfer intransit, refrigeration or icing, storage,and handling of property transportedby railroad, and any receiver, trustee,or other individual or body, judicial orotherwise, when in the possession ofthe business of any such ‘‘carrier.’’

§ 1201.2 Exceptions.(a) The term ‘‘carrier’’ shall not in-

clude any street, interurban, or subur-ban electric railway, unless such rail-way is operating as a part of a generalsteam-railroad system of transpor-tation, but shall not exclude any partof the general steam-railroad system oftransportation now or hereafter oper-ated by any other motive power.

(b) The term ‘‘carrier’’ shall not in-clude any company by reason of itsbeing engaged in the mining of coal,the supplying of coal to carrier wheredelivery is not beyond the tipple, andthe operation of equipment or facilitiestherefor or any of such activities.

§ 1201.3 Determination as to electriclines.

The Interstate Commerce Commis-sion is hereby authorized and directedupon request of the Mediation Board or

upon complaint of any part interestedto determine after hearing whether anyline operated by electric power fallswithin the terms of this part.

§ 1201.4 Employee.The term employee as used in this

part includes every person in the serv-ice of a carrier (subject to its con-tinuing authority to supervise and di-rect the manner of rendition of hisservice) who performs any work definedas that of an employee or subordinateofficial in the orders of the InterstateCommerce Commission now in effect,and as the same may be amended or in-terpreted by orders hereafter enteredby the Commission pursuant to the au-thority which is hereby conferred uponit to enter orders amending or inter-preting such existing orders: Provided,however, That no occupational classi-fication made by order of the Inter-state Commerce Commission shall beconstrued to define the crafts accord-ing to which railway employees may beorganized by their voluntary action,nor shall the jurisdiction or powers ofsuch employee organizations be re-garded as in any way limited or definedby the provisions of this Act or by theorders of the Commission.

§ 1201.5 Exceptions.The term ‘‘employee’’ shall not in-

clude any individual while such indi-vidual is engaged in the physical oper-ations consisting of the mining of coal,the preparation of coal, the handling(other than movement by rail withstandard locomotives) of coal not be-yond the mine tipple, or the loading ofcoal at the tipple.

§ 1201.6 Representatives.The term representative means any

person or persons, labor union, organi-zation, or corporation designated ei-ther by a carrier or group of carriers orby its or their employees, to act for itor them.

PART 1202—RULES OF PROCEDURE

Sec.1202.1 Mediation.1202.2 Interpretation of mediation agree-

ments.1202.3 Representation disputes.


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29 CFR Ch. X (7–1–01 Edition)§ 1202.1

1202.4 Secret ballot.1202.5 Rules to govern elections.1202.6 Access to carrier records.1202.7 Who may participate in elections.1202.8 Hearings on craft or class.1202.9 Appointment of arbitrators.1202.10 Appointment of referees.1202.11 Emergency boards.1202.12 National Air Transport Adjustment

Board.1202.13 Air carriers.1202.14 Labor members of Adjustment

Board.1202.15 Length of briefs in NMB hearing pro-

ceedings.



§ 1202.1 Mediation.The mediation services of the Board

may be invoked by the parties, or ei-ther party, to a dispute between an em-ployee or group of employees and a car-rier concerning changes in rates of pay,rules, or working conditions not ad-justed by the parties in conference;also, concerning a dispute not referableto the National Railroad AdjustmentBoard or appropriate airline adjust-ment board, when not adjusted in con-ference between the parties, or whereconferences are refused. The NationalMediation Board may proffer its serv-ices in case any labor emergency isfound by it to exist at any time.

§ 1202.2 Interpretation of mediationagreements.

Under section 5, Second, of title I ofthe Railway Labor Act, in any case inwhich a controversy arises over themeaning or application of any agree-ment reached through mediation, ei-ther party to said agreement, or both,may apply to the National MediationBoard for an interpretation of themeaning or application of such agree-ment. Upon receipt of such request, theBoard shall, after a hearing of bothsides, give its interpretation within 30days.

§ 1202.3 Representation disputes.If any dispute shall arise among a

carrier’s employees as to who are therepresentatives of such employees des-ignated and authorized in accordance

with the requirements of the RailwayLabor Act, it is the duty of the Board,upon request of either party to the dis-pute, to investigate such dispute andcertify to both parties, in writing, thename or names of individuals or orga-nizations that have been designatedand authorized to represent the em-ployees involved in the dispute, and tocertify the same to the carrier.

§ 1202.4 Secret ballot.

In conducting such investigation, theBoard is authorized to take a secretballot of the employees involved, or toutilize any other appropriate method ofascertaining the names of their dulydesignated and authorized representa-tives in such manner as shall insurethe choice of representatives by theemployees without interference, influ-ence, or coercion exercised by the car-rier.

§ 1202.5 Rules to govern elections.

In the conduct of a representationelection, the Board shall designate whomay participate in the election, whichmay include a public hearing on craftor class, and establish the rules to gov-ern the election, or may appoint a com-mittee of three neutral persons whoafter hearing shall within 10 days des-ignate the employees who may partici-pate in the election.

§ 1202.6 Access to carrier records.

Under the Railway Labor Act theBoard has access to and has power tomake copies of the books and recordsof the carriers to obtain and utilizesuch information as may be necessaryto fulfill its duties with respect to rep-resentatives of carrier employees.

§ 1202.7 Who may participate in elec-tions.

As mentioned in § 1202.3, when dis-putes arise between parties to a rep-resentation dispute, the National Medi-ation Board is authorized by the Act todetermine who may participate in theselection of employees representatives.

§ 1202.8 Hearings on craft or class.

In the event the contesting parties ororganizations are unable to agree onthe employees eligible to participate in


13

National Mediation Board § 1202.13

the selection of representatives, and ei-ther party makes application by letterfor a formal hearing before the Boardto determine the dispute, the Boardmay in its discretion hold a publichearing, at which all parties interestedmay present their contentions and ar-gument, and at which the carrier con-cerned is usually invited to present fac-tual information. At the conclusion ofsuch hearings the Board customarilyinvites all interested parties to submitbriefs supporting their views, and afterconsidering the evidence and briefs, theBoard makes a determination or find-ing, specifying the craft or class of em-ployees eligible to participate in thedesignation of representatives.

§ 1202.9 Appointment of arbitrators.Section 5, Third, (a) of the Railway

Labor Act provides in the event medi-ation of a dispute is unsuccessful, theBoard endeavors to induce the partiesto submit their controversy to arbitra-tion. If the parties so agree, and the ar-bitrators named by the parties are un-able to agree upon the neutral arbi-trator or arbitrators, as provided insection 7 of the Railway Labor Act, itbecomes the duty of the Board to namesuch neutral arbitrators and fix thecompensation for such service. In per-forming this duty, the Board is re-quired to appoint only those whom itdeems wholly disinterested in the con-troversy, and to be impartial and with-out bias as between the parties thereto.

§ 1202.10 Appointment of referees.Section 3, Third, (e) title I of the act

makes it the duty of the National Me-diation Board to appoint and fix thecompensation for service a neutral per-son known as a ‘‘referee’’ in any casewhere a division of the National Rail-road Adjustment Board becomes dead-locked on an award, such referee to sitwith the division and make an award.The National Mediation Board in ap-pointing referees is bound by the samerequirements that apply in the ap-pointment of neutral arbitrators asoutlined in § 1202.9

§ 1202.11 Emergency boards.Under the terms of section 10 of the

Railway Labor Act, if a dispute be-tween a carrier and its employees is

not adjusted through mediation or theother procedures prescribed by the act,and should, in the judgment of the Na-tional Mediation Board, threaten to in-terrupt interstate commerce to a de-gree such as to deprive any section ofthe country of essential transportationservice, the Board shall notify thePresident, who may thereupon, in hisdiscretion, create an emergency boardto investigate and report to him re-specting such dispute. An emergencyboard may be composed of such numberof persons as the President designates,and persons so designated shall not bepecuniarily or otherwise interested inany organization of employees or anycarrier. The compensation of emer-gency board members is fixed by thePresident. An emergency board is cre-ated separately in each instance, and isrequired to investigate the facts as tothe dispute and report thereon to thePresident within 30 days from the dateof its creation.

§ 1202.12 National Air Transport Ad-justment Board.

Under section 205, title II, of theRailway Labor Act, when in the judg-ment of the National Mediation Boardit becomes necessary to establish a per-manent national board of adjustmentfor the air carriers subject to the act toprovide for the prompt and orderly set-tlement of disputes between the em-ployees and the carriers growing out ofgrievances, or out of the application orinterpretation of working agreements,the Board is empowered by its ordermade, published, and served, to directthe air carriers and labor organiza-tions, national in scope, to select anddesignate four representatives to con-stitute a Board known as the NationalAir Transport Adjustment Board. Twomembers each shall be selected by theair carriers and the labor organizationsof their employees. Up to the presenttime, it has not been considered nec-essary to establish the National AirTransport Adjustment Board.

§ 1202.13 Air carriers.

By the terms of title II of the Rail-way Labor Act, which was approvedApril 10, 1936, all of title I, except sec-tion 3, which relates to the National


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29 CFR Ch. X (7–1–01 Edition)§ 1202.14

Railroad Adjustment Board, was ex-tended to cover every common carrierby air engaged in interstate or foreigncommerce, and every carrier by airtransporting mail for or under contractwith the United States Government,and to all employees or subordinate of-ficials of such air carriers.

§ 1202.14 Labor members of Adjust-ment Board.

Section 3, First, (f) of title I of theRailway Labor Act relating to the set-tlement of disputes among labor orga-nizations as to the qualification of anysuch organization to participate in theselection of labor members of the Ad-justment Board, places certain dutiesupon the National Mediation Board.This section of the act is quoted below:

(f) In the event a dispute arises as to theright of any national labor organization toparticipate as per paragraph (c) of this sec-tion in the selection and designation of thelabor members of the Adjustment Board, theSecretary of Labor shall investigate theclaim of such labor organization to partici-pate, and if such claim in the judgment ofthe Secretary of Labor has merit, the sec-retary shall notify the Mediation Board ac-cordingly, and within 10 days after receipt ofsuch advice the Mediation Board shall re-quest those national labor organizationsduly qualified as per paragraph (c) of thissection to participate in the selection anddesignation of the labor members of the Ad-justment Board to select a representative.Such representatives, together with a rep-resentative likewise designated by theclaimant, and a third or neutral party des-ignated by the Mediation Board, consti-tuting a board of three, shall within 30 daysafter the appointment of the neutral memberinvestigate the claims of the labor organiza-tion desiring participation and decide wheth-er or not it was organized in accordance withsection 2, hereof, and is otherwise properlyqualified to participate in the selection ofthe labor members of the Adjustment Board,and the findings of such boards of three shallbe final and binding.

§ 1202.15 Length of briefs in NMBhearing proceedings.

(a) In the event briefs are authorizedby the Board or the assigned HearingOfficer, principal briefs shall not ex-ceed fifty (50) pages in length and replybriefs, if permitted, shall not exceedtwenty-five (25) pages in length unlessthe participant desiring to submit abrief in excess of such limitation re-

quests a waiver of such limitation fromthe Board which is received within five(5) days of the date on which the briefswere ordered or, in the case of a replybrief, within five (5) days of receipt ofthe principal brief, and in such casesthe Board may require the filing of asummary of argument, suitablyparagraphed which shoud be a succinct,but accurate and clear, condensation ofthe argument actually made in thebrief.

(b) The page limitations provided bythis section (§ 1202.15) are exclusive ofthose pages containing the table ofcontents, tables of citations and anycopies of administrative or court deci-sions which have been cited in thebrief. All briefs shall be submitted onstandard 81⁄2 x 11 inch paper with dou-ble spaced type.

(c) Briefs not complying with thissection (§ 1202.15) will be returnedpromptly to their initiators.

[44 FR 10601, Feb. 22, 1979]

PART 1203—APPLICATIONS FORSERVICE

Sec.1203.1 Mediation services.1203.2 Investigation of representation dis-

putes.1203.3 Interpretation of mediation agree-

ments.


§ 1203.1 Mediation services.Applications for the mediation serv-

ices of the National Mediation Boardunder section 5, First, of the RailwayLabor Act, may be made on printedforms N.M.B. 2, copies of which may besecured from the Board’s Chief ofStaff’s Office or on the Internet atwww.nmb.gov. Such applications andall correspondence connected there-with should be submitted in duplicate.The application should show the exactnature of the dispute, the number ofemployees involved, name of the car-rier and name of the labor organiza-tion, date of agreement between theparties, if any, date and copy of noticeserved by the invoking party to theother and date of final conference be-tween the parties. Application shouldbe signed by the highest officer of the


15


carrier who has been designated tohandle disputes under the RailwayLabor Act, or by the chief executive ofthe labor organization, whicheverparty files the application. These appli-cations, after preliminary investiga-tion in the Board’s offices, are givendocket number in series ‘‘A’’ and thecases are assigned for mediation toBoard members or to mediators on theBoard’s staff.

[11 FR 177A–923, Sept. 11, 1946. Redesignatedat 13 FR 8740, Dec. 30, 1948, as amended at 64FR 40287, July 26, 1999]

§ 1203.2 Investigation of representa-tion disputes.

Applications for the services of theNational Mediation Board under sec-tion 2, ninth, of the Railway Labor Actto investigate representation disputesamong carriers’ employees may bemade on printed forms NMB–3, copiesof which may be secured from theBoard’s Representation and Legal De-partment or on the Internet atwww.nmb.gov. Such applications andall correspondence connected there-with should be filed in duplicate andthe applications should be accom-panied by signed authorization cardsfrom the employees composing thecraft or class involved in the dispute.The applications should show specifi-cally the name or description of thecraft of class of employees involved,the name of the invoking organization,the name of the organization currentlyrepresenting the employees, if any, andthe estimated number of employees ineach craft or class involved. The appli-cations should be signed by the chiefexecutive of the invoking organization,or other authorized officer of the orga-nization. These disputes are givendocket numbers in series ‘‘R’’.

[43 FR 30053, July 13, 1978, as amended at 64FR 40287, July 26, 1999]

§ 1203.3 Interpretation of mediationagreements.

(a) Applications may be filed withthe Board’s Chief of Staff under section5, Second, of the Railway Labor Act,for the interpretation of agreementsreached in mediation under section 5,First. Such applications may be madeby letter from either party to the me-diation agreement stating the specific

question on which an interpretation isdesired.

(b) This function of the National Me-diation Board is not intended to con-flict with the provisions of section 3 ofthe Railway Labor Act. Providing forinterpretation of agreements by theNational Railroad Adjustment Board.Many complete working agreementsare revised with the aid of the Board’smediating services, and it has been theBoard’s policy that disputes involvingthe interpretation or application ofsuch agreements should be handled bythe Adjustment Board. Under this sec-tion of the law the Board when calledupon may only consider and render aninterpretation on the specific terms ofan agreement actually signed in medi-ation, and not for matters incident orcorollary thereto.

[11 FR 177A–923, Sept. 11, 1946. Redesignatedat 13 FR 8740, Dec. 30, 1948, as amended at 64FR 40287, July 26, 1999]

PART 1204—LABOR CONTRACTS

Sec.1204.1 Making and maintaining contracts.1204.2 Arbitrary changing of contracts.1204.3 Filing of contracts.



§ 1204.1 Making and maintaining con-tracts.

It is the duty of all carriers, their of-ficers, agents, and employees to exertevery reasonable effort to make andmaintain contracts covering rates ofpay, rules, and working conditions.

§ 1204.2 Arbitrary changing of con-tracts.

No carrier, its officers, or agentsshall change the rates of pay, rules, orworking conditons of its employees, asa class as embodied in agreements ex-cept in the manner prescribed in suchagreements or in section 6 of the Rail-way Labor Act.

§ 1204.3 Filing of contracts.Section 5, Third, (e) of the Railway

Labor Act requires all carriers to filewith the National Mediation Board


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29 CFR Ch. X (7–1–01 Edition)Pt. 1205

copies of all contracts in effect with or-ganizations representing their employ-ees, covering rates of pay, rules, andworking conditions. Several thousandof such contracts are on file in theBoard’s Washington office and areavailable for inspection by interestedparties.

PART 1205—NOTICES IN RE:RAILWAY LABOR ACT

Sec.1205.1 Handling of disputes.1205.2 Employees’ Bill of Rights.1205.3 General Order No. 1.1205.4 Substantive rules.



§ 1205.1 Handling of disputes.Section 2, Eighth, of the Railway

Labor Act provides that every carriershall notify its employees by printednotices in such form and posted at suchtimes and places as shall be specifiedby order of the Mediation Board and re-quires that all disputes between a car-rier and its employees will be handledin accordance with the requirements ofthe act. In such notices there must beprinted verbatim, in large type, thethird, fourth, and fifth paragraphs ofsaid section 2, Eighth, of the RailwayLabor Act.

§ 1205.2 Employees’ Bill of Rights.The provisions of the third, fourth,

and fifth paragraphs of section 2 are bylaw made a part of the contract of em-ployment between the carrier and eachemployee and shall be binding upon theparties regardless of any other expressor implied agreements between them.Under these provisions the employeesare guaranteed the right to organizewithout interference of management,the right to determine who shall rep-resent them, and the right to bargaincollectively through such representa-tives. This section makes it unlawfulfor any carrier to require any personseeking employment to sign any con-tract promising to join or not to join alabor organization. Violation of theforegoing provisions is a misdemeanor

under the law and subjects the offenderto punishment.

§ 1205.3 General Order No. 1.General Order No. 1, issued August

14, 1934, is the only order the Board hasissued since its creation in 1934. Thisorder sent to the President of each car-rier coming under the act transmitteda sample copy of the Mediation Board’sForm MB–1 known as ‘‘Notice in re:Railway Labor Act.’’ The order pre-scribes that such notices are to bestandard as to contents, dimensions ofsheet, and size of type and that theyshall be posted promptly and main-tained continuously in readable condi-tion on all the usual and customarybulletin boards giving information toemployees and at such other places asmay be necessary to make them acces-sible to all employees. Such noticesmust not be hidden by other papers orotherwise obscured from view.

§ 1205.4 Substantive rules.The only substantive rules issued by

the National Mediation Board arethose authorized under section 2,Ninth, of the Railway Labor Act to im-plement the procedure of determiningemployee representation.

[12 FR 2451, April 16, 1947. Redesignated at 13FR 8740, Dec. 30, 1948, as amended at 64 FR40287, July 26, 1999]

PART 1206—HANDLING REPRESEN-TATION DISPUTES UNDER THERAILWAY LABOR ACT

Sec.1206.1 Run-off elections.1206.2 Percentage of valid authorizations re-

quired to determine existence of a rep-resentation dispute.

1206.3 Age of authorization cards.1206.4 Time limits on applications.1206.5 Necessary evidence of intervenor’s in-

terest in a representation dispute.1206.6 Eligibility of dismissed employees to

vote.1206.7 Construction of this part.1206.8 Amendment or rescission of rules in

this part.


SOURCE: 12 FR 3083, May 10, 1947, unlessotherwise noted. Redesignated at 13 FR 8740,Dec. 30, 1948.


17


§ 1206.1 Run-off elections.(a) If in an election among any craft

or class no organization or individualreceives a majority of the legal votescast, or in the event of a tie vote, a sec-ond or run-off election shall be heldforthwith: Provided, That a written re-quest by an individual or organizationentitled to appear on the run-off ballotis submitted to the Board within ten(10) days after the date of the report ofresults of the first election.

(b) In the event a run-off election isauthorized by the Board, the names ofthe two individuals or organizationswhich received the highest number ofvotes cast in the first election shall beplaced on the run-off ballot, and noblank line on which votes may write inthe name of any organization or indi-vidual will be provided on the run-offballot.

(c) Employees who were eligible tovote at the conclusion of the first elec-tion shall be eligible to vote in the run-off election except (1) those employeeswhose employment relationship hasterminated, and (2) those employeeswho are no longer employed in thecraft or class.

§ 1206.2 Percentage of valid authoriza-tions required to determine exist-ence of a representation dispute.

(a) Where the employees involved ina representation dispute are rep-resented by an individual or labor orga-nization, either local or national inscope and are covered by a valid exist-ing contract between such representa-tive and the carrier a showing ofproved authorizations (checked andverified as to date, signature, and em-ployment status) from at least a ma-jority of the craft or class must bemade before the National MediationBoard will authorize an election or oth-erwise determine the representationdesires of the employees under the pro-visions of section 2, Ninth, of the Rail-way Labor Act.

(b) Where the employees involved ina representation dispute are unrepre-sented, a showing of proved authoriza-tions from at least thirty-five (35) per-cent of the employees in the craft orclass must be made before the NationalMediation Board will authorize an elec-tion or otherwise determine the rep-

resentation desires of the employeesunder the provisions of section 2,Ninth, of the Railway Labor Act.

§ 1206.3 Age of authorization cards.

Authorizations must be signed anddated in the employee’s own hand-writing or witnessed mark. No author-izations will be accepted by the Na-tional Mediation Board in any em-ployee representation dispute whichbear a date prior to one year before thedate of the application for the inves-tigation of such dispute.

§ 1206.4 Time limits on applications.

Except in unusual or extraordinarycircumstances, the National MediationBoard will not accept an applicationfor investigation of a representationdispute among employees of a carrier:

(a) For a period of two (2) years fromthe date of a certification covering thesame craft or class of employees on thesame carrier, and

(b) For a period of one (1) year fromthe date on which:

(1) The Board dismissed a docketedapplication after having conducted anelection among the same craft or classof employees on the same carrier andless than a majority of eligible votersparticpated in the election; or

(2) The Board dismissed a docketedapplication covering the same craft orclass of employees on the same carrierbecause no dispute existed as defined in§ 1206.2 of these rules; or

(3) The Board dismissed a docketedapplication after the applicant with-drew an application covering the samecraft or class of employees on the samecarrier after the application was dock-eted by the Board.

[44 FR 10602, Feb. 22, 1979]

§ 1206.5 Necessary evidence of interve-nor’s interest in a representationdispute.

In any representation dispute underthe provisons of section 2, Ninth, of theRailway Labor Act, an intervening in-dividual or organization must produceproved authorization from at leastthirty-five (35) percent of the craft orclass of employees involved to warrantplacing the name of the intervenor onthe ballot.


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29 CFR Ch. X (7–1–01 Edition)§ 1206.6

§ 1206.6 Eligibility of dismissed em-ployees to vote.

Dismissed employees whose requestsfor reinstatement account of wrongfuldismissal are pending before proper au-thorities, which includes the NationalRailroad Adjustment Board or otherappropriate adjustment board, are eli-gible to participate in elections amongthe craft or class of employees in whichthey are employed at time of dismissal.This does not include dismissed em-ployees whose guilt has been deter-mined, and who are seeking reinstate-ment on a leniency basis.

§ 1206.7 Construction of this part.

The rules and regulations in this partshall be liberally construed to effec-tuate the purposes and provisions ofthe act.

§ 1206.8 Amendment or rescission ofrules in this part.

(a) Any rule or regulation in thispart may be amended or rescinded bythe Board at any time.

(b) Any interested person may peti-tion the Board, in writing, for theissuance, amendment, or repeal of arule or regulation in this part. Anoriginal and three copies of such peti-tion shall be filed with the Board inWashington, DC, and shall state therule or regulation proposed to beissued, amended, or repealed, togetherwith a statement of grounds in supportof such petition.

(c) Upon the filing of such petition,the Board shall consider the same, andmay thereupon either grant or denythe petition in whole or in part, con-duct an appropriate hearing thereonand make other disposition of the peti-tion. Should the petition be denied inwhole or in part, prompt notice shallbe given of the denial, accompanied bya simple statement of the grounds un-less the denial is self-explanatory.

PART 1207—ESTABLISHMENT OFSPECIAL ADJUSTMENT BOARDS

Sec.1207.1 Establishment of special adjustment

boards (PL Boards).1207.2 Requests for Mediation Board action.1207.3 Compensation of neutrals.

1207.4 Designation of PL Boards, filing ofagreements, and disposition of records.


SOURCE: 31 FR 14644, Nov. 17, 1966, unlessotherwise noted.

§ 1207.1 Establishment of special ad-justment boards (PL Boards).

Public Law 89–456 (80 Stat. 208) gov-erns procedures to be followed by car-riers and representatives of employeesin the establishment and functioning ofspecial adjustment boards, hereinafterreferred to as PL Boards. Public Law89–456 requires action by the NationalMediation Board in the following cir-cumstances:

(a) Designation of party member of PLBoard. Public Law 89–456 provides thatwithin thirty (30) days from the date awritten request is made by an em-ployee representative upon a carrier, orby a carrier upon an employee rep-resentative, for the establishment of aPL Board, an agreement establishingsuch a Board shall be made. If, how-ever, one party fails to designate amember of the Board, the party mak-ing the request may ask the MediationBoard to designate a member on behalfof the other party. Upon receipt of suchrequest, the Mediation Board will no-tify the party which failed to designatea partisan member for the establish-ment of a PL Board of the receipt ofthe request. The Mediation Board willthen designate a representative on be-half of the party upon whom the re-quest was made. This representativewill be an individual associated in in-terest with the party he is to represent.The designee, together with the mem-ber appointed by the party requestingthe establishment of the PL Board,shall constitute the Board.

(b) Appointment of a neutral to deter-mine matters concerning the establishmentand/or jurisdiction of a PL Board. (1)When the members of a PL Board con-stituted in accordance with paragraph(a) of this section, for the purpose ofresolving questions concerning the es-tablishment of the Board and/or its ju-risdiction, are unable to resolve thesematters, then and in that event, eitherparty may ten (10) days thereafter re-quest the Mediation Board to appoint a


19


neutral member to determine theseprocedural issues.

(2) Upon receipt of this request, theMediation Board will notify the otherparty to the PL Board. The MediationBoard will then designate a neutralmember to sit with the PL Board andresolve the procedural issues in dis-pute. When the neutral has determinedthe procedural issues in dispute, heshall cease to be a member of the PLBoard.

(c) Appointment of neutral to sit withPL Boards and dispose of disputes. (1)When the members of a PL Board con-stituted by agreement of the parties, orby the appointment of a party memberby the Mediation Board, as described inparagraph (a) of this section, are un-able within ten (10) days after theirfailure to agree upon an award to agreeupon the selection of a neutral person,either member of the Board may re-quest the Mediation Board to appointsuch neutral person and upon receipt ofsuch request, the Mediation Boardshall promptly make such appoint-ment.

(2) A request for the appointment ofa neutral under paragraph (b) of thissection or this paragraph (c) shall;

(i) Show the authority for the re-quest—Public Law 89–456, and

(ii) Define and list the proposed spe-cific issues or disputes to be heard.

§ 1207.2 Requests for Mediation Boardaction.

(a) Requests for the National Medi-ation Board to appoint neutrals orparty representatives should be madeon NMB Form 5.

(b) Those authorized to sign requeston behalf on parties:

(1) The ‘‘representative of any craftor class of employees of a carrier,’’ asreferred to in Public Law 89–456, mak-ing request for Mediation Board action,shall be either the General Chairman,Grand Lodge Officer (or correspondingofficer of equivalent rank), or the ChiefExecutive of the representative in-volved. A request signed by a GeneralChairman or Grand Lodge Officer (orcorresponding officer of equivalentrank) shall bear the approval of theChief Executive of the employee rep-resentative.

(2) The ‘‘carrier representative’’ mak-ing such a request for the MediationBoard’s action shall be the highest car-rier officer designated to handle mat-ters arising under the Railway LaborAct.

(c) Docketing of PL Board agree-ments: The National Mediation Boardwill docket agreements establishingPL Board, which agreements meet therequirements of coverage as specifiedin Public Law 89–456. No neutral will beappointed under § 1207.1(c) until theagreement establishing the PL Boardhas been docketed by the MediationBoard.

§ 1207.3 Compensation of neutrals.(a) Neutrals appointed by the National

Mediation Board. All neutral personsappointed by the National MediationBoard under the provisions of § 1207.1(b) and (c) will be compensated by theMediation Board in accordance withlegislative authority. Certificates ofappointment will be issued by the Me-diation Board in each instance.

(b) Neutrals selected by the parties. (1)In cases where the party members of aPL Board created under Public Law 89–456 mutually agree upon a neutral per-son to be a member of the Board, theparty members will jointly so notifythe Mediation Board, which Board willthen issue a certificate of appointmentto the neutral and arrange to com-pensate him as under paragraph (a) ofthis section.

(2) The same procedure will apply incases where carrier and employee rep-resentatives are unable to agree uponthe establishment and jurisdiction of aPL Board, and mutually agree upon aprocedural neutral person to sit withthem as a member and determine suchissues.

§ 1207.4 Designation of PL Boards, fil-ing of agreements, and dispositionof records.

(a) Designation of PL Boards. All spe-cial adjustment boards created underPublic Law 89–456 will be designatedPL Boards, and will be numbered seri-ally, commencing with No. 1, in theorder of their docketing by the Na-tional Mediation Board.

(b) Filing of agreements. The originalagreement creating the PL Board


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29 CFR Ch. X (7–1–01 Edition)Pt. 1208

under Public Law 89–456 shall be filedwith the National Mediation Board atthe time it is executed by the parties.A copy of such agreement shall be filedby the parties with the AdministrativeOfficer of the National Railroad Ad-justment Board, Chicago, Ill.

(c) Disposition of records. Since theprovisions of section 2(a) of Public Law89–456 apply also to the awards of PLBoards created under this Act, two cop-ies of all awards made by the PLBoards, together with the record ofproceedings upon which such awardsare based, shall be forwarded by theneutrals who are members of suchBoards, or by the parties in case of dis-position of disputes by PL Boards with-out participation of neutrals, to theAdministrative Officer of the NationalRailroad Adjustment Board, Chicago,Ill., for filing, safekeeping, and han-dling under the provisions of section2(q), as may be required.

PART 1208—AVAILABILITY OFINFORMATION

Sec.1208.1 Purpose.1208.2 Production or disclosure of material

or information.1208.3 General policy.1208.4 Material relating to representation

function.1208.5 Material relating to mediation func-

tion—confidential.1208.6 Schedule of fees and methods of pay-

ment for services rendered.1208.7 Compliance with subpoenas.

AUTHORITY: 5 U.S.C. 552; 45 U.S.C. 151–163.

SOURCE: 39 FR 1751, Jan. 14, 1974, unlessotherwise noted.

§ 1208.1 Purpose.The purpose of this part is to set

forth the basic policies of the NationalMediation Board and the NationalRailroad Adjustment Board in regardto the availability and disclosure of in-formation in the possession of the NMBand the NRAB.

§ 1208.2 Production or disclosure ofmaterial or information.

(a) Requests for identifiable records andcopies. (1) All requests for National Me-diation Board records shall be filed inwriting by mailing, faxing, or deliv-ering the request to the Chief of Staff,

National Mediation Board, Wash-ington, DC 20572.

(2) The request shall reasonably de-scribe the records being sought in amanner which permits identificationand location of the records.

(i) If the description is insufficient tolocate the records, the National Medi-ation Board will so notify the personmaking the request and indicate theadditional information needed to iden-tify the records requested.

(ii) Every reasonable effort shall bemade by the Board to assist in theidentification and location of therecords sought.

(3) Upon receipt of a request for therecords the Chief of Staff shall main-tain records in reference thereto whichshall include the date and time re-ceived, the name and address of the re-quester, the nature of the records re-quested, the action taken, the date thedetermination letter is sent to the re-quester, appeals and action thereon,the date any records are subsequentlyfurnished the number of staff hours andgrade levels of persons who spent timeresponding to the request, and the pay-ment requested and received.

(4) All time limitations establishedpursuant to this section with respectto processing initial requests and ap-peals shall commence at the time awritten request for records is receivedat the Board’s offices in Washington,DC.

(i) An oral request for records shallnot begin any time requirement.

(ii) [Reserved](b) Processing the initial request—(1)

Time limitations. Within 20 workingdays (excepting Saturdays, Sundays,and working holidays) after a requestfor records is received, the Chief ofStaff shall determine and inform therequester by letter whether or the ex-tent to which the request will be com-plied with, unless an extension is takenunder paragraph (b)(3) of this section.

(2) Such reply letter shall include:(i) A reference to the specific exemp-

tion or exemptions under the Freedomof Information Act (5 U.S.C. 552) au-thorizing the withholding of therecord, a brief explanation of how theexemption applies to the record with-held.


21


(ii) The name or names and positionsof the person or persons, other than theChief of Staff, responsible for the de-nial.

(iii) A statement that the denial maybe appealed within thirty days by writ-ing to the Chairman, National Medi-ation Board, Washington, D. C. 20572,and that judicial review will thereafterbe available in the district in which therequester resides, or has his principalplace of business, or the district inwhich the agency records are situated,or the District of Columbia.

(3) Extension of time. In unusual cir-cumstances as specified in this para-graph, the Chief of Staff may extendthe time for initial determination onrequests up to a total of ten days (ex-cluding Saturdays, Sundays, and legalpublic holidays). Extensions shall begranted in increments of five days orless and shall be made by written no-tice to the requester which sets forththe reason for the extension and thedate on which a determination is ex-pected to be dispatched. As used in thisparagraph ‘‘unusual circumstances’’means, but only to the extent nec-essary to the proper processing of therequest:

(i) The need to search for and collectthe requested records from field facili-ties or other establishments that areseparate from the office processing therequest;

(ii) The need to search for, collect,and appropriately examine a volumi-nous amount of separate and distinctrecords which are demanded in a singlerequest; or

(iii) The need for consultation, whichshall be conducted with all practicablespeed, with another agency or anotherdivision having substantial interest inthe determination of the request, orthe need for consultation among two ormore components of the agency havingsubstantial subject matter interesttherein.

(4) Treatment of delay as a denial. If nodetermination has been dispatched atthe end of the ten-day period, or thelast extension thereof, the requestermay deem his request denied, and exer-cise a right of appeal, in accordancewith paragraph (c) of this section.When no determination can be dis-patched within the applicable time

limit, the responsible official shall nev-ertheless continue to process the re-quest; on expiration of the time limithe shall inform the requester of thereason for the delay, of the date onwhich a determination may be ex-pected to be dispatched, and of hisright to treat the delay as a denial andto appeal to the Chairman of the Boardin accordance with paragraph (c) ofthis section and he may ask the re-quester to forego appeal until a deter-mination is made.

(c) Appeals to the Chairman of theBoard. (1) When a request for recordshas been denied in whole or in part bythe Chief of Staff or other person au-thorized to deny requests, the re-quester may, within thirty days of itsreceipt, appeal the denial to the Chair-man of the Board. Appeals to theChairman shall be in writing, addressedto the Chairman, National MediationBoard, Washington, DC 20572.

(2) The Chairman of the Board willact upon the appeal within twentyworking days (excluding Saturdays,Sundays and legal public holidays) ofits receipt unless an extension is madeunder paragraph (c)(3) of this section.

(3) In unusual circumstances as speci-fied in this paragraph (c)(3), the timefor action on an appeal may be ex-tended up to ten days (excluding Satur-days, Sundays and legal public holi-days) minus any extension granted atthe initial request level pursuant toparagraph (b)(3) of this section. Suchextension shall be made written noticeto the requester which sets forth thereason for the extension and the dateon which a determination is expectedto be dispatched. As used in this para-graph (c)(3) ‘‘unusual circumstances’’means, but only to the extent nec-essary to the proper processing of theappeal:

(i) The need to search for and collectthe requested records from field facili-ties or other establishments that areseparate from the office processing therequest;

(ii) The need to search for, collect,and appropriately examine a volumi-nous amount of separate and distinctrecords which are demanded in a singlerequest; or

(iii) The need for consultation, whichshall be conducted with all practicable


22

29 CFR Ch. X (7–1–01 Edition)§ 1208.3

speed, with another agency or anotherdivision having substantial interest inthe determination of the request or theneed for consultation among compo-nents of the agency having substantialsubject matter interest therein.

(4) Treatment of delay as a denial. If nodetermination on the appeal has beendispatched at the end of the twenty-day period or the last extension there-of, the requester is deemed to have ex-hausted his administrative remedies,giving rise to a right of review in a dis-trict court of the United States, asspecified in 5 U.S.C. 552(a)(4). When nodetermination can be dispatched with-in the applicable time limit, the appealwill nevertheless continue to be proc-essed; on expiration of the time limitthe requester shall be informed of thereason for the delay, of the date onwhich a determination may be ex-pected to be dispatched, and of hisright to seek judicial review in theUnited States district court in the dis-trict in which he resides or has hisprincipal place of business, the districtin which the Board records are situatedor the District of Columbia. The re-quester may be asked to forego judicialreview until determination of the ap-peal.

(d) Indexes of certain records. The Na-tional Mediation Board at its office inWashington, DC will maintain, makeavailable for public inspection andcopying, and publish quarterly (unlessthe Board determines by order pub-lished in the FEDERAL REGISTER thatsuch publication would be unnecessaryor impracticable) a current index ofthe materials available at the Boardoffices which are required to be indexedby 5 U.S.C. 552(a)(2).

(1) A copy of such index shall beavailable at cost from the National Me-diation Board, Washington, DC 20572.

(2) [Reserved]

[63 FR 44394, Aug. 19, 1998]

§ 1208.3 General policy.(a) Public policy and the successful

effectuation of the NMB’s mission re-quire that Board members and the em-ployees of the NMB maintain a reputa-tion for impartiality and integrity.Labor and management and other in-terested parties participating in medi-ation efforts must have assurance, as

must labor organizations and individ-uals involved in questions of represen-tation, that confidential informationdisclosed to Board members and em-ployees of the NMB will not be di-vulged, voluntarily or by compulsion.

(b) Notwithstanding this general pol-icy, the Board will under all cir-cumstances endeavor to make public asmuch information as can be allowed.

§ 1208.4 Material relating to represen-tation function.

(a) The documents constituting therecord of a case, such as the notices ofhearing, motions, rulings, orders, sten-ographic reports of the hearings, briefs,exhibits, findings upon investigation,determinations of craft or class, inter-pretations, dismissals, withdrawals,and certifications, are matters of offi-cial record and are available for inspec-tion and examination during the usualbusiness hours at the Board’s offices inWashington.

(b) This part notwithstanding, theBoard will treat as confidential theevidence submitted in connection witha representation dispute and the inves-tigatory file pertaining to the rep-resentation function.

§ 1208.5 Material relating to mediationfunction—confidential.

(a) All files, reports, letters, memo-randa, documents, and papers (herein-after referred to as confidential docu-ments) relating to the mediation func-tion of the NMB, in the custody of theNMB or its employees relating to or ac-quired in their mediatory capacityunder any applicable section of theRailway Labor Act of 1926, as amended,are hereby declared to be confidential.No such confidential documents or thematerial contained therein shall be dis-closed to any unauthorized person, orbe taken or withdrawn, copied or re-moved from the custody of the NMB orits employees by any person or by anyagent of such person or his representa-tive without the explicit consent of theNMB.

(b) However, the following specificdocuments: Invocation or proffer ofmediation, the reply or replies of theparties, the proffer of arbitration andreplies thereto, and the notice of fail-ure of mediatory efforts in cases under


23


section 5, First of the Railway LaborAct, as amended, are matters of officialrecord and are available for inspectionand examination.

(c) Interpretations of mediationagreements by the NMB, arising out ofsection 5, Second, of the Railway LaborAct, as amended, are public records andare therefore open for public inspectionand examination.

§ 1208.6 Schedule of fees and methodsof payment for services rendered.

(a) Definitions. For the purposes ofthis section the following definitionsapply:

(1) Direct costs means those expendi-tures which the National MediationBoard actually incurs in searching for,duplicating, and, in the case of com-mercial requesters, reviewing docu-ments to respond to a FOIA request.For example, direct costs include thesalary of the employee performing thework (the basic rate of pay for the em-ployee plus sixteen percent of the rateto cover benefits) and the cost of oper-ating duplicating machinery. Not in-cluded in direct costs are overhead ex-penses such as costs of space and heat-ing or lighting the facility in which therecords are stored.

(2) Search includes all time spentlooking for material that is responsiveto a request, including page-by-pageand line-by-line identification of mate-rial within documents. Searches maybe done manually or by computer usingexisting programming.

(3) Duplication refers to the process ofmaking a copy of a document nec-essary to respond to a FOIA request.Such copies can take the form of papercopy, microfilm, audiovisual materials,or machine readable documentation(e.g., magnetic tape or disk), amongothers.

(4) Review refers to the process of ex-amining documents located in responseto a commercial use request (see para-graph (a)(5) of this section) to deter-mine whether any portion of any docu-ment located is permitted to be with-held. It also includes processing anydocuments for disclosure, e.g., doing allthat is necessary to excise them andotherwise prepare them for release. Re-view does not include time spent re-solving general legal or policy issues

regarding the application of exemp-tions.

(5) Commercial use request refers to arequest from or on behalf of one whoseeks information for a use or purposethat furthers the commercial, trade, orprofit interests of the requester or theperson on whose behalf the request ismade. In determining whether a re-quester properly belongs in this cat-egory, the NMB will look first to theuse which a requester will put the doc-ument requested. Where the NMB hasreasonable cause to doubt the use isnot clear from the request itself, theNational Mediation Board may seekadditional clarification before assign-ing the request to a specific category.

(6) Educational institution refers to apreschool, a public or private elemen-tary or secondary school, an institu-tion of graduate higher education, aninstitution of undergraduate highereducation, an institution of profes-sional education and an institution ofvocational education, which operates aprogram or programs of scholarly re-search.

(7) Non-commercial scientific institutionrefers to an institution that is not op-erated on a commercial basis as thatterm is defined in paragraph (a)(5) ofthis section, and which is operatedsolely for the purpose of conductingscientific research the results of whichare not intended to promote any par-ticular product or industry.

(8) Representative of the news media re-fers to any person actively gatheringnews for an entity that is organizedand operated to publish or broadcastnews to the public. The term ‘‘news’’means information that is about cur-rent events or that would be of currentinterest to the public. These examplesare not intended to be all inclusive. Inthe case of ‘‘freelance’’ journalists,they may be regarded as working for anews organization if they demonstratea solid basis for expecting publicationthrough that organization, even thoughnot actually employed by it. A publica-tion contract would be the clearestproof, but the NMB may also look tothe past publication record of a re-quester in making this determination.

(b) Exceptions of fee charges. (1) Withthe exception of requesters seekingdocuments for a commercial use, the


24

29 CFR Ch. X (7–1–01 Edition)§ 1208.6

NMB will provide the first 100 pages ofduplication and the first two hours ofsearch time without charge. The word‘‘pages’’ in this paragraph (b) refers topaper copies of standard size, usually8.5″×11″, or their equivalent in micro-fiche or computer disks. The term‘‘search time’’ in this paragraph (b) isbased on a manual search for records.In applying this term to searches madeby computer, when the cost of thesearch as set forth in paragraph (d)(2)of this section equals the equivalentdollar amount of two hours of the sal-ary of the person performing thesearch, the NMB will begin assessingcharges for computer search.

(2) The NMB will not charge fees toany requester, including commercialuse requesters, if the cost of collectingthe fee would be equal to or greaterthan the fee itself.

(3) (i) The NMB will provide docu-ments without charge or at reducedcharges if disclosure of the informationis in the public interest because it islikely to contribute significantly topublic understanding of the operationsor activities of the government and isnot primarily in the commercial inter-est of the requester.

(ii) In determining whether disclo-sure is in the public interest underparagraph (b)(3)(i) of this section, theNMB will consider the following fac-tors:

(A) The subject of the request. Whetherthe subject of the requested recordsconcerns ‘‘the operations or activitiesof the government’’;

(B) The informative value of the infor-mation to be disclosed. Whether the dis-closure is ‘‘likely to contribute’’ to anunderstanding of government oper-ations or activities;

(C) The contribution to an under-standing of the subject by the generalpublic likely to result from disclosure.Whether disclosure of the requested in-formation will contribute to ‘‘publicunderstanding’’;

(D) The significance of the contribu-tions to the public understanding. Wheth-er the disclosure is likely to contribute‘‘significantly’’ to public under-standing of government operations oractivities;

(E) The existence and magnitude of acommercial interest. Whether the re-

quester has a commercial interest thatwould be furthered by the requesteddisclosure; and, if so

(F) The primary interest in disclosure.Whether the magnitude of the identi-fied commercial interest of the re-quester is sufficiently large, in com-parison with the public interest in dis-closure, that disclosure is ‘‘primarilyin the commercial interest of the re-quester.’’

(iii) A request for a fee waiver basedon the public interest under paragraph(b)(3)(i) of this section must addressthe factors of paragraph (b)(3)(ii) ofthis section as they apply to the re-quest for records in order to be consid-ered by the Chief of Staff.

(c) Level of fees to be charged. Thelevel of fees to be charged by the NMBin accordance with the schedule setforth in paragraph (d) of this section,depends on the category of the re-quester. The fee levels to be chargedare as follows:

(1) A request for documents appear-ing to be for commercial use will becharged to recover the full direct costsof searching for, reviewing for release,and duplicating the records sought.

(2) A request for documents from aneducational or non-commercial sci-entific institution will be charged forthe cost of reproduction alone, exclud-ing charges for the first 100 pages. Tobe eligible for inclusion in this cat-egory, requesters must show that therequest is being made under the aus-pices of a qualifying institution andthat the records are not sought for acommercial use, but are sought in fur-therance of scholarly (if the request isfrom an educational institution) or sci-entific (if the request is from a non-commercial scientific institution) re-search.

(3) The NMB shall provide documentsto requesters who are representativesof the news media for the cost of repro-duction alone, excluding charges forthe first 100 pages.

(4) The NMB shall charge requesterswho do not fit into any of the cat-egories above such fees which recoverthe full direct cost of searching for andreproducing records that are responsiveto the request, except that the first 100pages of reproduction and the first twohours of search time shall be furnished


25


without charge. All requesters mustreasonably describe the records sought.

(d) The following fees shall becharged in accordance with paragraph(c) of this section:

(1) Manual searches for records. Thesalary rate (i.e., basic pay plus sixteenpercent) of the employee(s) making thesearch. Search time under this para-graph and paragraph (d)(2) of this sec-tion may be charged for even if theNMB fails to locate responsive recordsor if records located are determined tobe exempt from disclosure.

(2) Computer searches for records. Theactual direct cost of providing the serv-ice, including computer search time di-rectly attributable to searching forrecords responsive to a FOIA request,runs, and operator salaryapportionable to the search.

(3) Review of records. The salary rate(i.e., basic pay plus sixteen percent) ofthe employee(s) conducting the review.This charge applies only to requesterswho are seeking documents for com-mercial use and only to the review nec-essary at the initial administrativelevel to determine the applicability ofany relevant FOIA exemptions, and notat the administrative appeal level oran exemption already applied.

(4) Certification or authentication ofrecords. $2.00 per certification or au-thentication.

(5) Duplication of records. Fifteencents per page for paper copy reproduc-tion of documents, which the NMB de-termined is the reasonable direct costof making such copies taking into ac-count the average salary of the oper-ator and the cost of the reproductionmachinery. For copies of records pre-pared by computer, such as tapes orprintouts, the NMB shall charge theactual cost, including operator time, ofproduction of the tape or printout.

(6) Forwarding material to destination.Postage, insurance and special fees willbe charged on an actual cost basis.

(7) Other costs. All other direct costsof preparing a response to a requestshall be charged to requester in thesame amount as incurred by NMB.

(e) Aggregating requests. When theNMB reasonably believes that a re-quester or group of requesters is at-tempting to break a request down intoa series of requests for the purpose of

evading the assessment of fees, theNMB will aggregate any such requestsand charge accordingly.

(f) Charging interest. Interest at therate prescribed in 31 U.S.C. 3717 may becharged those requesters who fail topay fees charged, beginning on thethirtieth day following the billing date.Receipt of a fee by the NMB, whetherprocessed or not, will stay the accrualof interest. If a debt is not paid, theagency may use the provisions of theDebt Collection Act of 1982, (Pub. L. 97–365, 96 Stat. 1749) including disclosureto consumer reporting agencies, for thepurpose of obtaining payment.

(g) Advance payments. The NMB willnot require a requester to make an ad-vance payment, i.e., payment beforework is commenced or continued on arequest, unless:

(1) The NMB estimates or determinesthat allowable charges that a requestermay be required to pay are likely toexceed $250. Then the NMB will notifythe requester of the likely cost and ob-tain satisfactory assurances of fullpayment where the requester has a his-tory of prompt payment of FOIA fees,or require an advance payment of anamount up to the full estimatedcharges in the case of requesters withno history of payment; or

(2) A requester has previously failedto pay a fee charge in a timely fashion(i.e, within thirty days of the date ofthe billing), in which case the NMB re-quires the requester to pay the fullamount owed plus any applicable inter-est as provided above or demonstratethat he has, in fact, paid the fee, and tomake an advance payment of the fullamount of the estimated fee before theagency begins to process a new requestor a pending request from that re-quester. When the NMB acts underparagraph (g)(1) or (2) of this section,the administrative time limits pre-scribed in subsection (a)(6) of the FOIA(i.e., twenty working days from receiptof initial requests and twenty workingdays from receipt of appeals from ini-tial denial, plus permissible extensionof these time limits) will begin onlyafter the NMB has received fee pay-ments described in this paragraph (g).


26

29 CFR Ch. X (7–1–01 Edition)§ 1208.7

(h) Payment. Payment of fees shall bemade by check or money order payableto the United States Treasury.

[63 FR 44395, Aug. 19, 1998]

§ 1208.7 Compliance with subpoenas.(a) No person connected in any offi-

cial way with the NMB shall produce orpresent any confidential records of theBoard or testify on behalf of any partyto any cause pending in any court, orbefore any board, commission, com-mittee, tribunal, investigatory body, oradministrative agency of the U.S. Gov-ernment, or any State or Territory ofthe United States, or the District ofColumbia, or any municipality with re-spect to matters coming to his knowl-edge in his official capacity or with re-spect to any information contained inconfidential documents of the NMB,whether in answer to any order, sub-poena, subpoena duces tecum, or other-wise without the express written con-sent of the Board.

(b) Whenever any subpoena or sub-poena duces tecum calling for confiden-tial documents, or the informationcontained therein, or testimony as de-scribed above shall have been served onany such person, he will appear in an-swer thereto, and unless otherwise ex-pressly permitted by the Board, re-spectfully decline, by reason of thissection, to produce or present suchconfidential documents or to give suchtestimony.

PART 1209—PUBLIC OBSERVATIONOF NATIONAL MEDIATIONBOARD MEETINGS

Sec.1209.01 Scope and purpose.1209.02 Definitions.1209.03 Conduct of National Mediation

Board business.1209.04 Open meetings.1209.05 Closing of meetings; reasons there-

for.1209.06 Action necessary to close meetings;

record of votes.1209.07 Notice of meetings; public announce-

ment and publication.1209.08 Transcripts, recordings or minutes

of closed meetings; retention; publicavailability.

1209.09 Requests for records under Freedomof Information Act.

1209.10 Capacity of public observers.

AUTHORITY: 5 U.S.C. 552(b)(g).

SOURCE: 42 FR 60739, Nov. 29, 1977, unlessotherwise noted.

§ 1209.01 Scope and purpose.

(a) The provisions of this part are in-tended to implement the requirementsof section 3(a) of the Government inthe Sunshine Act, 5 U.S.C. 552b.

(b) It is the policy of the NationalMediation Board that the public is en-titled to the fullest practicable infor-mation regarding its decisionmakingprocesses. It is the purpose of this partto provide the public with such infor-mation while protecting the rights ofindividuals and the ability of the agen-cy to carry out its responsibilities.

§ 1209.02 Definitions.

For purposes of this part:(a) The terms Board or Agency mean

the National Mediation Board, a colle-gial body composed of three membersappointed by the President with theadvice and consent of the Senate.

(b) The term meeting means the delib-erations of at least two members of theBoard where such deliberations deter-mine or result in the joint conduct ordisposition of official agency business,but does not include deliberations re-quired or permitted or with respect toany information proposed to be with-held under by 5 U.S.C. 552b(d) or (e)/5U.S.C. 552b(c).

§ 1209.03 Conduct of National Medi-ation Board business.

Members shall not jointly conduct ordispose of agency business other thanin accordance with this part.

§ 1209.04 Open meetings.

Every portion of every Board meet-ing shall be open to public observationexcept as otherwise provided by§ 1209.05 of this part.

§ 1209.05 Closing of meetings; reasonstherefor.

(a) Except where the Board deter-mines that the public interest requiresotherwise, meetings, or portions there-of, shall not be open to public observa-tion where the deliberations concernthe issuance of a subponea, the Board’s


27


participation in a civil action or pro-ceeding or an arbitration, or the initi-ation, conduct or disposition by theBoard of any matter involving a deter-mination on the record after oppor-tunity for a hearing, or any court pro-ceeding collateral or ancillary thereto.

(b) Except where the Board deter-mines that the public interest requiresotherwise, the Board also may closemeetings, or portions thereof, when thedeliberations concern matters or infor-mation falling within the scope of 5U.S.C. 552b (c)(1) (secret matters con-cerning national defense or foreign pol-icy); (c)(2) (internal personnel rules andpractices); (c)(3) (matters specificallyexempted from disclosure by statute);(c)(4) (trade secrets and commercial orfinancial information obtained from aperson and privileged or confidential);(c)(5) (matters of alleged criminal con-duct or formal censure); (c)(6) (personalinformation where disclosure wouldcause a clearly unwarranted invasionof personal privacy); (c)(7) (certain ma-terials or information from investiga-tory files compiled for law enforcementpurposes); or (c)(9)(B) (disclosure wouldsignificantly frustrate implementationof a proposed agency action).

§ 1209.06 Action necessary to closemeetings; record of votes.

A meeting shall be closed to publicobservation under § 1209.05, only when amajority of the members of the Boardwho will participate in the meetingvote to take such action.

(a) When the meeting deliberationsconcern matters specified in § 1209.05(a),the Board members shall vote at thebeginning of the meeting, or portionthereof, on whether to close such meet-ing, or portion thereof, to public obser-vation, and on whether the public in-terest requires that a meeting whichmay properly be closed should never-theless be open to public observation Arecord of such vote, reflecting the voteof each member of the Board, shall bekept and made available to the publicat the earliest practicable time.

(b) When the meeting deliberationsconcerns matters specified in§ 1209.05(b), the Board shall vote onwhether to close such meeting, or por-tion thereof, to public ovservation, andon whether the public interest requires

that a meeting which may properly beclosed should nevertheless be open topublic observation. The vote shall betaken at a time sufficient to permit in-clusion of information concerning theopen or closed status of the meeting inthe public announcement thereof. Asingle vote may be taken with respectto a series of meetings at which the de-liberations will concern the same par-ticular matters where subsequentmeetings in the series are scheduled tobe held within one day after the vote istaken.

(c) Whenever any person whose inter-ests may be directly affected by delib-erations during a meeting, or a portionthereof, requests that the Board closethat meeting, or portion thereof, topublic observation for any of the rea-sons specified in 5 U.S.C. 552b(c)(5)(matters of alleged criminal conduct orformal censure), (c)(6) (personal infor-mation where disclosure would cause aclearly unwarranted invasion of per-sonal privacy), or (c)(7) (certain mate-rials or information from investigatoryfiles compiled for law enforcement pur-poses), the Board members partici-pating in the meeting upon request ofany one member of the Board, shallvote on whether to close such meeting,or any portion thereof, for that reason.A record of such vote, reflecting thevote of each member of the Board par-ticipating in the meeting, shall be keptand made available to the public with-in one day after the vote is taken.

(d) After public announcement of ameeting as provided in § 1209.07 of thispart, a meeting, or portion thereof, an-nounced as closed may be opened or ameeting, or portion thereof, announcedas open may be closed, only if a major-ity of the members of the Board whowill participate in the meeting deter-mine by a recorded vote that Boardbusiness so requires and that an earlierannouncement of the change was notpossible. The change made and the voteof each member on the change shall beannounced publicly at the earliestpracticable time.

(e) Before a meeting may be closedpursuant to § 1209.05 the General Coun-sel of the Board shall certify that inhis or her opinion the meeting mayproperly be closed to public observa-tion. The certification shall set forth


28

29 CFR Ch. X (7–1–01 Edition)§ 1209.07

each applicable exemptive provision forsuch closing. The certification shall beretained by the agency and made pub-licly available as soon as practicable.

§ 1209.07 Notice of meetings; public an-nouncement and publication.

(a) A public announcement settingforth the time, place and subject mat-ter of meetings or portions thereofclosed to public observation pursuantto the provisions of § 1209.05(a) of thispart, shall be made at the earaliestpracticable time.

(b) Except for meetings closed to pub-lic observation pursuant to the provi-sions of § 1209.05(a) of this part, theagency shall make public announce-ment of each meeting at least 7 daysbefore the scheduled date of the meet-ing. The announcement shall specifythe time, place and subject matter ofthe meeting, whether it is to be open topublic observation or closed, and thename, address and phone number of anagency official designated to respondto requests for information about themeeting. The 7 day period for advancenotice may be shortened only upon adetermination by a majority of themembers of the Board who will partici-pate in the meeting that agency busi-ness requires that such meeting becalled at an earlier date, in whichevent the public announcement shallbe made at the earliest practicabletime. A record of the vote to schedulea meeting at an earlier date shall bekept and made available to the public.

(c) Within one day after a vote toclose a meeting, or any portion thereof,pursuant to the provisions of§ 1209.05(b) of this part, the agency shallmake publicly available a full writtenexplanation of its action closing themeeting, or portion thereof, togetherwith a list of all persons expected toattend the meeting and their affili-ation.

(d) If after a public announcement re-quired by paragraph (b) of this sectionhas been made, the time and place ofthe meeting are changed, a public an-nouncement of such changes shall bemade at the earliest practicable time.The subject matter of the meeting maybe changed after public annmouncmentthereof only if a majority of the mem-bers of the Board who will participate

in the meeting determine that agencybusiness so requires and that no earlierannouncement of the change was pos-sible. When such a change in subjectmatter is approved a public announce-ment of the change shall be made atthe earliest practicable time. A recordof the vote to change the subject mat-ter of the meeting shall be kept andmade available to the public.

(e) All announcements or changesthereof issued pursuant to the provi-sions of paragraphs (b) and (d) of thissection, or pursuant to the provisionsof § 1209.06(d), shall be submitted forpublication in the FEDERAL REGISTERimmediately following their release tothe public.

(f) Announcement of meeting madepursuant to the provisions of this sec-tion shall be posted on a bulletin boardmaintained for such purpose at theBoard’s offices, 1425 K Street, NW.,Washington, DC. Interested individualsor organizations may request the Chiefof Staff, National Mediation Board,Washington, DC 20572 to place them ona mailing list for receipt of such an-nouncements.

[42 FR 60739, Nov. 29, 1977, as amended at 64FR 40287, July 26, 1999]

§ 1209.08 Transcripts, recordings orminutes of closed meetings; reten-tion; public availability.

(a) For every meeting or portionthereof closed under the provisions of§ 1209.05, the presiding officer shall pre-pare a statement setting forth the timeand place of the meeting and the per-sons present, which statement shall beretained by the agency. For each suchmeeting or portion thereof there alsoshall be maintained a complete tran-script or electronic recording of theproceedings, except that for meetingsclosed pursuant to § 1209.05(a) the Boardmay, in lieu of a transcript or elec-tronic recording, maintain a set ofminutes fully and accurately summa-rizing any action taken, the reasontherefor and views thereof, documentsconsidered, and the members’ vote oneach roll call vote.

(b) The agency shall maintain a com-plete verbatim transcript, a completeelectronic recording, or a complete setof minutes for each meeting or portionthereof closed to public observation,


29


for a period of at least one year afterthe close of the agency proceeding ofwhich the meeting was a part, but inno event for a period of less than twoyears after such meeting.

(c) The agency shall make promptlyavailable to the public copies of tran-scripts, electronic recordings or min-utes maintained as provided in para-graphs (a) and (b) of this section, ex-cept to the extent the items thereincontain information which the agencydetermines may be withheld pursuantto the provisions of 5 U.S.C. 552b(c).

(d) Upon request in accordance withthe provisions of this paragraph andexcept to the extent they contain in-formation which the agency deter-mines may be withheld pursuant to theprovisions of 5 U.S.C. 552b(c), copies oftranscripts or minutes, or tran-scriptions of electronic recordings in-cluding the identification of speakers,shall be furnished subject to the pay-ment of duplication costs in accord-ance with the schedule of fees set forthin § 1208.06 of the Board’s Rules, and theactual cost of transcription. Requestsfor copies of transcripts or minutes, ortranscriptions of electronic recordingsof Board meetings shall be directed tothe Chief of Staff, National MediationBoard, Washington, DC 20572. Such re-quests shall reasonably identify the

records sought and include a statementthat whatever costs are involved in fur-nishing the records will be acceptableor, alternatively, that costs will be ac-ceptable up to a specified amount. TheBoard may determine to require pre-payment of such costs.

[42 FR 60739, Nov. 29, 1977, as amended at 64FR 40287, July 26, 1999]

§ 1209.09 Requests for records underFreedom of Information Act.

Requests to review or obtain copiesof agency records other than notices orrecords prepared under this part maybe pursued in accordance with theFreedom of Information Act (5 U.S.C.552). Part 1208 of the Board’s Rules ad-dresses the requisite procedures underthat Act.

§ 1209.10 Capacity of public observers.

The public may attend open Boardmeetings for the sole purpose of obser-vation. Observers may not participatein meetings unless expressly invited orotherwise interfere with the conductand disposition of agency business.When a portion of a meeting is closedto the public, observers will leave themeeting room upon request to enablediscussion of the exempt matter there-in under consideration.


31

CHAPTER XII—FEDERAL MEDIATIONAND CONCILIATION SERVICE

Part Page1400 Standards of conduct, responsibilities, and dis-

cipline .................................................................. 331401 Public information .................................................. 381402 Procedures of the Service ........................................ 441403 Functions and duties ............................................... 451404 Arbitration services ................................................ 471405 Part-time employment ............................................ 541410 Privacy .................................................................... 551420 Federal Mediation and Conciliation Service—as-

sistance in the health care industry .................... 591425 Mediation assistance in the Federal Service .......... 621430 Federal Mediation and Conciliation Service advi-

sory committees ................................................... 661440 Arbitration of pesticide data disputes .................... 691450 Collections of claims owed the United States ......... 771470 Uniform administrative requirements for grants

and cooperative agreements to State and localgovernments ......................................................... 91

1471 Governmentwide debarment and suspension (non-procurement) and governmentwide requirementsfor drug-free workplace (grants) .......................... 118


33

PART 1400—STANDARDS OF CON-DUCT, RESPONSIBILITIES, ANDDISCIPLINE

Subpart A—General

Sec.1400.735–3 Advice and counseling service.

Subpart B—Employees: Ethical and OtherConduct and Responsibilities

1400.735–12 Outside employment, businessactivities, or interests (paid or unpaid).

1400.735–19 Influencing Members of Con-gress.

1400.735–20 Code of Professional Conduct forLabor Mediators.

1400.735–21 Miscellaneous statutory provi-sions.

Subpart F—Disciplinary Actions andPenalties

1400.735–60 Disciplinary actions.1400.735–61 Notice to and appeal of em-

ployee.

APPENDIX TO PART 1400—CODE OF PROFES-SIONAL CONDUCT FOR LABOR MEDIATORS

AUTHORITY: E.O. 11222, 30 FR 6469, 3 CFR,1965 Supp.; 5 CFR 735.104.

SOURCE: 33 FR 5765, Apr. 13, 1968, unlessotherwise noted.

Subpart A—General

§ 1400.735–3 Advice and counselingservice.

The Director will designate a coun-selor for the Service on all matters re-lating to the conduct and responsibil-ities of employees, and special Govern-ment employees, under the Executiveorder. The counselor is responsible forproviding individual employees withinterpretations on questions of con-flicts of interest, and other matterscovered by this part. (Due to the smallsize of the Federal Mediation and Con-ciliation Service, it is unrealistic todesignate deputy counselors, and there-fore, all questions concerning matterscovered in this part should be directedto the one counselor appointed by theDirector.)

Subpart B—Employees: Ethicaland Other Conduct and Re-sponsibilities

§ 1400.735–12 Outside employment,business activities, or interests(paid or unpaid).

(a) Outside employment. (1) An em-ployee shall not engage in outside em-ployment or other outside activity notcompatible with the full and properdischarge of the duties and responsibil-ities of his Government employment.

(2) Outside employment limitationsin paragraph (a)(1) of this section donot preclude an employee from:

(i) Receipt of a bona fide reimburse-ment, unless prohibited by law, for ac-tual expenses for travel and such othernecessary subsistence as is compatiblewith this part for which no Govern-ment payment or reimbursement ismade. However, this paragraph doesnot allow an employee to be reim-bursed, or payment to be made on hisbehalf, for excessive personal living ex-penses, gifts, entertainment, or otherpersonal benefits, nor does it allow anemployee to be reimbursed by a personfor travel on official business underagency order.

(ii) Participation in the acitivities ofnational or State political parties notprohibited by law.

(iii) Participation in the affairs of, oracceptance of an award for a meri-torious public contribution or achieve-ment given by a charitable, religious,professional, social, fraternal, non-profit educational and recreational,public service, or civic organization.

(3) Incompatible activities referred toin paragraph (a)(1) of this section in-clude, but are not limited to:

(i) Acceptance of a fee, compensa-tion, gift, payment of expense, or anyother thing of monetary value in cir-cumstances in which acceptance mayresult in, or create the appearance of,conflicts of interests; or

(ii) Outside employment if it is deter-mined that engaging in the proposedoutside activity might:


34

29 CFR Ch. XII (7–1–01 Edition)§ 1400.735–12

(a) Influence or conflict with the em-ployee’s decisions or actions in plan-ning, interpreting, or executing poli-cies, programs, and work assignmentsof the Service;

(b) Injure relations of the Servicewith the public;

(c) Impair the employee’s physicalcapacity to render proper and efficientservice at all times;

(d) Interfere with the impartial per-formance or jeopardize acceptability ofthe employee in his work;

(e) Conflict with the employee’s nor-mal office hours, including an allow-ance for sufficient time for travel toplace of outside employment or activ-ity. (Normal office hours will be con-sidered as those which are establishedfor the specific office in which the em-ployee works.) In the absence of ex-tenuating circumstances, approval gen-erally will not be granted where theoutside activity requires presence ofthe employee prior to 6 p.m.

NOTE: Teaching activities are not approvedautomatically, but rather on the basis oftime required, appropriate subject matter,etc.

(4) The Service, as a matter of policy,does not look upon any outside em-ployment or business activity, includ-ing concurrent employment by theFederal Mediation and ConciliationService and any other Governmentalpolitical subdivision or agency, asbeing consistent with the best interestsof the Service.

(5) Employees may not engage in anyoutside employment, including teach-ing, lecturing, or writing, which mightreasonably result in a conflict of inter-est, or an apparent conflict of interest,between the private interests of theemployee and his official governmentduties and responsibilities. No em-ployee shall directly or indirectly ac-cept, engage in, or continue in any out-side employment or business activity,full- or part-time, paid or unpaid, with-out advance written approval (includ-ing teaching or lecturing).

(b) Private compensation. An employeeshall not receive any salary or any-thing of monetary value from a privatesource as compensation for his servicesto the Government (18 U.S.C. 209).

(c) Teaching, writing and lecturing. (1)Teaching, writing and lecturing byFederal employees are generally to be

encouraged so long as the laws, generalstandards, and regulations pertainingto conflicts of interest and the stand-ards and regulations in this part apply-ing to outside employment are ob-served. Teaching commitments willgenerally be limited to one class,course, or assignment during a concur-rent period. These activities frequentlyserve to enhance the employee’s valueto the Service, as well as to increasethe spread of knowledge and informa-tion in our society. Such activities, ifremuneration is anticipated, must notbe dependent on information obtainedas a result of the employee’s officialgovernment position if such informa-tion is not available to others, at leaston request.

(2) This provision does not, of course,prevent the Director from authorizingan employee to base his writings or lec-tures on nonpublic materials in theFederal Mediation and ConciliationService files (not involving national se-curity) when this will be done in thepublic interest. Personal research re-lating to mediation, collective bar-gaining and labor management rela-tions is encouraged as a progressivestep in self-development. The writingof articles in this area, which may bereleased or submitted for publication,is also encouraged. Research and writ-ing are not considered official activity,and therefore may not be undertakenon duty time; and the author may re-ceive compensation for publicationthereof. Advance approval by the Di-rector, before undertaking the researchor writing, is not required. However,when such research is undertaken, orsuch article is being written on thebasis of an official assignment, thework will be performed on duty timeand the product will be the property ofthe Service.

(3) If any type of article, when pub-lished or released, will identify the au-thor in any manner as an employee ofthe Service, such identification nec-essarily implies that the article re-flects either the official policy or thephilosophies of the Service. For thatreason, it must be submitted to the Di-rector before release or publication, orit must contain a disclaimer phrase tothe effect that the article or statement


35

Federal Mediation and Conciliation Service § 1400.735–21

does not necessarily reflect the officialpolicy or philosophies of the Service.

(d) Procedure for approval of outsideemployment or teaching. Clerical and ad-ministrative employees’ approval foroutside activity shall be in writing andmay be granted by the Regional Direc-tor, if a regional employee, or by theDirector of Administrative Manage-ment, if a national office employee.Approval for such outside activity forall other employees of the Service shallbe granted by the Director or his des-ignee. Requests for approval shall bemade in writing through the employ-ee’s supervisor and must contain thefollowing:

(1) The name and address of the em-ployer or business activity;

(2) The exact nature of the work oremployment;

(3) Working hours.

[33 FR 5765, Apr. 13, 1968, as amended at 58FR 35377, July 1, 1993]

§ 1400.735–19 Influencing Members ofCongress.

No money appropriated to the Serv-ice shall be used by any employee ofthe Service to pay for any personalservice, printed or written matter, orother devices intended to influence anyMember of Congress regarding any leg-islation or appropriation before theCongress.

§ 1400.735–20 Code of ProfessionalConduct for Labor Mediators.

In 1964, a Code of Professional Con-duct for Labor Mediators was draftedby a Federal-State Liaison Committeeand approved by the Service and theAssociation of Labor Mediation Agen-cies at its annual meeting. It is ex-pected that mediators in the FederalMediation and Conciliation Servicewill make themselves familiar withthis Code and will conduct themselvesin accordance with the responsibilitiesoutlined therein. The complete nar-rative of the Code appears in the ap-pendix to this part.

§ 1400.735–21 Miscellaneous statutoryprovisions.

Each employee shall acquaint him-self with the statutes that relate to hisethical and other conduct as an em-ployee of the Federal Mediation and

Conciliation Service and of the Govern-ment. The attention of all employees isdirected to the following statutory pro-visions and to the accompanying chartof penalties and statutory references:

(a) House Concurrent Resolution 175,85th Congress, 2d session, 72 Stat. B12,the ‘‘Code of Ethics for GovernmentService.’’

(b) Chapter 11 of title 18, UnitedStates Code, relating to bribery, graft,and conflicts of interest, as appropriateto the employees concerned.

(c) The prohibition against lobbyingwith appropriated funds (18 U.S.C.1913).

(d) The prohibitions against dis-loyalty and striking (5 U.S.C. 7311, 18U.S.C. 1918).

(e) The prohibition against the em-ployment of a member of a Communistorganization (50 U.S.C. 784).

(f) The prohibitions against (1) thedisclosure of classified information (18U.S.C. 798, 50 U.S.C. 783); and (2) thedisclosure of confidential information(18 U.S.C. 1905).

(g) The provisions relating to the ha-bitual use of intoxicants to excess (5U.S.C. 7352).

(h) The prohibition against the mis-use of a Government vehicle (31 U.S.C.638a (c)).

(i) The prohibition against the mis-use of the franking privilege (18 U.S.C.1719).

(j) The prohibition against the use ofdeceit in an examination of personnelaction in connection with Governmentemployment (18 U.S.C. 1917).

(k) The prohibition against fraud orfalse statements in a Government mat-ter (18 U.S.C. 1001).

(l) The prohibition against muti-lating or destroying a public record (18U.S.C. 2071).

(m) The prohibition against counter-feiting and forging transportation re-quests (18 U.S.C. 508).

(n) The prohibitions against (1) em-bezzlement of Government money orproperty (18 U.S.C. 641); (2) failing toaccount for public money (18 U.S.C.643); and (3) embezzlement of themoney or property of another person inthe possession of an employee by rea-son of his employment (18 U.S.C. 654).

(o) The prohibition against unauthor-ized use of documents relating to


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29 CFR Ch. XII (7–1–01 Edition)§ 1400.735–60

claims from or by the Government (18U.S.C. 285).

(p) The prohibitions against politicalactivities in subchapter III of chapter73 of title 5, United States Code and 18U.S.C. 602, 603, 607, and 608.

(q) The prohibition against an em-ployee acting as the agent of a foreign

principal registered under the ForeignAgents Registration Act (18 U.S.C. 219).

(r) Penalties: The following table,copied from the Federal PersonnelManual, lists maximum penalties forsome of the more serious offenses.

Prohibition Statute and United StatesCode Maximum penalty

A–1. Gifts to official superiors ................................ 5 U.S.C. 7351 ...................... Removal.A–2. Conflicts of interest:

a. Receiving compensation in relation toclaims contracts, etc.

18 U.S.C. 203 ...................... $10,000 fine; 2 years imprisonment or both;and removal.

b. Prosecuting claims against and other mat-ters affecting the Government.

18 U.S.C. 205 ...................... $10,000 fine; 2 years imprisonment or both.

c. Prosecuting claims involving matters con-nected with former duties—disqualificationof partners.


d. Interested persons acting as Governmentagents.


e. Salaries from other than Governmentsources.

18 U.S.C. 209 ...................... $5,000 fine; 1 year imprisonment or both.

A–3. Lobbying with appropriated funds .................. 18 U.S.C. 1913 .................... $500 fine; 1 year imprisonment or both; andremoval.

A–4. Denial of rights to petition Congress ............. 5 U.S.C. 7102 ...................... No specific penalty provided.A–5. Failure to make return or report .................... 18 U.S.C. 2075 .................... $1,000 fine.A–6. Disloyalty and striking .................................... 5 U.S.C. 7311; 18 U.S.C.

1918.$1,000 fine, 1 year and a day imprisonment

or both; and removal.A–7. Employment of member of proscribed com-

munist organization.50 U.S.C. 784 et seq ........... $10,000 fine; 5 years imprisonment or both;

and removal.A–8. Disclosure of classified information ............... 18 U.S.C. 798; 50 U.S.C.

783.$10,000 fine; 10 years imprisonment or

both; and removal.A–9. Disclosure of confidential information ............ 18 U.S.C. 1905 .................... $1,000 fine; 1 year imprisonment or both;

and removal.A–10. Habitual use of intoxicants to excess .......... 5 U.S.C. 7352 ...................... Removal.A–11. Misuse of Government vehicles .................. 31 U.S.C. 638a(c) ................ Removal.A–12. Misuse of franking privilege ......................... 18 U.S.C. 1719 .................... $300 fine.A–13. Deceit in examinations and personnel ac-

tions.5 U.S.C. 1917 ...................... $1,000 fine; 1 year imprisonment or both.

A–14. Fraud and false statements ......................... 18 U.S.C. 1001 .................... $10,000 fine; 5 years imprisonment or both.A–15. Unlawful mutilating or destroying public

records.18 U.S.C. 2071(b) ................ $2,000 fine; 3 years imprisonment or both;

and removal.A–16. Bribery and graft:

a. Bribery of public officials ............................. 18 U.S.C. 201 ...................... $20,000 fine or three times the money orthing received, whichever is greater; 15years imprisonment or both; and removal.

b. Acceptance or solicitation to obtain ap-pointive office.

18 U.S.C. 211 ...................... $1,000 fine; 1 year imprisonment or both.

A–17. Counterfeiting and forgery of transportationrequests.


A–18. Embezzlement and theft:a. Taking money, property, or records ............ 18 U.S.C. 641 ...................... $10,000 fine; 10 years imprisonment or

both.b. Failure to render accounts for public

money.18 U.S.C. 643 ...................... Fine equal to amount embezzled; imprison-

ment not more than 10 years or both.c. Wrongfully converting property of another .. 18 U.S.C. 654 ...................... Same as penalty immediately above.

A–19. Taking or using papers related to claims .... 18 U.S.C. 285 ...................... $5,000 fine; 5 years imprisonment or both.

Subpart F—Disciplinary Actionsand Penalties

§ 1400.735–60 Disciplinary actions.The Service shall take prompt dis-

ciplinary action against an employeecommitting prohibited activity, orwhose conduct is prejudicial to the best

interests of the Service, or of a natureto bring discredit to it. There are fourmajor types of disciplinary action pos-sible, following the above proceedings.

(a) Reprimand. An official reprimandusually shall be issued to an employeeor special Government employee for afirst offense which is not serious.


37

Federal Mediation and Conciliation Service Pt. 1400, App.

(b) Suspension. Under Civil Serviceand Federal Mediation and Concilia-tion Service regulations, an employeeor special Government employee maybe suspended without pay during thecourse of an investigation of allegedcriminal, infamous, dishonest, im-moral, or notoriously disgraceful con-duct. Also, an employee may be sus-pended without pay for a definite pe-riod of time because of some offense ofa less serious nature for which moredrastic action is not justified.

(c) Demotion. When such action will‘‘promote the efficiency of the Serv-ice,’’ an employee or special Govern-ment employee may be demoted be-cause of some offense for which moredrastic action is not justified.

(d) Separation. The Service is respon-sible for the prompt dismissal of unsat-isfactory, incompetent, or unfit em-ployees. Separation (dismissal or re-moval) can be the penalty for a singlebreach of conduct that is extremely se-rious in nature.

§ 1400.735–61 Notice to and appeal ofemployee.

The Director of Administrative Man-agement will prepare charges and insti-tute proceedings, which in all caseswill be in accordance with Civil Serviceprocedures for disciplinary actionsagainst status employees. Such pro-ceedings will include notification tothe employee of his appeal rights.

APPENDIX TO PART 1400—CODE OF PRO-FESSIONAL CONDUCT FOR LABOR ME-DIATORS

PREAMBLE

The practice of mediation is a professionwith ethical responsibilities and duties.Those who engage in the practice of medi-ation must be dedicated to the principles offree and responsible collective bargaining.They must be aware that their duties and ob-ligations relate to the parties who engage incollective bargaining, to every other medi-ator, to the agencies which administer thepractice of mediation, and to the generalpublic.

Recognition is given to the varying statu-tory duties and responsibilities of the city,State and Federal agencies. This code, how-ever, is not intended in any way to define oradjust any of these duties and responsibil-ities, nor is it intended to define when and inwhat situations mediators from more thanone agency should participate. It is, rather,

a personal code relating to the conduct ofthe individual mediator.

This code is intended to establish prin-ciples applicable to all professional medi-ators employed by city, State or Federalagencies or to mediators privately retainedby parties.

I. The responsibility of the mediator to theparties. The primary responsibility for theresolution of a labor dispute rests upon theparties themselves. The mediator at alltimes should recognize that the agreementsreached in collective bargaining are volun-tarily made by the parties. It is the medi-ator’s responsibility to assist the parties inreaching a settlement.

It is desirable that agreement be reachedby collective bargaining without mediationassistance. However, public policy and appli-cable statutes recognize that mediation isthe appropriate form of governmental par-ticipation in cases where it is required.Whether and when a mediator should inter-cede will normally be influenced by the de-sires of the parties. Intercession by a medi-ator on his own motion should be limited toexceptional cases.

The mediator must not consider himselflimited to keeping peace at the bargainingtable. His role should be one of being a re-source upon which the parties may draw and,when appropriate, he should be prepared toprovide both procedural and substantive sug-gestions and alternatives which will assistthe parties in successful negotiations.

Since mediation is essentially a voluntaryprocess, the acceptability of the mediator bythe parties as a person of integrity, objec-tivity, and fairness is absolutely essential tothe effective performance of the duties of themediator. The manner in which the mediatorcarries out his professional duties and re-sponsibilities will measure his usefulness asa mediator. The quality of his character aswell as his intellectual, emotional, socialand technical attributes will reveal them-selves by the conduct of the mediator and hisoral and written communications with theparties, other mediators and the public.

II. The responsibility of the mediator towardother mediators. A mediator should not enterany dispute which is being mediated by an-other mediator or mediators without firstconferring with the person or persons con-ducting such mediation. The mediatorshould not intercede in a dispute merely be-cause another mediator may also be partici-pating. Conversely, it should not be assumedthat the lack of mediation participation byone mediator indicates a need for participa-tion by another mediator.

In those situations where more than onemediator is participating in a particularcase, each mediator has a responsibility tokeep the others informed of developmentswhich are essential to a cooperative effort,


38

29 CFR Ch. XII (7–1–01 Edition)Pt. 1401

and should extend every possible courtesy tohis fellow mediator.

The mediator should carefully avoid anyappearance of disagreement with or criti-cism of his fellow mediator. Discussions asto what positions and actions mediatorsshould take in particular cases should becarried on solely between or among the me-diators.

III. The responsibility of the mediator towardhis agency and his profession. Agencies re-sponsible for providing mediation assistanceto parties engaged in collective bargainingare a part of government. The mediator mustrecognize that, as such, he is part of govern-ment. The mediator should constantly bearin mind that he and his work are not judgedsolely on an individual basis but that he isalso judged as a representative of his agency.Any improper conduct or professional short-coming, therefore, reflects not only on theindividual mediator but upon his employerand, as such, jeopardizes the effectiveness ofhis agency, other government agencies, andthe acceptability of the mediation process.

The mediator should not use his positionfor private gain or advantage, nor should heengage in any employment, activity or en-terprise which will conflict with his work asa mediator, nor should he accept any moneyor thing of value for the performance of hisduties—other than his regular salary—orincur obligations to any party which mightinterfere with the impartial performance ofhis duties.

IV. The responsibility of the mediator towardthe public. Collective bargaining is in essencea private, voluntary process. The primarypurpose of mediation is to assist the partiesto achieve a settlement. Such assistancedoes not abrogate the rights of the parties toresort to economic and legal sanctions. How-ever, the mediation process may include aresponsibility to assert the interest of thepublic that a particular dispute be settled;that a work stoppage be ended; and that nor-mal operations be resumed. It should be un-derstood, however, that the mediator doesnot regulate or control any of the content ofa collective bargaining agreement.

It is conceivable that a mediator mightfind it necessary to withdraw from a negotia-tion, if it is patently clear that the partiesintend to use his presence as implied govern-mental sanction for an agreement obviouslycontrary to public policy.

It is recognized that labor disputes are set-tled at the bargaining table; however, themediator may release appropriate informa-tion with due regard (1) to the desires of theparties, (2) to whether that information willassist or impede the settlement of the dis-pute and (3) to the needs of an informed pub-lic.

Publicity shall not be used by a mediatorto enhance his own position or that of hisagency. Where two or more mediators are

mediating a dispute, public informationshould be handled through a mutually agree-able procedure.

V. Responsibility of the mediator toward themediation process. Collective bargaining is anestablished institution in our economic wayof life. The practice of mediation requiredthe development of alternatives which theparties will voluntarily accept as a basis forsettling their problems. Improper pressureswhich jeopardize voluntary action by theparties should not be a part of mediation.

Since the status, experience, and ability ofthe mediator lend weight to his suggestionsand recommendations, he should evaluatecarefully the effect of his suggestions andrecommendations and accept full responsi-bility for their honesty and merit.

The mediator has a continuing responsi-bility to study industrial relations to im-prove his skills and upgrade his abilities.

Suggestions by individual mediators oragencies to parties, which give the implica-tion that transfer of a case from one medi-ation ‘‘forum’’ to another will produce betterresults, are unprofessional and are to be con-demned.

Confidential information acquired by themediator should not be disclosed to othersfor any purpose, or in a legal proceeding orbe used directly or indirectly for the per-sonal benefit or profit of the mediator.

Bargaining positions, proposals or sugges-tions given to the mediator in confidenceduring the course of bargaining for his soleinformation, should not be disclosed to an-other party without first securing permis-sion from the party or person who gave it tohim.

[31 FR 5423, Apr. 6, 1966]

PART 1401—PUBLIC INFORMATION

Subpart A—Information in Response toSubpoenas

Sec.1401.1 Purpose and scope.1401.2 Productions of records or testimony

by FMCS employees.1401.3 Procedure in the event of a demand

for production, disclosure, or testimony.

Subpart B—Production or Disclosure ofInformation

1401.20 Purpose and scope.1401.21 Information policy.1401.22 Partial disclosure of records.1401.23 Preparation of new records.1401.24 Notices of dispute are public.1401.30 Applicability of procedures.1401.31 Filing a request for records.1401.32 Logging of written requests.1401.33 Description of information re-

quested.


39

Federal Mediation and Conciliation Service § 1401.21

1401.34 Time for processing requests.1401.35 Appeals from denials of request.1401.36 Freedom of Information Act fee

schedules.1401.37 Annual report.

AUTHORITY: Sec. 202, 61 Stat. 136, as amend-ed; 5 U.S.C. 552.

SOURCE: 40 FR 8169, Feb. 26, 1975, unlessotherwise noted.

Subpart A—Information inResponse to Subpoenas

§ 1401.1 Purpose and scope.This subpart contains the regulations

of the Service concerning procedures tobe followed when a subpoena, order, orother demand of a court or other au-thority is issued for the production ordisclosure of (a) any material con-tained in the files of the Service; (b)any information relating to materialcontained in the files of the Service; or(c) any information or material ac-quired by any person as a part of theperformance of his official duties or be-cause of his official status, while suchperson was an employee of the Service.

§ 1401.2 Production of records or testi-mony by FMCS employees.

(a) Public policy and the successfuleffectuation of the Federal Mediationand Conciliation Service’s mission re-quire that commissioners and employ-ees maintain a reputation for impar-tiality and integrity. Labor and man-agement or other interested partiesparticipating in mediation efforts musthave the assurance and confidence thatinformation disclosed to commis-sioners and other employees of theService will not subsequently be di-vulged, voluntarily or because of com-pulsion, unless authorized by the Di-rector of the Service.

(b) No officer, employee, or other per-son officially connected in any capac-ity with the Service, currently or for-merly shall, in response to a subpoena,subpoena duces tecum, or other judi-cial or administrative order, produceany material contained in the files ofthe Service, disclose any informationacquired as part of the performance ofhis official duties or because of his offi-cial status, or testify on behalf of anyparty to any matter pending in any ju-dicial, arbitral or administrative pro-

ceeding, without the prior approval ofthe Director.

§ 1401.3 Procedure in the event of ademand for production, disclosure,or testimony.

(a) Any request for records of theService, whether it be by letter, bysubpoena duces tecum or by any otherwritten demand, shall be handled pur-suant to the procedures established insubpart B of this part, and shall com-ply with the rules governing public dis-closure.

(b) Whenever any subpoena or sub-poena duces tecum calling for produc-tion of records or testimony as de-scribed above shall have been servedupon any officer, employee or otherperson as noted in § 1401.2(b), he will,unless notified otherwise appear in an-swer thereto, and unless otherwise ex-pressly directed by the Director, re-spectfully decline to produce or presentsuch records or to give such testimony,by reason of the prohibitions of thissection, and shall state that the pro-duction of the record(s) involved willbe handled by the procedures estab-lished in this part.

Subpart B—Production orDisclosure of Information

SOURCE: 50 FR 52917, Dec. 27, 1985, unlessotherwise noted.


of the Federal Mediation and Concilia-tion Service providing for public accessto information from records of theService. These regulations implementthe Freedom of Information Act, 5U.S.C. 552, and the policy of the FMCSto disseminate information on mattersof interest to the public and to discloseon request information contained inagency records insofar as is compatiblewith the discharge of its responsibil-ities and the principle of confiden-tiality and neutrality of dispute resolu-tion by third party neutrals.

§ 1401.21 Information policy.(a) Except for matters specifically

excluded by subsection 552(b) of title 5,United States Code, matters covered bythe Privacy Act, or other applicable


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29 CFR Ch. XII (7–1–01 Edition)§ 1401.22

statutes, all documents and recordsmaintained by this agency or in itscustody shall be available to the publicupon request filed in accordance withthese regulations. To the extent per-mitted by other laws, the Service alsowill make available records which it isauthorized to withhold under 5 U.S.C.552(b) whenever it determines that suchdisclosure is in the public interest.

(b) Any document released for inspec-tion under the provisions of this partmay be manually copied by the re-questing party. The Service shall pro-vide facilities for copying such docu-ments at reasonable times during nor-mal working hours so long as it doesnot interfere with the efficient oper-ation of the agency.

(c) The Service will also publish andmaintain a current index, revised quar-terly, providing identifying informa-tion for the public as to statements ofpolicy and interpretation adopted bythe agency and still in force but notpublished by the FEDERAL REGISTER,and administrative staff manuals andinstructions to staff that affect thepublic. The Service will also maintainon file all material published in theService in the FEDERAL REGISTER andcurrently in effect.

(d) Records or documents prepared bythe Service for routine public distribu-tion, e.g., pamphlets, speeches, andeducational or training materials, willbe furnished upon request to the Officeof Information, Federal Mediation andConciliation Service, 2100 K Street,NW., Washington, DC 20427, as long asthe supply lasts. The provisions of§ 1401.36 (fees) is not applicable to suchrequests except when the supply ofsuch material is exhausted and it isnecessary to reproduce individual cop-ies upon specific request.

(e) All existing FMCS records aresubject to routine destruction accord-ing to standard record retention sched-ules.

§ 1401.22 Partial disclosure of records.If a record contains both disclosable

and nondisclosable information, thenondisclosable information will be de-leted and the remaining record will bedisclosed unless the two are so inex-tricably intertwined that it is not fea-sible to separate them or release of the

disclosable information would com-promise or impinge upon thenondisclosable portion of the record.

§ 1401.23 Preparation of new records.

(a) Freedom of Information Act andthe provisions of this part apply onlyto existing records that are reasonablydescribed in a request filed with theFederal Mediation and ConciliationService pursuant to the procedures es-tablished in §§ 1401.31—1401.36.

(b) The Director may, in his or herdiscretion, prepare new records inorder to respond to a request for infor-mation when he or she concludes thatit is in the public interest and pro-motes the objectives of the Labor-Man-agement Relations Act, 1947, as amend-ed.

§ 1401.24 Notices of dispute are public.

Written notices of disputes receivedby the Service pursuant to sections8(d)(3), 8(d)(A), 8(g) and 9(c)(1) of theLabor-Management Relations Act, 1947,as amended, or pursuant to 29 CFR1425.2, are not exempt from disclosure.Parties at interest have the right to re-ceive certified copies of any such no-tice of dispute upon written request.Requests for copies of notices should besubmitted to FMCS, Notice ProcessingUnit, 2100 K Street, NW., Washington,DC 20427.

§ 1401.30 Applicability of procedures.

Requests for inspection or copying ofinformation from records in the cus-tody of the FMCS which are reasonablyidentifiable and available under theprovisions of this part shall be madeand acted upon as provided in the fol-lowing sections of this subpart. Theprescribed procedure shall be followedin all cases where access is sought toofficial records pursuant to the provi-sions of the Freedom of InformationAct, except with respect to records forwhich a less formal disclosure proce-dure is provided specifically in thispart.

§ 1401.31 Filing a request for records.

(a) Any person who desires to inspector copy any record covered by this partshall submit a written request to thateffect to the Legal Services Office,


41


FMCS, 2100 K Street, NW., Washington,DC 20427. (202) 653–5305.

(b) The Legal Services Office will de-termine what office or division withinFMCS is custodian of the records. TheOffice will then send the request to theappropriate FMCS office or division asprovided in § 1401.32(b) of this part.

§ 1401.32 Logging of written requests.(a) All requests for records should be

clearly and prominently identified as arequest for information under the Free-dom of Information Act, and if sub-mitted by mail or otherwise submittedin an envelope or other cover, shouldbe clearly and prominently identifiedas such on the envelope or other cover.

(b) Upon receipt of a request forrecords from the FMCS Legal ServicesOffice, the FMCS office or division re-sponding to the request shall enter itin a public log. The log shall state thedate and time received, the name andaddress of person making the request,the nature of the records requested, theaction taken on the request, the dateof the determination letter sent pursu-ant to § 1401.34 (b) and (d), the date(s)any records are subsequently fur-nished, the number of staff hours andgrade levels of persons who spent timeresponding to the request, and the pay-ment requested and received.

§ 1401.33 Description of informationrequested.

(a) Each request should reasonablydescribe the records being sought, in away that they can be identified and lo-cated. A request should include all per-tinent details that will help identifythe records sought.

(b) If the description is insufficient,the officer processing the request willso notify the person making the re-quest and indicate the additional infor-mation needed. Every reasonable effortshall be made to assist in the identi-fication and location of the recordssought.

§ 1401.34 Time for processing requests.(a) All time limitations established

pursuant to this section shall begin asof the time at which a request forrecords is logged in by the officer oremployee processing the request pursu-ant to § 1401.32(b). An oral request for

records shall not begin any time re-quirement. A written request forrecords sent to an office or division ofFMCS other than the one having au-thority to grant or deny access to therecords shall be redirected to the ap-propriate office for processing, and thetime shall begin upon its being loggedin there in accordance with § 1401.32(b).

(b) The officer or employee passingupon the request for records shall,within ten (10) working days followingreceipt of the request, respond in writ-ing to the requester, determiningwhether, or the extent to which, theAgency shall comply with the request.

(1) If all of the records requested havebeen located and a final determinationhas been made with respect to disclo-sure of all the records requested, theresponse shall so state.

(2) If all of the records have not beenlocated or a final determination hasnot been made with respect to disclo-sure of all records requested, the re-sponse shall state the extent to whichthe records involved will be disclosedpursuant to the rules established inthis part.

(3) If the request is expected to in-volve an assessed fee in excess of $50.00,the response shall specify or estimatethe fee involved and shall require pre-payment before the records are madeavailable.

(4) Whenever possible, the responserelating to a request for records thatinvolves a fee of less than $50.00, shallbe accompanied by the requestedrecords. Where this is not possible, therecords shall be forwarded as soon aspossible thereafter, consistent withother obligations of the Agency.

(c) In the following circumstances,the time for passing upon the requestmay be extended for up to an addi-tional 10 working days by written no-tice to the person making the request,setting forth the reasons for such ex-tension and the time within which adetermination is expected to be made:

(1) The need to search for and collectthe requested records from the field fa-cilities or other establishments thatare separate from the office processingthe request;

(2) The need to search for, collect andappropriately examine a voluminous


42


amount of records which are demandedin a single request; or

(3) The need for consultation, whichshall be conducted with all practicablespeed, with another agency having asubstantial interest in the determina-tion of the request or among two ormore components of the Agency havingsubstantial subject matter interesttherein.

(b) If any request for records is de-nied in whole or in part, the responserequired by paragraph (b) of this sec-tion shall notify the requester of thedenial. Such denial shall specify thereason therefor and also advise thatthe denial may be appealed to the Of-fice of Deputy Director of the Agencyas specified in § 1401.35.

§ 1401.35 Appeals from denials of re-quest.

(a) Whenever any request for recordsis denied, a written appeal may be filedwith the Deputy Director, FMCS, 2100K Street, NW., Washington, DC 20427,within 30 days after requester receivesnotification that the request has beendenied or after the requester receivesany records being made available, inthe event of partial denial. The appealshall state the grounds for appeal, in-cluding any supporting statements orarguments.

(b) Final action on the appeal shallbe taken within 20 working days fromthe time of receipt of the appeal.Where novel and complicated questionshave been raised or unusual difficultieshave been encountered, the Deputy Di-rector may extend the time for finalaction up to an additional 10 days, de-pending upon whether there had beenan extension pursuant to § 1401.34(c) atthe initial stage. In such cases, the ap-plicant shall be notified in writing ofthe reasons for the extension of timeand the approximate date on which afinal response will be forthcoming.

(c) If on appeal the denial of the re-quest for records is upheld in whole orin part, the Deputy Director shall no-tify the applicant of the reasons there-for, and shall advise the requester ofthe provisions for judicial review under5 U.S.C. 552(a) (4) and (6).

§ 1401.36 Freedom of Information Actfee schedules.

(a) Definitions. For purposes of§ 1401.36, the following definitionsapply:

(1) Direct costs means those expendi-tures which are actually incurred insearching for and duplicating and, inthe case of commercial use requesters,reviewing to respond to a FOIA re-quest.

(2) Search includes all time spentlooking for material that is responsiveto a request, including page-by-pageand line-by-line identification of mate-rial within documents. Searches maybe done manually or by computer.

(3) Duplication refers to the process ofmaking a copy of a document nec-essary to respond to a FOIA request.Copies may be in various forms includ-ing machine readable documentation(e.g. magnetic tape or disk) among oth-ers. The copy provided shall be in aform that is reasonably usable by therequester.

(4) Review refers to the process of ex-amining documents located in responseto a request that is for commercial use,to determine whether a document orany portion of any document located ispermitted to be withheld. It includesprocessing any documents for disclo-sure to the requester, e.g., doing allthat is necessary to excise them or oth-erwise prepare them for release.

(5) Commercial use request refers to arequest from or on behalf of one whoseeks information for a use or purposethat furthers the commercial trade orprofit interest of the requester or theperson on whose behalf the request ismade.

(6) Educational institution refers to apreschool, a public or private elemen-tary or secondary school, an institu-tion of undergraduate higher edu-cation, an institution of graduate orprofessional education or an institu-tion of vocational education, which op-erates a program or programs of schol-arly research.

(7) Representative of the news media re-fers to any person actively gatheringnews for an entity that is organizedand operated to publish or broadcastnews to the public. The term ‘‘news’’means information that is about cur-rent events or that would be of current


43


interest to the public. In the case of‘‘freelance’’ journalists, they may beregarded as working for a news organi-zation if they can demonstrate a rea-sonable expectation of publicationthrough the organization, even thoughnot actually employed by it.

(8) Non-commercial scientific institutionrefers to an institution that is not op-erated on a commercial basis as de-fined under ‘‘commercial use request’’in paragraph (a)(5) of this section, andwhich is operated solely for the pur-pose of conducting scientific research,the results of which are not intended topromote any particular product or in-dustry.

(b) Fee schedules and waivers. Re-quests submitted shall be subject to di-rect costs, including search, duplica-tion and review, in accordance with thefollowing schedules, procedures andconditions.

(1) Schedule of charges—(i) Clericaltime. For each one-quarter hour or por-tion thereof of clerical time, $2.25.

(ii) Professional time. For each one-quarter hour or portion thereof of pro-fessional time, $7.00.

(iii) Duplication. For each sheet of du-plication (not to exceed 81⁄2 by 14inches) of requested records, $.20.

(iv) Computer time. For computertime, $3.00 per minute of time expendedfor production programming, searchingand production of any record. Com-puter time expressed in fractions ofminutes will be rounded to the nextwhole minute.

(v) Certification or authorization ofrecords. The fee per certification or au-thentication is $2.00.

(vi) Forwarding material to destination.No charge will be assessed for ordinarypackaging and mailing costs. TheFMCS may assess a charge if compli-ance with the request requires specialhandling procedures such as expressmail or other unusual procedures. Suchcharges will be made on the basis of ac-tual costs.

(vii) Other costs. All other direct costsof preparing a response to a requestshall be charged to requester in thesame amount as incurred by FMCS.Charges may also be assessed forsearches even if the records requestedare not found, or the records are deter-mined to be exempted from disclosure.

(2) Rules of construction. (i) In pro-viding the foregoing the schedules pur-suant to the provisions of 5 U.S.C.552(a)(4)(A), it is the intent of FMCS toapply 29 CFR part 70 and the usercharge statute, 31, U.S.C. 9701, to coverthose situations in which the Agency isperforming for a requester serviceswhich are not required under the Free-dom of Information Act.

(ii) For those matters coming withinthe scope of this regulation, the FMCSwill look to the provisions of the guid-ance published by the Office of Man-agement and Budget (52 FR 10012,March 27, 1987) and the Department ofJustice (Attorney General’s memo-randum on the 1986 Amendments to theFreedom of Information Act, December1987) for making such interpretationsas may be necessary.

(3) Fee categories. Fees shall be deter-mined in accordance with the followingcategories of requesters.

(i) Commercial use requesters will beassessed charges to recover the full di-rect cost of searching for, reviewing forrelease, and duplicating the recordssought. This includes the full directcosts of computer production program-ming, searching and production ofrecords. Commercial use requesters arenot entitled to 2 hours of free searchtime nor 100 free pages of reproductionof documents, as described below.

(ii) Educational and non-commercialscientific institution requesters will beassessed charges for the cost of dupli-cation alone, excluding charges for thefirst 100 pages. To be eligible for inclu-sion in this category, requesters mustshow that the request is being madeunder the auspices of a qualifying in-stitution pursuant to the criteria inparagraphs (a)(6) and (a)(8) of this sec-tion, and that the records are notsought for commercial use, but aresought in furtherance of scholarly orscientific research.

(iii) Requesters who are representa-tives of the news media will be assessedcharges for the cost of duplicationalone, excluding charges for the first100 pages. To be eligible for inclusion inthis category, a requester must meetthe criteria in paragraph (a)(7) of thissection, and the request must not bemade for a commercial use. A request


44


for records supporting the news dis-semination function of the requestershall not be considered to be a requestthat is for commercial use.

(iv) All other requesters will be as-sessed charges to recover the full rea-sonable direct costs of searching forand reproducing records that are re-sponsive to the request, including costsof computer production programming,searching and production, except thatthe first 100 pages of reproduction, andthe first 2 hours of search time shall befurnished without charge.

(v) In no event shall fees be chargedwhen the total charges are less than$50.00, which is the Agency cost of col-lecting and processing the fee itself.

(4) Waiver or reduction of charge. Doc-uments are to be furnished withoutcharge or at reduced levels if disclosureof the information is in the public in-terest; that is, because it is likely tocontribute significantly to public un-derstanding of the operations or activi-ties of the Government and is not pri-marily in the commercial interest ofthe requester.

(c) Fee payments. (1) Payments shallbe made by check or money order pay-able to ‘‘Federal Mediation and Concil-iation Service’’ and shall be sent to:Director, Financial Management Staff,Federal Mediation and ConciliationService, 2100 K Street NW., Wash-ington, DC 20427.

(2) If a requester fails to pay charge-able fees that were incurred as a resultof this Agency’s processing of the in-formation request, the Agency begin-ning on the 31st day following the dateon which the notification of chargeswas sent, may assess interest chargesagainst the requester in the mannerprescribed in 31 U.S.C. 37l7.

(3) The Agency may use the provi-sions of the Debt Collection Act of 1982,(Pub. L. 97–365, 29 CFR part 1450) in-cluding disclosure to consumer report-ing agencies, for the purpose of obtain-ing payment.

(d) Advance payments. FMCS may re-quire a requester to make an advancepayment of anticipated fees under thefollowing circumstances:

(1) If the anticipated charges arelikely to exceed $250, FMCS may notifythe requestor of the likely cost and ob-tain satisfactory assurance of full pay-

ment when the requester has a historyof prompt payment of FOIA fees, or re-quire an advance payment of anamount up to the full estimatedcharges in the case of requesters withno history of payments.

(2) If a requester has previously failedto pay fees that have been charged inprocessing a request, within 30 days ofthe date when the notification of feeswas sent, the requester may be re-quired to:

(i) Pay the entire amount of fees thatare owed, plus any applicable interestas provided for in paragraph (c)(2) ofthis section, and

(ii) To make an advance payment ofthe full amount of the estimated feebefore the Agency will process the newpending request.

[55 FR 17602, Apr. 26, 1990]

§ 1401.37 Annual report.The Office of the Director shall annu-

ally, within 60 days following the closeof each calendar year, prepare a reportcovering each of the categories orrecords to be maintained in accordancewith 5 U.S.C. 552(d) for such calendaryear and shall forthwith submit thesame to the Speaker of the House ofRepresentatives and the President ofthe Senate for referral to the appro-priate committees of the Congress.

PART 1402—PROCEDURES OF THESERVICE

AUTHORITY: Sec. 202, 61 Stat. 153, sec. 3, 80Stat. 250, sec. 203, 61 Stat. 153; 5 U.S.C. 552, 29U.S.C. 172, 173.

§ 1402.1 Notice of dispute.The notice of dispute filed with the

Federal Mediation and ConciliationService pursuant to the provisions ofsection 8(d)(3), of the Labor-Manage-ment Relations Act, 1947, as amended,shall be in writing. The following FormF–7, for use by the parties in filing anotice of dispute, has been prepared bythe Service:

FMCS Form F–7.Revised May 1964.

NOTICE TO MEDIATION AGENCIES

To: Federal Mediation and ConciliationService, Washington, D.C. 20427; and


45


To: (Appropriate State or Territorial agen-cy.)

Date llllllllll

You are hereby notified that written no-tice of the proposed termination or modifica-tion of the existing collective bargainingcontract was served upon the other party tothis contract and that no agreement hasbeen reached.

1. (a) Name of employer (if more than onecompany or an association, submit namesand addresses on separate sheet in dupli-cate). Phone No. llllll

Address of establishment affected (Street)(City) (State) (Zip Code).

(If more than one establishment, or plant,list addresses on separate sheet.)

(b) Employer Official to communicate with(name and title).Address: Phone No. llll.llllllll (Street), llllllll

(City), llllllll (State).2. (a) International union llllllll

Local No. lll. AFL–CIO ( ). Independent( ). Phone No. lll. Address of local union:llllllll (Street), llllllll

(City), llllllll (State), llll (ZipCode).

(b) Union official to communicate withllllllllll. Phone No. llll—.Address:llllllll (Street), llllllll

(City), llllllll (State), llll (ZipCode).

3. (a) Number of employees covered by theContract(s) lll.

(b) Total number employed by the Com-pany at this location(s) lll.

4. Type of establishment and principalproducts, or services lllllllllll

(Factory, mine, wholesaler, over-the-roadtrucking, etc.).

5. Contract expiration or reopening datellllll.

6. Name of official filing this noticellllllllll. Title llllllll.Address llllllllllll Phone No.llll.

Check on whose behalf this notice is filed:Union llllll. Employer llllll

Signature llllllllllllllll

Receipt of this notice does not constitute arequest for mediation nor does it commit theagencies to offer their facilities. This par-ticular form of notice is not legally required.Receipt of notice will not be acknowledgedin writing by the Federal Mediation and Con-ciliation Service. (Attach copies of anystatement you wish to make to the Medi-ation Agencies.)

Copies of this Form F–7 are obtainable atthe national, regional and field offices of theService. This form may be duplicated for useby representatives of employers or unionsprovided it is copied in full without change.

[32 FR 9812, July 6, 1967, as amended at 47 FR10531, Mar. 11, 1982]

PART 1403—FUNCTIONS ANDDUTIES

Sec.1403.1 Definitions.1403.2 Policies of the Federal Mediation and

Conciliation Service.1403.3 Obtaining data on labor-management

disputes.1403.4 Assignment of mediators.1403.5 Relations with State and local medi-

ation agencies.

AUTHORITY: Sec. 202, 61 Stat. 153, sec. 3, 80Stat. 250, sec. 203, 61 Stat. 153; 29 U.S.C. 172,5 U.S.C. 552, 29 U.S.C. 173.

SOURCE: 32 FR 9813, July 6, 1967, unless oth-erwise noted.


As used in this part, unless the con-text clearly indicates otherwise;

(a) The term commerce means trade,traffic, commerce, transportation, orcommunication among the severalStates, or between the District of Co-lumbia or any Territory of the UnitedStates and any State or other Terri-tory, or between any foreign countryand any State, Territory, or the Dis-trict of Columbia, or within the Dis-trict of Columbia, or any Territory, orbetween points in the same State butthrough any other State or any Terri-tory or the District of Columbia or anyforeign country.

(b) The term affecting commercemeans in commerce, or burdening orobstructing commerce or the free flowof commerce, or having led or tendingto lead to a labor-management disputeburdening or obstructing commerce orthe free flow of commerce.

(c) The term labor union or labor orga-nization means any organization of anykind, or any agency or employee rep-resentation committee or plan, inwhich employees participate and whichexists for the purpose, in whole or inpart, of dealing with employers con-cerning grievances, labor disputes,wages, rates of pay, hours of employ-ment, or conditions of work.

(d) The term State or other conciliationservices means the official and accred-ited mediation and conciliation estab-lishments of State and local govern-ments, which are wholly or partiallysupported by public funds.


46


(e) The term proffer its services, as ap-plied to the functions and duties of theFederal Mediation and ConciliationService, means to make mediationservices and facilities available eitheron its own motion or upon the requestof one or more of the parties to a dis-pute.

§ 1403.2 Policies of the Federal Medi-ation and Conciliation Service.

It is the policy of the Federal Medi-ation and Conciliation Service:

(a) To facilitate and promote the set-tlement of labor-management disputesthrough collective bargaining by en-couraging labor and management to re-solve differences through their own re-sources.

(b) To encourage the States to pro-vide facilities for fostering betterlabor-management relations and for re-solving disputes.

(c) To proffer its services in labor-management disputes in any industryaffecting commerce, except as to anymatter which is subject to the provi-sions of the Railway Labor Act, asamended, either upon its own motionor upon the request of one or more ofthe parties to the dispute, whenever inits judgment such dispute threatens tocause a substantial interruption tocommerce.

(d) To refrain from proffering itsservices:

(1) In labor-management disputes af-fecting intrastate commerce exclu-sively,

(2) In labor-management disputeshaving a minor effect on interstatecommerce, if State or other concilia-tion services are available to the par-ties, or

(3) In a labor-management disputewhen a substantial question of rep-resentation has been raised, or to con-tinue to make its facilities availablewhen a substantial question of rep-resentation is raised during the nego-tiations.

(e) To proffer its services in anylabor-management dispute directly in-volving Government procurement con-tracts necessary to the national de-fense, or in disputes which imperil orthreaten to imperil the national healthor safety.

(f) To proffer its services to the par-ties in grievance disputes arising overthe application or interpretation of anexisting collective-bargaining agree-ment only as a last resort and in excep-tional cases.

§ 1403.3 Obtaining data on labor-man-agement disputes.

When the existence of a labor-man-agement dispute comes to the atten-tion of the Federal Service upon a re-quest for mediation service from one ormore parties to the dispute, throughnotification under the provisions ofsection 8(d)(3), title I of the Labor-Management Relations Act, 1947, orotherwise, the Federal Service will ex-amine the information to determine ifthe Service should proffer its servicesunder its policies. If sufficient data onwhich to base a determination is not athand, the Federal Service will inquireinto the circumstances surrounding thecase. Such inquiry will be conductedfor fact-finding purposes only and isnot to be interpreted as the FederalService proffering its services.

§ 1403.4 Assignment of mediators.

The Federal Service will assign oneor more mediators to each labor-man-agement dispute in which it has beendetermined that its services shouldproffered.

§ 1403.5 Relations with State and localmediation agencies.

(a) If under State or local law a Stateor local mediation agency must offerits facilities in a labor-managementdispute in which the Federal Service isproffering its services, the interests ofsuch agencies will be recognized andtheir co-operation will be encouragedin order that all efforts may be madeto prevent or to effectively minimizeindustrial strife.

(b) If, in a labor-management disputethere is reasonable doubt that the dis-pute threatens to cause a substantialinterruption to commerce or that thereis more than a minor effect upon inter-state commerce, and State or otherconciliation services are available tothe parties, the regional director of theFederal Service will endeavor to workout suitable arrangements with the


47


State or other conciliation or medi-ation agency for mediation of the dis-pute. Decisions in such cases will takeinto consideration the desires of theparties, the effectiveness and avail-ability of the respective facilities, andthe public welfare, health, and safety.

(c) If requested by a State or localmediation agency or the chief execu-tive of a State or local government, theFederal Service may make its servicesavailable in a labor-management dis-pute which would have only a minor ef-fect upon interstate commerce when,in the judgment of the Federal Service,the effect of the dispute upon com-merce or the public welfare, health, orsafety justifies making available itsmediation facilities.

PART 1404—ARBITRATIONSERVICES

Subpart A—Arbitration Policy;Administration of Roster

Sec.1404.1 Scope and authority.1404.2 Policy.1404.3 Administrative responsibilities.

Subpart B—Roster of Arbitrators; Admissionand Retention

1404.4 Roster and status of members.1404.5 Listing on the roster; criteria for list-

ing and retention.1404.6 Inactive status.1404.7 Listing fee.

Subpart C—Procedures for ArbitrationServices

1404.8 Freedom of choice.1404.9 Procedures for requesting arbitration

lists and panels.1404.10 Arbitrability.1404.11 Nominations of arbitrators.1404.12 Selection by parties and appoint-

ments of arbitrators.1404.13 Conduct of hearings.1404.14 Decision and award.1404.15 Fees and charges of arbitrators.1404.16 Reports and biographical sketches.

Subpart D—Expedited Arbitration

1404.17 Policy.1404.18 Procedures for requesting expedited

panels.1404.19 Arbitration process.1404.20 Arbitrator eligibility.1404.21 Proper use of expedited arbitration.

APPENDIX TO 29 CFR PART 1404—ARBITRATIONPOLICY; SCHEDULE OF FEES

AUTHORITY: 29 U.S.C. 172 and 29 U.S.C. 173et seq.

SOURCE: 62 FR 34171, June 25, 1997, unlessotherwise noted.

Subpart A—Arbitration Policy;Administration of Roster

§ 1404.1 Scope and authority.This chapter is issued by the Federal

Mediation and Conciliation Service(FMCS) under Title II of the LaborManagement Relations Act of 1947(Pub. L. 80–101) as amended. It appliesto all arbitrators listed on the FMCSRoster of Arbitrators, to all applicantsfor listing on the Roster, and to all per-sons or parties seeking to obtain fromFMCS either names or panels of namesof arbitrators listed on the Roster inconnection with disputes which are tobe submitted to arbitration or fact-finding.

§ 1404.2 Policy.The labor policy of the United States

promotes and encourages the use ofvoluntary arbitration to resolve dis-putes over the interpretation or appli-cation of collective bargaining agree-ments. Voluntary arbitration and fact-finding are important features of con-structive employment relations as al-ternatives to economic strife.

§ 1404.3 Administrative responsibil-ities.

(a) Director. The Director of FMCShas responsibility for all aspects ofFMCS arbitration activities and is thefinal agency authority on all questionsconcerning the Roster and FMCS arbi-tration procedures.

(b) Office of Arbitration Services. TheOffice of Arbitration Services (OAS)maintains a Roster of Arbitrators (theRoster); administers subpart C of thispart (Procedures for Arbitration Serv-ices); assists, promotes, and cooperatesin the establishment of programs fortraining and developing new arbitra-tors; and provides names or panels ofnames of listed arbitrators to partiesrequesting them.

(c) Arbitrator Review Board. The Arbi-trator Review Board shall consist of a


48


chairman and members appointed bythe Director who shall serve at the Di-rector’s pleasure. The Board shall becomposed entirely of full-time officersor employees of the Federal Govern-ment and shall establish procedures forcarrying out its duties.

(1) Duties of the Board. The Boardshall:

(i) Review the qualifications of allapplicants for listing on the Roster, in-terpreting and applying the criteria setforth in § 1404.5;

(ii) Review the status of all personswhose continued eligibility for listingon the Roster has been questionedunder § 1404.5;

(iii) Recommend to the Director theacceptance or rejection of applicantsfor listing on the Roster, or the with-drawal of listing on the Roster for anyof the reasons set forth in this part;

(iv) At the request of the Director ofFMCS, review arbitration policies andprocedures, including all regulationsand written guidance regarding the useof the FMCS arbitrators, and make rec-ommendations regarding such policiesand procedures to the Director.

(2) [Reserved]

Subpart B—Roster of Arbitrators;Admission and Retention

§ 1404.4 Roster and status of members.(a) The Roster. FMCS shall maintain

a Roster of labor arbitrators consistingof persons who meet the criteria forlisting contained in § 1404.5 and who re-main in good standing.

(b) Adherence of standards and require-ments. Persons listed on the Rostershall comply with FMCS rules and reg-ulations pertaining to arbitration andwith such guidelines and procedures asmay be issued by the OAS pursuant tosubpart C of this part. Arbitrators shallconform to the ethical standards andprocedures set forth in the Code of Pro-fessional Responsibility for Arbitratorsof Labor Management Disputes, as ap-proved by the National Academy of Ar-bitrators, Federal Mediation and Con-ciliation Service, and the American Ar-bitration Association.

(c) Status of arbitrators. Persons whoare listed on the Roster and are se-lected or appointed to hear arbitrationmatters or to serve as factfinders do

not become employees of the FederalGovernment by virtue of their selec-tion or appointment. Following selec-tion or appointment, the arbitrator’srelationship is solely with the partiesto the dispute, except that arbitratorsare subject to certain reporting re-quirements and to standards of conductas set forth in this part.

(d) Role of FMCS. FMCS has no powerto:

(1) Compel parties to appear beforean arbitrator;

(2) Enforce an agreement to arbi-trate;

(3) Compel parties to arbitrate anyissue;

(4) Influence, alter, or set aside deci-sions of arbitrators on the Roster;

(5) Compel, deny, or modify paymentof compensation to an arbitrator.

(e) Nominations and panels. On requestof the parties to an agreement to arbi-trate or engage in factfinding, or wherearbitration or factfinding may be pro-vided for by statute, OAS will providenames or panels of names for a nominalfee. Procedures for obtaining theseservices are outlined in subpart C ofthis part. Neither the submission of anomination or panel nor the appoint-ment of an arbitrator constitutes a de-termination by FMCS that an agree-ment to arbitrate or enter factfindingproceedings exists; nor does such ac-tion constitute a ruling that the mat-ter in controversy is arbitrable underany agreement.

(f) Rights of persons listed on the Ros-ter. No person shall have any right tobe listed or to remain listed on theRoster. FMCS retains its authority andresponsibility to assure that the needsof the parties using its services areserved. To accomplish this purpose,FMCS may establish procedures for thepreparation of panels or the appoint-ment of arbitrators or factfinderswhich include consideration of suchfactors as background and experience,availability, acceptability, geo-graphical location, and the expressedpreferences of the parties. FMCS mayalso establish procedures for the re-moval from the Roster of those arbitra-tors who fail to adhere to provisionscontained in this part.


49


§ 1404.5 Listing on the roster; criteriafor listing and retention.

Persons seeking to be listed on theRoster must complete and submit anapplication form which may be ob-tained from OAS. Upon receipt of anexecuted application, OAS will reviewthe application, assure that it is com-plete, make such inquiries as are nec-essary, and submit the application tothe Arbitrator Review Board. TheBoard will review the completed appli-cation under the criteria in paragraphs(a), (b), and (c) of this section, and willforward to the FMCS Director its rec-ommendation as to whether or not theapplicant meets the criteria for listingon the Roster. The Director shall makeall final decisions as to whether an ap-plicant may be listed on the Roster.Each applicant shall be notified inwriting of the Director’s decision andthe reasons therefor.

(a) General criteria. Applicants for theRoster will be listed on the Rosterupon a determination that they are ex-perienced, competent, and acceptablein decision-making roles in the resolu-tion of labor relations disputes.

(b) Proof of qualification. Qualifica-tions for listing on the Roster may bedemonstrated by submission of five (5)arbitration awards prepared by the ap-plicant while serving as an impartialarbitrator of record chosen by the par-ties to labor disputes arising under col-lective bargaining agreements. TheBoard will consider experience in rel-evant positions in collective bar-gaining or as a judge or hearing exam-iner in labor relations controversies asa substitute for such awards.

(c) Advocacy. Any person who at thetime of application is an advocate asdefined in paragraph (c)(1) of this sec-tion, must agree to cease such activitybefore being recommended for listingon the Roster by the Board. Except inthe case of persons listed on the Rosteras advocates before November 17, 1996,any person who did not divulge his orher advocacy at the time of listing orwho becomes an advocate while listedon the Roster, shall be recommendedfor removal by the Board after the factof advocacy is revealed.

(1) Definition of advocacy. An advo-cate is a person who represents em-ployers, labor organizations, or individ-

uals as an employee, attorney, or con-sultant, in matters of labor relations,including but not limited to the sub-jects of union representation and rec-ognition matters, collective bar-gaining, arbitration, unfair labor prac-tices, equal employment opportunity,and other areas generally recognized asconstituting labor relations. The defi-nition includes representatives of em-ployers or employees in individualcases or controversies involving work-er’s compensation, occupational healthor safety, minimum wage, or otherlabor standards matters. This defini-tion of advocate also includes a personwho is directly associated with an ad-vocate in a business or professional re-lationship, as for example, partners oremployees of a law firm. Consultantsengage only in joint education or train-ing or other non-adversarial activitieswill not be deemed as advocates.

(2) [Reserved](d) Duration of listing, retention. List-

ing on the Roster shall be by decisionof the Director of FMCS based upon therecommendations of the Arbitrator Re-view Board. The Board may rec-ommend, and the Director may re-move, any person listed on the Roster,for violation of this part and/or theCode of Professional Responsibility.Notice of cancellation or suspensionshall be given to a person listed on theRoster whenever a Roster member:

(1) No longer meets the criteria foradmission;

(2) Has become an advocate as de-fined in paragraph (c) of this section;

(3) Has been repeatedly or flagrantlydelinquent in submitting awards;

(4) Has refused to make reasonableand periodic reports in a timely man-ner to FMCS, as required in subpart Cof this part, concerning activities per-taining to arbitration;

(5) Has been the subject of com-plaints by parties who use FMCS serv-ices, and the Board after appropriateinquiry, concludes that just cause forcancellation has been shown;

(6) Is determined by the Director tobe unacceptable to the parties who useFMCS arbitration services; the Direc-tor may base a determination ofunacceptability on FMCS recordswhich show the number of times thearbitrator’s name has been proposed to


50


the parties and the number of times ithas been selected. Such cases will bereviewed for extenuating cir-cumstances, such as length of time onthe Roster or prior history.

(e) The Board may, at its discretion,conduct an inquiry into the facts ofany proposed removal from the Roster.An arbitrator listed on the Roster mayonly be removed after 60-day noticeand an opportunity to submit a re-sponse or information showing why thelisting should not be canceled. TheBoard may recommend to the Directorwhether to remove an arbitrator fromthe Roster. All determinations to re-move an arbitrator from the Rostershall be made by the Director. Remov-als may be for a period of up to two (2)years, after which the arbitrator mayseek reinstatement.

(f) The Director of OAS may suspendfor a period not to exceed 180 days anyperson listed on the Roster who hasviolated any of the criteria in para-graph (d) of this section. Arbitratorsshall be promptly notified of a suspen-sion. They may appeal a suspension tothe Arbitrator Review Board, whichshall make a recommendation to theDirector of FMCS. The decision of theDirector of FMCS shall constitute thefinal action of the agency.

§ 1404.6 Inactive status.A member of the Roster who con-

tinues to meet the criteria for listingon the Roster may request that he orshe be put in an active status on a tem-porary basis because of ill health, vaca-tion, schedule, or other reasons.

§ 1404.7 Listing fee.All arbitrators will be required to

pay an annual fee for listing on theRoster, as set forth in the Appendix tothis part.

Subpart C—Procedures forArbitration Services

§ 1404.8 Freedom of choice.Nothing contained in this part should

be construed to limit the rights of par-ties who use FMCS arbitration servicesto jointly select any arbitrator or arbi-tration procedure acceptable to them.Once a request is made to OAS, all par-

ties are subject to the procedures con-tained in this part.

§ 1404.9 Procedures for requesting ar-bitration lists and panels.

(a) The Office of Arbitration Services(OAS) has been delegated the responsi-bility for administering all requests forarbitration services. Requests shouldbe addressed to the Federal Mediationand Conciliation Service, Office of Ar-bitration Services, Washington, DC20427.

(b) The OAS will refer a panel of arbi-trators to the parties upon request.The parties are encouraged to makejoint requests. In the event, however,that the request is made by only oneparty, the OAS will submit a panel ofarbitrators. However, the issuance of apanel—pursuant to either joint or uni-lateral request—is nothing more than aresponse to a request. It does not sig-nify the adoption of any position bythe FMCS regarding the arbitrabilityof any dispute or the terms of the par-ties’ contract.

(c) As an alternative to a request fora panel of names, OAS will, upon writ-ten request, submit a list of all arbitra-tors and their biographical sketchesfrom a designated geographical area.The parties may then select and dealdirectly with an arbitrator of theirchoice, with no further involvement ofFMCS with the parties or the arbi-trator. The parties may also requestFMCS to make a direct appointment oftheir selection. In such a situation, acase number will be assigned.

(d) The OAS reserves the right to de-cline to submit a panel or make ap-pointments of arbitrators, if the re-quest submitted is overly burdensomeor otherwise impracticable. The OAS,in such circumstances, may refer theparties to an FMCS mediator to help inthe design of an alternative solution.The OAS may also decline to serviceany requests from parties with a dem-onstrated history of non-payment ofarbitrator fees or other behavior whichconstrains the spirit or operation ofthe arbitration process.

(e) The parties are required to usethe Request for Arbitration Panel(Form R–43), which has been preparedby the OAS and is available in quantityupon request to the Federal Mediation


51


and Conciliation Service, Office of Ar-bitration Services, Washington, DC20427, or by calling (202) 606–5111 or atwww.fmcs.gov. Requests that do notcontain all required information re-quested on the R–43 in typewrittenform may be rejected.

(f) Requests made by only one party,for a service other than the furnishingof a standard list or panel of seven (7)arbitrators, will not be honored unlessauthorized by the applicable collectivebargaining agreement. This includesunilateral requests for a second orthird panel or for a direct appointmentof an arbitrator.

(g) The OAS will charge a nominalfee for all requests for lists, panels, andother major services. Payments forthese services must be received withthe request for services before the serv-ice is delivered and may be paid by ei-ther labor or management or both. Aschedule of fees is listed in the Appen-dix to this part.

§ 1404.10 Arbitrability.

The OAS will not decide the merits ofa claim by either party that a disputeis not subject to arbitration.

§ 1404.11 Nominations of arbitrators.

(a) The parties may also report a ran-domly selected panel containing thenames of seven (7) arbitrators accom-panied by a biographical sketch foreach member of the panel. This sketchstates the background, qualifications,experience, and all fees as furnished tothe OAS by the arbitrator. Requests fora panel of seven (7) arbitrators, wheth-er joint or unilateral, will be honored.Requests for a panel of other thanseven (7) names, for a direct appoint-ment of an arbitrator, for special quali-fications or other service will not behonored unless jointly submitted or au-thorized by the applicable collectivebargaining agreement. Alternatively,the parties may request a list and bio-graphical sketches of some or all arbi-trators in one or more designated geo-graphical areas. If the parties canagree on the selection of an arbitrator,they may appoint their own arbitratordirectly without any further casetracking by FMCS. No case numberwill be assigned.

(b) All panels submitted to the par-ties by the OAS, and all letters issuedby the OAS making a direct appoint-ment, will have an assigned FMCS casenumber. All future communications be-tween the parties and the OAS shouldrefer to this case number.

(c) The OAS will provide a randomlyselected panel of arbitrators located instate(s) in proximity of the hearingsite. The parties may request specialqualifications of arbitrators experi-enced in certain issues or industries orthat possess certain backgrounds. TheOAS has no obligation to put an indi-vidual on any given panel, or on a min-imum number of panels in any fixed pe-riod. In general:

(1) The geographic location of arbi-trators placed on panels is governed bythe site of the dispute as stated on therequest received by the OAS.

(2) If at any time both parties requestthat a name or names be included, oromitted, from a panel, such name ornames will be included, or omitted, un-less the number of names is excessive.These inclusions/exclusions may notdiscriminate against anyone because ofage, race, gender, ethnicity or religiousbeliefs.

(d) If the parties do not agree on anarbitrator from the first panel, theOAS will furnish a second and thirdpanel to the parties upon joint requestand payment of an additional fee. Re-quests for a second or third panelshould be accompanied by a brief ex-planation as to why the previouspanel(s) was inadequate. If parties areunable to agree on a selection afterhaving received three panels, the OASwill make a direct appointment uponjoint request.

§ 1404.12 Selection by parties and ap-pointments of arbitrators.

(a) After receiving a panel of names,the parties must notify the OAS oftheir selection of an arbitrator or ofthe decision not to proceed with arbi-tration. Upon notification of the selec-tion of an arbitrator, the OAS willmake a formal appointment of the ar-bitrator. The arbitrator, upon notifica-tion of appointment, is expected tocommunicate with the parties within


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14 days to arrange for preliminary mat-ters, such as the date and place of hear-ing. Should an arbitrator be notifieddirectly by the parties that he or shehas been selected, the Arbitrator mustpromptly notify the OAS of the selec-tion and his or her willingness to serve.If the parties settle a case prior to thehearing, the parties must inform thearbitrator as well as the OAS. Con-sistent failure to follow these proce-dures may lead to a denial of futureOAS service.

(b) If the parties request a list ofnames and biographical sketches rath-er than a panel, they may choose to ap-point and contact an arbitrator di-rectly. In this situation, neither theparties nor the arbitrator is required tofurnish any additional information toFMCS and no case number will be as-signed.

(c) Where the parties’ collective bar-gaining agreement is silent on themanner of selecting arbitrators, theparties may wish to consider any joint-ly determined method or one of the fol-lowing methods for selection of an ar-bitrator from a panel:

(1) Each party alternately strikes aname from the submitted panel untilone remains, or

(2) Each party advises the OAS of itsorder of preference by numbering eachname on the panel and submitting thenumbered lists in writing to the OAS.The name that has the lowest com-bined number will be appointed.

(3) In those situations where the par-ties separately notify the OAS of theirpreferred selections, once the OAS re-ceives the preferred selection from oneparty, it will notify the other partythat it has fourteen (14) days in whichto submit its selections. If that partyfails to respond within the deadline,the first party’s choice will be honored.If, within 14 days, a second panel is re-quested and is allowed by the collec-tive bargaining agreement, the re-questing party must pay a fee for thesecond panel.

(d) The OAS will make a direct ap-pointment of an arbitrator only uponjoint request unless authorized by theapplicable collective bargaining agree-ment.

(e) The issuance of a panel of namesor a direct appointment in no way sig-

nifies a determination on arbitrabilityor an interpretation of the terms andconditions of the collective bargainingagreement. The resolution of such dis-putes rests solely with the parties.

§ 1404.13 Conduct of hearings.

All proceedings conducted by the ar-bitrators shall be in conformity withthe contractual obligations of the par-ties. The arbitrator shall comply with§ 1404.4(b). The conduct of the arbitra-tion proceeding is under the arbitra-tor’s jurisdiction and control, and thearbitrator’s decision shall be basedupon the evidence and testimony pre-sented at the hearing or otherwise in-corporated in the record of the pro-ceeding. The arbitrator may, unlessprohibited by law, proceed in the ab-sence of any party who, after due no-tice, fails to be present or to obtain apostponement. An award rendered inan ex parte proceeding of this naturemust be based upon evidence presentedto the arbitrator.

§ 1404.14 Decision and award.

(a) Arbitrators shall make awards nolater than 60 days from the date of theclosing of the record as determined bythe arbitrator, unless otherwise agreedupon by the parties or specified by thecollective bargaining agreement orlaw. However, failure to meet the 60day deadline will not invalidate theprocess or award. A failure to rendertimely awards reflects upon the per-formance of an arbitrator and may leadto removal from the FMCS Roster.

(b) The parties should inform theOAS whenever a decision is unduly de-layed. The arbitrator shall notify theOAS if and when the arbitrator:

(1) Cannot schedule, hear, and renderdecisions promptly, or

(2) Learns a dispute has been settledby the parties prior to the decision.

(c) Within 15 days after an award hasbeen submitted to the parties, the arbi-trator shall submit an Arbitrator’s Re-port and Fee Statement (Form R–19) toOAS showing a breakdown of the feeand expense charges so that the OASmay review conformance with statedcharges under § 1404.11(a). The Form R–19 is not to be used to invoice the par-ties.


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(d) While FMCS encourages the pub-lication of arbitration awards, arbitra-tors should not publicize awards if ob-jected to by one of the parties.

§ 1404.15 Fees and charges of arbitra-tors.

(a) FMCS will charge all arbitratorsan annual fee to be listed on the Ros-ter. All arbitrators listed on the Rostermay charge a per diem and other pre-determined fees for services, if theamount of such fees have been providedin advance to FMCS. Each arbitrator’smaximum per diem and other fees areset forth on a biographical sketchwhich is sent to the parties when pan-els are submitted. The arbitrators shallnot change any fee or add chargeswithout giving at least 30 days advancewritten notice to FMCS. Arbitratorswith dual business addresses must billthe parties for expenses from the leastexpensive business address to the hear-ing site.

(b) In cases involving unusualamounts of time and expenses relativeto the pre-hearing and post-hearing ad-ministration of a particular case, anadministrative charge may be made bythe arbitrator.

(c) Arbitrators shall divulge allcharges to the parties and obtainagreement thereto immediately afterappointment.

(d) The OAS requests that it be noti-fied of any arbitrator’s deviation fromthe policies expressed in this part.While the OAS does not resolve indi-vidual fee disputes, repeated com-plaints concerning the fees charged byan arbitrator will be brought to the at-tention of the Arbitrator Review Boardfor consideration. Similarly, repeatedcomplaints by arbitrators concerningnon-payment of fees by the parties maylead to the denial of services or otheractions by the OAS.

§ 1404.16 Reports and biographicalsketches.

(a) Arbitrators listed on the Rostershall execute and return all documents,forms and reports required by the OAS.They shall also keep the OAS informedof changes of address, telephone num-ber, availability, and of any business orother connection or relationship whichinvolves labor-management relations

or which creates or gives the appear-ance of advocacy as defined in§ 1404.5(c)(1).

(b) The OAS will provide biographicalsketches on each person admitted tothe Roster from information suppliedby applicants. Arbitrators may requestrevision of biographical information atlater dates to reflect changes in fees,the existence of additional charges, orother relevant data. The OAS reservesthe right to decide and approve the for-mat and content of biographicalsketches.

Subpart D—Expedited Arbitration

SOURCE: 62 FR 48949, Sept. 18, 1997, unlessotherwise noted.

§ 1404.17 PolicyIn an effort to reduce the time and

expense of some grievance arbitrators,FMCS is offering expedited proceduresthat may be appropriate in certainnon-precedential cases or those that donot involve complex or unique issues.Expedited Arbitrator is intended to bea mutually agreed upon process where-by arbitrator appointments, hearingsand awards are acted upon quickly bythe parties, FMCS, and the arbitrators.The process is streamlined by man-dating short deadlines and eliminatingrequirements for transcripts, briefs andlengthy opinions.

§ 1404.18 Procedures for requesting ex-pedited panels.

(a) With the excepting of the specificchanges noted in this Subpart, allFMCS rules and regulations governingits arbitration services shall apply toExpedited Arbitration.

(b) Upon receipt of a joint Requestfor Arbitration Panel (Form R–43) indi-cating that expedited services are de-sired by both parties, the OAS will re-quire a panel of arbitrators.

(c) A panel of arbitrators submittedby the OAS in expedited cases shall bevalid for up to 30 days. Only one panelwill be submitted per case. If the par-ties are unable to mutually agree uponan arbitrator or if prioritized selec-tions are not received from both par-ties within 30 days, the OAS will makea direct appointment of an arbitratornot on the original panel.


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(d) If the parties mutually select anarbitrator, but the arbitrator is notavailable, the parties may select a sec-ond name from the same panel or theOAS will make a direct appointment ofanother arbitrator not listed on theoriginal panel.

§ 1404.19 Arbitration process.(a) Once notified of the expedited

case appointment by the OAS, the arbi-trator must contact the parties withinseven (7) calendar days.

(b) The parties and the arbitratormust attempt to schedule a hearingwithin 30 days of the appointment date.

(c) Absent mutual agreement, allhearings will be concluded within oneday. No transcripts of the proceedingswill be made and the filing of post-hearing briefs will not be allowed.

(d) All awards must be completedwithin seven (7) working days from thehearing. These awards are expected tobe brief, concise, and not required ex-tensive written opinion or researchtime.

§ 1404.20 Arbitrator eligibility.In an effort to increase exposure for

new arbitrators, those arbitrators whohave been listed on the Roster of Arbi-trators for a period of five (5) years orless will be automatically placed on ex-pedited panels submitted to the par-ties. However, all panels will also con-tain the names of at least two moresenior arbitrators. In addition, the par-ties may jointly request a larger poolof arbitrators or a direct appointmentof their choice who is listed on the Ros-ter.

§ 1404.21 Proper use of expedited arbi-tration.

(a) FMCS reserves the right to ceasehonoring request for Expedited Arbi-tration if a pattern of misuse of thisbecomes apparent. Misuse may be indi-cated by the parties’ frequent delay ofthe process or referral of inappropriatecases.

(b) Arbitrators who exhibit a patternof unavailability of appointments orwho are repeatedly unable to schedulehearings or render awards within es-tablished deadlines will be consideredineligible for appointment for thisservice.

APPENDIX TO 29 CFR PART 1404—ARBI-TRATION POLICY; SCHEDULE OF FEES

Annual listing fee for all arbitrators: $100 forthe first address; $50 for second address

Request for panel of arbitrators: $30 for eachpanel request (includes subsequent ap-pointment)

Direct appointment of arbitrator when apanel is not used—$20 per appointment

List and biographic sketches of arbitratorsin a specific area—$10 per request plus $.10per page

PART 1405—PART-TIMEEMPLOYMENT

Subpart A—General

Sec.1405.1 Purpose.1405.2 Policy.1405.3 Definition.1405.4 Applicability.

Subpart B—Part-time Employment Program

1405.6 Program coordination.1405.7 Goals and timetables.1405.8 Reporting.1405.9 Part-time employment practices.1405.10 Effect on employment ceilings.1405.11 Effect on employee benefits.

AUTHORITY: Pub. L. 95–437, Federal Em-ployees Part-time Career Employment Actof 1978.


Subpart A—General

§ 1405.1 Purpose.These regulations implement Public

Law 95–437, the Federal EmployeesPart-time Career Employment Act of1978, by establishing a continuing pro-gram in the Federal Mediation andConciliation Service (FMCS) to providecareer part-time employment opportu-nities.

§ 1405.2 Policy.It is the policy of FMCS to provide

career part-time employment opportu-nities in positions through GS–16 (orequivalent) subject to agency resourcesand mission requirements.

§ 1405.3 Definition.Part-time career employment means

regularly scheduled work of from 16 to


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Federal Mediation and Conciliation Service Pt. 1410

32 hours per week performed by em-ployees in competitive or excepted ap-pointments in tenure groups I or II.

§ 1405.4 Applicability.The regulations cover permanent po-

sitions which are deemed by manage-ment to be appropriately structured ona part-time basis. The regulations donot apply to positions at GS–16 (orequivalent) and above.

Subpart B—Part-time EmploymentProgram

§ 1405.6 Program coordination.The Director of Personnel is des-

ignated the FMCS Part-time Employ-ment Coordinator with responsibilityfor:

(a) Consulting in the part-time em-ployment program with the Director ofEqual Employment Opportunity, Fed-eral Women’s Program Coordinator,Handicapped Program Coordinator,representatives of employee unions,and other interested parties;

(b) Responding to requests for adviceand assistance on part-time employ-ment within the agency;

(c) Maintaining liaison with groupsinterested in promoting part-time em-ployment opportunities;

(d) Monitoring the agency’s part-time employment efforts; and pre-paring reports on part-time employ-ment for transmittal to OPM and theCongress.

§ 1405.7 Goals and timetables.On an annual basis, as part of the

manpower and budget process, manage-ment will set goals for establishingpart-time positions to part-time alongwith a timetable setting forth interimand final deadlines for achieving thegoals. Decisions on part-time employ-ment will be based on such factors asagency mission, occupational mix,workload fluctuations, affirmative ac-tions, geographic dispersion, effect onproviding services to the public, andemployee interest in part-time employ-ment.

§ 1405.8 Reporting.FMCS will report as required by reg-

ulations to the Office of Personnel

Management on the part-time employ-ment program. The program will be re-viewed through internal personnelmanagement evaluations.

§ 1405.9 Part-time employment prac-tices.

FMCS will review positions which be-come vacant for the feasibility of uti-lizing part-time career appointments.Part-time positions will be advertisedin vacancy announcements. Agencyemployees may request and receiveconsideration to switch from full-timeto part-time schedules. The requestshould be addressed through the super-visor to the Director of Personnel list-ing any and all reasons for the request.The Director of Personnel, with inputfrom all affected management officials,will decide whether or not to grant therequest. Any employee requesting achange from full-time to part-time em-ployment will be advised of effects onpay and fringe benefits by the Directorof Personnel.

§ 1405.10 Effect on employment ceil-ings.

Effective October 1, 1980, part-timeemployees will be counted on the basisof the fractional part of the 40-hourweek actually worked. For exampletwo employees each working twentyhours a week will count as one em-ployee.

§ 1405.11 Effect on employee benefits.

Career part-time employees are enti-tled to coverage under the Federal Em-ployees Group Life Insurance and Fed-eral Employees Health Benefits Pro-grams. The Government contributionfor health insurance of eligible part-time employees will be prorated on thebasis of the fraction of a full-timeschedule worked.

PART 1410—PRIVACY

Sec.1410.1 Purpose and scope.1410.2 Definitions.1410.3 Individual access requests.1410.4 Requirements for identification of in-

dividuals making requests.1410.5 Special procedures: Medical records.1410.6 Requests for correction or amend-

ment of records.


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1410.7 Agency review of refusal to amend arecord.

1410.8 Notation of dispute.1410.9 Fees.1410.10 Penalties.1410.11 Standards of review.1410.12 Specific exemptions.

AUTHORITY: Privacy Act 1974, Pub. L. 93–579, 88 Stat. 1896 (5 U.S.C. 552a).

SOURCE: 40 FR 47418, Oct. 8, 1975, unlessotherwise noted.

§ 1410.1 Purpose and scope.(a) The purpose of this part is to set

forth rules to inform the public aboutinformation maintained by the FederalMediation and Conciliation Serviceabout individuals, to inform those indi-viduals how they may gain access toand correct or amend informationabout themselves, and to exempt dis-closure of identity of confidentialsources of certain records.

(b) [Reserved]

§ 1410.2 Definitions.For the purposes of this part, unless

otherwise required by the context—(a) Individual means a citizen of the

United States or an alien lawfully ad-mitted for permanent residence.

(b) Maintain means maintain, collect,use or disseminate.

(c) Record means any item, collectionor grouping of information about an in-dividual that is maintained by the Fed-eral Mediation and Conciliation Serv-ice including, but not limited to, hiseducation, financial transactions, med-ical history, and criminal or employ-ment history, that contains his name,or the identifying number, symbol, orother identifying particular assigned tothe individual, such as a finger or voiceprint, or a photograph.

(d) System of records means a group ofany records under the control of Fed-eral Mediation and Conciliation Serv-ice from which information is retrievedby the name of the individual or bysome identifying particular assigned tothe individual.

§ 1410.3 Individual access requests.(a) Individuals who desire to know

whether the agency maintains a sys-tem of records containing records per-taining to him may submit a writtenrequest to the Director of Administra-

tion, Federal Mediation and Concilia-tion Service, Washington, DC 20427.The request must include the name andaddress of the requestor. The Directorof Administration, or his designatedrepresentative, will advise the re-questor in writing within 10 workingdays whether the records are so main-tained and the general category ofrecords maintained within the system.

(b) Any individual who desires to in-spect or receive copies of any recordmaintained within the system con-cerning him shall submit a written re-quest to the Director of Administra-tion, Federal Mediation and Concilia-tion Service, Washington, DC 20427,reasonably identifying the recordssought to be inspected or copied.

(c) The individual seeking access tohis record may also have another per-son accompanying him during his re-view of the records. If the requestor de-sires another person to accompany himduring the inspection, the requestormust sign a statement, to be furnishedto the Service representative at thetime of the inspection authorizing suchother person to accompany him. Ex-cept as required under the Freedom ofInformation Act, permitted as a rou-tine use as published in the agency’sannual notice, or for internal agencyuse, disclosure of records will only bemade to the individual to whom therecord pertains, unless written consentis obtained from that individual. TheDirector of Administration will verifythe signature of the individual request-ing or consenting to the disclosure of arecord prior to the disclosure thereofto any other person by a comparison ofsignatures, if the request or consent isnot executed within the presence of adesignated Service representative.

(d) The Director of Administration orhis designated representative will ad-vise the requestor in writing within 10working days of receipt of the requestwhether, to what extent, and approxi-mately when and where access shall begranted. Within 30 days of receipt ofthe request, the records will be madeavailable for review at the FMCS Na-tional Office in Washington, DC, or oneof the Regional Offices. The followingis a list of the Regional Office loca-tions:

1. Eastern Region:


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Address: Jacob K. Javits Federal Building,26 Federal Plaza, Room 2937, New York, NY10278.

Consists of: Maine, New Hampshire,Vermont, Connecticut, Rhode Island, Massa-chusetts, New York, Puerto Rico, the VirginIslands, Pennsylvania, Delaware, New Jer-sey, Garrett and Alleghany Counties ofMaryland; and Brooke and Hancock Countiesof West Virginia.

2. Central Region:Address: Insurance Exchange Building,

Room 1641, 175 W. Jackson Street, Chicago,IL 60604.

Consist of: Illinois (except counties listedunder the the Southern Region); Indiana (ex-cept counties listed under Southern Region);Wisconsin, Minnesota, North Dakota, SouthDakota, Michigan, and Ohio (except countieslisted under the Southern Region).

3. Southern Region:Address: Suite 400, 1422 W. Peachtree St.,

NW., Atlanta, GA 30309.Consists of: Virginia, Maryland (except

counties listed under the Eastern Region);Tennessee; North Carolina; South Carolina;Georgia; Alabama; Florida; Mississippi; Lou-isiana; Arkansas; Kentucky; Texas (exceptfor Hudspeth and El Paso counties); Okla-homa; Missouri (except for those countieslisted for the Western Region); Illinois (incounties of Calhoun, Greene, Jersey,McCoupin, Montgomery, Fayette, Bond,Madison, St. Clair, Monroe, Clinton, Wash-ington, Marion, White, Hamilton, Wayne,Edwards, Wabash, Lawrence, Richland, Clay,Effingham, Jasper, and Crawford); Indiana(the counties of Knox, Daviess, Martin, Or-ange, Washington, Clark, Floyd, Harrison,Crawford, Perry, Spencer, DuBois, Pike, Gib-son, Posey, Vanderburgh, and Warrick); Ohio(the counties of Butler, Hamilton, Warren,Clermont, Brown, Highland, Clinton, Ross,Pike, Adams, Scioto, Lawrence, Ballia,Jackson, Vinton, Hocking, Athens, andMeigs); Kansas (the counties of Bourbon,Crawford, Cherokee, and Ottawa); West Vir-ginia (except counties listed under the Cen-tral Region); and the Canal Zone.

4. Western Region:Address: Francisco Bay Building, Suite 235,

50 Francisco Street, San Francisco, CA 94133.Consists of: California; Nevada; Arizona;

New Mexico; El Paso and Hudspeth Counties(only) in Texas; Hawaii; Guam; Alaska;Washington; Oregon; Colorado; Utah; Wyo-ming; Montana; Idaho; Nebraska; Kansas;Iowa; Missouri (the counties of Atchinson,Nodaway, Worth, Harrison, Mercer, Putnam,Schuyler, Scotland, Knox, Adair, Sullivan,Grundy, Daviess, Gentry, DeKalb, Andrew,Holt, Buchanan, Clinton, Caldwell, Living-ston, Linn, Macon, Shelby, Randolph,Chariton, Carrol, Ray, Clay, Platte, Jackson,Lafayette, Saline, Howard, Boon, Cooper,Pettis, Johnson, Cass, Bates, Henry, St.

Clair, Benton, and Morgan); AmericanSomoa; and Wake Island.

[40 FR 47418, Oct. 8, 1975, as amended at 47 FR10530, Mar. 11, 1982]

§ 1410.4 Requirements for identifica-tion of individuals making requests.

Satisfactory identification (i.e., em-ploy identification number, current ad-dress, and verification of signature)must be provided to FMCS prior to re-view of the record. The requestor willbe provided the opportunity to reviewthe records during normal businesshours.

§ 1410.5 Special procedures: Medicalrecords.

(a) If medical records are requestedfor inspection which, in the opinion ofthe Director of Administration, may beharmful to the requestor if personallyinspected by him, such records will befurnished only to a licensed physician,designated to receive such records bythe requestor. Prior to such disclosure,the requestor must furnish a signedwritten authorization to the Service tomake such disclosure and the physicianmust furnish a written request to theDirector of Administration for the phy-sician’s receipt of such records.

(b) Verification of the requestor’s sig-nature will be accomplished by a com-parison of signatures if such authoriza-tion is not executed within the pres-ence of a Service representative.

§ 1410.6 Requests for correction oramendment of records.

(a) If the individual disagrees withthe information in the record, he mayrequest that the record be amended byaddition or deletion. Such a requestmust be in writing and directed to theDirector of Administration, FederalMediation and Conciliation Service,Washington, DC, 20427. The requestmust also specifically outline theamendment sought. The Director ofAdministration or his designated rep-resentative will acknowledge receipt ofthe request within 10 working daysfrom the date of receipt of such re-quest. Under normal circumstances,not later than 30 days after receipt ofthe request for amendments, the Direc-tor of Administration will either:


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(1) Amend the record and notify therequestor in a written letter of deter-mination to what extent the record isamended; or

(2) If the amendment or correction isdenied in whole or in part, notify therequestor in a written letter of deter-mination the reason for denial and therequestor’s right to request review bythe Deputy National Director.

(b) Routine requests of arbitratorsmaintained on the Service’s roster ofarbitrators to amend records for suchmatters as address, experience, feescharged, may be made in writing to theDirector of Arbitration Services, Wash-ington, DC, 20427. If such routine re-quests are not granted or involve othertypes of amendments, then the proce-dure to be followed is that which in-cludes a request in writing to the Di-rector of Administration.

§ 1410.7 Agency review of refusal toamend a record.

(a) The requestor may appeal any de-termination of the Director of Admin-istration not to amend a record by sub-mitting a written request for review ofrefusal to amend a record to the Dep-uty National Director, Washington, DC20427. Such a request shall indicate thespecific corrections or amendmentssought. Not later than 30 days from re-ceipt of a request for review (unlesssuch period is extended by the NationalDirector for good cause shown), theDeputy National Director will com-plete such a review and make a finaldetermination on the request, and shalladvise the requestor in a written letterof determination whether, and to whatextent the correction or amendmentwill be made. If the correction oramendment is denied, in whole or inpart, the letter of determination willspecify the reasons for such denial.

(b) If the Deputy National Directormakes a final determination not toamend the record, the individual mayprovide to the Service a concise writ-ten statement explaining the reasonsfor disagreement with the refusal.

(c) In addition, the individual mayfile a civil action in the U.S. DistrictCourt to seek an order compelling theService to amend the record as re-quested.

§ 1410.8 Notation of dispute.After an individual has filed a state-

ment of disagreement as described in§ 1410.7(b), any disclosure of the con-tested records must contain a notationof the dispute. In addition, a copy ofthe individual’s statement will be pro-vided to the person or agency to whomthe disputed record is disclosed. TheService may also, but it is not requiredto, provide a statement reflecting theagency’s reasons for not making the re-quested amendments.

§ 1410.9 Fees.Upon request, the Service will pro-

vide a photostatic copy of the recordsto the individual to whom they per-tain. There will be a charge of $.10 perpage.

§ 1410.10 Penalties.Any person who knowingly and will-

fully requests or obtains any recordconcerning an individual from theService under false pretenses shall beguilty of a misdemeanor and fined notmore than $5,000.

§ 1410.11 Standards of review.Upon a request for inspection of

records or a determination on a requestfor amendment, the Director of Admin-istration, his designated representa-tive, or the Deputy National Directorwill review the pertinent records anddiscard any material in them that isnot:

(a) Relevant and necessary to accom-plish a statutory purpose or a purposenot authorized by executive order.

(b) Accurate, relevant, timely, andcomplete, to assure fairness to the in-dividual.

§ 1410.12 Specific exemptions.With regard to Agency Internal Per-

sonnel Records and Arbitrator Per-sonal Data Files, separately describedin the system notices, such records willbe exempted from section (d) of the Actas follows:

Investigatory material maintained solelyfor the purposes of determining an individ-ual’s qualification, eligibility, or suitabilityfor employment in the Federal civilian serv-ice, Federal contracts, or access to classifiedinformation, but only to the extent that dis-closure of such material would reveal the


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identity of the source who furnished infor-mation to the Government under an expresspromise that the identity of the sourcewould be held in confidence, or prior to Sep-tember 27, 1975, under an implied promisethat the identity of the source would be heldin confidence.

In order to obtain accurate informa-tion pertaining to employee or arbi-trator eligibility, the nondisclosure ofthe identity of such a confidentialsource is essential.

PART 1420—FEDERAL MEDIATIONAND CONCILIATION SERVICE—ASSISTANCE IN THE HEALTHCARE INDUSTRY

Sec.1420.1 Functions of the Service in health

care industry bargaining under theLabor-Management Relations Act, asamended (hereinafter ‘‘the Act’’).

1420.2–1420.4 [Reserved]1420.5 Optional input of parties to Board of

Inquiry selection.1420.6–1420.7 [Reserved]1420.8 FMCS deferral to parties’ own private

factfinding procedures.1420.9 FMCS deferral to parties’ own private

interest arbitration procedures.

AUTHORITY: Secs. 8(d), 201, 203, 204, and 213of the Labor Management Relations Act, asamended in 1974 (29 U.S.C. 158(d), 171, 173, 174and 183).

SOURCE: 44 FR 42683, July 20, 1979, unlessotherwise noted.

§ 1420.1 Functions of the Service inhealth care industry bargainingunder the Labor-Management Rela-tions Act, as amended (hereinafter‘‘the Act’’).

(a) Dispute mediation. Whenever a col-lective bargaining dispute involves em-ployees of a health care institution, ei-ther party to such collective bar-gaining must give certain statutorynotices to the Federal Mediation andConciliation Service (hereinafter ‘‘theService’’) before resorting to strike orlockout and before terminating ormodifying any existing collective bar-gaining agreement. Thereafter, theService will promptly communicatewith the parties and use its best ef-forts, by mediation and conciliation, tobring them to agreement. The partiesshall participate fully and promptly insuch meetings as may be called by the

Service for the purpose of aiding in asettlement of the dispute. (29 U.S.C.158(d) and 158(g).).

(b) Boards of inquiry. If, in the opin-ion of the Director of the Service athreatened or actual strike or lockoutaffecting a health care institution willsubstantially interrupt the delivery ofhealth care in the locality concerned,the Director may establish within cer-tain statutory time periods an impar-tial Board of Inquiry. The Board of In-quiry will investigate the issues in-volved in the dispute and make a writ-ten report, containing the findings offact and the Board’s non-binding rec-ommendations for settling the dispute,to the parties within 15 days after theestablishment of such a Board. (29U.S.C. 183.)

§§ 1420.2–1420.4 [Reserved]

§ 1420.5 Optional input of parties toBoard of Inquiry selection.

The Act gives the Director of theService the authority to select the in-dividual(s) who will serve as the Boardof Inquiry if the Director decides to es-tablish a Board of Inquiry in a par-ticular health care industry bargainingdispute (29 U.S.C. 183). If the parties tocollective bargaining involving ahealth care institution(s) desire tohave some input to the Service’s selec-tion of an individual(s) to serve as aBoard of Inquiry (hereinafter ‘‘BoI’’),they may jointly exercise the followingoptional procedure:

(a) At any time at least 90 days priorto the expiration date of a collectivebargaining agreement in a contract re-newal dispute, or at any time prior tothe notice required under clause (B) ofsection 8(d) of the Act (29 U.S.C. 158(d))in an initial contract dispute, the em-ployer(s) and the union(s) in the dis-pute may jointly submit to the Servicea list of arbitrators or other impartialindividuals who would be acceptableBoI members both to the employer(s)and to the union(s). Such list submis-sion must identify the dispute(s) in-volved and must include addresses andtelephone numbers of the individualslisted and any information available tothe parties as to current and past em-ployment of the individuals listed. The


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parties may jointly rank the individ-uals in order of preference if they de-sire to do so.

(b) The Service will make every ef-fort to select any BoI that might be ap-pointed from that jointly submittedlist. However, the Service cannotpromise that it will select a BoI fromsuch list. The chances of the Servicefinding one or more individuals on suchlist available to serve as the BoI will beincreased if the list contains a suffi-ciently large number of names and if itis submitted at as early a date as pos-sible. Nevertheless, the parties caneven preselect and submit jointly tothe Service one specific individual ifthat individual agrees to be availablefor the particular BoI time period.Again the Service will not be bound toappoint that individual, but will be re-ceptive to such a submission by theparties.

(c) The jointly submitted list may beworked out and agreed to by (1) A par-ticular set of parties in contemplationof a particular upcoming negotiationdispute between them, or (2) a par-ticular set of parties for use in all fu-ture disputes between that set of par-ties, or (3) a group of various healthcare institutions and unions in a cer-tain community or geographic area foruse in all disputes between any two ormore of those parties.

(d) Submission or receipt of any suchlist will not in any way constitute anadmission of the appropriateness of ap-pointment of a BoI nor an expression ofthe desirability of a BoI by any partyor by the Service.

(e) This joint submission procedure isa purely optional one to provide theparties with an opportunity to haveinput into the selection of a BoI if theyso desire.

(f) Such jointly submitted listsshould be sent jointly by the em-ployer(s) and the union(s) to the appro-priate regional office of the Service.The regional offices of the Service areas follows:

1. Eastern Region:Address: Jacob K. Javits Federal Building,

26 Federal Plaza, Room 2937, New York, NY10278.

Consists of: Maine, New Hampshire,Vermont, Connecticut, Rhode Island, Massa-chusetts, New York, Puerto Rico, the VirginIslands, Pennsylvania, Delaware, New Jer-

sey, Garrett and Alleghany Counties ofMaryland; and Brooke and Hancock Countiesof West Virginia.

2. Central Region:Address: Insurance Exchange Building,

Room 1641, 175 W. Jackson Street, Chicago,IL 60604.

Consist of: Illinois (except counties listedunder the the Southern Region); Indiana (ex-cept counties listed under Southern Region);Wisconsin, Minnesota, North Dakota, SouthDakota, Michigan, and Ohio (except countieslisted under the Southern Region).

3. Southern Region:Address: Suite 400, 1422 W. Peachtree St.,

NW., Atlanta, GA 30309.Consists of: Virginia, Maryland (except

counties listed under the Eastern Region);Tennessee; North Carolina; South Carolina;Georgia; Alabama; Florida; Mississippi; Lou-isiana; Arkansas; Kentucky; Texas (exceptfor Hudspeth and El Paso counties); Okla-homa; Missouri (except for those countieslisted for the Western Region); Illinois (incounties of Calhoun, Greene, Jersey,McCoupin, Montgomery, Fayette, Bond,Madison, St. Clair, Monroe, Clinton, Wash-ington, Marion, White, Hamilton, Wayne,Edwards, Wabash, Lawrence, Richland, Clay,Effingham, Jasper, and Crawford); Indiana(the counties of Knox, Daviess, Martin, Or-ange, Washington, Clark, Floyd, Harrison,Crawford, Perry, Spencer, DuBois, Pike, Gib-son, Posey, Vanderburgh, and Warrick); Ohio(the counties of Butler, Hamilton, Warren,Clermont, Brown, Highland, Clinton, Ross,Pike, Adams, Scioto, Lawrence, Ballia,Jackson, Vinton, Hocking, Athens, andMeigs); Kansas (the counties of Bourbon,Crawford, Cherokee, and Ottawa); West Vir-ginia (except counties listed under the Cen-tral Region); and the Canal Zone.

4. Western Region:Address: Francisco Bay Building, Suite 235,

50 Francisco Street, San Francisco, CA 94133.Consists of: California; Nevada; Arizona;

New Mexico; El Paso and Hudspeth Counties(only) in Texas; Hawaii; Guam; Alaska;Washington; Oregon; Colorado; Utah; Wyo-ming; Montana; Idaho; Nebraska; Kansas;Iowa; Missouri (the counties of Atchinson,Nodaway, Worth, Harrison, Mercer, Putnam,Schuyler, Scotland, Knox, Adair, Sullivan,Grundy, Daviess, Gentry, DeKalb, Andrew,Holt, Buchanan, Clinton, Caldwell, Living-ston, Linn, Macon, Shelby, Randolph,Chariton, Carrol, Ray, Clay, Platte, Jackson,Lafayette, Saline, Howard, Boon, Cooper,Pettis, Johnson, Cass, Bates, Henry, St.Clair, Benton, and Morgan); AmericanSomoa; and Wake Island.

[44 FR 42683, July 20, 1979, as amended at 47FR 10530, Mar. 11, 1982]


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§§ 1420.6–1420.7 Reserved]

§ 1420.8 FMCS deferral to parties’ ownprivate factfinding procedures.

(a) The Service will defer to the par-ties’ own privately agreed to fact-finding procedure and decline to ap-point a Board of Inquiry (BoI) as longas the parties’ own procedure meetscertain conditions so as to satisfy theService’s responsibilities under theAct. The Service will decline to ap-point a BoI and leave the selection andappointment of a factfinder to the par-ties to a dispute if both the partieshave agreed in writing to their ownfactfinding procedure which meets thefollowing conditions:

(1) The factfinding procedure must beinvoked automatically at a specifiedtime (for example, at contract expira-tion if no agreement is reached).

(2) It must provide a fixed and deter-minate method for selecting the impar-tial factfinder(s).

(3) It must provide that there can beno strike or lockout and no changes inconditions of employment (except bymutual agreement) prior to or duringthe factfinding procedure and for a pe-riod of at least seven days after thefactfinding is completed.

(4) It must provide that thefactfinder(s) will make a written reportto the parties, containing the findingsof fact and the recommendations of thefactfinder(s) for settling the dispute, acopy of which is sent to the Service.The parties to a dispute who haveagreed to such a factfinding procedureshould jointly submit a copy of suchagreed upon procedure to the appro-priate regional office of the Service atas early a date as possible, but in anyevent prior to the appointment of a BoIby the Service. See § 1420.5(f) for the ad-dresses of the regional offices.

(b) Since the Service does not ap-point the factfinder under paragraph(a) of this section, the Service cannotpay for such factfinder. In this respect,such deferral by the Service to the par-ties’ own factfinding procedure is dif-ferent from the use of stipulationagreements between the parties whichgive to the Service the authority to se-lect and appoint a factfinder at a laterdate than the date by which a BoIwould have to be appointed under the

Act. Under such stipulation agree-ments by which the parties give theService authority to appoint afactfinder at a later date, the Servicecan pay for the factfinder. However, inthe deferral to the parties’ own fact-finding procedure, the parties choosetheir own factfinder and they pay forthe factfinder.

§ 1420.9 FMCS deferral to parties’ ownprivate interest arbitration proce-dures.

(a) The Service will defer to the par-ties’ own privately agreed to interestarbitration procedure and decline toappoint a Board of Inquiry (BoI) aslong as the parties’ own proceduremeets certain conditions so as to sat-isfy the Service’s responsibilities underthe Act. The Service will decline to ap-point BoI if the parties to a disputehave agreed in writing to their own in-terest arbitration procedure whichmeets the following conditions:

(1) The interest arbitration proceduremust provide that there can be nostrike or lockout and no changes inconditions of employment (except bymutual agreement) during the contractnegotiation covered by the interest ar-bitration procedure and the period ofany subsequent interest arbitrationproceedings.

(2) It must provide that the award ofthe arbitrator(s) under the interest ar-bitration procedure is final and bindingon both parties.

(3) It must provide a fixed and deter-minate method for selecting the impar-tial interest arbitrator(s).

(4) The interest arbitration proceduremust provide for a written award bythe interest arbitrator(s).

(b) The parties to a dispute who haveagreed to such an interest arbitrationprocedure should jointly submit a copyof their agreed upon procedure to theappropriate regional office of the Serv-ice at as early a date as possible, but inany event prior to the appointment ofBoI by the Service. See § 1420.5(f) forthe addresses of regional offices.These new regulations are a part of theService’s overall approach to imple-menting the health care amendmentsof 1974 in a manner consistent with theCongressional intent of promotingpeaceful settlements of labor disputes


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at our vital health care facilities. TheService will work with the parties inevery way possible to be flexible and totailor its approach so as to accommo-date the needs of the parties in the in-terest of settling the dispute. This wasthe motivating principle behind thesenew regulations which permit input bythe parties to the Board of Inquiry se-lection and allow the parties to set uptheir own factfinding or arbitrationprocedures in lieu of the Board of In-quiry procedure. We encourage the par-ties, both unions and management, totake advantage of these and other op-tions and to work with the Service totailor their approach and procedures tofit the needs of their bargaining situa-tions.

PART 1425—MEDIATION ASSIST-ANCE IN THE FEDERAL SERVICE

Sec.1425.1 Definitions.1425.2 Notice to the Service of agreement

negotiations.1425.3 Functions of the Service under title

VII of the Civil Service Reform Act.1425.4 Duty of parties.1425.5 Referral to FSIP.1425.6 Use of third-party mediation assist-

ance.

AUTHORITY: 5 U.S.C. 581(8), 7119, 7134.



As used in this part:(a) The Service means Federal Medi-

ation and Conciliation Service.(b) Party or Parties means (1) any ap-

propriate activity, facility, geo-graphical subdivision, or combinationthereof, of an agency as that term isdefined in 5 U.S.C. 7103(3), or (2) a labororganization as that term is defined in5 U.S.C. 7103(4).

(c) Third-party mediation assistancemeans mediation by persons other thanFMCS commissioners.

(d) Provide its services means to makethe services and facilities of the Serv-ice available either on its own motionor upon the special request of one orboth of the parties.

§ 1425.2 Notice to the Service of agree-ment negotiations.

(a) In order that the Service may pro-vide assistance to the parties, theparty initiating negotiations shall filea notice with the FMCS Notice Proc-essing Unit, 2100 K Street, N.W., Wash-ington, D.C. 20427, at least 30 days priorto the expiration or modification dateof an existing agreement, or 30 daysprior to the reopener date of an exist-ing agreement. In the case of an initialagreement the notice shall be filedwithin 30 days after commencing nego-tiations.

(b) Parties engaging in mid-term orimpact and/or implementation bar-gaining are encouraged to send a noticeto FMCS if assistance is desired. Suchnotice may be sent by either party ormay be submitted jointly. In regard tosuch notices a brief listing should begeneral in nature e.g., smoking poli-cies, or Alternative Work Schedules(AWS).

(c) Parties requesting grievance me-diation must send a request signed byboth the union and the agency in-volved. Receipt of such request doesnot commit FMCS to provide its serv-ices. FMCS has the discretion to deter-mine whether or not to perform griev-ance mediation, as such service maynot be appropriate in all cases.

(d) The guidelines for FMCS griev-ance mediation are:

(1) The parties shall submit a jointrequest, signed by both parties request-ing FMCS assistance. The parties agreethat grievance mediation is a supple-ment to, and not a substitute for, thesteps of the contractual grievance pro-cedure.

(2) The grievant is entitled to bepresent at the grievance mediationconference.

(3) Any times limits in the partieslabor agreement must be waived to per-mit the grievance to proceed to arbi-tration should mediation be unsuccess-ful.

(4) Proceedings before the mediatorwill be informal and rules of evidencedo not apply. No record, stenographicor tape recordings of the meetings willbe made. The mediators notes are con-fidential and content shall not be re-vealed.


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(5) The mediator shall conduct themediation conference utilizing all ofthe customary techniques associatedwith mediation including the use ofseparate caucuses.

(6) The mediator had no authority tocompel resolution of the grievance.

(7) In the event that no settlement isreached during the mediation con-ference, the mediator may provide theparties either in separate or joint ses-sion with an oral advisory opinion.

(8) If either party does not accept anadvisory opinion, the matter may thenproceed to arbitration in the mannerform provided in their collective bar-gaining agreement. Such arbitration

hearings will be held as if the grievancemediation effort had not taken place.Nothing said or done by the parties orthe mediator during the grievance me-diation session can be used during arbi-tration proceedings.

(9) When the parties choose theFMCS grievance mediation procedure,they have agreed to abide by theseguidelines established by FMCS, and itis understood that the parties and thegrievant shall hold FMCS and the me-diator appointed by the Service to con-duct the mediation conference harm-less of any claim of damages arisingfrom the mediation process.


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INSTRUCTIONS

Complete this form, please follow these in-structions.

In item #1. Check the block and give thedate if this is for an existing agreement or

reopener. The FLRA Certification numbershould be provided if available. If not known,please leave this item blank. Absence of thisnumber will not impede processing of theForm.


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In item #2. If other assistance in bargainingis requested please specify: e.g.; impact andimplementation bargaining (I&I) and/or mid-term bargaining and provide a brief listing ofissues, e.g. Smoking, Alternative WorkSchedules (AWS), ground rules, office moves,or if desired, add attached list. This is onlyif such issues are known at time of filing.

In item #3. Please specify the issues to beconsidered for grievance mediation. Pleaserefer to FMCS guidelines for processingthese requests. Please make certain thatboth parties sign this request!

In item #4. List the name of the agency, asfollows: The Department, and the subdivi-sion or component. For example: U.S. Dept.of Labor, BLS, or U.S. Dept. of Army, Aber-deen Proving Ground, or Illinois NationalGuard, Springfield Chapter. If an inde-pendent agency is involved, list the agency,e.g. Federal Deposit Insurance Corp. (FDIC)and any subdivision or component, if appro-priate.

In item #5. List the name of the union andits subdivision or component as follows: e.g.Federal Employees Union, Local 23 or Gov-ernment Workers Union, Western JointCouncil.

In item #6. Provide the area where the ne-gotiation or mediation will most likely takeplace, with zip code, e.g., Washington, D.C.20427. The zip code is important because ourcases are routed by computer through zipcode, and mediators are assigned on thatbasis.

In item #7. Only the approximate number ofemployees in the bargaining unit and estab-lishment are requested. The establishment isthe entity referred to in item 4 as name ofsubdivision or component, if any.

In item #8. The filing need only be sent byone party unless it is a request for grievancemediation. (See item 9.)

In item #9. Please give the title of the offi-cial, phone number, address, and zip code.

In item #10. Both labor and managementsignatures are required for grievance medi-ation requests.

NOTICE

Send original to F.M.C.S.Send one copy to opposite party.Retain one copy for party filing notice.

[60 FR 2509, Jan. 10, 1995]

§ 1425.3 Functions of the Serviceunder title VII of the Civil ServiceReform Act.

(a) The service may provide its as-sistance in any negotiation disputewhen earnest efforts by the parties toreach agreement through direct nego-tiation have failed to resolve the dis-pute. When the existence of a negotia-

tion dispute comes to the attention ofthe Service through a specific requestfor mediation from one or both of theparties, through notification under theprovisions of § 1425.2, or otherwise, theService will examine the informationconcerning the dispute and if, in itsopinion, the need for mediation exists,the Service will use its best efforts toassist the parties to reach agreement.

(b) The Service may, at the outset ofnegotiations or at any time in the dis-pute, set time limits on its participa-tion. If no settlement of the dispute isreached by the expiration of the timelimits, the Service may make sugges-tions for settlement to the parties. Ifsuggestions for settlement made by theService are not accepted by the partieswithin time limits set by the Service,the matter may be referred to the Fed-eral Services Impasses Panel (FSIP).

§ 1425.4 Duty of parties.

It shall be the duty of the parties toparticipate fully and promptly in anymeetings arranged by the Service forthe purpose of assisting in the settle-ment of a negotiation dispute.

§ 1425.5 Referral to FSIP.

If the mediation process has beencompleted and the parties are at a ne-gotiation impasse, the Service or theparties may request consideration ofthe matter by the Federal Services Im-passes Panel. The Service shall notrefer a case to FSIP until the medi-ation process has been exhausted andthe parties are at a negotiation im-passe.

§ 1425.6 Use of third-party mediationassistance.

If the parties should mutually agreeto third-party mediation assistanceother than that of the Service, bothparties shall immediately inform theService in writing of this agreement.Such written communication shall befiled with the regional director of theregion in which the negotiation isscheduled, and shall state what alter-nate assistance the parties have agreedto use.


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PART 1430—FEDERAL MEDIATIONAND CONCILIATION SERVICEADVISORY COMMITTEES

Sec.1430.1 Scope and purpose.1430.2 Definitions.1430.3 Establishment of advisory commit-

tees.1430.4 Filing of advisory committee charter.1430.5 Termination of advisory committees.1430.6 Renewal of advisory committees.1430.7 Application of the Freedom of Infor-

mation Act to advisory committee func-tions.

1430.8 Advisory committee meetings.1430.9 Agency management of advisory com-

mittees.

AUTHORITY: Pub. L. 92–463, 86 Stat. 770 (5U.S.C. App.).


§ 1430.1 Scope and purpose.(a) This part contains the Federal

Mediation and Conciliation Service’sregulations implementing section 8(a)of the Federal Advisory Committee Act(Pub. L. 92–463, 86 Stat. 770, (5 U.S.C.App.)), which requires each agencyhead to establish uniform guidelinesand management controls for the advi-sory committees. These regulationssupplement the Government-wideguidelines issued jointly by the Officeof Management and Budget and the De-partment of Justice, and should be readin conjunction with them.

(b) The regulations provided underthis part do not apply to statutorilycreated or established advisory com-mittees of the Service, to the extentthat such statutes have specific provi-sions different from those promulgatedherein.

§ 1430.2 Definitions.For the purposes of this part:(a) The term Act means the Federal

Advisory Committee Act;(b) The term advisory committee

means any committee, board, commis-sion, counsel, conference, panel, taskforce, or other similar group, or anysubgroup or subcommittee thereofwhich is:

(1) Established by statute or reorga-nization, plan, or

(2) Established or utilized by thePresident, or

(3) Established or utilized by one ormore agencies or officers of the FederalGovernment in the interest of obtain-ing advice or recommendations for thePresident or one or more agencies ofthe Federal Government, except thatsuch term excludes:

(i) The Advisory Commission onIntergovernmental Relations;

(ii) The Commission on GovernmentProcurement; and

(iii) Any committee which is com-posed wholly of full-time officers oremployees of the Federal Government.

(c) The term agency has the samemeaning as in 5 U.S.C. 552(1);

(d) The term committee managementofficer means the Federal Mediationand Conciliation Service employee orhis delegee, officially designated toperform the advisory committee man-agement functions delineated in thispart;

(e) The term Service means the Fed-eral Mediation and Conciliation Serv-ice;

(f) The term OMB means the Office ofManagement and Budget;

(g) The term Director means the Di-rector of the Federal Mediation andConciliation Service;

(h) The term secretariat means theOMB Committee Management Secre-tariat.

§ 1430.3 Establishment of advisorycommittees.

(a) Guidelines for establishing advisorycommittees. The guidelines in estab-lishing advisory committees are as fol-lows:

(1) No advisory committee shall beestablished if its functions are being orcould be performed by an agency or anexisting committee;

(2) The purpose of the advisory com-mittee shall be clearly defined;

(3) The membership of the advisorycommittee shall be fairly balanced interms of the points of view representedand the committee’s functions;

(4) There shall be appropriate safe-guards to assure that an advisory com-mittee’s advice and recommendationswill not be inappropriately influencedby any special interests; and

(5) At least once a year, a reportshall be prepared for each advisory


67


committee, describing the committee’smembership, functions, and actions.

(b) Advisory committees established bythe Service not pursuant to specific statu-tory authority. (1) Advisory committeesestablished by the Service not pursu-ant to specific statutory authoritymay be created by the Director afterconsultation with the secretariat.

(2) When the Director determinesthat such an advisory committee needsto be established, he shall notify thesecretariat of his determination andshall inform the secretariat of the na-ture and purpose of the committee, thereasons why the committee is needed,and the inability of any existing agen-cy or committee to perform the com-mittee’s functions.

(3) After the secretariat has deter-mined that establishment of such acommittee is in conformance with theAct and has so informed the Director,the Director shall prepare a certifi-cation of the committee, stating thecommittee’s nature and purpose, andthat it is established in the public in-terest. That certification shall be pub-lished in the FEDERAL REGISTER.

(c) Advisory committees created pursu-ant to Presidential directive. Advisorycommittees established by Presidentialdirective are those created pursuant toExecutive Order, executive memo-randum, or reorganization plan. TheDirector shall create such committeesin accordance with the provisions ofthe Presidential directive and shall fol-low the provisions of this part, to theextent they are not inconsistent withthe directive.

(d) Advisory committees created pursu-ant to specific statutory authority. TheDirector shall create advisory commit-tees established pursuant to specificstatutory authority in accordance withthe provisions of the statute and shallfollow the provisions of this part, tothe extent they are not inconsistentwith the statute: Provided, however,That the Director need not utilize theprocedures described in paragraph (b)of this section.

(e) Advisory committees established bypersons outside the Federal Government,but utilized by the Service to obtain ad-vice or opinion. In utilizing such com-mittees, the Director shall follow theprovisions of this part and the require-

ments of the Act. Such committees, tothe extent they are utilized by theService, shall be considered, for thepurposes of this part, to be advisorycommittees established by the Service.

§ 1430.4 Filing of advisory committeecharter.

(a) Filing charter with Director. Beforean advisory committee takes any ac-tion or conducts any business, a char-ter shall be filed with the Director, thestanding committees of Congress withlegislative jurisdiction over the Serv-ice, and the Library of Congress. Ex-cept for a committee in existence onthe effective date of the Act, or whenauthorized by statute, Presidential di-rective, or by the secretariat, suchcharter shall be filed no earlier than 30days after publication of the commit-tee’s certification in the FEDERAL REG-ISTER.

(b) Charter information. A chartershall contain the following informa-tion:

(1) The committee’s official designa-tion;

(2) The committee’s objectives andscope of activity;

(3) The period of time necessary forthe committee to carry out its pur-poses;

(4) The agency or official to whomthe advisory committee reports;

(5) The agency responsible for pro-viding necessary support;

(6) A description of the committee’sduties;

(7) The estimated number and fre-quency of committee meetings;

(8) The estimated annual operatingcosts in dollars and man-years;

(9) The committee’s terminationdate, if less than two years; and

(10) The date the charter is filed.(c) Preparation and filing of initial

charter. Responsibility for preparationof the initial committee charter shallbe with the head of the appropriateprogram within the Service, in co-operation with the committee manage-ment officer. The Director of Adminis-tration shall have responsibility for as-suring the appropriate filings of suchcharters.


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§ 1430.5 Termination of advisory com-mittees.

(a) All nonstatutory advisory com-mittees including those authorized, butnot specifically created by statute,shall terminate no later than 2 yearsafter their charters have been filed, un-less renewed as provided in § 1430.6.

(b) The charter of any committee inexistence on the date the Act becameeffective (January 5, 1973) shall termi-nate no later than January 5, 1975, un-less renewed, as provided in § 1430.6.

(c) Advisory committees specificallycreated by statute shall terminate asprovided in the establishing statute.

§ 1430.6 Renewal of advisory commit-tees.

(a) Renewal of advisory committeesnot created pursuant to specific statu-tory authority.

(1) The Director may renew an advi-sory committee not created pursuantto specific statutory authority afterconsultation with the secretariat.

(2) When the Director determinesthat such an advisory committeeshould be renewed, he shall so advisethe secretariat within 60 days prior tothe committee’s termination date andshall state the reasons for his deter-mination.

(3) Upon concurrence of the secre-tariat, the Director shall publish no-tice of the renewal in the FEDERALREGISTER and cause a new charter to beprepared and filed in accordance withthe provisions of § 1430.3.

(b) Renewal of advisory committeesestablished pursuant to specific statu-tory authority. The Director mayrenew advisory committees establishedpursuant to specific statutory author-ity through the filing of a new charterat appropriate 2-year intervals.

(c) No advisory committee shall takeany action or conduct any businessduring the period of time between itstermination date and the filing of itsrenewal charter.

§ 1430.7 Application of the Freedom ofInformation Act to advisory com-mittee functions.

(a) Subject to 5 U.S.C. 552, therecords, reports, transcripts, minutes,appendices, working papers, drafts,studies, agenda, and other documents

which are made available to or are pre-pared for or by an advisory committeeshall be available to the public.

(b) Advisory committee meeting con-ducted in accordance with § 1430.7 maybe closed to the public when discussinga matter that is of a 5 U.S.C. 552(b) na-ture, whether or not the discussioncenters on a written document.

(c) No record, report, or other docu-ment prepared for or by an advisorycommittee may be withheld from thepublic unless the Office of the GeneralCounsel determines that the documentis properly within the exemptions of 5U.S.C. 552(b). No committee meeting,or portion thereof, may be closed tothe public unless the Office of the Gen-eral Counsel determines in writing,prior to publication of the meeting inthe FEDERAL REGISTER that such aclosing is within the exemptions of 5U.S.C. 552(b).

§ 1430.8 Advisory committee meetings.(a) Initiation of meetings. (1) Com-

mittee meetings may be called by:(i) The Director or the head of the of-

fice most directly concerned with thecommittee’s activities;

(ii) The agency officer referred to inparagraph (a)(1)(i) of this section, andthe committee chairman, jointly; or

(iii) The committee chairman, withthe advance approval of the officer re-ferred to in paragraph (a)(1)(i) of thissection.

(2) The Service’s committee manage-ment officer shall be promptly in-formed that a meeting has been called.

(b) Agenda. Committee meetingsshall be based on agenda approved bythe officer referred to in paragraph(a)(1) of this section. Such agenda shallnote those items which may involvematters which have been determinedby the Office of the General Counsel ascoming within the exemptions to theFreedom of Information Act, 5 U.S.C.552(b).

(c) Notice of meetings. (1) Notice of ad-visory committee meetings shall bepublished in the FEDERAL REGISTER atleast 7 days before the date of themeeting, irrespective of whether a par-ticular meeting will be open to thepublic. Notice to interested personsshall also be provided in such otherreasonable ways as are appropriate


69


under the circumstances, such as pressrelease or letter. Responsibility forpreparation of FEDERAL REGISTER andother appropriate notice shall be withthe officer referred to in paragraph(a)(1) of this section.

(2) Notice in the FEDERAL REGISTERshall state all pertinent informationrelated to a meeting and shall be pub-lished at least 7 days prior to a meet-ing.

(d) Presence of agency officer or em-ployee at meetings. No committee shallmeet without the presence of the offi-cer referred to in paragraph (a)(1) ofthis section, or his delegate. At his op-tion the officer or employee may electto chair the meeting.

(e) Minutes. Detailed minutes shall bekept of all committee meetings andshall be certified by the chairman ofthe advisory committee as being accu-rate.

(f) Adjournment. The officer or em-ployee referred to in paragraph (a)(1) ofthis section may adjourn a meeting atany time he determines it in the publicinterest to do so.

(g) Public access to committee meetings.All advisory committee meetings shallbe open to the public, except when theOffice of the General Counsel deter-mines, in writing, and states his rea-sons therefor prior to FEDERAL REG-ISTER notice, that a meeting or anypart thereof, is concerned with mattersrelated to the exemptions provided inthe Freedom of Information Act, 5U.S.C. 552(b). In such instances, thoseportions of a committee meeting whichcome within the section 552(b) exemp-tions may be closed to the public.

(h) Public participation in committeeprocedures. Interested persons shall bepermitted to file statements with advi-sory committees. Subject to reasonablecommittee procedures, interested per-sons may also be permitted to makeoral statements on matters germane tothe subjects under consideration at thecommittee meeting.

§ 1430.9 Agency management of advi-sory committees.

Consistent with the other provisionsof this part, the Service’s advisorycommittee management officer shall:

(a) Exercise control and supervisionover the establishment, procedures,

and accomplishments of advisory com-mittees established by the Service;

(b) Assemble and maintain the re-ports, records, and other papers of ad-visory committees, during their exist-ence;

(c) Carry out, with the concurrenceof the Office of the General Counsel,the provisions of the Freedom of Infor-mation Act, as those provisions applyto advisory committees;

(d) Have available for public inspec-tion and copying all pertinent docu-ments of advisory committees whichare within the purview of the Freedomof Information Act; and

(e) When transcripts have been madeof advisory committee meetings, pro-vide for such transcripts to be madeavailable to the public at actual cost ofduplication, except where prohibited bycontractual agreements entered intoprior to January 5, 1973, the effectivedate of the Federal Advisory Com-mittee Act.

PART 1440—ARBITRATION OFPESTICIDE DATA DISPUTES

Sec.1440.1 Arbitration of pesticide data dis-

putes.APPENDIX TO PART 1440—FIFRA ARBITRATION

RULES

AUTHORITY: Federal Insecticide, Fungicide,and Rodenticide Act (7 U.S.C. 136 et seq.), asamended, Pub. L. 95–396, 92 Stat. 819.

SOURCE: 45 FR 55395, Aug. 19, 1980, unlessotherwise noted.]

§ 1440.1 Arbitration of pesticide datadisputes.

(a) Persons requesting the appoint-ment of an arbitrator under section3(c)(1)(D)(ii) and section 3(c)(2)(B)(iii)of the Federal Insecticide, Fungicide,and Rodenticide Act (7 U.S.C. 136, asamended), shall send such requests inwriting to the appropriate AmericanArbitration Association Regional Of-fice. Such requests must include thenames, addresses, and telephone num-bers of the parties to the dispute;issue(s) in dispute, the amount in dol-lars or any other remedy sought; suffi-cient facts to show that the statutorywaiting period has passed, and the ap-propriate fee provided in the FeeSchedule.


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29 CFR Ch. XII (7–1–01 Edition)Pt. 1440, App.

(b) For the purpose of compliancewith the Federal Insecticide, Fun-gicide, and Rodenticide Act (herein-after ‘‘the Act’’), the roster of arbitra-tors maintained by the Federal Medi-ation and Conciliation Service shall bethe roster of commerical arbitratorsmaintained by the American Arbitra-tion Association. Under this Act, arbi-trators will be appointed from that ros-ter. The fees of the American Arbitra-tion Association shall apply, and theprocedure and rules of the Federal Me-diation and Conciliation Service, appli-cable to arbitration proceedings underthe Act, shall be the FIFRA arbitra-tion rules of the American ArbitrationAssociation, which are hereby made apart of this regulation.

APPENDIX TO PART 1440—FIFRAARBITRATION RULES

Section 1

These rules shall apply as published in theFEDERAL REGISTER unless modified byFMCS.

Sec. 2. Definitions

For the purpose of these Rules of Proce-dure the terms are defined as follows:

(1) AAA means the American ArbitrationAssociation.

(2) Act or FIFRA means the Federal Insecti-cide, Fungicide, and Rodenticide Act, 7U.S.C. 136 et seq.

(3) EPA means the United States Environ-mental Protection Agency.

(4) Arbitrator(s) means the person or per-sons appointed to the tribunal constitutedby the parties for the settlement of their dis-pute under these Rules.

(5) Claimant means a person asserting aclaim for compensation under these Rules orfiling a claim concerning joint developmentof data.

(6) Compulsory arbitration means arbitra-tion invoked under the mandatory provisionsof section 3(c)(1)(d) or 3(c)(2)(B)(iii) of theAct.

(7) Voluntary arbitration means arbitrationvoluntarily agreed to by the parties to settlea dispute under section 3(c)(1)(d) or3(c)(2)(B)(iii) of the Act.

(8) Director means Director, RegistrationDivision, Office of Pesticide Programs, Envi-ronmental Protection Agency, or any officeror employee of the EPA to whom authorityhas been or may hereafter be lawfully dele-gated to act in his stead.

(9) Administator means the AAA, its Tri-bunal Administrators or such officers orcommittees as the AAA may direct.

(10) Roster means the Commercial Arbitra-tion Roster of AAA.

(11) FMCS or Service means the Federal Me-diation and Conciliation Service.

(12) Party means claimant or respondent.(13) Person means any individual, partner-

ship, association, corporation, or any orga-nized group of persons, whether incorporatedor not.

(14) Respondent means the person againstwhom a claim is made under section3(c)(1)(D) or 3(c)(2)(B)(iii) of the Act.Terms defined in the Act and not explicitlydefined herein are used herein with themeanings given in the Act.

Sec. 3. Initiation of Arbitration

(a) Under compulsory procedures of FIFRA.Upon the request of a party qualified underFIFRA section 3(c)(1)(D) or 3(c)(2)(B)(iii) forthe appointment of an arbitrator, the Serv-ice will appoint an arbitrator in accordancewith 29 CFR 1440.1 (a) and these rules. Re-quests shall be submitted in writing to theappropriate AAA Regional Office and mustinclude the names, addresses and telephonenumbers of the parties to the dispute; issuesin dispute; the amount in dollars or anyother remedy sought; sufficient facts to showthat the statutory waiting period has passed;and the appropriate fee as provided in theFee Schedule.AAA shall give notice of filing of a requestfor arbitration to the other party. If he sodesires, the party upon whom the demand forarbitration is made may file an answeringstatement in duplicate with AAA withinseven days after notice, in which event heshall simultaneously send a copy of his an-swer to the other party. If a monetary claimis made in the answer the appropriate feeprovided in the Fee Schedule shall be for-warded with the answer. If no answer is filedwithin the stated time, it will be assumedthat the claim is denied. Failure to file ananswer shall not operate to delay the arbi-tration.

(b) Under a Voluntary Submission. Parties toany existing dispute may commence an arbi-tration under these Rules by filing at anyAAA Regional Office two (2) copies of a writ-ten agreement to arbitrate under these Rules(Submission), signed by the parties. It shallcontain a statement of the matter in dis-pute, the amount of money involved, if any,and the remedy sought, together with theappropriate administrative fee as provided inthe Fee Schedule.

Sec. 4. Fixing of Locale

The parties may mutually agree on the lo-cale where the arbitration is to be held. Ifthe locale is not designated within sevendays from the date of filing the Demand orSubmission the AAA shall have power to de-termine the locale. Its decision shall be final


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and binding. If any party requests that thehearing be held in a specific locale and theother party files no objection thereto withinseven days after notice of the requests, thelocale shall be the one requested.

Sec. 5. Qualification of Arbitrator

Any Arbitrator appointed pursuant tothese rules shall be neutral, subject to dis-qualification for the reasons specified in sec-tion 11. If the agreement of the partiesnames an Arbitrator or specifies any othermethod of appointing an Arbitrator, or if theparties specifically agree in writing, suchArbitrator shall not be subject to disquali-fication for said reasons.

Sec. 6. Appointment From Panel

If the parties have not appointed an Arbi-trator and have not provided any othermethod of appointment, the Arbitrator shallbe appointed in the following manner. Imme-diately after the filing of the Request orSubmission, the AAA shall submit simulta-neously to each party to the dispute an iden-tical list of names of persons chosen fromthe Panel. Each party to the dispute shallhave seven days from the mailing date inwhich to cross off any names to which he ob-jects, number the remaining names indi-cating the order of his preference, and returnthe list to the AAA. If a party does not re-turn the list within the time specified, allpersons named therein shall be deemed ac-ceptable. From among the persons who havebeen approved on both lists, and in accord-ance with the designated order of mutualpreference, the AAA shall invite the accept-ance of an Arbitrator to serve, and the Serv-ice shall appoint the Arbitrator. If the par-ties fail to agree upon any of the personsnamed, or if acceptable Arbitrators are un-able to act, or if for any other reason the ap-pointment cannot be made from the sub-mitted lists, the FMCS shall have the powerto make the appointment from other mem-bers of the Panel without the submission ofany additional lists.

Sec. 7. Direct Appointment by Parties

If the agreement of the parties to a Sub-mission names an Arbitrator or specifies amethod of appointment of an Arbitrator,that designation or method shall be followed.The notice of appointment, with name andaddress of such Arbitrator, shall be filedwith the AAA by the appointing party. Uponthe request of any such appointing party, theAAA shall submit a list of members from thePanel from which the party may, if he so de-sires, make the appointment.

If the agreement specifies a period of timewithin which an Arbitrator shall be ap-pointed, and any party fails to make suchappointment within that period, the AAAshall make the appointment.

Sec. 8. Appointment of Neutral Arbitrator byParty Appointed Arbitrators

If the parties have appointed their Arbitra-tors or if either or both of them have beenappointed as provided in section 7, and haveauthorized such Arbitrators to appoint aneutral Arbitrator within a specified timeand no appointment is made within suchtime or any agreed extension thereof, theFMCS shall appoint a neutral Arbitratorwho shall act as Chairman.

If no period of time is specified for appoint-ment of the neutral Arbitrator and the par-ties do not make the appointment withinseven days from the date of the appointmentof the last party-appointed Arbitrator, theFMCS shall appoint such neutral Arbitrator,who shall act as Chairman.

If the parties have agreed that their Arbi-trators shall appoint the neutral Arbitratorfrom the Panel, the AAA shall furnish to theparty-appointed Arbitrators, in the mannerprescribed in section 6, a list selected fromthe Panel, and the appointment of the neu-tral Arbitrator shall be made as prescribedin such section.

Sec. 9. Number of Arbitrators

If the arbitration agreement does notspecify the number of Arbitrators, the dis-pute shall be heard and determined by oneArbitrator, unless the AAA in its discretion,directs that a greater number of Arbitratorsbe appointed.

Sec. 10. Notice to Arbitrator of His or HerAppointment

Notice of the appointment of the neutralArbitrator, whether appointed by the par-ties, by the AAA or FMCS shall be mailed tothe Arbitrator, together with a copy of theseRules, and the signed acceptance of the Arbi-trator shall be filed with AAA prior to theopening of the first hearing.

Sec. 11. Disclosure and Challenge Procedure

A person appointed as neutral Arbitratorshall disclose to the AAA any circumstanceslikely to affect his or her impartiality, in-cluding any bias or any financial or personalinterest in the result of the arbitration orany past or present relationship with theparties or their counsel. Upon receipt of suchinformation from such Arbitrator or othersource, the AAA shall communicate such in-formation to the parties, and, if it deems itappropriate to do so, to the Arbitrator.Thereafter, the AAA shall make a deter-mination whether the Arbitrator should bedisqualified. The determination, however,may be appealed to FMCS. The decision ofFMCS shall be conclusive.


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Sec. 12. Vacancies

If any Arbitrator should resign, die, with-draw, refuse, be disqualified, or be unable toperform the duties of his office, AAA may,on proof satisfactory to it, declare the officevacant. Either party to a compulsory arbi-tration may request the FMCS to review adeclaration of disqualification. Vacanciesshall be filled in accordance with the appli-cable provision of these Rules and the mat-ter shall be reheard unless the parties shallagree otherwise.

Sec. 13. Commencement of Proceeding

(a) Within 60 days from receipt by the par-ties of notice of the appointment of an arbi-trator, the claimant shall file with AAA:

(1) If appropriate, a detailed statement asto the amount of compensation claimed, themethod of computing said amount, andterms of payment, and a list of the test datadeemed to be compensable, together with adetailed justification therefore.

(2) A certification as to: (i) Whether anycourt or tribunal has made determinationsfor payment by any other persons to claim-ant for use of the same test data and, if so,identification of the persons against whomthe 3(c)(2)(B) determinations were issued andthe application for registration for which thetest data was used; and (ii) whether anyother claims against any persons are pendingin arbitration or in any court for use of thesame test data and, if so, an identification ofthe persons against whom the claims arepending and the applications for registrationon which the claims are being made.

(3) A detailed statement of the matter indispute under 3(c)(2)(B).

(b) Within 60 days of service of the docu-ments referred to in subsection (a) the re-spondent shall file a detailed statement ofits position as to the amount of compensa-tion due, method of computation, terms ofpayment, and list of data deemed to be com-pensable together with a detailed justifica-tion therefore or a detailed statement of thedispute under 3(c)(2)(5). To the extent anyportion of the claimant’s statement of itsclaim is not denied or challenged by respond-ent, it shall be deemed admitted.

(c) After respondent’s statement is filed,the arbitrator may, upon request by a party,request the Director to supplement the filewith additional information, including cop-ies of relevant test data, information con-tained in a relevant registration file, a state-ment as to data requirements for registra-tion, or any other information which the ar-bitrator deems to be relevant. Upon requestby a party or other interested person, the ar-bitrator shall order protective measures tosafeguard and restrict access to confidentialbusiness information.

Sec. 14. Filing and Service

(a) All documents or papers required or au-thorized to be filed, shall be filed with theAAA for transmittal to the arbitrator, ex-cept as otherwise herein provided, and shallbear the caption of the case and the docketnumber. At the same time that a party filesdocuments or papers with the AAA, theparty shall serve upon all other parties cop-ies thereof, with a certificate of service on orattached to each document or paper, includ-ing those filed with the arbitrator. If a partyis represented by counsel or other represent-ative, service shall be made on such rep-resentative. Service may be made personallyor by regular mail, and if made by mail shallbe deemed complete on mailing. If filing isaccomplished by mail addressed to the AAA,filing shall be deemed timely if the papersare postmarked on the due date.

(b) All orders, decisions, or other docu-ments made or signed by the arbitrator shallbe served immediately upon all parties.

Sec. 15. Time

(a) In computing any period of time pre-scribed or allowed by these rules, except asotherwise provided, the day of the act, event,or default from which the designated periodof time begins to run shall not be included.Saturdays, Sundays and legal holidays shallbe included in computing the time allowedfor the filing of any document or paper, ex-cept that when such time expires on a Satur-day, Sunday, or legal holiday, such periodshall be extended to include the next fol-lowing business day.

(b) When by these rules or by order of thearbitrators, an act is required or allowed tobe done at or within a specified time, the ar-bitrator or AAA for cause shown may at anytime in their discretion (1) with or withoutmotion or notice, order the period enlarged ifrequest therefore, which may be made exparte, is made before the expiration of the pe-riod originally prescribed or as extended by aprevious order, or (2) on motion made afterthe expiration of the specified period, permitthe act to be done where the failure to actwas the result of excusable neglect or othergood cause.

Sec. 16. Communication with Arbitrator andServing of Notices

(a) There shall be no communication be-tween the parties and a neutral arbitratorother than at oral hearings. Any other oralor written communications from the partiesto the arbitrator shall be directed to theAAA for transmittal to the arbitrator.

(b) Each party to an agreement which pro-vides for arbitration under these Rules shallbe deemed to have consented that any pa-pers, notices or process necessary or properfor the initiation or continuation of an arbi-tration under these Rules and for any court


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action in connection therewith or for theentry of judgment on any award made there-under may be served upon such party bymail addressed to such party or his attorneyat his last known address or by personalservice, within or without the State whereinthe arbitration is to be held (whether suchparty be within or without the United Statesof America): Provided, That reasonable op-portunity to be heard with regard theretohas been granted such party.

Sec. 17. Time of Award

The award shall be made promptly by thearbitrator and, unless otherwise agreed bythe parties, or specified by law, no later thanthirty days from the date of closing thehearings, or if oral hearings have beenwaived, from the date of transmitting thefinal statements and proofs to the arbi-trator.

Sec. 18. Appearances

(a) Parties may appear in person or bycounsel or other representative. Persons whoappear as counsel or in a representative ca-pacity must conform to the standards of eth-ical conduct required of practitioners beforethe courts of the United States.

(b) Any party to the proceeding who, afterbeing duly notified and without good causebeing shown fails to appear at a prehearingconference or fails to respond to correspond-ence, shall be deemed to have waived hisrights with respect thereto and shall be sub-ject to such orders or determinations withrespect thereto as the arbitrator shall make.The failure of a party to appear at a hearingshall constitute a waiver of the right topresent evidence at such hearing. Where ei-ther party fails to appear at a hearing, thearbitrator shall require the presentation bythe present party of such evidence as hedeems necessary to prepare a decision in con-formity with the requirements of the act.

(c) Any person having a direct interest inthe arbitration is entitled to attend hear-ings. The arbitrator shall otherwise have thepower to require the exclusion of any wit-ness, other than a party or other essentialperson, during the testimony of any otherwitness. It shall be discretionary with thearbitrator to determine the propriety of theattendance of any other person.

Sec. 19. Consolidation and Severance

(a) The AAA may with agreement of allparties consolidate any matters at issue intwo or more proceedings docketed underthese Rules of Procedure where there existcommon parties, common questions of factand law, and where such consolidation wouldexpedite or simplify consideration of theissues. Consolidation may also be effectedwhere separate claims for use of the sametest data are made against different respond-

ents. The arbitrator who presides over theconsolidated proceeding shall be chosen inaccordance with section 3, supra.

(b) The arbitrator may, by motion or suasponte, for good cause shown order any pro-ceeding severed with respect to some or allparties or issues.

Sec. 20. Protection of Confidential Information

(a) The arbitrator shall make such ordersas required to protect the secrecy of con-fidential information or documents such asreview in camera.

(b) The arbitrator shall impose a sanctionagainst any party who violates an orderissued under this section. Such sanction mayinclude an award against the offendingparty.

Sec. 21. Scheduling of Hearing

(a) After consideration of the convenienceof the parties, the AAA shall serve upon theparties a notice of hearing setting a time andplace for such hearing.

(b) Except for good cause shown, no re-quest for postponement of a hearing will begranted. Such request must be received inwriting at least a day in advance of the timeset for the hearing. In case of postponement,the hearing shall be rescheduled for a date asearly as circumstances will permit.

Sec. 22. Optional Accelerated Procedure

(a) In claims involving $25,000 or less, theparties may elect, prior to commencement ofhearing, to have the claim processed underan expedited procedure. If no specificamount of claim is stated, a case will be con-sidered to fall within this rule if the amountwhich the claimant represents in writingthat it could recover as a result of any arbi-trator’s decision favorable to it does not ex-ceed $25,000. Upon such election, a case shallthen be processed under this rule unless therespondent objects and shows good causewhy the substantive nature of the dispute re-quires processing under the regular proce-dures. In cases proceeding under this rule,the parties have waived discovery and briefs.

(b) The arbitrator shall schedule the dis-pute for hearing within thirty (30) days ofservice of notice to the parties that the dis-pute will be governed by this acceleratedprocedure, unless either party requests thatthe case be submitted without hearing undersection 19.

(c) Written decision by the arbitrators incases proceeding under this rule normallywill be short and contain summary findingsof fact and conclusions only. The arbitratorshall render such decisions promptly, but inno event later than thirty days after the dis-pute is ready for decision.


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Sec. 23. Discovery

(a) Either party may move for permissionto serve written interrogatories and requestsfor production of documents upon the oppos-ing party. The arbitrator shall grant suchmotion to the extent that such interrog-atories and requests are designed to producerelevant evidence and only upon such termsas the arbitrator in his or her discretion con-siders to be consistent with the objective ofsecuring a just and inexpensive determina-tion of the dispute without unnecessarydelay.

(b) Upon motion by either party, the arbi-trator may order a deposition upon a show-ing of good cause and a finding that the dep-osition is designed to secure relevant andprobative evidence which (1) cannot be ob-tained by alternative means, or (2) may oth-erwise not be preserved for presentation athearing.

(c) If a party fails to comply with an orderissued under this section, the arbitratorshall draw inferences adverse to that partyin connection with the facts sought to be dis-covered.

(d) At least thirty days prior to the hear-ing, each party shall make available to eachother party the names of the expert andother witnesses it intends to call, togetherwith a detailed summary of their expectedtestimony, and copies of all documents andexhibits which the party intends to intro-duce into evidence. Thereafter, witnesses,documents, or exhibits may be added andnarrative summaries of expected testimonyamended only upon motion by a party forgood cause shown.

Sec. 24. Prehearing Conference

(a) When it appears that such procedurewill expedite the preceeding, the arbitratorat any time prior to the commencement ofthe hearing may request the parties andtheir counsel or other representative to ap-pear at a conference before him or her toconsider:

(i) The possibility of settlement of thecase;

(ii) The simplification of issues and stipu-lation of facts not indispute;

(iii) The necessity or desirability ofamending or supplementing documents inthe record;

(iv) The possibility of obtaining admissionsor stipulations of fact and of documentswhich will avoid unnecessary proof;

(v) The limitation of the number of expertor other witnesses;

(vi) The setting of a time and place for thehearing, giving consideration to the conven-ience of all parties and to the public interest;and

(vii) Any other matters as may expeditethe disposition of the proceeding.

(b) No transcript of any prehearing con-ference shall be made unless ordered uponmotion of a party or sua sponte by the arbi-trator. In the absence of a transcript, the ar-bitrator shall prepare and file a report of theaction taken at such conference. Such reportshall incorporate any written stipulations oragreements made by the parties, all rulingsupon matters considered at such conference,and appropriate orders containing directionsto the parties. Such report shall, as appro-priate, direct the subsequent course of theproceeding, unless modified by the arbitra-tors on motion or sua sponte.

Sec. 25. Evidence

(a) The arbitrator shall admit all evidencewhich is relevant, competent, material, notprivileged, and not unduly repetitious. Theweight to be given evidence shall be deter-mined by its reliability and probative value.

(b) Except as otherwise provided in theseRules of Procedure or by the arbitrator, wit-nesses shall be examined orally, under oathor affirmation. Parties shall have the rightto cross-examine a witness who appears atthe hearing provided that such cross-exam-ination is not unduly repetitious.

(c) Except where the arbitrator finds it im-practicable, an original and two copies ofeach exhibit shall be filed at the time the ex-hibit is offered into evidence and a copy shallbe furnished to each party. A true copy of anexhibit may be substituted for the original.

(d) Official notice may be taken of anymatter judicially noticed in the Federalcourts. The parties shall be given adequateopportunity to show that such facts are erro-neously noticed.

Sec. 26. Order of Proceedings

(a) Hearing shall be opened by the filing ofthe oath of the arbitrator, and by the record-ing of the place, time and date of the hear-ing, the presence of the arbitrator, parties,and counsel.

(b) The arbitrator may, at the beginning ofthe hearing, ask for statements clarifyingthe issues involved. The claimant shall thenpresent his claim and proofs and his wit-nesses. The respondent shall then present hisresponse and proofs and his witnesses. Thearbitrator may in his descretion vary thisprocedure but he or she shall afford full andequal opportunity to all parties for the pres-entation of any material or relevant proofs.

Sec. 28. Burden of Presentation; Burden ofPersuasion

The claimant shall have the burden ofgoing forward to establish his entitlement toan amount of compensation that respondentshould pay for use of the test data reliedupon. Each matter of controversy shall bedecided by the arbitrator upon a preponder-ance of the evidence.


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Sec. 29. Stenographic Record

Any party may request a stenographicrecord by making arrangements for samethrough the AAA. If such transcript isagreed by the parties to be, or in appropriatecases determined by the arbitrator to be, theofficial record of the proceeding, it must bemade available to the arbitrator, and to theother party for inspection, at a time andplace determined by the arbitrator. Thetotal cost of such a record shall be sharedequally by those parties that order copies.

Sec. 30. Filing of Briefs, Proposed Findings ofFact and Conclusions of Law, and ProposedOrder

Unless otherwise ordered by the arbitrator,each party may within thirty days after de-livery of the transcript of a hearing to thearbitrator as provided in section 29, file withAAA and serve upon all other parties a brieftogether with references to relevant exhibitsand the record. Within Fifteen days there-after each party may file a reply brief con-cerning matters contained in the opposingbrief. Oral argument may be had at the dis-cretion of the arbitrator.

Sec. 31. Closing of Hearings

The Arbitrator shall inquire of all partieswhether they have any further proofs tooffer or witnesses to be heard. Upon receiv-ing negative replies, the arbitrator shall de-clare the hearings closed and the time anddate shall be recorded. If briefs or other doc-uments are to be filed, the hearings shall bedeclared closed as of the final date set by thearbitrator for filing with the AAA. The timelimit within which the Arbitrator is requiredto make the award shall commence to run,in the absence of other agreement by theparties, upon the closing of the hearings.

Sec. 32. Arbitrators’ Decision

(a) The arbitrator shall as soon as prac-ticable after the filing of briefs evaluate therecord and prepare and file a decision. Thedecision shall contain findings of fact andconclusions regarding all issues in dispute aswell as reasons therefore.

(b) The decision shall contain a determina-tion as to the compensation, if any respond-ent must pay to claimant, or other remedyas appropriate, the method of payment, andmay fix such other terms and conditions asmay be reasonable under the circumstances,including the furnishing of a bond or otherguarantee of payment by the respondent tothe claimant.

Sec. 33. Reopening of Hearings

(a) The hearings may be reopened by thearbitrator on his or her own motion, or uponapplication of a party at any time before theaward is made. If the reopening of the hear-

ings would prevent the making of the awardwithin the specific time agreed upon by theparties in the contract out of which the con-troversy has arisen, the matter may not bereopened, unless the parties agree upon theextension of such time limit. When no spe-cific date is fixed, the arbitrator may reopenthe hearings, and the arbitrator shall havethirty days from the closing of the reopenedhearings within which to make an award.

(b) A motion to reopen a hearing to takefurther evidence, to rehear or reargue anymatter related to such proceeding, or to re-consider the arbitrator’s decision, must bemade by motion in writing to the arbitratorin accordance with these Rules of Procedure.Every such motion must state the specificgrounds upon which relief is sought.

(c) A motion to reopen a hearing for thepurpose of taking further evidence may befiled at any time prior to the issuance of thearbitrator’s decision. Such motion shallstate briefly the nature and purpose of theevidence to be adduced, shall show that suchevidence is not cumulative, and shall setforth a good reason why such evidence wasnot adduced at a hearing.

(d) Motions to modify the arbitrator’s deci-sion shall be filed within 30 days after thedate of service of the decision. Such motionmust state specifically one of the followinggrounds for modification:

1. There was a miscalculation of figures ora mistake in the description of any person,thing or property referred to in the award; or

2. The arbitrators have awarded upon amatter not submitted to them and the awardmay be corrected without affecting the mer-its of the decision upon the issues submitted;or

3. The award is imperfect in a matter ofform, not affecting the merits of the con-troversy.

Sec. 34. Award Upon Settlement

If the parties settle their dispute duringthe course of the arbitration, the arbitrator,upon their request, may set forth the termsof the agreed settlement in an award.

Sec. 35. Delivery of Award to Parties

Parties shall accept as legal delivery of theaward the placing of the award or a truecopy thereof in the mail by the AAA, ad-dressed to such party at his last known ad-dress or to his attorney, or personal serviceof the award, or the filing of the award inany manner which may be prescribed by law.

Sec. 36. Release of Documents for JudicialProceedings

The AAA shall, upon the written request ofa party, furnish to such party, at his or herexpense, certified facsimiles of any papers inthe AAA’s possession that may be required


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in judicial proceedings relating to the arbi-tration.

Sec. 37. Application to Court

(a) No judicial proceedings by a party re-lating to the subject matter of the arbitra-tion shall be deemed a waiver of the party’sright to arbitrate.

(b) Neither the AAA nor FMCS is a nec-essary party in judicial proceedings relatingto the arbitration.

(c) Parties to these Rules shall be deemedto have consented that judgment upon thearbitration award may be entered in anyFederal or State Court having jurisdictionthereof.

Sec. 38. Administrative Fees

As a nonprofit organization, the AAA shallprescribe an administrative fee schedule anda refund schedule to compensate it for thecost of providing administrative services.The schedule in effect at the time of filing orthe time of refund shall be applicable.

The administrative fees shall be advancedby the initiating party or parties, subject tofinal appointment by the arbitrator in hisaward.

When a matter is withdrawn or settled, therefund shall be made in accordance with therefund schedule.

The AAA, in the event of extreme hardshipon the part of any party, may defer or reducethe administrative fee.

Sec. 39. Fee When Oral Hearings Are Waived

Where all oral hearings are waived the Ad-ministrative Fee Schedule shall apply.

Sec. 40. Expenses

The expenses of witnesses for either sideshall be paid by the party producing suchwitnesses.

The cost of the stenographic record, if anyis made, and all transcripts thereof, shall beprorated equally among all parties orderingcopies unless they shall otherwise agree andshall be paid for by the responsible partiesdirectly to the reporting agency.

All other expenses of the arbitration, in-cluding required traveling and other ex-penses of the arbitrator and of AAA rep-resentatives, and the expenses of any witnessor the cost of any proofs produced at the di-rect request of the arbitrator, shall be borneequally by the parties.

Sec. 41. Arbitrator’s Fee

Any arrangement for the compensation ofa neutral arbitrator shall be made throughthe AAA and not directly by him or her withthe parties. Where parties cannot agree,AAA shall fix reasonable compensation.

Sec. 42. Deposits

The AAA may require the parties to de-posit in advance such sums of money as itdeems necessary to defray the expense of thearbitration, including the arbitrator’s fee ifany, and shall render an accounting to theparties and return any unexpened balance.

Sec. 43. Interpretation and Application of Rules

The arbitrator shall interpret and applythese Rules insofar as they relate to his orher powers and duties. When there is morethan one arbitrator and a difference arisesamong them concerning the meaning or ap-plication of any such Rules, it shall be de-cided by a majority vote. If that isunobtainable, either an arbitrator or a partymay refer the question to the AAA for deci-sion. All other Rules shall be interpreted andapplied by the AAA. Either party may re-quest that FMCS review any decision of AAAon interpretation or application of theserules.

ADMINISTRATIVE FEE SCHEDULE

The administrative fee of the AAA is basedupon the amount of each claim and counter-claim as disclosed when the claim and coun-terclaim are filed, and is due and payable atthe time of filing.

Amount of claim Fee

Up to $25,000 ....................... $500.$25,000 to $100,000 ............ $600, plus 1% of excess over

$25,000.$100,000 to $200,000 .......... $1350, plus 1⁄2% of excess

over $100,000.$200,000 to $5,000,000 ....... $1850, plus 1⁄4% of excess

over $200,000.

Where the claim or counter claim exceeds$5 million, an appropriate fee will be deter-mined by the AAA.

When no amount can be stated at the timeof filing, the administrative fee is $500, sub-ject to adjustment in accordance with theabove schedule as soon as an amount can bedisclosed.

If there are more than two parties rep-resented in the arbitration, an additional10% of the initiating fee will be due for eachadditional represented party.

Other Service Charges—$50.00 payable by aparty causing an adjournment of any sched-uled hearing;

$100 payable by a party causing a second oradditional adjournment of any scheduledhearing.

$25.00 payable by each party for each hear-ing after the first hearing which is eitherclerked by the AAA or held in a hearingroom provided by the AAA.

Refund Schedule—If the AAA is notifiedthat a case has been settled or withdrawn be-fore a list of Arbitrators has been sent out,all the fees in excess of $500 will be refunded.


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Federal Mediation and Conciliation Service Pt. 1450

If the AAA is notified that a case has beensettled or withdrawn thereafter but beforethe due date for the return of the first list,two-thirds of the fee in excess of $500.00 willbe refunded.

If the AAA is notified that a case is settledor withdrawn thereafter but at least 48 hoursbefore the date and time set for the firsthearing, one-half of the fee in excess of $500will be refunded.

REGIONAL DIRECTORS

Atlanta (30303), India Johnson—100 Peach-tree Street, NW.

Boston (02108), Richard M. Reilly—294 Wash-ington Street

Charlotte (28218), John A. Ramsey—3235Eastway Drive, P.O. Box 18591

Chicago (60601), Charles H. Bridge, Jr.—180 N.La Salle Street

Cincinnati (45202), Philip S. Thompson—2308Carew Tower

Cleveland (44114), Earle C. Brown—215 EuclidAvenue

Dallas (75201), Helmut O. Wolff—1607 MainStreet

Detroit (48226), Mary A. Bedikian—1234 CityNational Bank Building

Garden City, NY (11530), Ellen Maltz-Brown—585 Stewart Avenue

Hartford (06103), J. Robert Haskell—37 LewisStreet

Los Angeles (90020), Jerrold L. Murase—443Shatto Place

Miami (33129), Joseph A. Fiorillo—2250 SW.3rd Avenue

Minneapolis (55402), Patricia A. Levin—1001Foshay Tower

New Brunswick, NJ (08901), RichardNaimark—96 Bayard Street

New York (10020), Robert E. Meade—140 West51st Street

Philadelphia (19102), Arthur R. Mehr—1520Locust Street

Phoenix (85004), Paul A. Newnham—222 NorthCentral Avenue

Pittsburgh (15222), John F. Schano—221 Gate-way Four

San Diego (92101), John E. Scrivner—530Broadway

San Francisco (94104), Charles A. Cooper—690Market Street

Seattle (98104), Neal M. Blacker—810 ThirdAvenue

Syracuse (13203), Deborah A. Brown—731James Street

Washington (20036), Garylee Cox—1730 RhodeIsland Avenue, NW.

White Plains, NY (10601), John R. Dacey—34South Broadway

PART 1450—COLLECTIONS OFCLAIMS OWED THE UNITED STATES

Subpart A—General Provisions

Sec.1450.1 Definitions.1450.2 Exceptions.1450.3 Use of procedures.1450.4 Conformance to law and regulations.1450.5 Other procedures.1450.6 Informal action.1450.7 Return of property.1450.8 Omissions not a defense.

Subpart B—Administrative Offset—Con-sumer Reporting Agencies—Con-tracting for Collection

1450.9 Demand for payment.1450.10 Collection by administrative offset.1450.11 Administrative offset against

amounts payable from Civil Service Re-tirement and Disability Fund.

1450.12 Collection in installments.1450.13 Exploration of compromise.1450.14 Suspending or termination collec-

tion action.1450.15 Referrals to the Department of Jus-

tice or the General Accounting Office.1450.16 Use of consumer reporting agencies.1450.17 Contracting for collection services.

Subpart C—Salary Offset

1450.18 Purpose.1450.19 Scope.1450.20 Definitions.1450.21 Notification.1450.22 Hearing.1450.23 Deduction from pay.1450.24 Liquidation from final check or re-

covery from other payment.1450.25 Non-waiver of rights by payments.1450.26 Refunds.1450.27 Interest, penalties, and administra-

tive costs.1450.28 Recovery when paying agency is not

creditor agency.

Subpart D—Interest, Penalties, andAdministrative Costs

1450.29 Assessment.1450.30 Exemptions.1450.31 Other sanctions.

AUTHORITY: 31 U.S.C. 3701–3719; 5 U.S.C.5514; 4 CFR parts 101–105; 5 CFR part 550.



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Subpart A—General Provisions§ 1450.1 Definitions.

(a) The term agency means the Fed-eral Mediation and Conciliation Serv-ice (FMCS) or any other agency of theU.S. Government as stated at § 1450.20.

(b) The term agency head means theDirector of the Federal Mediation andConciliation Service.

(c) The terms appropriate agency offi-cial or designee mean the Director ofthe Financial Management Staff ofFMCS, or such other official as may benamed in the future by the Director ofFMCS.

(d) The terms claim and debt aredeemed synonymous and interchange-able. They refer to an amount ofmoney or property which has been de-termined by an appropriate agency of-ficial to be owed to the United Statesfrom any person, organization or enti-ty, except another Federal agency.

(e) A debt is considered delinquent ifit has not been paid by the date speci-fied in the agency’s written notifica-tion or applicable contractual agree-ment, unless other satisfactory pay-ment arrangements have been made bythat date, or if at any time thereafterthe debtor fails to satisfy obligationsunder a payment agreement with theagency.

(f) The term referral for litigationmeans referral to the Department ofjustice for appropriate legal pro-ceedings.

§ 1450.2 Exceptions.(a) Claims arising from the audit of

transportation accounts pursuant to 31U.S.C. 3726 shall be determined, col-lected, compromised, terminated orsettled in accordance with regulationspublished under the authority of 31U.S.C. 3726 (see 41 CFR part 101–41).

(b) Claims arising out of acquisitioncontracts subject to the Federal Acqui-sition Regulations (FAR) shall be de-termined, collected, compromised, ter-minated, or settled in accordance withthose regulations. (See 48 CFR part 32).If not otherwise provided for in theFAR system, contract claims that havebeen the subject of a contracting offi-cer’s final decision in accordance withsection 6(a) of the Contract DisputesAct of 1978 (41 U.S.C. 605)(a)), may be

determined, collected, compromised,terminated or settled under the provi-sions of this regulation, except that noadditional review of the debt shall begranted beyond that provided by thecontracting officer in accordance withthe provisions of section 6 of the Con-tract Disputes Act of 1978 (41 U.S.C.605), and the amount of any interest,administrative charge, or penaltycharge shall be subject to the limita-tions, if any, contained in the contractout of which the claim arose.

(c) Claims based in whole or in parton conduct in violation of the antitrustlaws, or in regard to which there is anindication of fraud, presentation of afalse claim, or misrepresentation onthe part of the debtor or any otherparty having an interest in the claim,shall be referred to the Department ofJustice (DOJ) as only the DOJ has au-thority to compromise, suspend, or ter-minate collection action on suchclaims.

(d) Tax claims are also excluded fromthe coverage of this regulation.

§ 1450.3 Use of procedures.

Procedures authorized by this regula-tion (including, but not limited to, dis-closure to a consumer reporting agen-cy, contracting for collection services,administrative offset and salary offset)may be used singly or in combination,so long as the requirements of applica-ble law and regulation are satisfied.

§ 1450.4 Conformance to law and regu-lations.

The requirements of applicable law(31 U.S.C 3701–3719 and 5 U.S.C. 5514 asamended by Pub. L. 97–365, 96 Stat.1749) have been implemented in Gov-ernmentwide standards:

(a) The Regulations of the Office ofPersonnel Management (5 CFR part550),

(b) The Federal Claims CollectionStandards issued jointly by the Gen-eral Accounting Office and the Depart-ment of Justice (4 CFR parts 101–105),and

(c) The procedures prescribed by theOffice of Management and Budget inCircular A–129 of May 9, 1985.


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Not every item in the above describedstandards has been incorporated or ref-erenced in this regulation. To the ex-tent, however, that circumstancesarise which are not covered by theterms stated in this regulation, FMCSwill proceed in any actions taken in ac-cordance with applicable requirementsfound in the sources referred to inparagraphs (a), (b), and (c) of this sec-tion.

§ 1450.5 Other procedures.Nothing contained in this regulation

is intended to require FMCS to dupli-cate administrative proceedings re-quired by contract or other laws or reg-ulations.

§ 1450.6 Informal action.Nothing contained in this regulation

is intended to preclude utilization ofinformal administrative actions orremedies which may be available.

§ 1450.7 Return of property.Nothing contained in this regulation

is intended to deter FMCS from de-manding the return of specific propertyor from demanding, the return of theproperty or the payment of its value.

§ 1450.8 Omissions not a defense.The failure of FMCS to comply with

any provision in this regulation shallnot serve as a defense to the debt.

Subpart B—Administrative Offset—Consumer Reporting Agen-cies—Contracting for Collec-tion

§ 1450.9 Demand for payment.Prior to making an administrative

offset, demand for payment will bemade as stated below:

(a) Written demands shall be madepromptly upon a debtor in terms whichinform the debtor of the consequencesof failure to cooperate. A total of threeprogressively stronger written de-mands at not more than 30-day inter-vals will normally be made unless a re-sponse to the first or second demandindicates that a further demand wouldbe futile and the debtor’s response doesnot require rebuttal. In determiningthe timing of demand letters, FMCS

will give due regard to the need to actpromptly so that, as a general rule, ifnecessary to refer the debt to the De-partment of Justice for litigation, suchreferral can be made within one year ofthe agency’s final determination of thefact and the amount of the debt. Whennecessary to protect the Government’sinterest (for example, to prevent thestatute of limitations, 28 U.S.C. 2415,from expiring), written demand may bepreceded by other appropriate actionsunder this subpart including imme-diate referral for litigation.

(b) The initial demand letter will in-form the debtor of:

(1) The basis for the indebtedness andthe right of the debtor to request re-view within the agency;

(2) The applicable standards for as-sessing interest, penalties, and admin-istrative costs (subpart D of this regu-lation) and

(3) The date by which payment is tobe made, which normally should be notmore than 30 days from the date thatthe initial demand letter was mailed orhand-delivered. FMCS will exercisecare to insure that demand letters aremailed or hand-delivered on the sameday that they are actually dated. Apartfrom this, there is no prescribed formatfor the demand letters.

(c) As appropriate to the cir-cumstances, FMCS may include eitherin the initial demand letter or in subse-quent letters, matters relating to al-ternative methods of payment, policieswith respect to use of consumer report-ing agencies and collection services,the agency’s intentions with respect toreferral of the debt to the Departmentof Justice for litigation, and, dependingon applicable statutory authority, thedebtor’s entitlement to considerationof waiver.

(d) FMCS will respond promptly tocommunications from the debtor, with-in 30 days whenever feasible, and willadvise debtor who dispute the debt thatthey must furnish available evidence tosupport their contentions.

(e) If, either prior to the initiationsof, at any time during, or after comple-tion of the demand cycle, FMCS deter-mines to pursue administrative offset,then the requirements specified in§§ 1450.10 and 1450.11, as applicable, willbe met. The availability of funds for


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offset and the agency determination topurse it release the agency from thenecessity of further compliance withparagraphs (a), (b), and (c) of this sec-tion. If the agency has not already sentthe first demand letter, the agency’swritten notification of its intent to off-set must give the debtor the oppor-tunity to make voluntary payment, arequirement which will be satisfied bycompliance with the notice require-ments of §§ 1450.10 and 1450.11 as appli-cable.

§ 1450.10 Collection by administrativeoffset.

(a) Collection by administrative off-set will be undertaken in accordancewith these regulations on all claimswhich are liquidated or certain inamount, in every instance in whichsuch collection is determined to be fea-sible and not otherwise prohibited.

(1) For purposes of this section, theterm ‘‘administrative offset’’ is thesame as stated in 31 U.S.C. 3716(a)(1).

(2) Whether collection by administra-tive offset is feasible is a determina-tion to be made by the agency on acase-by-case basis, in the exercise ofsound discretion. FMCS will considernot only whether administrative offsetcan be accomplished practically, butalso whether offset is best suited tofurther and protect all of the Govern-ment’s interests. In appropriate cir-cumstances, FMCS may give due con-sideration to the debtor’s financialcondition and is not required to use off-set in every instance in which there isan available source of funds. FMCSmay also consider whether offset wouldtend to substantially interfere with ordefeat the purposes of the program au-thorizing the payments against whichoffset is contemplated. For example,under a grant program in which pay-ments are made in advance of thegrantee’s performance, offset will nor-mally be inappropriate. This conceptgenerally does not apply, however,where payment is in the form of reim-bursement.

(b) Before the offset is made, a debtorshall be provided with the following:Written notice of the nature andamount of the debt, and the agency’sintention to collect by offset; oppor-tunity to inspect and copy agency

records pertaining to the debt; oppor-tunity to obtain review within theagency of the determination of indebt-edness; and opportunity to enter into awritten agreement with the agency torepay the debt. FMCS may also makerequests for offset to other agenciesholding funds payable to the debtor,and process requests for offset that arereceived from other agencies.

(1) FMCS will exercise sound judg-ment in determining whether to accepta repayment agreement in lieu of off-set. The determination will weigh theGovernment’s interest in collecting thedebt against fairness to the debtor. Ifthe debt is delinquent and the debtorhas not disputed its existence oramount, FMCS will normally accept arepayment agreement in lieu of offsetonly if the debtor is able to establishthat offset would result in undue finan-cial hardship or would be against eq-uity and good conscience.

(2) In cases where the procedural re-quirements specified in paragraph (b)of this section have previously beenprovided to the debtor in connectionwith the same debt under § 1450.9, orsome other regulatory or statutory au-thority, such as pursuant to a notice ofaudit allowance, the agency is not re-quired to duplicate those requirementsbefore taking administrative offset.

(3) FMCS may not initiate adminis-trative offset to collect a debt under 31U.S.C. 3716 more than 10 years after theGovernment’s right to collect the debtfirst accrued, unless facts material tothe Government’s right to collect thedebt were not known and could not rea-sonably have been known by the offi-cial or officials of the Government whowere charged with the responsibility todiscover and collect such debts. Whenthe debt first accrued is to be deter-mined according to existing law, re-garding the accrual of debts, such as 28U.S.C. 2415.

(4) FMCS is not authorized by 31U.S.C. 3716 to use administrative offsetwith respect to:

(i) Debts owed by any State or localGovernments;

(ii) Debts arising under or paymentsmade under the Social Security Act,the Internal Revenue Code of 1954, orthe tariff laws of the United States; or


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(iii) Any case in which collection ofthe type of debt involved by adminis-trative offset is explicitly provided foror prohibited by another statute. How-ever, unless otherwise provided by con-tract or law, debts or payments whichare not subject to administrative offsetunder 31 U.S.C. 3716 may be collectedby administrative offset under thecommon law or other applicable statu-tory authority.

(5) FMCS may effect administrativeoffset against a payment to be made toa debtor prior to completion of the pro-cedures required by paragraph (b) ofthis section if:

(i) Failure to take the offset wouldsubstantially prejudice the Govern-ment’s ability to collect the debt, and

(ii) The time before the payment is tobe made does not reasonably permitthe completion of those procedures.Such prior offset must be promptly fol-lowed by the completion of those pro-cedures. Amounts recovered by offsetbut later found not to be owed to theGovernment shall be promptly re-funded.

(6) FMCS will obtain credit reportson delinquent accounts to identify op-portunities for administrative offset ofamounts due to a delinquent debtorwhen other collection techniques havebeen unsuccessful.

(c) Type of hearing or review: (1) Forpurposes of this section, wheneverFMCS is required to provide a hearingor review within the agency, the agen-cy shall provide the debtor with a rea-sonable opportunity for an oral hearingwhen:

(i) An applicable statute authorizesor requires the agency to considerwaiver of the indebtedness involved,the debtor requests waiver of the in-debtedness, and the waiver determina-tion turns on an issue of credibility orveracity; or

(ii) The debtor requests reconsider-ation of the debt and the agency deter-mines that the question of the indebt-edness cannot be resolved by review ofthe documentary evidence, for exam-ple, when the validity of the debt turnson an issue of credibility or veracity.Unless otherwise required by law, anoral hearing under this section is notrequired to be a formal evidentiary-type hearing, although the FMCS will

carefully document all significant mat-ters discussed at the hearing.

(2) This section does not require anoral hearing with respect to debt col-lection systems in which determina-tions of indebtedness or waiver rarelyinvolve issues of credibility or veracityand the agency has determined that re-view of the written record is ordinarilyan adequate means to correct priormistakes. In administering such a sys-tem, the agency is not required to siftthrough all of the requests received inorder to accord oral hearings in thosefew cases which may involve issues ofcredibility or veracity.

(3) In those cases where an oral hear-ing is not required by this section, theagency will make its determination onthe request for waiver or reconsider-ation based upon a ‘‘paper hearing’’that is, a review of the written record.

(d) Appropriate use will be made ofthe cooperative efforts of other agen-cies in effecting collection by adminis-trative offset. Generally, FMCS willnot refuse to comply with requestsfrom other agencies to initiate admin-istrative offset to collect debts owed tothe United States, unless the request-ing agency has not complied with theapplicable provisions of these stand-ards or the offset would be otherwisecontrary to law.

(e) Collection by offset against ajudgment obtained by a debtor againstthe United States shall be accom-plished in accordance with 31 U.S.C.3728.

(f) Whenever the creditor agency isnot the agency which is responsible formaking the payment against which ad-ministrative offset is sought, the latteragency shall not initiate the requestedoffset until it has been provided by thecreditor agency with an appropriatewritten certification that the debtorowes a debt (including the amount) andthat full compliance with the provi-sions of this section has taken place.

(g) When collecting multiple debts byadministrative offset, FMCS will applythe recovered amounts to those debtsin accordance with the best interests ofthe United States, as determined bythe facts and circumstances of the par-ticular case, paying special attentionto applicable statutes of limitations.


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§ 1450.11 Administrative offset againstamounts payable from Civil ServiceRetirement and Disability Fund.

(a) Unless otherwise prohibited bylaw, FMCS may request that moneyswhich are due and payable to a debtorfrom the Civil Service Retirement andDisability Fund be administrativelyoffset in reasonable amounts in orderto collect in one full payment, or aminimal number of payments, debtsowed to the United States by the debt-or. Such requests shall be made to theappropriate officials of the Office ofPersonnel Management in accordancewith such regulations as may be pre-scribed by the Director of that Office.

(b) When making a request for ad-ministrative offset under paragraph (a)of this section, FMCS shall include awritten certification that:

(1) The debtor owes the United Statesa debt, including the amount of thedebt;

(2) The FMCS has complied with theapplicable statutes, regulations, andprocedures of the Office of PersonnelManagement; and

(3) The FMCS has complied with therequirements of § 1450.10 of this sub-part, including any required hearing orreview.

(c) Once FMCS decides to requestadminstrative offset under paragraph(a) of this section, it will make the re-quest as soon as practical after comple-tion of the applicable procedures inorder that the Office of Personnel Man-agement may identify and ‘‘flag’’ thedebtor’s account in anticipation of thetime when the debtor requests or be-come eligible to receive payments fromthe Fund. This will satisfy any require-ment that offset be initiated prior toexpiration of the applicable statute oflimitations. At such time as the debtormakes a claim for payments from theFund, if at least a year has elapsedsince the offset request was originallymade, the debtor should be permittedto offer a satisfactory payment plan inlieu of offset upon establishing thatchanged financial circumstances wouldrender the offset unjust.

(d) If FMCS collects part or all of thedebt by other means before deductionsare made or completed pursuant toparagraph (a) of this section, FMCSshall act promptly to modify or termi-

nate its request for offset under para-graph (a) of this section.

(e) This section does not require orauthorize the Office of Personnel Man-agement to review the merits of theFMCS determination with respect tothe amount and validity of the debt, itsdetermination as to waiver under anapplicable statute, or its determinationto provide or not provide a hearing.

§ 1450.12 Collection in installments.

(a) Whenever feasible, and except asotherwise provided by law, debts owedto the United States, together with in-terest, penalties, and administrativecosts as required by this regulationshould be collected in full in one lumpsum. This is true whether the debt isbeing collected by administrative off-set or by another method, includingvoluntary payment. However, if thedebtor is financially unable to pay theindebtedness in one lump sum, pay-ment may be accepted in regular in-stallments. FMCS will obtain financialstatements from debtors who representthat they are unable to pay the debt inone lump sum. If FMCS agrees to ac-cept payment in regular installmentsit will obtain a legally enforceablewritten agreement from the debtorwhich specifies all of the terms of thearrangement and which contains a pro-vision accelerating the debt in theevent the debtor defaults. The size andfrequency of installment paymentsshould bear a reasonable relation tothe size of the debt and the debtor’sability to pay. If possible, the install-ment payments should be sufficient insize and frequency to liquidate theGovernment’s claim in not more than 3years. Installment payments of lessthan $50 per month will be acceptedonly if justifiable on the grounds of fi-nancial hardship or some other reason-able cause.

(b) If the debtor owes more than onedebt and designates how a voluntaryinstallment payment is to be applied asamong those debts, that designationmust be followed. If the debtor does notdesignate the application of the pay-ment, FMCS will apply payments tovarious debts in accordance with thebest interests of the United States, as


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determined by the facts and cir-cumstances of the particular case, pay-ing special attention to applicablestatutes of limitations.

§ 1450.13 Exploration of compromise.

FMCS may attempt to effect com-promise, preferably during the courseof personal interviews, in accordancewith the standards set forth in part 103of the Federal Claims CollectionStandards (4 CFR part 103).

§ 1450.14 Suspending or terminationcollection action.

The suspension or termination of col-lection action shall be made in accord-ance with the standards set forth inpart 104 of the Federal Claims Collec-tion Standards (4 CFR part 104).

§ 1450.15 Referrals to the Departmentof Justice or the General Account-ing Office.

Referrals to the Department of Jus-tice or the General Accounting Officeshall be made in accordance with thestandards set forth in part 105 of theFederal Claims Collection Standards (4CFR part 105).

§ 1450.16 Use of consumer reportingagencies.

(a) The term individual means a nat-ural person, and the term ‘‘consumerreporting agency’’ has the meaningprovided in the Federal Claims Collec-tion Act, as amended, at 31 U.S.C.3701(a)(3) or the Fair Credit ReportingAct, at 15 U.S.C. 1681a(f).

(b) FMCS may disclose to a consumerreporting agency, from a system ofrecords, information that an individualis responsible for a claim if—

(1) Notice required by section 5U.S.C. 552(a)(e)(4) indicates that infor-mation in the system may be disclosedto a consumer reporting agency;

(2) The claim has been reviewed andit is decided that the claim is valid andoverdue;

(3) FMCS has notified the individualin writing—

(i) That payment of the claim is over-due;

(ii) That, within not less than 60 daysafter sending the notice, FMCS intendsto disclose to a consumer reporting

agency that the individual is respon-sible for that claim;

(iii) Of the specific information to bedisclosed to the consumer reportingagency; and

(iv) Of the rights the individual hasto a complete explanation of the claim,to dispute information in the records ofthe agency about the claim, and to ad-ministrative appeal or review of theclaim; and

(4) The individual has not—(i) Repaid or agreed to repay the

claim under a written repayment planthat the individual has signed and theagency has agreed to; or

(ii) Filed for review of the claimunder paragraph (g) of this section;

(c) FMCS will also—(1) Disclosepromptly, to each consumer reportingagency to which the original disclosurewas made, a substantial change in thecondition or amount of the claim;

(2) Verify or correct promptly infor-mation about the claim, on request ofa consumer reporting agency forverification of information disclosed;and

(3) Get satisfactory assurances fromeach consumer reporting agency thatthey are complying with all laws of theUnited States related to providing con-sumer credit information; and assurethat

(d) The information disclosed to theconsumer reporting agency is limitedto (1) Information necessary to estab-lish the identity of the individual, in-cluding name, address, and taxpayeridentification number;

(2) The amount, status, and historyof the claim; and

(3) The agency or program underwhich the claim arose.

(e) All accounts in excess of $100 thathave been delinquent more than 31days will normally be referred to a con-sumer reporting agency.

(f) Before disclosing information to aconsumer reporting agency FMCS shalltake reasonable action to locate an in-dividual for whom the head of theagency does not have a current addressto send the notice.

(g) Before disclosing information to aconsumer reporting agency FMCS shallprovide, on request of an individual al-leged by the agency to be responsible


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for the claim, a review of the obliga-tion of the individual including an op-portunity for reconsideration of theinitial decision on the claim.

(h) Under the same provisions as de-scribed above in this section, FMCSmay disclose to a credit reportingagency, information relating to a debt-or other than a natural person. Suchcommercial debt accounts are not cov-ered, however, by the Privacy Act.

§ 1450.17 Contracting for collectionservices.

(a) FMCS has authority to contractfor collection services to recover delin-quent debts, provided that the fol-lowing conditions are satisfied;

(1) The authority to resolve disputes,compromise claims, suspend or termi-nate collection action, and refer thematter for litigation is retained by theagency;

(2) The contractor shall be subject tothe Privacy Act of 1974, as amended tothe extent specified in 5 U.S.C. 552a(m),and to applicable Federal and Statelaws and regulations pertaining to debtcollection practices, such as the FairDebt Collection Practices Act, 15U.S.C. 1692;

(3) The contractor must be requiredto account strictly for all amounts col-lected;

(4) The contractor must agree thatuncollectible accounts shall be re-turned with appropriate documenta-tion to enable FMCS to determinewhether to pursue collection throughlitigation or to terminate collection ef-forts, and

(5) The contractor must agree to pro-vide any data contained in its files re-lating to paragraphs (a) (1), (2), and (3)of § 105.2 of the Federal Claims Collec-tion Standards (4 CFR part 105) uponreturning an account to FMCS for sub-sequent referral to the Department ofJustice for litigation.

(b) Funding of collection service con-tracts: (1) FMCS may fund a collectionservice contract on a fixed-fee basis,that is, payment of a fixed fee deter-mined without regard to the amountactually collected under the contract.Payment of the fee under this type ofcontract must be charged to availableagency appropriations.

(2) FMCS may also fund a collectionservice contract on a contingent-feebasis, that is, by including a provisionin the contract permitting the con-tractor to deduct its fee from amountscollected under the contract. The feeshould be based on a percentage of theamount collected, consistent with pre-vailing commercial practice.

(3) FMCS may enter into a contractunder paragraph (b)(1) of this sectiononly if and to the extent provided inadvance in its appropriation acts orother legislation, except that this re-quirement does not apply to the use ofa revolving fund authorized by statute.

(4) Except as authorized under para-graph (b)(2) of this section, or unlessthe receipt qualifies as a refund to theappropriation, or unless otherwise spe-cifically provided by law, FMCS mustdeposit all amounts recovered undercollection service contracts (or byagency employees on behalf of theagency) in the Treasury as miscella-neous receipts pursuant to 31 U.S.C.3302.

(c) FMCS will consider the use of col-lection agencies at any time after theaccount is 61 days past due. In all casesaccounts that are six months or morepast due shall be turned over to a col-lection agency unless referred for liti-gation or unless arrangements havebeen made for a workout procedure, orthe agency has exercised its authorityto write off the debt pursuant to§ 1450.14.

(d) FMCS will generally not use acollection agency to collect a delin-quent debt owed by a currently em-ployed or retired Federal employee, ifcollection by salary or annuity offset isavailable.

Subpart C—Salary Offset

§ 1450.18 Purpose.

This subpart provides the standardsto be followed by FMCS in imple-menting 5 U.S.C. 5514 to recover a debtfrom the pay account of an FMCS em-ployee, and establishes proceduralguidelines to recover debts when theemployee’s creditor and paying agen-cies are not the same.


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§ 1450.19 Scope.(a) Coverage. This subpart applies to

agencies and employees as defined by§ 1450.20.

(b) Applicability. This subpart and 5U.S.C. 5514 apply in recovering certaindebts by offset, except where the em-ployee consents to the recovery, fromthe current pay account of that em-ployee. Because it is an administrativeoffset, debt collection procedures forsalary offset which are not specified inU.S.C. 5514 and these regulationsshould be consistent with the provi-sions of the Federal Claims CollectionStandards (4 CFR parts 101–105).

(1) Excluded debts or claims. The proce-dures contained in this subpart do notapply to debts or claims arising underthe Internal Revenue Code of 1954 asamended (26 U.S.C. 1 et seq.), the SocialSecurity Act (42 U.S.C. 301 et seq.) orthe tariff laws of the United States, orto any case where collection of a debtby salary offset is explicitly providedfor or prohibited by another statute(e.g., travel advances in 5 U.S.C. 5705and employee training expenses in 5U.S.C. 4108).

(2) Waiver requests and claims to theGeneral Accounting Office. This subpartdoes not preclude an employee from re-questing waiver of a salary overpay-ment under 5 U.S.C. 5584, 10 U.S.C. 2774,or 32 U.S.C. 716, or in any way ques-tioning the amount or validity of adebt by submitting a subsequent claimto the General Accounting Office in ac-cordance with procedures prescribed bythe General Accounting Office. Simi-larly, in the case of other types ofdebts, it does not preclude an employeefrom requesting waiver, if waiver isavailable under any statutory provi-sion pertaining to the particular debtbeing collected.

(c) Time limit. Under 4 CFR 102.3(b)(3),offset may not be initiated more than10 years after the Government’s rightto collect the debt first accrued, unlessan exception applies as stated in§ 102.3(b)(3).

§ 1450.20 Definitions.For purposes of this subpart—Agency means the Federal Mediation

and Conciliation Service (FMCS) ormeans any other agency of the U.S.Government as defined by section 105

of title 5 U.S.C., including the U.S.Postal Service, and the U.S. PostalRate Commission, a military depart-ment as defined by section 102 of title5 U.S.C., an agency or court of the judi-cial branch, and an agency of the legis-lative branch, including the U.S. Sen-ate and the U.S. House of Representa-tives.

Creditor agency means the agency towhich the debt is owed.

Debt means an amount owed to theUnited States from sources which in-clude loans insured or guaranteed bythe United States and all otheramounts due the United States fromfees, leases, rents, royalties, services,sales of real or personal property, over-payments, penalties, damages, inter-ests, fines and forfeitures (except thosearising under the Uniform Code Mili-tary Justice), and all other similarsources.

Disposable pay means that part ofcurrent basic pay, special pay, incen-tive pay, retired pay, retainer pay, orin the case of an employee not entitledto basic pay, other authorized pay re-maining after the deduction of anyamount required by law to be withheld.FMCS will exclude deductions de-scribed in 5 CFR 581.105 (b) through (f)to determine disposable pay subject tosalary offset.

Employee means a current employeeof FMCS or of another agency, includ-ing a current member of the ArmedForces or a Reserve of the ArmedForces

FCCS means the Federal Claims Col-lection Standards jointly published bythe Justice Department and the Gen-eral Accounting Office at 4 CFR parts101–105.

Paying agency means the agency em-ploying the individual and authorizingthe payment of his or her current pay.

Salary offset means an administrativeoffset to collect a debt under 5 U.S.C.5514 by deduction(s) at one or more of-ficially established pay intervals fromthe current pay account of an em-ployee without his or her consent.

Waiver means the cancellation, re-mission, forgiveness, or non-recoveryof a debt allegedly owed by an em-ployee to an agency as permitted or re-quired by 5 U.S.C. 5584, 10 U.S.C. 2774,


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or 32 U.S.C. 710, 5 U.S.C. 8346(b), or anyother law.

§ 1450.21 Notification.

(a) Salary offset deductions shall notbe made unless the Director of the Fi-nancial Management Staff of FMCS, orsuch other official as may be named inthe future by the Director of FMCS,provides to the employee—at least 30days before any deduction—a writtennotice stating at a minimum:

(1) The agency’s determination that adebt is owed, including the origin, na-ture, and amount of the debt;

(2) The agency’s intention to collectthe debt by means of deduction fromthe employee’s current disposable payaccount;

(3) The amount, frequency, proposedbeginning date, and duration of the in-tended deductions;

(4) An explanation of the agency’spolicy concerning interest, penalties,and administrative costs (subpart D ofthis regulation), a statement that suchassessment must be made unless ex-cused in accordance with the FCCS;

(5) The employee’s right to inspectand copy Government records relatingto the debt or, if the employee or his orher representative cannot personnallyinspect the records, to request and re-ceive a copy of such records;

(6) If not previously provided, the op-portunity (under terms agreeable tothe agency) to establish a schedule forthe voluntary repayment of the debt orto enter into a written agreement toestablish a schedule for repayment ofthe debt in lieu of offset. The agree-ment must be writing, signed by boththe employee and the Director of theFinancial Management Staff of FMCS,and documented in agency files (4 CFR102.11).

(7) The employee’s right to a hearingconducted by an official arranged bythe agency (an administrative lawjudge or alternatively, a hearing offi-cial not under the control of the headof the agency) if a petition is filed asprescribed by § 1450.22.

(8) The method and time period forpetitioning for a hearing;

(9) That the timely filing of a peti-tion for hearing will stay the com-mencement of collection proceedings;

(10) That a final decision on the hear-ing (if one is requested) will be issuedat the earliest practical date, but notlater than 60 days after the filing of thepetition requesting the hearing unlessthe employee requests and the hearingofficial grants a delay in the pro-ceedings;

(11) That any knowingly false, mis-leading, or frivolous statements, rep-resentations, or evidence may subjectthe employee to:

(i) Disciplinary procedures appro-priate under chapter 75 of title 5,U.S.C., part 752 of title 5, CFR, or anyother applicable status or regulations;

(ii) Penalties under the False ClaimsAct sections 3729–3731 of title 31, U.S.C.,or any other applicable statutory au-thority; or

(iii) Criminal penalties under sec-tions 286, 287, 1001, and 1002 of title 18,U.S.C., or any other applicable statu-tory authority.

(12) Any other right and remediesavailable to the employee under stat-utes or regulations governing the pro-gram for which the collection is beingmade; and

(13) Unless there are applicable con-tractual or statutory provisions to thecontrary, that amounts paid on or de-ducted for the debt which are laterwaived or found not owned to theUnited States will be promptly re-funded to the employee.

(b) Notifications under this sectionshall be hand delivered with a recordmade of the date and time of delivery,or shall be mailed by certified mail re-turn receipt requested.

(c) No notification, hearing, writtenresponses or final decisions under thisregulation are required of FMCS forany adjustment to pay arising out ofan employee’s election of coverageunder a Federal benefit program re-quiring periodic deductions from pay,if the amount to be recovered was ac-cumulated over four pay periods orless.

§ 1450.22 Hearing.

(a) Petition for hearing. (1) A hearingmay be requested by filing a writtenpetition with the Director, FinancialManagement Staff of FMCS, or suchother official as may be named in the


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future by the Director of FMCS, stat-ing why the employee believes the de-termination of the agency concerningthe existence or the amount of the debtis in error.

(2) The employee’s petition must besigned by the employee and fully iden-tify and explain with reasonable speci-ficity all the facts, evidence and wit-nesses, if any, which the employee be-lieves support his or her position.

(3) The petition must be filed no laterthan fifteen (15) calendar days from thedate that the notification was hand de-livered or the date of delivery by cer-tified mail, return receipt requested.

(4) If a petition is received after thefifteen (15) calendar day deadline re-ferred to above, FMCS will neverthe-less accept the petition if the employeecan show that the delay was because ofcircumstances beyond his or her con-trol, or because of failure to receive no-tice of the time limit (unless otherwiseaware of it).

(5) If a petition is not filed within thetime limit specified in paragraph (a)(3)of this section, and is not accepted pur-suant to paragraph (a)(4) of this sec-tion, the employee’s right to hearingwill be considered waived, and salaryoffset will be implemented by FMCS.

(b) Type of hearing. (1) The form andcontent of the hearing will be deter-mined by the hearing official who shallbe a person outside the control or au-thority of FMCS. In determining thetype of hearing, the hearing officer willconsider the nature and complexity ofthe transaction giving rise to the debt.The hearing may be conducted as aninformal conference or interview, inwhich the agency and employee will begiven a full opportunity to presenttheir respective positions, or as a moreformal proceeding involving the pres-entation of evidence, arguments andwritten submissions.

(2) The employee may represent him-self or herself, or may be representedby an attorney.

(3) The hearing official shall main-tain a summary record of the hearing.

(4) The decision of the hearing officerwill be in writing, and will state:

(i) The facts purported to evidencethe nature and origin of the allegeddebt;

(ii) The hearing official’s analysis,findings, and conclusions, in the lightof the hearing, as to—

(A) The employee’s and/or agency’sgrounds,

(B) The amount and validity of thealleged debt and,

(C) The repayment schedule, if appli-cable.

(5) The decision of the hearing offi-cial shall constitute the final adminis-trative decision of the agency.

§ 1450.23 Deduction from pay.(a) Deduction by salary offset, from

an employee’s current disposable pay,shall be subject to the following condi-tions:

(1) Ordinarily, debts to the UnitedStates should be collected in full, inone lump-sum. This will be done whenfunds are available. However, if fundsare unavailable for payment in onelump sum, or if the amount of the debtexceeds 15 percent of disposable pay foran officially established pay interval,collection will normally be made in in-stallments.

(2) The installments shall not exceed15 percent of the disposable pay fromwhich the deduction is made, unlessthe employee has agreed in writing tothe deduction of a greater amount.

(3) Deduction will generally com-mence with the next full pay interval(ordinarily the next biweekly pay pe-riod) following written consent by theemployee to salary offset, waiver ofhearing, or the decision issued by thehearing officer.

(4) Installment deductions must bemade over a period not greater thanthe anticipated period of employmentexcept as provided in § 1450.24.

§ 1450.24 Liquidation from final checkor recovery from other payment.

(a) If the employee retires or resignsor if his or her employment or period ofactive duty ends before collection ofthe debt is completed, offset of the en-tire remaining balance on the debt maybe made from a final payment of anynature, including but not limited to,final salary payment or lump-sumleave due to the employee as of thedate of separation.

(b) If the debt cannot be liquidatedby offset from a final payment, offset


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may be made from later payments ofany kind due from the United States,including, but not limited to, the CivilService Retirement and DisabilityFund, pursuant to § 1450.11 of this regu-lation.

§ 1450.25 Non-waiver of rights by pay-ments.

An employee’s involuntary paymentof all or any portion of a debt beingcollected under 5 U.S.C. 5514 shall notbe construed as a waiver of any rightswhich the employee may have under 5U.S.C. 5514 or any other provision ofcontract or law, unless statutory orcontractual provisions provide to thecontrary.

§ 1450.26 Refunds.(a) Refunds shall promptly be made

when—(1) A debt is waived or otherwise

found not owing to the United States(unless expressly prohibited by statuteor regulation); or

(2) The employee’s paying agency isdirected by an administrative or judi-cial order to refund amounts deductedfrom his or her current pay.

(b) Refunds do not bear interest un-less required or permitted by law orcontract.

§ 1450.27 Interest, penalties, and ad-ministrative costs.

The assessment of interest, penaltiesand administrative costs shall be in ac-cordance with subpart D of this regula-tion.

§ 1450.28 Recovery when paying agen-cy is not creditor agency.

(a) Responsibilities of creditor agency.Upon completion of the procedures es-tablished under 5 U.S.C. 5514, the cred-itor agency must do the following:

(1) The creditor agency must certify,in writing, that the employee owes thedebt, the amont and basis of the debt,the date on which payment(s) is due,the date the Government’s right to col-lect the debt first accrued, and that thecreditor agency’s regulations imple-menting 5 U.S.C. 5514 have been ap-proved by OPM.

(2) If the collection must be made ininstallments, the creditor agency alsomust advise the paying agency of the

number of installments to be collected,the amount of each installment, andthe commencing date of the first in-stallment (if a date other than the nextofficially established pay period is re-quired).

(3) Unless the employee has con-sented to the salary offset in writing orsigned a statement acknowledging re-ceipt of the required procedures, andthe written consent or statement isforwarded to the paying agency, thecreditor agency also must advise thepaying agency of the action(s) takenunder 5 U.S.C. 5514(b) and give thedate(s) the action(s) was taken.

(4) Except as otherwise provided inthis paragraph, the creditor agencymust submit a debt claim containingthe information specified in paragraphs(a) (1) through (3) of this section and aninstallment agreement (or other in-struction on the payment schedule), ifapplicable to the employee’s payingagency.

(5) If the employee is in the processof separating, the creditor agency mustsubmit its claim to the employee’spaying agency for collection pursuantto § 1450.24. The paying agency mustcertify the total amount of its collec-tion and provide copies to the creditoragency and the employee as stated inparagraph (c)(1) of this section. If thepaying agency is aware that the em-ployee is entitled to payments from theCivil Service Retirement and Dis-ability Fund, or other similar pay-ments, it must provide written notifi-cation to the agency responsible formaking such payments that the debtorowes a debt (including the amount) andthat the provisions of this section havebeen fully compiled with. However, thecreditor agency must submit a prop-erly certified claim to the agency re-sponsible for making such paymentsbefore collection can be made.

(6) If the employee is already sepa-rated and all payments from his or herformer paying agency have been paid,the creditor agency may request, un-less otherwise prohibited, that moneydue and payable to the employee fromthe Civil Service Retirement and Dis-ability Fund (5 CFR 831.1801 et seq.), orother similar funds, be administra-tively offset to collect the debt. (31U.S.C. 3716 and 102.4 FCCS.)


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(b) Responsibilities of paying agency—(1) Complete claim. When the payingagency receives a properly certifieddebt claim from a creditor agency, de-ductions should be scheduled to beginprospectively at the next officially es-tablished pay interval. The employeemust receive written notice that thepaying agency has received a certifieddebt claim from the creditor agency(including the amount) and written no-tice of the date deductions from salarywill commence and of the amount ofsuch deductions.

(2) Incomplete claim. When the payingagency receives an incomplete debtclaim from a creditor agency, the pay-ing agency must return the debt claimwith a notice that procedures under 5U.S.C. 5514 and this subpart must beprovided, and a properly certified debtclaim received, before action will betaken to collect from the employee’scurrent pay account.

(3) Review. The paying agency is notrequired or authorized to review themerits of the creditor agency’s deter-mination with respect to the amountor validity of the debt certified by thecreditor agency.

(c) Employees who transfer from onepaying agency to another. (1) If, afterthe creditor agency has submitted thedebt claim to the employee’s payingagency, the employee transfers to a po-sition served by a different payingagency before the debt is collected infull, the paying agency from which theemployee separates must certify thetotal amount of the collection made onthe debt. One copy of the certificationmust be furnished to the employee, an-other to the creditor agency along withnotice of employee’s transfer. However,the creditor agency must submit aproperly certified claim to the newpaying agency before collection can beresumed.

(2) When an employee transfers to an-other paying agency, the creditor agen-cy need not repeat the due process pro-cedures described by 5 U.S.C. 5514 andthis subpart to resume the collection.However, the creditor agency is respon-sible for reviewing the debt upon re-ceiving the former paying agency’s no-tice of the employee’s transfer to makesure the collection is resumed by thenew paying agency.

Subpart D—Interest, Penalties, andAdministrative Costs

§ 1450.29 Assessment.(a) Except as provided in paragraph

(h) of this section, or § 1450.30, FMCSshall assess interest, penalties and ad-ministrative costs on debts owed to theUnited States pursuant to 31 U.S.C.3717. Before assessing these charges,FMCS will mail or hand-deliver a writ-ten notice to the debtor. This noticeshall include a statement of the agen-cy’s requirements concerning thesecharges. (Sections 1450.9 and 1450.21).

(b) Interest shall accrue from thedate on which notice of the debt andthe interest requirements is firstmailed or hand-delivered to the debtor,using the most current address that isavailable to the agency. If FMCSshould use an ‘‘advance billing’’ proce-dure—that is, if it mails a bill beforethe debt is actually owed—it can in-clude the required interest notificationin the advance billing, but interestmay not start to accrue before the debtis actually owed. FMCS will exercisecare to insure that the notices requiredby this section are dated and mailed orhand-delivered on the same day.

(c) The rate of interest assessed shallbe the rate of the current value offunds to the United States Treasury(i.e., the Treasury tax and loan accountrate), as prescribed and published bythe Secretary of the Treasury in theFEDERAL REGISTER and the TreasuryFiscal Requirements Manual Bulletinsannually or quarterly, in accordancewith 31 U.S.C. 3717. FMCS may assess ahigher rate of interest if it reasonablydetermines that a higher rate is nec-essary to protect the interests of theUnited States. The rate of interest, asinitially assessed, shall remain fixedfor the duration of the indebtedness ex-cept that where a debtor has defaultedon a repayment agreement and seeksto enter into a new agreement, FMCSmay set a new interest rate which re-flects the current value of funds to theTreasury at the time the new agree-ment is executed. Interest will not beassessed on interest, penalties, or ad-ministrative costs required by this sec-tion. However, if the debtor defaults ona previous repayment agreement,charges which accrued but were not


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collected under the defaulted agree-ment shall be added to the principal tobe paid under a new repayment agree-ment.

(d) FMCS shall assess against a debt-or charges to cover administrativecosts incurred as a result of a delin-quent debt—that is, the additionalcosts incurred in processing and han-dling the debt because it became delin-quent. Calculation of administrativecosts shall be based upon actual costsincurred or upon cost analyses estab-lishing an average of actual additionalcosts incurred by the agency in proc-essing and handling claims againstother debtors in similar stages of delin-quency. Administrative costs may in-clude costs incurred in obtaining acredit report or in using a private debtcollector, to the extent they are attrib-utable to delinquency.

(e) FMCS shall assess a penaltycharge, not to exceed 6 percent a year,on any portion of a debt that is delin-quent for more than 90 days. Thischarge need not be calculated until the91st day of delinquency, but shallaccure from the date that the debt be-came delinquent.

(f) When a debt is paid in partial orinstallment payments, amounts re-ceived by the agency shall be appliedfirst to outstanding penalty and ad-ministrative cost charges, second toaccrued interest, and third to out-standing principal.

(g) FMCS will waive the collection ofinterest on the debt or any portion ofthe debt which is paid within 30 daysafter the date on which interest beganto accrue. FMCS may extend this 30-day period, on a case-by-case basis, if itreasonably determines that such actionis appropriate. Also, FMCS may waive,in whole or in part, the collection of in-terest, penalties, and/or administrativecosts assessed under this section underthe criteria specified in part 103 of theFederal Claims Collection Standards (4CFR part 103) relating to the com-promise of claims (without regard tothe amount of the debt), or if the agen-cy determines that collection of thesecharges would be against equity andgood conscience, or not in the best in-terests of the United States. Waiverunder the first sentence of this para-graph (g) is mandatory. Under the sec-

ond and third sentences, it may be ex-ercised under the following cir-cumstances:

(1) Waiver of interest pending consid-eration of a request for reconsider-ation, administrative review, or waiverof the underlying debt under a permis-sive statute, and

(2) Waiver of interest where FMCShas accepted an installment plan, thereis no indication of fault or lack of goodfaith on the part of the debtor, and theamount of interest is large enough inrelation to the size of the installmentsthat the debtor can reasonably affordto pay, that the debt will never be re-paid.

(h) Where a mandatory waiver or re-view statute applies, interest and re-lated charges may not be assessed forthose periods during which collectionaction must be suspended under§ 104.2(c)(1) of the Federal Claims Col-lection Standards (4 CFR part 104).

§ 1450.30 Exemptions.(a) The provisions of 31 U.S.C. 3717 to

not apply:(1) To debts owed by any State or

local government;(2) To debts arising under contracts

which were executed prior to, and werein effect on (i.e., were not completed asof), October 25, 1982;

(3) To debts where an applicable stat-ute, regulation required by statute,loan agreement, or contract either pro-hibits such charges or explicitly fixesthe charges that apply to the debtsarising under the Social Security Act,the Internal Revenue Code of 1954, orthe tariff laws of the United States.

(b) However, FMCS is authorized toassess interest and related charges ondebts which are not subject to 31 U.S.C.3717 to the extent authorized under thecommon law or other applicable statu-tory authority.

§ 1450.31 Other sanctions.The sanctions stated in this subpart

are not intended to be exclusive. Othersanctions which may be imposed by theDirector of FMCS include placement ofthe debtor’s name on a list of debarred,suspended or ineligible contractors orgrantees; conversion of method of pay-ment under a grant from an advancepayment method to a reimbursement


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method; or revocation of a letter ofcredit. Notice will be given by FMCS tothe debtor regarding the imposition ofsuch other sanctions.

PART 1470—UNIFORM ADMINIS-TRATIVE REQUIREMENTS FORGRANTS AND COOPERATIVEAGREEMENTS TO STATE ANDLOCAL GOVERNMENTS

Subpart A—General

Sec.1470.1 Purpose and scope of this part.1470.2 Scope of subpart.1470.3 Definitions.1470.4 Applicability.1470.5 Effect on other issuances.1470.6 Additions and exceptions.

Subpart B—Pre-Award Requirements

1470.10 Forms for applying for grants.1470.11 State plans.1470.12 Special grant or subgrant conditions

for ‘‘high-risk’’ grantees.

Subpart C—Post-Award Requirements

FINANCIAL ADMINISTRATION

1470.20 Standards for financial managementsystems.

1470.21 Payment.1470.22 Allowable costs.1470.23 Period of availability of funds.1470.24 Matching or cost sharing.1470.25 Program income.1470.26 Non-Federal audit.

CHANGES, PROPERTY, AND SUBAWARDS

1470.30 Changes.1470.31 Real property.1470.32 Equipment.1470.33 Supplies.1470.34 Copyrights.1470.35 Subawards to debarred and sus-

pended parties.1470.36 Procurement.1470.37 Subgrants.

REPORTS, RECORDS RETENTION, ANDENFORCEMENT

1470.40 Monitoring and reporting programperformance.

1470.41 Financial reporting.1470.42 Retention and access requirements

for records.1470.43 Enforcement.1470.44 Termination for convenience.

Subpart D—After-the-Grant Requirements

1470.50 Closeout.

1470.51 Later disallowances and adjust-ments.

1470.52 Collection of amounts due.

Subpart E—Entitlements [Reserved]

AUTHORITY: 29 U.S.C. 175a.


Subpart A—General§ 1470.1 Purpose and scope of this

part.This part establishes uniform admin-

istrative rules for Federal grants andcooperative agreements and subawardsto State, local and Indian tribal gov-ernments.

§ 1470.2 Scope of subpart.This subpart contains general rules

pertaining to this part and proceduresfor control of exceptions from thispart.

§ 1470.3 Definitions.As used in this part:Accrued expenditures mean the

charges incurred by the grantee duringa given period requiring the provisionof funds for: (1) Goods and other tan-gible property received; (2) servicesperformed by employees, contractors,subgrantees, subcontractors, and otherpayees; and (3) other amounts becom-ing owed under programs for which nocurrent services or performance is re-quired, such as annuities, insuranceclaims, and other benefit payments.

Accrued income means the sum of: (1)Earnings during a given period fromservices performed by the grantee andgoods and other tangible property de-livered to purchasers, and (2) amountsbecoming owed to the grantee forwhich no current services or perform-ance is required by the grantee.

Acquisition cost of an item of pur-chased equipment means the net in-voice unit price of the property includ-ing the cost of modifications, attach-ments, accessories, or auxiliary appa-ratus necessary to make the propertyusable for the purpose for which it wasacquired. Other charges such as thecost of installation, transportation,taxes, duty or protective in-transit in-surance, shall be included or excluded


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from the unit acquisition cost in ac-cordance with the grantee’s regular ac-counting practices.

Administrative requirements meanthose matters common to grants ingeneral, such as financial management,kinds and frequency of reports, and re-tention of records. These are distin-guished from programmatic require-ments, which concern matters that canbe treated only on a program-by-pro-gram or grant-by-grant basis, such askinds of activities that can be sup-ported by grants under a particularprogram.

Awarding agency means (1) with re-spect to a grant, the Federal agency,and (2) with respect to a subgrant, theparty that awarded the subgrant.

Cash contributions means the grant-ee’s cash outlay, including the outlayof money contributed to the grantee orsubgrantee by other public agenciesand institutions, and private organiza-tions and individuals. When authorizedby Federal legislation, Federal fundsreceived from other assistance agree-ments may be considered as grantee orsubgrantee cash contributions.

Contract means (except as used in thedefinitions for grant and subgrant inthis section and except where qualifiedby Federal) a procurement contractunder a grant or subgrant, and means aprocurement subcontract under a con-tract.

Cost sharing or matching means thevalue of the third party in-kind con-tributions and the portion of the costsof a federally assisted project or pro-gram not borne by the Federal Govern-ment.

Cost-type contract means a contract orsubcontract under a grant in which thecontractor or subcontractor is paid onthe basis of the costs it incurs, with orwithout a fee.

Equipment means tangible, non-expendable, personal property having auseful life of more than one year andan acquisition cost of $5,000 or moreper unit. A grantee may use its owndefinition of equipment provided thatsuch definition would at least includeall equipment defined above.

Expenditure report means: (1) For non-construction grants, the SF–269 ‘‘Fi-nancial Status Report’’ (or other equiv-alent report); (2) for construction

grants, the SF–271 ‘‘Outlay Report andRequest for Reimbursement’’ (or otherequivalent report).

Federally recognized Indian tribal gov-ernment means the governing body or agovernmental agency of any Indiantribe, band, nation, or other organizedgroup or community (including anyNative village as defined in section 3 ofthe Alaska Native Claims SettlementAct, 85 Stat 688) certified by the Sec-retary of the Interior as eligible for thespecial programs and services providedby him through the Bureau of IndianAffairs.

Government means a State or localgovernment or a federally recognizedIndian tribal government.

Grant means an award of financial as-sistance, including cooperative agree-ments, in the form of money, or prop-erty in lieu of money, by the FederalGovernment to an eligible grantee. Theterm does not include technical assist-ance which provides services instead ofmoney, or other assistance in the formof revenue sharing, loans, loan guaran-tees, interest subsidies, insurance, ordirect appropriations. Also, the termdoes not include assistance, such as afellowship or other lump sum award,which the grantee is not required to ac-count for.

Grantee means the government towhich a grant is awarded and which isaccountable for the use of the fundsprovided. The grantee is the entirelegal entity even if only a particularcomponent of the entity is designatedin the grant award document.

Local government means a county,municipality, city, town, township,local public authority (including anypublic and Indian housing agencyunder the United States Housing Act of1937) school district, special district,intrastate district, council of govern-ments (whether or not incorporated asa nonprofit corporation under Statelaw), any other regional or interstategovernment entity, or any agency orinstrumentality of a local government.

Obligations means the amounts of or-ders placed, contracts and subgrantsawarded, goods and services received,and similar transactions during a givenperiod that will require payment bythe grantee during the same or a futureperiod.


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OMB means the United States Officeof Management and Budget.

Outlays (expenditures) mean chargesmade to the project or program. Theymay be reported on a cash or accrualbasis. For reports prepared on a cashbasis, outlays are the sum of actualcash disbursement for direct chargesfor goods and services, the amount ofindirect expense incurred, the value ofin-kind contributions applied, and theamount of cash advances and paymentsmade to contractors and subgrantees.For reports prepared on an accrued ex-penditure basis, outlays are the sum ofactual cash disbursements, the amountof indirect expense incurred, the valueof inkind contributions applied, andthe new increase (or decrease) in theamounts owed by the grantee for goodsand other property received, for serv-ices performed by employees, contrac-tors, subgrantees, subcontractors, andother payees, and other amounts be-coming owed under programs for whichno current services or performance arerequired, such as annuities, insuranceclaims, and other benefit payments.

Percentage of completion method refersto a system under which payments aremade for construction work accordingto the percentage of completion of thework, rather than to the grantee’s costincurred.

Prior approval means documentationevidencing consent prior to incurringspecific cost.

Real property means land, includingland improvements, structures and ap-purtenances thereto, excluding mov-able machinery and equipment.

Share, when referring to the awardingagency’s portion of real property,equipment or supplies, means the samepercentage as the awarding agency’sportion of the acquiring party’s totalcosts under the grant to which the ac-quisition costs under the grant towhich the acquisition cost of the prop-erty was charged. Only costs are to becounted—not the value of third-partyin-kind contributions.

State means any of the several Statesof the United States, the District ofColumbia, the Commonwealth of Puer-to Rico, any territory or possession ofthe United States, or any agency or in-strumentality of a State exclusive oflocal governments. The term does not

include any public and Indian housingagency under United States HousingAct of 1937.

Subgrant means an award of financialassistance in the form of money, orproperty in lieu of money, made undera grant by a grantee to an eligible sub-grantee. The term includes financialassistance when provided by contrac-tual legal agreement, but does not in-clude procurement purchases, nor doesit include any form of assistance whichis excluded from the definition of grantin this part.

Subgrantee means the government orother legal entity to which a subgrantis awarded and which is accountable tothe grantee for the use of the fundsprovided.

Supplies means all tangible personalproperty other than equipment as de-fined in this part.

Suspension means depending on thecontext, either (1) temporary with-drawal of the authority to obligategrant funds pending corrective actionby the grantee or subgrantee or a deci-sion to terminate the grant, or (2) anaction taken by a suspending official inaccordance with agency regulationsimplementing E.O. 12549 to imme-diately exclude a person from partici-pating in grant transactions for a pe-riod, pending completion of an inves-tigation and such legal or debarmentproceedings as may ensue.

Termination means permanent with-drawal of the authority to obligate pre-viously-awarded grant funds beforethat authority would otherwise expire.It also means the voluntary relinquish-ment of that authority by the granteeor subgrantee. Termination does not in-clude:

(1) Withdrawal of funds awarded onthe basis of the grantee’s underesti-mate of the unobligated balance in aprior period;

(2) Withdrawal of the unobligatedbalance as of the expiration of a grant;

(3) Refusal to extend a grant oraward additional funds, to make a com-peting or noncompeting continuation,renewal, extension, or supplementalaward; or

(4) Voiding of a grant upon deter-mination that the award was obtainedfraudulently, or was otherwise illegalor invalid from inception.


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Terms of a grant or subgrant mean allrequirements of the grant or subgrant,whether in statute, regulations, or theaward document.

Third party in-kind contributions meanproperty or services which benefit afederally assisted project or programand which are contributed by non-Fed-eral third parties without charge to thegrantee, or a cost-type contractorunder the grant agreement.

Unliquidated obligations for reportsprepared on a cash basis mean theamount of obligations incurred by thegrantee that has not been paid. For re-ports prepared on an accrued expendi-ture basis, they represent the amountof obligations incurred by the granteefor which an outlay has not been re-corded.

Unobligated balance means the por-tion of the funds authorized by theFederal agency that has not been obli-gated by the grantee and is determinedby deducting the cumulative obliga-tions from the cumulative funds au-thorized.

§ 1470.4 Applicability.(a) General. Subparts A through D of

this part apply to all grants and sub-grants to governments, except whereinconsistent with Federal statutes orwith regulations authorized in accord-ance with the exception provision of§ 1470.6, or:

(1) Grants and subgrants to State andlocal institutions of higher educationor State and local hospitals.

(2) The block grants authorized bythe Omnibus Budget ReconciliationAct of 1981 (Community Services; Pre-ventive Health and Health Services; Al-cohol, Drug Abuse, and Mental HealthServices; Maternal and Child HealthServices; Social Services; Low-IncomeHome Energy Assistance; States’ Pro-gram of Community DevelopmentBlock Grants for Small Cities; and Ele-mentary and Secondary Educationother than programs administered bythe Secretary of Education under titleV, subtitle D, chapter 2, section 583—the Secretary’s discretionary grantprogram) and titles I–III of the JobTraining Partnership Act of 1982 andunder the Public Health Services Act(section 1921), Alcohol and Drug AbuseTreatment and Rehabilitation Block

Grant and part C of title V, MentalHealth Service for the Homeless BlockGrant).

(3) Entitlement grants to carry outthe following programs of the SocialSecurity Act:

(i) Aid to Needy Families with De-pendent Children (title IV–A of theAct, not including the Work IncentiveProgram (WIN) authorized by section402(a)19(G); HHS grants for WIN aresubject to this part);

(ii) Child Support Enforcement andEstablishment of Paternity (title IV–Dof the Act);

(iii) Foster Care and Adoption Assist-ance (title IV–E of the Act);

(iv) Aid to the Aged, Blind, and Dis-abled (titles I, X, XIV, and XVI–AABDof the Act); and

(v) Medical Assistance (Medicaid)(title XIX of the Act) not including theState Medicaid Fraud Control programauthorized by section 1903(a)(6)(B).

(4) Entitlement grants under the fol-lowing programs of The NationalSchool Lunch Act:

(i) School Lunch (section 4 of theAct),

(ii) Commodity Assistance (section 6of the Act),

(iii) Special Meal Assistance (section11 of the Act),

(iv) Summer Food Service for Chil-dren (section 13 of the Act), and

(v) Child Care Food Program (section17 of the Act).

(5) Entitlement grants under the fol-lowing programs of The Child Nutri-tion Act of 1966:

(i) Special Milk (section 3 of the Act),and

(ii) School Breakfast (section 4 of theAct).

(6) Entitlement grants for State Ad-ministrative expenses under The FoodStamp Act of 1977 (section 16 of theAct).

(7) A grant for an experimental, pilot,or demonstration project that is alsosupported by a grant listed in para-graph (a)(3) of this section;

(8) Grant funds awarded under sub-section 412(e) of the Immigration andNationality Act (8 U.S.C. 1522(e)) andsubsection 501(a) of the Refugee Edu-cation Assistance Act of 1980 (Pub. L.


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96–422, 94 Stat. 1809), for cash assist-ance, medical assistance, and supple-mental security income benefits to ref-ugees and entrants and the administra-tive costs of providing the assistanceand benefits;

(9) Grants to local education agenciesunder 20 U.S.C. 236 through 241–1(a),and 242 through 244 (portions of the Im-pact Aid program), except for 20 U.S.C.238(d)(2)(c) and 240(f) (Entitlement In-crease for Handicapped Children); and

(10) Payments under the VeteransAdministration’s State Home Per DiemProgram (38 U.S.C. 641(a)).

(b) Entitlement programs. Entitlementprograms enumerated above in§ 1470.4(a) (3) through (8) are subject tosubpart E.

§ 1470.5 Effect on other issuances.All other grants administration pro-

visions of codified program regula-tions, program manuals, handbooksand other nonregulatory materialswhich are inconsistent with this partare superseded, except to the extentthey are required by statute, or au-thorized in accordance with the excep-tion provision in § 1470.6.

§ 1470.6 Additions and exceptions.(a) For classes of grants and grantees

subject to this part, Federal agenciesmay not impose additional administra-tive requirements except in codifiedregulations published in the FEDERALREGISTER.

(b) Exceptions for classes of grants orgrantees may be authorized only byOMB.

(c) Exceptions on a case-by-case basisand for subgrantees may be authorizedby the affected Federal agencies.

Subpart B—Pre-AwardRequirements

§ 1470.10 Forms for applying forgrants.

(a) Scope. (1) This section prescribesforms and instructions to be used bygovernmental organizations (excepthospitals and institutions of highereducation operated by a government)in applying for grants. This section isnot applicable, however, to formulagrant programs which do not require

applicants to apply for funds on aproject basis.

(2) This section applies only to appli-cations to Federal agencies for grants,and is not required to be applied bygrantees in dealing with applicants forsubgrants. However, grantees are en-couraged to avoid more detailed or bur-densome application requirements forsubgrants.

(b) Authorized forms and instructionsfor governmental organizations. (1) In ap-plying for grants, applicants shall onlyuse standard application forms or thoseprescribed by the granting agency withthe approval of OMB under the Paper-work Reduction Act of 1980.

(2) Applicants are not required tosubmit more than the original and twocopies of preapplications or applica-tions.

(3) Applicants must follow all appli-cable instructions that bear OMBclearance numbers. Federal agenciesmay specify and describe the programs,functions, or activities that will beused to plan, budget, and evaluate thework under a grant. Other supple-mentary instructions may be issuedonly with the approval of OMB to theextent required under the PaperworkReduction Act of 1980. For any stand-ard form, except the SF–424 facesheet,Federal agencies may shade out or in-struct the applicant to disregard anyline item that is not needed.

(4) When a grantee applies for addi-tional funding (such as a continuationor supplemental award) or amends apreviously submitted application, onlythe affected pages need be submitted.Previously submitted pages with infor-mation that is still current need not beresubmitted.

§ 1470.11 State plans.

(a) Scope. The statutes for some pro-grams require States to submit plansbefore receiving grants. Under regula-tions implementing Executive Order12372, ‘‘Intergovernmental Review ofFederal Programs,’’ States are allowedto simplify, consolidate and substituteplans. This section contains additionalprovisions for plans that are subject toregulations implementing the Execu-tive order.


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(b) Requirements. A State need meetonly Federal administrative or pro-grammatic requirements for a planthat are in statutes or codified regula-tions.

(c) Assurances. In each plan the Statewill include an assurance that theState shall comply with all applicableFederal statutes and regulations in ef-fect with respect to the periods forwhich it receives grant funding. Forthis assurance and other assurances re-quired in the plan, the State may:

(1) Cite by number the statutory orregulatory provisions requiring the as-surances and affirm that it gives theassurances required by those provi-sions,

(2) Repeat the assurance language inthe statutes or regulations, or

(3) Develop its own language to theextent permitted by law.

(d) Amendments. A State will amend aplan whenever necessary to reflect: (1)New or revised Federal statutes or reg-ulations or (2) a material change in anyState law, organization, policy, orState agency operation. The State willobtain approval for the amendment andits effective date but need submit forapproval only the amended portions ofthe plan.

§ 1470.12 Special grant or subgrantconditions for ‘‘high-risk’’ grantees.

(a) A grantee or subgrantee may beconsidered ‘‘high risk’’ if an awardingagency determines that a grantee orsubgrantee:

(1) Has a history of unsatisfactoryperformance, or

(2) Is not financially stable, or(3) Has a management system which

does not meet the management stand-ards set forth in this part, or

(4) Has not conformed to terms andconditions of previous awards, or

(5) Is otherwise not responsible; andif the awarding agency determines thatan award will be made, special condi-tions and/or restrictions shall cor-respond to the high risk condition andshall be included in the award.

(b) Special conditions or restrictionsmay include:

(1) Payment on a reimbursementbasis;

(2) Withholding authority to proceedto the next phase until receipt of evi-

dence of acceptable performance withina given funding period;

(3) Requiring additional, more de-tailed financial reports;

(4) Additional project monitoring;(5) Requiring the grante or sub-

grantee to obtain technical or manage-ment assistance; or

(6) Establishing additional prior ap-provals.

(c) If an awarding agency decides toimpose such conditions, the awardingofficial will notify the grantee or sub-grantee as early as possible, in writing,of:

(1) The nature of the special condi-tions/restrictions;

(2) The reason(s) for imposing them;(3) The corrective actions which must

be taken before they will be removedand the time allowed for completingthe corrective actions and

(4) The method of requesting recon-sideration of the conditions/restric-tions imposed.

Subpart C—Post-AwardRequirements

FINANCIAL ADMINISTRATION

§ 1470.20 Standards for financial man-agement systems.

(a) A State must expand and accountfor grant funds in accordance withState laws and procedures for expend-ing and accounting for its own funds.Fiscal control and accounting proce-dures of the State, as well as its sub-grantees and cost-type contractors,must be sufficient to—

(1) Permit preparation of reports re-quired by this part and the statutes au-thorizing the grant, and

(2) Permit the tracing of funds to alevel of expenditures adequate to es-tablish that such funds have not beenused in violation of the restrictionsand prohibitions of applicable statutes.

(b) The financial management sys-tems of other grantees and subgranteesmust meet the following standards:

(1) Financial reporting. Accurate, cur-rent, and complete disclosure of the fi-nancial results of financially assistedactivities must be made in accordancewith the financial reporting require-ments of the grant or subgrant.


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(2) Accounting records. Grantees andsubgrantees must maintain recordswhich adequately identify the sourceand application of funds provided for fi-nancially-assisted activities. Theserecords must contain information per-taining to grant or subgrant awardsand authorizations, obligations, unobli-gated balances, assets, liabilities, out-lays or expenditures, and income.

(3) Internal control. Effective controland accountability must be maintainedfor all grant and subgrant cash, realand personal property, and other as-sets. Grantees and subgrantees mustadequately safeguard all such propertyand must assure that it is used solelyfor authorized purposes.

(4) Budget control. Actual expendi-tures or outlays must be comparedwith budgeted amounts for each grantor subgrant. Financial informationmust be related to performance or pro-ductivity data, including the develop-ment of unit cost information when-ever appropriate or specifically re-quired in the grant or subgrant agree-ment. If unit cost data are required, es-timates based on available documenta-tion will be accepted whenever pos-sible.

(5) Allowable cost. Applicable OMBcost principles, agency program regula-tions, and the terms of grant andsubgrant agreements will be followedin determining the reasonableness, al-lowability, and allocability of costs.

(6) Source documentation. Accountingrecords must be supported by suchsource documentation as cancelledchecks, paid bills, payrolls, time andattendance records, contract andsubgrant award documents, etc.

(7) Cash management. Procedures forminimizing the time elapsing betweenthe transfer of funds from the U.S.Treasury and disbursement by granteesand subgrantees must be followedwhenever advance payment proceduresare used. Grantees must establish rea-sonable procedures to ensure the re-ceipt of reports on subgrantees’ cashbalances and cash disbursements insufficient time to enable them to pre-pare complete and accurate cash trans-actions reports to the awarding agen-cy. When advances are made by letter-of-credit or electronic transfer of fundsmethods, the grantee must make

drawdowns as close as possible to thetime of making disbursements. Grant-ees must monitor cash drawdowns bytheir subgrantees to assure that theyconform substantially to the samestandards of timing and amount asapply to advances to the grantees.

(c) An awarding agency may reviewthe adequacy of the financial manage-ment system of any applicant for fi-nancial assistance as part of apreaward review or at any time subse-quent to award.

§ 1470.21 Payment.

(a) Scope. This section prescribes thebasic standard and the methods underwhich a Federal agency will make pay-ments to grantees, and grantees willmake payments to subgrantees andcontractors.

(b) Basic standard. Methods and pro-cedures for payment shall minimizethe time elapsing between the transferof funds and disbursement by thegrantee or subgrantee, in accordancewith Treasury regulations at 31 CFRpart 205.

(c) Advances. Grantees and sub-grantees shall be paid in advance, pro-vided they maintain or demonstratethe willingness and ability to maintainprocedures to minimize the time elaps-ing between the transfer of the fundsand their disbursement by the granteeor subgrantee.

(d) Reimbursement. Reimbursementshall be the preferred method when therequirements in paragraph (c) of thissection are not met. Grantees and sub-grantees may also be paid by reim-bursement for any construction grant.Except as otherwise specified in regula-tion, Federal agencies shall not use thepercentage of completion method topay construction grants. The granteeor subgrantee may use that method topay its construction contractor, and ifit does, the awarding agency’s pay-ments to the grantee or subgranteewill be based on the grantee’s or sub-grantee’s actual rate of disbursement.

(e) Working capital advances. If agrantee cannot meet the criteria foradvance payments described in para-graph (c) of this section, and the Fed-eral agency has determined that reim-bursement is not feasible because the


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grantee lacks sufficient working cap-ital, the awarding agency may providecash or a working capital advancebasis. Under this procedure the award-ing agency shall advance cash to thegrantee to cover its estimated dis-bursement needs for an initial periodgenerally geared to the grantee’s dis-bursing cycle. Thereafter, the awardingagency shall reimburse the grantee forits actual cash disbursements. Theworking capital advance method ofpayment shall not be used by granteesor subgrantees if the reason for usingsuch method is the unwillingness or in-ability of the grantee to provide timelyadvances to the subgrantee to meet thesubgrantee’s actual cash disburse-ments.

(f) Effect of program income, refunds,and audit recoveries on payment. (1)Grantees and subgrantees shall dis-burse repayments to and interestearned on a revolving fund before re-questing additional cash payments forthe same activity.

(2) Except as provided in paragraph(f)(1) of this section, grantees and sub-grantees shall disburse program in-come, rebates, refunds, contract settle-ments, audit recoveries and interestearned on such funds before requestingadditional cash payments.

(g) Withholding payments. (1) Unlessotherwise required by Federal statute,awarding agencies shall not withholdpayments for proper charges incurredby grantees or subgrantees unless—

(i) The grantee or subgrantee hasfailed to comply with grant award con-ditions or

(ii) The grantee or subgrantee is in-debted to the United States.

(2) Cash withheld for failure to com-ply with grant award condition, butwithout suspension of the grant, shallbe released to the grantee upon subse-quent compliance. When a grant is sus-pended, payment adjustments will bemade in accordance with § 1470.43(c).

(3) A Federal agency shall not makepayment to grantees for amounts thatare withheld by grantees or sub-grantees from payment to contractorsto assure satisfactory completion ofwork. Payments shall be made by theFederal agency when the grantees orsubgrantees actually disburse the with-held funds to the contractors or to es-

crow accounts established to assuresatisfactory completion of work.

(h) Cash depositories. (1) Consistentwith the national goal of expanding theopportunities for minority business en-terprises, grantees and subgrantees areencouraged to use minority banks (abank which is owned at least 50 percentby minority group members). A list ofminority owned banks can be obtainedfrom the Minority Business Develop-ment Agency, Department of Com-merce, Washington, DC 20230.

(2) A grantee or subgrantee shallmaintain a separate bank account onlywhen required by Federal-State agree-ment.

(i) Interest earned on advances. Exceptfor interest earned on advances offunds exempt under the Intergovern-mental Cooperation Act (31 U.S.C. 6501et seq.) and the Indian Self-Determina-tion Act (23 U.S.C. 450), grantees andsubgrantees shall promptly, but atleast quarterly, remit interest earnedon advances to the Federal agency. Thegrantee or subgrantee may keep inter-est amounts up to $100 per year for ad-ministrative expenses.

§ 1470.22 Allowable costs.

(a) Limitation on use of funds. Grantfunds may be used only for:

(1) The allowable costs of the grant-ees, subgrantees and cost-type contrac-tors, including allowable costs in theform of payments to fixed-price con-tractors; and

(2) Reasonable fees or profit to cost-type contractors but not any fee orprofit (or other increment above allow-able costs) to the grantee or sub-grantee.

(b) Applicable cost principles. For eachkind of organization, there is a set ofFederal principles for determining al-lowable costs. Allowable costs will bedetermined in accordance with the costprinciples applicable to the organiza-tion incurring the costs. The followingchart lists the kinds of organizationsand the applicable cost principles.

For the costs of a— Use the principles in—

State, local or Indian tribalgovernment.

OMB Circular A–87.


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For the costs of a— Use the principles in—

Private nonprofit organizationother than an (1) institutionof higher education, (2)hospital, or (3) organizationnamed in OMB Circular A–122 as not subject to thatcircular.

OMB Circular A–122.

Educational institutions. ......... OMB Circular A–21.For-profit organization other

than a hospital and an or-ganization named in OBMCircular A–122 as not sub-ject to that circular.

48 CFR part 31. ContractCost Principles and Proce-dures, or uniform cost ac-counting standards thatcomply with cost principlesacceptable to the Federalagency.

§ 1470.23 Period of availability offunds.

(a) General. Where a funding period isspecified, a grantee may charge to theaward only costs resulting from obliga-tions of the funding period unless car-ryover of unobligated balances is per-mitted, in which case the carryoverbalances may be charged for costs re-sulting from obligations of the subse-quent funding period.

(b) Liquidation of obligations. A grant-ee must liquidate all obligations in-curred under the award not later than90 days after the end of the funding pe-riod (or as specified in a program regu-lation) to coincide with the submissionof the annual Financial Status Report(SF–269). The Federal agency may ex-tend this deadline at the request of thegrantee.

§ 1470.24 Matching or cost sharing.(a) Basic rule: Costs and contributions

acceptable. With the qualifications andexceptions listed in paragraph (b) ofthis section, a matching or cost shar-ing requirement may be satisfied by ei-ther or both of the following:

(1) Allowable costs incurred by thegrantee, subgrantee or a cost-type con-tractor under the assistance agree-ment. This includes allowable costsborne by non-Federal grants or by oth-ers cash donations from non-Federalthird parties.

(2) The value of third party in-kindcontributions applicable to the periodto which the cost sharing or matchingrequirements applies.

(b) Qualifications and exceptions—(1)Costs borne by other Federal grant agree-ments. Except as provided by Federalstatute, a cost sharing or matching re-

quirement may not be met by costsborne by another Federal grant. Thisprohibition does not apply to incomeearned by a grantee or subgrantee froma contract awarded under another Fed-eral grant.

(2) General revenue sharing. For thepurpose of this section, general revenuesharing funds distributed under 31U.S.C. 6702 are not considered Federalgrant funds.

(3) Cost or contributions counted to-wards other Federal costs-sharing require-ments. Neither costs nor the values ofthird party in-kind contributions maycount towards satisfying a cost sharingor matching requirement of a grantagreement if they have been or will becounted towards satisfying a cost shar-ing or matching requirement of an-other Federal grant agreement, a Fed-eral procurement contract, or anyother award of Federal funds.

(4) Costs financed by program income.Costs financed by program income, asdefined in § 1470.25, shall not count to-wards satisfying a cost sharing ormatching requirement unless they areexpressly permitted in the terms of theassistance agreement. (This use of gen-eral program income is described in§ 1470.25(g).)

(5) Services or property financed by in-come earned by contractors. Contractorsunder a grant may earn income fromthe activities carried out under thecontract in addition to the amountsearned from the party awarding thecontract. No costs of services or prop-erty supported by this income maycount toward satisfying a cost sharingor matching requirement unless otherprovisions of the grant agreement ex-pressly permit this kind of income tobe used to meet the requirement.

(6) Records. Costs and third party in-kind contributions counting towardssatisfying a cost sharing or matchingrequirement must be verifiable fromthe records of grantees and subgranteeor cost-type contractors. These recordsmust show how the value placed onthird party in-kind contributions wasderived. To the extent feasible, volun-teer services will be supported by thesame methods that the organizationuses to support the allocability of reg-ular personnel costs.


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(7) Special standards for third party in-kind contributions. (i) Third party in-kind contributions count towards sat-isfying a cost sharing or matching re-quirement only where, if the party re-ceiving the contributions were to payfor them, the payments would be allow-able costs.

(ii) Some third party in-kind con-tributions are goods and services that,if the grantee, subgrantee, or con-tractor receiving the contribution hadto pay for them, the payments wouldhave been an indirect costs. Costs shar-ing or matching credit for such con-tributions shall be given only if thegrantee, subgrantee, or contractor hasestablished, along with its regular indi-rect cost rate, a special rate for allo-cating to individual projects or pro-grams the value of the contributions.

(iii) A third party in-kind contribu-tion to a fixed-price contract maycount towards satisfying a cost sharingor matching requirement only if it re-sults in:

(A) An increase in the services orproperty provided under the contract(without additional cost to the granteeor subgrantee) or

(B) A cost savings to the grantee orsubgrantee.

(iv) The values placed on third partyin-kind contributions for cost sharingor matching purposes will conform tothe rules in the succeeding sections ofthis part. If a third party in-kind con-tribution is a type not treated in thosesections, the value placed upon it shallbe fair and reasonable.

(c) Valuation of donated services—(1)Volunteer services. Unpaid services pro-vided to a grantee or subgrantee by in-dividuals will be valued at rates con-sistent with those ordinarily paid forsimilar work in the grantee’s or sub-grantee’s organization. If the granteeor subgrantee does not have employeesperforming similar work, the rates willbe consistent with those ordinarilypaid by other employers for similarwork in the same labor market. In ei-ther case, a reasonable amount forfringe benefits may be included in thevaluation.

(2) Employees of other organizations.When an employer other than a grant-ee, subgrantee, or cost-type contractorfurnishes free of charge the services of

an employee in the employee’s normalline of work, the services will be valuedat the employee’s regular rate of payexclusive of the employee’s fringe ben-efits and overhead costs. If the servicesare in a different line of work, para-graph (c)(1) of this section applies.

(d) Valuation of third party donatedsupplies and loaned equipment or space.(1) If a third party donates supplies,the contribution will be valued at themarket value of the supplies at thetime of donation.

(2) If a third party donates the use ofequipment or space in a building butretains title, the contribution will bevalued at the fair rental rate of theequipment or space.

(e) Valuation of third party donatedequipment, buildings, and land. If a thirdparty donates equipment, buildings, orland, and title passes to a grantee orsubgrantee, the treatment of the do-nated property will depend upon thepurpose of the grant or subgrant, asfollows:

(1) Awards for capital expenditures. Ifthe purpose of the grant or subgrant isto assist the grantee or subgrantee inthe acquisition of property, the marketvalue of that property at the time ofdonation may be counted as cost shar-ing or matching,

(2) Other awards. If assisting in theacquisition of property is not the pur-pose of the grant or subgrant, para-graphs (e)(2) (i) and (ii) of this sectionapply:

(i) If approval is obtained from theawarding agency, the market value atthe time of donation of the donatedequipment or buildings and the fairrental rate of the donated land may becounted as cost sharing or matching.In the case of a subgrant, the terms ofthe grant agreement may require thatthe approval be obtained from the Fed-eral agency as well as the grantee. Inall cases, the approval may be givenonly if a purchase of the equipment orrental of the land would be approved asan allowable direct cost. If any part ofthe donated property was acquiredwith Federal funds, only the non-Fed-eral share of the property may becounted as cost-sharing or matching.

(ii) If approval is not obtained underparagraph (e)(2)(i) of this section, noamount may be counted for donated


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land, and only depreciation or use al-lowances may be counted for donatedequipment and buildings. The deprecia-tion or use allowances for this propertyare not treated as third party in-kindcontributions. Instead, they are treat-ed as costs incurred by the grantee orsubgrantee. They are computed and al-located (usually as indirect costs) inaccordance with the cost principlesspecified in § 1470.22, in the same way asdepreciation or use allowances for pur-chased equipment and buildings. Theamount of depreciation or use allow-ances for donated equipment and build-ings is based on the property’s marketvalue at the time it was donated.

(f) Valuation of grantee or subgranteedonated real property for construction/ac-quisition. If a grantee or subgrantee do-nates real property for a constructionor facilities acquisition project, thecurrent market value of that propertymay be counted as cost sharing ormatching. If any part of the donatedproperty was acquired with Federalfunds, only the non-Federal share ofthe property may be counted as costsharing or matching.

(g) Appraisal of real property. In somecases under paragraphs (d), (e) and (f)of this section, it will be necessary toestablish the market value of land or abuilding or the fair rental rate of landor of space in a building. In these cases,the Federal agency may require themarket value or fair rental value be setby an independent appraiser, and thatthe value or rate be certified by thegrantee. This requirement will also beimposed by the grantee on subgrantees.

§ 1470.25 Program income.(a) General. Grantees are encouraged

to earn income to defray programcosts. Program income includes incomefrom fees for services performed, fromthe use or rental of real or personalproperty acquired with grant funds,from the sale of commodities or itemsfabricated under a grant agreement,and from payments of principal and in-terest on loans made with grant funds.Except as otherwise provided in regula-tions of the Federal agency, programincome does not include interest ongrant funds, rebates, credits, discounts,refunds, etc. and interest earned onany of them.

(b) Definition of program income. Pro-gram income means gross income re-ceived by the grantee or subgrantee di-rectly generated by a grant supportedactivity, or earned only as a result ofthe grant agreement during the grantperiod. ‘‘During the grant period’’ isthe time between the effective date ofthe award and the ending date of theaward reflected in the final financialreport.

(c) Cost of generating program income.If authorized by Federal regulations orthe grant agreement, costs incident tothe generation of program income maybe deducted from gross income to de-termine program income.

(d) Governmental revenues. Taxes, spe-cial assessments, levies, fines, andother such revenues raised by a granteeor subgrantee are not program incomeunless the revenues are specificallyidentified in the grant agreement orFederal agency regulations as programincome.

(e) Royalties. Income from royaltiesand license fees for copyrighted mate-rial, patents, and inventions developedby a grantee or subgrantee is programincome only if the revenues are specifi-cally identified in the grant agreementor Federal agency regulations as pro-gram income. (See § 1470.34.)

(f) Property. Proceeds from the sale ofreal property or equipment will be han-dled in accordance with the require-ments of §§ 1470.31 and 1470.32.

(g) Use of program income. Programincome shall be deducted from outlayswhich may be both Federal and non-Federal as described below, unless theFederal agency regulations or thegrant agreement specify another alter-native (or a combination of the alter-natives). In specifying alternatives, theFederal agency may distinguish be-tween income earned by the granteeand income earned by subgrantees andbetween the sources, kinds, or amountsof income. When Federal agencies au-thorize the alternatives in paragraphs(g) (2) and (3) of this section, programincome in excess of any limits stipu-lated shall also be deducted from out-lays.

(1) Deduction. Ordinarily program in-come shall be deducted from total al-lowable costs to determine the net al-lowable costs. Program income shall be


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used for current costs unless the Fed-eral agency authorizes otherwise. Pro-gram income which the grantee did notanticipate at the time of the awardshall be used to reduce the Federalagency and grantee contributions rath-er than to increase the funds com-mitted to the project.

(2) Addition. When authorized, pro-gram income may be added to thefunds committed to the grant agree-ment by the Federal agency and thegrantee. The program income shall beused for the purposes and under theconditions of the grant agreement.

(3) Cost sharing or matching. When au-thorized, program income may be usedto meet the cost sharing or matchingrequirement of the grant agreement.The amount of the Federal grant awardremains the same.

(h) Income after the award period.There are no Federal requirements gov-erning the disposition of program in-come earned after the end of the awardperiod (i.e., until the ending date of thefinal financial report, see paragraph (a)of this section), unless the terms of theagreement or the Federal agency regu-lations provide otherwise.

§ 1470.26 Non-Federal audit.(a) Basic rule. Grantees and sub-

grantees are responsible for obtainingaudits in accordance with the SingleAudit Act Amendments of 1996 (31U.S.C. 7501–7507) and revised OMB Cir-cular A–133, ‘‘Audits of States, LocalGovernments, and Non-Profit Organi-zations.’’ The audits shall be made byan independent auditor in accordancewith generally accepted governmentauditing standards covering financialaudits.

(b) Subgrantees. State or local govern-ments, as those terms are defined forpurposes of the Single Audit ActAmendments of 1996, that provide Fed-eral awards to a subgrantee, which ex-pends $300,000 or more (or otheramount as specified by OMB) in Fed-eral awards in a fiscal year, shall:

(1) Determine whether State or localsubgrantees have met the audit re-quirements of the Act and whether sub-grantees covered by OMB Circular A–110, ‘‘Uniform Administrative Require-ments for Grants and Agreements withInstitutions of Higher Education, Hos-

pitals, and Other Non-Profit Organiza-tions,’’ have met the audit require-ments of the Act. Commercial contrac-tors (private for-profit and private andgovernmental organizations) providinggoods and services to State and localgovernments are not required to have asingle audit performed. State and localgovernments should use their own pro-cedures to ensure that the contractorhas complied with laws and regulationsaffecting the expenditure of Federalfunds;

(2) Determine whether the sub-grantee spent Federal assistance fundsprovided in accordance with applicablelaws and regulations. This may be ac-complished by reviewing an audit ofthe subgrantee made in accordancewith the Act, Circular A–110, orthrough other means (e.g., program re-views) if the subgrantee has not hadsuch an audit;

(3) Ensure that appropriate correc-tive action is taken within six monthsafter receipt of the audit report in in-stance of noncompliance with Federallaws and regulations;

(4) Consider whether subgrantee au-dits necessitate adjustment of thegrantee’s own records; and

(5) Require each subgrantee to permitindependent auditors to have access tothe records and financial statements.

(c) Auditor selection. In arranging foraudit services, § 1470.36 shall be fol-lowed.

[53 FR 8087, Mar. 11, 1988, as amended at 62FR 45939, 45942, Aug. 29, 1997]

CHANGES, PROPERTY, AND SUBAWARDS

§ 1470.30 Changes.(a) General. Grantees and subgrantees

are permitted to rebudget within theapproved direct cost budget to meetunanticipated requirements and maymake limited program changes to theapproved project. However, unlesswaived by the awarding agency, certaintypes of post-award changes in budgetsand projects shall require the priorwritten approval of the awarding agen-cy.

(b) Relation to cost principles. The ap-plicable cost principles (see § 1470.22)contain requirements for prior ap-proval of certain types of costs. Exceptwhere waived, those requirements


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apply to all grants and subgrants evenif paragraphs (c) through (f) of this sec-tion do not.

(c) Budget changes—(1) Nonconstruc-tion projects. Except as stated in otherregulations or an award document,grantees or subgrantees shall obtainthe prior approval of the awardingagency whenever any of the followingchanges is anticipated under a non-construction award:

(i) Any revision which would resultin the need for additional funding.

(ii) Unless waived by the awardingagency, cumulative transfers among di-rect cost categories, or, if applicable,among separately budgeted programs,projects, functions, or activities whichexceed or are expected to exceed tenpercent of the current total approvedbudget, whenever the awarding agen-cy’s share exceeds $100,000.

(iii) Transfer of funds allotted fortraining allowances (i.e., from directpayments to trainees to other expensecategories).

(2) Construction projects. Grantees andsubgrantees shall obtain prior writtenapproval for any budget revision whichwould result in the need for additionalfunds.

(3) Combined construction and non-construction projects. When a grant orsubgrant provides funding for both con-struction and nonconstruction activi-ties, the grantee or subgrantee mustobtain prior written approval from theawarding agency before making anyfund or budget transfer from non-construction to construction or viceversa.

(d) Programmatic changes. Grantees orsubgrantees must obtain the prior ap-proval of the awarding agency when-ever any of the following actions is an-ticipated:

(1) Any revision of the scope or objec-tives of the project (regardless ofwhether there is an associated budgetrevision requiring prior approval).

(2) Need to extend the period of avail-ability of funds.

(3) Changes in key persons in caseswhere specified in an application or agrant award. In research projects, achange in the project director or prin-cipal investigator shall always requireapproval unless waived by the award-ing agency.

(4) Under nonconstruction projects,contracting out, subgranting (if au-thorized by law) or otherwise obtainingthe services of a third party to performactivities which are central to the pur-poses of the award. This approval re-quirement is in addition to the ap-proval requirements of § 1470.36 butdoes not apply to the procurement ofequipment, supplies, and general sup-port services.

(e) Additional prior approval require-ments. The awarding agency may notrequire prior approval for any budgetrevision which is not described in para-graph (c) of this section.

(f) Requesting prior approval. (1) A re-quest for prior approval of any budgetrevision will be in the same budget for-mal the grantee used in its applicationand shall be accompanied by a nar-rative justification for the proposed re-vision.

(2) A request for a prior approvalunder the applicable Federal cost prin-ciples (see § 1470.22) may be made byletter.

(3) A request by a subgrantee forprior approval will be addressed inwriting to the grantee. The granteewill promptly review such request andshall approve or disapprove the requestin writing. A grantee will not approveany budget or project revision which isinconsistent with the purpose or termsand conditions of the Federal grant tothe grantee. If the revision, requestedby the subgrantee would result in achange to the grantee’s approvedproject which requires Federal priorapproval, the grantee will obtain theFederal agency’s approval before ap-proving the subgrantee’s request.

§ 1470.31 Real property.

(a) Title. Subject to the obligationsand conditions set forth in this section,title to real property acquired under agrant or subgrant will vest upon acqui-sition in the grantee or subgrantee re-spectively.

(b) Use. Except as otherwise providedby Federal statutes, real property willbe used for the originally authorizedpurposes as long as needed for that pur-poses, and the grantee or subgranteeshall not dispose of or encumber itstitle or other interests.


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(c) Disposition. When real property isno longer needed for the originally au-thorized purpose, the grantee or sub-grantee will request disposition in-structions from the awarding agency.The instructions will provide for one ofthe following alternatives:

(1) Retention of title. Retain title aftercompensating the awarding agency.The amount paid to the awarding agen-cy will be computed by applying theawarding agency’s percentage of par-ticipation in the cost of the originalpurchase to the fair market value ofthe property. However, in those situa-tions where a grantee or subgrantee isdisposing of real property acquiredwith grant funds and acquiring replace-ment real property under the same pro-gram, the net proceeds from the dis-position may be used as an offset to thecost of the replacement property.

(2) Sale of property. Sell the propertyand compensate the awarding agency.The amount due to the awarding agen-cy will be calculated by applying theawarding agency’s percentage of par-ticipation in the cost of the originalpurchase to the proceeds of the saleafter deduction of any actual and rea-sonable selling and fixing-up expenses.If the grant is still active, the net pro-ceeds from sale may be offset againstthe original cost of the property. Whena grantee or subgrantee is directed tosell property, sales procedures shall befollowed that provide for competitionto the extent practicable and result inthe highest possible return.

(3) Transfer of title. Transfer title tothe awarding agency or to a third-party designated/approved by theawarding agency. The grantee or sub-grantee shall be paid an amount cal-culated by applying the grantee or sub-grantee’s percentage of participationin the purchase of the real property tothe current fair market value of theproperty.

§ 1470.32 Equipment.(a) Title. Subject to the obligations

and conditions set forth in this section,title to equipment acquired under agrant or subgrant will vest upon acqui-sition in the grantee or subgrantee re-spectively.

(b) States. A State will use, manage,and dispose of equipment acquired

under a grant by the State in accord-ance with State laws and procedures.Other grantees and subgrantees willfollow paragraphs (c) through (e) ofthis section.

(c) Use. (1) Equipment shall be usedby the grantee or subgrantee in theprogram or project for which it was ac-quired as long as needed, whether ornot the project or program continuesto be supported by Federal funds. Whenno longer needed for the original pro-gram or project, the equipment may beused in other activities currently orpreviously supported by a Federalagency.

(2) The grantee or subgrantee shallalso make equipment available for useon other projects or programs cur-rently or previously supported by theFederal Government, providing suchuse will not interfere with the work onthe projects or program for which itwas originally acquired. First pref-erence for other use shall be given toother programs or projects supportedby the awarding agency. User feesshould be considered if appropriate.

(3) Notwithstanding the encourage-ment in § 1470.25(a) to earn program in-come, the grantee or subgrantee mustnot use equipment acquired with grantfunds to provide services for a fee tocompete unfairly with private compa-nies that provide equivalent services,unless specifically permitted or con-templated by Federal statute.

(4) When acquiring replacementequipment, the grantee or subgranteemay use the equipment to be replacedas a trade-in or sell the property anduse the proceeds to offset the cost ofthe replacement property, subject tothe approval of the awarding agency.

(d) Management requirements. Proce-dures for managing equipment (includ-ing replacement equipment), whetheracquired in whole or in part with grantfunds, until disposition takes placewill, as a minimum, meet the followingrequirements:

(1) Property records must be main-tained that include a description of theproperty, a serial number or otheridentification number, the source ofproperty, who holds title, the acquisi-tion date, and cost of the property, per-centage of Federal participation in thecost of the property, the location, use


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and condition of the property, and anyultimate disposition data including thedate of disposal and sale price of theproperty.

(2) A physical inventory of the prop-erty must be taken and the results rec-onciled with the property records atleast once every two years.

(3) A control system must be devel-oped to ensure adequate safeguards toprevent loss, damage, or theft of theproperty. Any loss, damage, or theftshall be investigated.

(4) Adequate maintenance proceduresmust be developed to keep the propertyin good condition.

(5) If the grantee or subgrantee is au-thorized or required to sell the prop-erty, proper sales procedures must beestablished to ensure the highest pos-sible return.

(e) Disposition. When original or re-placement equipment acquired under agrant or subgrant is no longer neededfor the original project or program orfor other activities currently or pre-viously supported by a Federal agency,disposition of the equipment will bemade as follows:

(1) Items of equipment with a currentper-unit fair market value of less than$5,000 may be retained, sold or other-wise disposed of with no further obliga-tion to the awarding agency.

(2) Items of equipment with a currentper unit fair market value in excess of$5,000 may be retained or sold and theawarding agency shall have a right toan amount calculated by multiplyingthe current market value or proceedsfrom sale by the awarding agency’sshare of the equipment.

(3) In cases where a grantee or sub-grantee fails to take appropriate dis-position actions, the awarding agencymay direct the grantee or subgranteeto take excess and disposition actions.

(f) Federal equipment. In the event agrantee or subgrantee is provided fed-erally-owned equipment:

(1) Title will remain vested in theFederal Government.

(2) Grantees or subgrantees will man-age the equipment in accordance withFederal agency rules and procedures,and submit an annual inventory list-ing.

(3) When the equipment is no longerneeded, the grantee or subgrantee will

request disposition instructions fromthe Federal agency.

(g) Right to transfer title. The Federalawarding agency may reserve the rightto transfer title to the Federal Govern-ment or a third part named by theawarding agency when such a thirdparty is otherwise eligible under exist-ing statutes. Such transfers shall besubject to the following standards:

(1) The property shall be identified inthe grant or otherwise made known tothe grantee in writing.

(2) The Federal awarding agencyshall issue disposition instructionwithin 120 calendar days after the endof the Federal support of the projectfor which it was acquired. If the Fed-eral awarding agency fails to issue dis-position instructions within the 120calendar-day period the grantee shallfollow § 1470.32(e).

(3) When title to equipment is trans-ferred, the grantee shall be paid anamount calculated by applying the per-centage of participation in the pur-chase to the current fair market valueof the property.

§ 1470.33 Supplies.(a) Title. Title to supplies acquired

under a grant or subgrant will vest,upon acquisition, in the grantee or sub-grantee respectively.

(b) Disposition. If there is a residualinventory of unused supplies exceeding$5,000 in total aggregate fair marketvalue upon termination or completionof the award, and if the supplies arenot needed for any other federallysponsored programs or projects, thegrantee or subgrantee shall com-pensate the awarding agency for itsshare.

§ 1470.34 Copyrights.The Federal awarding agency re-

serves a royalty-free, nonexclusive, andirrevocable license to reproduce, pub-lish or otherwise use, and to authorizeothers to use, for Federal Governmentpurposes:

(a) The copyright in any work devel-oped under a grant, subgrant, or con-tract under a grant or subgrant; and

(b) Any rights of copyright to whicha grantee, subgrantee or a contractorpurchases ownership with grant sup-port.


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§ 1470.35 Subawards to debarred andsuspended parties.

Grantees and subgrantees must notmake any award or permit any award(subgrant or contract) at any tier toany party which is debarred or sus-pended or is otherwise excluded from orineligible for participation in Federalassistance programs under ExecutiveOrder 12549, ‘‘Debarment and Suspen-sion.’’

§ 1470.36 Procurement.(a) States. When procuring property

and services under a grant, a State willfollow the same policies and proceduresit uses for procurements from its non-Federal funds. The State will ensurethat every purchase order or other con-tract includes any clauses required byFederal statutes and executive ordersand their implementing regulations.Other grantees and subgrantees willfollow paragraphs (b) through (i) inthis section.

(b) Procurement standards. (1) Grant-ees and subgrantees will use their ownprocurement procedures which reflectapplicable State and local laws andregulations, provided that the procure-ments conform to applicable Federallaw and the standards identified in thissection.

(2) Grantees and subgrantees willmaintain a contract administrationsystem which ensures that contractorsperform in accordance with the terms,conditions, and specifications of theircontracts or purchase orders.

(3) Grantees and subgrantees willmaintain a written code of standards ofconduct governing the performance oftheir employees engaged in the awardand administration of contracts. Noemployee, officer or agent of the grant-ee or subgrantee shall participate in se-lection, or in the award or administra-tion of a contract supported by Federalfunds if a conflict of interest, real orapparent, would be involved. Such aconflict would arise when:

(i) The employee, officer or agent,(ii) Any member of his immediate

family,(iii) His or her partner, or(iv) An organization which employs,

or is about to employ, any of theabove, has a financial or other interestin the firm selected for award. The

grantee’s or subgrantee’s officers, em-ployees or agents will neither solicitnor accept gratuities, favors or any-thing of monetary value from contrac-tors, potential contractors, or partiesto subagreements. Grantee and sub-grantees may set minimum rules wherethe financial interest is not substantialor the gift is an unsolicited item ofnominal intrinsic value. To the extentpermitted by State or local law or reg-ulations, such standards or conductwill provide for penalties, sanctions, orother disciplinary actions for viola-tions of such standards by the grant-ee’s and subgrantee’s officers, employ-ees, or agents, or by contractors ortheir agents. The awarding agency mayin regulation provide additional prohi-bitions relative to real, apparent, orpotential conflicts of interest.

(4) Grantee and subgrantee proce-dures will provide for a review of pro-posed procurements to avoid purchaseof unnecessary or duplicative items.Consideration should be given to con-solidating or breaking out procure-ments to obtain a more economicalpurchase. Where appropriate, an anal-ysis will be made of lease versus pur-chase alternatives, and any other ap-propriate analysis to determine themost economical approach.

(5) To foster greater economy and ef-ficiency, grantees and subgrantees areencouraged to enter into State andlocal intergovernmental agreementsfor procurement or use of commongoods and services.

(6) Grantees and subgrantees are en-couraged to use Federal excess and sur-plus property in lieu of purchasing newequipment and property whenever suchuse is feasible and reduces projectcosts.

(7) Grantees and subgrantees are en-couraged to use value engineeringclauses in contracts for constructionprojects of sufficient size to offer rea-sonable opportunities for cost reduc-tions. Value engineering is a system-atic and creative anaylsis of each con-tract item or task to ensure that its es-sential function is provided at theoverall lower cost.

(8) Grantees and subgrantees willmake awards only to responsible con-tractors possessing the ability to per-form successfully under the terms and


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conditions of a proposed procurement.Consideration will be given to suchmatters as contractor integrity, com-pliance with public policy, record ofpast performance, and financial andtechnical resources.

(9) Grantees and subgrantees willmaintain records sufficient to detailthe significant history of a procure-ment. These records will include, butare not necessarily limited to the fol-lowing: rationale for the method ofprocurement, selection of contracttype, contractor selection or rejection,and the basis for the contract price.

(10) Grantees and subgrantees willuse time and material type contractsonly—

(i) After a determination that noother contract is suitable, and

(ii) If the contract includes a ceilingprice that the contractor exceeds at itsown risk.

(11) Grantees and subgrantees alonewill be responsible, in accordance withgood administrative practice and soundbusiness judgment, for the settlementof all contractual and administrativeissues arising out of procurements.These issues include, but are not lim-ited to source evaluation, protests, dis-putes, and claims. These standards donot relieve the grantee or subgranteeof any contractual responsibilitiesunder its contracts. Federal agencieswill not substitute their judgment forthat of the grantee or subgrantee un-less the matter is primarily a Federalconcern. Violations of law will be re-ferred to the local, State, or Federalauthority having proper jurisdiction.

(12) Grantees and subgrantees willhave protest procedures to handle andresolve disputes relating to their pro-curements and shall in all instancesdisclose information regarding the pro-test to the awarding agency. Aprotestor must exhaust all administra-tive remedies with the grantee and sub-grantee before pursuing a protest withthe Federal agency. Reviews of pro-tests by the Federal agency will be lim-ited to:

(i) Violations of Federal law or regu-lations and the standards of this sec-tion (violations of State or local lawwill be under the jurisdiction of Stateor local authorities) and

(ii) Violations of the grantee’s or sub-grantee’s protest procedures for failureto review a complaint or protest. Pro-tests received by the Federal agencyother than those specified above will bereferred to the grantee or subgrantee.

(c) Competition. (1) All procurementtransactions will be conducted in amanner providing full and open com-petition consistent with the standardsof § 1470.36. Some of the situations con-sidered to be restrictive of competitioninclude but are not limited to:

(i) Placing unreasonable require-ments on firms in order for them toqualify to do business,

(ii) Requiring unnecessary experienceand excessive bonding,

(iii) Noncompetitive pricing practicesbetween firms or between affiliatedcompanies,

(iv) Noncompetitive awards to con-sultants that are on retainer contracts,

(v) Organizational conflicts of inter-est,

(vi) Specifying only a ‘‘brand name’’product instead of allowing ‘‘an equal’’product to be offered and describingthe performance of other relevant re-quirements of the procurement, and

(vii) Any arbitrary action in the pro-curement process.

(2) Grantees and subgrantees willconduct procurements in a mannerthat prohibits the use of statutorily oradministratively imposed in-State orlocal geographical preferences in theevaluation of bids or proposals, exceptin those cases where applicable Federalstatutes expressly mandate or encour-age geographic preference. Nothing inthis section preempts State licensinglaws. When contracting for architec-tural and engineering (A/E) services,geographic location may be a selectioncriteria provided its application leavesan appropriate number of qualifiedfirms, given the nature and size of theproject, to compete for the contract.

(3) Grantees will have written selec-tion procedures for procurement trans-actions. These procedures will ensurethat all solicitations:

(i) Incorporate a clear and accuratedescription of the technical require-ments for the material, product, orservice to be procured. Such descrip-tion shall not, in competitive procure-ments, contain features which unduly


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restrict competition. The descriptionmay include a statement of the quali-tative nature of the material, productor service to be procured, and whennecessary, shall set forth those min-imum essential characteristics andstandards to which it must conform ifit is to satisfy its intended use. De-tailed product specifications should beavoided if at all possible. When it isimpractical or uneconomical to make aclear and accurate description of thetechnical requirements, a ‘‘brand nameor equal’’ description may be used as ameans to define the performance orother salient requirements of a pro-curement. The specific features of thenamed brand which must be met byofferors shall be clearly stated; and

(ii) Identify all requirements whichthe offerors must fulfill and all otherfactors to be used in evaluating bids orproposals.

(4) Grantees and subgrantees will en-sure that all prequalified lists of per-sons, firms, or products which are usedin acquiring goods and services are cur-rent and include enough qualifiedsources to ensure maximum open andfree competition. Also, grantees andsubgrantees will not preclude potentialbidders from qualifying during the so-licitation period.

(d) Methods of procurement to be fol-lowed—(1) Procurement by small purchaseprocedures. Small purchase proceduresare those relatively simple and infor-mal procurement methods for securingservices, supplies, or other propertythat do not cost more than the sim-plified acquisition threshold fixed at 41U.S.C. 403(11) (currently set at $100,000).If small purchase procedures are used,price or rate quotations shall be ob-tained from an adequate number ofqualified sources.

(2) Procurement by sealed bids (for-mal advertising). Bids are publicly so-licited and a firm-fixed-price contract(lump sum or unit price) is awarded tothe responsible bidder whose bid, con-forming with all the material termsand conditions of the invitation forbids, is the lowest in price. The sealedbid method is the preferred method forprocuring construction, if the condi-tions in § 1470.36(d)(2)(i) apply.

(i) In order for sealed bidding to befeasible, the following conditionsshould be present:

(A) A complete, adequate, and real-istic specification or purchase descrip-tion is available;

(B) Two or more responsible biddersare willing and able to compete effec-tively and for the business; and

(C) The procurement lends itself to afirm fixed price contract and the selec-tion of the successful bidder can bemade principally on the basis of price.

(ii) If sealed bids are used, the fol-lowing requirements apply:

(A) The invitation for bids will bepublicly advertised and bids shall besolicited from an adequate number ofknown suppliers, providing them suffi-cient time prior to the date set foropening the bids;

(B) The invitation for bids, whichwill include any specifications and per-tinent attachments, shall define theitems or services in order for the bidderto properly respond;

(C) All bids will be publicly opened atthe time and place prescribed in the in-vitation for bids;

(D) A firm fixed-price contract awardwill be made in writing to the lowestresponsive and responsible bidder.Where specified in bidding documents,factors such as discounts, transpor-tation cost, and life cycle costs shall beconsidered in determining which bid islowest. Payment discounts will only beused to determine the low bid whenprior experience indicates that suchdiscounts are usually taken advantageof; and

(E) Any or all bids may be rejected ifthere is a sound documented reason.

(3) Procurement by competitive pro-posals. The technique of competitiveproposals is normally conducted withmore than one source submitting anoffer, and either a fixed-price or cost-reimbursement type contract is award-ed. It is generally used when conditionsare not appropriate for the use ofsealed bids. If this method is used, thefollowing requirements apply:

(i) Requests for proposals will be pub-licized and identify all evaluation fac-tors and their relative importance. Anyresponse to publicized requests for pro-posals shall be honored to the max-imum extent practical;


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(ii) Proposals will be solicited froman adequate number of qualifiedsources;

(iii) Grantees and subgrantees willhave a method for conducting tech-nical evaluations of the proposals re-ceived and for selecting awardees;

(iv) Awards will be made to the re-sponsible firm whose proposal is mostadvantageous to the program, withprice and other factors considered; and

(v) Grantees and subgrantees mayuse competitive proposal proceduresfor qualifications-based procurement ofarchitectural/engineering (A/E) profes-sional services whereby competitors’qualifications are evaluated and themost qualified competitor is selected,subject to negotiation of fair and rea-sonable compensation. The method,where price is not used as a selectionfactor, can only be used in procure-ment of A/E professional services. Itcannot be used to purchase other typesof services though A/E firms are a po-tential source to perform the proposedeffort.

(4) Procurement by noncompetitiveproposals is procurement through solic-itation of a proposal from only onesource, or after solicitation of a num-ber of sources, competition is deter-mined inadequate.

(i) Procurement by noncompetitiveproposals may be used only when theaward of a contract is infeasible undersmall purchase procedures, sealed bidsor competitive proposals and one of thefollowing circumstances applies:

(A) The item is available only from asingle source;

(B) The public exigency or emergencyfor the requirement will not permit adelay resulting from competitive solic-itation;

(C) The awarding agency authorizesnoncompetitive proposals; or

(D) After solicitation of a number ofsources, competition is determined in-adequate.

(ii) Cost analysis, i.e., verifying theproposed cost data, the projections ofthe data, and the evaluation of the spe-cific elements of costs and profits, isrequired.

(iii) Grantees and subgrantees maybe required to submit the proposed pro-curement to the awarding agency for

pre-award review in accordance withparagraph (g) of this section.

(e) Contracting with small and minorityfirms, women’s business enterprise andlabor surplus area firms. (1) The granteeand subgrantee will take all necessaryaffirmative steps to assure that minor-ity firms, women’s business enter-prises, and labor surplus area firms areused when possible.

(2) Affirmative steps shall include:(i) Placing qualified small and minor-

ity businesses and women’s businessenterprises on solicitation lists;

(ii) Assuring that small and minoritybusinesses, and women’s business en-terprises are solicited whenever theyare potential sources;

(iii) Dividing total requirements,when economically feasible, into small-er tasks or quantities to permit max-imum participation by small and mi-nority business, and women’s businessenterprises;

(iv) Establishing delivery schedules,where the requirement permits, whichencourage participation by small andminority business, and women’s busi-ness enterprises;

(v) Using the services and assistanceof the Small Business Administration,and the Minority Business Develop-ment Agency of the Department ofCommerce; and

(vi) Requiring the prime contractor,if subcontracts are to be let, to takethe affirmative steps listed in para-graphs (e)(2) (i) through (v) of this sec-tion.

(f) Contract cost and price. (1) Grant-ees and subgrantees must perform acost or price analysis in connectionwith every procurement action includ-ing contract modifications. The meth-od and degree of analysis is dependenton the facts surrounding the particularprocurement situation, but as a start-ing point, grantees must make inde-pendent estimates before receiving bidsor proposals. A cost analysis must beperformed when the offeror is requiredto submit the elements of his esti-mated cost, e.g., under professional,consulting, and architectural engineer-ing services contracts. A cost analysiswill be necessary when adequate pricecompetition is lacking, and for solesource procurements, including con-tract modifications or change orders,


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unless price resonableness can be es-tablished on the basis of a catalog ormarket price of a commercial productsold in substantial quantities to thegeneral public or based on prices set bylaw or regulation. A price analysis willbe used in all other instances to deter-mine the reasonableness of the pro-posed contract price.

(2) Grantees and subgrantees will ne-gotiate profit as a separate element ofthe price for each contract in whichthere is no price competition and in allcases where cost analysis is performed.To establish a fair and reasonable prof-it, consideration will be given to thecomplexity of the work to be per-formed, the risk borne by the con-tractor, the contractor’s investment,the amount of subcontracting, thequality of its record of past perform-ance, and industry profit rates in thesurrounding geographical area forsimilar work.

(3) Costs or prices based on estimatedcosts for contracts under grants will beallowable only to the extent that costsincurred or cost estimates included innegotiated prices are consistent withFederal cost principles (see § 1470.22).Grantees may reference their own costprinciples that comply with the appli-cable Federal cost principles.

(4) The cost plus a percentage of costand percentage of construction costmethods of contracting shall not beused.

(g) Awarding agency review. (1) Grant-ees and subgrantees must make avail-able, upon request of the awardingagency, technical specifications on pro-posed procurements where the award-ing agency believes such review isneeded to ensure that the item and/orservice specified is the one being pro-posed for purchase. This review gen-erally will take place prior to the timethe specification is incorporated into asolicitation document. However, if thegrantee or subgrantee desires to havethe review accomplished after a solici-tation has been developed, the award-ing agency may still review the speci-fications, with such review usually lim-ited to the technical aspects of the pro-posed purchase.

(2) Grantees and subgrantees must onrequest make available for awardingagency pre-award review procurement

documents, such as requests for pro-posals or invitations for bids, inde-pendent cost estimates, etc. when:

(i) A grantee’s or subgrantee’s pro-curement procedures or operation failsto comply with the procurement stand-ards in this section; or

(ii) The procurement is expected toexceed the simplified acquisitionthreshold and is to be awarded withoutcompetition or only one bid or offer isreceived in response to a solicitation;or

(iii) The procurement, which is ex-pected to exceed the simplified acquisi-tion threshold, specifies a ‘‘brandname’’ product; or

(iv) The proposed award is more thanthe simplified acquisition thresholdand is to be awarded to other than theapparent low bidder under a sealed bidprocurement; or

(v) A proposed contract modificationchanges the scope of a contract or in-creases the contract amount by morethan the simplified acquisition thresh-old.

(3) A grantee or subgrantee will beexempt from the pre-award review inparagraph (g)(2) of this section if theawarding agency determines that itsprocurement systems comply with thestandards of this section.

(i) A grantee or subgrantee may re-quest that its procurement system bereviewed by the awarding agency to de-termine whether its system meetsthese standards in order for its systemto be certified. Generally, these re-views shall occur where there is a con-tinuous high-dollar funding, and third-party contracts are awarded on a reg-ular basis.

(ii) A grantee or subgrantee may self-certify its procurement system. Suchself-certification shall not limit theawarding agency’s right to survey thesystem. Under a self-certification pro-cedure, awarding agencies may wish torely on written assurances from thegrantee or subgrantee that it is com-plying with these standards. A granteeor subgrantee will cite specific proce-dures, regulations, standards, etc., asbeing in compliance with these require-ments and have its system availablefor review.


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(h) Bonding requirements. For con-struction or facility improvement con-tracts or subcontracts exceeding thesimplified acquisition threshold, theawarding agency may accept the bond-ing policy and requirements of thegrantee or subgrantee provided theawarding agency has made a deter-mination that the awarding agency’sinterest is adequately protected. Ifsuch a determination has not beenmade, the minimum requirements shallbe as follows:

(1) A bid guarantee from each bidderequivalent to five percent of the bid price.The ‘‘bid guarantee’’ shall consist of afirm commitment such as a bid bond,certified check, or other negotiable in-strument accompanying a bid as assur-ance that the bidder will, upon accept-ance of his bid, execute such contrac-tual documents as may be requiredwithin the time specified.

(2) A performance bond on the part ofthe contractor for 100 percent of the con-tract price. A ‘‘performance bond’’ isone executed in connection with a con-tract to secure fulfillment of all thecontractor’s obligations under suchcontract.

(3) A payment bond on the part of thecontractor for 100 percent of the contractprice. A ‘‘payment bond’’ is one exe-cuted in connection with a contract toassure payment as required by law ofall persons supplying labor and mate-rial in the execution of the work pro-vided for in the contract.

(i) Contract provisions. A grantee’sand subgrantee’s contracts must con-tain provisions in paragraph (i) of thissection. Federal agencies are permittedto require changes, remedies, changedconditions, access and records reten-tion, suspension of work, and otherclauses approved by the Office of Fed-eral Procurement Policy.

(1) Administrative, contractual, orlegal remedies in instances where con-tractors violate or breach contractterms, and provide for such sanctionsand penalties as may be appropriate.(Contracts more than the simplified ac-quisition threshold)

(2) Termination for cause and forconvenience by the grantee or sub-grantee including the manner by whichit will be effected and the basis for set-

tlement. (All contracts in excess of$10,000)

(3) Compliance with Executive Order11246 of September 24, 1965, entitled‘‘Equal Employment Opportunity,’’ asamended by Executive Order 11375 ofOctober 13, 1967, and as supplementedin Department of Labor regulations (41CFR chapter 60). (All construction con-tracts awarded in excess of $10,000 bygrantees and their contractors or sub-grantees)

(4) Compliance with the Copeland‘‘Anti-Kickback’’ Act (18 U.S.C. 874) assupplemented in Department of Laborregulations (29 CFR part 3). (All con-tracts and subgrants for constructionor repair)

(5) Compliance with the Davis-BaconAct (40 U.S.C. 276a to 276a–7) as supple-mented by Department of Labor regu-lations (29 CFR part 5). (Constructioncontracts in excess of $2000 awarded bygrantees and subgrantees when re-quired by Federal grant program legis-lation)

(6) Compliance with Sections 103 and107 of the Contract Work Hours andSafety Standards Act (40 U.S.C. 327–330)as supplemented by Department ofLabor regulations (29 CFR part 5).(Construction contracts awarded bygrantees and subgrantees in excess of$2000, and in excess of $2500 for othercontracts which involve the employ-ment of mechanics or laborers)

(7) Notice of awarding agency re-quirements and regulations pertainingto reporting.

(8) Notice of awarding agency re-quirements and regulations pertainingto patent rights with respect to anydiscovery or invention which arises oris developed in the course of or undersuch contract.

(9) Awarding agency requirementsand regulations pertaining to copy-rights and rights in data.

(10) Access by the grantee, the sub-grantee, the Federal grantor agency,the Comptroller General of the UnitedStates, or any of their duly authorizedrepresentatives to any books, docu-ments, papers, and records of the con-tractor which are directly pertinent tothat specific contract for the purposeof making audit, examination, ex-cerpts, and transcriptions.


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(11) Retention of all required recordsfor three years after grantees or sub-grantees make final payments and allother pending matters are closed.

(12) Compliance with all applicablestandards, orders, or requirementsissued under section 306 of the CleanAir Act (42 U.S.C. 1857(h)), section 508of the Clean Water Act (33 U.S.C. 1368),Executive Order 11738, and Environ-mental Protection Agency regulations(40 CFR part 15). (Contracts, sub-contracts, and subgrants of amounts inexcess of $100,000)

(13) Mandatory standards and policiesrelating to energy efficiency which arecontained in the state energy conserva-tion plan issued in compliance with theEnergy Policy and Conservation Act(Pub. L. 94–163, 89 Stat. 871).

[53 FR 8087, Mar. 11, 1988, as amended at 60FR 19639, 19643, Apr. 19, 1995]

§ 1470.37 Subgrants.(a) States. States shall follow State

law and procedures when awarding andadministering subgrants (whether on acost reimbursement or fixed amountbasis) of financial assistance to localand Indian tribal governments. Statesshall:

(1) Ensure that every subgrant in-cludes any clauses required by Federalstatute and executive orders and theirimplementing regulations;

(2) Ensure that subgrantees areaware of requirements imposed uponthem by Federal statute and regula-tion;

(3) Ensure that a provision for com-pliance with § 1470.42 is placed in everycost reimbursement subgrant; and

(4) Conform any advances of grantfunds to subgrantees substantially tothe same standards of timing andamount that apply to cash advances byFederal agencies.

(b) All other grantees. All other grant-ees shall follow the provisions of thispart which are applicable to awardingagencies when awarding and admin-istering subgrants (whether on a costreimbursement or fixed amount basis)of financial assistance to local and In-dian tribal governments. Granteesshall:

(1) Ensure that every subgrant in-cludes a provision for compliance withthis part;

(2) Ensure that every subgrant in-cludes any clauses required by Federalstatute and executive orders and theirimplementing regulations; and

(3) Ensure that subgrantees areaware of requirements imposed uponthem by Federal statutes and regula-tions.

(c) Exceptions. By their own terms,certain provisions of this part do notapply to the award and administrationof subgrants:

(1) Section 1470.10;(2) Section 1470.11;(3) The letter-of-credit procedures

specified in Treasury Regulations at 31CFR part 205, cited in § 1470.21; and

(4) Section 1470.50.

REPORTS, RECORDS RETENTION, ANDENFORCEMENT

§ 1470.40 Monitoring and reportingprogram performance.

(a) Monitoring by grantees. Granteesare responsible for managing the day-to-day operations of grant andsubgrant supported activities. Granteesmust monitor grant and subgrant sup-ported activities to assure compliancewith applicable Federal requirementsand that performance goals are beingachieved. Grantee monitoring mustcover each program, function or activ-ity.

(b) Nonconstruction performance re-ports. The Federal agency may, if it de-cides that performance informationavailable from subsequent applicationscontains sufficient information tomeet its programmatic needs, requirethe grantee to submit a performancereport only upon expiration or termi-nation of grant support. Unless waivedby the Federal agency this report willbe due on the same date as the final Fi-nancial Status Report.

(1) Grantees shall submit annual per-formance reports unless the awardingagency requires quarterly or semi-an-nual reports. However, performance re-ports will not be required more fre-quently than quarterly. Annual reportsshall be due 90 days after the grantyear, quarterly or semi-annual reportsshall be due 30 days after the reportingperiod. The final performance reportwill be due 90 days after the expirationor termination of grant support. If a


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justified request is submitted by agrantee, the Federal agency may ex-tend the due date for any performancereport. Additionally, requirements forunnecessary performance reports maybe waived by the Federal agency.

(2) Performance reports will contain,for each grant, brief information on thefollowing:

(i) A comparison of actual accom-plishments to the objectives estab-lished for the period. Where the outputof the project can be quantified, a com-putation of the cost per unit of outputmay be required if that informationwill be useful.

(ii) The reasons for slippage if estab-lished objectives were not met.

(iii) Additional pertinent informationincluding, when appropriate, analysisand explanation of cost overruns orhigh unit costs.

(3) Grantees will not be required tosubmit more than the original and twocopies of performance reports.

(4) Grantees will adhere to the stand-ards in this section in prescribing per-formance reporting requirements forsubgrantees.

(c) Construction performance reports.For the most part, on-site technical in-spections and certified percentage-of-completion data are relied on heavilyby Federal agencies to monitorprogress under construction grants andsubgrants. The Federal agency will re-quire additional formal performancereports only when considered nec-essary, and never more frequently thanquarterly.

(d) Significant developments. Eventsmay occur between the scheduled per-formance reporting dates which havesignificant impact upon the grant orsubgrant supported activity. In suchcases, the grantee must inform theFederal agency as soon as the followingtypes of conditions become known:

(1) Problems, delays, or adverse con-ditions which will materially impairthe ability to meet the objective of theaward. This disclosure must include astatement of the action taken, or con-templated, and any assistance neededto resolve the situation.

(2) Favorable developments which en-able meeting time schedules and objec-tives sooner or at less cost than antici-

pated or producing more beneficial re-sults than originally planned.

(e) Federal agencies may make sitevisits as warranted by program needs.

(f) Waivers, extensions. (1) Federalagencies may waive any performancereport required by this part if not need-ed.

(2) The grantee may waive any per-formance report from a subgranteewhen not needed. The grantee may ex-tend the due date for any performancereport from a subgrantee if the granteewill still be able to meet its perform-ance reporting obligations to the Fed-eral agency.

§ 1470.41 Financial reporting.(a) General. (1) Except as provided in

paragraphs (a) (2) and (5) of this sec-tion, grantees will use only the formsspecified in paragraphs (a) through (e)of this section, and such supple-mentary or other forms as may fromtime to time be authorized by OMB,for:

(i) Submitting financial reports toFederal agencies, or

(ii) Requesting advances or reim-bursements when letters of credit arenot used.

(2) Grantees need not apply the formsprescribed in this section in dealingwith their subgrantees. However,grantees shall not impose more burden-some requirements on subgrantees.

(3) Grantees shall follow all applica-ble standard and supplemental Federalagency instructions approved by OMBto the extend required under the Paper-work Reduction Act of 1980 for use inconnection with forms specified inparagraphs (b) through (e) of this sec-tion. Federal agencies may issue sub-stantive supplementary instructionsonly with the approval of OMB. Federalagencies may shade out or instruct thegrantee to disregard any line item thatthe Federal agency finds unnecessaryfor its decisionmaking purposes.

(4) Grantees will not be required tosubmit more than the original and twocopies of forms required under thispart.

(5) Federal agencies may providecomputer outputs to grantees to expe-dite or contribute to the accuracy ofreporting. Federal agencies may acceptthe required information from grantees


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in machine usable format or computerprintouts instead of prescribed forms.

(6) Federal agencies may waive anyreport required by this section if notneeded.

(7) Federal agencies may extend thedue date of any financial report uponreceiving a justified request from agrantee.

(b) Financial Status Report—(1) Form.Grantees will use Standard Form 269 or269A, Financial Status Report, to re-port the status of funds for all non-construction grants and for construc-tion grants when required in accord-ance with § 1470.41(e)(2)(iii).

(2) Accounting basis. Each grantee willreport program outlays and programincome on a cash or accrual basis asprescribed by the awarding agency. Ifthe Federal agency requires accrual in-formation and the grantee’s accountingrecords are not normally kept on theaccural basis, the grantee shall not berequired to convert its accounting sys-tem but shall develop such accrual in-formation through and analysis of thedocumentation on hand.

(3) Frequency. The Federal agencymay prescribe the frequency of the re-port for each project or program. How-ever, the report will not be requiredmore frequently than quarterly. If theFederal agency does not specify thefrequency of the report, it will be sub-mitted annually. A final report will berequired upon expiration or termi-nation of grant support.

(4) Due date. When reports are re-quired on a quarterly or semiannualbasis, they will be due 30 days after thereporting period. When required on anannual basis, they will be due 90 daysafter the grant year. Final reports willbe due 90 days after the expiration ortermination of grant support.

(c) Federal Cash Transactions Report—(1) Form. (i) For grants paid by letter orcredit, Treasury check advances orelectronic transfer of funds, the grant-ee will submit the Standard Form 272,Federal Cash Transactions Report, andwhen necessary, its continuation sheet,Standard Form 272a, unless the termsof the award exempt the grantee fromthis requirement.

(ii) These reports will be used by theFederal agency to monitor cash ad-vanced to grantees and to obtain dis-

bursement or outlay information foreach grant from grantees. The formatof the report may be adapted as appro-priate when reporting is to be accom-plished with the assistance of auto-matic data processing equipment pro-vided that the information to be sub-mitted is not changed in substance.

(2) Forecasts of Federal cash require-ments. Forecasts of Federal cash re-quirements may be required in the‘‘Remarks’’ section of the report.

(3) Cash in hands of subgrantees. Whenconsidered necessary and feasible bythe Federal agency, grantees may berequired to report the amount of cashadvances in excess of three days’ needsin the hands of their subgrantees orcontractors and to provide short nar-rative explanations of actions taken bythe grantee to reduce the excess bal-ances.

(4) Frequency and due date. Granteesmust submit the report no later than 15working days following the end of eachquarter. However, where an advance ei-ther by letter of credit or electronictransfer of funds is authorized at anannualized rate of one million dollarsor more, the Federal agency may re-quire the report to be submitted within15 working days following the end ofeach month.

(d) Request for advance or reimburse-ment—(1) Advance payments. Requestsfor Treasury check advance paymentswill be submitted on Standard Form270, Request for Advance or Reimburse-ment. (This form will not be used fordrawdowns under a letter of credit,electronic funds transfer or whenTreasury check advance payments aremade to the grantee automatically ona predetermined basis.)

(2) Reimbursements. Requests for reim-bursement under nonconstructiongrants will also be submitted on Stand-ard Form 270. (For reimbursement re-quests under construction grants, seeparagraph (e)(1) of this section.)

(3) The frequency for submitting pay-ment requests is treated in§ 1470.41(b)(3).

(e) Outlay report and request for reim-bursement for construction programs—(1)Grants that support construction activi-ties paid by reimbursement method. (i)Requests for reimbursement under con-struction grants will be submitted on


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Standard Form 271, Outlay Report andRequest for Reimbursement for Con-struction Programs. Federal agenciesmay, however, prescribe the Requestfor Advance or Reimbursement form,specified in § 1470.41(d), instead of thisform.

(ii) The frequency for submitting re-imbursement requests is treated in§ 1470.41(b)(3).

(2) Grants that support construction ac-tivities paid by letter of credit, electronicfunds transfer or Treasury check ad-vance. (i) When a construction grant ispaid by letter of credit, electronicfunds transfer or Treasury check ad-vances, the grantee will report its out-lays to the Federal agency usingStandard Form 271, Outlay Report andRequest for Reimbursement for Con-struction Programs. The Federal agen-cy will provide any necessary specialinstruction. However, frequency anddue date shall be governed by§ 1470.41(b) (3) and (4).

(ii) When a construction grant is paidby Treasury check advances based onperiodic requests from the grantee, theadvances will be requested on the formspecified in § 1470.41(d).

(iii) The Federal agency may sub-stitute the Financial Status Reportspecified in § 1470.41(b) for the OutlayReport and Request for Reimbursementfor Construction Programs.

(3) Accounting basis. The accountingbasis for the Outlay Report and Re-quest for Reimbursement for Construc-tion Programs shall be governed by§ 1470.41(b)(2).

§ 1470.42 Retention and access re-quirements for records.

(a) Applicability. (1) This section ap-plies to all financial and programmaticrecords, supporting documents, statis-tical records, and other records ofgrantees or subgrantees which are:

(i) Required to be maintained by theterms of this part, program regulationsor the grant agreement, or

(ii) Otherwise reasonably consideredas pertinent to program regulations orthe grant agreement.

(2) This section does not apply torecords maintained by contractors orsubcontractors. For a requirement toplace a provision concerning records in

certain kinds of contracts, see§ 1470.36(i)(10).

(b) Length of retention period. (1) Ex-cept as otherwise provided, recordsmust be retained for three years fromthe starting date specified in paragraph(c) of this section.

(2) If any litigation, claim, negotia-tion, audit or other action involvingthe records has been started before theexpiration of the 3-year period, therecords must be retained until comple-tion of the action and resolution of allissues which arise from it, or until theend of the regular 3-year period, which-ever is later.

(3) To avoid duplicate recordkeeping,awarding agencies may make specialarrangements with grantees and sub-grantees to retain any records whichare continuously needed for joint use.The awarding agency will requesttransfer of records to its custody whenit determines that the records possesslong-term retention value. When therecords are transferred to or main-tained by the Federal agency, the 3-year retention requirement is not ap-plicable to the grantee or subgrantee.

(c) Starting date of retention period—(1)General. When grant support is contin-ued or renewed at annual or other in-tervals, the retention period for therecords of each funding period starts onthe day the grantee or subgrantee sub-mits to the awarding agency its singleor last expenditure report for that pe-riod. However, if grant support is con-tinued or renewed quarterly, the reten-tion period for each year’s recordsstarts on the day the grantee submitsits expenditure report for the last quar-ter of the Federal fiscal year. In allother cases, the retention period startson the day the grantee submits itsfinal expenditure report. If an expendi-ture report has been waived, the reten-tion period starts on the day the reportwould have been due.

(2) Real property and equipmentrecords. The retention period for realproperty and equipment records startsfrom the date of the disposition or re-placement or transfer at the directionof the awarding agency.

(3) Records for income transactionsafter grant or subgrant support. In somecases grantees must report incomeafter the period of grant support.


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Where there is such a requirement, theretention period for the records per-taining to the earning of the incomestarts from the end of the grantee’s fis-cal year in which the income is earned.

(4) Indirect cost rate proposals, cost al-locations plans, etc. This paragraph ap-plies to the following types of docu-ments, and their supporting records:indirect cost rate computations or pro-posals, cost allocation plans, and anysimilar accounting computations ofthe rate at which a particular group ofcosts is chargeable (such as computerusage chargeback rates or compositefringe benefit rates).

(i) If submitted for negotiation. If theproposal, plan, or other computation isrequired to be submitted to the FederalGovernment (or to the grantee) to formthe basis for negotiation of the rate,then the 3-year retention period for itssupporting records starts from the dateof such submission.

(ii) If not submitted for negotiation. Ifthe proposal, plan, or other computa-tion is not required to be submitted tothe Federal Government (or to thegrantee) for negotiation purposes, thenthe 3-year retention period for the pro-posal plan, or computation and its sup-porting records starts from end of thefiscal year (or other accounting period)covered by the proposal, plan, or othercomputation.

(d) Substitution of microfilm. Copiesmade by microfilming, photocopying,or similar methods may be substitutedfor the original records.

(e) Access to records—(1) Records ofgrantees and subgrantees. The awardingagency and the Comptroller General ofthe United States, or any of their au-thorized representatives, shall have theright of access to any pertinent books,documents, papers, or other records ofgrantees and subgrantees which arepertinent to the grant, in order tomake audits, examinations, excerpts,and transcripts.

(2) Expiration of right of access. Therights of access in this section mustnot be limited to the required reten-tion period but shall last as long as therecords are retained.

(f) Restrictions on public access. TheFederal Freedom of Information Act (5U.S.C. 552) does not apply to recordsUnless required by Federal, State, or

local law, grantees and subgrantees arenot required to permit public access totheir records.

§ 1470.43 Enforcement.

(a) Remedies for noncompliance. If agrantee or subgrantee materially failsto comply with any term of an award,whether stated in a Federal statute orregulation, an assurance, in a Stateplan or application, a notice of award,or elsewhere, the awarding agency maytake one or more of the following ac-tions, as appropriate in the cir-cumstances:

(1) Temporarily withhold cash pay-ments pending correction of the defi-ciency by the grantee or subgrantee ormore severe enforcement action by theawarding agency,

(2) Disallow (that is, deny both use offunds and matching credit for) all orpart of the cost of the activity or ac-tion not in compliance,

(3) Wholly or partly suspend or ter-minate the current award for thegrantee’s or subgrantee’s program,

(4) Withhold further awards for theprogram, or

(5) Take other remedies that may belegally available.

(b) Hearings, appeals. In taking an en-forcement action, the awarding agencywill provide the grantee or subgranteean opportunity for such hearing, ap-peal, or other administrative pro-ceeding to which the grantee or sub-grantee is entitled under any statuteor regulation applicable to the actioninvolved.

(c) Effects of suspension and termi-nation. Costs of grantee or subgranteeresulting from obligations incurred bythe grantee or subgrantee during a sus-pension or after termination of anaward are not allowable unless theawarding agency expressly authorizesthem in the notice of suspension or ter-mination or subsequently. Other grant-ee or subgrantee costs during suspen-sion or after termination which arenecessary and not reasonably avoidableare allowable if:

(1) The costs result from obligationswhich were properly incurred by thegrantee or subgrantee before the effec-tive date of suspension or termination,are not in anticipation of it, and, in the


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case of a termination, arenoncancellable, and,

(2) The costs would be allowable ifthe award were not suspended or ex-pired normally at the end of the fund-ing period in which the terminationtakes effect.

(d) Relationship to debarment and sus-pension. The enforcement remediesidentified in this section, includingsuspension and termination, do notpreclude grantee or subgrantee frombeing subject to ‘‘Debarment and Sus-pension’’ under E.O. 12549 (see § 1470.35).

§ 1470.44 Termination for convenience.

Except as provided in § 1470.43 awardsmay be terminated in whole or in partonly as follows:

(a) By the awarding agency with theconsent of the grantee or subgrantee inwhich case the two parties shall agreeupon the termination conditions, in-cluding the effective date and in thecase of partial termination, the portionto be terminated, or

(b) By the grantee or subgranteeupon written notification to the award-ing agency, setting forth the reasonsfor such termination, the effectivedate, and in the case of partial termi-nation, the portion to be terminated.However, if, in the case of a partial ter-mination, the awarding agency deter-mines that the remaining portion ofthe award will not accomplish the pur-poses for which the award was made,the awarding agency may terminatethe award in its entirety under either§ 1470.43 or paragraph (a) of this sec-tion.

Subpart D—After-The-GrantRequirements

§ 1470.50 Closeout.

(a) General. The Federal agency willclose out the award when it determinesthat all applicable administrative ac-tions and all required work of thegrant has been completed.

(b) Reports. Within 90 days after theexpiration or termination of the grant,the grantee must submit all financial,performance, and other reports re-quired as a condition of the grant.Upon request by the grantee, Federalagencies may extend this timeframe.

These may include but are not limitedto:

(1) Final performance or progress re-port.

(2) Financial Status Report (SF–269) orOutlay Report and Request for Reim-bursement for Construction Programs(SF–271) (as applicable).

(3) Final request for payment (SF–270)(if applicable).

(4) Invention disclosure (if applicable).(5) Federally-owned property report:

In accordance with § 1470.32(f), a grant-ee must submit an inventory of all fed-erally owned property (as distinct fromproperty acquired with grant funds) forwhich it is accountable and request dis-position instructions from the Federalagency of property no longer needed.

(c) Cost adjustment. The Federal agen-cy will, within 90 days after receipt ofreports in paragraph (b) of this section,make upward or downward adjust-ments to the allowable costs.

(d) Cash adjustments. (1) The Federalagency will make prompt payment tothe grantee for allowable reimbursablecosts.

(2) The grantee must immediately re-fund to the Federal agency any balanceof unobligated (unencumbered) cashadvanced that is not authorized to beretained for use on other grants.

§ 1470.51 Later disallowances and ad-justments.

The closeout of a grant does not af-fect:

(a) The Federal agency’s right to dis-allow costs and recover funds on thebasis of a later audit or other review;

(b) The grantee’s obligation to returnany funds due as a result of later re-funds, corrections, or other trans-actions;

(c) Records retention as required in§ 1470.42;

(d) Property management require-ments in §§ 1470.31 and 1470.32; and

(e) Audit requirements in § 1470.26.

§ 1470.52 Collection of amounts due.(a) Any funds paid to a grantee in ex-

cess of the amount to which the grant-ee is finally determined to be entitledunder the terms of the award con-stitute a debt to the Federal Govern-ment. If not paid within a reasonable


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period after demand, the Federal agen-cy may reduce the debt by:

(1) Making an adminstrative offsetagainst other requests for reimburse-ments,

(2) Withholding advance paymentsotherwise due to the grantee, or

(3) Other action permitted by law.(b) Except where otherwise provided

by statutes or regulations, the Federalagency will charge interest on an over-due debt in accordance with the Fed-eral Claims Collection Standards (4CFR chapter II). The date from whichinterest is computed is not extended bylitigation or the filing of any form ofappeal.

Subpart E—Entitlements[Reserved]

PART 1471—GOVERNMENTWIDEDEBARMENT AND SUSPENSION(NONPROCUREMENT) AND GOV-ERNMENTWIDE REQUIREMENTSFOR DRUG-FREE WORKPLACE(GRANTS)

Subpart A—General

Sec.1471.100 Purpose.1471.105 Definitions.1471.110 Coverage.1471.115 Policy.

Subpart B—Effect of Action

1471.200 Debarment or suspension.1471.205 Ineligible persons.1471.210 Voluntary exclusion.1471.215 Exception provision.1471.220 Continuation of covered trans-

actions.1471.225 Failure to adhere to restrictions.

Subpart C—Debarment

1471.300 General.1471.305 Causes for debarment.1471.310 Procedures.1471.311 Investigation and referral.1471.312 Notice of proposed debarment.1471.313 Opportunity to contest proposed de-

barment.1471.314 Debarring official’s decision.1471.315 Settlement and voluntary exclu-

sion.1471.320 Period of debarment.1471.325 Scope of debarment.

Subpart D—Suspension

1471.400 General.1471.405 Causes for suspension.1471.410 Procedures.1471.411 Notice of suspension.1471.412 Opportunity to contest suspension.1471.413 Suspending official’s decision.1471.415 Period of suspension.1471.420 Scope of suspension.

Subpart E—Responsibilities of GSA, Agencyand Participants

1471.500 GSA responsibilities.1471.505 FMCS responsibilities.1471.510 Participants’ responsibilities.

Subpart F—Drug-Free WorkplaceRequirements (Grants)

1471.600 Purpose.1471.605 Definitions.1471.610 Coverage.1471.615 Grounds for suspension of pay-

ments, suspension or termination ofgrants, or suspension or debarment.

1471.620 Effect of violation.1471.625 Exception provision.1471.630 Certification requirements and pro-

cedures.1471.635 Reporting of and employee sanc-

tions for convictions of criminal drug of-fenses.

APPENDIX A TO PART 1471—CERTIFICATION RE-GARDING DEBARMENT, SUSPENSION, ANDOTHER RESPONSIBILITY MATTERS—PRI-MARY COVERED TRANSACTIONS

APPENDIX B TO PART 1471—CERTIFICATION RE-GARDING DEBARMENT, SUSPENSION, INELI-GIBILITY AND VOLUNTARY EXCLUSION—LOWER TIER COVERED TRANSACTIONS

APPENDIX C TO PART 1471—CERTIFICATION RE-GARDING DRUG-FREE WORKPLACE RE-QUIREMENTS

AUTHORITY: E.O. 12549; secs. 5151–5160 of theDrug-Free Workplace Act of 1988 (Pub. L.100–690, title V, subtitle D; 41 U.S.C. 701 etseq.) Pub. L. 95–524, Oct. 27, 1978, 29 U.S.C.175a.

SOURCE: 53 FR 19189 and 19204, May 26, 1988,unless otherwise noted.

CROSS REFERENCES: See also Office of Man-agement and Budget notices published at 55FR 21679, May 25, 1990, and 60 FR 33036, June26, 1995.

Subpart A—General

§ 1471.100 Purpose.

(a) Executive Order (E.O.) 12549 pro-vides that, to the extent permitted by


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law, Executive departments and agen-cies shall participate in a government-wide system for nonprocurement debar-ment and suspension. A person who isdebarred or suspended shall be excludedfrom Federal financial and non-financial assistance and benefits underFederal programs and activities. De-barment or suspension of a participantin a program by one agency shall havegovernmentwide effect.

(b) These regulations implement sec-tion 3 of E.O. 12549 and the guidelinespromulgated by the Office of Manage-ment and Budget under section 6 of theE.O. by:

(1) Prescribing the programs and ac-tivities that are covered by the govern-mentwide system;

(2) Prescribing the governmentwidecriteria and governmentwide minimumdue process procedures that each agen-cy shall use;

(3) Providing for the listing ofdebarred and suspended participants,participants declared ineligible (seedefinition of ‘‘ineligible’’ in § 1471.105),and participants who have voluntarilyexcluded themselves from participationin covered transactions;

(4) Setting forth the consequences ofa debarment, suspension, determina-tion of ineligibility, or voluntary ex-clusion; and

(5) Offering such other guidance asnecessary for the effective implementa-tion and administration of the govern-mentwide system.

(c) These regulations also implementExecutive Order 12689 (3 CFR, 1989Comp., p. 235) and 31 U.S.C. 6101 note(Public Law 103–355, sec. 2455, 108 Stat.3327) by—

(1) Providing for the inclusion in theList of Parties Excluded from Federal Pro-curement and Nonprocurement Programsall persons proposed for debarment,debarred or suspended under the Fed-eral Acquisition Regulation, 48 CFRpart 9, subpart 9.4; persons againstwhich governmentwide exclusions havebeen entered under this part; and per-sons determined to be ineligible; and

(2) Setting forth the consequences ofa debarment, suspension, determina-tion of ineligibility, or voluntary ex-clusion.

(d) Although these regulations coverthe listing of ineligible participants

and the effect of such listing, they donot prescribe policies and proceduresgoverning declarations of ineligibility.

[60 FR 33040, 33052, June 26, 1995]


The following definitions apply tothis part:

Adequate evidence. Information suffi-cient to support the reasonable beliefthat a particular act or omission hasoccurred.

Affiliate. Persons are affiliates ofeach other if, directly or indirectly, ei-ther one controls or has the power tocontrol the other, or, a third personcontrols or has the power to controlboth. Indicia of control include, but arenot limited to: interlocking manage-ment or ownership, identity of inter-ests among family members, shared fa-cilities and equipment, common use ofemployees, or a business entity orga-nized following the suspension or de-barment of a person which has thesame or similar management, owner-ship, or principal employees as the sus-pended, debarred, ineligible, or volun-tarily excluded person.

Agency. Any executive department,military department or defense agencyor other agency of the executivebranch, excluding the independent reg-ulatory agencies.

Civil judgment. The disposition of acivil action by any court of competentjurisdiction, whether entered by ver-dict, decision, settlement, stipulation,or otherwise creating a civil liabilityfor the wrongful acts complained of; ora final determination of liability underthe Program Fraud Civil Remedies Actof 1988 (31 U.S.C. 3801–12).

Conviction. A judgment or convictionof a criminal offense by any court ofcompetent jurisdiction, whether en-tered upon a verdict or a plea, includ-ing a plea of nolo contendere.

Debarment. An action taken by a de-barring official in accordance withthese regulations to exclude a personfrom participating in covered trans-actions. A person so excluded is‘‘debarred.’’

Debarring official. An official author-ized to impose debarment. The debar-ring official is either:

(1) The agency head, or


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(2) An official designated by theagency head.

FMCS. Federal Mediation Concilia-tion Service.

Indictment. Indictment for a criminaloffense. An information or other filingby competent authority charging acriminal offense shall be given thesame effect as an indictment.

Ineligible. Excluded from participa-tion in Federal nonprocurement pro-grams pursuant to a determination ofineligibility under statutory, executiveorder, or regulatory authority, otherthan Executive Order 12549 and itsagency implementing regulations; forexemple, excluded pursuant to theDavis-Bacon Act and its implementingregulations, the equal employment op-portunity acts and executive orders, orthe environmental protection acts andexecutive orders. A person is ineligiblewhere the determination of ineligi-bility affects such person’s eligibilityto participate in more than one cov-ered transaction.

Legal proceedings. Any criminal pro-ceeding or any civil judicial proceedingto which the Federal Government or aState or local government or quasi-governmental authority is a party. Theterm includes appeals from such pro-ceedings.

List of Parties Excluded from FederalProcurement and Nonprocurement Pro-grams. A list compiled, maintained anddistributed by the General Services Ad-ministration (GSA) containing thenames and other information aboutpersons who have been debarred, sus-pended, or voluntarily excluded underExecutive Orders 12549 and 12689 andthese regulations or 48 CFR part 9, sub-part 9.4, persons who have been pro-posed for debarment under 48 CFR part9, subpart 9.4, and those persons whohave been determined to be ineligible.

Notice. A written communicationserved in person or sent by certifiedmail, return receipt requested, or itsequivalent, to the last known addressof a party, its identified counsel, itsagent for service of process, or anypartner, officer, director, owner, orjoint venturer of the party. Notice, ifundeliverable, shall be considered tohave been received by the addresseefive days after being properly sent tothe last address known by the agency.

Participant. Any person who submitsa proposal for, enters into, or reason-ably may be expected to enter into acovered transaction. This term also in-cludes any person who acts on behalf ofor is authorized to commit a partici-pant in a covered transaction as anagent or representative of another par-ticipant.

Person. Any individual, corporation,partnership, association, unit of gov-ernment or legal entity, however orga-nized, except: foreign governments orforeign governmental entities, publicinternational organizations, foreigngovernment owned (in whole or in part)or controlled entities, and entities con-sisting wholly or partially of foreigngovernments or foreign governmentalentities.

Preponderance of the evidence. Proofby information that, compared withthat opposing it, leads to the conclu-sion that the fact at issue is more prob-ably true than not.

Principal. Officer, director, owner,partner, key employee, or other personwithin a participant with primarymanagement or supervisory respon-sibilities; or a person who has a criticalinfluence on or substantive controlover a covered transaction, whether ornot employed by the participant. Per-sons who have a critical influence on orsubstantive control over a coveredtransaction are:

(1) Principal investigators.(2) [Reserved]Proposal. A solicited or unsolicited

bid, application, request, invitation toconsider or similar communication byor on behalf of a person seeking to par-ticipate or to receive a benefit, directlyor indirectly, in or under a coveredtransaction.

Respondent. A person against whom adebarment or suspension action hasbeen initiated.

State. Any of the States of the UnitedStates, the District of Columbia, theCommonwealth of Puerto Rico, anyterritory or possession of the UnitedStates, or any agency of a State, exclu-sive of institutions of higher education,hospitals, and units of local govern-ment. A State instrumentality will beconsidered part of the State govern-ment if it has a written determinationfrom a State government that such


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State considers that instrumentalityto be an agency of the State govern-ment.

Suspending official. An official au-thorized to impose suspension. The sus-pending official is either:

(1) The agency head, or(2) An official designated by the

agency head.Suspension. An action taken by a sus-

pending official in accordance withthese regulations that immediately ex-cludes a person from participating incovered transactions for a temporaryperiod, pending completion of an inves-tigation and such legal, debarment, orProgram Fraud Civil Remedies Actproceedings as may ensue. A person soexcluded is ‘‘suspended.’’

Voluntary exclusion or voluntarily ex-cluded. A status of nonparticipation orlimited participation in covered trans-actions assumed by a person pursuantto the terms of a settlement.

[53 FR 19189, 19204, May 26, 1988, as amendedat 53 FR 19189, May 26, 1988; 60 FR 33041,33052, June 26, 1995]

§ 1471.110 Coverage.(a) These regulations apply to all per-

sons who have participated, are cur-rently participating or may reasonablybe expected to participate in trans-actions under Federal nonprocurementprograms. For purposes of these regula-tions such transactions will be referredto as ‘‘covered transactions.’’

(1) Covered transaction. For purposesof these regulations, a covered trans-action is a primary covered transactionor a lower tier covered transaction.Covered transactions at any tier neednot involve the transfer of Federalfunds.

(i) Primary covered transaction. Exceptas noted in paragraph (a)(2) of this sec-tion, a primary covered transaction isany nonprocurement transaction be-tween an agency and a person, regard-less of type, including: grants, coopera-tive agreements, scholarships, fellow-ships, contracts of assistance, loans,loan guarantees, subsidies, insurance,payments for specified use, donationagreements and any other nonprocure-ment transactions between a Federalagency and a person. Primary coveredtransactions also include those trans-actions specially designated by the

U.S. Department of Housing and UrbanDevelopment in such agency’s regula-tions governing debarment and suspen-sion.

(ii) Lower tier covered transaction. Alower tier covered transaction is:

(A) Any transaction between a par-ticipant and a person other than a pro-curement contract for goods or serv-ices, regardless of type, under a pri-mary covered transaction.

(B) Any procurement contract forgoods or services between a participantand a person, regardless of type, ex-pected to equal or exceed the Federalprocurement small purchase thresholdfixed at 10 U.S.C. 2304(g) and 41 U.S.C.253(g) (currently $25,000) under a pri-mary covered transaction.

(C) Any procurement contract forgoods or services between a participantand a person under a covered trans-action, regardless of amount, underwhich that person will have a criticalinfluence on or substantive controlover that covered transaction. Suchpersons are:

(1) Principal investigators.(2) Providers of federally-required

audit services.(2) Exceptions. The following trans-

actions are not covered:(i) Statutory entitlements or manda-

tory awards (but not subtier awardsthereunder which are not themselvesmandatory), including deposited fundsinsured by the Federal Government;

(ii) Direct awards to foreign govern-ments or public international organiza-tions, or transactions with foreign gov-ernments or foreign governmental en-tities, public international organiza-tions, foreign government owned (inwhole or in part) or controlled entities,entities consisting wholly or partiallyof foreign governments or foreign gov-ernmental entities;

(iii) Benefits to an individual as apersonal entitlement without regard tothe individual’s present responsibility(but benefits received in an individual’sbusiness capacity are not excepted);

(iv) Federal employment;(v) Transactions pursuant to national

or agency-recognized emergencies ordisasters;

(vi) Incidental benefits derived fromordinary governmental operations; and


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(vii) Other transactions where the ap-plication of these regulations would beprohibited by law.

(b) Relationship to other sections. Thissection describes the types of trans-actions to which a debarment or sus-pension under the regulations willapply. Subpart B, ‘‘Effect of Action,’’§ 1471.200, ‘‘Debarment or suspension,’’sets forth the consequences of a debar-ment or suspension. Those con-sequences would obtain only with re-spect to participants and principals inthe covered transactions and activitiesdescribed in § 1471.110(a). Sections1471.325, ‘‘Scope of debarment,’’ and1471.420, ‘‘Scope of suspension,’’ governthe extent to which a specific partici-pant or organizational elements of aparticipant would be automatically in-cluded within a debarment or suspen-sion action, and the conditions underwhich affiliates or persons associatedwith a participant may also be broughtwithin the scope of the action.

(c) Relationship to Federal procurementactivities. In accordance with E.O. 12689and section 2455 of Public Law 103–355,any debarment, suspension, proposeddebarment or other governmentwideexclusion initiated under the FederalAcquisition Regulation (FAR) on orafter August 25, 1995, shall be recog-nized by and effective for ExecutiveBranch agencies and participants as anexclusion under this regulation. Simi-larly, any debarment, suspension orother governmentwide exclusion initi-ated under this regulation on or afterAugust 25, 1995, shall be recognized byand effective for those agencies as a de-barment or suspension under the FAR.

[53 FR 19189, 19204, May 26, 1988, as amendedat 60 FR 33041, 33052, June 26, 1995]

§ 1471.115 Policy.(a) In order to protect the public in-

terest, it is the policy of the FederalGovernment to conduct business onlywith responsible persons. Debarmentand suspension are discretionary ac-tions that, taken in accordance withExecutive Order 12549 and these regula-tions, are appropriate means to imple-ment this policy.

(b) Debarment and suspension are se-rious actions which shall be used onlyin the public interest and for the Fed-eral Government’s protection and not

for purposes of punishment. Agenciesmay impose debarment or suspensionfor the causes and in accordance withthe procedures set forth in these regu-lations.

(c) When more than one agency hasan interest in the proposed debarmentor suspension of a person, consider-ation shall be given to designating oneagency as the lead agency for makingthe decision. Agencies are encouragedto establish methods and proceduresfor coordinating their debarment orsuspension actions.

Subpart B—Effect of Action

§ 1471.200 Debarment or suspension.

(a) Primary covered transactions. Ex-cept to the extent prohibited by law,persons who are debarred or suspendedshall be excluded from primary coveredtransactions as either participants orprincipals throughout the ExecutiveBranch of the Federal Government forthe period of their debarment, suspen-sion, or the period they are proposedfor debarment under 48 CFR part 9,subpart 9.4. Accordingly, no agencyshall enter into primary covered trans-actions with such excluded personsduring such period, except as permittedpursuant to § 1471.215.

(b) Lower tier covered transactions. Ex-cept to the extent prohibited by law,persons who have been proposed for de-barment under 48 CFR part 9, subpart9.4, debarred or suspended shall be ex-cluded from participating as eitherparticipants or principals in all lowertier covered transactions (see§ 1471.110(a)(1)(ii)) for the period of theirexclusion.

(c) Exceptions. Debarment or suspen-sion does not affect a person’s eligi-bility for—

(1) Statutory entitlements or manda-tory awards (but not subtier awardsthereunder which are not themselvesmandatory), including deposited fundsinsured by the Federal Government;

(2) Direct awards to foreign govern-ments or public international organiza-tions, or transactions with foreign gov-ernments or foreign governmental en-tities, public international organiza-tions, foreign government owned (inwhole or in part) or controlled entities,


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and entities consisting wholly or par-tially of foreign governments or for-eign governmental entities;

(3) Benefits to an individual as a per-sonal entitlement without regard tothe individual’s present responsibility(but benefits received in an individual’sbusiness capacity are not excepted);

(4) Federal employment;(5) Transactions pursuant to national

or agency-recognized emergencies ordisasters;

(6) Incidental benefits derived fromordinary governmental operations; and

(7) Other transactions where the ap-plication of these regulations would beprohibited by law.

[60 FR 33041, 33052, June 26, 1995]

§ 1471.205 Ineligible persons.Persons who are ineligible, as defined

in § 1471.105(i), are excluded in accord-ance with the applicable statutory, ex-ecutive order, or regulatory authority.

§ 1471.210 Voluntary exclusion.Persons who accept voluntary exclu-

sions under § 1471.315 are excluded inaccordance with the terms of their set-tlements. FMCS shall, and participantsmay, contact the original action agen-cy to ascertain the extent of the exclu-sion.

§ 1471.215 Exception provision.FMCS may grant an exception per-

mitting a debarred, suspended, or vol-untarily excluded person, or a personproposed for debarment under 48 CFRpart 9, subpart 9.4, to participate in aparticular covered transaction upon awritten determination by the agencyhead or an authorized designee statingthe reason(s) for deviating from thePresidential policy established by Ex-ecutive Order 12549 and § 1471.200. How-ever, in accordance with the Presi-dent’s stated intention in the Execu-tive Order, exceptions shall be grantedonly infrequently. Exceptions shall bereported in accordance with§ 1471.505(a).

[60 FR 33041, 33052, June 26, 1995]

§ 1471.220 Continuation of coveredtransactions.

(a) Notwithstanding the debarment,suspension, proposed debarment under

48 CFR part 9, subpart 9.4, determina-tion of ineligibility, or voluntary ex-clusion of any person by an agency,agencies and participants may con-tinue covered transactions in existenceat the time the person was debarred,suspended, proposed for debarmentunder 48 CFR part 9, subpart 9.4, de-clared ineligible, or voluntarily ex-cluded. A decision as to the type of ter-mination action, if any, to be takenshould be made only after thorough re-view to ensure the propriety of the pro-posed action.

(b) Agencies and participants shallnot renew or extend covered trans-actions (other than no-cost time exten-sions) with any person who is debarred,suspended, proposed for debarmentunder 48 CFR part 9, subpart 9.4, ineli-gible or voluntary excluded, except asprovided in § 1471.215.

[60 FR 33041, 33052, June 26, 1995]

§ 1471.225 Failure to adhere to restric-tions.

(a) Except as permitted under§ 1471.215 or § 1471.220, a participantshall not knowingly do business undera covered transaction with a personwho is—

(1) Debarred or suspended;(2) Proposed for debarment under 48

CFR part 9, subpart 9.4; or(3) Ineligible for or voluntarily ex-

cluded from the covered transaction.(b) Violation of the restriction under

paragraph (a) of this section may re-sult in disallowance of costs, annul-ment or termination of award, issuanceof a stop work order, debarment or sus-pension, or other remedies as appro-priate.

(c) A participant may rely upon thecertification of a prospective partici-pant in a lower tier covered trans-action that it and its principals are notdebarred, suspended, proposed for de-barment under 48 CFR part 9, subpart9.4, ineligible, or voluntarily excludedfrom the covered transaction (See ap-pendix B of these regulations), unless itknows that the certification is erro-neous. An agency has the burden ofproof that a participant did knowinglydo business with a person that filed anerroneous certification.

[60 FR 33041, 33052, June 26, 1995]


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Subpart C—Debarment

§ 1471.300 General.

The debarring official may debar aperson for any of the causes in§ 1471.305, using procedures establishedin §§ 1471.310 through 1471.314. The exist-ence of a cause for debarment, how-ever, does not necessarily require thatthe person be debarred; the seriousnessof the person’s acts or omissions andany mitigating factors shall be consid-ered in making any debarment deci-sion.

§ 1471.305 Causes for debarment.

Debarment may be imposed in ac-cordance with the provisions of§§ 1471.300 through 1471.314 for:

(a) Conviction of or civil judgmentfor:

(1) Commission of fraud or a criminaloffense in connection with obtaining,attempting to obtain, or performing apublic or private agreement or trans-action;

(2) Violation of Federal or State anti-trust statutes, including those pro-scribing price fixing between competi-tors, allocation of customers betweencompetitors, and bid rigging;

(3) Commission of embezzlement,theft, forgery, bribery, falsification ordestruction of records, making falsestatements, receiving stolen property,making false claims, or obstruction ofjustice; or

(4) Commission of any other offenseindicating a lack of business integrityor business honesty that seriously anddirectly affects the present responsi-bility of a person.

(b) Violation of the terms of a publicagreement or transaction so serious asto affect the integrity of an agencyprogram, such as:

(1) A willful failure to perform in ac-cordance with the terms of one or morepublic agreements or transactions;

(2) A history of failure to perform orof unsatisfactory performance of one ormore public agreements or trans-actions; or

(3) A willful violation of a statutoryor regulatory provision or requirementapplicable to a public agreement ortransaction.

(c) Any of the following causes:

(1) A nonprocurement debarment byany Federal agency taken before Octo-ber 1, 1988, the effective date of theseregulations, or a procurement debar-ment by any Federal agency taken pur-suant to 48 CFR subpart 9.4;

(2) Knowingly doing business with adebarred, suspended, ineligible, or vol-untarily excluded person, in connectionwith a covered transaction, except aspermitted in § 1471.215 or § 1471.220;

(3) Failure to pay a single substantialdebt, or a number of outstanding debts(including disallowed costs and over-payments, but not including sums owedthe Federal Government under the In-ternal Revenue Code) owed to any Fed-eral agency or instrumentality, pro-vided the debt is uncontested by thedebtor or, if contested, provided thatthe debtor’s legal and administrativeremedies have been exhausted;

(4) Violation of a material provisionof a voluntary exclusion agreement en-tered into under § 1471.315 or of any set-tlement of a debarment or suspensionaction; or

(5) Violation of any requirement ofsubpart F of this part, relating to pro-viding a drug-free workplace, as setforth in § 1471.615 of this part.

(d) Any other cause of so serious orcompelling a nature that it affects thepresent responsibility of a person.

[53 FR 19189, 19204, May 26, 1988, as amendedat 54 FR 4950, 4959, Jan. 31, 1989]

§ 1471.310 Procedures.FMCS shall process debarment ac-

tions as informally as practicable, con-sistent with the principles of funda-mental fairness, using the proceduresin §§ 1471.311 through 1471.314.

§ 1471.311 Investigation and referral.Information concerning the existence

of a cause for debarment from anysource shall be promptly reported, in-vestigated, and referred, when appro-priate, to the debarring official for con-sideration. After consideration, the de-barring official may issue a notice ofproposed debarment.

§ 1471.312 Notice of proposed debar-ment.

A debarment proceeding shall be ini-tiated by notice to the respondent ad-vising:


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(a) That debarment is being consid-ered;

(b) Of the reasons for the proposeddebarment in terms sufficient to putthe respondent on notice of the con-duct or transaction(s) upon which it isbased;

(c) Of the cause(s) relied upon under§ 1471.305 for proposing debarment;

(d) Of the provisions of § 1471.311through § 1471.314, and any other FMCSprocedures, if applicable, governing de-barment decisionmaking; and

(e) Of the potential effect of a debar-ment.

§ 1471.313 Opportunity to contest pro-posed debarment.

(a) Submission in opposition. Within 30days after receipt of the notice of pro-posed debarment, the respondent maysubmit, in person, in writing, orthrough a representative, informationand argument in opposition to the pro-posed debarment.

(b) Additional proceedings as to dis-puted material facts. (1) In actions notbased upon a conviction or civil judg-ment, if the debarring official findsthat the respondent’s submission in op-position raises a genuine dispute overfacts material to the proposed debar-ment, respondent(s) shall be affordedan opportunity to appear with a rep-resentative, submit documentary evi-dence, present witnesses, and confrontany witness the agency presents.

(2) A transcribed record of any addi-tional proceedings shall be made avail-able at cost to the respondent, upon re-quest, unless the respondent and theagency, by mutual agreement, waivethe requirement for a transcript.

§ 1471.314 Debarring official’s decision.(a) No additional proceedings necessary.

In actions based upon a conviction orcivil judgment, or in which there is nogenuine dispute over material facts,the debarring official shall make a de-cision on the basis of all the informa-tion in the administrative record, in-cluding any submission made by the re-spondent. The decision shall be madewithin 45 days after receipt of any in-formation and argument submitted bythe respondent, unless the debarringofficial extends this period for goodcause.

(b) Additional proceedings necessary.(1) In actions in which additional pro-ceedings are necessary to determinedisputed material facts, written find-ings of fact shall be prepared. The de-barring official shall base the decisionon the facts as found, together withany information and argument sub-mitted by the respondent and anyother information in the administra-tive record.

(2) The debarring official may referdisputed material facts to another offi-cial for findings of fact. The debarringofficial may reject any such findings,in whole or in part, only after specifi-cally determining them to be arbitraryand capricious or clearly erroneous.

(3) The debarring official’s decisionshall be made after the conclusion ofthe proceedings with respect to dis-puted facts.

(c)(1) Standard of proof. In any debar-ment action, the cause for debarmentmust be established by a preponderanceof the evidence. Where the proposed de-barment is based upon a conviction orcivil judgment, the standard shall bedeemed to have been met.

(2) Burden of proof. The burden ofproof is on the agency proposing debar-ment.

(d) Notice of debarring official’s deci-sion. (1) If the debarring official decidesto impose debarment, the respondentshall be given prompt notice:

(i) Referring to the notice of proposeddebarment;

(ii) Specifying the reasons for debar-ment;

(iii) Stating the period of debarment,including effective dates; and

(iv) Advising that the debarment iseffective for covered transactionsthroughout the executive branch of theFederal Government unless an agencyhead or an authorized designee makesthe determination referred to in§ 1471.215.

(2) If the debarring official decidesnot to impose debarment, the respond-ent shall be given prompt notice ofthat decision. A decision not to imposedebarment shall be without prejudiceto a subsequent imposition of debar-ment by any other agency.


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§ 1471.315 Settlement and voluntaryexclusion.

(a) When in the best interest of theGovernment, FMCS may, at any time,settle a debarment or suspension ac-tion.

(b) If a participant and the agencyagree to a voluntary exclusion of theparticipant, such voluntary exclusionshall be entered on the Nonprocure-ment List (see subpart E).

§ 1471.320 Period of debarment.(a) Debarment shall be for a period

commensurate with the seriousness ofthe cause(s). If a suspension precedes adebarment, the suspension period shallbe considered in determining the de-barment period.

(1) Debarment for causes other thanthose related to a violation of the re-quirements of subpart F of this partgenerally should not exceed threeyears. Where circumstances warrant, alonger period of debarment may be im-posed.

(2) In the case of a debarment for aviolation of the requirements of sub-part F of this part (see 1471.305(c)(5)),the period of debarment shall not ex-ceed five years.

(b) The debarring official may extendan existing debarment for an addi-tional period, if that official deter-mines that an extension is necessary toprotect the public interest. However, adebarment may not be extended solelyon the basis of the facts and cir-cumstances upon which the initial de-barment action was based. If debar-ment for an additional period is deter-mined to be necessary, the proceduresof §§ 1471.311 through 1471.314 shall befollowed to extend the debarment.

(c) The respondent may request thedebarring official to reverse the debar-ment decision or to reduce the periodor scope of debarment. Such a requestshall be in writing and supported bydocumentation. The debarring officialmay grant such a request for reasonsincluding, but not limited to:

(1) Newly discovered material evi-dence;

(2) Reversal of the conviction or civiljudgment upon which the debarmentwas based;

(3) Bona fide change in ownership ormanagement;

(4) Elimination of other causes forwhich the debarment was imposed; or

(5) Other reasons the debarring offi-cial deems appropriate.

[53 FR 19189, 19204, May 26, 1988, as amendedat 54 FR 4950, 4960, Jan. 31, 1989]

§ 1471.325 Scope of debarment.(a) Scope in general. (1) Debarment of

a person under these regulations con-stitutes debarment of all its divisionsand other organizational elementsfrom all covered transactions, unlessthe debarment decision is limited byits terms to one or more specificallyidentified individuals, divisions orother organizational elements or tospecific types of transactions.

(2) The debarment action may in-clude any affiliate of the participantthat is specifically named and givennotice of the proposed debarment andan opportunity to respond (see§§ 1471.311 through 1471.314).

(b) Imputing conduct. For purposes ofdetermining the scope of debarment,conduct may be imputed as follows:

(1) Conduct imputed to participant. Thefraudulent, criminal or other seriouslyimproper conduct of any officer, direc-tor, shareholder, partner, employee, orother individual associated with a par-ticipant may be imputed to the partici-pant when the conduct occurred in con-nection with the individual’s perform-ance of duties for or on behalf of theparticipant, or with the participant’sknowledge, approval, or acquiescence.The participant’s acceptance of thebenefits derived from the conduct shallbe evidence of such knowledge, ap-proval, or acquiescence.

(2) Conduct imputed to individuals asso-ciated with participant. The fraudulent,criminal, or other seriously improperconduct of a participant may be im-puted to any officer, director, share-holder, partner, employee, or other in-dividual associated with the partici-pant who participated in, knew of, orhad reason to know of the participant’sconduct.

(3) Conduct of one participant imputedto other participants in a joint venture.The fraudulent, criminal, or other seri-ously improper conduct of one partici-pant in a joint venture, grant pursuantto a joint application, or similar ar-rangement may be imputed to other


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participants if the conduct occurred foror on behalf of the joint venture, grantpursuant to a joint application, orsimilar arrangement may be imputedto other participants if the conduct oc-curred for or on behalf of the joint ven-ture, grant pursuant to a joint applica-tion, or similar arrangement or withthe knowledge, approval, or acquies-cence of these participants. Acceptanceof the benefits derived from the con-duct shall be evidence of such knowl-edge, approval, or acquiescence.

Subpart D—Suspension§ 1471.400 General.

(a) The suspending official may sus-pend a person for any of the causes in§ 1471.405 using procedures establishedin §§ 1471.410 through 1471.413.

(b) Suspension is a serious action tobe imposed only when:

(1) There exists adequate evidence ofone or more of the causes set out in§ 1471.405, and

(2) Immediate action is necessary toprotect the public interest.

(c) In assessing the adequacy of theevidence, the agency should considerhow much information is available,how credible it is given the cir-cumstances, whether or not importantallegations are corroborated, and whatinferences can reasonably be drawn asa result. This assessment should in-clude an examination of basic docu-ments such as grants, cooperativeagreements, loan authorizations, andcontracts.

§ 1471.405 Causes for suspension.(a) Suspension may be imposed in ac-

cordance with the provisions of§§ 1471.400 through 1471.413 upon ade-quate evidence:

(1) To suspect the commission of anoffense listed in § 1471.305(a); or

(2) That a cause for debarment under§ 1471.305 may exist.

(b) Indictment shall constitute ade-quate evidence for purposes of suspen-sion actions.

§ 1471.410 Procedures.(a) Investigation and referral. Informa-

tion concerning the existence of acause for suspension from any sourceshall be promptly reported, inves-

tigated, and referred, when appro-priate, to the suspending official forconsideration. After consideration, thesuspending official may issue a noticeof suspension.

(b) Decisionmaking process. FMCSshall process suspension actions as in-formally as practicable, consistentwith principles of fundamental fair-ness, using the procedures in § 1471.411through § 1471.413.

§ 1471.411 Notice of suspension.

When a respondent is suspended, no-tice shall immediately be given:

(a) That suspension has been im-posed;

(b) That the suspension is based onan indictment, conviction, or otheradequate evidence that the respondenthas committed irregularities seriouslyreflecting on the propriety of furtherFederal Government dealings with therespondent;

(c) Describing any such irregularitiesin terms sufficient to put the respond-ent on notice without disclosing theFederal Government’s evidence;

(d) Of the cause(s) relied upon under§ 1471.405 for imposing suspension;

(e) That the suspension is for a tem-porary period pending the completionof an investigation or ensuing legal, de-barment, or Program Fraud Civil Rem-edies Act proceedings;

(f) Of the provisions of § 1471.411through § 1471.413 and any other FMCSprocedures, if applicable, governingsuspension decisionmaking; and

(g) Of the effect of the suspension.

§ 1471.412 Opportunity to contest sus-pension.

(a) Submission in opposition. Within 30days after receipt of the notice of sus-pension, the respondent may submit, inperson, in writing, or through a rep-resentative, information and argumentin opposition to the suspension.

(b) Additional proceedings as to dis-puted material facts. (1) If the sus-pending official finds that the respond-ent’s submission in opposition raises agenuine dispute over facts material tothe suspension, respondent(s) shall beafforded an opportunity to appear witha representative, submit documentary


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evidence, present witnesses, and con-front any witness the agency presents,unless:

(i) The action is based on an indict-ment, conviction or civil judgment, or

(ii) A determination is made, on thebasis of Department of Justice advice,that the substantial interests of theFederal Government in pending or con-templated legal proceedings based onthe same facts as the suspension wouldbe prejudiced.

(2) A transcribed record of any addi-tional proceedings shall be preparedand made available at cost to the re-spondent, upon request, unless the re-spondent and the agency, by mutualagreement, waive the requirement for atranscript.

§ 1471.413 Suspending official’s deci-sion.

The suspending official may modifyor terminate the suspension (for exam-ple, see § 1471.320(c) for reasons for re-ducing the period or scope of debar-ment) or may leave it in force. How-ever, a decision to modify or terminatethe suspension shall be without preju-dice to the subsequent imposition ofsuspension by any other agency or de-barment by any agency. The decisionshall be rendered in accordance withthe following provisions:

(a) No additional proceedings necessary.In actions: based on an indictment,conviction, or civil judgment; in whichthere is no genuine dispute over mate-rial facts; or in which additional pro-ceedings to determine disputed mate-rial facts have been denied on the basisof Department of Justice advice, thesuspending official shall make a deci-sion on the basis of all the informationin the administrative record, includingany submission made by the respond-ent. The decision shall be made within45 days after receipt of any informationand argument submitted by the re-spondent, unless the suspending officialextends this period for good cause.

(b) Additional proceedings necessary.(1) In actions in which additional pro-ceedings are necessary to determinedisputed material facts, written find-ings of fact shall be prepared. The sus-pending official shall base the decisionon the facts as found, together withany information and argument sub-

mitted by the respondent and anyother information in the administra-tive record.

(2) The suspending official may refermatters involving disputed materialfacts to another official for findings offact. The suspending official may re-ject any such findings, in whole or inpart, only after specifically deter-mining them to be arbitrary or capri-cious or clearly erroneous.

(c) Notice of suspending official’s deci-sion. Prompt written notice of the sus-pending official’s decision shall be sentto the respondent.

§ 1471.415 Period of suspension.(a) Suspension shall be for a tem-

porary period pending the completionof an investigation or ensuing legal, de-barment, or Program Fraud Civil Rem-edies Act proceedings, unless termi-nated sooner by the suspending officialor as provided in paragraph (b) of thissection.

(b) If legal or administrative pro-ceedings are not initiated within 12months after the date of the suspensionnotice, the suspension shall be termi-nated unless an Assistant AttorneyGeneral or United States Attorney re-quests its extension in writing, inwhich case it may be extended for anadditional six months. In no event maya suspension extend beyond 18 months,unless such proceedings have been ini-tiated within that period.

(c) The suspending official shall no-tify the Department of Justice of animpending termination of a suspension,at least 30 days before the 12-month pe-riod expires, to give that Departmentan opportunity to request an exten-sion.

§ 1471.420 Scope of suspension.The scope of a suspension is the same

as the scope of a debarment (see§ 1471.325), except that the procedures of§§ 1471.410 through 1471.413 shall be usedin imposing a suspension.

Subpart E—Responsibilities of GSA,Agency and Participants

§ 1471.500 GSA responsibilities.(a) In accordance with the OMB

guidelines, GSA shall compile, main-tain, and distribute a list of all persons


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who have been debarred, suspended, orvoluntarily excluded by agencies underExecutive Order 12549 and these regula-tions, and those who have been deter-mined to be ineligible.

(b) At a minimum, this list shall in-dicate:

(1) The names and addresses of alldebarred, suspended, ineligible, andvoluntarily excluded persons, in alpha-betical order, with cross-referenceswhen more than one name is involvedin a single action;

(2) The type of action;(3) The cause for the action;(4) The scope of the action;(5) Any termination date for each

listing; and(6) The agency and name and tele-

phone number of the agency point ofcontact for the action.

§ 1471.505 FMCS responsibilities.(a) The agency shall provide GSA

with current information concerningdebarments, suspension, determina-tions of ineligibility, and voluntary ex-clusions it has taken. Until February18, 1989, the agency shall also provideGSA and OMB with information con-cerning all transactions in whichFMCS has granted exceptions under§ 1471.215 permitting participation bydebarred, suspended, or voluntarily ex-cluded persons.

(b) Unless an alternative schedule isagreed to by GSA, the agency shall ad-vise GSA of the information set forthin § 1471.500(b) and of the exceptionsgranted under § 1471.215 within fiveworking days after taking such ac-tions.

(c) The agency shall direct inquiriesconcerning listed persons to the agencythat took the action.

(d) Agency officials shall check theNonprocurement List before enteringcovered transactions to determinewhether a participant in a primarytransaction is debarred, suspended, in-eligible, or voluntarily excluded (Tel.#).

(e) Agency officials shall check theNonprocurement List before approvingprincipals or lower tier participantswhere agency approval of the principalor lower tier participant is requiredunder the terms of the transaction, todetermine whether such principals or

participants are debarred, suspended,ineligible, or voluntarily excluded.

§ 1471.510 Participants’ responsibil-ities.

(a) Certification by participants in pri-mary covered transactions. Each partici-pant shall submit the certification inappendix A to this part for it and itsprincipals at the time the participantsubmits its proposal in connection witha primary covered transaction, exceptthat States need only complete suchcertification as to their principals.Participants may decide the methodand frequency by which they determinethe eligibility of their principals. Inaddition, each participant may, but isnot required to, check the Nonprocure-ment List for its principals (Tel. #).Adverse information on the certifi-cation will not necessarily result in de-nial of participation. However, the cer-tification, and any additional informa-tion pertaining to the certificationsubmitted by the participant, shall beconsidered in the administration ofcovered transactions.

(b) Certification by participants inlower tier covered transactions. (1) Eachparticipant shall require participantsin lower tier covered transactions toinclude the certification in appendix Bto this part for it and its principals inany proposal submitted in connectionwith such lower tier covered trans-actions.

(2) A participant may rely upon thecertification of a prospective partici-pant in a lower tier covered trans-action that it and its principals are notdebarred, suspended, ineligible, or vol-untarily excluded from the coveredtransaction by any Federal agency, un-less it knows that the certification iserroneous. Participants may decide themethod and frequency by which theydetermine the eligiblity of their prin-cipals. In addition, a participant may,but is not required to, check the Non-procurement List for its principals andfor participants (Tel. #).

(c) Changed circumstances regardingcertification. A participant shall provideimmediate written notice to FMCS ifat any time the participant learns thatits certification was erroneous whensubmitted or has become erroneous by


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reason of changed circumstances. Par-ticipants in lower tier covered trans-actions shall provide the same updatednotice to the participant to which itsubmitted its proposals.

Subpart F—Drug-Free WorkplaceRequirements (Grants)

SOURCE: 55 FR 21688, 21697, May 25, 1990, un-less otherwise noted.

§ 1471.600 Purpose.(a) The purpose of this subpart is to

carry out the Drug-Free Workplace Actof 1988 by requiring that—

(1) A grantee, other than an indi-vidual, shall certify to the agency thatit will provide a drug-free workplace;

(2) A grantee who is an individualshall certify to the agency that, as acondition of the grant, he or she willnot engage in the unlawful manufac-ture, distribution, dispensing, posses-sion or use of a controlled substance inconducting any activity with thegrant.

(b) Requirements implementing theDrug-Free Workplace Act of 1988 forcontractors with the agency are foundat 48 CFR subparts 9.4, 23.5, and 52.2.

§ 1471.605 Definitions.(a) Except as amended in this sec-

tion, the definitions of § 1471.105 applyto this subpart.

(b) For purposes of this subpart—(1) Controlled substance means a con-

trolled substance in schedules Ithrough V of the Controlled SubstancesAct (21 U.S.C. 812), and as further de-fined by regulation at 21 CFR 1308.11through 1308.15;

(2) Conviction means a finding of guilt(including a plea of nolo contendere) orimposition of sentence, or both, by anyjudicial body charged with the respon-sibility to determine violations of theFederal or State criminal drug stat-utes;

(3) Criminal drug statute means a Fed-eral or non-Federal criminal statuteinvolving the manufacture, distribu-tion, dispensing, use, or possession ofany controlled substance;

(4) Drug-free workplace means a sitefor the performance of work done inconnection with a specific grant atwhich employees of the grantee are

prohibited from engaging in the unlaw-ful manufacture, distribution, dis-pensing, possession, or use of a con-trolled substance;

(5) Employee means the employee of agrantee directly engaged in the per-formance of work under the grant, in-cluding:

(i) All direct charge employees;(ii) All indirect charge employees, un-

less their impact or involvement is in-significant to the performance of thegrant; and,

(iii) Temporary personnel and con-sultants who are directly engaged inthe performance of work under thegrant and who are on the grantee’spayroll.This definition does not include work-ers not on the payroll of the grantee(e.g., volunteers, even if used to meet amatching requirement; consultants orindependent contractors not on thepayroll; or employees of subrecipientsor subcontractors in covered work-places);

(6) Federal agency or agency meansany United States executive depart-ment, military department, govern-ment corporation, government con-trolled corporation, any other estab-lishment in the executive branch (in-cluding the Executive Office of thePresident), or any independent regu-latory agency;

(7) Grant means an award of financialassistance, including a cooperativeagreement, in the form of money, orproperty in lieu of money, by a Federalagency directly to a grantee. The termgrant includes block grant and entitle-ment grant programs, whether or notexempted from coverage under thegrants management government-widecommon rule on uniform administra-tive requirements for grants and coop-erative agreements. The term does notinclude technical assistance that pro-vides services instead of money, orother assistance in the form of loans,loan guarantees, interest subsidies, in-surance, or direct appropriations; orany veterans’ benefits to individuals,i.e., any benefit to veterans, their fami-lies, or survivors by virtue of the serv-ice of a veteran in the Armed Forces ofthe United States;

(8) Grantee means a person who ap-plies for or receives a grant directly


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from a Federal agency (except anotherFederal agency);

(9) Individual means a natural person;(10) State means any of the States of

the United States, the District of Co-lumbia, the Commonwealth of PuertoRico, any territory or possession of theUnited States, or any agency of aState, exclusive of institutions of high-er education, hospitals, and units oflocal government. A State instrumen-tality will be considered part of theState government if it has a writtendetermination from a State govern-ment that such State considers the in-strumentality to be an agency of theState government.

§ 1471.610 Coverage.

(a) This subpart applies to any grant-ee of the agency.

(b) This subpart applies to any grant,except where application of this sub-part would be inconsistent with theinternational obligations of the UnitedStates or the laws or regulations of aforeign government. A determinationof such inconsistency may be madeonly by the agency head or his/her des-ignee.

(c) The provisions of subparts A, B, C,D and E of this part apply to matterscovered by this subpart, except wherespecifically modified by this subpart.In the event of any conflict betweenprovisions of this subpart and otherprovisions of this part, the provisionsof this subpart are deemed to controlwith respect to the implementation ofdrug-free workplace requirements con-cerning grants.

§ 1471.615 Grounds for suspension ofpayments, suspension or termi-nation of grants, or suspension ordebarment.

A grantee shall be deemed in viola-tion of the requirements of this sub-part if the agency head or his or her of-ficial designee determines, in writing,that—

(a) The grantee has made a false cer-tification under § 1471.630;

(b) With respect to a grantee otherthan an individual—

(1) The grantee has violated the cer-tification by failing to carry out therequirements of paragraphs (A)(a)–(g)

and/or (B) of the certification (alter-nate I to appendix C) or

(2) Such a number of employees ofthe grantee have been convicted of vio-lations of criminal drug statutes forviolations occurring in the workplaceas to indicate that the grantee hasfailed to make a good faith effort toprovide a drug-free workplace.

(c) With respect to a grantee who isan individual—

(1) The grantee has violated the cer-tification by failing to carry out its re-quirements (alternate II to appendixC); or

(2) The grantee is convicted of acriminal drug offense resulting from aviolation occurring during the conductof any grant activity.

§ 1471.620 Effect of violation.(a) In the event of a violation of this

subpart as provided in § 1471.615, and inaccordance with applicable law, thegrantee shall be subject to one or moreof the following actions:

(1) Suspension of payments under thegrant;

(2) Suspension or termination of thegrant; and

(3) Suspension or debarment of thegrantee under the provisions of thispart.

(b) Upon issuance of any final deci-sion under this part requiring debar-ment of a grantee, the debarred grant-ee shall be ineligible for award of anygrant from any Federal agency for aperiod specified in the decision, not toexceed five years (see § 1471.320(a)(2) ofthis part).

§ 1471.625 Exception provision.The agency head may waive with re-

spect to a particular grant, in writing,a suspension of payments under agrant, suspension or termination of agrant, or suspension or debarment of agrantee if the agency head determinesthat such a waiver would be in the pub-lic interest. This exception authoritycannot be delegated to any other offi-cial.

§ 1471.630 Certification requirementsand procedures.

(a)(1) As a prior condition of beingawarded a grant, each grantee shallmake the appropriate certification to


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the Federal agency providing thegrant, as provided in appendix C to thispart.

(2) Grantees are not required to makea certification in order to continue re-ceiving funds under a grant awardedbefore March 18, 1989, or under a no-cost time extension of such a grant.However, the grantee shall make a one-time drug-free workplace certificationfor a non-automatic continuation ofsuch a grant made on or after March18, 1989.

(b) Except as provided in this section,all grantees shall make the requiredcertification for each grant. For man-datory formula grants and entitle-ments that have no application proc-ess, grantees shall submit a one-timecertification in order to continue re-ceiving awards.

(c) A grantee that is a State mayelect to make one certification in eachFederal fiscal year. States that pre-viously submitted an annual certifi-cation are not required to make a cer-tification for Fiscal Year 1990 untilJune 30, 1990. Except as provided inparagraph (d) of this section, this cer-tification shall cover all grants to allState agencies from any Federal agen-cy. The State shall retain the originalof this statewide certification in itsGovernor’s office and, prior to grantaward, shall ensure that a copy is sub-mitted individually with respect toeach grant, unless the Federal agencyhas designated a central location forsubmission.

(d)(1) The Governor of a State mayexclude certain State agencies fromthe statewide certification and author-ize these agencies to submit their owncertifications to Federal agencies. Thestatewide certification shall name anyState agencies so excluded.

(2) A State agency to which thestatewide certification does not apply,or a State agency in a State that doesnot have a statewide certification, mayelect to make one certification in eachFederal fiscal year. State agencies thatpreviously submitted a State agencycertification are not required to makea certification for Fiscal Year 1990until June 30, 1990. The State agencyshall retain the original of this Stateagency-wide certification in its centraloffice and, prior to grant award, shall

ensure that a copy is submitted indi-vidually with respect to each grant,unless the Federal agency designates acentral location for submission.

(3) When the work of a grant is doneby more than one State agency, thecertification of the State agency di-rectly receiving the grant shall bedeemed to certify compliance for allworkplaces, including those located inother State agencies.

(e)(1) For a grant of less than 30 daysperformance duration, grantees shallhave this policy statement and pro-gram in place as soon as possible, butin any case by a date prior to the dateon which performance is expected to becompleted.

(2) For a grant of 30 days or more per-formance duration, grantees shall havethis policy statement and program inplace within 30 days after award.

(3) Where extraordinary cir-cumstances warrant for a specificgrant, the grant officer may determinea different date on which the policystatement and program shall be inplace.

§ 1471.635 Reporting of and employeesanctions for convictions of crimi-nal drug offenses.

(a) When a grantee other than an in-dividual is notified that an employeehas been convicted for a violation of acriminal drug statute occurring in theworkplace, it shall take the followingactions:

(1) Within 10 calendar days of receiv-ing notice of the conviction, the grant-ee shall provide written notice, includ-ing the convicted employee’s positiontitle, to every grant officer, or otherdesignee on whose grant activity theconvicted employee was working, un-less a Federal agency has designated acentral point for the receipt of such no-tifications. Notification shall includethe identification number(s) for each ofthe Federal agency’s affected grants.

(2) Within 30 calendar days of receiv-ing notice of the conviction, the grant-ee shall do the following with respectto the employee who was convicted.

(i) Take appropriate personnel actionagainst the employee, up to and includ-ing termination, consistent with re-quirements of the Rehabilitation Actof 1973, as amended; or


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(ii) Require the employee to partici-pate satisfactorily in a drug abuse as-sistance or rehabilitation program ap-proved for such purposes by a Federal,State, or local health, law enforce-ment, or other appropriate agency.

(b) A grantee who is an individualwho is convicted for a violation of acriminal drug statute occurring duringthe conduct of any grant activity shallreport the conviction, in writing, with-in 10 calendar days, to his or her Fed-eral agency grant officer, or other des-ignee, unless the Federal agency hasdesignated a central point for the re-ceipt of such notices. Notification shallinclude the identification number(s)for each of the Federal agency’s af-fected grants.

(Approved by the Office of Management andBudget under control number 0991–0002)

APPENDIX A TO PART 1471—CERTIFI-CATION REGARDING DEBARMENT,SUSPENSION, AND OTHER RESPONSI-BILITY MATTERS—PRIMARY COVEREDTRANSACTIONS

Instructions for Certification

1. By signing and submitting this proposal,the prospective primary participant is pro-viding the certification set out below.

2. The inability of a person to provide thecertification required below will not nec-essarily result in denial of participation inthis covered transaction. The prospectiveparticipant shall submit an explanation ofwhy it cannot provide the certification setout below. The certification or explanationwill be considered in connection with the de-partment or agency’s determination whetherto enter into this transaction. However, fail-ure of the prospective primary participant tofurnish a certification or an explanationshall disqualify such person from participa-tion in this transaction.

3. The certification in this clause is a ma-terial representation of fact upon which reli-ance was placed when the department oragency determined to enter into this trans-action. If it is later determined that the pro-spective primary participant knowingly ren-dered an erroneous certification, in additionto other remedies available to the FederalGovernment, the department or agency mayterminate this transaction for cause or de-fault.

4. The prospective primary participantshall provide immediate written notice tothe department or agency to which this pro-posal is submitted if at any time the pro-spective primary participant learns that itscertification was erroneous when submitted

or has become erroneous by reason ofchanged circumstances.

5. The terms covered transaction, debarred,suspended, ineligible, lower tier covered trans-action, participant, person, primary coveredtransaction, principal, proposal, and volun-tarily excluded, as used in this clause, havethe meanings set out in the Definitions andCoverage sections of the rules implementingExecutive Order 12549. You may contact thedepartment or agency to which this proposalis being submitted for assistance in obtain-ing a copy of those regulations.

6. The prospective primary participantagrees by submitting this proposal that,should the proposed covered transaction beentered into, it shall not knowingly enterinto any lower tier covered transaction witha person who is proposed for debarmentunder 48 CFR part 9, subpart 9.4, debarred,suspended, declared ineligible, or voluntarilyexcluded from participation in this coveredtransaction, unless authorized by the depart-ment or agency entering into this trans-action.

7. The prospective primary participant fur-ther agrees by submitting this proposal thatit will include the clause titled ‘‘Certifi-cation Regarding Debarment, Suspension,Ineligibility and Voluntary Exclusion-LowerTier Covered Transaction,’’ provided by thedepartment or agency entering into this cov-ered transaction, without modification, inall lower tier covered transactions and in allsolicitations for lower tier covered trans-actions.

8. A participant in a covered transactionmay rely upon a certification of a prospec-tive participant in a lower tier coveredtransaction that it is not proposed for debar-ment under 48 CFR part 9, subpart 9.4,debarred, suspended, ineligible, or volun-tarily excluded from the covered trans-action, unless it knows that the certificationis erroneous. A participant may decide themethod and frequency by which it deter-mines the eligibility of its principals. Eachparticipant may, but is not required to,check the List of Parties Excluded from Fed-eral Procurement and Nonprocurement Pro-grams.

9. Nothing contained in the foregoing shallbe construed to require establishment of asystem of records in order to render in goodfaith the certification required by thisclause. The knowledge and information of aparticipant is not required to exceed thatwhich is normally possessed by a prudentperson in the ordinary course of businessdealings.

10. Except for transactions authorizedunder paragraph 6 of these instructions, if aparticipant in a covered transaction know-ingly enters into a lower tier covered trans-action with a person who is proposed for de-barment under 48 CFR part 9, subpart 9.4,


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29 CFR Ch. XII (7–1–01 Edition)Pt. 1471, App. B

suspended, debarred, ineligible, or volun-tarily excluded from participation in thistransaction, in addition to other remediesavailable to the Federal Government, the de-partment or agency may terminate thistransaction for cause or default.

Certification Regarding Debarment, Suspension,and Other Responsibility Matters—PrimaryCovered Transactions

(1) The prospective primary participantcertifies to the best of its knowledge and be-lief, that it and its principals:

(a) Are not presently debarred, suspended,proposed for debarment, declared ineligible,or voluntarily excluded by any Federal de-partment or agency;

(b) Have not within a three-year periodpreceding this proposal been convicted of orhad a civil judgment rendered against themfor commission of fraud or a criminal offensein connection with obtaining, attempting toobtain, or performing a public (Federal,State or local) transaction or contract undera public transaction; violation of Federal orState antitrust statutes or commission ofembezzlement, theft, forgery, bribery, fal-sification or destruction of records, makingfalse statements, or receiving stolen prop-erty;

(c) Are not presently indicted for or other-wise criminally or civilly charged by a gov-ernmental entity (Federal, State or local)with commission of any of the offenses enu-merated in paragraph (1)(b) of this certifi-cation; and

(d) Have not within a three-year periodpreceding this application/proposal had oneor more public transactions (Federal, Stateor local) terminated for cause or default.

(2) Where the prospective primary partici-pant is unable to certify to any of the state-ments in this certification, such prospectiveparticipant shall attach an explanation tothis proposal.

[60 FR 33042, 33052, June 26, 1995]

APPENDIX B TO PART 1471—CERTIFI-CATION REGARDING DEBARMENT,SUSPENSION, INELIGIBILITY AND VOL-UNTARY EXCLUSION—LOWER TIERCOVERED TRANSACTIONS


1. By signing and submitting this proposal,the prospective lower tier participant is pro-viding the certification set out below.

2. The certification in this clause is a ma-terial representation of fact upon which reli-ance was placed when this transaction wasentered into. If it is later determined thatthe prospective lower tier participant know-ingly rendered an erroneous certification, inaddition to other remedies available to theFederal Government the department or

agency with which this transaction origi-nated may pursue available remedies, includ-ing suspension and/or debarment.

3. The prospective lower tier participantshall provide immediate written notice tothe person to which this proposal is sub-mitted if at any time the prospective lowertier participant learns that its certificationwas erroneous when submitted or had be-come erroneous by reason of changed cir-cumstances.

4. The terms covered transaction, debarred,suspended, ineligible, lower tier covered trans-action, participant, person, primary coveredtransaction, principal, proposal, and volun-tarily excluded, as used in this clause, havethe meaning set out in the Definitions andCoverage sections of rules implementing Ex-ecutive Order 12549. You may contact theperson to which this proposal is submittedfor assistance in obtaining a copy of thoseregulations.

5. The prospective lower tier participantagrees by submitting this proposal that,should the proposed covered transaction beentered into, it shall not knowingly enterinto any lower tier covered transaction witha person who is proposed for debarmentunder 48 CFR part 9, subpart 9.4, debarred,suspended, declared ineligible, or voluntarilyexcluded from participation in this coveredtransaction, unless authorized by the depart-ment or agency with which this transactionoriginated.

6. The prospective lower tier participantfurther agrees by submitting this proposalthat it will include this clause titled ‘‘Cer-tification Regarding Debarment, Suspension,Ineligibility and Voluntary Exclusion-LowerTier Covered Transaction,’’ without modi-fication, in all lower tier covered trans-actions and in all solicitations for lower tiercovered transactions.

7. A participant in a covered transactionmay rely upon a certification of a prospec-tive participant in a lower tier coveredtransaction that it is not proposed for debar-ment under 48 CFR part 9, subpart 9.4,debarred, suspended, ineligible, or volun-tarily excluded from covered transactions,unless it knows that the certification is erro-neous. A participant may decide the methodand frequency by which it determines theeligibility of its principals. Each participantmay, but is not required to, check the List ofParties Excluded from Federal Procurementand Nonprocurement Programs.

8. Nothing contained in the foregoing shallbe construed to require establishment of asystem of records in order to render in goodfaith the certification required by thisclause. The knowledge and information of aparticipant is not required to exceed thatwhich is normally possessed by a prudentperson in the ordinary course of businessdealings.


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9. Except for transactions authorized underparagraph 5 of these instructions, if a partic-ipant in a covered transaction knowingly en-ters into a lower tier covered transactionwith a person who is proposed for debarmentunder 48 CFR part 9, subpart 9.4, suspended,debarred, ineligible, or voluntarily excludedfrom participation in this transaction, in ad-dition to other remedies available to theFederal Government, the department oragency with which this transaction origi-nated may pursue available remedies, includ-ing suspension and/or debarment.

Certification Regarding Debarment, Suspension,Ineligibility an Voluntary Exclusion—LowerTier Covered Transactions

(1) The prospective lower tier participantcertifies, by submission of this proposal, thatneither it nor its principals is presentlydebarred, suspended, proposed for debarment,declared ineligible, or voluntarily excludedfrom participation in this transaction by anyFederal department or agency.

(2) Where the prospective lower tier partic-ipant is unable to certify to any of the state-ments in this certification, such prospectiveparticipant shall attach an explanation tothis proposal.

[60 FR 33042, 33052, June 26, 1995]

APPENDIX C TO PART 1471—CERTIFI-CATION REGARDING DRUG-FREEWORKPLACE REQUIREMENTS


1. By signing and/or submitting this appli-cation or grant agreement, the grantee isproviding the certification set out below.

2. The certification set out below is a ma-terial representation of fact upon which reli-ance is placed when the agency awards thegrant. If it is later determined that thegrantee knowingly rendered a false certifi-cation, or otherwise violates the require-ments of the Drug-Free Workplace Act, theagency, in addition to any other remediesavailable to the Federal Government, maytake action authorized under the Drug-FreeWorkplace Act.

3. For grantees other than individuals, Al-ternate I applies.

4. For grantees who are individuals, Alter-nate II applies.

5. Workplaces under grants, for granteesother than individuals, need not be identifiedon the certification. If known, they may beidentified in the grant application. If thegrantee does not identify the workplaces atthe time of application, or upon award, ifthere is no application, the grantee mustkeep the identity of the workplace(s) on filein its office and make the information avail-able for Federal inspection. Failure to iden-tify all known workplaces constitutes a vio-

lation of the grantee’s drug-free workplacerequirements.

6. Workplace identifications must includethe actual address of buildings (or parts ofbuildings) or other sites where work underthe grant takes place. Categorical descrip-tions may be used (e.g., all vehicles of a masstransit authority or State highway depart-ment while in operation, State employees ineach local unemployment office, performersin concert halls or radio studios).

7. If the workplace identified to the agencychanges during the performance of the grant,the grantee shall inform the agency of thechange(s), if it previously identified theworkplaces in question (see paragraph five).

8. Definitions of terms in the Nonprocure-ment Suspension and Debarment commonrule and Drug-Free Workplace common ruleapply to this certification. Grantees’ atten-tion is called, in particular, to the followingdefinitions from these rules:

Controlled substance means a controlledsubstance in Schedules I through V of theControlled Substances Act (21 U.S.C. 812) andas further defined by regulation (21 CFR1308.11 through 1308.15);

Conviction means a finding of guilt (includ-ing a plea of nolo contendere) or impositionof sentence, or both, by any judicial bodycharged with the responsibility to determineviolations of the Federal or State criminaldrug statutes;

Criminal drug statute means a Federal ornon-Federal criminal statute involving themanufacture, distribution, dispensing, use,or possession of any controlled substance;

Employee means the employee of a granteedirectly engaged in the performance of workunder a grant, including: (i) All direct chargeemployees; (ii) All indirect charge employeesunless their impact or involvement is insig-nificant to the performance of the grant;and, (iii) Temporary personnel and consult-ants who are directly engaged in the per-formance of work under the grant and whoare on the grantee’s payroll. This definitiondoes not include workers not on the payrollof the grantee (e.g., volunteers, even if usedto meet a matching requirement; consult-ants or independent contractors not on thegrantee’s payroll; or employees of subrecipi-ents or subcontractors in covered work-places).

Certification Regarding Drug-Free WorkplaceRequirements

ALTERNATE I. (GRANTEES OTHER THANINDIVIDUALS)

A. The grantee certifies that it will or willcontinue to provide a drug-free workplaceby:

(a) Publishing a statement notifying em-ployees that the unlawful manufacture, dis-tribution, dispensing, possession, or use of acontrolled substance is prohibited in the


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29 CFR Ch. XII (7–1–01 Edition)Pt. 1471, App. C

grantee’s workplace and specifying the ac-tions that will be taken against employeesfor violation of such prohibition;

(b) Establishing an ongoing drug-freeawareness program to inform employeesabout—

(1) The dangers of drug abuse in the work-place;

(2) The grantee’s policy of maintaining adrug-free workplace;

(3) Any available drug counseling, rehabili-tation, and employee assistance programs;and

(4) The penalties that may be imposedupon employees for drug abuse violations oc-curring in the workplace;

(c) Making it a requirement that each em-ployee to be engaged in the performance ofthe grant be given a copy of the statementrequired by paragraph (a);

(d) Notifying the employee in the state-ment required by paragraph (a) that, as acondition of employment under the grant,the employee will—

(1) Abide by the terms of the statement;and

(2) Notify the employer in writing of his orher conviction for a violation of a criminaldrug statute occurring in the workplace nolater than five calendar days after such con-viction;

(e) Notifying the agency in writing, withinten calendar days after receiving noticeunder paragraph (d)(2) from an employee orotherwise receiving actual notice of suchconviction. Employers of convicted employ-ees must provide notice, including positiontitle, to every grant officer or other designeeon whose grant activity the convicted em-ployee was working, unless the Federal agen-cy has designated a central point for the re-ceipt of such notices. Notice shall includethe identification number(s) of each affectedgrant;

(f) Taking one of the following actions,within 30 calendar days of receiving noticeunder paragraph (d)(2), with respect to anyemployee who is so convicted—

(1) Taking appropriate personnel actionagainst such an employee, up to and includ-ing termination, consistent with the require-ments of the Rehabilitation Act of 1973, asamended; or

(2) Requiring such employee to participatesatisfactorily in a drug abuse assistance orrehabilitation program approved for suchpurposes by a Federal, State, or local health,law enforcement, or other appropriate agen-cy;

(g) Making a good faith effort to continueto maintain a drug-free workplace throughimplementation of paragraphs (a), (b), (c),(d), (e) and (f).

B. The grantee may insert in the space pro-vided below the site(s) for the performance ofwork done in connection with the specificgrant:

Place of Performance (Street address, city,county, State, zip code)

llllllllllllllllllllllll



Check b if there are workplaces on file thatare not identified here.

ALTERNATE II. (GRANTEES WHO AREINDIVIDUALS)

(a) The grantee certifies that, as a condi-tion of the grant, he or she will not engagein the unlawful manufacture, distribution,dispensing, possession, or use of a controlledsubstance in conducting any activity withthe grant;

(b) If convicted of a criminal drug offenseresulting from a violation occurring duringthe conduct of any grant activity, he or shewill report the conviction, in writing, within10 calendar days of the conviction, to everygrant officer or other designee, unless theFederal agency designates a central point forthe receipt of such notices. When notice ismade to such a central point, it shall includethe identification number(s) of each affectedgrant.

[55 FR 21690, 21697, May 25, 1990]


137

CHAPTER XIV—EQUALEMPLOYMENT OPPORTUNITY

COMMISSION

Part Page1600 Employee responsibilities and conduct ................... 1391601 Procedural regulations ............................................ 1391602 Recordkeeping and reporting requirements under

title VII and the ADA ........................................... 1611603 Procedures for previously exempt State and local

government employee complaints of employmentdiscrimination under section 321 of the Govern-ment Employee Rights Act of 1991 ....................... 174

1604 Guidelines on discrimination because of sex ........... 1821605 Guidelines on discrimination because of religion ... 1921606 Guidelines on discrimination because of national

origin .................................................................... 1961607 Uniform guidelines on employee selection proce-

dures (1978) ........................................................... 1991608 Affirmative action appropriate under title VII of

the Civil Rights Act of 1964, as amended .............. 2251610 Availability of records ............................................ 2331611 Privacy Act regulations .......................................... 2431612 Government in the Sunshine Act regulations ......... 2491614 Federal sector equal employment opportunity ....... 2551615 Enforcement of nondiscrimination on the basis of

handicap in programs or activities conducted bythe Equal Employment Opportunity Commission 287

1620 The Equal Pay Act .................................................. 2931621 Procedures—the Equal Pay Act .............................. 3081625 Age Discrimination in Employment Act ................. 3091626 Procedures—Age Discrimination in Employment

Act ....................................................................... 3291627 Records to be made or kept relating to age: notices

to be posted: administrative exemptions ............. 3341630 Regulations to implement the equal employment

provisions of the Americans with Disabilities Act 341


138

29 CFR Ch. XIV (7–1–01 Edition)

Part Page1640 Procedures for coordinating the investigation of

complaints or charges of employment discrimi-nation based on disability subject to the Ameri-cans with Disabilities Act and section 504 of theRehabilitation Act of 1973 .................................... 373

1641 Procedures for complaints/charges of employmentdiscrimination based on disability filed againstemployers holding government contracts or sub-contracts .............................................................. 380

1650 Debt collection ........................................................ 3841690 Procedures on interagency coordination of equal

employment opportunity issuances ..................... 3961691 Procedures for complaints of employment dis-

crimination filed against recipients of Federal fi-nancial assistance ................................................ 401

1692–1899 [Reserved]


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PART 1600—EMPLOYEERESPONSIBILITIES AND CONDUCT

AUTHORITY: 5 U.S.C. 7301.

§ 1600.101 Cross-reference to employeeethical conduct standards and fi-nancial disclosure regulations.

Employees of the Equal EmploymentOpportunity Commission (EEOC) aresubject to the executive branch-wideStandards of Ethical Conduct at 5 CFRpart 2635, the EEOC regulation at 5CFR part 7201, which supplements theexecutive branch-wide standards, andthe executive branch-wide financialdisclosure regulations at 5 CFR part2634.

[61 FR 7067, Feb. 26, 1996]

PART 1601—PROCEDURALREGULATIONS

Sec.1601.1 Purpose.

Subpart A—Definitions

1601.2 Terms defined in title VII of the CivilRights Act and the Americans with Dis-abilities Act.

1601.3 Other definitions.1601.4 Vice Chairman’s functions.1601.5 District; area; supervisory authority.

Subpart B—Procedure for the Prevention ofUnlawful Employment Practices

1601.6 Submission of information.1601.7 Charges by or on behalf of persons

claiming to be aggrieved.1601.8 Where to make a charge.1601.9 Form of charge.1601.10 Withdrawal of a charge by a person

claiming to be aggrieved.1601.11 Charges by members of the Commis-

sion.1601.12 Contents of charge; amendment of

charge.1601.13 Filing; deferrals to State and local

agencies.1601.14 Service of charge or notice of

charge.

INVESTIGATION OF A CHARGE

1601.15 Investigative authority.1601.16 Access to and production of evi-

dence; testimony of witnesses; procedureand authority.

1601.17 Witnesses for public hearings.

PROCEDURE FOLLOWING FILING OF A CHARGE

1601.18 Dismissal: Procedure and authority.1601.19 No cause determinations: Procedure

and authority.1601.20 Negotiated settlement.1601.21 Reasonable cause determination:

Procedure and authority.1601.22 Confidentiality.

PROCEDURE TO RECTIFY UNLAWFULEMPLOYMENT PRACTICES

1601.23 Preliminary or temporary relief.1601.24 Conciliation: Procedure and author-

ity.1601.25 Failure of conciliation; notice.1601.26 Confidentiality of endeavors.

PROCEDURE CONCERNING THE INSTITUTION OFCIVIL ACTIONS

1601.27 Civil actions by the Commission.1601.28 Notice of right to sue: Procedure and

authority.1601.29 Referral to the Attorney General.

Subpart C—Notices to Employees, Appli-cants for Employment and UnionMembers

1601.30 Notices to be posted.

Subpart D—Construction of Rules

1601.34 Rules to be liberally construed.

Subpart E—Issuance, Amendment, orRepeal of Rules

1601.35 Petitions.1601.36 Action on petition.

Subpart F [Reserved]

Subpart G—FEP Agency DesignationProcedures

1601.70 FEP agency qualifications.1601.71 FEP agency notification.1601.72–1601.73 [Reserved]1601.74 Designated and notice agencies.1601.75 Certification of designated FEP

agencies.1601.76 Right of party to request review.1601.77 Review by the Commission.1601.78 Evaluation of designated FEP agen-

cies certified by the Commission.1601.79 Revocation of certification.1601.80 Certified designated FEP agencies.

Subpart H—Title VII Interpretations andOpinions by the Commission

1601.91 Request for title VII interpretationor opinion.

1601.92 Contents of request; where to file.1601.93 Opinions—title VII.


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29 CFR Ch. XIV (7–1–01 Edition)§ 1601.1

AUTHORITY: 42 U.S.C. 2000e to 2000e–17; 42U.S.C. 12111 to 12117.


EDITORIAL NOTE: Nomenclature changes topart 1601 appear at 56 FR 8624, Mar. 7, 1991.

§ 1601.1 Purpose.The regulations set forth in this part

contain the procedures established bythe Equal Employment OpportunityCommission for carrying out its re-sponsibilities in the administrationand enforcement of title VII of theCivil Rights Act of 1964 and the Ameri-cans with Disabilities Act of 1990. Sec-tion 107 of the Americans with Disabil-ities Act incorporates the powers, rem-edies and procedures set forth in sec-tions 705, 706, 707, 709 and 710 of theCivil Rights Act of 1964. Based on itsexperience in the enforcement of titleVII and the Americans with Disabil-ities Act and upon its evaluation ofsuggestions and petitions for amend-ments submitted by interested personsin accordance with § 1601.31, the Com-mission may from time to time amendand revise these procedures.

[56 FR 9624, Mar. 7, 1991]

Subpart A—Definitions§ 1601.2 Terms defined in title VII of

the Civil Rights Act and the Ameri-cans with Disabilities Act.

The terms person, employer, employ-ment agency, labor organization, em-ployee, commerce, industry affecting com-merce, State and religion as used in thispart shall have the meanings set forthin section 701 of title VII of the CivilRights Act of 1964. The term ‘‘dis-ability’’ shall have the meaning setforth in section 3 of the Americanswith Disabilities Act of 1990.

[56 FR 9624, Mar. 7, 1991]

§ 1601.3 Other definitions.(a) For the purposes of this part, the

term title VII shall mean title VII ofthe Civil Rights Act of 1964; the termADA shall mean the Americans withDisabilities Act of 1990; the term Com-mission shall mean the Equal Employ-ment Opportunity Commission or anyof its designated representatives; Wash-ington Field Office shall mean the Com-

mission’s primary non-Headquartersoffice serving the District of Columbiaand surrounding Maryland and Vir-ginia suburban counties and jurisdic-tions; the term field office shall meanany of the Commission’s District Of-fices, Area Offices and Local Offices,and its Washington Field Office; theterm FEP agency shall mean a State orlocal agency which the Commission hasdetermined satisfies the criteria statedin section 706(c) of title VII; and theterm verified shall mean sworn to or af-firmed before a notary public, des-ignated representative of the Commis-sion, or other person duly authorizedby law to administer oaths and takeacknowledgements, or supported by anunsworn declaration in writing underpenalty of perjury.

(b) The delegations of authority insubpart B of this part are applicable tocharges filed pursuant to either section706 or section 707 of title VII.

[42 FR 55388, Oct. 14, 1977, as amended at 56FR 9624, Mar. 7, 1991]

§ 1601.4 Vice Chairman’s functions.

The member of the Commission des-ignated by the President to serve asVice Chairman shall act as Chairmanin the absence or disability of theChairman or in the event of a vacancyin that office.

§ 1601.5 District; area; supervisory au-thority.

The term ‘‘district’’ as used hereinshall mean that part of the UnitedStates or any territory thereof fixed bythe Commission as a particular dis-trict. The term ‘‘district director’’shall refer to that person designated asthe Commission’s chief officer in eachdistrict. The term ‘‘Washington FieldOffice Director’’ shall refer to that per-son designated as the Commission’schief officer in the Washington FieldOffice. Any authority of, or delegationof authority to, District Directors shallbe deemed to include the Director ofthe Washington Field Office. The term‘‘area’’ shall mean that part of theUnited States within a district fixed bythe Commission as a particular sub-


141

Equal Employment Opportunity Comm. § 1601.8

unit of a district. The term ‘‘area di-rector’’ shall refer to that person des-ignated as the Commission’s chief offi-cer in each area. The term ‘‘local of-fice’’ shall mean an EEOC office withresponsibility over a part of the UnitedStates within a district fixed by theCommission as a particular sub-unit ofa district. The term ‘‘local director’’shall refer to that person designated asthe Commission’s chief officer for thelocal office. Each district office and theWashington Field Office will operateunder the supervision of the ProgramDirector, Office of Program Operationsthrough the Directors Field Manage-ment Programs, Office of Program Op-erations, and the General Counsel.Each area and local office will operateunder the supervision of the district di-rector. Any or all delegations, or ac-tions taken, as provided by this partmay be revoked and/or exercised by thesupervisor in keeping with the super-visory structure described in this sec-tion.

[44 FR 4668, Jan. 23, 1979, as amended at 47FR 46275, Oct. 18, 1982; 49 FR 13024, Apr. 2,1984; 54 FR 32061, Aug. 4, 1989]

Subpart B—Procedure for the Pre-vention of Unlawful Employ-ment Practices

§ 1601.6 Submission of information.

(a) The Commission shall receive in-formation concerning alleged viola-tions of title VII or the ADA from anyperson. Where the information dis-closes that a person is entitled to file acharge with the Commission, the ap-propriate office shall render assistancein the filing of a charge. Any person ororganization may request the issuanceof a Commissioner charge for an in-quiry into individual or systematic dis-crimination. Such request, with anypertinent information, should be sub-mitted to the nearest field office.

(b) A person who submits data or evi-dence to the Commission may retainor, on payment of lawfully prescribedcosts, procure a copy of transcriptthereof, except that a witness may forgood cause be limited to inspection of

the official transcript of his or her tes-timony.

[42 FR 55388, Oct. 14, 1977, as amended at 52FR 26957, July 17, 1987; 54 FR 32061, Aug. 4,1989; 56 FR 9624, Mar. 7, 1991]

§ 1601.7 Charges by or on behalf ofpersons claiming to be aggrieved.

(a) A charge that any person has en-gaged in or is engaging in an unlawfulemployment practice within the mean-ing of title VII or the ADA may bemade by or on behalf of any personclaiming to be aggrieved. A charge onbehalf of a person claiming to be ag-grieved may be made by any person,agency, or organization. The writtencharge need not identify by name theperson on whose behalf it is made. Theperson making the charge, however,must provide the Commission with thename, address and telephone number ofthe person on whose behalf the chargeis made. During the Commission inves-tigation, Commission personnel shallverify the authorization of such chargeby the person on whose behalf thecharge is made. Any such person mayrequest that the Commission shallkeep his or her identity confidential.However, such request for confiden-tiality shall not prevent the Commis-sion from disclosing the identity toFederal, State or local agencies thathave agreed to keep such informationconfidential. If this condition is vio-lated by a recipient agency, the Com-mission may decline to honor subse-quent requests for such information.

(b) The person claiming to be ag-grieved has the responsibility to pro-vide the Commission with notice of anychange in address and with notice ofany prolonged absence from that cur-rent address so that he or she can belocated when necessary during theCommission’s consideration of thecharge.


§ 1601.8 Where to make a charge.

A charge may be made in person orby mail at the offices of the Commis-sion in Washington, DC, or any of its


142


field offices or with any designated rep-resentative of the Commission. The ad-dresses of the Commission’s field of-fices appear in § 1610.4.

[44 FR 4668, Jan. 23, 1979, as amended at 49FR 13024, Apr. 2, 1984; 54 FR 32061, Aug. 4,1989]

§ 1601.9 Form of charge.A charge shall be in writing and

signed and shall be verified.

§ 1601.10 Withdrawal of a charge by aperson claiming to be aggrieved.

A charge filed by or on behalf of aperson claiming to be aggrieved may bewithdrawn only by the person claimingto be aggrieved and only with the con-sent of the Commission. The Commis-sion hereby delegates authority to Dis-trict Directors, Area Directors, LocalDirectors, the Program Director, Officeof Program Operations, Director ofSystemic Programs, Office of ProgramOperations, or Directors Field Manage-ment Programs, Office of Program Op-erations, or their designees, to grantconsent to a request to withdraw acharge, other than a Commissionercharge, where the withdrawal of thecharge will not defeat the purposes oftitle VII or the ADA.

[44 FR 4669, Jan. 23, 1979, as amended at 47FR 46275, Oct. 18, 1982; 49 FR 13024, Apr. 2,1984; 54 FR 32061, Aug. 4, 1989; 56 FR 9624,Mar. 7, 1991]

§ 1601.11 Charges by members of theCommission.

(a) Any member of the Commissionmay file a charge with the Commis-sion. Such charge shall be in writingand signed and shall be verified.

(b) A Commissioner who files acharge under paragraph (a) of this sec-tion may withdraw the charge with theconsent of the Commission. The Com-mission may withdraw any charge filedunder paragraph (a) of this section by aCommissioner who is no longer holdingoffice when it determines that the pur-poses of title VII or the ADA are nolonger served by processing the charge.Commissioner charges may not bewithdrawn pursuant to this sectionafter a determination as to reasonablecause has been made. This paragraphdoes not apply to a charge filed by aCommissioner which is on behalf of a

person claiming to be aggrieved withinthe meaning of § 1601.7 unless such per-son submits a written request for with-drawal to the Commission.

[43 FR 30798, July 18, 1978, as amended at 56FR 9624, Mar. 7, 1991]

§ 1601.12 Contents of charge; amend-ment of charge.

(a) Each charge should contain thefollowing:

(1) The full name, address and tele-phone number of the person makingthe charge except as provided in§ 1601.7;

(2) The full name and address of theperson against whom the charge ismade, if known (hereinafter referred toas the respondent);

(3) A clear and concise statement ofthe facts, including pertinent dates,constituting the alleged unlawful em-ployment practices: See § 1601.15(b);

(4) If known, the approximate num-ber of employees of the respondent em-ployer or the approximate number ofmembers of the respondent labor orga-nization, as the case may be; and

(5) A statement disclosing whetherproceedings involving the alleged un-lawful employment practice have beencommenced before a State or localagency charged with the enforcementof fair employment practice laws and,if so, the date of such commencementand the name of the agency.

(b) Notwithstanding the provisions ofparagraph (a) of this section, a chargeis sufficient when the Commission re-ceives from the person making thecharge a written statement sufficientlyprecise to identify the parties, and todescribe generally the action or prac-tices complained of. A charge may beamended to cure technical defects oromissions, including failure to verifythe charge, or to clarify and amplifyallegations made therein. Such amend-ments and amendments alleging addi-tional acts which constitute unlawfulemployment practices related to orgrowing out of the subject matter ofthe original charge will relate back tothe date the charge was first received.A charge that has been so amendedshall not be required to be redeferred.


143


§ 1601.13 Filing; deferrals to State andlocal agencies.

(a) Initial presentation of a charge tothe Commission. (1) Charges arising injurisdictions having no FEP agency arefiled with the Commission upon re-ceipt. Such charges are timely filed ifreceived by the Commission within 180days from the date of the alleged viola-tion.

(2) A jurisdiction having a FEP agen-cy without subject matter jurisdictionover a charge (e.g., an agency whichdoes not cover sex discrimination ordoes not cover nonprofit organizations)is equivalent to a jurisdiction havingno FEP agency. Charges over which aFEP agency has no subject matter ju-risdiction are filed with the Commis-sion upon receipt and are timely filedif received by the Commission within180 days from the date of the allegedviolation.

(3) Charges arising in jurisdictionshaving a FEP agency with subject mat-ter jurisdiction over the charges are tobe processed in accordance with theCommission’s deferral policy set forthbelow and the procedures in paragraph(a)(4) of this section.

(i) In order to give full weight to thepolicy of section 706(c) of title VII,which affords State and local fair em-ployment practice agencies that comewithin the provisions of that section anopportunity to remedy alleged dis-crimination concurrently regulated bytitle VII or the ADA and State or locallaw, the Commission adopts the fol-lowing procedures with respect to alle-gations of discrimination filed with theCommission. It is the intent of theCommission to thereby encourage themaximum degree of effectiveness in theState and local agencies. The Commis-sion shall endeavor to maintain closecommunication with the State andlocal agencies with respect to all mat-ters forwarded to such agencies andshall provide such assistance to Stateand local agencies as is permitted bylaw and as is practicable.

(ii) Section 706(c) of title VII grantsStates and their political subdivisionsthe exclusive right to process allega-tions of discrimination filed by a per-son other than a Commissioner for aperiod of 60 days (or 120 days during thefirst year after the effective date of the

qualifying State or local law). Thisright exists where, as set forth in§ 1601.70, a State or local law prohibitsthe employment practice alleged to beunlawful and a State or local agencyhas been authorized to grant or seekrelief. After the expiration of the ex-clusive processing period, the Commis-sion may commence processing the al-legation of discrimination.

(iii) A FEP agency may waive itsright to the period of exclusive proc-essing of charges provided under sec-tion 706(c) of title VII with respect toany charge or category of charges. Cop-ies of all such charges will be for-warded to the appropriate FEP agency.

(4) The following procedures shall befollowed with respect to charges whicharise in jurisdictions having a FEPagency with subject matter jurisdic-tion over the charges:

(i) Where any document, whether ornot verified, is received by the Com-mission as provided in § 1601.8 whichmay constitute a charge cognizableunder title VII or the ADA, and wherethe FEP agency has not waived itsright to the period of exclusive proc-essing with respect to that document,that document shall be deferred to theappropriate FEP agency as provided inthe procedures set forth below:

(A) All such documents shall be datedand time stamped upon receipt.

(B) A copy of the originial document,shall be transmitted by registeredmail, return receipt requested, to theappropriate FEP agency, or, where theFEP agency has consented thereto, bycertified mail, by regular mail or byhand delivery. State or local pro-ceedings are deemed to have com-menced on the date such document ismailed or hand delivered.

(C) The person claiming to be ag-grieved and any person filing a chargeon behalf of such person shall be noti-fied, in writing, that the documentwhich he or she sent to the Commis-sion has been forwarded to the FEPagency pursuant to the provisions ofsection 706(c) of title VII.

(ii) Such charges are deemed to befiled with the Commission as follows:

(A) Where the document on its faceconstitutes a charge within a categoryof charges over which the FEP agencyhas waived its rights to the period of


144


exclusive processing referred to inparagraph (a)(3)(iii) of this section, thecharge is deemed to be filed with theCommission upon receipt of the docu-ment. Such filing is timely if thecharge is received within 300 days fromthe date of the alleged violation.

(B) Where the document on its faceconstitutes a charge which is not with-in a category of charges over which theFEP agency has waived its right to theperiod of exclusive processing referredto in paragraph (a)(3)(iii) of this sec-tion, the Commission shall process thedocument in accordance with para-graph (a)(4)(i) of this section. Thecharge shall be deemed to be filingwith the Commission upon expirationof 60 (or where appropriate, 120) daysafter deferral, or upon the terminationof FEP agency proceedings, or uponwaiver of the FEP agency’s right to ex-clusively process the charge, whicheveris earliest. Where the FEP agency ear-lier terminates its proceedings orwaives its right to exclusive processingof a charge, the charge shall be deemedto be filed with the Commission on thedate the FEP agency terminated itsproceedings or the FEP agency waivedits right to exclusive processing of thecharge. Such filing is timely if effectedwithin 300 days from the date of the al-leged violation.

(b) Initial presentation of a charge to aFEP agency. (1) When a charge is ini-tially presented to a FEP agency andthe charging party requests that thecharge be presented to the Commis-sion, the charge will be deemed to befiled with the Commission upon expira-tion of 60 (or where appropriate, 120)days after a written and signed state-ment of facts upon which the charge isbased was sent to the FEP agency byregistered mail or was otherwise re-ceived by the FEP agency, or upon thetermination of FEP agency pro-ceedings, or upon waiver of the FEPagency’s right to exclusively processthe charge, whichever is earliest. Suchfiling is timely if effected within 300days from the date of the alleged viola-tion.

(2) When a charge is initially pre-sented to a FEP agency but the charg-ing party does not request that thecharge be presented to the Commis-sion, the charging party may present

the charge to the Commission as fol-lows:

(i) If the FEP agency has refused toaccept a charge, a subsequent submis-sion of the charge to the Commissionwill be processed as if it were an initialpresentation in accordance with para-graph (a) of this section.

(ii) If the FEP agency proceedingshave terminated, the charge may betimely filed with the Commission with-in 30 days of receipt of notice that theFEP agency proceedings have been ter-minated or within 300 days from thedate of the alleged violation, whicheveris earlier.

(iii) If the FEP agency proceedingshave not been terminated, the chargemay be presented to the Commissionwithin 300 days from the date of the al-leged violation. Once presented, such acharge will be deemed to be filed withthe Commission upon expiration of 60(or where appropriate, 120) days after awritten and signed statement of factsupon which the charge is based wassent to the FEP agency by certifiedmail or was otherwise received by theFEP agency, or upon the terminationof the FEP agency proceedings, or uponwaiver of the FEP agency’s right to ex-clusively process the charge, whicheveris earliest. To be timely, however, suchfiling must be effected within 300 daysfrom the date of the alleged violation.

(c) Agreements with Fair EmploymentPractice agencies. Pursuant to section705(g)(1) and section 706(b) of title VII,the Commission shall endeavor toenter into agreements with FEP agen-cies to establish effective and inte-grated resolution procedures. Suchagreements may include, but need notbe limited to, cooperative arrange-ments to provide for processing of cer-tain charges by the Commission, ratherthan by the FEP agency during the pe-riod specified in section 706(c) and sec-tion 706(d) of title VII.

(d) Preliminary relief. When a chargeis filed with the Commission, the Com-mission may make a preliminary in-vestigation and commence judicial ac-tion for immediate, temporary or pre-liminary relief pursuant to section706(f)(2) of title VII.

(e) Commissioner charges. A chargemade by a member of the Commissionshall be deemed filed upon receipt by


145


the Commission office responsible forinvestigating the charge. The Commis-sion will notify a FEP agency when anallegation of discrimination is made bya member of the Commission con-cerning an employment practice occur-ring within the jurisdiction of the FEPagency. The FEP agency will be enti-tled to process the charge exclusivelyfor a period of not less than 60 days ifthe FEP agency makes a written re-quest to the Commission within 10 daysof receiving notice that the allegationhas been filed. The 60-day period shallbe extended to 120 days during the firstyear after the effective date of thequalifying State or local law.

[46 FR 43039, Aug. 26, 1981, as amended at 46FR 48189, Oct. 1, 1981; 52 FR 10224, Mar. 31,1987; 52 FR 18354, May 15, 1987; 56 FR 9624,Mar. 7, 1991]

§ 1601.14 Service of charge or notice ofcharge.

(a) Within ten days after the filing ofa charge in the appropriate Commis-sion office, the Commission shall serverespondent a copy of the charge, bymail or in person, except when it is de-termined that providing a copy of thecharge would impede the law enforce-ment functions of the Commissiion.Where a copy of the charge is not pro-vided, the respondent will be servedwith a notice of the charge within tendays after the filing of the charge. Thenotice shall include the date, place andcircumstances of the alleged unlawfulemployment practice. Where appro-priate, the notice may include theidentity of the person or organizationfiling the charge.

(b) The District Directors, the AreaDirectors, Local Directors, the Pro-gram Director, Office of Program Oper-ations, Director of Systemic Programs,Office of Program Operations, or Direc-tors Field Management Programs, Of-fice of Program Operations, or theirdesignees, are hereby delegated the au-thority to issue the notice described inparagraph (a) of this section.

[44 FR 4669, Jan. 23, 1979, as amended at 47FR 46275, Oct. 18, 1982; 49 FR 13024, Apr. 2,1984; 49 FR 13874, Apr. 9, 1984; 54 FR 32061,Aug. 4, 1989]

INVESTIGATION OF A CHARGE

§ 1601.15 Investigative authority.

(a) The investigation of a chargeshall be made by the Commission, itsinvestigators, or any other representa-tive designated by the Commission.During the course of such investiga-tion, the Commission may utilize theservices of State and local agencieswhich are charged with the administra-tion of fair employment practice lawsor appropriate Federal agencies, andmay utilize the information gatheredby such authorities or agencies. Aspart of each investigation, the Com-mission will accept any statement ofposition or evidence with respect to theallegations of the charge which theperson claiming to be aggrieved, theperson making the charge on behalf ofsuch person, if any, or the respondentwishes to submit.

(b) As part of the Commission’s in-vestigation, the Commission may re-quire the person claiming to be ag-grieved to provide a statement whichincludes:

(1) A statement of each specific harmthat the person has suffered and thedate on which each harm occurred;

(2) For each harm, a statement speci-fying the act, policy or practice whichis alleged to be unlawful;

(3) For each act, policy, or practicealleged to have harmed the personclaiming to be aggrieved, a statementof the facts which lead the personclaiming to be aggrieved to believethat the act, policy or practice is dis-criminatory.

(c) The Commission may require afact-finding conference with the par-ties prior to a determination on acharge of discrimination. The con-ference is primarily an investigativeforum intended to define the issues, todetermine which elements are undis-puted, to resolve those issues that canbe resolved and to ascertain whetherthere is a basis for negotiated settle-ment of the charge.

(d) The Commission’s authority toinvestigate a charge is not limited tothe procedures outlined in paragraphs(a), (b), and (c) of this section.


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§ 1601.16 Access to and production ofevidence; testimony of witnesses;procedure and authority.

(a) To effectuate the purposes of titleVII and the ADA, any member of theCommission shall have the authorityto sign and issue a subpoena requiring:

(1) The attendance and testimony ofwitnesses;

(2) The production of evidence includ-ing, but not limited to, books, records,correspondence, or documents, in thepossession or under the control of theperson subpoenaed; and

(3) Access to evidence for the pur-poses of examination and the right tocopy.Any District Director, the Program Di-rector, Office of Program Operations orupon delegation, the Director of Sys-temic Programs, Office of Program Op-erations or the Directors, Field Man-agement Programs, Office of ProgramOperations, or any representatives des-ignated by the Commission, may signand issue a subpoena on behalf of theCommission. The subpoena shall statethe name and address of its issuer,identify the person or evidence subpoe-naed, the person to whom and theplace, date, and the time at which it isreturnable or the nature of the evi-dence to be examined or copied, andthe date and time when access is re-quested. A subpoena shall be return-able to a duly authorized investigatoror other representative of the Commis-sion. Neither the person claiming to beaggrieved, the person filing a charge onbehalf of such person nor the respond-ent shall have the right to demand thata subpoena be issued.

(b)(1) Any person served with a sub-poena who intends not to comply shallpetition the issuing Director or peti-tion the General Counsel, if the sub-poena is issued by a Commissioner, toseek its revocation or modification.Petitions must be mailed to the Direc-tor or General Counsel, as appropriate,within five days (excluding Saturdays,Sundays and Federal legal holidays)after service of the subpoena. Petitionsto the General Counsel shall be mailedto 1801 L Street, NW., Washington DC20507. A copy of the petition shall alsobe served upon the issuing official.

(2) The petition shall separately iden-tify each portion of the subpoena with

which the petitioner does not intend tocomply and shall state, with respect toeach such portion, the basis for non-compliance with the subpoena. A copyof the subpoena shall be attached tothe petition and shall be designated‘‘Attachment A.’’ Within eight cal-endar days after receipt or as soon aspracticable, the General Counsel or Di-rector, as appropriate, shall eithergrant the petition to revoke or modifyin its entirety or make a proposed de-termination on the petition, statingreasons, and submit the petition andproposed determination to the Com-mission for its review and final deter-mination. A Commissioner who hasissued a subpoena shall abstain fromreviewing a petition concerning thatsubpoena. The Commission shall servea copy of the final determination onthe petitioner.

(c) Upon the failure of any person tocomply with a subpoena issued underthis section, the Commission may uti-lize the procedures of section 11(2) ofthe National Labor Relations Act, asamended, 29 U.S.C. 161(2), to compel en-forcement of the subpoena.

(d) If a person who is served with asubpoena does not comply with thesubpoena and does not petition for itsrevocation or modification pursuant toparagraph (b) of this section, the Gen-eral Council or his or her designee mayinstitute proceedings to enforce thesubpoena in accordance with the provi-sions of paragraph (c) of this section.Likewise, if a person who is servedwith a subpoena petitions for revoca-tion or modification of the subpoenapursuant to paragraph (b), and theCommission issues a final determina-tion upholding all or part of the sub-poena, and the person does not complywith the subpoena, the General Councilor his or her designee may instituteproceedings to enforce the subpoena inaccordance with paragraph (c) of thissection.

(e) Witnesses who are subpoenaedpursuant to § 1601.16(a) shall be entitledto the same fees and mileage that arepaid witnesses in the courts of theUnited States.

[43 FR 30798, July 18, 1978, as amended at 47FR 46275, Oct. 18, 1982; 51 FR 29098, Aug. 14,1986; 54 FR 32061, Aug. 4, 1989; 55 FR 14245,Apr. 17, 1990; 56 FR 9624, Mar. 7, 1991]


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§ 1601.17 Witnesses for public hear-ings.

(a) To effectuate the purposes of titleVII and the ADA, any Commissioner,upon approval of the Commission, maydemand in writing that a person appearat a stated time and place within theState in which such person resides,transacts business, or is served withthe demand, for the purpose of testi-fying under oath before the Commis-sion or its representative. If there benoncompliance with any such demand,the Commission may utilize the proce-dures of section 710 of title VII and theADA to compel such person to testify.A transcript of testimony may be madea part of the record of each investiga-tion.

(b) Witnesses who testify as providedin paragraph (a) of this section shall beentitled to the same fees and mileagethat are paid witnesses in the courts ofthe United States.


PROCEDURE FOLLOWING FILING OF ACHARGE

§ 1601.18 Dismissal: Procedure and au-thority.

(a) Where a charge on its face, or asamplified by the statements of the per-son claiming to be aggrieved discloses,or where after investigation the Com-mission determines, that the chargeand every portion thereof is not timelyfiled, or otherwise fails to state a claimunder title VII or the ADA, the Com-mission shall dismiss the charge. Acharge which raises a claim exclusivelyunder section 717 of title VII or the Re-habilitation Act shall not be taken andpersons seeking to raise such claimsshall be referred to the appropriateFederal agency.

(b) Where the person claiming to beaggrieved fails to provide requestednecessary information, fails or refusesto appear or to be available for inter-views or conferences as necessary, failsor refuses to provide information re-quested by the Commission pursuant to§ 1601.15(b), or otherwise refuses to co-operate to the extent that the Commis-sion is unable to resolve the charge,and after due notice, the chargingparty has had 30 days in which to re-

spond, the Commission may dismissthe charge.

(c) Where the person claiming to beaggrieved cannot be located, the Com-mission may dismiss the charge: Pro-vided, That reasonable efforts havebeen made to locate the charging partyand the charging party has not re-sponded within 30 days to a notice sentby the Commission to the person’s lastknown address.

(d) Where a respondent has made asettlement offer described in § 1601.20which is in writing and specific in itsterms, the Commission may dismissthe charge if the person claiming to beaggrieved refuses to accept the offer:Provided, That the offer would affordfull relief for the harm alleged by theperson claiming to be aggrieved andthe person claiming to be aggrievedfails to accept such an offer within 30days after actual notice of the offer.

(e) Written notice of disposition, pur-suant to paragraphs (a), (b), (c) or (d) ofthis section, shall be issued to the per-son claiming to be aggrieved and to theperson making the charge on behalf ofsuch person, where applicable; in thecase of a Commissioner charge, to allpersons specified in § 1601.28(b)(2); andto the respondent. Appropriate noticesof right to sue shall be issued pursuantto § 1601.28.

(f) The Commission hereby delegatesauthority to District Directors; theProgram Director, Office of ProgramOperations or upon delegation, the Di-rector of Systemic Programs, Office ofProgram Operations or the Directors,Field Management Programs, Office ofProgram Operations, as appropriate, todismiss charges, as limited by§ 1601.21(d). The Commission hereby del-egates authority to Area Directors orLocal Director to dismiss charges pur-suant to paragraphs (a), (b) and (c) ofthis section, as limited by § 1601.21(d).The authority of the Commission to re-consider decisions and determinationsas set forth in § 1601.21 (b) and (d) shallbe applicable to this section.

[42 FR 55388, Oct. 14, 1977, as amended at 48FR 19165, Apr. 28, 1983; 49 FR 13024, Apr. 2,1984. Redesignated and amended at 52 FR26957, July 17, 1987; 54 FR 32061, Aug. 4, 1989;55 FR 26684, June 29, 1990; 56 FR 9624, 9625,Mar. 7, 1991]


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§ 1601.19 No cause determinations:Procedure and authority.

(a) Where the Commission completesits investigation of a charge and findsthat there is not reasonable cause tobelieve that an unlawful employmentpractice has occurred or is occurring asto all issues addressed in the deter-mination, the Commission shall issue aletter of determination to all parties tothe charge indicating the finding. TheCommission’s letter of determinationshall be the final determination of theCommission. The letter of determina-tion shall inform the person claimingto be aggrieved or the person on whosebehalf a charge was filed of the right tosue in Federal district court within 90days of receipt of the letter of deter-mination. The Commission hereby del-egates authority to the Program Direc-tor, Office of Program Operations, orupon delegation to the Directors, FieldManagement Programs, Director, De-terminations Review Program, andDirstrict Directors or upon delegationto Area Directors or Local Directors,except in those cases involving issuescurrently designated by the Commis-sion for priority review, to issue nocause letters of determination.

(b) The Commission may on its owninitiative reconsider a final determina-tion of no reasonable cause and anissuing director may, on his or her owninitiative reconsider his or her final de-termination of no reasonable cause. Ifthe Commission or an issuing directordecides to reconsider a final no causedetermination, a notice of intent to re-consider shall promptly issue to allparties to the charge. If such notice ofintent to reconsider is issued within 90days of receipt of the final no cause de-termination, and the person claimingto be aggrieved or the person on whosebehalf a charge was filed has not filedsuit and did not request and receive anotice of right to sue pursuant to§ 1601.28(a) (1) or (2), the notice of in-tent to reconsider shall vacate the let-ter of determination and shall revokethe charging party’s right to bring suitwithin 90 days. If the 90 day suit periodhas expired, the charging party hasfiled suit, or the charging party had re-quested a notice of right to sue pursu-ant to § 1601.28(a) (1) or (2), the notice ofintent to reconsider shall vacate the

letter of determination, but shall notrevoke the charging party’s right tosue in 90 days. After reconsideration,the Commission or issuing directorshall issue a new determination. Inthose circumstances where the charg-ing party’s right to bring suit in 90days was revoked, the determinationshall include notice that a new 90 daysuit period shall begin upon the charg-ing party’s receipt of the determina-tion. Where a member of the Commis-sion has filed a Commissioner charge,he or she shall abstain from making adetermination in that case.

[52 FR 26958, July 17, 1987, as amended at 54FR 32061, Aug. 4, 1989; 56 FR 9625, Mar. 7, 1991;56 FR 14470, Apr. 10, 1991]

§ 1601.20 Negotiated settlement.

(a) Prior to the issuance of a deter-mination as to reasonable cause theCommission may encourage the partiesto settle the charge on terms that aremutually agreeable. District Directors,Area Directors, Local Directors, theProgram Director, Office of ProgramOperations, Director of Systemic Pro-grams, Office of Program Operations,or Directors, Field Management Pro-grams, Office of Program Operations,or their designees, shall have the au-thority to sign any settlement agree-ment which is agreeable to both par-ties. When the Commission agrees inany negotiated settlement not to proc-ess that charge further, the Commis-sion’s agreement shall be in consider-ation for the promises made bytheother parties to the agreement.Such an agreement shall not affect theprocessing of any other charge, includ-ing, but not limited to, a Commissionercharge or a charge, the allegations ofwhich are like or related to the indi-vidual allegations settled.

(b) In the alternative, the Commis-sion may facilitate a settlement be-tween the person claiming to be ag-grieved and the respondent by permit-ting withdrawal of the charge pursuantto § 1601.10.

[44 FR 4669, Jan. 23, 1979, as amended at 47FR 46275, Oct. 18, 1982; 49 FR 13024, Apr. 2,1984; 49 FR 13874, Apr. 9, 1984; 54 FR 32061,Aug. 4, 1989]


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§ 1601.21 Reasonable cause determina-tion: Procedure and authority.

(a) After completing its investiga-tion, where the Commission has notsettled or dismissed a charge or made ano cause finding as to every allegationaddressed in the determination under§ 1601.19, the Commission shall issue adetermination that reasonable causeexists to believe that an unlawful em-ployment practice has occurred or isoccurring under title VII or the ADA. Adetermination finding reasonable causeis based on, and limited to, evidenceobtained by the Commission and doesnot reflect any judgment on the meritsof allegations not addressed in the de-termination.

(b) The Commission shall provideprompt notification of its determina-tion under paragraph (a) of this sectionto the person claiming to be aggrieved,the person making the charge on behalfof such person, if any, and the respond-ent, or in the case of a Commissionercharge, the person named in the chargeor identified by the Commission in thethird party certificate, if any, and therespondent. The Commission may,however, on its own initiative recon-sider its decision or the determinationof any of its designated officers whohave authority to issue Letters of De-termination, Except that the Commis-sion will not reconsider determinationsof reasonable cause previously issuedagainst a government, governmentalentity or political subdivision after afailure of conciliation as set forth in§ 1601.25.

(1) In cases where the Commission de-cides to reconsider a dismissal or a de-termination finding reasonable causeto believe a charge is true, a notice ofintent to reconsider will promptlyissue. If such notice of intent to recon-sider is issued within 90 days from re-ceipt of a notice of right to sue and thecharging party has not filed suit anddid not receive a notice of right to suepursuant to § 1601.28(a)(1) or (2), the no-tice of intent to reconsider will vacatethe dismissal or letter of determina-tion and revoke the notice of right tosue. If the 90 day period has expired,the charging party has filed suit, or thecharging party had requested a noticeof right to sue pursuant to§ 1601.28(a)(1) or (2), the notice of intent

to reconsider will vacate the dismissalor letter of determination, but will notrevoke the notice of right to sue. Afterreconsideration the Commission willissue a determination anew. In thosecircumstances where the notice ofright to sue has been revoked, theCommision will, in accordance with§ 1601.28, issue a notice of right to sueanew which will provide the chargingparty with 90 days within which tobring suit.

(2) The Commission shall provideprompt notification of its intent to re-consider, which is effective uponissuance, and its final decision after re-consideration to the person claiming tobe aggrieved, the person making thecharge on behalf of such person, if any,and the respondent, or in the case of aCommissioner charge, the personnamed in the charge or identified bythe Commissioner in the third-partycertificate, if any, and the respondent.

(c) Where a member of the Commis-sion has filed a Commissioner charge,he or she shall abstain from making adetermination in that case.

(d) The Commission hereby delegatesto District Directors, or upon delega-tion, Area Directors or Local Direc-tors; and the Program Director, Officeof Program Operations, or upon delega-tion, the Directors, Field ManagementPrograms, Office of Program Oper-ations, the authority, except in thosecases involving issues currently des-ignated by the Commission for priorityreview, upon completion of an inves-tigation, to make a determinationfinding reasonable cause, issue a causeletter of determination and serve acopy of the determination upon theparties. Each determination issuedunder this section is final when the let-ter of determination is issued. How-ever, the Program Director, Office ofProgram Operations or upon delega-tion, the Director of Systemic Pro-grams, Office of Program Operations orthe Directors, Field Management Pro-grams, Office of Program Operations;each District Director; each Area Di-rector and each Local Director, for de-terminations issued by his or her of-fice, may on his or her own initiativereconsider determinations, Except that


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such directors may not reconsider de-terminations of reasonable cause pre-viously issued against a government,governmental entity or political sub-division after a failure of conciliationas set forth in § 1601.25.

(1) In cases where the issuing Direc-tor decides to reconsider a dismissal ora determination finding reasonablecause to believe a charge is true, a no-tice of intent to reconsider willpromptly issue. If such notice of intentto reconsider is issued within 90 daysfrom receipt of a notice of right to sueand the charging party has not filedsuit and did not request a notice ofright to sue pursuant to § 1601.28(a)(1)or (2), the notice of intent to reconsiderwill vacate the dismissal or letter ofdetermination and revoke the notice ofright to sue. If the 90 day period has ex-pired, the charging party has filed suit,or the charging party had received anotice of right to sue pursuant to§ 1601.28(a)(1) or (2), the notice of intentto reconsider will vacate the dismissalor letter of determination, but will notrevoke the notice of right to sue. Afterreconsideration the issuing Directorwill issue a determination anew. Inthose circumstances where the noticeof right to sue has been revoked, theissuing Director will, in accordancewith § 1601.28, issue a notice of right tosue anew which will provide the charg-ing party with 90 days within which tobring suit.

(2) When the issuing Director does re-consider, he or she shall provideprompt notification of his or her intentto reconsider, which is effective uponissuance, and final decision after re-consideration to the person claiming tobe aggrieved, the person making thecharge on behalf of such person, if any,and the respondent, or in the charge oridentified by the Commissioner in thethird party certificate, if any, and therespondent.

(e) In making a determination as towhether reasonable cause exists, sub-stantial weight shall be accorded finalfindings and orders made by designatedFEP agencies to which the Commissiondefers charges pursuant to § 1601.13. Forthe purposes of this section, the fol-lowing definitions shall apply:

(1) ‘‘Final findings and orders’’ shallmean:

(i) The findings of fact and order inci-dent thereto issued by a FEP agencyon the merits of a charge; or

(ii) The consent order or consent de-cree entered into by the FEP agency onthe merits of a charge.

Provided, however, That no findings andorder of a FEP agency shall be consid-ered final for purposes of this sectionunless the FEP agency shall haveserved a copy of such findings andorder upon the Commission and uponthe person claiming to be aggrievedand shall have informed such person ofhis or her rights of appeal or to requestreconsideration, or rehearing or simi-lar rights; and the time for such ap-peal, reconsideration, or rehearing re-quest shall have expired or the issuesof such appeal, reconsideration or re-hearing shall have been determined.

(2) ‘‘Substantial weight’’ shall meanthat such full and careful considerationshall be accorded to final findings andorders, as defined above, as is appro-priate in light of the facts supportingthem when they meet all of the pre-requisites set forth below:

(i) The proceedings were fair and reg-ular; and

(ii) The practices prohibited by theState or local law are comparable inscope to the practices prohibited byFederal law; and

(iii) The final findings and orderserve the interest of the effective en-forcement of title VII or the ADA: Pro-vided, That giving substantial weightto final findings and orders of a FEPagency does not include accordingweight, for purposes of applying Fed-eral law, to such Agency’s conclusionsof law.

[42 FR 55388, Oct. 14, 1977, as amended at 45FR 73036, Nov. 4, 1980; 48 FR 19165, Apr. 28,1983; 49 FR 13024, Apr. 2, 1984; 51 FR 18778,May 22, 1986; 52 FR 26959, July 17, 1987; 53 FR3370, Feb. 7, 1988; 54 FR 32061, Aug. 4, 1989; 56FR 9624, 9625, Mar. 7, 1991]

§ 1601.22 Confidentiality.

Neither a charge, nor information ob-tained during the investigation of acharge of employment discriminationunder the ADA or title VII, nor infor-mation obtained from records requiredto be kept or reports required to befiled pursuant to the ADA or title VII,


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shall be made matters of public infor-mation by the Commission prior to theinstitution of any proceeding under theADA or title VII involving such chargeor information. This provision does notapply to such earlier disclosures tocharging parties, or their attorneys, re-spondents or their attorneys, or wit-nesses where disclosure is deemed nec-essary for securing appropriate relief.This provision also does not apply tosuch earlier disclosures to representa-tives of interested Federal, State, andlocal authorities as may be appropriateor necessary to the carrying out of theCommission’s function under title VIIor the ADA, nor to the publication ofdata derived from such information ina form which does not reveal the iden-tity of charging parties, respondents,or persons supplying the information.

[42 FR 55388, Oct. 14, 1977, as amended at 56FR 9624, 9625, Mar. 7, 1991]

PROCEDURE TO RECTIFY UNLAWFULEMPLOYMENT PRACTICES

§ 1601.23 Preliminary or temporary re-lief.

(a) In the interest of the expeditiousprocedure required by section 706(f)(2)of title VII, the Commission herebydelegates to the Program Director, Of-fice of Program Operations or upon del-egation, the Director of Systemic Pro-grams, Office of Program Operations orthe Directors, Field Management Pro-grams, Office of Program Operationsand each District Director the author-ity, upon the basis of a preliminary in-vestigation, to make the initial deter-mination on its behalf that prompt ju-dicial action is necessary to carry outthe purposes of the Act and recommendsuch action to the General Counsel.The Commission authorizes the Gen-eral Counsel to institute an appro-priate action on behalf of the Commis-sion in such a case not involving a gov-ernment, governmental agency, or po-litical subdivision.

(b) In a case involving a government,governmental agency, or political sub-division, any recommendation for pre-liminary or temporary relief shall betransmitted directly to the AttorneyGeneral by the Program Director, Of-fice of Program Operations or upon del-egation, the Director of Systemic Pro-

grams, Office of Program Operations orthe Directors, Field Management Pro-grams, Office of Program Operations orthe District Director.

(c) Nothing in this section shall beconstrued to prohibit private individ-uals from exercising their rights toseek temporary or preliminary reliefon their own motion.

[42 FR 55388, Oct. 14, 1977, as amended at 47FR 46275, Oct. 18, 1982; 54 FR 32061, Aug. 4,1989]

§ 1601.24 Conciliation: Procedure andauthority.

(a) Where the Commission deter-mines that there is reasonable cause tobelieve that an unlawful employmentpractice has occurred or is occurring,the Commission shall endeavor toeliminate such practice by informalmethods of conference, conciliationand persuasion. In conciliating a casein which a determination of reasonablecause has been made, the Commissionshall attempt to achieve a just resolu-tion of all violations found and to ob-tain agreement that the respondentwill eliminate the unlawful employ-ment practice and provide appropriateaffirmative relief. Where such concilia-tion attempts are successful, the termsof the conciliation agreement shall bereduced to writing and shall be signedby the Commission’s designated rep-resentative and the parties. A copy ofthe signed agreement shall be sent tothe respondent and the person claimingto be aggrieved. Where a charge hasbeen filed on behalf of a person claim-ing to be aggrieved, the conciliationagreement may be signed by the personfiling the charge or by the person onwhose behalf the charge was filed.

(b) District Directors; the ProgramDirector, Office of Program Operations;or the Directors, Field ManagementPrograms, Office of Program Oper-ations; or their designees, are herebydelegated authority to enter into infor-mal conciliation efforts. District Direc-tors or upon delegation, Area Direc-tors, or Local Directors, the ProgramDirector, Office of Program Operations;the Director of Systemic Programs, Of-fice of Program Operations; or the Di-rectors, Field Management Programs,Office of Program Operations are here-by delegated the authority to negotiate


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and sign conciliation agreements.When a suit brought by the Commis-sion is in litigation, the General Coun-sel is hereby delegated the authority tonegotiate and sign conciliation agree-ments where, pursuant to section706(f)(1) of title VII, a court has stayedprocessings in the case pending furtherefforts of the Commission to obtainvoluntary compliance.

(c) Proof of compliance with title VIIor the ADA in accordance with theterms of the agreement shall be ob-tained by the Commission before thecase is closed. In those instances inwhich a person claiming to be ag-grieved or a member of the classclaimed to be aggrieved by the prac-tices alleged in the charge is not aparty to such an agreement, the agree-ment shall not extinguish or in anyway prejudice the rights of such personto proceed in court under section706(f)(1) of title VII or the ADA.

[42 FR 55388, Oct. 14, 1977, as amended at 48FR 19165, Apr. 28, 1983; 49 FR 13024, Apr. 2,1984; 49 FR 13874, Apr. 9, 1984; 52 FR 26959,July 17, 1987; 54 FR 32061, Aug. 4, 1989; 56 FR9624, 9625, Mar. 7, 1991]

§ 1601.25 Failure of conciliation; no-tice.

Where the Commission is unable toobtain voluntary compliance as pro-vided by title VII or the ADA and it de-termines that further efforts to do sowould be futile or nonproductive, itshall, through the appropriate DistrictDirector, the Program Director, Officeof Program Operations, Director ofSystemic Programs, Office of ProgramOperations, or Directors, Field Man-agement Programs, Office of ProgramOperations, or their designees, so no-tify the respondent in writing.

[42 FR 55388, Oct. 14, 1977, as amended at 47FR 46275, Oct. 18, 1982; 54 FR 32061, Aug. 4,1989; 56 FR 9624, Mar. 7, 1991]

§ 1601.26 Confidentiality of endeavors.(a) Nothing that is said or done dur-

ing and as part of the informal endeav-ors of the Commission to eliminate un-lawful employment practices by infor-mal methods of conference, concilia-tion, and persuasion may be made amatter of public information by theCommission, its officers or employees,or used as evidence in a subsequent

proceeding without the written consentof the persons concerned. This provi-sion does not apply to such disclosuresto the representatives of Federal, Stateor local agencies as may be appropriateor necessary to the carrying out of theCommission’s functions under title VIIor the ADA: Provided, however, Thatthe Commission may refuse to makedisclosures to any such agency whichdoes not maintain the confidentialityof such endeavors in accord with thissection or in any circumstances wherethe disclosures will not serve the pur-poses of the effective enforcement oftitle VII or the ADA.

(b) Factual information obtained bythe Commission during such informalendeavors, if such information is other-wise obtainable by the Commissionunder section 709 of title VII, for dis-closure purposes will be considered bythe Commission as obtained during theinvestigatory process.


PROCEDURE CONCERNING THEINSTITUTION OF CIVIL ACTIONS

§ 1601.27 Civil actions by the Commis-sion.

The Commission may bring a civilaction against any respondent namedin a charge not a government, govern-mental agency or political subdivision,after thirty (30) days from the date ofthe filing of a charge with the Commis-sion unless a conciliation agreementacceptable to the Commission has beensecured: Provided, however, That theCommission may seek preliminary ortemporary relief pursuant to section706(f)(2) of title VII, according to theprocedures set forth in § 1601.23 of thispart, at any time.

§ 1601.28 Notice of right to sue: Proce-dure and authority.

(a) Issuance of notice of right to sueupon request. (1) When a person claim-ing to be aggrieved requests, in writ-ing, that a notice of right to sue beissued and the charge to which the re-quest relates is filed against a respond-ent other than a government, govern-mental agency or political subdivision,the Commission shall promptly issuesuch notice as described in § 1601.28(e)


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to all parties, at any time after the ex-piration of one hundred eighty (180)days from the date of filing of thecharge with the Commission, or in thecase of a Commissioner charge 180 daysafter the filing of the charge or 180days after the expiration of any periodof reference under section 706(d) of titleVII as appropriate.

(2) When a person claiming to be ag-grieved requests, in writing, that a no-tice of right to sue be issued, and thecharge to which the request relates isfiled against a respondent other than agovernment, governmental agency orpolitical subdivision, the Commissionmay issue such notice as described in§ 1601.28(e) with copies to all parties, atany time prior to the expiration of 180days from the date of filing the chargewith the Commission; provided, thatthe District Director, the Area Direc-tor, the Local Director, the ProgramDirector, Office of Program Operationsor upon delegation, the Director ofSystemic Programs, Office of ProgramOperations or the Directors, Field Man-agement Programs, Office of ProgramOperations has determined that it isprobable that the Commission will beunable to complete its administrativeprocessing of the charge within 180days from the filing of the charge andhas attached a written certificate tothat effect.

(3) Issuance of a notice of right to sueshall terminate further proceeding ofany charge not a Commissioner chargeunless the District Director; Area Di-rector; Local Director; Program Direc-tor, Office of Program Operations orupon delegation, the Director of Sys-temic Programs, Office of Program Op-erations or the Directors, Field Man-agement Programs, Office of ProgramOperations; or the General Counsel, de-termines at that time or at a latertime that it would effectuate the pur-pose of title VII or the ADA to furtherprocess the charge. Issuance of a noticeof right to sue shall not terminate theprocessing of a Commissioner charge.

(4) The issuance of a notice of rightto sue does not preclude the Commis-sion from offering such assistance to aperson issued such notice as the Com-mission deems necessary or appro-priate.

(b) Issuance of notice of right to suefollowing Commission disposition ofcharge. (1) Where the Commission hasfound reasonable cause to believe thattitle VII or the ADA has been violated,has been unable to obtain voluntarycompliance with title VII or the ADA,and where the Commission has decidednot to bring a civil action against therespondent, it will issue a notice ofright to sue on the charge as describedin § 1601.28(e) to:

(i) The person claiming to be ag-grieved, or,

(ii) In the case of a Commissionercharge, to any member of the class whois named in the charge, identified bythe Commissioner in a third-party cer-tificate, or otherwise identified by theCommision as a member of the classand provide a copy thereof to all par-ties.

(2) Where the Commission has en-tered into a conciliation agreement towhich the person claiming to be ag-grieved is not a party, the Commissionshall issue a notice of right to sue onthe charge to the person claiming to beaggrieved.

(3) Where the Commission has dis-missed a charge pursuant to § 1601.18, itshall issue a notice of right to sue asdescribed in § 1601.28(e) to:

(i) The person claiming to be ag-grieved, or,

(ii) In the case of a Commissionercharge, to any member of the class whois named in the charge, identified bythe Commissioner in a third-party cer-tificate, or otherwise identified by theCommission as a member of the class,and provide a copy thereof to all par-ties.

(4) The issuance of a notice of rightto sue does not preclude the Commis-sion from offering such assistance to aperson issued such notice as the Com-mission deems necessary or appro-priate.

(c) The Commission hereby delegatesauthority to District Directors, AreaDirectors, Local Directors, the Pro-gram Director, Office of Program Oper-ations, Director of Systemic Programs,Office of Program Operations, or Direc-tors, Field Management Programs, Of-fice of Program Operations, or theirdesignees, to issue notices of right tosue, in accordance with this section, on


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1 Formal Ratification-Notice is herebygiven that the EEOC at a Commission meet-ing on March 12, 1974, formally ratified theacts of the District Directors of EEOC Dis-trict Offices in issuing notices of right to suepursuant to Commission practice institutedon October 15, 1969, and continued throughMarch 18, 1974. 39 FR 10178 (March 18, 1974).

behalf of the Commission. Where acharge has been filed on behalf of a per-son claiming to be aggrieved, the no-tice of right to sue shall be issued inthe name of the person or organizationwho filed the charge.1

(d) Notices of right-of-sue for chargesagainst Governmental respondents. Inall cases where the respondent is a gov-ernment, governmental agency, or apolitical subivision, the Commissionwill issue the notice of right to suewhen there has been a dismissal of acharge. The notice of right to sue willbe issued in accordance with§ 1601.28(e). In all other cases where therespondent is a government, govern-mental agency, or political subdivi-sion, the Attorney General will issuethe notice of right to sue, including thefollowing cases:

(1) When there has been a finding ofreasonable cause by the Commission,there has been a failure of conciliation,and the Attorney General has decidednot to file a civil action; and

(2) Where a charging party has re-quested a notice of right to sue pursu-ant to § 1601.28(a)(1) or (2). In caseswhere a charge of discrimination re-sults in a finding of cause in part andno cause in part, the case will be treat-ed as a ‘‘cause’’ determination and willbe referred to the Attorney General.

(e) Content of notice of right to sue.The notice of right to sue shall include:

(1) Authorization to the aggrievedperson to bring a civil action undertitle VII or the ADA pursuant to sec-tion 706(f)(1) of title VII or section 107of the ADA within 90 days from receiptof such authorization;

(2) Advice concerning the institutionof such civil action by the personclaiming to be aggrieved, where appro-priate;

(3) A copy of the charge;

(4) The Commission’s decision, deter-mination, or dismissal, as appropriate.

[42 FR 55388, Oct. 14, 1977, as amended at 44FR 4669, Jan. 23, 1979; 45 FR 73037, Nov. 4,1980; 47 FR 46275, Oct. 18, 1982; 48 FR 19165,Apr. 28, 1983; 49 FR 13024, Apr. 2, 1984; 49 FR13874, Apr. 9, 1984; 52 FR 26959, July 17, 1987;54 FR 32061, Aug. 4, 1989; 56 FR 9624, 9625,Mar. 7, 1991]

§ 1601.29 Referral to the Attorney Gen-eral.

If the Commission is unable to obtainvoluntary compliance in a charge in-volving a government, governmentalagency or political subdivision, it shallinform the Attorney General of the ap-propriate facts in the case with rec-ommendations for the institution of acivil action by him or her against suchrespondent or for intervention by himor her in a civil action previously insti-tuted by the person claiming to be ag-grieved.

Subpart C—Notices to Employees,Applicants for Employmentand Union Members

§ 1601.30 Notices to be posted.

(a) Every employer, employmentagency, labor organization, and jointlabor-management committee control-ling an apprenticeship or other train-ing program that has an obligationunder title VII or the ADA shall postand keep posted in conspicuous placesupon its premises notices in an acces-sible format, to be prepared or ap-proved by the Commission, describingthe applicable provisions of title VIIand the ADA. Such notice must beposted in prominent and accessibleplaces where notices to employees, ap-plicants and members are cusomarilymaintained.

(b) Section 711(b) of Title VII makesfailure to comply with this sectionpunishable by a fine of not more than$110 for each separate offense.

[42 FR 55388, Oct. 14, 1977, as amended at 55FR 2518, Jan. 25, 1990; 56 FR 9625, Mar. 7, 1991;62 FR 26934, May 16, 1997]


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Subpart D—Construction of Rules§ 1601.34 Rules to be liberally con-

strued.These rules and regulations shall be

liberally construed to effectuate thepurpose and provisions of title VII andthe ADA.

[44 FR 4670, Jan. 23, 1979. Redesignated andamended at 56 FR 9624, 9625, Mar. 7, 1991]

Subpart E—Issuance,Amendment, or Repeal of Rules

§ 1601.35 Petitions.Any interested person may petition

the Commission, in writing, for theissuance, amendment, or repeal of arule or regulation. Such petition shallbe filed with the Equal EmploymentOpportunity Commission, 1801 L StreetNW., Washington DC 20507, and shallstate the rule or regulation proposed tobe issued, amended, or repealed, to-gether with a statement of grounds insupport of such petition.

[42 FR 55388, Oct. 14, 1977, as amended at 54FR 32061, Aug. 4, 1989. Redesignated at 56 FR9625, Mar. 7, 1991]

§ 1601.36 Action on petition.Upon the filing of such petition, the

Commission shall consider the sameand may thereupon either grant ordeny the petition in whole or in part,conduct an appropriate proceedingthereon, or make other disposition ofthe petition. Should the petition be de-nied in whole or in part, prompt noticeshall be given of the denial, accom-panied by a simple statement of thegrounds unless the denial be self-ex-planatory.

[42 FR 55388, Oct. 14, 1977. Redesignated at 56FR 9625, Mar. 7, 1991]

Subpart F [Reserved]

Subpart G—FEP AgencyDesignation Procedures

§ 1601.70 FEP agency qualifications.(a) State and local fair employment

practice agencies or authorities whichqualify under section 706(c) of title VIIand this section shall be designated as‘‘FEP agencies.’’ The qualifications for

designation under section 706(c) are asfollows:

(1) That the State or political sub-division has a fair employment prac-tice law which makes unlawful employ-ment practices based upon race, color,religion, sex, national origin or dis-ability; and

(2) That the State or political sub-division has either established a Stateor local authority or authorized an ex-isting State or local authority that isempowered with respect to employ-ment practices found to be unlawful, todo one of three things: To grant relieffrom the practice; to seek relief fromthe practice; or to institute criminalproceedings with respect to the prac-tice.

(b) Any State or local agency or au-thority seeking FEP agency designa-tion should submit a written request tothe Chairman of the Commission. How-ever, if the Commission is aware thatan agency or authority meets theabove criteria for FEP agency designa-tion, the Commission shall defercharges to such agency or authorityeven though no request for FEP agencydesignation has been made.

(c) A request for FEP agency designa-tion should include a copy of the agen-cy’s fair employment practices law andany rules, regulations and guidelines ofgeneral interpretation issued pursuantthereto. Submission of such data willallow the Commission to ascertainwhich employment practices are madeunlawful and which bases are coveredby the State or local entity. Agenciesor authorities are requested, but notrequired, to provide the following help-ful information:

(1) A chart of the organization of theagency or authority responsible for ad-ministering and enforcing said law;

(2) The amount of funds made avail-able to or allocated by the agency orauthority for fair employment pur-poses;

(3) The identity and telephone num-ber of the agency (authority) rep-resentative whom the Commission maycontact with reference to any legal orother questions that may arise regard-ing designation;

(4) A detailed statement as to howthe agency or authority meets the


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2 The Arlington Human Rights Commissionhas been designated as a FEP agency for allcharges except charges alleging a violationof title VII by a government, governmentagency, or political subdivision of the Stateof Virginia. For these types of charges itshall be deemed a ‘‘Notice agency’’ pursuantto 29 CFR 1601.71(b).

3 The Austin (TX) Human Relations Com-mission has been designated as a FEP agencyfor all charges except charges alleging a vio-lation of title VII by a government, govern-ment agency, or political subdivision of theState of Texas. For these types of charges itshall be deemed a ‘‘Notice Agency,’’ pursu-ant to 29 CFR 1601.71(b).

4 The Colorado State Personnel Board hasbeen designated as a FEP agency for onlythose charges which relate to appointments,promotions, and other personnel actions thattake place in the State personnel system. Inaddition, it has been designated as a FEPagency for all of the above mentioned

qualifications of paragraph (a) (1) and(2) of § 1601.70.

(d) Where both State and local FEPagencies exist, the Commission re-serves the right to defer to the StateFEP agency only. However, wherethere exist agencies of concurrent ju-risdiction, the Commission may deferto the FEP agency which would bestserve the purposes of title VII or theADA, or to both.

(e) The Chairman or his or her des-ignee, will provide to the AttorneyGeneral of the concerned State (andcorporation counsel of a concernedlocal government, if appropriate) anopportunity to comment upon aspectsof State or local law which might af-fect the qualifications of any new agen-cy in that State otherwise cognizableunder this section.

[45 FR 33606, May 20, 1980, as amended at 47FR 53733, Nov. 29, 1982. Redesignated andamended at 56 FR 9625, Mar. 7, 1991; 60 FR46220, Sept. 6, 1995]

§ 1601.71 FEP agency notification.(a) When the Commission determines

that an agency or authority meets thecriteria outlined in section 706(c) oftitle VII and § 1601.70, the Commissionshall so notify the agency by letter andshall notify the public by publicationin the FEDERAL REGISTER of an amend-ment to § 1601.74.

(b) Where the Commission deter-mines that an agency or authority doesnot come within the definition of aFEP agency for purposes of a par-ticular basis of discrimination or wherethe agency or authority applies for des-ignation as a Notice Agency, the Com-mission shall notify that agency or au-thority of the filing of charges forwhich the agency or authority is not aFEP agency. For such purposes thatState or local agency will be deemed aNotice Agency.

(c) Where the Chairman becomesaware of events which lead him or herto believe that a deferral Agency nolonger meets the requirements of aFEP agency and should no longer beconsidered a FEP agency, the Chair-man will so notify the affected agencyand give it 15 days in which to respondto the preliminary findings. If theChairman deems necessary, he or shemay convene a hearing for the purpose

of clarifying the matter. The Commis-sion shall render a final determinationregarding continuation of the agencyas a FEP agency.

[45 FR 33606, May 20, 1980, as amended at 47FR 53733, Nov. 29, 1982. Redesignated at 56 FR9625, Mar. 7, 1991; 60 FR 46220, Sept. 6, 1995]

§§ 1601.72—1601.73 [Reserved]

§ 1601.74 Designated and notice agen-cies.

(a) The designated FEP agencies are:

Alaska Commission for Human RightsAlexandria (VA) Human Rights OfficeAllentown (PA) Human Relations Commis-

sionAnchorage (AK) Equal Rights CommissionAnderson (IN) Human Relations CommissionArizona Civil Rights DivisionArlington County (VA) Human Rights Com-

mission 2

Austin (TX) Human Relations Commission 3

Baltimore (MD) Community Relations Com-mission

Bloomington (IL) Human Relations Commis-sion

Bloomington (IN) Human Rights CommissionBroward County (FL) Human Relations Com-

missionCalifornia Department of Fair Employment

and HousingCharleston (WV) Human Rights CommissionCity of Salina (KS) Human Relations Com-

mission and DepartmentClearwater (FL) Office of Community Rela-

tionsColorado Civil Rights CommissionColorado State Personnel Board 4


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charges except charges which allege a viola-tion of section 704(a) of title VII. For thistype of charge it shall be deemed a ‘‘NoticeAgency’’ pursuant to 29 CFR 1601.71(b).

5 The Commonwealth of Puerto Rico De-partment of Labor has been designated as aFEP agency for all charges except (1) chargesalleging a ‘‘labor union’’ has violated titleVII; (2) charges alleging an ‘‘EmploymentAgency’’ has violated title VII; (3) chargesalleging violations of title VII by agencies orinstrumentalities of the Government ofPuerto Rico when they are not operating asprivate businesses or enterprises; and (4) allcharges alleging violations of sec. 704(a) ortitle VII. For these types of charges it shallbe deemed a ‘‘Notice Agency,’’ pursuant to 29CFR 1601.71(b).

6 The Georgia Office of Fair EmploymentPractices has been designated as a FEPagency for all charges covering the employ-ment practices of the departments of theState of Georgia only.

7 The Hawaii Department of Labor and In-dustrial Relations has been granted FEPagency designation of all charges exceptthose filed against units of the State andlocal government, in which case it shall bedeemed a ‘‘Notice Agency.’’

8 The Howard County (MD) Human RightsCommission has been granted designation ofall charges except those filed against agen-

cies of Howard County in which case it shallbe deemed a ‘‘Notice Agency.’’

9 The Lincoln (NE) Commission on HumanRights has been designated as a FEP agencyfor all charges except (1) a charge by an ‘‘ap-plicant for membership’’ alleging a violationof section 703(c)(2) of title VII (2) a charge byan individual alleging that a ‘‘joint labor–management committee’’ has violated sec-tion 704(a) of title VII; and (3) a charge by anindividual alleging that a ‘‘joint labor–man-agement committee’’ has violated section704(b) of title VII. For those types of charges,it shall be deemed a ‘‘Notice Agency,’’ pursu-ant to 29 CFR 1601.71(b).

10 The New Hanover Human Relations Com-mission is being designated as a FEP agency

Continued

Commonwealth of Puerto Rico Departmentof Labor 5

Connecticut Commission on Human Rightsand Opportunity

Corpus Christi (TX) Human Relations Com-mission

Dade County (FL) Fair Housing and Employ-ment Commission

Delaware Department of LaborDistrict of Columbia Office of Human RightsDurham (NC) Human Relations CommissionEast Chicago (IN) Human Rights Commis-

sionEvansville (IN) Human Relations Commis-

sionFairfax County (VA) Human Rights Commis-

sionFlorida Commission on Human RelationsFort Dodge-Webster County (IA) Human

Rights CommissionFort Wayne (IN) Metropolitan Human Rela-

tions CommissionFort Worth (TX) Human Relations Commis-

sionGary (IN) Human Relations CommissionGeorgia Office of Fair Employment Prac-

tices 6

Hawaii Department of Labor and IndustrialRelations 7

Hillsborough County (FL) Equal Opportunityand Human Relations Department

Howard County (MD) Human Rights Com-mission 8

Huntington (WV) Human Relations Commis-sion

Idaho Human Rights CommissionIllinois Department of Human RightsIndiana Civil Rights CommissionIowa Civil Rights CommissionJacksonville (FL) Equal Employment Oppor-

tunity CommissionKansas City (KS) Human Relations Depart-

mentKansas City (MO) Human Relations Depart-

mentKansas Human Rights CommissionKentucky Commission on Human RightsLee County (FL) Department of Equal Op-

portunityLexington-Fayette (KY) Urban County

Human Rights CommissionLincoln (NE) Commission on Human Rights 9

Louisiana (LA) Commission on HumanRights

Louisville and Jefferson County (KY) HumanRelations Commission

Madison (WI) Equal Opportunities Commis-sion

Maine Human Rights CommissionMaryland Commission on Human RelationsMason City (IA) Human Rights CommissionMassachusetts Commission Against Dis-

criminationMichigan City (IN) Human Rights Commis-

sionMichigan Department of Civil RightsMinneapolis (MN) Department of Civil

RightsMinnesota Department of Human RightsMissouri Commission on Human RightsMontana Human Rights DivisionMontgomery County (MD) Human Relations

CommissionNebraska Equal Opportunity CommissionNevada Commission on Equal Rights of Citi-

zensNew Hampshire Commission for Human

RightsNew Hanover (NC) Human Relations Com-

mission 10


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for charges covering employment practicesunder section 706(c) of title VII and CFR1601.70 et seq. (1980) within New HanoverCounty and ‘‘such cities within the county asmay by resolution of their governing boards,permit the Ordinance of the Board of Com-missioners of New Hanover County entitled‘Prohibition of Discrimination in Employ-ment’ to be applicable within such cities.’’This covers Wilmington City and the unin-corporated area of New Hanover County. Atthis time Wrightsville Beach, Carolina Beachand Kure Beach are not included in this des-ignation. For charges from these latterlocales the New Hanover Human RelationsCommission shall be deemed a ‘‘Notice Agen-cy,’’ pursuant to 29 CFR 1601.71(b).

11 On June 1, 1979, the St. Petersburg Officeof Human Relations was designated a FEPagency for all charges except those chargesalleging retaliation under section 704(a) oftitle VII. Accordingly, ‘‘for retaliationcharges’’ it was deemed a ‘‘Notice Agency,’’pursuant to 29 CFR 1601.71(c). See 44 FR

31638. On May 23, 1979, an ordinance amendedthe St. Petersburg, FL Human Relations lawto include charges of retaliation. Therefore,retaliation charges will be deferred to thatagency effective immediately.

12 The Wisconsin State Personnel Commis-sion is being designated as a FEP agency forall charges covering the employment prac-tices of the agencies of the State of Wis-consin except those charges alleging retalia-tion under 704(a) of title VII. Accordingly,for retaliation charges, it shall be deemed aNotice Agency pursuant to 29 CFR 1601.71(b).

New Haven (CT) Commission on Equal Op-portunities

New Jersey Division of Civil Rights, Depart-ment of Law and Public Safety

New Mexico Human Rights CommissionNew York City (NY) Commission on Human

RightsNew York State Division on Human RightsNorth Carolina State Office of Administra-

tive HearingsNorth Dakota Department of LaborOhio Civil Rights CommissionOklahoma Human Rights CommissionOmaha (NE) Human Relations DepartmentOrange County (NC) Human Relations Com-

missionOregon Bureau of LaborOrlando (FL) Human Relations DepartmentPaducah (KY) Human Rights CommissionPalm Beach County (FL) Office of Equal Op-

portunityPennsylvania Human Relations CommissionPhiladelphia (PA) Commission on Human

RelationsPinellas County (FL) Affirmative Action Of-

ficePittsburgh (PA) Commission on Human

RightsPrince George’s County (MD) Human Rela-

tions CommissionPrince William County (VA) Human Rights

CommissionRhode Island Commission for Human RightsRichmond County (GA) Human Rights Com-

missionRockville (MD) Human Rights CommissionSt. Louis (MO) Civil Rights Enforcement

AgencySt. Paul (MN) Department of Human RightsSt. Petersburg (FL) Human Relations Divi-

sion 11

Seattle (WA) Human Rights CommissionSioux Falls (SD) Human Relations Commis-

sionSouth Bend (IN) Human Rights CommissionSouth Carolina Human Affairs CommissionSouth Dakota Division of Human RightsSpringfield (OH) Human Relations Depart-

mentTacoma (WA) Human Relations CommissionTampa (FL) Office of Community RelationsTennessee Commission for Human Develop-

mentTexas Commission on Human RightsTopeka (KS) Human Relations CommissionUtah Industrial Commission, Anti-Discrimi-

nation DivisionVermont Attorney General’s Office, Civil

Rights DivisionVermont Human Rights CommissionVirgin Islands Department of LaborVirginia Council on Human RightsWashington Human Rights CommissionWest Virginia Human Rights CommissionWheeling (WV) Human Rights CommissionWichita Falls (TX) Human Relations Com-

missionWisconsin Equal Rights Division, Depart-

ment of Industry, Labor and Human Rela-tions

Wisconsin State Personnel Commission 12

Wyoming Fair Employment Practices Com-mission

York (PA) Human Relations CommissionYoungstown (OH) Human Relations Commis-

sion

(b) The designated Notice Agenciesare:

Arkansas Governor’s Committee on HumanResources

Ohio Director of Industrial RelationsRaleigh (NC) Human Resources Department,

Civil Rights Unit

(Sec. 713(a) 78 Stat. 265 (42 U.S.C. 2000e—12(a)))

[46 FR 33030, June 26, 1981. Redesignated at 56FR 9625, Mar. 7, 1991]

EDITORIAL NOTE: For FEDERAL REGISTER ci-tations affecting § 1601.74, see the List of CFRSections Affected, which appears in the


159


Finding Aids section of the printed volumeand on GPO Access.

§ 1601.75 Certification of designatedFEP agencies.

(a) The Commission may certify des-ignated FEP agencies based upon thepast, satisfactory performance of thoseagencies. The effect of such certifi-cation is that the Commission shall ac-cept the findings and resolutions ofdesignated FEP agencies in regard tocases processed under contracts withthose agencies without individual,case-by-case substantial weight reviewby the Commission except as providedin §§ 1601.76 and 1601.77 of this part.

(b) Eligibility criteria for certifi-cation of a designated FEP agency areas follows:

(1) That the State or local agency hasbeen a designated FEP agency for 4years;

(2) That the State or local designatedFEP agency’s work product has beenevaluated within the past 12 months bythe Systemic Investigations and Indi-vidual Compliance Programs, Office ofProgram Operations, and found to be inconformance with the Commission’sSubstantial Weight Review Procedures(EEOC Order 916); and

(3) That the State or local designatedFEP agency’s findings and resolutionspursuant to its contract with the Com-mission, as provided in section 709(b) oftitle VII, have been accepted by theCommission in at least 95% of the casesprocessed by the FEP agency in thepast 12 months.

(c) Upon Commission approval of adesignated FEP agency for certifi-cation, it shall notify the agency of itscetification and shall effect such cer-tification by issuance and publicationof an amendment to § 1601.80 of thispart.

[46 FR 50367, Oct. 13, 1981, as amended at 54FR 32061, Aug. 4, 1989. Redesignated andamended at 56 FR 9625, Mar. 7, 1991]

§ 1601.76 Right of party to request re-view.

The Commission shall notify the par-ties whose cases are to be processed bythe designated, certified FEP agency oftheir right, if aggrieved by the agen-cy’s final action, to request review bythe Commission within 15 days of that

action. The Commission, on receipt ofa request for review, shall conduct suchreview in accord with the proceduresset forth in the Substantial Weight Re-view Procedures (EEOC Order 916).


§ 1601.77 Review by the Commission.After a designated FEP agency has

been certified, the Commission shallaccept the findings and resolutions ofthat agency as final in regard to allcases processed under contract withthe Commission, as provided in section709(b) of title VII, except that the Com-mission shall review charges closed bythe certified FEP agency for lack of ju-risdiction, as a result of unsuccessfulconciliation, or where the charge in-volves an issue currently designated bythe Commission for priority review.

[46 FR 50367, Oct. 13, 1981, as amended at 51FR 18778, May 22, 1986. Redesignated at 56 FR9625, Mar. 7, 1991]

§ 1601.78 Evaluation of designatedFEP agencies certified by the Com-mission.

To assure that designated FEP agen-cies certified by the Commission, asprovided in § 1601.75 of this part, con-tinue to maintain performance con-sistent with the Commission’s Sub-stantial Weight Review Procedures(EEOC Order 916), the Commissionshall provide for the evaluation of suchagencies as follows:

(a) Each designated FEP agency cer-tified by the Commission shall be eval-uated at least once every 3 years; and

(b) Each designated FEP agency cer-tified by the Commission shall be eval-uated when, as a result of a substantialweight review requested as provided in§ 1601.76 of this part or required in re-gard to cases closed as a result of un-successful conciliation or for lack ofjurisdiction as provided in § 1601.77 ofthis part, the Commission rejects morethan 5% of a designated FEP agency’sfindings at the end of the year or 20%or more of its findings for two consecu-tive quarters. When the Commissionrejects 20% or more of a designatedFEP agency’s findings during any quar-ter, the Commission shall initiate aninquiry and may conduct an evalua-tion.


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(c) The Commission may, on its ownmotion, require an evaluaiton at anytime.


§ 1601.79 Revocation of certification.Certification of a designated FEP

agency is discretionary with the Com-mission and the Commission may, uponits own motion, withdraw such certifi-cation as a result of an evaluation con-ducted pursuant to § 1601.78 or for anyreason which leads the Commission tobelieve that such certification nolonger serves the interest of effectiveenforcement of title VII or the ADA.The Commission will accept commentsfrom any individual or organizationconcerning the efficacy of the certifi-cation of any designated FEP agency.The revocation shall be effected by theissuance and publication of an amend-ment to § 1601.80 of this part.

[46 FR 50367, Oct. 13, 1981. Redesignated andamended at 56 FR 9624, 9625, Mar. 7, 1991]

§ 1601.80 Certified designated FEPagencies.

The designated FEP agencies receiv-ing certification by the Commissionare as follows:

Alaska Commission for Human RightsAlexandria (VA) Human Rights OfficeAnchorage (AK) Equal Rights CommissionArizona Civil Rights DivisionArlington County (VA) Human Rights Com-

missionAustin Human Relations CommissionBaltimore (MD) Community Relations Com-

missionBroward County (FL) Human Relations Com-

missionCalifornia Department of Fair Employment

and HousingClearwater (FL) Office of Community Rela-

tionsColorado Civil Rights DivisionConnecticut Commission on Human Rights

and OpportunityCorpus Christi (TX) Human Relations Com-

missionDade County (FL) Fair Housing and Employ-

ment CommissionDelaware Department of LaborDistrict of Columbia Office of Human RightsEast Chicago (IN) Human Rights Commis-

sionFairfax County (VA) Human Rights Commis-

sionFlorida Commission on Human Rights

Fort Wayne (IN) Metropolitan Human Rela-tions Commission

Fort Worth (TX) Human Relations Commis-sion

Gary (IN) Human Relations CommissionHawaii Department of Labor and Industrial

RelationsHoward County (MD) Office of Human RightsIdaho Human Rights CommissionIllinois Department of Human RightsIndiana Civil Rights CommissionIowa Civil Rights CommissionJacksonville (FL) Equal Employment Oppor-

tunity CommissionKansas Commission on Civil RightsLexington-Fayette (KY) Urban County

Human Rights CommissionLouisville and Jefferson County Human Re-

lations CommissionMaine Human Rights CommissionMaryland Commission on Human RelationsMassachusetts Commission Against Dis-

criminationMichigan Department of Civil RightsMinneapolis (MN) Department of Civil

RightsMinnesota Department of Human RightsMissouri Commission on Civil RightsMontana Human Rights DivisionNebraska Equal Opportunity CommissionNevada Commission on Equal Rights of Citi-

zensNew Hampshire Commission for Human

RightsNew Hanover Human Relations CommissionNew Jersey Division on Civil RightsNew Mexico Human Rights CommissionNew York City (NY) Commission on Human

RightsNew York State Division on Human RightsOhio Civil Rights CommissionOklahoma Human Rights CommissionOmaha (NE) Human Relations DepartmentOregon Bureau of LaborOrlando (FL) Human Relations DepartmentPennsylvania Human Relations CommissionPhiladelphia Commission on Human Rela-

tionsPittsburgh Commission on Human RelationsPuerto Rico Department of Labor and

Human ResourcesRhode Island Commission for Human RightsSt. Louis (MO) Civil Rights Enforcement

AgencySt. Petersburg (FL) Human Relations De-

partmentSeattle (WA) Human Rights CommissionSouth Bend (IN) Human Rights CommissionSouth Carolina Human Affairs CommissionSouth Dakota Division of Human RightsTacoma (WA) Human Relations DivisionTennessee Human Rights CommissionTexas Commission on Human RightsUtah Industrial Commission, Anti-Discrimi-

nation DivisionVermont Attorney General’s Office, Civil

Rights Division


161

Equal Employment Opportunity Comm. Pt. 1602

Virgin Islands Department of LaborWashington Human Rights CommissionWest Virginia Human Rights CommissionWisconsin Equal Rights Division, Depart-

ment of Industry, Labor and Human Rela-tions

Wyoming Fair Employment Practices Com-mission

(42 U.S.C. 2000e—12(a))


EDITORIAL NOTE: For FEDERAL REGISTER ci-tations affecting § 1601.80, see the List of CFRSections Affected which appears in the Find-ing Aids section of the printed volume andon GPO Access.

Subpart H—Title VII Interpretationsand Opinions by the Commission

§ 1601.91 Request for title VII interpre-tation or opinion.

Any interested person desiring awritten title VII interpretation oropinion from the Commission maymake such a request. However,issuance of title VII interpretations oropinions is discretionary.

[56 FR 9625, Mar. 7, 1991]

§ 1601.92 Contents of request; where tofile.

A request for an ‘‘opinion letter’’shall be in writing, signed by the per-son making the request, addressed tothe Chairman, Equal Employment Op-portunity Commission, 1801 L Street,NW., Washington, DC 20507 and shallcontain:

(a) The names and addresses of theperson making the request and of otherinterested persons.

(b) A statement of all known relevantfacts.

(c) A statement of reasons why thetitle VII interpretation or opinionshould be issued.

[42 FR 55388, Oct. 14, 1977. Redesignated andamended at 56 FR 9625, Mar. 7, 1991]

§ 1601.93 Opinions—title VII.Only the following may be relied

upon as a ‘‘written interpretation oropinion of the Commission’’ within themeaning of section 713 of title VII:

(a) A letter entitled ‘‘opinion letter’’and signed by the Legal Counsel on be-half of and as approved by the Commis-sion, or, if issued in the conduct of liti-

gation, by the General Counsel on be-half of and as approved by the Commis-sion, or

(b) Matter published and specificallydesignated as such in the FEDERALREGISTER, including the Commission’sGuidelines on Affirmative Action, or

(c) A Commission determination ofno reasonable cause, issued, under thecircumstances described in § 1608.10 (a)or (b) of the Commission’s Guidelineson Affirmative Action, 29 CFR part1608, when such determination containsa statement that it is a ‘‘written inter-pretation or opinion of the Commis-sion.’’

[49 FR 31411, Aug. 7, 1984. Redesignated at 56FR 9626, Mar. 7, 1991]

PART 1602—RECORDKEEPING ANDREPORTING REQUIREMENTSUNDER TITLE VII AND THE ADA

Subpart A—General

Sec.1602.1 Purpose and scope.1602.2–1602.6 [Reserved]

Subpart B—Employer Information Report

1602.7 Requirement for filing of report.1602.8 Penalty for making of willfully false

statements on report.1602.9 Commission’s remedy for employer’s

failure to file report.1602.10 Employer’s exemption from report-

ing requirements.1602.11 Additional reporting requirements.

Subpart C—Recordkeeping by Employers

1602.12 Records to be made or kept.1602.13 Records as to racial or ethnic iden-

tity of employees.1602.14 Preservation of records made or

kept.

Subpart D—Apprenticeship InformationReport

1602.15 Requirement for filing and pre-serving copy of report.

1602.16 Penalty for making of willfully falsestatements on report.

1602.17 Commission’s remedy for failure tofile report.

1602.18 Exemption from reporting require-ments.

1602.19 Additional reporting requirements.

Subpart E—Apprenticeship Recordkeeping

1602.20 Records to be made or kept.


162


1602.21 Preservation of records made orkept.

Subpart F—Local Union Equal EmploymentOpportunity Report

1602.22 Requirements for filing and pre-serving copy of report.

1602.23 Penalty for making of willfully falsestatements on reports.

1602.24 Commission’s remedy for failure tofile report.



Subpart G—Recordkeeping by LaborOrganizations

1602.27 Records to be made or kept.1602.28 Preservation of records made or

kept.

Subpart H—Records and Inquiries as toRace, Color, National Origin, or Sex

1602.29 Applicability of State or local law.

Subpart I—State and Local GovernmentsRecordkeeping


kept.

Subpart J—State and Local GovernmentInformation Report



1602.34 Commission’s remedy for politicaljurisdiction’s failure to file report.

1602.35 Political jurisdiction’s exemptionfrom reporting requirements.

1602.36 Schools exemption.1602.37 Additional reporting requirements.

Subpart K—Records and Inquiries as toRace, Color, National Origin, or Sex


Subpart L—Elementary and SecondarySchool Systems, Districts, and Indi-vidual Schools Recordkeeping


kept.

Subpart M—Elementary-Secondary StaffInformation Report



1602.43 Commission’s remedy for school sys-tems’ or districts’ failure to file report.

1602.44 School systems’ or districts’ exemp-tion from reporting requirements.


Subpart N—Records and Inquiries as toRace, Color, National Origin, or Sex


Subpart O—Recordkeeping for Institutionsof Higher Education

1602.47 Definition.1602.48 Records to be made or kept.1602.49 Preservation of records made or

kept.

Subpart P—Higher Education StaffInformation Report EEO–6



1602.52 Commission’s remedy for failure tofile.



Subpart Q—Records and Inquiries as toRace, Color, National Origin, or Sex


Subpart R—Investigation of Reporting orRecordkeeping Violations

1602.56 Investigation of reporting or record-keeping violations.

AUTHORITY: 42 U.S.C. 2000e–8, 2000e–12; 44U.S.C. 3501 et seq.; 42 U.S.C. 12117.

Subpart A—General

§ 1602.1 Purpose and scope.Section 709 of title VII (42 U.S.C.

2000e) and section 107 of the Americanswith Disabilities Act (ADA) (42 U.S.C.12117) require the Commission to estab-lish regulations pursuant to which em-ployers, labor organizations, jointlabor-management committees, andemployment agencies subject to thoseActs shall make and preserve certainrecords and shall furnish specified in-formation to aid in the administrationand enforcement of the Acts.

[56 FR 35755, July 26, 1991]


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§§ 1602.2–1602.6 [Reserved]

Subpart B—Employer InformationReport

§ 1602.7 Requirement for filing of re-port.

On or before September 30 of eachyear, every employer that is subject totitle VII of the Civil Rights Act of 1964,as amended, and that has 100 or moreemployees shall file with the Commis-sion or its delegate executed copies ofStandard Form 100, as revised (other-wise known as ‘‘Employer InformationReport EEO–1’’) in conformity with thedirections set forth in the form and ac-companying instructions. Notwith-standing the provisions of § 1602.14,every such employer shall retain at alltimes at each reporting unit, or atcompany or divisional headquarters, acopy of the most recent report filed foreach such unit and shall make thesame available if requested by an offi-cer, agent, or employee of the Commis-sion under the authority of section 710of title VII. Appropriate copies ofStandard Form 100 in blank will besupplied to every employer known tothe Commission to be subject to the re-porting requirements, but it is the re-sponsibility of all such employers toobtain necessary supplies of the formfrom the Commission or its delegateprior to the filing date.

[37 FR 9219, May 6, 1972, as amended at 56 FR35755, July 26, 1991]

§ 1602.8 Penalty for making of willfullyfalse statements on report.

The making of willfully false state-ments on Report EEO–1 is a violationof the United States Code, title 18, sec-tion 1001, and is punishable by fine orimprisonment as set forth therein.

[31 FR 2833, Feb. 17, 1966]

§ 1602.9 Commission’s remedy for em-ployer’s failure to file report.

Any employer failing or refusing tofile Report EEO–1 when required to doso may be compelled to file by order ofa U.S. District Court, upon applicationof the Commission.

[31 FR 2833, Feb. 17, 1966]

§ 1602.10 Employer’s exemption fromreporting requirements.

If an employer claims that the prepa-ration or filing of the report would cre-ate undue hardship, the employer mayapply to the Commission for an exemp-tion from the requirements set forth inthis part, according to instruction 5. Ifan employer is engaged in activities forwhich the reporting unit criteria de-scribed in section 5 of the instructionsare not readily adaptable, special re-porting procedures may be required. Ifan employer seeks to change the datefor filing its Standard Form 100 orseeks to change the period for whichdata are reported, an alternative re-porting date or period may be per-mitted. In such instances, the em-ployer should so advise the Commis-sion by submitting to the Commissionor its delegate a specific written pro-posal for an alternative reporting sys-tem prior to the date on which the re-port is due.

[56 FR 35755, July 26, 1991]

§ 1602.11 Additional reporting require-ments.

The Commission reserves the right torequire reports, other than that des-ignated as the Employer InformationReport EEO–1, about the employmentpractices of individual employers orgroups of employers whenever, in itsjudgment, special or supplemental re-ports are necessary to accomplish thepurposes of title VII or the ADA. Anysystem for the requirement of such re-ports will be established in accordancewith the procedures referred to in sec-tion 709(c) of title VII or section 107 ofthe ADA and as otherwise prescribedby law.

[31 FR 2833, Feb. 17, 1966, as amended at 56FR 35755, July 26, 1991]

Subpart C—Recordkeeping byEmployers

§ 1602.12 Records to be made or kept.

The Commission has not adopted anyrequirement, generally applicable toemployers, that records be made orkept. It reserves the right to impose


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recordkeeping requirements upon indi-vidual employers or groups of employ-ers subject to its jurisdiction when-ever, in its judgment, such records (a)are necessary for the effective oper-ation of the EEO–1 reporting system orof any special or supplemental report-ing system as described above; or (b)are further required to accomplish thepurposes of title VII or the ADA. Suchrecord-keeping requirements will beadopted in accordance with the proce-dures referred to in section 709(c) oftitle VII, or section 107 of the ADA, andotherwise prescribed by law.


[31 FR 2833, Feb. 17, 1966, as amended at 46FR 63268, Dec. 31, 1981; 56 FR 35755, July 26,1991]

§ 1602.13 Records as to racial or ethnicidentity of employees.

Employers may acquire the informa-tion necessary for completion of items5 and 6 of Report EEO–1 either by vis-ual surveys of the work force, or attheir option, by the maintenance ofpost-employment records as to theidentity of employees where the sameis permitted by State law. In the lattercase, however, the Commission rec-ommends the maintenance of a perma-nent record as to the racial or ethnicidentity of an individual for purpose ofcompleting the report form only wherethe employer keeps such records sepa-rately from the employee’s basic per-sonnel form or other records availableto those responsible for personnel deci-sions, e.g., as part of an automatic dataprocessing system in the payroll de-partment.

[31 FR 2833, Feb. 17, 1966]

§ 1602.14 Preservation of records madeor kept.

Any personnel or employment recordmade or kept by an employer (includ-ing but not necessarily limited to re-quests for reasonable accommodation,application forms submitted by appli-cants and other records having to dowith hiring, promotion, demotion,transfer, lay-off or termination, ratesof pay or other terms of compensation,and selection for training or appren-ticeship) shall be preserved by the em-

ployer for a period of one year from thedate of the making of the record or thepersonnel action involved, whicheveroccurs later. In the case of involuntarytermination of an employee, the per-sonnel records of the individual termi-nated shall be kept for a period of oneyear from the date of termination.Where a charge of discrimination hasbeen filed, or an action brought by theCommission or the Attorney General,against an employer under title VII orthe ADA, the respondent employershall preserve all personnel records rel-evant to the charge or action untilfinal disposition of the charge or theaction. The term ‘‘personnel recordsrelevant to the charge,’’ for example,would include personnel or employ-ment records relating to the aggrievedperson and to all other employees hold-ing positions similar to that held orsought by the aggrieved person and ap-plication forms or test papers com-pleted by an unsuccessful applicant andby all other candidates for the sameposition as that for which the ag-grieved person applied and was re-jected. The date of final disposition ofthe charge or the action means the dateof expiration of the statutory periodwithin which the aggrieved person maybring an action in a U.S. District Courtor, where an action is brought againstan employer either by the aggrievedperson, the Commission, or by the At-torney General, the date on which suchlitigation is terminated.


[37 FR 9219, May 6, 1972, as amended at 46 FR63268, Dec. 31, 1981; 56 FR 35755, July 26, 1991]

Subpart D—ApprenticeshipInformation Report

§ 1602.15 Requirement for filing andpreserving copy of report.

On or before September 30, 1967, andannually thereafter, certain jointlabor-management committees subjectto title VII of the Civil Rights Act of1964 which control apprenticeship pro-grams shall file with the Commission,or its delegate, executed copies of Ap-prenticeship Information Report EEO–2in conformity with the directions set


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forth in the form and accompanying in-structions. The committees covered bythis regulation are those which (a)have five or more apprentices enrolledin the program at any time during Au-gust and September of the reportingyear, and (b) represent at least one em-ployer sponsor and at least one labororganization sponsor which are them-selves subject to title VII. Every suchcommittee shall retain at all timesamong the records maintained in theordinary course of its affairs a copy ofthe most recent report filed, and shallmake the same available if requestedby an officer, agent, or employee of theCommission under the authority of sec-tion 710 of title VII. It is the responsi-bility of all such committees to obtainfrom the Commission or its delegatenecessary supplies of the form.

[37 FR 9220, May 6, 1972]

§ 1602.16 Penalty for making of will-fully false statements on report.

The making of willfully false state-ments on Report EEO–2 is a violationof the U.S. Code, title 18, section 1001,and is punishable by fine or imprison-ment as set forth therein.

[32 FR 10650, July 20, 1967]

§ 1602.17 Commission’s remedy for fail-ure to file report.

Any person failing or refusing to fileReport EEO–2 when required to do somay be compelled to file by order of aU.S. District Court, upon application ofthe Commission, under authority ofsection 709(c) of title VII.

[37 FR 9220, May 6, 1972]

§ 1602.18 Exemption from reporting re-quirements.

If it is claimed that the preparationor filing of Report EEO–2 would createundue hardship, the committee mayapply to the Commission for an exemp-tion from the requirements set forth inthis part.

[32 FR 10650, July 20, 1967]


The Commission reserves the right torequire reports, other than that des-ignated as Report EEO–2, about ap-

prenticeship procedures of joint labor-management committees, employers,and labor organizations whenever, inits judgment, special or supplementalreports are necessary to accomplishthe purpose of title VII or the ADA.Any system for the requirement ofsuch reports will be established in ac-cordance with the procedures referredto in section 709(c) of title VII or sec-tion 107 of the ADA and as otherwiseprescribed by law.


Subpart E—ApprenticeshipRecordkeeping

§ 1602.20 Records to be made or kept.

(a) Every person required to file Re-port EEO–2 shall make or keep suchrecords as are necessary for its comple-tion under the conditions and cir-cumstances set forth in the instruc-tions accompanying the report, whichare specifically incorporated herein byreference and have the same force andeffect as other sections of this part.

(b) Every employer, labor organiza-tion, and joint labor-management com-mittee subject to title VII which con-trols an apprenticeship program (re-gardless of any joint or individual obli-gation to file a report) shall beginningAugust 1, 1967, maintain a list in chron-ological order containing the namesand addresses of all persons who haveapplied to participate in the appren-ticeship program, including the dateson which such applications were re-ceived. (See section 709(c), title VII,Civil Rights Act of 1964.) Such listshall, contain a notation of the sex ofthe applicant and of the applicant’sidentification as ‘‘White,’’ ‘‘Black,’’‘‘Hispanic,’’ ‘‘Asian or Pacific Is-lander’’ or ‘‘American Indian or Alas-kan Native.’’ The methods of makingsuch identification are set forth in theinstruction accompanying ReportEEO–2. The words ‘‘applied,’’ ‘‘appli-cant’’ and ‘‘application’’ as used in thissection refer to situations involving ac-tual applications only. An applicant isconsidered to be a person who files aformal application, or in some informalway indicates a specific intention to be


166


considered for admission to the appren-ticeship program. A person who cas-ually appears to make an informal in-quiry about the program, or about ap-prenticeship in general, is not consid-ered to be an applicant. The term ‘‘ap-prenticeship program’’ as used hereinrefers to programs described in the in-structions accompanying Report EEO–2.

(c) In lieu of maintaining the chrono-logical list referred to in § 1602.20 (b),persons required to compile the listmay maintain on file written applica-tions for participation in the appren-ticeship program, provided that the ap-plication form contains a notation ofthe date the form was received, the ad-dress of the applicant, and a notationof the sex, and the race, color, or na-tional origin of the applicant as de-scribed above.

[32 FR 10650, July 20, 1967, as amended at 33FR 282, Jan. 9, 1968; 42 FR 33557, Aug. 10, 1977]


(a) Notwithstanding the provisions ofsection 1602.14, every person subject to§ 1602.20 (b) or (c) shall preserve the listof applicants or application forms, asthe case may be, for a period of 2 yearsfrom the date the application was re-ceived, except that in those instanceswhere an annual report is required bythe Commission calling for statisticsas to the sex, and the race, color, or na-tional origin of apprentices, the personrequired to file the report shall pre-serve the list and forms for a period of2 years or the period of a successful ap-plicant’s apprenticeship, whichever islonger. Persons required to file ReportEEO–2, or other reports calling for in-formation about the operation of anapprenticeship program similar to thatrequired on Report EEO–2, shall pre-serve any other record made solely forthe purpose of completing such reportsfor a period of 1 year from the due datethereof.

(b) Other records: Except to the ex-tent inconsistent with the law or regu-lation of any State or local fair em-ployment practices agency, or of anyother Federal or State agency involvedin the enforcement of an antidiscrimi-nation program in apprenticeship,other records relating to apprentice-

ship made or kept by a person requiredto file Report EEO–2, including but notnecessarily limited to requests for rea-sonable accommodation, test paperscompleted by applicants for appren-ticeship and records of interviews withapplicants, shall be kept for a period of2 years from the date of the making ofthe record. Where a charge of discrimi-nation has been filed, or an actionbrought by the Attorney General undertitle VII, or the ADA the respondentshall preserve all records relevant tothe charge or action until finaldisposion of the charge or the action.The term ‘‘records relevant to thecharge,’’ for example, would includeapplications, forms or test papers com-pleted by an unsuccessful applicant andby all other candidates for the sameposition as that for which the chargingparty applied and was rejected. Thedate of ‘‘final disposition of the chargeor the action’’ means the date of expi-ration of the statutory period withinwhich a charging party may bring anaction in a U.S. District Court or,where an action is brought either by acharging party or by the Attorney Gen-eral, the date on which such litigationis terminated.


Subpart F—Local Union EqualEmployment Opportunity Report

§ 1602.22 Requirements for filing andpreserving copy of report.

On or before December 31, 1986, andbiennially thereafter, every labor orga-nization subject to title VII of the CivilRights Act of 1964, as amended, shallfile with the Commission or its dele-gate an executed copy of Local UnionReport EEO–3 in conformity with thedirections set forth in the form and ac-companying instructions, providedthat the labor organization has 100 ormore members at any time during the12 months preceding the due date of thereport, and is a ‘‘local union’’ (as thatterm is commonly understood) or anindependent or unaffiliated union.Labor organizations required to reportare those which perform, in a specificjurisdiction, the functions ordinarilyperformed by a local union, whether ornot they are so designated. Every local


167


union or a labor organization acting inits behalf, shall retain at all timesamong the records maintained in theordinary course of its affairs a copy ofthe most recent report filed, and shallmake the same available if requestedby an officer, agent, or employee of theCommission under the authority of sec-tion 709 of title VII. It is the responsi-bility of all persons required to file toobtain from the Commission or its del-egate necessary supplies of the form.


[51 FR 11018, Apr. 1, 1986]

§ 1602.23 Penalty for making of will-fully false statements on reports.

The making of willfully false state-ments on Report EEO–3 is a violationof the United States Code, title 18, sec-tion 1001, and is punishable by fine orimprisonment as set forth herein.

[32 FR 10651, July 20, 1967]

§ 1602.24 Commission’s remedy for fail-ure to file report.

Any person failing or refusing to fileReport EEO–3 when required to do somay be compelled to file by order of aU.S. District Court, upon application ofthe Commission, under authority ofsection 709(c) of title VII.

[37 FR 9220, May 6, 1972]


If it is claimed that the preparationor filing of Report EEO–3 would createundue hardship, the labor organizationmay apply to the Commission for anexemption from the requirements setforth in this part.

[32 FR 10651, July 20, 1967]


The Commission reserves the right torequire reports, other than that des-ignated as Report EEO–3, about themembership or referral practices orother procedures of labor organiza-tions, whenever, in its judgment, spe-cial or supplemental reports are nec-essary to accomplish the purposes oftitle VII or the ADA. Any system forrequirement of such reports will be es-

tablished in accordance with the proce-dures referred to in section 709(c) oftitle VII or section 107 of the ADA, andas otherwise prescribed by law.


Subpart G—Recordkeeping byLabor Organizations

§ 1602.27 Records to be made or kept.Those portions of Report EEO–3 call-

ing for information about union poli-cies and practices and for the compila-tion of statistics on the race, color, na-tional origin, and sex of members, per-sons referred, and apprentices, aredeemed to be ‘‘records’’ within themeaning of section 709(c), title VII,Civil Rights Act of 1964. Every local,independent, or unaffiliated union with100 or more members (or any agent act-ing in its behalf, if the agent has re-sponsibility for referral of persons foremployment) shall make these recordsor such other records as are necessaryfor the completion of Report EEO–3under the circumstances and condi-tions set forth in the instructions ac-companying it, which are specificallyincorporated herein by reference andhave the same force and effect as othersections of this part.


[32 FR 10651, July 20, 1967, as amended at 46FR 63268, Dec. 31, 1981]


(a) All records made by a labor orga-nization or its agent solely for the pur-pose of completing Report EEO–3 shallbe preserved for a period of 1 year fromthe due date of the report for whichthey were compiled. Any labor organi-zation identified as a ‘‘referral union’’in the instructions accompanying Re-port EEO–3, or agent thereto, shall pre-serve other membership or referralrecords (including applications forsame) made or kept by it for a period of1 year from the date of the making ofthe record. Where a charge of discrimi-nation has been filed, or an actionbrought by the Commission or the At-torney General, against a labor organi-zation under title VII or the ADA, the


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1 NOTE: Instructions were published as anappendix to the proposed regulations on Mar.2, 1973 (38 FR 5662).

respondent labor organization shallpreserve all records relevant to thecharge or action until final dispositionof the charge or the action. The date of‘‘final disposition of the charge or theaction’’ means the date of expiration ofthe statutory period within which theaggrieved person may bring an actionin a U.S. District Court or, where anaction is brought against a labor orga-nization either by the Commission, theaggrieved person, or by the AttorneyGeneral, the date on which such litiga-tion is terminated.

(b) Nothing herein shall relieve anylabor organization covered by title VIIof the obligations set forth in subpartE, §§ 1602.20 and 1602.21, relating to theestablishment and maintenance of alist of applicants wishing to participatein an apprenticeship program con-trolled by it.


[37 FR 9220, May 6, 1972, as amended at 46 FR63268, Dec. 31, 1981; 56 FR 35755, July 26, 1991]

Subpart H—Records and Inquiriesas to Race, Color, NationalOrigin, or Sex

§ 1602.29 Applicability of State or locallaw.

The requirements imposed by theEqual Employment Opportunity Com-mission in these regulations, subpartsD through G, supersede any provisionsof State or local law which may con-flict with them. Any State or locallaws prohibiting inquiries and record-keeping with respect to race, color, na-tional origin, or sex do not apply to in-quiries required to be made under theseregulations and under the instructionsaccompanying Reports EEO–2 andEEO–3.

[32 FR 10652, July 20, 1967]

Subpart I—State and LocalGovernments Recordkeeping

§ 1602.30 Records to be made or kept.On or before September 30, 1974, and

annually thereafter, every political ju-risdiction with 15 or more employees isrequired to make or keep records andthe information therefrom which are or

would be necessary for the completionof report EEO–4 under the cir-cumstances set forth in the instruc-tions thereto, whether or not the polit-ical jurisdiction is required to file suchreport under § 1602.32 of the regulationsin this part. The instructions are spe-cifically incorporated herein by ref-erence and have the same force and ef-fect as other sections of this part.1Such reports and the informationtherefrom shall be retained at all timesfor a period of 3 years at the central of-fice of the political jurisdiction andshall be made available if requested byan officer, agent, or employee of theCommission under section 710 of titleVII, as amended. Although agency dataare aggregated by functions for pur-poses of reporting, separate data foreach agency must be maintained eitherby the agency itself or by the office ofthe political jurisdiction responsiblefor preparing the EEO–4 form. It is theresponsibility of every political juris-diction to obtain from the Commissionor its delegate necessary instructionsin order to comply with the require-ments of this section.


[38 FR 12604, May 14, 1973, as amended at 39FR 30832, Aug. 26, 1974; 46 FR 63268, Dec. 31,1981]


Any personnel or employment recordmade or kept by a political jurisdiction(including but not necessarily limitedto requests for reasonable accommoda-tion application forms submitted byapplicants and other records having todo with hiring, promotion, demotion,transfer, layoff, or termination, ratesof pay or other terms of compensation,and selection for training or appren-ticeship) shall be preserved by the po-litical jurisdiction for a period of 2years from the date of the making ofthe record or the personnel action in-volved, whichever occurs later. In thecase of involuntary termination of anemployee, the personnel records of theindividual terminated shall be kept for


169


a period of 2 years from the date of ter-mination. Where a charge of discrimi-nation has been filed, or an actionbrought by the Attorney Generalagainst a political jurisdiction undertitle VII or the ADA, the respondentpolitical jurisdiction shall preserve allpersonnel records relevant to thecharge or action until final dispositionof the charge or the action. The term‘‘personnel record relevant to thecharge,’’ for example, would includepersonnel or employment records relat-ing to the person claiming to be ag-grieved and to all other employeesholding positions similar to that heldor sought by the person claiming to beaggrieved; and application forms ortest papers completed by an unsuccess-ful applicant and by all other can-didates for the same position as thatfor which the person claiming to be ag-grieved applied and was rejected. Thedate of final disposition of the chargeor the action means the date of expira-tion of the statutory period withinwhich a person claiming to be ag-grieved may bring an action in a U.S.district court or, where an action isbrought against a political jurisdictioneither by a person claiming to be ag-grieved or by the Attorney General,the date on which such litigation isterminated.


[38 FR 12605, May 14, 1973, as amended by 46FR 63268, Dec. 31, 1981; 56 FR 35756, July 26,1991]

Subpart J—State and LocalGovernment Information Report

SOURCE: 38 FR 12605, May 14, 1973, unlessotherwise noted.


On or before September 30, 1993, andbiennially thereafter, certain politicaljurisdictions subject to title VII of theCivil Rights Act of 1964, as amended,shall file with the Commission or itsdelegate executed copies of ‘‘State andLocal Government Information ReportEEO–4’’ in conformity with the direc-tions set forth in the form and accom-panying instructions. The political ju-

risdictions covered by this section are(a) those which have 100 or more em-ployees, and (b) those other politicaljurisdictions which have 15 or moreemployees from whom the Commissionrequests the filing of reports.

Every such political jurisdictionshall retain at all times a copy of themost recently filed EEO–4 at the cen-tral office of the political jurisdictionfor a period of 3 years and shall makethe same available if requested by anofficer, agent, or employee of the Com-mission under the authority of section710 of title VII, as amended.

[58 FR 29536, May 21, 1993]


The making of willfully false state-ments on report EEO–4, is a violationof the United States Code, title 18, sec-tion 1001, and is punishable by fine orimprisonment as set forth therein.

§ 1602.34 Commission’s remedy for po-litical jurisdiction’s failure to filereport.

Any political jurisdiction failing orrefusing to file report EEO–4 when re-quired to do so may be compelled tofile by order of a U.S. district court,upon application of the Attorney Gen-eral.

§ 1602.35 Political jurisdiction’s ex-emption from reporting require-ments.

If it is claimed that the preparationor filing of the report would createundue hardship, the political jurisdic-tion may apply to the Commission foran exemption from the requirementsset forth in this part by submitting tothe Commission or its delegate a spe-cific proposal for an alternative report-ing system prior to the date on whichthe report is due.

§ 1602.36 Schools exemption.The recordkeeping and report-filing

requirements of subparts I and J of thispart shall not apply to State or localeducational institutions or to schooldistricts or school systems or anyother educational functions. The pre-vious sentence of this section shall notact to bar jurisdiction which otherwisewould attach under § 1602.30.


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1 NOTE: Instructions were published as anappendix to the proposed regulations onJune 12, 1973 (38 FR 15463).


The Commission reserves the right torequire reports, other than that des-ignated as the ‘‘State and Local Gov-ernment Information Report EEO–4,’’about the employment practices of in-dividual political jurisdictions or groupof political jurisdictions whenever, inits judgment, special or supplementalreports are necessary to accomplishthe purposes of title VII or the ADA.Any system for the requirement ofsuch reports will be established in ac-cordance with the procedures referredto in section 709(c) of title VII or sec-tion 107 of the ADA and as otherwiseprescribed by law.

[38 FR 12605, May 14, 1973, as amended at 56FR 35756, July 26, 1991]

Subpart K—Records and Inquiriesas to Race, Color, NationalOrigin, or Sex


The requirements imposed by theEqual Employment Opportunity Com-mission in these regulations, subparts Iand J, supersede any provisions ofState or local law which may conflictwith them.

[38 FR 12605, May 14, 1973]

Subpart L—Elementary and Sec-ondary School Systems, Dis-tricts, and Individual SchoolsRecordkeeping

§ 1602.39 Records to be made or kept.On or before November 30, 1974, and

annually thereafter, every public ele-mentary and secondary school systemor district, including every individ-ually or separately administered dis-trict within a system, with 15 or moreemployees and every individual schoolwithin such system or district, regard-less of the size of the school shall makeor keep all records and informationtherefrom which are or would be nec-essary for the completion of reportEEO–5 whether or not it is required tofile such a report under § 1602.41. Theinstructions for completion of reportEEO–5 are specifically incorporated

herein by reference and have the sameforce and effect as other sections ofthis part.1 Such records and the infor-mation therefrom shall be retained atall times for a period of 3 years at thecentral office of the elementary or sec-ondary school system or district, or atthe individual school which is the sub-ject of the records and the informationtherefrom, where more convenient, andshall be made available if requested byan officer, agent, or employee of theCommission under section 710 of titleVII, as amended. It is the responsi-bility of every such school system ordistrict, to obtain from the Commis-sion or its delegate necessary instruc-tions in order to comply with the re-quirements of this section.


[38 FR 26719, Sept. 25, 1973, as amended at 39FR 30832, Aug. 26, 1974; 46 FR 63268, Dec. 31,1981]


Any personnel or employment recordmade or kept by a school system, dis-trict, or individual school (includingbut not necessarily limited to requestsfor reasonable accommodation, appli-cation forms submitted by applicantsand other records having to do withhiring, promotion, demotion, transfer,layoff, or termination, rates of pay orother terms of compensation, and se-lection for training or apprenticeship)shall be preserved by such school sys-tem, district, or school, as the casemay be, for a period of 2 years from thedate of the making of the record or thepersonnel action involved, whicheveroccurs later. In the case of involuntarytermination of an employee, the per-sonnel records of the individual termi-nated shall be kept for a period of 2years from the date of termination.Where a charge of discrimination hasbeen filed, or an action brought againstan elementary or secondary school bythe Commission or the Attorney Gen-eral, the respondent elementary or sec-ondary school system, district, or indi-vidual school shall preserve similarly


171


at the central office of the system ordistrict or individual school which isthe subject of the charge or action,where more convenient, all personnelrecords relevant to the charge or ac-tion until final disposition thereof. Theterm ‘‘personnel record relevant to thecharge,’’ for example, would includepersonnel or employment records relat-ing to the person claiming to be ag-grieved and to all other employeesholding positions similar to that heldor sought by the person claiming to beaggrieved; and application forms ortest papers completed by an unsuccess-ful applicant and by all other can-didates for the same position as thatfor which the person claiming to be ag-grieved applied and was rejected. Thedate of ‘‘final disposition of the chargeor the action’’ means the date of expi-ration of the statutory period withinwhich a person claiming to be ag-grieved may bring an action in a U.S.district court or, where an action isbrought against a school system, dis-trict, or school either by a personclaiming to be aggrieved, the Commis-sion, or the Attorney General, the dateon which such litigation is terminated.


[38 FR 26719, Sept. 25, 1973, as amended at 46FR 63268, Dec. 31, 1981; 56 FR 35756, July 26,1991]

Subpart M—Elementary-Sec-ondary Staff Information Re-port



On or before November 30, 1982, andbiennially thereafter, certain public el-ementary and secondary school sys-tems and districts, including individ-ually or separately administered dis-tricts within such systems, shall filewith the Commission or its delegateexecuted copies of Elementary-Sec-ondary Staff Information Report EEO–5 in conformity with the directions setforth in the form and accompanying in-structions. The elementary and sec-

ondary school systems and districtscovered are:

(a) Every one of those which have 100or more employees, and

(b) Every one of those others whichhave 15 or more employees from whomthe Commission requests the filing ofreports.

Every such elementary or secondaryschool system or district shall retainat all times, for a period of 3 years, acopy of the most recently filed reportEEO–5 at the central office of theschool system or district, and shallmake the same available if requestedby an officer, agent, or employee of theCommission under the authority of sec-tion 710 of title VII, as amended. It isthe responsibility of the school sys-tems or districts above described inthis section to obtain from the Com-mission or its delegate necessary sup-plies of the form.

[48 FR 8058, Feb. 25, 1983; as amended at 61FR 33660, June 28, 1996]


The making of willfully false state-ments on report EEO–5 is a violation ofthe United States Code, title 18, sec-tion 1001, and is punishable by fine oremprisonment as set forth therein.

§ 1602.43 Commission’s remedy forschool systems’ or districts’ failureto file report.

Any school system or district failingor refusing to file report EEO–5 whenrequired to do so may be compelled tofile by order of a U.S. district court,upon application of the Commission orthe Attorney General.

[61 FR 33660, June 28, 1996]

§ 1602.44 School systems’ or districts’exemption from reporting require-ments.

If it is claimed that the preparationor filing of the report would createundue hardship, the school system ordistrict may apply to the Commissionfor an exemption from the require-ments set forth in this part by submit-ting to the Commission or its delegatea specific proposal for an alternative


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1 NOTE: Instructions were published as anappendix to the regulations at 40 FR 25188,June 12, 1975.

reporting system prior to the date onwhich the report is due.

[61 FR 33660, June 28, 1996]


The Commission reserves the right torequire reports, other than that des-ignated as the Elementary-SecondaryInformation Report EEO–5, about theemployment practices of private orpublic individual school systems, dis-tricts, or schools, or groups thereof,whenever, in its judgment, special orsupplemental reports are necessary toaccomplish the purposes of title VII orthe ADA. Any system for the require-ment of such reports will be estab-lished in accordance with the proce-dures referred to in section 709(c) oftitle VII or section 107 of the ADA andas otherwise prescribed by law.

[38 FR 27619, Sept. 25, 1973, as amended at 56FR 35756, July 26, 1991]

Subpart N—Records and Inquiriesas to Race, Color, NationalOrigin, or Sex


The requirements imposed by theEqual Employment Opportunity Com-mission in these regulations, subpartsL and M of this part, supersede anyprovisions of State or local law whichmay conflict with them.

[38 FR 26720, Sept. 25, 1973]

Subpart O—Recordkeeping forInstitutions of Higher Education

§ 1602.47 Definition.

Under subparts O and P of this part,the term institution of higher educationmeans an institutional system, college,university, community college, juniorcollege, and any other educational in-stitution which offers an associate de-gree, baccalaureate degree or higherdegree or which offers a two year pro-gram of college level studies withoutdegree. The term college level studiesmeans a post secondary program whichis wholly or principally creditable to-

ward a baccalaureate degree or termi-nates in an associate degree.

[40 FR 25188, June 12, 1975]

§ 1602.48 Records to be made or kept.Commencing August 1, 1975, every in-

stitution of higher education, whetherpublic or private, with 15 or more em-ployees, shall make or keep all records,and information therefrom, which areor would be necessary for the comple-tion of Higher Education Staff Infor-mation Report EEO–6 whether or not itis required to file such a report under§ 1602.50. The instructions for comple-tion of Report EEO–6 are specificallyincorporated herein by reference andhave the same force and effect as othersections of this part.1 Such records,and the information therefrom, shallbe retained at all times for a period ofthree years at the central administra-tive office of the institution of highereducation, at the central administra-tive office of a separate campus orbranch, or at an individual schoolwhich is the subject of the records andinformation, where more convenient.Such records, and the informationtherefrom, shall be made available ifrequested by the Commission or itsrepresentative under section 710 of titleVII and 29 U.S.C. 161. It is the responsi-bility of every institution of highereducation to obtain from the Commis-sion or its delegate the necessary in-structions in order to comply with therequirements of this section.


[40 FR 25188, June 12, 1975, as amended at 46FR 63268, Dec. 31, 1981]


(a) Any personnel or employmentrecord (including but not necessarilylimited to requests for reasonable ac-commodation, application forms sub-mitted by applicants and other recordshaving to do with hiring, promotion,tenure, demotion, transfer, layoff, ortermination, rates of pay or otherterms of compensation, and selection


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for training) made or kept by an insti-tution of higher education shall be pre-served by such institution of highereducation for a period of two yearsfrom the date of the making of the per-sonnel action or record involved,whichever occurs later. In the case ofthe involuntary termination of an em-ployee, the personnel records of the in-dividual terminated shall be kept for aperiod of two years from the date oftermination. Where a charge of dis-crimination has been filed, or a civilaction brought against an institutionof higher education by the Commissionor the Attorney General, the respond-ent shall preserve similarly at the cen-tral administrative office of the insti-tution of higher education, at the cen-tral office of a separate campus orbranch, or at the individual schoolwhich is the subject of the charge oraction, where more convenient, all per-sonnel records relevant to the chargeor action until final disposition there-of. The term ‘‘personnel records rel-evant to the charge,’’ for example,would include personnel or employ-ment records relating to the personclaiming to be aggrieved and to allother employees holding positionssimilar to that held or sought by theperson claiming to be aggrieved; itwould also include application forms ortest papers completed by an unsuccess-ful applicant and by all other can-didates for the same position as thatfor which the person claiming to be ag-grieved applied and was rejected. Thedate of ‘‘final disposition of the chargeor the action’’ means the date of expi-ration of the statutory period withinwhich a person claiming to be ag-grieved may bring an action in theUnited States District Court, or, wherean action is brought against an institu-tion of higher education by a personclaiming to be aggrieved, the Commis-sion, or the Attorney General, the dateon which such litigation is terminated.

(b) The requirements of paragraph (a)of this section shall not apply to appli-cation forms and other preemploymentrecords of non-student applicants forpositions known to non-student appli-

cants to be of a temporary or seasonalnature.


[40 FR 25188, June 12, 1975, as amended at 46FR 63268, Dec. 31, 1981; 56 FR 35756, July 26,1991]

Subpart P—Higher Education StaffInformation Report EEO–6



On or before November 30, 1975, andbiennially thereafter, every public andprivate institution of higher educationhaving fifteen (15) or more employeesshall file with the Commission or itsdelegate executed copies of HigherEducation Staff Information ReportEEO–6 in conformity with the direc-tions set forth in the form and accom-panying instructions. Every institutionof higher education shall retain at alltimes, for a period of three years acopy of the most recently filed ReportEEO–6 at its central administrative of-fice, at the central office of a separatecampus or branch, or at an individualschool which is the subject of the re-port, where more convenient. An insti-tution of higher education shall makethe same available if requested by theCommission or is representative underthe authority of section 710 of the Actand 29 U.S.C. 161. It is the responsi-bility of the institutions above de-scribed in this section to obtain fromthe Commission or its delegate nec-essary supplies of the form.


The making of willfully false state-ments on Report EEO–6 is a violationof the United States Code, title 18, sec-tion 1001, and is punishable by fine orimprisonment as set forth therein.

§ 1602.52 Commission’s remedy for fail-ure to file.

Any institution of higher educationfailing or refusing to keep records, inaccordance with § 1602.48 or § 1602.49 of


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subpart O of this part, or failing or re-fusing to file Report EEO–6 when re-quired to do so, in accordance with§ 1602.50 of this part, may be compelledto keep records or to file by order of aUnited States District Court upon ap-plication of the Commission, or the At-torney General in a case involving apublic institution.


If it is claimed that the preparationor filing of the report would createundue hardship, the institution ofhigher education may apply to theCommission for an exemption from therequirements set forth in subparts Oand P of this part by submitting to theCommission or its delegate a specificproposal for an alternative reportingsystem no later than 45 days prior tothe date on which the report must befiled.


The Commission reserves the right torequire reports, other than that des-ignated as the Higher Education StaffInformation Report EEO–6, about theemployment practices of private orpublic institutions of higher educationwhenever, in its judgment, special orsupplemental reports are necessary toaccomplish the purposes of title VII orthe ADA. Any system for the require-ment of such reports will be estab-lished in accordance with the proce-dures referred to in section 709(c) oftitle VII or section 107 of the ADA andas otherwise prescribed by law.

[40 FR 25189, June 12, 1975, as amended at 56FR 35756, July 26, 1991]

Subpart Q—Records and Inquiriesas to Race, Color, NationalOrigin, or Sex


The requirements imposed by theEqual Employment Opportunity Com-mission in these regulations, subpartsO, P, and Q of this part, supersede anyprovisions of State or local law whichmay conflict with them.

[40 FR 25189, June 12, 1975]

Subpart R—Investigation of Re-porting or RecordkeepingViolations

§ 1602.56 Investigation of reporting orrecordkeeping violations.

When it has received an allegation,or has reason to believe, that a personhas not complied with the reporting orrecordkeeping requirements of thispart or of part 1607 of this chapter, theCommission may conduct an investiga-tion of the alleged failure to comply.

[56 FR 35756, July 26, 1991]

PART 1603—PROCEDURES FOR PRE-VIOUSLY EXEMPT STATE ANDLOCAL GOVERNMENT EMPLOYEECOMPLAINTS OF EMPLOYMENTDISCRIMINATION UNDER SEC-TION 321 OF THE GOVERNMENTEMPLOYEE RIGHTS ACT OF 1991

Sec.1603.100 Purpose.

Subpart A—Administrative Process

1603.101 Coverage.1603.102 Filing a complaint.1603.103 Referral of complaints.1603.104 Service of the complaint.1603.105 Withdrawal of a complaint.1603.106 Computation of time.1603.107 Dismissals of complaints.1603.108 Settlement and alternative dispute

resolution.1603.109 Investigations.

Subpart B—Hearings

1603.201 Referral and scheduling for hearing.1603.202 Administrative law judge.1603.203 Unavailability or withdrawal of ad-

ministrative law judges.1603.204 Ex parte communications.1603.205 Separation of functions.1603.206 Consolidation and severance of

hearings.1603.207 Intervention.1603.208 Motions.1603.209 Filing and service.1603.210 Discovery.1603.211 Subpoenas.1603.212 Witness fees.1603.213 Interlocutory review.1603.214 Evidence.1603.215 Record of hearings.1603.216 Summary decision.1603.217 Decision of the administrative law

judge.


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Subpart C—Appeals

1603.301 Appeal to the Commission.1603.302 Filing an appeal.1603.303 Briefs on appeal.1603.304 Commission decision.1603.305 Modification or withdrawal of Com-

mission decision.1603.306 Judicial review.



§ 1603.100 Purpose.

This part contains the regulations ofthe Equal Employment OpportunityCommission (hereinafter the Commis-sion) for processing complaints of dis-crimination filed under section 321 ofthe Government Employee Rights Act,2 U.S.C. 1220.

Subpart A—Administrative Process

§ 1603.101 Coverage.

Section 321 of the Government Em-ployee Rights Act of 1991 applies to em-ployment, which includes applicationfor employment, of any individual cho-sen or appointed by a person elected topublic office in any State or politicalsubdivision of any State by the quali-fied voters thereof:

(a) To be a member of the elected of-ficial’s personal staff;

(b) To serve the elected official onthe policymaking level; or

(c) To serve the elected official as animmediate advisor with respect to theexercise of the constitutional or legalpowers of the office.

§ 1603.102 Filing a complaint.

(a) Who may make a complaint. Indi-viduals referred to in § 1603.101 who be-lieve they have been discriminatedagainst on the basis of race, color, reli-gion, sex, national origin, age or dis-ability or retaliated against for oppos-ing any practice made unlawful by fed-eral laws protecting equal employmentopportunity or for participating in anystage of administrative or judicial pro-ceedings under federal laws protectingequal employment opportunity mayfile a complaint not later than 180 daysafter the occurrence of the alleged dis-crimination.

(b) Where to file a complaint. A com-plaint may be filed in person or by mailor by facsimile machine to the officesof the Commission in Washington,D.C., or any of its field offices or withany designated agent or representativeof the Commission. The addresses ofthe Commission’s field offices appearin 29 CFR 1610.4.

(c) Contents of a complaint. A com-plaint shall be in writing, signed andverified. In addition, each complaintshould contain the following:

(1) The full name, address and tele-phone number of the person makingthe complaint;

(2) The full name and address of theperson, governmental entity or polit-ical subdivision against whom the com-plaint is made (hereinafter referred toas the respondent);

(3) A clear and concise statement ofthe facts, including pertinent dates,constituting the alleged unlawful em-ployment practices (See 29 CFR1601.15(b)); and

(4) A statement disclosing whetherproceedings involving the alleged un-lawful employment practice have beencommenced before a State or local FEPagency charged with the enforcementof fair employment practice laws and,if so, the date of such commencementand the name of the agency.

(d) Amendment of a complaint. Not-withstanding paragraph (c) of this sec-tion, a complaint is sufficient when theCommission receives from the personmaking the complaint a written state-ment sufficiently precise to identifythe parties and to describe generallythe alleged discriminatory action orpractices. A complaint may be amend-ed to cure technical defects or omis-sions, including failure to verify thecomplaint, or to clarify and amplify itsallegations. Such amendments, andamendments alleging additional actsthat constitute discriminatory employ-ment practices related to or growingout of the subject matter of the origi-nal complaint, will relate back to thedate the complaint was first received.A complaint that has been amendedafter it was referred shall not be againreferred to the appropriate state orlocal fair employment practices agen-cy.


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(e) Misfiled complaint. A charge filedpursuant to 29 CFR part 1601 or part1626, that is later deemed to be a mat-ter under this part, shall be processedas a complaint under this part andshall relate back to the date of the ini-tial charge or complaint. A complaintfiled under this part that is laterdeemed to be a matter under 29 CFRpart 1601 or part 1626 shall be processedas a charge under the appropriate regu-lation and shall relate back to the dateof the initial complaint.

§ 1603.103 Referral of complaints.(a) The Commission will notify an

FEP agency, as defined in 29 CFR1601.3(a), when a complaint is filed by astate or local government employee orapplicant under this part concerningan employment practice within the ju-risdiction of the FEP agency. The FEPagency will be entitled to process thecomplaint exclusively for a period ofnot less than 60 days if the FEP agencymakes a written request to the Com-mission within 10 days of receiving no-tice that the complaint has been filed,unless the complaint names the FEPagency as the respondent.

(b) The Commission may enter intoan agreement with an FEP agency thatauthorizes the FEP agency to receivecomplaints under this part on behalf ofthe Commission, or waives the FEPagency’s right to exclusive processingof complaints.

§ 1603.104 Service of the complaint.Upon receipt of a complaint, the

Commission shall promptly serve therespondent with a copy of the com-plaint.

§ 1603.105 Withdrawal of a complaint.The complainant may withdraw a

complaint at any time by so advisingthe Commission in writing.

§ 1603.106 Computation of time.(a) All time periods in this part that

are stated in terms of days are cal-endar days unless otherwise stated.

(b) A document shall be deemed time-ly if it is delivered by facsimile not ex-ceeding 20 pages, in person or post-marked before the expiration of the ap-plicable filing period, or, in the absenceof a legible postmark, if it is received

by mail within five days of the expira-tion of the applicable filing period.

(c) All time limits in this part aresubject to waiver, estoppel and equi-table tolling.

(d) The first day counted shall be theday after the event from which thetime period begins to run and the lastday of the period shall be included un-less it falls on a Saturday, Sunday orfederal holiday, in which case the pe-riod shall be extended to include thenext business day.

§ 1603.107 Dismissals of complaints.(a) Where a complaint on its face, or

after further inquiry, is determined tobe not timely filed or otherwise fails tostate a claim under this part, the Com-mission shall dismiss the complaint.

(b) Where the complainant cannot belocated, the Commission may dismissthe complaint provided that reasonableefforts have been made to locate thecomplainant and the complainant hasnot responded within 30 days to a no-tice sent by the Commission to thecomplainant’s last known address.

(c) Where the complainant fails toprovide requested information, fails orrefuses to appear or to be available forinterviews or conferences as necessary,or otherwise refuses to cooperate, theCommission, after providing the com-plainant with notice and 30 days inwhich to respond, may dismiss thecomplaint.

(d) Written notice of dismissal pursu-ant to paragraphs (a), (b), or (c) of thissection shall be issued to the complain-ant and the respondent. The Commis-sion hereby delegates authority to theProgram Director, Office of Field Pro-grams, or to his or her designees, andDistrict Directors, or to their des-ignees, to dismiss complaints.

(e) A complainant who is dissatisfiedwith a dismissal issued pursuant toparagraphs (a), (b), or (c) of this sectionmay appeal to the Commission in ac-cordance with the procedures in sub-part C of this part.

[62 FR 17543, Apr. 10, 1997, as amended at 64FR 28744, May 27, 1999]

§ 1603.108 Settlement and alternativedispute resolution.

(a) The parties are at all times freeto settle all or part of a complaint on


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terms that are mutually agreeable.Any settlement reached shall be inwriting and signed by both parties andshall identify the allegations resolved.A copy of any settlement shall beserved on the Commission.

(b) With the agreement of the par-ties, the Commission may refer a com-plaint to a neutral mediator or to anyother alternative dispute resolutionprocess authorized by the Administra-tive Dispute Resolution Act, 5 U.S.C.571 to 583, or other statute.

(c) The Commission may use theservices of the Federal Mediation andConciliation Service, other federalagencies, appropriate professional or-ganizations, employees of the Commis-sion and other appropriate sources inselecting neutrals for alternative dis-pute resolution processes.

(d) The alternative dispute resolutionprocess shall be strictly confidential,and no party to a complaint or neutralshall disclose any dispute resolutioncommunication or any informationprovided in confidence to the neutralexcept as provided in 5 U.S.C. 584.

§ 1603.109 Investigations.(a) Before referring a complaint to an

administrative law judge under section201 of this part, the Commission mayconduct investigation using an ex-change of letters, interrogatories, fact-finding conferences, interviews, on-sitevisits or other fact-finding methodsthat address the matters at issue.

(b) During an investigation of a com-plaint under this part, the Commissionshall have the authority to sign andissue a subpoena requiring the attend-ance and testimony of witnesses, theproduction of evidence and access toevidence for the purposes of examina-tion and the right to copy. The sub-poena procedures contained in 29 CFR1601.16 shall apply to subpoenas issuedpursuant to this section.

Subpart B—Hearings§ 1603.201 Referral and scheduling for

hearing.(a) Upon request by the complainant

under paragraph (b) of this section or ifthe complaint is not dismissed or re-solved under subpart A of this part, onbehalf of the Commission, the Office of

Federal Operations shall transmit thecomplaint file to an administrative lawjudge, appointed under 5 U.S.C. 3105,for a hearing.

(b) If the complaint has not been re-ferred to an administrative law judgewithin 180 days after filing, the com-plainant may request that the com-plaint be immediately transmitted toan administrative law judge for a hear-ing.

(c) The administrative law judgeshall fix the time, place, and date forthe hearing with due regard for theconvenience of the parties, their rep-resentatives or witnesses and shall no-tify the parties of the same.

§ 1603.202 Administrative law judge.

The administrative law judge shallhave all the powers necessary to con-duct fair, expeditious, and impartialhearings as provided in 5 U.S.C. 556(c).In addition, the administrative lawjudge shall have the power to:

(a) Change the time, place or date ofthe hearing;

(b) Enter a default decision against aparty failing to appear at a hearing un-less the party shows good cause by con-tacting the administrative law judgeand presenting arguments as to whythe party or the party’s representativecould not appear either prior to thehearing or within two days after thescheduled hearing; and

(c) Take any appropriate action au-thorized by the Federal Rules of CivilProcedure (28 U.S.C. appendix).

§ 1603.203 Unavailability or with-drawal of administrative lawjudges.

(a) In the event the administrativelaw judge designated to conduct thehearing becomes unavailable or with-draws from the adjudication, anotheradministrative law judge may be des-ignated for the purpose of further hear-ing or issuing a decision on the recordas made, or both.

(b) The administrative law judge maywithdraw from the adjudication at anytime the administrative law judgedeems himself or herself disqualified.Prior to issuance of the decision, anyparty may move that the administra-tive law judge withdraw on the ground


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of personal bias or other disqualifica-tion, by filing with the administrativelaw judge promptly upon discovery ofthe alleged facts an affidavit settingforth in detail the matters alleged toconstitute grounds for withdrawal.

(c) The administrative law judgeshall rule upon the motion for with-drawal. If the administrative law judgeconcludes that the motion is timelyand has merit, the administrative lawjudge shall immediately withdraw fromthe adjudication. If the administrativelaw judge does not withdraw, the adju-dication shall proceed.

§ 1603.204 Ex parte communications.(a) Oral or written communications

concerning the merits of an adjudica-tion between the administrative lawjudge or decision-making personnel ofthe Commission and an interestedparty to the adjudication without pro-viding the other party a chance to par-ticipate are prohibited from the timethe matter is assigned to an adminis-trative law judge until the Commissionhas rendered a final decision. Commu-nications concerning the status of thecase, the date of a hearing, the methodof transmitting evidence to the Com-mission and other purely proceduralquestions are permitted.

(b) Decision-making personnel of theCommission include members of theCommission and their staffs and per-sonnel in the Office of Federal Oper-ations, but do not include investigatorsand intake staff.

(c) Any communication made in vio-lation of this section shall be madepart of the record and an opportunityfor rebuttal by the other party allowed.If the communication was oral, amemorandum stating the substance ofthe discussion shall be placed in therecord.

(d) Where it appears that a party hasengaged in prohibited ex parte commu-nications, that party may be requiredto show cause why, in the interest ofjustice, his or her claim or defenseshould not be dismissed, denied or oth-erwise adversely affected.

§ 1603.205 Separation of functions.(a) The administrative law judge may

not be responsible to or subject to thesupervision or direction of a Commis-

sion employee engaged in investigatingcomplaints under this part.

(b) No Commission employee engagedin investigating complaints under thispart shall participate or advise in thedecision of the administrative lawjudge, except as a witness or counsel inthe adjudication, or its appellate re-view.

§ 1603.206 Consolidation and sever-ance of hearings.

(a) The administrative law judgemay, upon motion by a party or uponhis or her own motion, after providingreasonable notice and opportunity toobject to all parties affected, consoli-date any or all matters at issue in twoor more adjudications docketed underthis part where common parties, or fac-tual or legal questions exist; wheresuch consolidation would expedite orsimplify consideration of the issues; orwhere the interests of justice would beserved. For purposes of this section, nodistinction is made between joinderand consolidation of adjudications.

(b) The administrative law judgemay, upon motion of a party or uponhis or her own motion, for good causeshown, order any adjudication severedwith respect to some or all parties,claims or issues.

§ 1603.207 Intervention.

(a) Any person or entity that wishesto intervene in any proceeding underthis subpart shall file a motion to in-tervene in accordance with § 1603.208.

(b) A motion to intervene shall indi-cate the question of law or fact com-mon to the movant’s claim or defenseand the complaint at issue and stateall other facts or reasons the movantshould be permitted to intervene.

(c) Any party may file a response toa motion to intervene within 15 daysafter the filing of the motion to inter-vene.

§ 1603.208 Motions.

(a) All motions shall state the spe-cific relief requested. All motions shallbe in writing, except that a motionmay be made orally during a con-ference or during the hearing. Afterproviding an opportunity for response,the administrative law judge may rule


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on an oral motion immediately or mayrequire that it be submitted in writing.

(b) Unless otherwise directed by theadministrative law judge, any otherparty may file a response in support ofor in opposition to any written motionwithin ten (10) business days after serv-ice of the motion. If no response is filedwithin the response period, the partyfailing to respond shall be deemed tohave waived any objection to thegranting of the motion. The movingparty shall have no right to reply to aresponse, unless the administrative lawjudge, in his or her discretion, ordersthat a reply be filed.

(c) Except for procedural matters,the administrative law judge may notgrant a written motion prior to the ex-piration of the time for filing re-sponses. The administrative law judgemay deny a written motion withoutawaiting a response. The administra-tive law judge may allow oral argu-ment (including that made by tele-phone) on written motions. Any partyadversely affected by the ex parte grantof a motion for a procedural order mayrequest, within five (5) business days ofservice of the order, that the adminis-trative law judge reconsider, vacate ormodify the order.

(d) The administrative law judge maysummarily deny dilatory, repetitive orfrivolous motions. Unless otherwise or-dered by the administrative law judge,the filing of a motion does not stay theproceeding.

(e) All motions and responses mustcomply with the filing and service re-quirements of § 1603.209.

§ 1603.209 Filing and service.(a) Unless otherwise ordered by the

administrative law judge, a signedoriginal of each motion, brief or otherdocument shall be filed with the ad-ministrative law judge, with a certifi-cate of service indicating that a copyhas been sent to all other parties, andthe date and manner of service. Alldocuments shall be on standard size(81⁄2 × 11) paper. Each document filedshall be clear and legible.

(b) Filing and service shall be madeby first class mail or other more expe-ditious means of delivery, including, atthe discretion of the administrativelaw judge, by facsimile. The adminis-

trative law judge, may in his discre-tion, limit the number of pages thatmay be filed or served by facsimile.Service shall be made on a party’s rep-resentative, or, if not represented, onthe party.

(c) Every document shall contain acaption, the complaint number ordocket number assigned to the matter,a designation of the type of filing (e.g.,motion, brief, etc.), and the filing per-son’s signature, address, telephonenumber and telecopier number, if any.

§ 1603.210 Discovery.

(a) Unless otherwise ordered by theadministrative law judge, discoverymay begin as soon as the complaint hasbeen transmitted to the administrativelaw judge pursuant to § 1603.201. Dis-covery shall be completed as expedi-tiously as possible within such time asthe administrative law judge directs.

(b) Unless otherwise ordered by theadministrative law judge, parties mayobtain discovery by written interrog-atories (not to exceed 20 interrog-atories including subparts), depositionsupon oral examination or written ques-tions, requests for production of docu-ments or things for inspection or otherpurposes, requests for admission or anyother method found reasonable and ap-propriate by the administrative lawjudge.

(c) Except as otherwise specified, theFederal Rules of Civil Procedure shallgovern discovery in proceedings underthis part.

(d) Neutral mediators who have par-ticipated in the alternative dispute res-olution process in accordance with§ 1603.108 shall not be called as wit-nesses or be subject to discovery in anyadjudication under this part.

§ 1603.211 Subpoenas.

(a) Upon written application of anyparty, the administrative law judgemay on behalf of the Commission issuea subpoena requiring the attendanceand testimony of witnesses and theproduction of any evidence, including,but not limited to, books, records, cor-respondence, or documents, in theirpossession or under their control. Thesubpoena shall state the name and ad-dress of the party at whose request the


180


subpoena was issued, identify the per-son and evidence subpoenaed, and thedate and time the subpoena is return-able.

(b) Any person served with a sub-poena who intends not to comply shall,within 5 days after service of the sub-poena, petition the administrative lawjudge in writing to revoke or modifythe subpoena. All petitions to revokeor modify shall be served upon theparty at whose request the subpoenawas issued. The requestor may file withthe administrative law judge a re-sponse to the petition to revoke ormodify within 5 days after service ofthe petition.

(c) Upon the failure of any person tocomply with a subpoena issued underthis section, the administrative lawjudge may refer the matter to the Com-mission for enforcement in accordancewith 29 CFR 1601.16(c).

§ 1603.212 Witness fees.Witnesses summoned under this part

shall receive the same fees and mileageas witnesses in the courts of the UnitedStates. Those fees must be paid or of-fered to the witness by the party re-questing the subpoena at the time thesubpoena is served, or, if the witnessappears voluntarily, at the time of ap-pearance. A federal agency or corpora-tion is not required to pay or offer wit-ness fees and mileage allowances in ad-vance.

§ 1603.213 Interlocutory review.(a) Interlocutory review may not be

sought except when the administrativelaw judge determines upon motion of aparty or upon his or her own motionthat:

(1) The ruling involves a controllingquestion of law or policy about whichthere is substantial ground for dif-ference of opinion;

(2) An immediate ruling will materi-ally advance the completion of the pro-ceeding; or

(3) The denial of an immediate rulingwill cause irreparable harm to theparty or the public.

(b) Application for interlocutory re-view shall be filed within ten (10) daysafter notice of the administrative lawjudge’s ruling. Any application for re-view shall:

(1) Designate the ruling or partthereof from which appeal is beingtaken; and

(2) Contain arguments or evidencethat tend to establish one or more ofthe grounds for interlocutory reviewcontained in paragraph (a) of this sec-tion.

(c) Any party opposing the applica-tion for interlocutory review shall filea response to the application within 10days after service of the application.The applicant shall have no right toreply to a response unless the adminis-trative law judge, within his or her dis-cretion, orders that a reply be filed.

(d) The administrative law judgeshall promptly certify in writing anyruling that qualifies for interlocutoryreview under paragraph (a) of this sec-tion.

(e) The filing of an application for in-terlocutory review and the grant of anapplication shall not stay proceedingsbefore the administrative law judge un-less the administrative law judge orthe Commission so orders. The Com-mission shall not consider a motion fora stay unless the motion was firstmade to the administrative law judge.

§ 1603.214 Evidence.

The administrative law judge shallaccept relevant non-privileged evidencein accordance with the Federal Rulesof Evidence (28 U.S.C. appendix), exceptthe rules on hearsay will not be strict-ly applied.

§ 1603.215 Record of hearings.

(a) All hearings shall be mechani-cally or stenographically reported. Allevidence relied upon by the adminis-trative law judge for decision shall becontained in the transcript of testi-mony, either directly or by appropriatereference. All exhibits introduced asevidence shall be marked for identifica-tion, with a copy provided for all par-ties, if not previously provided, and in-corporated into the record. Transcriptsmay be obtained by the parties and thepublic from the official reporter atrates fixed by the contract with the re-porter.

(b) Corrections to the official tran-script will be permitted upon motion,


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only when errors of substance are in-volved and upon approval of the admin-istrative law judge. Motions for correc-tion must be submitted within ten (10)days of the receipt of the transcript un-less additional time is permitted by theadministrative law judge.

§ 1603.216 Summary decision.Upon motion of a party or after no-

tice to the parties, the administrativelaw judge may issue a summary deci-sion without a hearing if the adminis-trative law judge finds that there is nogenuine issue of material fact or thatthe complaint may be dismissed pursu-ant to § 1603.107 or any other groundsauthorized by this part. A summary de-cision shall otherwise conform to therequirements of § 1603.217.

§ 1603.217 Decision of the administra-tive law judge.

(a) The administrative law judgeshall issue a decision on the merits ofthe complaint within 270 days after re-ferral of a complaint for hearing, un-less the administrative law judgemakes a written determination thatgood cause exists for extending thetime for issuing a decision. The deci-sion shall contain findings of fact andconclusions of law, shall order appro-priate relief where discrimination isfound, and shall provide notice of ap-peal rights consistent with subpart C ofthis part.

(b) The administrative law judgeshall serve the decision promptly on allparties to the proceeding and theircounsel. Thereafter, the administrativelaw judge shall transmit the case fileto the Office of Federal Operations in-cluding the decision and the record.The record shall include the complaint;the investigative file, if any; referralnotice; motions; briefs; rulings; orders;official transcript of the hearing; alldiscovery and any other documentssubmitted by the parties.

Subpart C—Appeals§ 1603.301 Appeal to the Commission.

Any party may appeal to the Com-mission the dismissal of a complaintunder § 1603.107, any matter certifiedfor interlocutory review under§ 1613.213, or the administrative law

judge’s decision under § 1603.216 or§ 1603.217.

§ 1603.302 Filing an appeal.(a) An appeal shall be filed within 30

days after the date of the appealabledecision or certification for interlocu-tory review, unless the Commission,upon a showing of good cause, extendsthe time for filing an appeal for a pe-riod not to exceed an additional 30days.

(b) An appeal shall be filed with theDirector, Office of Federal Operations,Equal Employment Opportunity Com-mission, P.O. Box 19848, Washington,D.C. 20036, by mail or personal deliveryor facsimile.

§ 1603.303 Briefs on appeal.(a) The appellant shall file a brief or

other written statement within 30 daysafter the appeal is filed, unless theCommission otherwise directs.

(b) All other parties may file briefs orother written statements within 30days of service of the appellant’s briefor statement.

(c) Every brief or statement shallcontain a statement of facts and a sec-tion setting forth the party’s legal ar-guments. Any brief or statement insupport of the appeal shall contain ar-guments or evidence that tend to es-tablish that the dismissal, order or de-cision:

(1) Is not supported by substantialevidence;

(2) Contains an erroneous interpreta-tion of law, regulation or material fact,or misapplication of established policy;

(3) Contains a prejudicial error ofprocedure; or

(4) Involves a substantial question oflaw or policy.

(d) Appellate briefs shall not exceed50 pages in length.

(e) Filing and service of the appealand appellate briefs shall be made inaccordance with § 1603.209.

§ 1603.304 Commission decision.(a) On behalf of the Commission, the

Office of Federal Operations shall re-view the record and the appellate briefssubmitted by all the parties. The Officeof Federal Operations shall prepare arecommended decision for consider-ation by the Commission.


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(b) When an administrative law judgecertifies a matter for interlocutory re-view under § 1603.213, the Commissionmay, in its discretion, issue a decisionon the matter or send the matter backto the administrative law judge with-out decision.

(c) The Commission will not acceptor consider new evidence on appeal un-less the Commission, in its discretion,reopens the record on appeal.

(d) The decision of the Commissionon appeal shall be its final order andshall be served on all parties.

(e) In the absence of a timely appealunder § 1603.302, the decision of the ad-ministrative law judge under § 1603.217or a dismissal under § 1603.107 shall be-come the final order of the Commis-sion. A final order under this para-graph shall not have precedential sig-nificance.

§ 1603.305 Modification or withdrawalof Commission decision.

At any time, the Commission maymodify or withdraw a decision for anyreason provided that no petition for re-view in a United States Court of Ap-peals has been filed.

§ 1603.306 Judicial review.Any party to a complaint who is ag-

grieved by a final decision under§ 1603.304 may obtain a review of suchfinal decision under chapter 158 of title28 of the United States Code by filing apetition for review with a UnitedStates Court of Appeals within 60 daysafter issuance of the final decision.Such petition for review should be filedin the judicial circuit in which the pe-titioner resides, or has its principal of-fice, or in the United States Court ofAppeals for the District of ColumbiaCircuit.

PART 1604—GUIDELINES ONDISCRIMINATION BECAUSE OF SEX

Sec.1604.1 General principles.1604.2 Sex as a bona fide occupational quali-

fication.1604.3 Separate lines of progression and se-

niority systems.1604.4 Discrimination against married

women.1604.5 Job opportunities advertising.1604.6 Employment agencies.

1604.7 Pre-employment inquiries as to sex.1604.8 Relationship of title VII to the Equal

Pay Act.1604.9 Fringe benefits.1604.10 Employment policies relating to

pregnancy and childbirth.1604.11 Sexual harassment.APPENDIX TO PART 1604—QUESTIONS AND AN-

SWERS ON THE PREGNANCY DISCRIMINATIONACT, PUBLIC LAW 95–555, 92 STAT. 2076(1978)

AUTHORITY: Sec. 713(b), 78 Stat. 265, 42U.S.C. 2000e–12.

SOURCE: 37 FR 6836, April 5, 1972, unlessotherwise noted.

§ 1604.1 General principles.(a) References to ‘‘employer’’ or ‘‘em-

ployers’’ in this part 1604 state prin-ciples that are applicable not only toemployers but also to labor organiza-tions and to employment agencies inso-far as their action or inaction may ad-versely affect employment opportuni-ties.

(b) To the extent that the views ex-pressed in prior Commission pro-nouncements are inconsistent with theviews expressed herein, such priorviews are hereby overruled.

(c) The Commission will continue toconsider particular problems relatingto sex discrimination on a case-by-casebasis.

§ 1604.2 Sex as a bona fide occupa-tional qualification.

(a) The commission believes that thebona fide occupational qualificationexception as to sex should be inter-preted narrowly. Label—‘‘Men’s jobs’’and ‘‘Women’s jobs’’—tend to deny em-ployment opportunities unnecessarilyto one sex or the other.

(1) The Commission will find that thefollowing situations do not warrant theapplication of the bona fide occupa-tional qualification exception:

(i) The refusal to hire a woman be-cause of her sex based on assumptionsof the comparative employment char-acteristics of women in general. Forexample, the assumption that the turn-over rate among women is higher thanamong men.

(ii) The refusal to hire an individualbased on stereotyped characterizationsof the sexes. Such stereotypes include,for example, that men are less capableof assembling intricate equipment:


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that women are less capable of aggres-sive salesmanship. The principle ofnondiscrimination requires that indi-viduals be considered on the basis of in-dividual capacities and not on the basisof any characteristics generally attrib-uted to the group.

(iii) The refusal to hire an individualbecause of the preferences of cowork-ers, the employer, clients or customersexcept as covered specifically in para-graph (a)(2) of this section.

(2) Where it is necessary for the pur-pose of authenticity or genuineness,the Commission will consider sex to bea bona fide occupational qualification,e.g., an actor or actress.

(b) Effect of sex-oriented State em-ployment legislation.

(1) Many States have enacted laws orpromulgated administrative regula-tions with respect to the employmentof females. Among these laws are thosewhich prohibit or limit the employ-ment of females, e.g., the employmentof females in certain occupations, injobs requiring the lifting or carrying ofweights exceeding certain prescribedlimits, during certain hours of thenight, for more than a specified num-ber of hours per day or per week, andfor certain periods of time before andafter childbirth. The Commission hasfound that such laws and regulationsdo not take into account the capac-ities, preferences, and abilities of indi-vidual females and, therefore, discrimi-nate on the basis of sex. The Commis-sion has concluded that such laws andregulations conflict with and are super-seded by title VII of the Civil RightsAct of 1964. Accordingly, such laws willnot be considered a defense to an other-wise established unlawful employmentpractice or as a basis for the applica-tion of the bona fide occupational qual-ification exception.

(2) The Commission has concludedthat State laws and regulations whichdiscriminate on the basis of sex withregard to the employment of minorsare in conflict with and are supersededby title VII to the extent that suchlaws are more restrictive for one sex.Accordingly, restrictions on the em-ployment of minors of one sex over andabove those imposed on minors of theother sex will not be considered a de-fense to an otherwise established un-

lawful employment practice or as abasis for the application of the bonafide occupational qualification excep-tion.

(3) A number of States require thatminimum wage and premium pay forovertime be provided for female em-ployees. An employer will be deemed tohave engaged in an unlawful employ-ment practice if:

(i) It refuses to hire or otherwise ad-versely affects the employment oppor-tunities of female applicants or em-ployees in order to avoid the paymentof minimum wages or overtime pay re-quired by State law; or

(ii) It does not provide the same ben-efits for male employees.

(4) As to other kinds of sex-orientedState employment laws, such as thoserequiring special rest and meal periodsor physical facilities for women, provi-sion of these benefits to one sex onlywill be a violation of title VII. An em-ployer will be deemed to have engagedin an unlawful employment practice if:

(i) It refuses to hire or otherwise ad-versely affects the employment oppor-tunities of female applicants or em-ployees in order to avoid the provisionof such benefits; or

(ii) It does not provide the same ben-efits for male employees. If the em-ployer can prove that business neces-sity precludes providing these benefitsto both men and women, then theState law is in conflict with and super-seded by title VII as to this employer.In this situation, the employer shallnot provide such benefits to membersof either sex.

(5) Some States require that separaterestrooms be provided for employees ofeach sex. An employer will be deemedto have engaged in an unlawful em-ployment practice if it refuses to hireor otherwise adversely affects the em-ployment opportunities of applicantsor employees in order to avoid the pro-vision of such restrooms for persons ofthat sex.

§ 1604.3 Separate lines of progressionand seniority systems.

(a) It is an unlawful employmentpractice to classify a job as ‘‘male’’ or‘‘female’’ or to maintain separate linesof progression or separate seniority


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lists based on sex where this would ad-versely affect any employee unless sexis a bona fide occupational qualifica-tion for that job. Accordingly, employ-ment practices are unlawful which ar-bitrarily classify jobs so that:

(1) A female is prohibited from apply-ing for a job labeled ‘‘male,’’ or for ajob in a ‘‘male’’ line of progression; andvice versa.

(2) A male scheduled for layoff is pro-hibited from displacing a less senior fe-male on a ‘‘female’’ seniority list; andvice versa.

(b) A Seniority system or line of pro-gression which distinguishes between‘‘light’’ and ‘‘heavy’’ jobs constitutesan unlawful employment practice if itoperates as a disguised form of classi-fication by sex, or creates unreasonableobstacles to the advancement by mem-bers of either sex into jobs which mem-bers of that sex would reasonably beexpected to perform.

§ 1604.4 Discrimination against mar-ried women.

(a) The Commission has determinedthat an employer’s rule which forbidsor restricts the employment of marriedwomen and which is not applicable tomarried men is a discrimination basedon sex prohibited by title VII of theCivil Rights Act. It does not seem to usrelevant that the rule is not directedagainst all females, but only againstmarried females, for so long as sex is afactor in the application of the rule,such application involves a discrimina-tion based on sex.

(b) It may be that under certain cir-cumstances, such a rule could be justi-fied within the meaning of section703(e)(1) of title VII. We express noopinion on this question at this timeexcept to point out that sex as a bonafide occupational qualification must bejustified in terms of the peculiar re-quirements of the particular job andnot on the basis of a general principlesuch as the desirability of spreadingwork.

§ 1604.5 Job opportunities advertising.It is a violation of title VII for a

help-wanted advertisement to indicatea preference, limitation, specification,or discrimination based on sex unlesssex is a bona fide occupational quali-

fication for the particular job involved.The placement of an advertisement incolumns classified by publishers on thebasis of sex, such as columns headed‘‘Male’’ or ‘‘Female,’’ will be consid-ered an expression of a preference, lim-itation, specification, or discrimina-tion based on sex.

§ 1604.6 Employment agencies.(a) Section 703(b) of the Civil Rights

Act specifically states that it shall beunlawful for an employment agency todiscriminate against any individual be-cause of sex. The Commission has de-termined that private employmentagencies which deal exclusively withone sex are engaged in an unlawful em-ployment practice, except to the extentthat such agencies limit their servicesto furnishing employees for particularjobs for which sex is a bona fide occu-pational qualification.

(b) An employment agency that re-ceives a job order containing an unlaw-ful sex specification will share respon-sibility with the employer placing thejob order if the agency fills the orderknowing that the sex specification isnot based upon a bona fide occupa-tional qualification. However, an em-ployment agency will not be deemed tobe in violation of the law, regardless ofthe determination as to the employer,if the agency does not have reason tobelieve that the employer’s claim ofbona fide occupations qualification iswithout substance and the agencymakes and maintains a written recordavailable to the Commission of eachsuch job order. Such record shall in-clude the name of the employer, thedescription of the job and the basis forthe employer’s claim of bona fide occu-pational qualification.

(c) It is the responsibility of employ-ment agencies to keep informed ofopinions and decisions of the Commis-sion on sex discrimination.

§ 1604.7 Pre-employment inquiries asto sex.

A pre-employment inquiry may ask‘‘Male........., Female.........’’; or ‘‘Mr.Mrs. Miss,’’ provided that the inquiryis made in good faith for a nondiscrim-inatory purpose. Any pre-employmentinquiry in connection with prospectiveemployment which expresses directly


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or indirectly any limitation, specifica-tion, or discrimination as to sex shallbe unlawful unless based upon a bonafide occupational qualification.

§ 1604.8 Relationship of title VII to theEqual Pay Act.

(a) The employee coverage of the pro-hibitions against discrimination basedon sex contained in title VII is coexten-sive with that of the other prohibitionscontained in title VII and is not lim-ited by section 703(h) to those employ-ees covered by the Fair Labor Stand-ards Act.

(b) By virtue of section 703(h), a de-fense based on the Equal Pay Act maybe raised in a proceeding under titleVII.

(c) Where such a defense is raised theCommission will give appropriate con-sideration to the interpretations of theAdministrator, Wage and Hour Divi-sion, Department of Labor, but will notbe bound thereby.

§ 1604.9 Fringe benefits.(a) ‘‘Fringe benefits,’’ as used herein,

includes medical, hospital, accident,life insurance and retirement benefits;profit-sharing and bonus plans; leave;and other terms, conditions, and privi-leges of employment.

(b) It shall be an unlawful employ-ment practice for an employer to dis-criminate between men and womenwith regard to fringe benefits.

(c) Where an employer conditionsbenefits available to employees andtheir spouses and families on whetherthe employee is the ‘‘head of the house-hold’’ or ‘‘principal wage earner’’ in thefamily unit, the benefits tend to beavailable only to male employees andtheir families. Due to the fact thatsuch conditioning discriminatorily af-fects the rights of women employees,and that ‘‘head of household’’ or ‘‘prin-cipal wage earner’’ status bears no re-lationship to job performance, benefitswhich are so conditioned will be founda prima facie violation of the prohibi-tions against sex discrimination con-tained in the act.

(d) It shall be an unlawful employ-ment practice for an employer to makeavailable benefits for the wives andfamilies of male employees where thesame benefits are not made available

for the husbands and families of femaleemployees; or to make available bene-fits for the wives of male employeeswhich are not made available for fe-male employees; or to make availablebenefits to the husbands of female em-ployees which are not made availablefor male employees. An example ofsuch an unlawful employment practiceis a situation in which wives of maleemployees receive maternity benefitswhile female employees receive no suchbenefits.

(e) It shall not be a defense undertitle VIII to a charge of sex discrimina-tion in benefits that the cost of suchbenefits is greater with respect to onesex than the other.

(f) It shall be an unlawful employ-ment practice for an employer to havea pension or retirement plan which es-tablishes different optional or compul-sory retirement ages based on sex, orwhich differentiates in benefits on thebasis of sex. A statement of the Gen-eral Counsel of September 13, 1968, pro-viding for a phasing out of differentialswith regard to optional retirement agefor certain incumbent employees ishereby withdrawn.

§ 1604.10 Employment policies relatingto pregnancy and childbirth.

(a) A written or unwritten employ-ment policy or practice which excludesfrom employment applicants or em-ployees because of pregnancy, child-birth or related medical conditions isin prima facie violation of title VII.

(b) Disabilities caused or contributedto by pregnancy, childbirth, or relatedmedical conditions, for all job-relatedpurposes, shall be treated the same asdisabilities caused or contributed to byother medical conditions, under anyhealth or disability insurance or sickleave plan available in connection withemployment. Written or unwritten em-ployment policies and practices involv-ing matters such as the commence-ment and duration of leave, the avail-ability of extensions, the accrual of se-niority and other benefits and privi-leges, reinstatement, and paymentunder any health or disability insur-ance or sick leave plan, formal or in-formal, shall be applied to disabilitydue to pregnancy, childbirth or relatedmedical conditions on the same terms


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1 The principles involved here continue toapply to race, color, religion or national ori-gin.

and conditions as they are applied toother disabilities. Health insurancebenefits for abortion, except where thelife of the mother would be endangeredif the fetus were carried to term orwhere medical complications have aris-en from an abortion, are not requiredto be paid by an employer; nothingherein, however, precludes an employerfrom providing abortion benefits orotherwise affects bargaining agree-ments in regard to abortion.

(c) Where the termination of an em-ployee who is temporarily disabled iscaused by an employment policy underwhich insufficient or no leave is avail-able, such a termination violates theAct if it has a disparate impact on em-ployees of one sex and is not justifiedby business necessity.

(d)(1) Any fringe benefit program, orfund, or insurance program which is ineffect on October 31, 1978, which doesnot treat women affected by preg-nancy, childbirth, or related medicalconditions the same as other personsnot so affected but similar in theirability or inability to work, must be incompliance with the provisions of§ 1604.10(b) by April 29, 1979. In order tocome into compliance with the provi-sions of 1604.10(b), there can be no re-duction of benefits or compensationwhich were in effect on October 31,1978, before October 31, 1979 or the expi-ration of a collective bargaining agree-ment in effect on October 31, 1978,whichever is later.

(2) Any fringe benefit program imple-mented after October 31, 1978, mustcomply with the provisions of§ 1604.10(b) upon implementation.

[44 FR 23805, Apr. 20, 1979]

§ 1604.11 Sexual harassment.(a) Harassment on the basis of sex is

a violation of section 703 of title VII.1Unwelcome sexual advances, requestsfor sexual favors, and other verbal orphysical conduct of a sexual natureconstitute sexual harassment when (1)submission to such conduct is made ei-ther explicitly or implicitly a term orcondition of an individual’s employ-ment, (2) submission to or rejection of

such conduct by an individual is usedas the basis for employment decisionsaffecting such individual, or (3) suchconduct has the purpose or effect of un-reasonably interfering with an individ-ual’s work performance or creating anintimidating, hostile, or offensiveworking environment.

(b) In determining whether allegedconduct constitutes sexual harassment,the Commission will look at the recordas a whole and at the totality of thecircumstances, such as the nature ofthe sexual advances and the context inwhich the alleged incidents occurred.The determination of the legality of aparticular action will be made from thefacts, on a case by case basis.

(c) [Reserved](d) With respect to conduct between

fellow employees, an employer is re-sponsible for acts of sexual harassmentin the workplace where the employer(or its agents or supervisory employ-ees) knows or should have known of theconduct, unless it can show that ittook immediate and appropriate cor-rective action.

(e) An employer may also be respon-sible for the acts of non-employees,with respect to sexual harassment ofemployees in the workplace, where theemployer (or its agents or supervisoryemployees) knows or should haveknown of the conduct and fails to takeimmediate and appropriate correctiveaction. In reviewing these cases theCommission will consider the extent ofthe employer’s control and any otherlegal responsibility which the em-ployer may have with respect to theconduct of such non-employees.

(f) Prevention is the best tool for theelimination of sexual harassment. Anemployer should take all steps nec-essary to prevent sexual harassmentfrom occurring, such as affirmativelyraising the subject, expressing strongdisapproval, developing appropriatesanctions, informing employees oftheir right to raise and how to raisethe issue of harassment under title VII,and developing methods to sensitize allconcerned.

(g) Other related practices: Whereemployment opportunities or benefitsare granted because of an individual’ssubmission to the employer’s sexualadvances or requests for sexual favors,


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Equal Employment Opportunity Comm. Pt. 1604, App.

the employer may be held liable for un-lawful sex discrimination against otherpersons who were qualified for but de-nied that employment opportunity orbenefit.

APPENDIX A TO § 1604.11—BACKGROUNDINFORMATION

The Commission has rescinded § 1604.11(c)of the Guidelines on Sexual Harassment,which set forth the standard of employer li-ability for harassment by supervisors. Thatsection is no longer valid, in light of the Su-preme Court decisions in Burlington Indus-tries, Inc. v. Ellerth, 524 U.S. 742 (1998), andFaragher v. City of Boca Raton, 524 U.S. 775(1998). The Commission has issued a policydocument that examines the Faragher andEllerth decisions and provides detailed guid-ance on the issue of vicarious liability forharassment by supervisors. EEOC Enforce-ment Guidance: Vicarious Employer Liabil-ity for Unlawful Harassment by Supervisors(6/18/99), EEOC Compliance Manual (BNA),N:4075 [Binder 3]; also available throughEEOC’s web site, at www.eeoc.gov., or bycalling the EEOC Publications DistributionCenter, at 1–800–669–3362 (voice), 1–800–800–3302 (TTY).

(Title VII, Pub. L. 88–352, 78 Stat. 253 (42U.S.C. 2000e et seq.))

[45 FR 74677, Nov. 10, 1980, as amended at 64FR 58334, Oct. 29, 1999]

APPENDIX TO PART 1604—QUESTIONS ANDANSWERS ON THE PREGNANCY DIS-CRIMINATION ACT, PUBLIC LAW 95–555, 92 STAT. 2076 (1978)

INTRODUCTION

On October 31, 1978, President Cartersigned into law the Pregnancy DiscriminationAct (Pub. L. 95–955). The Act is an amend-ment to title VII of the Civil Rights Act of1964 which prohibits, among other things,discrimination in employment on the basisof sex. The Pregnancy Discrimination Actmakes it clear that ‘‘because of sex’’ or ‘‘onthe basis of sex’’, as used in title VII, in-cludes ‘‘because of or on the basis of preg-nancy, childbirth or related medical condi-tions.’’ Therefore, title VII prohibits dis-crimination in employment against womenaffected by pregnancy or related conditions.

The basic principle of the Act is thatwomen affected by pregnancy and relatedconditions must be treated the same as otherapplicants and employees on the basis oftheir ability or inability to work. A womanis therefore protected against such practicesas being fired, or refused a job or promotion,merely because she is pregnant or has had anabortion. She usually cannot be forced to goon leave as long as she can still work. If

other employees who take disability leaveare entitled to get their jobs back when theyare able to work again, so are women whohave been unable to work because of preg-nancy.

In the area of fringe benefits, such as dis-ability benefits, sick leave and health insur-ance, the same principle applies. A womanunable to work for pregnancy-related rea-sons is entitled to disability benefits or sickleave on the same basis as employees unableto work for other medical reasons. Also, anyhealth insurance provided must cover ex-penses for pregnancy-related conditions onthe same basis as expenses for other medicalconditions. However, health insurance for ex-penses arising from abortion is not requiredexcept where the life of the mother would beendangered if the fetus were carried to term,or where medical complications have arisenfrom an abortion.

Some questions and answers about thePregnancy Discrimination Act follow. Al-though the questions and answers often useonly the term ‘‘employer,’’ the Act—andthese questions and answers—apply also tounions and other entities covered by titleVII.

1. Q. What is the effective date of the Preg-nancy Discrimination Act?

A. The Act became effective on October 31,1978, except that with respect to fringe ben-efit programs in effect on that date, the Actwill take effect 180 days thereafter, that is,April 29, 1979.

To the extent that title VII already re-quired employers to treat persons affected bypregnancy-related conditions the same aspersons affected by other medical conditions,the Act does not change employee rightsarising prior to October 31, 1978, or April 29,1979. Most employment practices relating topregnancy, childbirth and related condi-tions—whether concerning fringe benefits orother practices—were already controlled bytitle VII prior to this Act. For example, titleVII has always prohibited an employer fromfiring, or refusing to hire or promote, awoman because of pregnancy or related con-ditions, and from failing to accord a womanon pregnancy-related leave the same senior-ity retention and accrual accorded those onother disability leaves.

2. Q. If an employer had a sick leave policyin effect on October 31, 1978, by what datemust the employer bring its policy into com-pliance with the Act?

A. With respect to payment of benefits, anemployer has until April 29, 1979, to bringinto compliance any fringe benefit or insur-ance program, including a sick leave policy,which was in effect on October 31, 1978. How-ever, any such policy or program createdafter October 31, 1978, must be in compliancewhen created.

With respect to all aspects of sick leavepolicy other than payment of benefits, such


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29 CFR Ch. XIV (7–1–01 Edition)Pt. 1604, App.

as the terms governing retention and accrualof seniority, credit for vacation, and resump-tion of former job on return from sick leave,equality of treatment was required by titleVII without the Amendment.

3. Q. Must an employer provide benefits forpregnancy-related conditions to an employeewhose pregnancy begins prior to April 29,1979, and continues beyond that date?

A. As of April 29, 1979, the effective date ofthe Act’s requirements, an employer mustprovide the same benefits for pregnancy-re-lated conditions as it provides for other con-ditions, regardless of when the pregnancybegan. Thus, disability benefits must be paidfor all absences on or after April 29, 1979, re-sulting from pregnancy-related temporarydisabilities to the same extent as they arepaid for absences resulting from other tem-porary disabilities. For example, if an em-ployee gives birth before April 29, 1979, but isstill unable to work on or after that date,she is entitled to the same disability benefitsavailable to other employees. Similarily,medical insurance benefits must be paid forpregnancy-related expenses incurred on orafter April 29, 1979.

If an employer requires an employee to beemployed for a predetermined period prior tobeing eligible for insurance coverage, the pe-riod prior to April 29, 1979, during which apregnant employee has been employed mustbe credited toward the eligibility waiting pe-riod on the same basis as for any other em-ployee.

As to any programs instituted for the firsttime after October 31, 1978, coverage for preg-nancy-related conditions must be provided inthe same manner as for other medical condi-tions.

4. Q. Would the answer to the precedingquestion be the same if the employee becamepregnant prior to October 31, 1978?

A. Yes.5. Q. If, for pregnancy-related reasons, an

employee is unable to perform the functionsof her job, does the employer have to provideher an alternative job?

A. An employer is required to treat an em-ployee temporarily unable to perform thefunctions of her job because of her preg-nancy-related condition in the same manneras it treats other temporarily disabled em-ployees, whether by providing modifiedtasks, alternative assignments, disabilityleaves, leaves without pay, etc. For example,a woman’s primary job function may be theoperation of a machine, and, incidental tothat function, she may carry materials toand from the machine. If other employeestemporarily unable to lift are relieved ofthese functions, pregnant employees also un-able to lift must be temporarily relieved ofthe function.

6. Q. What procedures may an employer useto determine whether to place on leave asunable to work a pregnant employee who

claims she is able to work or deny leave toa pregnant employee who claims that she isdisabled from work?

A. An employer may not single out preg-nancy-related conditions for special proce-dures for determining an employee’s abilityto work. However, an employer may use anyprocedure used to determine the ability ofall employees to work. For example, if anemployer requires its employees to submit adoctor’s statement concerning their inabil-ity to work before granting leave or payingsick benefits, the employer may require em-ployees affected by pregnancy-related condi-tions to submit such statement. Similarly, ifan employer allows its employees to obtaindoctor’s statements from their personal phy-sicians for absences due to other disabilitiesor return dates from other disabilities, itmust accept doctor’s statements from per-sonal physicians for absences and returndates connected with pregnancy-related dis-abilities.

7. Q. Can an employer have a rule whichprohibits an employee from returning towork for a predetermined length of timeafter childbirth?

A. No.8. Q. If an employee has been absent from

work as a result of a pregnancy-related con-dition and recovers, may her employer re-quire her to remain on leave until after herbaby is born?

A. No. An employee must be permitted towork at all times during pregnancy when sheis able to perform her job.

9. Q. Must an employer hold open the job ofan employee who is absent on leave becauseshe is temporarily disabled by pregnancy-re-lated conditions?

A. Unless the employee on leave has in-formed the employer that she does not in-tend to return to work, her job must be heldopen for her return on the same basis as jobsare held open for employees on sick or dis-ability leave for other reasons.

10. Q. May an employer’s policy concerningthe accrual and crediting of seniority duringabsences for medical conditions be differentfor employees affected by pregnancy-relatedconditions than for other employees?

A. No. An employer’s seniority policy mustbe the same for employees absent for preg-nancy-related reasons as for those absent forother medical reasons.

11. Q. For purposes of calculating suchmatters as vacations and pay increases, mayan employer credit time spent on leave forpregnancy-related reasons differently thantime spent on leave for other reasons?

A. No. An employer’s policy with respectto crediting time for the purpose of calcu-lating such matters as vacations and pay in-creases cannot treat employees on leave forpregnancy-related reasons less favorablythan employees on leave for other reasons.


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For example, if employees on leave for med-ical reasons are credited with the time spenton leave when computing entitlement to va-cation or pay raises, an employee on leavefor pregnancy-related disability is entitledto the same kind of time credit.

12. Q. Must an employer hire a woman whois medically unable, because of a pregnancy-related condition, to perform a necessaryfunction of a job?

A. An employer cannot refuse to hire awomen because of her pregnancy-relatedcondition so long as she is able to performthe major functions necessary to the job.Nor can an employer refuse to hire her be-cause of its preferences against pregnantworkers or the preferences of co-workers, cli-ents, or customers.

13. Q. May an employer limit disabilitybenefits for pregnancy-related conditions tomarried employees?

A. No.14. Q. If an employer has an all female

workforce or job classification, must bene-fits be provided for pregnancy-related condi-tions?

A. Yes. If benefits are provided for otherconditions, they must also be provided forpregnancy-related conditions.

15. Q. For what length of time must an em-ployer who provides income maintenancebenefits for temporary disabilities providesuch benefits for pregnancy-related disabil-ities?

A. Benefits should be provided for as longas the employee is unable to work for med-ical reasons unless some other limitation isset for all other temporary disabilities, inwhich case pregnancy-related disabilitiesshould be treated the same as other tem-porary disabilities.

16. Q. Must an employer who provides bene-fits for long-term or permanent disabilitiesprovide such benefits for pregnancy-relatedconditions?

A. Yes. Benefits for long-term or perma-nent disabilities resulting from pregnancy-related conditions must be provided to thesame extent that such benefits are providedfor other conditions which result in long-term or permanent disability.

17. Q. If an employer provides benefits toemployees on leave, such as installment pur-chase disability insurance, payment of pre-miums for health, life or other insurance,continued payments into pension, saving orprofit sharing plans, must the same benefitsbe provided for those on leave for pregnancy-related conditions?

A. Yes, the employer must provide thesame benefits for those on leave for preg-nancy-related conditions as for those onleave for other reasons.

18. Q. Can an employee who is absent dueto a pregnancy-related disability be requiredto exhaust vacation benefits before receivingsick leave pay or disability benefits?

A. No. If employees who are absent becauseof other disabling causes receive sick leavepay or disability benefits without any re-quirement that they first exhaust vacationbenefits, the employer cannot impose thisrequirement on an employee absent for apregnancy-related cause.

18 (A). Q. Must an employer grant leave toa female employee for chidcare purposesafter she is medically able to return to workfollowing leave necessitated by pregnancy,childbirth or related medical conditions?

A. While leave for childcare purposes is notcovered by the Pregnancy DiscriminationAct, ordinary title VII principles would re-quire that leave for childcare purposes begranted on the same basis as leave which isgranted to employees for other non-medicalreasons. For example, if an employer allowsits employees to take leave without pay oraccrued annual leave for travel or educationwhich is not job related, the same type ofleave must be granted to those who wish toremain on leave for infant care, even thoughthey are medically able to return to work.

19. Q. If State law requires an employer toprovide disability insurance for a specifiedperiod before and after childbirth, does com-pliance with the State law fulfill the em-ployer’s obligation under the Pregnancy Dis-crimination Act?

A. Not necessarily. It is an employer’s obli-gation to treat employees temporarily dis-abled by pregnancy in the same manner asemployees affected by other temporary dis-abilities. Therefore, any restrictions imposedby State law on benefits for pregnancy-re-lated disabilities, but not for other disabil-ities, do not excuse the employer from treat-ing the individuals in both groups of employ-ees the same. If, for example, a State law re-quires an employer to pay a maximum of 26weeks benefits for disabilities other thanpregnancy-related ones but only six weeksfor pregnancy-related disabilities, the em-ployer must provide benefits for the addi-tional weeks to an employee disabled bypregnancy-related conditions, up to the max-imum provided other disabled employees.

20. Q. If a State or local government pro-vides its own employees income maintenancebenefits for disabilities, may it provide dif-ferent benefits for disabilities arising frompregnancy-related conditions than for dis-abilities arising from other conditions?

A. No. State and local governments, as em-ployers, are subject to the Pregnancy Dis-crimination Act in the same way as privateemployers and must bring their employmentpractices and programs into compliance withthe Act, including disability and health in-surance programs.

21. Q. Must an employer provide health in-surance coverage for the medical expenses ofpregnancy-related conditions of the spousesof male employees? Of the dependents of allemployees?


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A. Where an employer provides no coveragefor dependents, the employer is not requiredto institute such coverage. However, if anemployer’s insurance program covers themedical expenses of spouses of female em-ployees, then it must equally cover the med-ical expenses of spouses of male employees,including those arising from pregnancy-re-lated conditions.

But the insurance does not have to coverthe pregnancy-related conditions of other de-pendents as long as it excludes the preg-nancy-related conditions of the dependentsof male and female employees equally.

22. Q. Must an employer provide the samelevel of health insurance coverage for thepregnancy-related medical conditions of thespouses of male employees as it provides forits female employees?

A. No. It is not necessary to provide thesame level of coverage for the pregnancy-re-lated medical conditions of spouses of maleemployees as for female employees. However,where the employer provides coverage forthe medical conditions of the spouses of itsemployees, then the level of coverage forpregnancy-related medical conditions of thespouses of male employees must be the sameas the level of coverage for all other medicalconditions of the spouses of female employ-ees. For example, if the employer covers em-ployees for 100 percent of reasonable and cus-tomary expenses sustained for a medicalcondition, but only covers dependent spousesfor 50 percent of reasonable and customaryexpenses for their medical conditions, thepregnancy-related expenses of the male em-ployee’s spouse must be covered at the 50percent level.

23. Q. May an employer offer optional de-pendent coverage which excludes pregnancy-related medical conditions or offers less cov-erage for pregnancy-related medical condi-tions where the total premium for the op-tional coverage is paid by the employee?

A. No. Pregnancy-related medical condi-tions must be treated the same as other med-ical conditions under any health or dis-ability insurance or sick leave plan availablein connection with employment, regardless ofwho pays the premiums.

24. Q. Where an employer provides its em-ployees a choice among several health insur-ance plans, must coverage for pregnancy-re-lated conditions be offered in all of theplans?

A. Yes. Each of the plans must cover preg-nancy-related conditions. For example, anemployee with a single coverage policy can-not be forced to purchase a more expensivefamily coverage policy in order to receivecoverage for her own pregnancy-related con-dition.

25. Q. On what basis should an employee bereimbursed for medical expenses arisingfrom pregnancy, childbirth or related condi-tions?

A. Pregnancy-related expenses should bereimbursed in the same manner as are ex-penses incurred for other medical conditions.Therefore, whether a plan reimburses theemployees on a fixed basis, or a percentageof reasonable and customary charge basis,the same basis should be used for reimburse-ment of expenses incurred for pregnancy-re-lated conditions. Furthermore, if medicalcosts for pregnancy-related conditions in-crease, reevaluation of the reimbursementlevel should be conducted in the same man-ner as are cost reevaluations of increases forother medical conditions.

Coverage provided by a health insuranceprogram for other conditions must be pro-vided for pregnancy-related conditions. Forexample, if a plan provides major medicalcoverage, pregnancy-related conditions mustbe so covered. Similarily, if a plan covers thecost of a private room for other conditions,the plan must cover the cost of a privateroom for pregnancy-related conditions. Fi-nally, where a health insurance plan coversoffice visits to physicians, pre-natal andpost-natal visits must be included in suchcoverage.

26. Q. May an employer limit payment ofcosts for pregnancy-related medical condi-tions to a specified dollar amount set forthin an insurance policy, collective bargainingagreement or other statement of benefits towhich an employee is entitled?

A. The amounts payable for the costs in-curred for pregnancy-related conditions canbe limited only to the same extent as arecosts for other conditions. Maximum recov-erable dollar amounts may be specified forpregnancy-related conditions if suchamounts are similarly specified for otherconditions, and so long as the specifiedamounts in all instances cover the same pro-portion of actual costs. If, in addition to thescheduled amount for other procedures, addi-tional costs are paid for, either directly orindirectly, by the employer, such additionalpayments must also be paid for pregnancy-related procedures.

27. Q. May an employer impose a differentdeductible for payment of costs for preg-nancy-related medical conditions than forcosts of other medical conditions?

A. No. Neither an additional deductible, anincrease in the usual deductible, nor a largerdeductible can be imposed for coverage forpregnancy-related medical costs, whether asa condition for inclusion of pregnancy-re-lated costs in the policy or for payment ofthe costs when incurred. Thus, if pregnancy-related costs are the first incurred under thepolicy, the employee is required to pay onlythe same deductible as would otherwise berequired had other medical costs been thefirst incurred. Once this deductible has beenpaid, no additional deductible can be re-quired for other medical procedures. If theusual deductible has already been paid for


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other medical procedures, no additional de-ductible can be required when pregnancy-re-lated costs are later incurred.

28. Q. If a health insurance plan excludesthe payment of benefits for any conditionsexisting at the time the insured’s coveragebecomes effective (pre-existing conditionclause), can benefits be denied for medicalcosts arising from a pregnancy existing atthe time the coverage became effective?

A. Yes. However, such benefits cannot bedenied unless the pre-existing conditionclause also excludes benefits for other pre-existing conditions in the same way.

29. Q. If an employer’s insurance plan pro-vides benefits after the insured’s employ-ment has ended (i.e. extended benefits) forcosts connected with pregnancy and deliverywhere conception occurred while the insuredwas working for the employer, but not forthe costs of any other medical conditionwhich began prior to termination of employ-ment, may an employer (a) continue to paythese extended benefits for pregnancy-re-lated medical conditions but not for othermedical conditions, or (b) terminate thesebenefits for pregnancy-related conditions?

A. Where a health insurance plan currentlyprovides extended benefits for other medicalconditions on a less favorable basis than forpregnancy-related medical conditions, ex-tended benefits must be provided for othermedical conditions on the same basis as forpregnancy-related medical conditions.Therefore, an employer can neither continueto provide less benefits for other medicalconditions nor reduce benefits currently paidfor pregnancy-related medical conditions.

30. Q. Where an employer’s health insur-ance plan currently requires total disabilityas a prerequisite for payment of extendedbenefits for other medical conditions but notfor pregnancy-related costs, may the em-ployer now require total disability for pay-ment of benefits for pregnancy-related med-ical conditions as well?

A. Since extended benefits cannot be re-duced in order to come into compliance withthe Act, a more stringent prerequisite forpayment of extended benefits for pregnancy-related medical conditions, such as a re-quirement for total disability, cannot be im-posed. Thus, in this instance, in order tocomply with the Act, the employer musttreat other medical conditions as pregnancy-related conditions are treated.

31. Q. Can the added cost of bringing ben-efit plans into compliance with the Act beapportioned between the employer and em-ployee?

A. The added cost, if any, can be appor-tioned between the employer and employeein the same proportion that the cost of thefringe benefit plan was apportioned on Octo-ber 31, 1978, if that apportionment was non-discriminatory. If the costs were not appor-tioned on October 31, 1978, they may not be

apportioned in order to come into compli-ance with the Act. However, in no cir-cumstance may male or female employees berequired to pay unequal apportionments onthe basis of sex or pregnancy.

32. Q. In order to come into compliancewith the Act, may an employer reduce bene-fits or compensation?

A. In order to come into compliance withthe Act, benefits or compensation which anemployer was paying on October 31, 1978 can-not be reduced before October 31, 1979 or be-fore the expiration of a collective bargainingagreement in effect on October 31, 1978,whichever is later.

Where an employer has not been in compli-ance with the Act by the times specified inthe Act, and attempts to reduce benefits, orcompensation, the employer may be requiredto remedy its practices in accord with ordi-nary title VII remedial principles.

33. Q. Can an employer self-insure benefitsfor pregnancy-related conditions if it doesnot self-insure benefits for other medicalconditions?

A. Yes, so long as the benefits are thesame. In measuring whether benefits are thesame, factors other than the dollar coveragepaid should be considered. Such factors in-clude the range of choice of physicians andhospitals, and the processing and promptnessof payment of claims.

34. Q. Can an employer discharge, refuse tohire or otherwise discriminate against awoman because she has had an abortion?

A. No. An employer cannot discriminate inits employment practices against a womanwho has had an abortion.

35. Q. Is an employer required to providefringe benefits for abortions if fringe benefitsare provided for other medical conditions?

A. All fringe benefits other than health in-surance, such as sick leave, which are pro-vided for other medical conditions, must beprovided for abortions. Health insurance,however, need be provided for abortions onlywhere the life of the woman would be endan-gered if the fetus were carried to term orwhere medical complications arise from anabortion.

36. Q. If complications arise during thecourse of an abortion, as for instance exces-sive hemorrhaging, must an employer’shealth insurance plan cover the additionalcost due to the complications of the abor-tion?

A. Yes. The plan is required to pay thoseadditional costs attributable to the com-plications of the abortion. However, the em-ployer is not required to pay for the abortionitself, except where the life of the motherwould be endangered if the fetus were carriedto term.

37. Q. May an employer elect to provide in-surance coverage for abortions?

A. Yes. The Act specifically provides thatan employer is not precluded from providing


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29 CFR Ch. XIV (7–1–01 Edition)Pt. 1605

1 See CD 76–104 (1976), CCH ¶6500; CD 71–2620(1971), CCH ¶6283; CD 71–779 (1970), CCH ¶6180.

2 See Trans World Airlines, Inc. v. Hardison,432 U.S. 63, 74 (1977).

benefits for abortions whether directly orthrough a collective bargaining agreement,but if an employer decides to cover the costsof abortion, the employer must do so in thesame manner and to the same degree as itcovers other medical conditions.

[44 FR 23805, Apr. 20, 1979]

PART 1605—GUIDELINES ON DIS-CRIMINATION BECAUSE OF RELI-GION

Sec.1605.1 ‘‘Religious’’ nature of a practice or

belief.1605.2 Reasonable accommodation without

undue hardship as required by section701(j) of title VII of the Civil Rights Actof 1964.

1605.3 Selection practices.

APPENDIX A TO §§ 1605.2 AND 1605.3—BACK-GROUND INFORMATION

AUTHORITY: Title VII of the Civil RightsAct of 1964, as amended, 42 U.S.C. 2000e et seq.


§ 1605.1 ‘‘Religious’’ nature of a prac-tice or belief.

In most cases whether or not a prac-tice or belief is religious is not at issue.However, in those cases in which theissue does exist, the Commission willdefine religious practices to includemoral or ethical beliefs as to what isright and wrong which are sincerelyheld with the strength of traditionalreligious views. This standard was de-veloped in United States v. Seeger, 380U.S. 163 (1965) and Welsh v. UnitedStates, 398 U.S. 333 (1970). The Commis-sion has consistently applied thisstandard in its decisions.1 The fact thatno religious group espouses such beliefsor the fact that the religious group towhich the individual professes to be-long may not accept such belief willnot determine whether the belief is areligious belief of the employee or pro-spective employee. The phrase ‘‘reli-gious practice’’ as used in these Guide-lines includes both religious observ-ances and practices, as stated in sec-tion 701(j), 42 U.S.C. 2000e(j).

§ 1605.2 Reasonable accommodationwithout undue hardship as re-quired by section 701(j) of title VIIof the Civil Rights Act of 1964.

(a) Purpose of this section. This sec-tion clarifies the obligation imposed bytitle VII of the Civil Rights Act of 1964,as amended, (sections 701(j), 703 and717) to accommodate the religiouspractices of employees and prospectiveemployees. This section does not ad-dress other obligations under title VIInot to discriminate on grounds of reli-gion, nor other provisions of title VII.This section is not intended to limitany additional obligations to accom-modate religious practices which mayexist pursuant to constitutional, orother statutory provisions; neither is itintended to provide guidance for stat-utes which require accommodation onbases other than religion such as sec-tion 503 of the Rehabilitation Act of1973. The legal principles which havebeen developed with respect to dis-crimination prohibited by title VII onthe bases of race, color, sex, and na-tional origin also apply to religiousdiscrimination in all circumstancesother than where an accommodation isrequired.

(b) Duty to accommodate. (1) Section701(j) makes it an unlawful employ-ment practice under section 703(a)(1)for an employer to fail to reasonablyaccommodate the religious practices ofan employee or prospective employee,unless the employer demonstrates thataccommodation would result in unduehardship on the conduct of its busi-ness.2

(2) Section 701(j) in conjunction withsection 703(c), imposes an obligation ona labor organization to reasonably ac-commodate the religious practices ofan employee or prospective employee,unless the labor organization dem-onstrates that accommodation wouldresult in undue hardship.

(3) Section 1605.2 is primarily di-rected to obligations of employers orlabor organizations, which are the enti-ties covered by title VII that will mostoften be required to make an accom-modation. However, the principles of


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§ 1605.2 also apply when an accommoda-tion can be required of other entitiescovered by title VII, such as employ-ment agencies (section 703(b)) or jointlabor-management committees con-trolling apprecticeship or other train-ing or retraining (section 703(d)). (See,for example, § 1605.3(a) ‘‘Scheduling ofTests or Other Selection Procedures.’’)

(c) Reasonable accommodation. (1)After an employee or prospective em-ployee notifies the employer or labororganization of his or her need for a re-ligious accommodation, the employeror labor organization has an obligationto reasonably accommodate the indi-vidual’s religious practices. A refusalto accommodate is justified only whenan employer or labor organization candemonstrate that an undue hardshipwould in fact result from each avail-able alternative method of accommo-dation. A mere assumption that manymore people, with the same religiouspractices as the person being accom-modated, may also need accommoda-tion is not evidence of undue hardship.

(2) When there is more than onemethod of accommodation availablewhich would not cause undue hardship,the Commission will determine wheth-er the accommodation offered is rea-sonable by examining:

(i) The alternatives for accommoda-tion considered by the employer orlabor organization; and

(ii) The alternatives for accommoda-tion, if any, actually offered to the in-dividual requiring accommodation.Some alternatives for accommodatingreligious practices might disadvantagethe individual with respect to his orher employment opportunites, such ascompensation, terms, conditions, orprivileges of employment. Therefore,when there is more than one means ofaccommodation which would not causeundue hardship, the employer or labororganization must offer the alternativewhich least disadvantages the indi-vidual with respect to his or her em-ployment opportunities.

(d) Alternatives for accommodating reli-gious practices. (1) Employees and pro-spective employees most frequently re-quest an accommodation because theirreligious practices conflict with theirwork schedules. The following sub-sections are some means of accommo-

dating the conflict between workschedules and religious practices whichthe Commission believes that employ-ers and labor organizations should con-sider as part of the obligation to ac-commodate and which the Commissionwill consider in investigating a charge.These are not intended to be all-inclu-sive. There are often other alternativeswhich would reasonably accommodatean individual’s religious practiceswhen they conflict with a work sched-ule. There are also employment prac-tices besides work scheduling whichmay conflict with religious practicesand cause an individual to request anaccommodation. See, for example, theCommission’s finding number (3) fromits Hearings on Religious Discrimina-tion, in appendix A to §§ 1605.2 and1605.3. The principles expressed in theseGuidelines apply as well to such re-quests for accommodation.

(i) Voluntary Substitutes and‘‘Swaps’’.

Reasonable accommodation withoutundue hardship is generally possiblewhere a voluntary substitute with sub-stantially similar qualifications isavailable. One means of substitution isthe voluntary swap. In a number ofcases, the securing of a substitute hasbeen left entirely up to the individualseeking the accommodation. The Com-mission believes that the obligation toaccommodate requires that employersand labor organizations facilitate thesecuring of a voluntary substitute withsubstantially similar qualifications.Some means of doing this which em-ployers and labor organizations shouldconsider are: to publicize policies re-garding accommodation and voluntarysubstitution; to promote an atmos-phere in which such substitutions arefavorably regarded; to provide a cen-tral file, bulletin board or other meansfor matching voluntary substituteswith positions for which substitutesare needed.

(ii) Flexible Scheduling.One means of providing reasonable

accommodation for the religious prac-tices of employees or prospective em-ployees which employers and labor or-ganizations should consider is the cre-ation of a flexible work schedule for in-dividuals requesting accommodation.


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3 On September 29, 1978, Congress enactedsuch a provision for the accommodation ofFederal employees’ religious practices. SeePub. L. 95–390, 5 U.S.C. 5550a ‘‘CompensatoryTime Off for Religious Observances.’’

4 Hardison, supra, 432 U.S. at 84.

The following list is an example ofareas in which flexibility might be in-troduced: flexible arrival and departuretimes; floating or optional holidays;flexible work breaks; use of lunch timein exchange for early departure; stag-gered work hours; and permitting anemployee to make up time lost due tothe observance of religious practices. 3

(iii) Lateral Transfer and Change ofJob Assignments.

When an employee cannot be accom-modated either as to his or her entirejob or an assignment within the job,employers and labor organizationsshould consider whether or not it ispossible to change the job assignmentor give the employee a lateral transfer.

(2) Payment of Dues to a Labor Orga-nization.

Some collective bargaining agree-ments include a provision that eachemployee must join the labor organiza-tion or pay the labor organization asum equivalent to dues. When an em-ployee’s religious practices to not per-mit compliance with such a provision,the labor organization should accom-modate the employee by not requiringthe employee to join the organizationand by permitting him or her to donatea sum equivalent to dues to a chari-table organization.

(e) Undue hardship. (1) Cost. An em-ployer may assert undue hardship tojustify a refusal to accommodate anemployee’s need to be absent from hisor her scheduled duty hours if the em-ployer can demonstrate that the ac-commodation would require ‘‘morethan a de minimis cost’’.4 The Commis-sion will determine what constitutes‘‘more than a de minimis cost’’ with dueregard given to the identifiable cost inrelation to the size and operating costof the employer, and the number of in-dividuals who will in fact need a par-ticular accommodation. In general, theCommission interprets this phrase as itwas used in the Hardison decision tomean that costs similar to the regularpayment of premium wages of sub-stitutes, which was at issue in

Hardison, would constitute undue hard-ship. However, the Commission willpresume that the infrequent paymentof premium wages for a substitute orthe payment of premium wages while amore permanent accommodation isbeing sought are costs which an em-ployer can be required to bear as ameans of providing a reasonable ac-commodation. Further, the Commis-sion will presume that generally, thepayment of administrative costs nec-essary for providing the accommoda-tion will not constitute more than a deminimis cost. Administrative costs, forexample, include those costs involvedin rearranging schedules and recordingsubstitutions for payroll purposes.

(2) Seniority Rights. Undue hardshipwould also be shown where a variancefrom a bona fide seniority system isnecessary in order to accommodate anemployee’s religious practices whendoing so would deny another employeehis or her job or shift preference guar-anteed by that system. Hardison, supra,432 U.S. at 80. Arrangements for vol-untary substitutes and swaps (see para-graph (d)(1)(i) of this section) do notconstitute an undue hardship to the ex-tent the arrangements do not violate abona fide seniority system. Nothing inthe Statute or these Guidelines pre-cludes an employer and a union fromincluding arrangements for voluntarysubstitutes and swaps as part of a col-lective bargaining agreement.

§ 1605.3 Selection practices.(a) Scheduling of tests or other selection

procedures. When a test or other selec-tion procedure is scheduled at a timewhen an employee or prospective em-ployee cannot attend because of his orher religious practices, the user of thetest should be aware that the prin-ciples enunciated in these guidelinesapply and that it has an obligation toaccommodate such employee or pro-spective employee unless undue hard-ship would result.

(b) Inquiries which determine an appli-cant’s availability to work during an em-ployer’s scheduled working hours. (1) Theduty to accommodate pertains to pro-spective employees as well as currentemployees. Consequently, an employermay not permit an applicant’s need fora religious accommodation to affect in


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any way its decision whether to hirethe applicant unless it can dem-onstrate that it cannot reasonably ac-commodate the applicant’s religiouspractices without undue hardship.

(2) As a result of the oral and writtentestimony submitted at the Commis-sion’s Hearings on Religious Discrimi-nation, discussions with representa-tives of organizations interested in theissue of religious discrimination, andthe comments received from the publicon these Guidelines as proposed, theCommission has concluded that the useof pre-selection inquiries which deter-mine an applicant’s availability has anexclusionary effect on the employmentopportunities of persons with certainreligious practices. The use of such in-quiries will, therefore, be considered toviolate title VII unless the employercan show that it:

(i) Did not have an exclusionary ef-fect on its employees or prospectiveemployees needing an accommodationfor the same religious practices; or

(ii) Was otherwise justified by busi-ness necessity.Employers who believe they have a le-gitimate interest in knowing the avail-ability of their applicants prior to se-lection must consider procedures whichwould serve this interest and whichwould have a lesser exclusionary effecton persons whose religious practicesneed accommodation. An example ofsuch a procedure is for the employer tostate the normal work hours for thejob and, after making it clear to theapplicant that he or she is not requiredto indicate the need for any absencesfor religious practices during thescheduled work hours, ask the appli-cant whether he or she is otherwiseavailable to work those hours. Then,after a position is offered, but beforethe applicant is hired, the employercan inquire into the need for a reli-gious accommodation and determine,according to the principles of theseGuidelines, whether an accommodationis possible. This type of inquiry wouldprovide an employer with informationconcerning the availability of most ofits applicants, while deferring untilafter a position is offered the identi-fication of the usually small number ofapplicants who require an accommoda-tion.

(3) The Commission will infer thatthe need for an accommodationdiscriminatorily influenced a decisionto reject an applicant when: (i) prior toan offer of employment the employermakes an inquiry into an applicant’savailability without having a businessnecessity justification; and (ii) afterthe employer has determined the appli-cant’s need for an accommodation, theemployer rejects a qualified applicant.The burden is then on the employer todemonstrate that factors other thanthe need for an accommodation werethe reason for rejecting the qualifiedapplicant, or that a reasonable accom-modation without undue hardship wasnot possible.

APPENDIX A TO §§ 1605.2 AND 1605.3—BACKGROUND INFORMATION

In 1966, the Commission adopted guidelineson religious discrimination which statedthat an employer had an obligation to ac-commodate the religious practices of its em-ployees or prospective employees unless todo so would create a ‘‘serious inconvenienceto the conduct of the business’’. 29 CFR1605.1(a)(2), 31 FR 3870 (1966).

In 1967, the Commission revised theseguidelines to state that an employer had anobligation to reasonably accommodate thereligious practices of its employees or pro-spective employees, unless the employercould prove that to do so would create an‘‘undue hardship’’. 29 CFR 1605.1(b)(c), 32 FR10298.

In 1972, Congress amended title VII to in-corporate the obligation to accommodate ex-pressed in the Commission’s 1967 Guidelinesby adding section 701(j).

In 1977, the United States Supreme Courtissued its decision in the case of Trans WorldAirlines, Inc. v. Hardison, 432 U.S. 63 (1977).Hardison was brought under section 703(a)(1)because it involved facts occurring beforethe enactment of section 701(j). The Courtapplied the Commission’s 1967 Guidelines,but indicated that the result would be thesame under section 701(j). It stated thatTrans World Airlines had made reasonableefforts to accommodate the religious needsof its employee, Hardison. The Court heldthat to require Trans World Airlines to makefurther attempts at accommodations—byunilaterally violating a seniority provisionof the collective bargaining agreement, pay-ing premium wages on a regular basis to an-other employee to replace Hardison, or cre-ating a serious shortage of necessary em-ployees in another department in order to re-place Hardison—would create an undue hard-ship on the conduct of Trans World Airlines’


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5 The transcript of the Commission’s Hear-ings on Religious Discrimination can be ex-amined by the public at: The Equal Employ-ment Opportunity Commission, 2401 E StreetNW., Washington, DC 20506.

business, and would therefore, exceed theduty to accommodate Hardison.

In 1978, the Commission conducted publichearings on religious discrimination in NewYork City, Milwaukee, and Los Angeles inorder to respond to the concerns raised byHardison. Approximately 150 witnesses testi-fied or submitted written statements.5Thewitnesses included employers, employees,representatives of religious and labor organi-zations and representatives of Federal, Stateand local governments.

The Commission found from the hearingsthat:

(1) There is widespread confusion con-cerning the extent of accommodation underthe Hardison decision.

(2) The religious practices of some individ-uals and some groups of individuals are notbeing accommodated.

(3) Some of those practices which are notbeing accommodated are:

—Observance of a Sabbath or religiousholidays;

—Need for prayer break during workinghours;

—Practice of following certain dietary re-quirements;

—Practice of not working during a mourn-ing period for a deceased relative;

—Prohibition against medical examina-tions;

—Prohibition against membership in laborand other organizations; and

—Practices concerning dress and other per-sonal grooming habits.

(4) Many of the employers who testifiedhad developed alternative employment prac-tices which accommodate the religious prac-tices of employees and prospective employ-ees and which meet the employer’s businessneeds.

(5) Little evidence was submitted by em-ployers which showed actual attempts to ac-commodate religious practices with result-ant unfavorable consequences to the employ-er’s business. Employers appeared to havesubstantial anticipatory concerns but no, orvery little, actual experience with the prob-lems they theorized would emerge by pro-viding reasonable accommodation for reli-gious practices.

Based on these findings, the Commission isrevising its Guidelines to clarify the obliga-tion imposed by section 701(j) to accommo-date the religious practices of employees andprospective employees.

PART 1606—GUIDELINES ON DIS-CRIMINATION BECAUSE OF NA-TIONAL ORIGIN

Sec.1606.1 Definition of national origin dis-

crimination.1606.2 Scope of title VII protection.1606.3 The national security exception.1606.4 The bona fide occupational qualifica-

tion exception.1606.5 Citizenship requirements.1606.6 Selection procedures.1606.7 Speak-English-only rules.1606.8 Harassment.

AUTHORITY: Title VII of the Civil RightsAct of 1964, as amended, 42 U.S.C. 2000e et seq.

SOURCE: 45 FR 85635, Dec. 29, 1980, unlessotherwise noted.

§ 1606.1 Definition of national origindiscrimination.

The Commission defines national ori-gin discrimination broadly as includ-ing, but not limited to, the denial ofequal employment opportunity becauseof an individual’s, or his or her ances-tor’s, place of origin; or because an in-dividual has the physical, cultural orlinguistic characteristics of a nationalorigin group. The Commission will ex-amine with particular concern chargesalleging that individuals within the ju-risdiction of the Commission have beendenied equal employment opportunityfor reasons which are grounded in na-tional origin considerations, such as (a)marriage to or association with per-sons of a national origin group; (b)membership in, or association with anorganization identified with or seekingto promote the interests of national or-igin groups; (c) attendance or partici-pation in schools, churches, temples ormosques, generally used by persons of anational origin group; and (d) becausean individual’s name or spouse’s nameis associated with a national origingroup. In examining these charges forunlawful national origin discrimina-tion, the Commission will apply gen-eral title VII principles, such as dis-parate treatment and adverse impact.

§ 1606.2 Scope of title VII protection.Title VII of the Civil Rights Act of

1964, as amended, protects individualsagainst employment discrimination onthe basis of race, color, religion, sex or


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1 See also, 5 U.S.C. 7532, for the authority ofthe head of a Federal agency or departmentto suspend or remove an employee ongrounds of national security.

2 See Espinoza v. Farah Mfg. Co., Inc., 414U.S. 86, 92 (1973). See also, E.O. 11935, 5 CFR7.4; and 31 U.S.C. 699(b), for citizenship re-quirements in certain Federal employment.

3 See CD 71–1529 (1971), CCH EEOC Decisions¶6231, 3 FEP Cases 952; CD 71–1418 (1971), CCHEEOC Decisions ¶6223, 3 FEP Cases 580; CD74–25 (1973), CCH EEOC Decisions ¶6400, 10FEP Cases 260. Davis v. County of Los Angeles,566 F. 2d 1334, 1341–42 (9th Cir., 1977) vacatedand remanded as moot on other grounds, 440U.S. 625 (1979). See also, Dothard v.Rawlinson, 433 U.S. 321 (1977).

4 See section 4C(2) of the Uniform Guidelineson Employee Selection Procedures, 29 CFR1607.4C(2).

5 See CD AL68–1–155E (1969), CCH EEOC De-cisions ¶6008, 1 FEP Cases 921.

6 See CD YAU9–048 (1969), CCH EEOC Deci-sions ¶6054, 2 FEP Cases 78.

national origin. The title VII principlesof disparate treatment and adverse im-pact equally apply to national origindiscrimination. These Guidelines applyto all entities covered by title VII (col-lectively referred to as ‘‘employer’’).

§ 1606.3 The national security excep-tion.

It is not an unlawful employmentpractice to deny employment opportu-nities to any individual who does notfulfill the national security require-ments stated in section 703(g) of titleVII.1

§ 1606.4 The bona fide occupationalqualification exception.

The exception stated in section 703(e)of title VII, that national origin maybe a bona fide occupational qualifica-tion, shall be strictly construed.

§ 1606.5 Citizenship requirements.(a) In those circumstances, where

citizenship requirements have the pur-pose or effect of discriminating againstan individual on the basis of nationalorigin, they are prohibited by titleVII.2

(b) Some State laws prohibit the em-ployment of non-citizens. Where theselaws are in conflict with title VII, theyare superseded under section 708 of thetitle.

§ 1606.6 Selection procedures.(a)(1) In investigating an employer’s

selection procedures (including thoseidentified below) for adverse impact onthe basis of national origin, the Com-mission will apply the Uniform Guide-lines on Employee Selection Procedures(UGESP), 29 CFR part 1607. Employersand other users of selection proceduresshould refer to the UGESP for guidanceon matters, such as adverse impact,validation and recordkeeping require-ments for national origin groups.

(2) Because height or weight require-ments tend to exclude individuals on

the basis of national origin,3 the user isexpected to evaluate these selectionprocedures for adverse impact, regard-less of whether the total selectionprocess has an adverse impact based onnational origin. Therefore, height orweight requirements are identifiedhere, as they are in the UGESP,4 as ex-ceptions to the ‘‘bottom line’’ concept.

(b) The Commission has found thatthe use of the following selection pro-cedures may be discriminatory on thebasis of national origin. Therefore, itwill carefully investigate charges in-volving these selection procedures forboth disparate treatment and adverseimpact on the basis of national origin.However, the Commission does not con-sider these to be exceptions to the‘‘bottom line’’ concept:

(1) Fluency-in-English requirements,such as denying employment opportu-nities because of an individual’s for-eign accent,5 or inability to commu-nicate well in English.6

(2) Training or education require-ments which deny employment oppor-tunities to an individual because of hisor her foreign training or education, orwhich require an individual to be for-eign trained or educated.

§ 1606.7 Speak-English-only rules.(a) When applied at all times. A rule

requiring employees to speak onlyEnglish at all times in the workplace isa burdensome term and condition ofemployment. The primary language ofan individual is often an essential na-tional origin characteristic. Prohib-iting employees at all times, in theworkplace, from speaking their pri-mary language or the language theyspeak most comfortably, disadvantages


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7 See CD 71–446 (1970), CCH EEOC Decisions¶6173, 2 FEP Cases, 1127; CD 72–0281 (1971),CCH EEOC Decisions ¶6293.

8 See CD CL68–12–431 EU (1969), CCH EEOCDecisions ¶6085, 2 FEP Cases 295; CD 72–0621(1971), CCH EEOC Decisions ¶6311, 4 FEPCases 312; CD 72–1561 (1972), CCH EEOC Deci-sions ¶6354, 4 FEP Cases 852; CD 74–05 (1973),CCH EEOC Decisions ¶6387, 6 FEP Cases 834;CD 76–41 (1975), CCH EEOC Decisions ¶6632.See also, Amendment to Guidelines on Dis-crimination Because of Sex, § 1604.11(a) n. 1, 45FR 7476 sy 74677 (November 10, 1980).

an individual’s employment opportuni-ties on the basis of national origin. Itmay also create an atmosphere of infe-riority, isolation and intimidationbased on national origin which couldresult in a discriminatory working en-vironment.7 Therefore, the Commissionwill presume that such a rule violatestitle VII and will closely scrutinize it.

(b) When applied only at certain times.An employer may have a rule requiringthat employees speak only in Englishat certain times where the employercan show that the rule is justified bybusiness necessity.

(c) Notice of the rule. It is common forindividuals whose primary language isnot English to inadvertently changefrom speaking English to speakingtheir primary language. Therefore, ifan employer believes it has a businessnecessity for a speak-English-only ruleat certain times, the employer shouldinform its employees of the general cir-cumstances when speaking only inEnglish is required and of the con-sequences of violating the rule. If anemployer fails to effectively notify itsemployees of the rule and makes an ad-verse employment decision against anindividual based on a violation of therule, the Commission will consider theemployer’s application of the rule asevidence of discrimination on the basisof national origin.

§ 1606.8 Harassment.(a) The Commission has consistently

held that harassment on the basis ofnational origin is a violation of titleVII. An employer has an affirmativeduty to maintain a working environ-ment free of harassment on the basis ofnational origin.8

(b) Ethnic slurs and other verbal orphysical conduct relating to an individ-

ual’s national origin constitute harass-ment when this conduct:

(1) Has the purpose or effect of cre-ating an intimidating, hostile or offen-sive working environment;

(2) Has the purpose or effect of unrea-sonably interfering with an individ-ual’s work performance; or

(3) Otherwise adversely affects an in-dividual’s employment opportunities.

(c) [Reserved](d) With respect to conduct between

fellow employees, an employer is re-sponsible for acts of harassment in theworkplace on the basis of national ori-gin, where the employer, its agents orsupervisory employees, knows orshould have known of the conduct, un-less the employer can show that ittook immediate and appropriate cor-rective action.

(e) An employer may also be respon-sible for the acts of non-employeeswith respect to harassment of employ-ees in the workplace on the basis of na-tional origin, where the employer, itsagents or supervisory employees,knows or should have known of theconduct and fails to take immediateand appropriate corrective action. Inreviewing these cases, the Commissionwill consider the extent of the employ-er’s control and any other legal respon-sibility which the employer may havewith respect to the conduct of suchnon-employees.

APPENDIX A TO § 1606.8—BACKGROUND

INFORMATION

The Commission has rescinded § 1606.8(c) ofthe Guidelines on National Origin Harass-ment, which set forth the standard of em-ployer liability for harassment by super-visors. That section is no longer valid, inlight of the Supreme Court decisions in Bur-lington Industries, Inc. v. Ellerth, 524 U.S. 742(1998), and Faragher v. City of Boca Raton, 524U.S. 775 (1998). The Commission has issued apolicy document that examines the Faragherand Ellerth decisions and provides detailedguidance on the issue of vicarious liabilityfor harassment by supervisors. EEOC En-forcement Guidance: Vicarious Employer Li-ability for Unlawful Harassment by Super-visors (6/18/99), EEOC Compliance Manual(BNA), N:4075 [Binder 3]; also availablethrough EEOC’s web site, at www.eeoc.gov.,


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or by calling the EEOC Publications Dis-tribution Center, at 1–800–669–3362 (voice), 1–800–800–3302 (TTY).

[45 FR 85635, Dec. 29, 1980, as amended at 64FR 58334, Oct. 29, 1999]

PART 1607—UNIFORM GUIDELINESON EMPLOYEE SELECTION PRO-CEDURES (1978)

COMPREHENSIVE TABLE OF CONTENTS

GENERAL PRINCIPLES

1607.1. Statement of purposeA. Need for uniformity—issuing agenciesB. Purpose of guidelinesC. Relation to prior guidelines

1607.2. ScopeA. Application of guidelinesB. Employment decisionsC. Selection proceduresD. LimitationsE. Indian preference not affected

1607.3. Discrimination defined: Relationshipbetween use of selection procedures anddiscrimination

A. Procedure having adverse impact con-stitutes discrimination unless justified

B. Consideration of suitable alternative se-lection procedures

1607.4. Information on impactA. Records concerning impactB. Applicable race, sex and ethnic groups

for recordkeepingC. Evaluation of selection rates. The ‘‘bot-

tom line’’D. Adverse impact and the ‘‘four-fifths

rule’’E. Consideration of user’s equal employ-

ment opportunity posture1607.5. General standards for validity studies

A. Acceptable types of validity studiesB. Criterion-related, content, and con-

struct validityC. Guidelines are consistent with profes-

sional standardsD. Need for documentation of validityE. Accuracy and standardizationF. Caution against selection on basis of

knowledges, skills or ability learned inbrief orientation period

G. Method of use of selection proceduresH. Cutoff scoresI. Use of selection procedures for higher

level jobsJ. Interim use of selection proceduresK. Review of validity studies for currency

1607.6. Use of selection procedures whichhave not been validated

A. Use of alternate selection procedures toeliminate adverse impact

B. Where validity studies cannot or neednot be performed

(1) Where informal or unscored proce-dures are used

(2) Where formal and scored proceduresare used

1607.7. Use of other validity studiesA. Validity studies not conducted by the

userB. Use of criterion-related validity evi-

dence from other sources(1) Validity evidence(2) Job similarity(3) Fairness evidence

C. Validity evidence from multiunit studyD. Other significant variables

1607.8. Cooperative studiesA. Encouragement of cooperative studiesB.Standards for use of cooperative studies

1607.9. No assumption of validityA. Unacceptable substitutes for evidence of

validityB. Encouragement of professional super-

vision1607.10. Employment agencies and employ-

ment servicesA. Where selection procedures are devised

by agencyB. Where selection procedures are devised

elsewhere1607.11. Disparate treatment1607.12. Retesting of applicants1607.13. Affirmative action

A. Affirmative action obligationsB. Encouragement of voluntary affirmative

action programs

TECHNICAL STANDARDS

1607.14. Technical standards for validitystudies

A. Validity studies should be based on re-view of information about the job

B. Technical standards for criterion-re-lated validity studies

(1) Technical feasibility(2) Analysis of the job(3) Criterion measures(4) Representativeness of the sample(5) Statistical relationships(6) Operational use of selection proce-

dures(7) Overstatement of validity findings(8) Fairness

(a) Unfairness defined(b) Investigation of fairness(c) General considerations in fairness

investigations(d) When unfairness is shown(e) Technical feasibility of fairness

studies(f) Continued use of selection proce-

dures when fairness studies not feasibleC. Technical standards for content validity

studies(1) Appropriateness of content validity

studies(2) Job analysis for content validity(3) Development of selection procedures(4) Standards for demonstrating content

validity(5) Reliability


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(6) Prior training or experience(7) Content validity of training success(8) Operational use(9) Ranking based on content validity

studiesD. Technical standards for construct valid-

ity studies(1) Appropriateness of construct validity

studies(2) Job analysis for construct validity

studies(3) Relationship to the job(4) Use of construct validity study with-

out new criterion-related evidence(a) Standards for use(b) Determination of common work be-

haviors

DOCUMENTATION OF IMPACT AND VALIDITYEVIDENCE

1607.15. Documentation of impact and valid-ity evidence

A. Required information(1) Simplified recordkeeping for users

with less than 100 employees(2) Information on impact

(a) Collection of information on impact(b) When adverse impact has been

eliminated in the total selection process(c) When data insufficient to determine

impact(3) Documentation of validity evidence

(a) Types of evidence(b) Form of report(c) Completeness

B. Criterion-related validity studies(1) User(s), location(s), and date(s) of

study(2) Problem and setting(3) Job analysis or review of job informa-

tion(4) Job titles and codes(5) Criterion measures(6) Sample description(7) Description of selection procedures(8) Techniques and results(9) Alternative procedures investigated(10) Uses and applications(11) Source data(12) Contact person(13) Accuracy and completeness

C. Content validity studies(1) User(s), location(s), and date(s) of

study(2) Problem and setting(3) Job analysis—Content of the job(4) Selection procedure and its content(5) Relationship between the selection

procedure and the job(6) Alternative procedures investigated(7) Uses and applications(8) Contact person(9) Accuracy and completeness

D. Construct validity studies(1) User(s), location(s), and date(s) of

study(2) Problem and setting

(3) Construct definition(4) Job analysis(5) Job titles and codes(6) Selection procedure(7) Relationship to job performance(8) Alternative procedures investigated(9) Uses and applications(10) Accuracy and completeness(11) Source data(12) Contact person

E. Evidence of validity from other studies(1) Evidence from criterion-related valid-

ity studies(a) Job information(b) Relevance of criteria(c) Other variables(d) Use of the selection procedure(e) Bibliography

(2) Evidence from content validity stud-ies

(3) Evidence from construct validitystudiesF. Evidence of validity from cooperative

studiesG. Selection for higher level jobH. Interim use of selection procedures

DEFINITIONS

1607.16. Definitions

APPENDIX

1607.17. Policy statement on affirmative ac-tion (see section 13B)

1607.18. Citations

AUTHORITY: Secs. 709 and 713, Civil RightsAct of 1964 (78 Stat. 265) as amended by theEqual Employment Opportunity Act of 1972(Pub. L. 92–261); 42 U.S.C. 2000e–8, 2000e–12.

SOURCE: 43 FR 38295, 38312, Aug. 25, 1978, un-less otherwise noted.

GENERAL PRINCIPLES

§ 1607.1 Statement of purpose.

A. Need for uniformity—Issuing agen-cies. The Federal government’s need fora uniform set of principles on the ques-tion of the use of tests and other selec-tion procedures has long been recog-nized. The Equal Employment Oppor-tunity Commission, the Civil ServiceCommission, the Department of Labor,and the Department of Justice jointlyhave adopted these uniform guidelinesto meet that need, and to apply thesame principles to the Federal Govern-ment as are applied to other employ-ers.


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B. Purpose of guidelines. These guide-lines incorporate a single set of prin-ciples which are designed to assist em-ployers, labor organizations, employ-ment agencies, and licensing and cer-tification boards to comply with re-quirements of Federal law prohibitingemployment practices which discrimi-nate on grounds of race, color, religion,sex, and national origin. They are de-signed to provide a framework for de-termining the proper use of tests andother selection procedures. Theseguidelines do not require a user to con-duct validity studies of selection proce-dures where no adverse impact results.However, all users are encouraged touse selection procedures which arevalid, especially users operating undermerit principles.

C. Relation to prior guidelines. Theseguidelines are based upon and super-sede previously issued guidelines onemployee selection procedures. Theseguidelines have been built upon courtdecisions, the previously issued guide-lines of the agencies, and the practicalexperience of the agencies, as well asthe standards of the psychological pro-fession. These guidelines are intendedto be consistent with existing law.

§ 1607.2 Scope.A. Application of guidelines. These

guidelines will be applied by the EqualEmployment Opportunity Commissionin the enforcement of title VII of theCivil Rights Act of 1964, as amended bythe Equal Employment OpportunityAct of 1972 (hereinafter ‘‘title VII’’); bythe Department of Labor, and the con-tract compliance agencies until thetransfer of authority contemplated bythe President’s Reorganization PlanNo. 1 of 1978, in the administration andenforcement of Executive Order 11246,as amended by Executive Order 11375(hereinafter ‘‘Executive Order 11246’’);by the Civil Service Commission andother Federal agencies subject to sec-tion 717 of title VII; by the Civil Serv-ice Commission in exercising its re-sponsibilities toward State and localgovernments under section 208(b)(1) ofthe Intergovernmental-Personnel Act;by the Department of Justice in exer-cising its responsibilities under Fed-eral law; by the Office of RevenueSharing of the Department of the

Treasury under the State and LocalFiscal Assistance Act of 1972, asamended; and by any other Federalagency which adopts them.

B. Employment decisions. These guide-lines apply to tests and other selectionprocedures which are used as a basisfor any employment decision. Employ-ment decisions include but are not lim-ited to hiring, promotion, demotion,membership (for example, in a labor or-ganization), referral, retention, and li-censing and certification, to the extentthat licensing and certification may becovered by Federal equal employmentopportunity law. Other selection deci-sions, such as selection for training ortransfer, may also be considered em-ployment decisions if they lead to anyof the decisions listed above.

C. Selection procedures. These guide-lines apply only to selection procedureswhich are used as a basis for makingemployment decisions. For example,the use of recruiting procedures de-signed to attract members of a par-ticular race, sex, or ethnic group,which were previously denied employ-ment opportunities or which are cur-rently underutilized, may be necessaryto bring an employer into compliancewith Federal law, and is frequently anessential element of any effective af-firmative action program; but recruit-ment practices are not considered bythese guidelines to be selection proce-dures. Similarly, these guidelines donot pertain to the question of the law-fulness of a seniority system withinthe meaning of section 703(h), Execu-tive Order 11246 or other provisions ofFederal law or regulation, except tothe extent that such systems utilize se-lection procedures to determine quali-fications or abilities to perform thejob. Nothing in these guidelines is in-tended or should be interpreted as dis-couraging the use of a selection proce-dure for the purpose of determiningqualifications or for the purpose of se-lection on the basis of relative quali-fications, if the selection procedurehad been validated in accord with theseguidelines for each such purpose forwhich it is to be used.

D. Limitations. These guidelines applyonly to persons subject to title VII, Ex-ecutive Order 11246, or other equal em-ployment opportunity requirements of


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Federal law. These guidelines do notapply to responsibilities under the AgeDiscrimination in Employment Act of1967, as amended, not to discriminateon the basis of age, or under sections501, 503, and 504 of the RehabilitationAct of 1973, not to discriminate on thebasis of handicap.

E. Indian preference not affected.These guidelines do not restrict anyobligation imposed or right granted byFederal law to users to extend a pref-erence in employment to Indians livingon or near an Indian reservation inconnection with employment opportu-nities on or near an Indian reservation.

§ 1607.3 Discrimination defined: Rela-tionship between use of selectionprocedures and discrimination.

A. Procedure having adverse impactconstitutes discrimination unless justified.The use of any selection procedurewhich has an adverse impact on thehiring, promotion, or other employ-ment or membership opportunities ofmembers of any race, sex, or ethnicgroup will be considered to be discrimi-natory and inconsistent with theseguidelines, unless the procedure hasbeen validated in accordance withthese guidelines, or the provisions ofsection 6 below are satisfied.

B. Consideration of suitable alternativeselection procedures. Where two or moreselection procedures are availablewhich serve the user’s legitimate inter-est in efficient and trustworthy work-manship, and which are substantiallyequally valid for a given purpose, theuser should use the procedure whichhas been demonstrated to have thelesser adverse impact. Accordingly,whenever a validity study is called forby these guidelines, the user should in-clude, as a part of the validity study,an investigation of suitable alternativeselection procedures and suitable alter-native methods of using the selectionprocedure which have as little adverseimpact as possible, to determine theappropriateness of using or validatingthem in accord with these guidelines. Ifa user has made a reasonable effort tobecome aware of such alternative pro-cedures and validity has been dem-onstrated in accord with these guide-lines, the use of the test or other selec-tion procedure may continue until such

time as it should reasonably be re-viewed for currency. Whenever the useris shown an alternative selection pro-cedure with evidence of less adverseimpact and substantial evidence of va-lidity for the same job in similar cir-cumstances, the user should inves-tigate it to determine the appropriate-ness of using or validating it in accordwith these guidelines. This subsectionis not intended to preclude the com-bination of procedures into a signifi-cantly more valid procedure, if the useof such a combination has been shownto be in compliance with the guide-lines.

§ 1607.4 Information on impact.

A. Records concerning impact. Eachuser should maintain and have avail-able for inspection records or other in-formation which will disclose the im-pact which its tests and other selectionprocedures have upon employment op-portunities of persons by identifiablerace, sex, or ethnic group as set forthin paragraph B of this section, in orderto determine compliance with theseguidelines. Where there are large num-bers of applicants and procedures areadministered frequently, such informa-tion may be retained on a sample basis,provided that the sample is appropriatein terms of the applicant populationand adequate in size.

B. Applicable race, sex, and ethnicgroups for recordkeeping. The recordscalled for by this section are to bemaintained by sex, and the followingraces and ethnic groups: Blacks (Ne-groes), American Indians (includingAlaskan Natives), Asians (includingPacific Islanders), Hispanic (includingpersons of Mexican, Puerto Rican,Cuban, Central or South American, orother Spanish origin or culture regard-less of race), whites (Caucasians) otherthan Hispanic, and totals. The race,sex, and ethnic classifications calledfor by this section are consistent withthe Equal Employment OpportunityStandard Form 100, Employer Informa-tion Report EEO–1 series of reports.The user should adopt safeguards to in-sure that the records required by thisparagraph are used for appropriate pur-poses such as determining adverse im-pact, or (where required) for developing


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and monitoring affirmative action pro-grams, and that such records are notused improperly. See sections 4E and17(4), below.

C. Evaluation of selection rates. The‘‘bottom line.’’ If the information calledfor by sections 4A and B above showsthat the total selection process for ajob has an adverse impact, the indi-vidual components of the selectionprocess should be evaluated for adverseimpact. If this information shows thatthe total selection process does nothave an adverse impact, the Federalenforcement agencies, in the exerciseof their administrative and prosecu-torial discretion, in usual cir-cumstances, will not expect a user toevaluate the individual components foradverse impact, or to validate such in-dividual components, and will not takeenforcement action based upon adverseimpact of any component of that proc-ess, including the separate parts of amultipart selection procedure or anyseparate procedure that is used as analternative method of selection. How-ever, in the following circumstancesthe Federal enforcement agencies willexpect a user to evaluate the individualcomponents for adverse impact andmay, where appropriate, take enforce-ment action with respect to the indi-vidual components:

(1) Where the selection procedure is asignificant factor in the continuationof patterns of assignments of incum-bent employees caused by prior dis-criminatory employment practices, (2)where the weight of court decisions oradministrative interpretations holdthat a specific procedure (such asheight or weight requirements or no-arrest records) is not job related in thesame or similar circumstances. In un-usual circumstances, other than thoselisted in (1) and (2) of this paragraph,the Federal enforcement agencies mayrequest a user to evaluate the indi-vidual components for adverse impactand may, where appropriate, take en-forcement action with respect to theindividual component.

D. Adverse impact and the ‘‘four-fifthsrule.’’ A selection rate for any race,sex, or ethnic group which is less thanfour-fifths (4⁄5) (or eighty percent) ofthe rate for the group with the highestrate will generally be regarded by the

Federal enforcement agencies as evi-dence of adverse impact, while a great-er than four-fifths rate will generallynot be regarded by Federal enforce-ment agencies as evidence of adverseimpact. Smaller differences in selec-tion rate may nevertheless constituteadverse impact, where they are signifi-cant in both statistical and practicalterms or where a user’s actions havediscouraged applicants disproportion-ately on grounds of race, sex, or ethnicgroup. Greater differences in selectionrate may not constitute adverse im-pact where the differences are based onsmall numbers and are not statisticallysignificant, or where special recruitingor other programs cause the pool of mi-nority or female candidates to beatypical of the normal pool of appli-cants from that group. Where theuser’s evidence concerning the impactof a selection procedure indicates ad-verse impact but is based upon num-bers which are too small to be reliable,evidence concerning the impact of theprocedure over a longer period of timeand/or evidence concerning the impactwhich the selection procedure hadwhen used in the same manner in simi-lar circumstances elsewhere may beconsidered in determining adverse im-pact. Where the user has not main-tained data on adverse impact as re-quired by the documentation section ofapplicable guidelines, the Federal en-forcement agencies may draw an infer-ence of adverse impact of the selectionprocess from the failure of the user tomaintain such data, if the user has anunderutilization of a group in the jobcategory, as compared to the group’srepresentation in the relevant labormarket or, in the case of jobs filledfrom within, the applicable work force.

E. Consideration of user’s equal employ-ment opportunity posture. In carryingout their obligations, the Federal en-forcement agencies will consider thegeneral posture of the user with re-spect to equal employment opportunityfor the job or group of jobs in question.Where a user has adopted an affirma-tive action program, the Federal en-forcement agencies will consider theprovisions of that program, includingthe goals and timetables which theuser has adopted and the progresswhich the user has made in carrying


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out that program and in meeting thegoals and timetables. While such af-firmative action programs may in de-sign and execution be race, color, sex,or ethnic conscious, selection proce-dures under such programs should bebased upon the ability or relative abil-ity to do the work.


(Pub. L. 96–511, 94 Stat. 2812 (44 U.S.C. 3501 etseq.))

[43 FR 38295, 38312, Aug. 25, 1978, as amendedat 46 FR 63268, Dec. 31, 1981]

§ 1607.5 General standards for validitystudies.

A. Acceptable types of validity studies.For the purposes of satisfying theseguidelines, users may rely upon cri-terion-related validity studies, contentvalidity studies or construct validitystudies, in accordance with the stand-ards set forth in the technical stand-ards of these guidelines, section 14below. New strategies for showing thevalidity of selection procedures will beevaluated as they become accepted bythe psychological profession.

B. Criterion-related, content, and con-struct validity. Evidence of the validityof a test or other selection procedureby a criterion-related validity studyshould consist of empirical data dem-onstrating that the selection procedureis predictive of or significantly cor-related with important elements of jobperformance. See section 14B below.Evidence of the validity of a test orother selection procedure by a contentvalidity study should consist of datashowing that the content of the selec-tion procedure is representative of im-portant aspects of performance on thejob for which the candidates are to beevaluated. See 14C below. Evidence ofthe validity of a test or other selectionprocedure through a construct validitystudy should consist of data showingthat the procedure measures the degreeto which candidates have identifiablecharacteristics which have been deter-mined to be important in successfulperformance in the job for which thecandidates are to be evaluated. See sec-tion 14D below.

C. Guidelines are consistent with profes-sional standards. The provisions of

these guidelines relating to validationof selection procedures are intended tobe consistent with generally acceptedprofessional standards for evaluatingstandardized tests and other selectionprocedures, such as those described inthe Standards for Educational and Psy-chological Tests prepared by a jointcommittee of the American Psycho-logical Association, the American Edu-cational Research Association, and theNational Council on Measurement inEducation (American PsychologicalAssociation, Washington, DC, 1974)(hereinafter ‘‘A.P.A. Standards’’) andstandard textbooks and journals in thefield of personnel selection.

D. Need for documentation of validity.For any selection procedure which ispart of a selection process which has anadverse impact and which selectionprocedure has an adverse impact, eachuser should maintain and have avail-able such documentation as is de-scribed in section 15 below.

E. Accuracy and standardization. Va-lidity studies should be carried outunder conditions which assure insofaras possible the adequacy and accuracyof the research and the report. Selec-tion procedures should be administeredand scored under standardized condi-tions.

F. Caution against selection on basis ofknowledges, skills, or ability learned inbrief orientation period. In general, usersshould avoid making employment deci-sions on the basis of measures ofknowledges, skills, or abilities whichare normally learned in a brief orienta-tion period, and which have an adverseimpact.

G. Method of use of selection proce-dures. The evidence of both the validityand utility of a selection procedureshould support the method the userchooses for operational use of the pro-cedure, if that method of use has agreater adverse impact than anothermethod of use. Evidence which may besufficient to support the use of a selec-tion procedure on a pass/fail (screen-ing) basis may be insufficient to sup-port the use of the same procedure ona ranking basis under these guidelines.Thus, if a user decides to use a selec-tion procedure on a ranking basis, and


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that method of use has a greater ad-verse impact than use on an appro-priate pass/fail basis (see section 5Hbelow), the user should have sufficientevidence of validity and utility to sup-port the use on a ranking basis. Seesections 3B, 14B (5) and (6), and 14C (8)and (9).

H. Cutoff scores. Where cutoff scoresare used, they should normally be setso as to be reasonable and consistentwith normal expectations of acceptableproficiency within the work force.Where applicants are ranked on thebasis of properly validated selectionprocedures and those applicants scor-ing below a higher cutoff score than ap-propriate in light of such expectationshave little or no chance of being se-lected for employment, the higher cut-off score may be appropriate, but thedegree of adverse impact should be con-sidered.

I. Use of selection procedures for higherlevel jobs. If job progression structuresare so established that employees willprobably, within a reasonable period oftime and in a majority of cases,progress to a higher level, it may beconsidered that the applicants arebeing evaluated for a job or jobs at thehigher level. However, where job pro-gression is not so nearly automatic, orthe time span is such that higher leveljobs or employees’ potential may be ex-pected to change in significant ways, itshould be considered that applicantsare being evaluated for a job at or nearthe entry level. A ‘‘reasonable period oftime’’ will vary for different jobs andemployment situations but will seldombe more than 5 years. Use of selectionprocedures to evaluate applicants for ahigher level job would not be appro-priate:

(1) If the majority of those remainingemployed do not progress to the higherlevel job;

(2) If there is a reason to doubt thatthe higher level job will continue to re-quire essentially similar skills duringthe progression period; or

(3) If the selection procedures meas-ure knowledges, skills, or abilities re-quired for advancement which would beexpected to develop principally fromthe training or experience on the job.

J. Interim use of selection procedures.Users may continue the use of a selec-

tion procedure which is not at the mo-ment fully supported by the requiredevidence of validity, provided: (1) Theuser has available substantial evidenceof validity, and (2) the user has inprogress, when technically feasible, astudy which is designed to produce theadditional evidence required by theseguidelines within a reasonable time. Ifsuch a study is not technically feasible,see section 6B. If the study does notdemonstrate validity, this provision ofthese guidelines for interim use shallnot constitute a defense in any action,nor shall it relieve the user of any obli-gations arising under Federal law.

K. Review of validity studies for cur-rency. Whenever validity has beenshown in accord with these guidelinesfor the use of a particular selectionprocedure for a job or group of jobs, ad-ditional studies need not be performeduntil such time as the validity study issubject to review as provided in section3B above. There are no absolutes in thearea of determining the currency of avalidity study. All circumstances con-cerning the study, including the valida-tion strategy used, and changes in therelevant labor market and the jobshould be considered in the determina-tion of when a validity study is out-dated.

§ 1607.6 Use of selection procedureswhich have not been validated.

A. Use of alternate selection proceduresto eliminate adverse impact. A user maychoose to utilize alternative selectionprocedures in order to eliminate ad-verse impact or as part of an affirma-tive action program. See section 13below. Such alternative proceduresshould eliminate the adverse impact inthe total selection process, should belawful and should be as job related aspossible.

B. Where validity studies cannot orneed not be performed. There are cir-cumstances in which a user cannot orneed not utilize the validation tech-niques contemplated by these guide-lines. In such circumstances, the usershould utilize selection procedureswhich are as job related as possible andwhich will minimize or eliminate ad-verse impact, as set forth below.

(1) Where informal or unscored proce-dures are used. When an informal or


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unscored selection procedure which hasan adverse impact is utilized, the usershould eliminate the adverse impact,or modify the procedure to one whichis a formal, scored or quantified meas-ure or combination of measures andthen validate the procedure in accordwith these guidelines, or otherwise jus-tify continued use of the procedure inaccord with Federal law.

(2) Where formal and scored proceduresare used. When a formal and scored se-lection procedure is used which has anadverse impact, the validation tech-niques contemplated by these guide-lines usually should be followed if tech-nically feasible. Where the user cannotor need not follow the validation tech-niques anticipated by these guidelines,the user should either modify the pro-cedure to eliminate adverse impact orotherwise justify continued use of theprocedure in accord with Federal law.

§ 1607.7 Use of other validity studies.A. Validity studies not conducted by the

user. Users may, under certain cir-cumstances, support the use of selec-tion procedures by validity studies con-ducted by other users or conducted bytest publishers or distributors and de-scribed in test manuals. While pub-lishers of selection procedures have aprofessional obligation to provide evi-dence of validity which meets gen-erally accepted professional standards(see section 5C above), users are cau-tioned that they are responsible forcompliance with these guidelines. Ac-cordingly, users seeking to obtain se-lection procedures from publishers anddistributors should be careful to deter-mine that, in the event the user be-comes subject to the validity require-ments of these guidelines, the nec-essary information to support validityhas been determined and will be madeavailable to the user.

B. Use of criterion-related validity evi-dence from other sources. Criterion-re-lated validity studies conducted by onetest user, or described in test manualsand the professional literature, will beconsidered acceptable for use by an-other user when the following require-ments are met:

(1) Validity evidence. Evidence fromthe available studies meeting the

standards of section 14B below clearlydemonstrates that the selection proce-dure is valid;

(2) Job similarity. The incumbents inthe user’s job and the incumbents inthe job or group of jobs on which thevalidity study was conducted performsubstantially the same major work be-haviors, as shown by appropriate jobanalyses both on the job or group ofjobs on which the validity study wasperformed and on the job for which theselection procedure is to be used; and

(3) Fairness evidence. The studies in-clude a study of test fairness for eachrace, sex, and ethnic group which con-stitutes a significant factor in the bor-rowing user’s relevant labor market forthe job or jobs in question. If the stud-ies under consideration satisfy para-graphs (1) and (2) of this paragraphB.,1⁄4 above but do not contain an inves-tigation of test fairness, and it is nottechnically feasible for the borrowinguser to conduct an internal study oftest fairness, the borrowing user mayutilize the study until studies con-ducted elsewhere meeting the require-ments of these guidelines show test un-fairness, or until such time as it be-comes technically feasible to conductan internal study of test fairness andthe results of that study can be actedupon. Users obtaining selection proce-dures from publishers should consider,as one factor in the decision to pur-chase a particular selection procedure,the availability of evidence concerningtest fairness.

C. Validity evidence from multiunitstudy. if validity evidence from a studycovering more than one unit within anorganization statisfies the require-ments of section 14B below, evidence ofvalidity specific to each unit will notbe required unless there are variableswhich are likely to affect validity sig-nificantly.

D. Other significant variables. If thereare variables in the other studies whichare likely to affect validity signifi-cantly, the user may not rely uponsuch studies, but will be expected ei-ther to conduct an internal validitystudy or to comply with section 6above.


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§ 1607.8 Cooperative studies.A. Encouragement of cooperative stud-

ies. The agencies issuing these guide-lines encourage employers, labor orga-nizations, and employment agencies tocooperate in research, development,search for lawful alternatives, and va-lidity studies in order to achieve proce-dures which are consistent with theseguidelines.

B. Standards for use of cooperativestudies. If validity evidence from a co-operative study satisfies the require-ments of section 14 below, evidence ofvalidity specific to each user will notbe required unless there are variablesin the user’s situation which are likelyto affect validity significantly.

§ 1607.9 No assumption of validity.A. Unacceptable substitutes for evidence

of validity. Under no circumstances willthe general reputation of a test orother selection procedures, its authoror its publisher, or casual reports ofit’s validity be accepted in lieu of evi-dence of validity. Specifically ruled outare: assumptions of validity based on aprocedure’s name or descriptive labels;all forms of promotional literature;data bearing on the frequency of a pro-cedure’s usage; testimonial statementsand credentials of sellers, users, or con-sultants; and other nonempirical or an-ecdotal accounts of selection practicesor selection outcomes.

B. Encouragement of professional su-pervision. Professional supervision ofselection activities is encouraged butis not a substitute for documented evi-dence of validity. The enforcementagencies will take into account thefact that a thorough job analysis wasconducted and that careful develop-ment and use of a selection procedurein accordance with professional stand-ards enhance the probability that theselection procedure is valid for the job.

§ 1607.10 Employment agencies andemployment services.

A. Where selection procedures are de-vised by agency. An employment agen-cy, including private employmentagencies and State employment agen-cies, which agrees to a request by anemployer or labor organization to de-vice and utilize a selection procedureshould follow the standards in these

guidelines for determining adverse im-pact. If adverse impact exists the agen-cy should comply with these guide-lines. An employment agency is not re-lieved of its obligation herein becausethe user did not request such valida-tion or has requested the use of somelesser standard of validation than isprovided in these guidelines. The use ofan employment agency does not relievean employer or labor organization orother user of its responsibilities underFederal law to provide equal employ-ment opportunity or its obligations asa user under these guidelines.

B. Where selection procedures are de-vised elsewhere. Where an employmentagency or service is requested to ad-minister a selection procedure whichhas been devised elsewhere and tomake referrals pursuant to the results,the employment agency or serviceshould maintain and have availableevidence of the impact of the selectionand referral procedures which it admin-isters. If adverse impact results theagency or service should comply withthese guidelines. If the agency or serv-ice seeks to comply with these guide-lines by reliance upon validity studiesor other data in the possession of theemployer, it should obtain and haveavailable such information.

§ 1607.11 Disparate treatment.The principles of disparate or un-

equal treatment must be distinguishedfrom the concepts of validation. A se-lection procedure—even though vali-dated against job performance in ac-cordance with these guidelines—cannotbe imposed upon members of a race,sex, or ethnic group where other em-ployees, applicants, or members havenot been subjected to that standard.Disparate treatment occurs wheremembers of a race, sex, or ethnic grouphave been denied the same employ-ment, promotion, membership, or otheremployment opportunities as havebeen available to other employees orapplicants. Those employees or appli-cants who have been denied equaltreatment, because of prior discrimina-tory practices or policies, must at leastbe afforded the same opportunities ashad existed for other employees or ap-plicants during the period of discrimi-nation. Thus, the persons who were in


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the class of persons discriminatedagainst during the period the user fol-lowed the discriminatory practicesshould be allowed the opportunity toqualify under less stringent selectionprocedures previously followed, unlessthe user demonstrates that the in-creased standards are required by busi-ness necessity. This section does notprohibit a user who has not previouslyfollowed merit standards from adoptingmerit standards which are in compli-ance with these guidelines; nor does itpreclude a user who has previouslyused invalid or unvalidated selectionprocedures from developing and usingprocedures which are in accord withthese guidelines.

§ 1607.12 Retesting of applicants.Users should provide a reasonable op-

portunity for retesting and reconsider-ation. Where examinations are admin-istered periodically with public notice,such reasonable opportunity exists, un-less persons who have previously beentested are precluded from retesting.The user may however take reasonablesteps to preserve the security of itsprocedures.

§ 1607.13 Affirmative action.A. Affirmative action obligations. The

use of selection procedures which havebeen validated pursuant to these guide-lines does not relieve users of any obli-gations they may have to undertake af-firmative action to assure equal em-ployment opportunity. Nothing inthese guidelines is intended to precludethe use of lawful selection procedureswhich assist in remedying the effects ofprior discriminatory practices, or theachievement of affirmative action ob-jectives.

B. Encouragement of voluntary affirma-tive action programs. These guidelinesare also intended to encourage theadoption and implementation of vol-untary affirmative action programs byusers who have no obligation underFederal law to adopt them; but are notintended to impose any new obligationsin that regard. The agencies issuingand endorsing these guidelines endorsefor all private employers and reaffirmfor all governmental employers theEqual Employment Opportunity Co-ordinating Council’s ‘‘Policy State-

ment on Affirmative Action Programsfor State and Local Government Agen-cies’’ (41 FR 38814, September 13, 1976).That policy statement is attachedhereto as appendix, section 17.

TECHNICAL STANDARDS

§ 1607.14 Technical standards for va-lidity studies.

The following minimum standards, asapplicable, should be met in con-ducting a validity study. Nothing inthese guidelines is intended to precludethe development and use of other pro-fessionally acceptable techniques withrespect to validation of selection pro-cedures. Where it is not technicallyfeasible for a user to conduct a validitystudy, the user has the obligation oth-erwise to comply with these guidelines.See sections 6 and 7 above.

A. Validity studies should be based onreview of information about the job. Anyvalidity study should be based upon areview of information about the job forwhich the selection procedure is to beused. The review should include a jobanalysis except as provided in section14B(3) below with respect to criterion-related validity. Any method of jobanalysis may be used if it provides theinformation required for the specificvalidation strategy used.

B. Technical standards for criterion-re-lated validity studies—(1) Technical feasi-bility. Users choosing to validate a se-lection procedure by a criterion-relatedvalidity strategy should determinewhether it is technically feasible (asdefined in section 16) to conduct such astudy in the particular employmentcontext. The determination of thenumber of persons necessary to permitthe conduct of a meaningful criterion-related study should be made by theuser on the basis of all relevant infor-mation concerning the selection proce-dure, the potential sample and the em-ployment situation. Where appropriate,jobs with substantially the same majorwork behaviors may be grouped to-gether for validity studies, in order toobtain an adequate sample. Theseguidelines do not require a user to hireor promote persons for the purpose ofmaking it possible to conduct a cri-terion-related study.


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(2) Analysis of the job. There should bea review of job information to deter-mine measures of work behavior(s) orperformance that are relevant to thejob or group of jobs in question. Thesemeasures or criteria are relevant to theextent that they represent critical orimportant job duties, work behaviorsor work outcomes as developed fromthe review of job information. The pos-sibility of bias should be consideredboth in selection of the criterion meas-ures and their application. In view ofthe possibility of bias in subjectiveevaluations, supervisory rating tech-niques and instructions to ratersshould be carefully developed. All cri-terion measures and the methods forgathering data need to be examined forfreedom from factors which would un-fairly alter scores of members of anygroup. The relevance of criteria andtheir freedom from bias are of par-ticular concern when there are signifi-cant differences in measures of job per-formance for different groups.

(3) Criterion measures. Proper safe-guards should be taken to insure thatscores on selection procedures do notenter into any judgments of employeeadequacy that are to be used as cri-terion measures. Whatever criteria areused should represent important orcritical work behavior(s) or work out-comes. Certain criteria may be usedwithout a full job analysis if the usercan show the importance of the criteriato the particular employment context.These criteria include but are not lim-ited to production rate, error rate, tar-diness, absenteeism, and length of serv-ice. A standardized rating of overallwork performance may be used where astudy of the job shows that it is an ap-propriate criterion. Where performancein training is used as a criterion, suc-cess in training should be properlymeasured and the relevance of thetraining should be shown eitherthrough a comparsion of the content ofthe training program with the criticalor important work behavior(s) of thejob(s), or through a demonstration ofthe relationship between measures ofperformance in training and measuresof job performance. Measures of rel-ative success in training include butare not limited to instructor evalua-tions, performance samples, or tests.

Criterion measures consisting of paperand pencil tests will be closely re-viewed for job relevance.

(4) Representativeness of the sample.Whether the study is predictive or con-current, the sample subjects should in-sofar as feasible be representative ofthe candidates normally available inthe relevant labor market for the jobor group of jobs in question, and shouldinsofar as feasible include the races,sexes, and ethnic groups normallyavailable in the relevant job market.In determining the representativenessof the sample in a concurrent validitystudy, the user should take into ac-count the extent to which the specificknowledges or skills which are the pri-mary focus of the test are those whichemployees learn on the job.Where samples are combined or com-pared, attention should be given to seethat such samples are comparable interms of the actual job they perform,the length of time on the job wheretime on the job is likely to affect per-formance, and other relevant factorslikely to affect validity differences; orthat these factors are included in thedesign of the study and their effectsidentified.

(5) Statistical relationships. The degreeof relationship between selection pro-cedure scores and criterion measuresshould be examined and computed,using professionally acceptable statis-tical procedures. Generally, a selectionprocedure is considered related to thecriterion, for the purposes of theseguidelines, when the relationship be-tween performance on the procedureand performance on the criterion meas-ure is statistically significant at the0.05 level of significance, which meansthat it is sufficiently high as to have aprobability of no more than one (1) intwenty (20) to have occurred by chance.Absence of a statistically significantrelationship between a selection proce-dure and job performance should notnecessarily discourage other investiga-tions of the validity of that selectionprocedure.

(6) Operational use of selection proce-dures. Users should evaluate each selec-tion procedure to assure that it is ap-propriate for operational use, includingestablishment of cutoff scores or rankordering. Generally, if other factors


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reman the same, the greater the mag-nitude of the relationship (e.g., correla-tion coefficent) between performanceon a selection procedure and one ormore criteria of performance on thejob, and the greater the importanceand number of aspects of job perform-ance covered by the criteria, the morelikely it is that the procedure will beappropriate for use. Reliance upon a se-lection procedure which is signifi-cantly related to a criterion measure,but which is based upon a study involv-ing a large number of subjects and hasa low correlation coefficient will besubject to close review if it has a largeadverse impact. Sole reliance upon asingle selection instrument which is re-lated to only one of many job duties oraspects of job performance will also besubject to close review. The appro-priateness of a selection procedure isbest evaluated in each particular situa-tion and there are no minimum cor-relation coefficients applicable to allemployment situations. In determiningwhether a selection procedure is appro-priate for operational use the followingconsiderations should also be takeninto account: The degree of adverse im-pact of the procedure, the availabilityof other selection procedures of greateror substantially equal validity.

(7) Overstatement of validity findings.Users should avoid reliance upon tech-niques which tend to overestimate va-lidity findings as a result of capitaliza-tion on chance unless an appropriatesafeguard is taken. Reliance upon a fewselection procedures or criteria of suc-cessful job performance when many se-lection procedures or criteria of per-formance have been studied, or the useof optimal statistical weights for selec-tion procedures computed in one sam-ple, are techniques which tend to in-flate validity estimates as a result ofchance. Use of a large sample is onesafeguard: cross-validation is another.

(8) Fairness. This section generallycalls for studies of unfairness wheretechnically feasible. The concept offairness or unfairness of selection pro-cedures is a developing concept. In ad-dition, fairness studies generally re-quire substantial numbers of employ-ees in the job or group of jobs beingstudied. For these reasons, the Federalenforcement agencies recognize that

the obligation to conduct studies offairness imposed by the guidelines gen-erally will be upon users or groups ofusers with a large number of persons ina a job class, or test developers; andthat small users utilizing their own se-lection procedures will generally notbe obligated to conduct such studiesbecause it will be technically infeasiblefor them to do so.

(a) Unfairness defined. When membersof one race, sex, or ethnic group char-acteristically obtain lower scores on aselection procedure than members ofanother group, and the differences inscores are not reflected in differencesin a measure of job performance, use ofthe selection procedure may unfairlydeny opportunities to members of thegroup that obtains the lower scores.

(b) Investigation of fairness. Where aselection procedure results in an ad-verse impact on a race, sex, or ethnicgroup identified in accordance with theclassifications set forth in section 4above and that group is a significantfactor in the relevant labor market,the user generally should investigatethe possible existence of unfairness forthat group if it is technically feasibleto do so. The greater the severity ofthe adverse impact on a group, thegreater the need to investigate the pos-sible existence of unfairness. Where theweight of evidence from other studiesshows that the selection procedure pre-dicts fairly for the group in questionand for the same or similar jobs, suchevidence may be relied on in connec-tion with the selection procedure atissue.

(c) General considerations in fairnessinvestigations. Users conducting a studyof fairness should review the A.P.A.Standards regarding investigation ofpossible bias in testing. An investiga-tion of fairness of a selection proceduredepends on both evidence of validityand the manner in which the selectionprocedure is to be used in a particularemployment context. Fairness of a se-lection procedure cannot necessarily bespecified in advance without inves-tigating these factors. Investigation offairness of a selection procedure insamples where the range of scores onselection procedures or criterion meas-ures is severely restricted for any sub-group sample (as compared to other


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subgroup samples) may produce mis-leading evidence of unfairness. Thatfactor should accordingly be taken intoaccount in conducting such studies andbefore reliance is placed on the results.

(d) When unfairness is shown. If un-fairness is demonstrated through ashowing that members of a particulargroup perform better or poorer on thejob than their scores on the selectionprocedure would indicate through com-parison with how members of othergroups perform, the user may either re-vise or replace the selection instru-ment in accordance with these guide-lines, or may continue to use the selec-tion instrument operationally with ap-propriate revisions in its use to assurecompatibility between the probabilityof successful job performance and theprobability of being selected.

(e) Technical feasibility of fairnessstudies. In addition to the general con-ditions needed for technical feasibilityfor the conduct of a criterion-relatedstudy (see section 16, below) an inves-tigation of fairness requires the fol-lowing:

(i) An adequate sample of persons ineach group available for the study toachieve findings of statistical signifi-cance. Guidelines do not require a userto hire or promote persons on the basisof group classifications for the purposeof making it possible to conduct astudy of fairness; but the user has theobligation otherwise to comply withthese guidelines.

(ii) The samples for each groupshould be comparable in terms of theactual job they perform, length of timeon the job where time on the job islikely to affect performance, and otherrelevant factors likely to affect valid-ity differences; or such factors shouldbe included in the design of the studyand their effects identified.

(f) Continued use of selection proce-dures when fairness studies not feasible.If a study of fairness should otherwisebe performed, but is not technicallyfeasible, a selection procedure may beused which has otherwise met the va-lidity standards of these guidelines, un-less the technical infeasibility resultedfrom discriminatory employment prac-tices which are demonstrated by factsother than past failure to conform withrequirements for validation of selec-

tion procedures. However, when it be-comes technically feasible for the userto perform a study of fairness and sucha study is otherwise called for, the usershould conduct the study of fairness.

C. Technical standards for content va-lidity studies—(1) Appropriateness of con-tent validity studies. Users choosing tovalidate a selection procedure by acontent validity strategy should deter-mine whether it is appropriate to con-duct such a study in the particular em-ployment context. A selection proce-dure can be supported by a content va-lidity strategy to the extent that it isa representative sample of the contentof the job. Selection procedures whichpurport to measure knowledges, skills,or abilities may in certain cir-cumstances be justified by content va-lidity, although they may not be rep-resentative samples, if the knowledge,skill, or ability measured by the selec-tion procedure can be operationally de-fined as provided in section 14C(4)below, and if that knowledge, skill, orability is a necessary prerequisite tosuccessful job performance.

A selection procedure based upon in-ferences about mental processes cannotbe supported solely or primarily on thebasis of content validity. Thus, a con-tent strategy is not appropriate fordemonstrating the validity of selectionprocedures which purport to measuretraits or constructs, such as intel-ligence, aptitude, personality, com-monsense, judgment, leadership, andspatial ability. Content validity is alsonot an appropriate strategy when theselection procedure involves knowl-edges, skills, or abilities which an em-ployee will be expected to learn on thejob.

(2) Job analysis for content validity.There should be a job analysis whichincludes an analysis of the importantwork behavior(s) required for success-ful performance and their relative im-portance and, if the behavior results inwork product(s), an analysis of thework product(s). Any job analysisshould focus on the work behavior(s)and the tasks associated with them. Ifwork behavior(s) are not observable,the job analysis should identify andanalyze those aspects of the behavior(s)that can be observed and the observedwork products. The work behavior(s)


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selected for measurement should becritical work behavior(s) and/or impor-tant work behavior(s) constitutingmost of the job.

(3) Development of selection procedures.A selection procedure designed tomeasure the work behavior may be de-veloped specifically from the job andjob analysis in question, or may havebeen previously developed by the user,or by other users or by a test publisher.

(4) Standards for demonstrating contentvalidity. To demonstrate the contentvalidity of a selection procedure, a usershould show that the behavior(s) dem-onstrated in the selection procedureare a representative sample of the be-havior(s) of the job in question or thatthe selection procedure provides a rep-resentative sample of the work productof the job. In the case of a selectionprocedure measuring a knowledge,skill, or ability, the knowledge, skill,or ability being measured should beoperationally defined. In the case of aselection procedure measuring aknowledge, the knowledge being meas-ured should be operationally defined asthat body of learned information whichis used in and is a necessary pre-requisite for observable aspects of workbehavior of the job. In the case of skillsor abilities, the skill or ability beingmeasured should be operationally de-fined in terms of observable aspects ofwork behavior of the job. For any se-lection procedure measuring a knowl-edge, skill, or ability the user shouldshow that (a) the selection proceduremeasures and is a representative sam-ple of that knowledge, skill, or ability;and (b) that knowledge, skill, or abilityis used in and is a necessary pre-requisite to performance of critical orimportant work behavior(s). In addi-tion, to be content valid, a selectionprocedure measuring a skill or abilityshould either closely approximate anobservable work behavior, or its prod-uct should closely approximate an ob-servable work product. If a test pur-ports to sample a work behavior or toprovide a sample of a work product, themanner and setting of the selectionprocedure and its level and complexityshould closely approximate the worksituation. The closer the content andthe context of the selection procedureare to work samples or work behaviors,

the stronger is the basis for showingcontent validity. As the content of theselection procedure less resembles awork behavior, or the setting and man-ner of the administration of the selec-tion procedure less resemble the worksituation, or the result less resembles awork product, the less likely the selec-tion procedure is to be content valid,and the greater the need for other evi-dence of validity.

(5) Reliability. The reliability of selec-tion procedures justified on the basis ofcontent validity should be a matter ofconcern to the user. Whenever it is fea-sible, appropriate statistical estimatesshould be made of the reliability of theselection procedure.

(6) Prior training or experience. A re-quirement for or evaluation of specificprior training or experience based oncontent validity, including a specifica-tion of level or amount of training orexperience, should be justified on thebasis of the relationship between thecontent of the training or experienceand the content of the job for whichthe training or experience is to be re-quired or evaluated. The critical con-sideration is the resemblance betweenthe specific behaviors, products, knowl-edges, skills, or abilities in the experi-ence or training and the specific behav-iors, products, knowledges, skills, orabilities required on the job, whetheror not there is close resemblance be-tween the experience or training as awhole and the job as a whole.

(7) Content validity of training success.Where a measure of success in a train-ing program is used as a selection pro-cedure and the content of a trainingprogram is justified on the basis of con-tent validity, the use should be justi-fied on the relationship between thecontent of the training program andthe content of the job.

(8) Operational use. A selection proce-dure which is supported on the basis ofcontent validity may be used for a jobif it represents a critical work behavior(i.e., a behavior which is necessary forperformance of the job) or work behav-iors which constitute most of the im-portant parts of the job.

(9) Ranking based on content validitystudies. If a user can show, by a jobanalysis or otherwise, that a higher


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score on a content valid selection pro-cedure is likely to result in better jobperformance, the results may be usedto rank persons who score above min-imum levels. Where a selection proce-dure supported solely or primarily bycontent validity is used to rank jobcandidates, the selection procedureshould measure those aspects of per-formance which differentiate amonglevels of job performance.

D. Technical standards for constructvalidity studies—(1) Appropriateness ofconstruct validity studies. Construct va-lidity is a more complex strategy thaneither criterion-related or content va-lidity. Construct validation is a rel-atively new and developing procedurein the employment field, and there isat present a lack of substantial lit-erature extending the concept to em-ployment practices. The user should beaware that the effort to obtain suffi-cient empirical support for constructvalidity is both an extensive and ardu-ous effort involving a series of researchstudies, which include criterion relatedvalidity studies and which may includecontent validity studies. Users choos-ing to justify use of a selection proce-dure by this strategy should thereforetake particular care to assure that thevalidity study meets the standards setforth below.

(2) Job analysis for construct validitystudies. There should be a job analysis.This job analysis should show the workbehavior(s) required for successful per-formance of the job, or the groups ofjobs being studied, the critical or im-portant work behavior(s) in the job orgroup of jobs being studied, and anidentification of the construct(s) be-lieved to underlie successful perform-ance of these critical or importantwork behaviors in the job or jobs inquestion. Each construct should benamed and defined, so as to distinguishit from other constructs. If a group ofjobs is being studied the jobs shouldhave in common one or more criticalor important work behaviors at acomparable level of complexity.

(3) Relationship to the job. A selectionprocedure should then be identified ordeveloped which measures the con-struct identified in accord with sub-paragraph (2) above. The user shouldshow by empirical evidence that the se-

lection procedure is validly related tothe construct and that the construct isvalidly related to the performance ofcritical or important work behavior(s).The relationship between the constructas measured by the selection procedureand the related work behavior(s)should be supported by empirical evi-dence from one or more criterion-re-lated studies involving the job or jobsin question which satisfy the provi-sions of section 14B above.

(4) Use of construct validity study with-out new criterion-related evidence—(a)Standards for use. Until such time asprofessional literature provides moreguidance on the use of construct valid-ity in employment situations, the Fed-eral agencies will accept a claim ofconstruct validity without a criterion-related study which satisfies section14B above only when the selection pro-cedure has been used elsewhere in a sit-uation in which a criterion-relatedstudy has been conducted and the useof a criterion-related validity study inthis context meets the standards fortransportability of criterion-relatedvalidity studies as set forth above insection 7. However, if a study pertainsto a number of jobs having commoncritical or important work behaviors ata comparable level of complexity, andthe evidence satisfies subparagraphs14B (2) and (3) above for those jobs withcriterion-related validity evidence forthose jobs, the selection procedure maybe used for all the jobs to which thestudy pertains. If construct validity isto be generalized to other jobs orgroups of jobs not in the group studied,the Federal enforcement agencies willexpect at a minimum additional empir-ical research evidence meeting thestandards of subparagraphs section 14B(2) and (3) above for the additional jobsor groups of jobs.

(b) Determination of common work be-haviors. In determining whether two ormore jobs have one or more work be-havior(s) in common, the user shouldcompare the observed work behavior(s)in each of the jobs and should comparethe observed work product(s) in each ofthe jobs. If neither the observed workbehavior(s) in each of the jobs nor theobserved work product(s) in each of thejobs are the same, the Federal enforce-ment agencies will presume that the


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work behavior(s) in each job are dif-ferent. If the work behaviors are notobservable, then evidence of similarityof work products and any other rel-evant research evidence will be consid-ered in determining whether the workbehavior(s) in the two jobs are thesame.

DOCUMENTATION OF IMPACT ANDVALIDITY EVIDENCE

§ 1607.15 Documentation of impact andvalidity evidence.

A. Required information. Users of se-lection procedures other than thoseusers complying with section 15A(1)below should maintain and have avail-able for each job information on ad-verse impact of the selection processfor that job and, where it is determineda selection process has an adverse im-pact, evidence of validity as set forthbelow.

(1) Simplified recordkeeping for userswith less than 100 employees. In order tominimize recordkeeping burdens onemployers who employ one hundred(100) or fewer employees, and otherusers not required to file EEO–1, etseq., reports, such users may satisfythe requirements of this section 15 ifthey maintain and have availablerecords showing, for each year:

(a) The number of persons hired, pro-moted, and terminated for each job, bysex, and where appropriate by race andnational origin;

(b) The number of applicants for hireand promotion by sex and where appro-priate by race and national origin; and

(c) The selection procedures utilized(either standardized or not standard-ized).

These records should be maintained foreach race or national origin group (seesection 4 above) constituting morethan two percent (2%) of the laborforce in the relevant labor area. How-ever, it is not necessary to maintainrecords by race and/or national origin(see § 4 above) if one race or nationalorigin group in the relevant labor areaconstitutes more than ninety-eightpercent (98%) of the labor force in thearea. If the user has reason to believethat a selection procedure has an ad-verse impact, the user should maintain

any available evidence of validity forthat procedure (see sections 7A and 8).

(2) Information on impact—(a) Collec-tion of information on impact. Users ofselection procedures other than thosecomplying with section 15A(1) aboveshould maintain and have available foreach job records or other informationshowing whether the total selectionprocess for that job has an adverse im-pact on any of the groups for whichrecords are called for by sections 4Babove. Adverse impact determinationsshould be made at least annually foreach such group which constitutes atleast 2 percent of the labor force in therelevant labor area or 2 percent of theapplicable workforce. Where a total se-lection process for a job has an adverseimpact, the user should maintain andhave available records or other infor-mation showing which componentshave an adverse impact. Where thetotal selection process for a job doesnot have an adverse impact, informa-tion need not be maintained for indi-vidual components except in cir-cumstances set forth in subsection15A(2)(b) below. If the determination ofadverse impact is made using a proce-dure other than the ‘‘four-fifths rule,’’as defined in the first sentence of sec-tion 4D above, a justification, con-sistent with section 4D above, for theprocedure used to determine adverseimpact should be available.

(b) When adverse impact has been elimi-nated in the total selection process.Whenever the total selection processfor a particular job has had an adverseimpact, as defined in section 4 above,in any year, but no longer has an ad-verse impact, the user should maintainand have available the information onindividual components of the selectionprocess required in the preceding para-graph for the period in which there wasadverse impact. In addition, the usershould continue to collect such infor-mation for at least two (2) years afterthe adverse impact has been elimi-nated.

(c) When data insufficient to determineimpact. Where there has been an insuffi-cient number of selections to deter-mine whether there is an adverse im-pact of the total selection process for aparticular job, the user should con-tinue to collect, maintain and have


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available the information on individualcomponents of the selection process re-quired in section 15(A)(2)(a) above untilthe information is sufficient to deter-mine that the overall selection processdoes not have an adverse impact as de-fined in section 4 above, or until thejob has changed substantially.

(3) Documentation of validity evi-dence—(a) Types of evidence. Where atotal selection process has an adverseimpact (see section 4 above) the usershould maintain and have available foreach component of that process whichhas an adverse impact, one or more ofthe following types of documentationevidence:

(i) Documentation evidence showingcriterion-related validity of the selec-tion procedure (see section 15B, below).

(ii) Documentation evidence showingcontent validity of the selection proce-dure (see section 15C, below).

(iii) Documentation evidence show-ing construct validity of the selectionprocedure (see section 15D, below).

(iv) Documentation evidence fromother studies showing validity of theselection procedure in the user’s facil-ity (see section 15E, below).

(v) Documentation evidence showingwhy a validity study cannot or neednot be performed and why continueduse of the procedure is consistent withFederal law.

(b) Form of report. This evidenceshould be compiled in a reasonablycomplete and organized manner to per-mit direct evaluation of the validity ofthe selection procedure. Previouslywritten employer or consultant reportsof validity, or reports describing valid-ity studies completed before theissuance of these guidelines are accept-able if they are complete in regard tothe documentation requirements con-tained in this section, or if they satis-fied requirements of guidelines whichwere in effect when the validity studywas completed. If they are not com-plete, the required additional docu-mentation should be appended. If nec-essary information is not available thereport of the validity study may stillbe used as documentation, but its ade-quacy will be evaluated in terms ofcompliance with the requirements ofthese guidelines.

(c) Completeness. In the event thatevidence of validity is reviewed by anenforcement agency, the validation re-ports completed after the effective dateof these guidelines are expected to con-tain the information set forth below.Evidence denoted by use of the word‘‘(Essential)’’ is considered critical. Ifinformation denoted essential is not in-cluded, the report will be consideredincomplete unless the user affirma-tively demonstrates either its unavail-ability due to circumstances beyondthe user’s control or special cir-cumstances of the user’s study whichmake the information irrelevant. Evi-dence not so denoted is desirable butits absence will not be a basis for con-sidering a report incomplete. The usershould maintain and have available theinformation called for under the head-ing ‘‘Source Data’’ in sections 15B(11)and 15D(11). While it is a necessary partof the study, it need not be submittedwith the report. All statistical resultsshould be organized and presented intabular or graphic form to the extentfeasible.

B. Criterion-related validity studies. Re-ports of criterion-related validity for aselection procedure should include thefollowing information:

(1) User(s), location(s), and date(s) ofstudy. Dates and location(s) of the jobanalysis or review of job information,the date(s) and location(s) of the ad-ministration of the selection proce-dures and collection of criterion data,and the time between collection ofdata on selection procedures and cri-terion measures should be provided(Essential). If the study was conductedat several locations, the address ofeach location, including city and State,should be shown.

(2) Problem and setting. An explicitdefinition of the purpose(s) of the studyand the circumstances in which thestudy was conducted should be pro-vided. A description of existing selec-tion procedures and cutoff scores, ifany, should be provided.

(3) Job anlysis or review of job informa-tion. A description of the procedureused to analyze the job or group ofjobs, or to review the job informationshould be provided (Essential). Where areview of job information results incriteria which may be used without a


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full job analysis (see section 14B(3)),the basis for the selection of these cri-teria should be reported (Essential).Where a job analysis is required a com-plete description of the work behav-ior(s) or work outcome(s), and meas-ures of their criticality or importanceshould be provided (Essential). The re-port should describe the basis on whichthe behavior(s) or outcome(s) were de-termined to be critical or important,such as the proportion of time spent onthe respective behaviors, their level ofdifficulty, their frequency of perform-ance, the consequences of error, orother appropriate factors (Essential).Where two or more jobs are grouped fora validity study, the information calledfor in this subsection should be pro-vided for each of the jobs, and the jus-tification for the grouping (see section14B(1)) should be provided (Essential).

(4) Job titles and codes. It is desirableto provide the user’s job title(s) for thejob(s) in question and the cor-responding job title(s) and code(s) fromU.S. Employment Service’s Dictionaryof Occupational Titles.

(5) Criterion measures. The bases forthe selection of the criterion measuresshould be provided, together with ref-erences to the evidence considered inmaking the selection of criterion meas-ures (essential). A full description ofall criteria on which data were col-lected and means by which they wereobserved, recorded, evaluated, andquantified, should be provided (essen-tial). If rating techniques are used ascriterion measures, the appraisalform(s) and instructions to the rater(s)should be included as part of the vali-dation evidence, or should be explicitlydescribed and available (essential). Allsteps taken to insure that criterionmeasures are free from factors whichwould unfairly alter the scores of mem-bers of any group should be described(essential).

(6) Sample description. A description ofhow the research sample was identifiedand selected should be included (essen-tial). The race, sex, and ethnic com-position of the sample, including thosegroups set forth in section 4A above,should be described (essential). This de-scription should include the size ofeach subgroup (essential). A descrip-tion of how the research sample com-

pares with the relevant labor marketor work force, the method by which therelevant labor market or work forcewas defined, and a discussion of thelikely effects on validity of differencesbetween the sample and the relevantlabor market or work force, are alsodesirable. Descriptions of educationallevels, length of service, and age arealso desirable.

(7) Description of selection procedures.Any measure, combination of meas-ures, or procedure studied should becompletely and explicitly described orattached (essential). If commerciallyavailable selection procedures are stud-ied, they should be described by title,form, and publisher (essential). Reportsof reliability estimates and how theywere established are desirable.

(8) Techniques and results. Methodsused in analyzing data should be de-scribed (essential). Measures of centraltendency (e.g., means) and measures ofdispersion (e.g., standard deviationsand ranges) for all selection proceduresand all criteria should be reported foreach race, sex, and ethnic group whichconstitutes a significant factor in therelevant labor market (essential). Themagnitude and direction of all rela-tionships between selection proceduresand criterion measures investigatedshould be reported for each relevantrace, sex, and ethnic group and for thetotal group (essential). Where groupsare too small to obtain reliable evi-dence of the magnitude of the relation-ship, need not be reported separately.Statements regarding the statisticalsignificance of results should be made(essential). Any statistical adjust-ments, such as for less then perfect re-liability or for restriction of scorerange in the selection procedure or cri-terion should be described and ex-plained; and uncorrected correlationcoefficients should also be shown (es-sential). Where the statistical tech-nique categorizes continuous data,such as biserial correlation and the phicoefficient, the categories and thebases on which they were determinedshould be described and explained (es-sential). Studies of test fairness shouldbe included where called for by the re-quirements of section 14B(8) (essen-tial). These studies should include the


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rationale by which a selection proce-dure was determined to be fair to thegroup(s) in question. Where test fair-ness or unfairness has been dem-onstrated on the basis of other studies,a bibliography of the relevant studiesshould be included (essential). If thebibliography includes unpublishedstudies, copies of these studies, or ade-quate abstracts or summaries, shouldbe attached (essential). Where revi-sions have been made in a selectionprocedure to assure compatability be-tween successful job performance andthe probability of being selected, thestudies underlying such revisionsshould be included (essential). All sta-tistical results should be organized andpresented by relevant race, sex, andethnic group (essential).

(9) Alternative procedures investigated.The selection procedures investigatedand available evidence of their impactshould be identified (essential). Thescope, method, and findings of the in-vestigation, and the conclusionsreached in light of the findings, shouldbe fully described (essential).

(10) Uses and applications. The meth-ods considered for use of the selectionprocedure (e.g., as a screening devicewith a cutoff score, for grouping orranking, or combined with other proce-dures in a battery) and available evi-dence of their impact should be de-scribed (essential). This descriptionshould include the rationale for choos-ing the method for operational use, andthe evidence of the validity and utilityof the procedure as it is to be used (es-sential). The purpose for which the pro-cedure is to be used (e.g., hiring, trans-fer, promotion) should be described (es-sential). If weights are assigned to dif-ferent parts of the selection procedure,these weights and the validity of theweighted composite should be reported(essential). If the selection procedure isused with a cutoff score, the usershould describe the way in which nor-mal expectations of proficiency withinthe work force were determined andthe way in which the cutoff score wasdetermined (essential).

(11) Source data. Each user shouldmaintain records showing all pertinentinformation about individual samplemembers and raters where they areused, in studies involving the valida-

tion of selection procedures. Theserecords should be made available uponrequest of a compliance agency. In thecase of individual sample membersthese data should include scores on theselection procedure(s), scores on cri-terion measures, age, sex, race, or eth-nic group status, and experience on thespecific job on which the validationstudy was conducted, and may also in-clude such things as education, train-ing, and prior job experience, butshould not include names and social se-curity numbers. Records should bemaintained which show the ratingsgiven to each sample member by eachrater.

(12) Contact person. The name, mail-ing address, and telephone number ofthe person who may be contacted forfurther information about the validitystudy should be provided (essential).

(13) Accuracy and completeness. Thereport should describe the steps takento assure the accuracy and complete-ness of the collection, analysis, and re-port of data and results.

C. Content validity studies. Reports ofcontent validity for a selection proce-dure should include the following infor-mation:

(1) User(s), location(s) and date(s) ofstudy. Dates and location(s) of the jobanalysis should be shown (essential).


(3) Job analysis—Content of the job. Adescription of the method used to ana-lyze the job should be provided (essen-tial). The work behavior(s), the associ-ated tasks, and, if the behavior resultsin a work product, the work productsshould be completely described (essen-tial). Measures of criticality and/or im-portance of the work behavior(s) andthe method of determining these meas-ures should be provided (essential).Where the job analysis also identifiedthe knowledges, skills, and abilitiesused in work behavior(s), an oper-ational definition for each knowledgein terms of a body of learned informa-tion and for each skill and ability in


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terms of observable behaviors and out-comes, and the relationship betweeneach knowledge, skill, or ability andeach work behavior, as well as themethod used to determine this rela-tionship, should be provided (essen-tial). The work situation should be de-scribed, including the setting in whichwork behavior(s) are performed, andwhere appropriate, the manner inwhich knowledges, skills, or abilitiesare used, and the complexity and dif-ficulty of the knowledge, skill, or abil-ity as used in the work behavior(s).

(4) Selection procedure and its content.Selection procedures, including thoseconstructed by or for the user, specifictraining requirements, composites ofselection procedures, and any otherprocedure supported by content valid-ity, should be completely and explic-itly described or attached (essential). Ifcommercially available selection pro-cedures are used, they should be de-scribed by title, form, and publisher(essential). The behaviors measured orsampled by the selection procedureshould be explicitly described (essen-tial). Where the selection procedurepurports to measure a knowledge, skill,or ability, evidence that the selectionprocedure measures and is a represent-ative sample of the knowledge, skill, orability should be provided (essential).

(5) Relationship between the selectionprocedure and the job. The evidencedemonstrating that the selection pro-cedure is a representative work sample,a representative sample of the work be-havior(s), or a representative sample ofa knowledge, skill, or ability as used asa part of a work behavior and nec-essary for that behavior should be pro-vided (essential). The user should iden-tify the work behavior(s) which eachitem or part of the selection procedureis intended to sample or measure (es-sential). Where the selection procedurepurports to sample a work behavior orto provide a sample of a work product,a comparison should be provided of themanner, setting, and the level of com-plexity of the selection procedure withthose of the work situation (essential).If any steps were taken to reduce ad-verse impact on a race, sex, or ethnicgroup in the content of the procedureor in its administration, these stepsshould be described. Establishment of

time limits, if any, and how these lim-its are related to the speed with whichduties must be performed on the job,should be explained. Measures of cen-tral tendency (e.g., means) and meas-ures of dispersion (e.g., standard devi-ations) and estimates of realibilityshould be reported for all selection pro-cedures if available. Such reportsshould be made for relevant race, sex,and ethnic subgroups, at least on a sta-tistically reliable sample basis.

(6) Alternative procedures investigated.The alternative selection proceduresinvestigated and available evidence oftheir impact should be identified (es-sential). The scope, method, and find-ings of the investigation, and the con-clusions reached in light of the find-ings, should be fully described (essen-tial).

(7) Uses and applications. The methodsconsidered for use of the selection pro-cedure (e.g., as a screening device witha cutoff score, for grouping or ranking,or combined with other procedures in abattery) and available evidence of theirimpact should be described (essential).This description should include the ra-tionale for choosing the method foroperational use, and the evidence ofthe validity and utility of the proce-dure as it is to be used (essential). Thepurpose for which the procedure is tobe used (e.g., hiring, transfer, pro-motion) should be described (essential).If the selection procedure is used witha cutoff score, the user should describethe way in which normal expectationsof proficiency within the work forcewere determined and the way in whichthe cutoff score was determined (essen-tial). In addition, if the selection pro-cedure is to be used for ranking, theuser should specify the evidence show-ing that a higher score on the selectionprocedure is likely to result in betterjob performance.

(8) Contact person. The name, mailingaddress, and telephone number of theperson who may be contacted for fur-ther information about the validitystudy should be provided (essential).

(9) Accuracy and completeness. The re-port should describe the steps taken toassure the accuracy and completenessof the collection, analysis, and reportof data and results.


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D. Construct validity studies. Reportsof construct validity for a selectionprocedure should include the followinginformation:

(1) User(s), location(s), and date(s) ofstudy. Date(s) and location(s) of the jobanalysis and the gathering of other evi-dence called for by these guidelinesshould be provided (essential).


(3) Construct definition. A clear defini-tion of the construct(s) which are be-lieved to underlie successful perform-ance of the critical or important workbehavior(s) should be provided (essen-tial). This definition should include thelevels of construct performance rel-evant to the job(s) for which the selec-tion procedure is to be used (essential).There should be a summary of the posi-tion of the construct in the psycho-logical literature, or in the absence ofsuch a position, a description of theway in which the definition and meas-urement of the construct was devel-oped and the psychological theory un-derlying it (essential). Any quan-titative data which identify or definethe job constructs, such as factor anal-yses, should be provided (essential).

(4) Job analysis. A description of themethod used to analyze the job shouldbe provided (essential). A complete de-scription of the work behavior(s) and,to the extent appropriate, work out-comes and measures of their criticalityand/or importance should be provided(essential). The report should also de-scribe the basis on which the behav-ior(s) or outcomes were determined tobe important, such as their level of dif-ficulty, their frequency of perform-ance, the consequences of error orother appropriate factors (essential).Where jobs are grouped or compared forthe purposes of generalizing validityevidence, the work behavior(s) andwork product(s) for each of the jobsshould be described, and conclusionsconcerning the similarity of the jobs interms of observable work behaviors orwork products should be made (essen-tial).

(5) Job titles and codes. It is desirableto provide the selection procedureuser’s job title(s) for the job(s) in ques-tion and the corresponding job title(s)and code(s) from the United States Em-ployment Service’s dictionary of occu-pational titles.

(6) Selection procedure. The selectionprocedure used as a measure of the con-struct should be completely and explic-itly described or attached (essential). Ifcommercially available selection pro-cedures are used, they should be identi-fied by title, form and publisher (essen-tial). The research evidence of the rela-tionship between the selection proce-dure and the construct, such as factorstructure, should be included (essen-tial). Measures of central tendency,variability and reliability of the selec-tion procedure should be provided (es-sential). Whenever feasible, thesemeasures should be provided separatelyfor each relevant race, sex and ethnicgroup.

(7) Relationship to job performance.The criterion-related study(ies) andother empirical evidence of the rela-tionship between the construct meas-ured by the selection procedure and therelated work behavior(s) for the job orjobs in question should be provided (es-sential). Documentation of the cri-terion-related study(ies) should satisfythe provisions of section 15B above orsection 15E(1) below, except for studiesconducted prior to the effective date ofthese guidelines (essential). Where astudy pertains to a group of jobs, and,on the basis of the study, validity is as-serted for a job in the group, the ob-served work behaviors and the observedwork products for each of the jobsshould be described (essential). Anyother evidence used in determiningwhether the work behavior(s) in eachof the jobs is the same should be fullydescribed (essential).

(8) Alternative procedures investigated.The alternative selection proceduresinvestigated and available evidence oftheir impact should be identified (es-sential). The scope, method, and find-ings of the investigation, and the con-clusions reached in light of the findingsshould be fully described (essential).

(9) Uses and applications. The methodsconsidered for use of the selection pro-cedure (e.g., as a screening device with


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a cutoff score, for grouping or ranking,or combined with other procedures in abattery) and available evidence of theirimpact should be described (essential).This description should include the ra-tionale for choosing the method foroperational use, and the evidence ofthe validity and utility of the proce-dure as it is to be used (essential). Thepurpose for which the procedure is tobe used (e.g., hiring, transfer, pro-motion) should be described (essential).If weights are assigned to differentparts of the selection procedure, theseweights and the validity of the weight-ed composite should be reported (essen-tial). If the selection procedure is usedwith a cutoff score, the user should de-scribe the way in which normal expec-tations of proficiency within the workforce were determined and the way inwhich the cutoff score was determined(essential).

(10) Accuracy and completeness. Thereport should describe the steps takento assure the accuracy and complete-ness of the collection, analysis, and re-port of data and results.

(11) Source data. Each user shouldmaintain records showing all pertinentinformation relating to its study ofconstruct validity.

(12) Contact person. The name, mail-ing address, and telephone number ofthe individual who may be contactedfor further information about the va-lidity study should be provided (essen-tial).

E. Evidence of validity from other stud-ies. When validity of a selection proce-dure is supported by studies not doneby the user, the evidence from theoriginal study or studies should becompiled in a manner similar to thatrequired in the appropriate section ofthis section 15 above. In addition, thefollowing evidence should be supplied:

(1) Evidence from criterion-related va-lidity studies—a. Job information. A de-scription of the important job behav-ior(s) of the user’s job and the basis onwhich the behaviors were determinedto be important should be provided (es-sential). A full description of the basisfor determining that these importantwork behaviors are the same as thoseof the job in the original study (orstudies) should be provided (essential).

b. Relevance of criteria. A full descrip-tion of the basis on which the criteriaused in the original studies are deter-mined to be relevant for the usershould be provided (essential).

c. Other variables. The similarity ofimportant applicant pool or samplecharacteristics reported in the originalstudies to those of the user should bedescribed (essential). A description ofthe comparison between the race, sexand ethnic composition of the user’srelevant labor market and the samplein the original validity studies shouldbe provided (essential).

d. Use of the selection procedure. A fulldescription should be provided showingthat the use to be made of the selectionprocedure is consistent with the find-ings of the original validity studies (es-sential).

e. Bibliography. A bibliography of re-ports of validity of the selection proce-dure for the job or jobs in questionshould be provided (essential). Whereany of the studies included an inves-tigation of test fairness, the results ofthis investigation should be provided(essential). Copies of reports publishedin journals that are not commonlyavailable should be described in detailor attached (essential). Where a user isrelying upon unpublished studies, areasonable effort should be made to ob-tain these studies. If these unpublishedstudies are the sole source of validityevidence they should be described indetail or attached (essential). If thesestudies are not available, the name andaddress of the source, an adequate ab-stract or summary of the validitystudy and data, and a contact person inthe source organization should be pro-vided (essential).

(2) Evidence from content validity stud-ies. See section 14C(3) and section 15Cabove.

(3) Evidence from construct validitystudies. See sections 14D(2) and 15Dabove.

F. Evidence of validity from cooperativestudies. Where a selection procedurehas been validated through a coopera-tive study, evidence that the study sat-isfies the requirements of sections 7, 8and 15E should be provided (essential).

G. Selection for higher level job. If a se-lection procedure is used to evaluatecandidates for jobs at a higher level


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than those for which they will initiallybe employed, the validity evidenceshould satisfy the documentation pro-visions of this section 15 for the higherlevel job or jobs, and in addition, theuser should provide: (1) a description ofthe job progression structure, formalor informal; (2) the data showing howmany employees progress to the higherlevel job and the length of time neededto make this progression; and (3) anidentification of any anticipatedchanges in the higher level job. In addi-tion, if the test measures a knowledge,skill or ability, the user should provideevidence that the knowledge, skill orability is required for the higher leveljob and the basis for the conclusionthat the knowledge, skill or ability isnot expected to develop from the train-ing or experience on the job.

H. Interim use of selection procedures.If a selection procedure is being usedon an interim basis because the proce-dure is not fully supported by the re-quired evidence of validity, the usershould maintain and have available (1)substantial evidence of validity for theprocedure, and (2) a report showing thedate on which the study to gather theadditional evidence commenced, the es-timated completion date of the study,and a description of the data to be col-lected (essential).



[43 FR 38295, 38312, Aug. 25, 1978, as amendedat 46 FR 63268, Dec. 31, 1981]

DEFINITIONS

§ 1607.16 Definitions.The following definitions shall apply

throughout these guidelines:A. Ability. A present competence to

perform an observable behavior or a be-havior which results in an observableproduct.

B. Adverse impact. A substantially dif-ferent rate of selection in hiring, pro-motion, or other employment decisionwhich works to the disadvantage ofmembers of a race, sex, or ethnicgroup. See section 4 of these guidelines.

C. Compliance with these guidelines.Use of a selection procedure is in com-pliance with these guidelines if such

use has been validated in accord withthese guidelines (as defined below), orif such use does not result in adverseimpact on any race, sex, or ethnicgroup (see section 4, above), or, in un-usual circumstances, if use of the pro-cedure is otherwise justified in accordwith Federal law. See section 6B,above.

D. Content validity. Demonstrated bydata showing that the content of a se-lection procedure is representative ofimportant aspects of performance onthe job. See section 5B and section 14C.

E. Construct validity. Demonstratedby data showing that the selection pro-cedure measures the degree to whichcandidates have identifiable character-istics which have been determined tobe important for successful job per-formance. See section 5B and section14D.

F. Criterion-related validity. Dem-onstrated by empirical data showingthat the selection procedure is pre-dictive of or significantly correlatedwith important elements of work be-havior. See sections 5B and 14B.

G. Employer. Any employer subject tothe provisions of the Civil Rights Actof 1964, as amended, including State orlocal governments and any Federalagency subject to the provisions of sec-tion 717 of the Civil Rights Act of 1964,as amended, and any Federal con-tractor or subcontractor or federallyassisted construction contractor orsubcontactor covered by ExecutiveOrder 11246, as amended.

H. Employment agency. Any employ-ment agency subject to the provisionsof the Civil Rights Act of 1964, asamended.

I. Enforcement action. For the pur-poses of section 4 a proceeding by aFederal enforcement agency such as alawsuit or an administrative pro-ceeding leading to debarment from orwithholding, suspension, or termi-nation of Federal Government con-tracts or the suspension or withholdingof Federal Government funds; but not afinding of reasonable cause or a concil-ation process or the issuance of rightto sue letters under title VII or underExecutive Order 11246 where such find-ing, conciliation, or issuance of noticeof right to sue is based upon an indi-vidual complaint.


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J. Enforcement agency. Any agency ofthe executive branch of the FederalGovernment which adopts these guide-lines for purposes of the enforcement ofthe equal employment opportunitylaws or which has responsibility for se-curing compliance with them.

K. Job analysis. A detailed statementof work behaviors and other informa-tion relevant to the job.

L. Job description. A general state-ment of job duties and responsibilities.

M. Knowledge. A body of informationapplied directly to the performance ofa function.

N. Labor organization. Any labor orga-nization subject to the provisions ofthe Civil Rights Act of 1964, as amend-ed, and any committee subject theretocontrolling apprenticeship or othertraining.

O. Observable. Able to be seen, heard,or otherwise perceived by a personother than the person performing theaction.

P. Race, sex, or ethnic group. Anygroup of persons identifiable on thegrounds of race, color, religion, sex, ornational origin.

Q. Selection procedure. Any measure,combination of measures, or procedureused as a basis for any employment de-cision. Selection procedures includethe full range of assessment techniquesfrom traditional paper and pencil tests,performance tests, training programs,or probationary periods and physical,educational, and work experience re-quirements through informal or casualinterviews and unscored applicationforms.

R. Selection rate. The proportion ofapplicants or candidates who are hired,promoted, or otherwise selected.

S. Should. The term ‘‘should’’ as usedin these guidelines is intended to con-note action which is necessary toachieve compliance with the guide-lines, while recognizing that there arecircumstances where alternativecourses of action are open to users.

T. Skill. A present, observable com-petence to perform a learnedpsychomoter act.

U. Technical feasibility. The exist-ence of conditions permitting the con-duct of meaningful criterion-relatedvalidity studies. These conditions in-clude: (1) An adequate sample of per-

sons available for the study to achievefindings of statistical significance; (2)having or being able to obtain a suffi-cient range of scores on the selectionprocedure and job performance meas-ures to produce validity results whichcan be expected to be representative ofthe results if the ranges normally ex-pected were utilized; and (3) having orbeing able to devise unbiased, reliableand relevant measures of job perform-ance or other criteria of employee ade-quacy. See section 14B(2). With respectto investigation of possible unfairness,the same considerations are applicableto each group for which the study ismade. See section 14B(8).

V. Unfairness of selection procedure. Acondition in which members of onerace, sex, or ethnic group characteris-tically obtain lower scores on a selec-tion procedure than members of an-other group, and the differences are notreflected in differences in measures ofjob performance. See section 14B(7).

W. User. Any employer, labor organi-zation, employment agency, or licens-ing or certification board, to the extentit may be covered by Federal equal em-ployment opportunity law, which usesa selection procedure as a basis for anyemployment decision. Whenever an em-ployer, labor organization, or employ-ment agency is required by law to re-strict recruitment for any occupationto those applicants who have met li-censing or certification requirements,the licensing or certifying authority tothe extent it may be covered by Fed-eral equal employment opportunitylaw will be considered the user with re-spect to those licensing or certificationrequirements. Whenever a State em-ployment agency or service does nomore than administer or monitor aprocedure as permitted by Departmentof Labor regulations, and does so with-out making referrals or taking anyother action on the basis of the results,the State employment agency will notbe deemed to be a user.

X. Validated in accord with these guide-lines or properly validated. A demonstra-tion that one or more validity study orstudies meeting the standards of theseguidelines has been conducted, includ-ing investigation and, where appro-priate, use of suitable alternative se-lection procedures as contemplated by


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section 3B, and has produced evidenceof validity sufficient to warrant use ofthe procedure for the intended purposeunder the standards of these guide-lines.

Y. Work behavior. An activity per-formed to achieve the objectives of thejob. Work behaviors involve observable(physical) components andunobservable (mental) components. Awork behavior consists of the perform-ance of one or more tasks. Knowledges,skills, and abilities are not behaviors,although they may be applied in workbehaviors.

APPENDIX

§ 1607.17 Policy statement on affirma-tive action (see section 13B).

The Equal Employment OpportunityCoordinating Council was establishedby act of Congress in 1972, and chargedwith responsibility for developing andimplementing agreements and policiesdesigned, among other things, to elimi-nate conflict and inconsistency amongthe agencies of the Federal Govern-ment responsible for administeringFederal law prohibiting discriminationon grounds of race, color, sex, religion,and national origin. This statement isissued as an initial response to the re-quests of a number of State and localofficials for clarification of the Govern-ment’s policies concerning the role ofaffirmative action in the overall equalemployment opportunity program.While the Coordinating Council’s adop-tion of this statement expresses onlythe views of the signatory agenciesconcerning this important subject, theprinciples set forth below should serveas policy guidance for other Federalagencies as well.

(1) Equal employment opportunity isthe law of the land. In the public sectorof our society this means that all per-sons, regardless of race, color, religion,sex, or national origin shall have equalaccess to positions in the public servicelimited only by their ability to do thejob. There is ample evidence in all sec-tors of our society that such equal ac-cess frequently has been denied tomembers of certain groups because oftheir sex, racial, or ethnic characteris-tics. The remedy for such past andpresent discrimination is twofold.

On the one hand, vigorous enforce-ment of the laws against discrimina-tion is essential. But equally, and per-haps even more important are affirma-tive, voluntary efforts on the part ofpublic employers to assure that posi-tions in the public service are genu-inely and equally accessible to quali-fied persons, without regard to theirsex, racial, or ethnic characteristics.Without such efforts equal employmentopportunity is no more than a wish.The importance of voluntary affirma-tive action on the part of employers isunderscored by title VII of the CivilRights Act of 1964, Executive Order11246, and related laws and regula-tions—all of which emphasize vol-untary action to achieve equal employ-ment opportunity.

As with most management objec-tives, a systematic plan based on soundorganizational analysis and problemidentification is crucial to the accom-plishment of affirmative action objec-tives. For this reason, the Councilurges all State and local governmentsto develop and implement results ori-ented affirmative action plans whichdeal with the problems so identified.

The following paragraphs are in-tended to assist State and local govern-ments by illustrating the kinds of anal-yses and activities which may be ap-propriate for a public employer’s vol-untary affirmative action plan. Thisstatement does not address remediesimposed after a finding of unlawful dis-crimination.

(2) Voluntary affirmative action toassure equal employment opportunityis appropriate at any stage of the em-ployment process. The first step in theconstruction of any affirmative actionplan should be an analysis of the em-ployer’s work force to determinewhether precentages of sex, race, orethnic groups in individual job classi-fications are substantially similar tothe precentages of those groups avail-able in the relevant job market whopossess the basic job-related qualifica-tions.

When substantial disparities arefound through such analyses, each ele-ment of the overall selection processshould be examined to determine whichelements operate to exclude persons onthe basis of sex, race, or ethnic group.


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Such elements include, but are not lim-ited to, recruitment, testing, rankingcertification, interview, recommenda-tions for selection, hiring, promotion,etc. The examination of each elementof the selection process should at aminimum include a determination ofits validity in predicting job perform-ance.

(3) When an employer has reason tobelieve that its selection procedureshave the exclusionary effect describedin paragraph 2 above, it should initiateaffirmative steps to remedy the situa-tion. Such steps, which in design andexecution may be race, color, sex, orethnic ‘‘conscious,’’ include, but arenot limited to, the following:

(a) The establishment of a long-termgoal, and short-range, interim goalsand timetables for the specific job clas-sifications, all of which should takeinto account the availability of basi-cally qualified persons in the relevantjob market;

(b) A recruitment program designedto attract qualified members of thegroup in question;

(c) A systematic effort to organizework and redesign jobs in ways thatprovide opportunities for persons lack-ing ‘‘journeyman’’ level knowledge orskills to enter and, with appropriatetraining, to progress in a career field;

(d) Revamping selection instrumentsor procedures which have not yet beenvalidated in order to reduce or elimi-nate exclusionary effects on particulargroups in particular job classifications;

(e) The initiation of measures de-signed to assure that members of theaffected group who are qualified to per-form the job are included within thepool of persons from which the select-ing official makes the selection;

(f) A systematic effort to provide ca-reer advancement training, both class-room and on-the-job, to employeeslocked into dead end jobs; and

(g) The establishment of a system forregularly monitoring the effectivenessof the particular affirmative actionprogram, and procedures for makingtimely adjustments in this programwhere effectiveness is not dem-onstrated.

(4) The goal of any affirmative actionplan should be achievement of genuineequal employment opportunity for all

qualified persons. Selection under suchplans should be based upon the abilityof the applicant(s) to do the work.Such plans should not require the se-lection of the unqualified, or theunneeded, nor should they require theselection of persons on the basis ofrace, color, sex, religion, or nationalorigin. Moreover, while the Council be-lieves that this statement should serveto assist State and local employers, aswell as Federal agencies, it recognizesthat affirmative action cannot beviewed as a standardized programwhich must be accomplished in thesame way at all times in all places.

Accordingly, the Council has not at-tempted to set forth here either theminimum or maximum voluntary stepsthat employers may take to deal withtheir respective situations. Rather, theCouncil recognizes that under applica-ble authorities, State and local em-ployers have flexibility to formulateaffirmative action plans that are bestsuited to their particular situations. Inthis manner, the Council believes thataffirmative action programs will bestserve the goal of equal employment op-portunity.

Respectfully submitted,

Harold R. Tyler, Jr.,Deputy Attorney General and Chairman

of the Equal Employment CoordinatingCouncil.

Michael H. Moskow,Under Secretary of Labor.

Ethel Bent Walsh,Acting Chairman, Equal Employment

Opportunity Commission.Robert E. Hampton,

Chairman, Civil Service Commission.Arthur E. Flemming,

Chairman, Commission on Civil Rights.

Because of its equal employment op-portunity responsibilities under theState and Local Government Fiscal As-sistance Act of 1972 (the revenue shar-ing act), the Department of Treasurywas invited to participate in the for-mulation of this policy statement; andit concurs and joins in the adoption ofthis policy statement.

Done this 26th day of August 1976.

Richard Albrecht,General Counsel,

Department of the Treasury.


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§ 1607.18 Citations.

The official title of these guidelinesis ‘‘Uniform Guidelines on EmployeeSelection Procedures (1978)’’. The Uni-form Guidelines on Employee SelectionProcedures (1978) are intended to estab-lish a uniform Federal position in thearea of prohibiting discrimination inemployment practices on grounds ofrace, color, religion, sex, or nationalorigin. These guidelines have beenadopted by the Equal Employment Op-portunity Commission, the Departmentof Labor, the Department of Justice,and the Civil Service Commission.

The official citation is:

Section ll, Uniform Guidelines on Em-ployee Selection Procedure (1978); 43 FR ll

(August 25, 1978).

The short form citation is:

Section ll, U.G.E.S.P. (1978); 43 FR ll

(August 25, 1978).

When the guidelines are cited in con-nection with the activities of one ofthe issuing agencies, a specific citationto the regulations of that agency canbe added at the end of the above cita-tion. The specific additional citationsare as follows:

Equal Employment Opportunity Commission29 CFR part 1607Department of LaborOffice of Federal Contract Compliance Pro-grams41 CFR part 60–3Department of Justice28 CFR 50.14Civil Service Commission5 CFR 300.103(c)

Normally when citing these guidelines,the section number immediately pre-ceding the title of the guidelines willbe from these guidelines series 1–18. Ifa section number from the codificationfor an individual agency is needed itcan also be added at the end of theagency citation. For example, section6A of these guidelines could be cited forEEOC as follows:

Section 6A, Uniform Guidelines on Em-ployee Selection Procedures (1978); 43 FRll, (August 25, 1978); 29 CFR part 1607, sec-tion 6A.

PART 1608—AFFIRMATIVE ACTIONAPPROPRIATE UNDER TITLE VII OFTHE CIVIL RIGHTS ACT OF 1964,AS AMENDED

Sec.1608.1 Statement of purpose.1608.2 Written interpretation and opinion.1608.3 Circumstances under which voluntary

affirmative action is appropriate.1608.4 Establishing affirmative action plans.1608.5 Affirmative action compliance pro-

grams under Executive Order No. 11246,as amended.

1608.6 Affirmative action plans which arepart of Commission conciliation or set-tlement agreements.

1608.7 Affirmative action plans or programsunder State or local law.

1608.8 Adherence to court order.1608.9 Reliance on directions of other gov-

ernment agencies.1608.10 Standard of review.1608.11 Limitations on the application of

these guidelines.1608.12 Equal employment opportunity

plans adopted pursuant to section 717 oftitle VII.

AUTHORITY: Sec. 713 the Civil Rights Act of1964, as amended, 42 U.S.C. 2000e–12, 78 Stat.265.


§ 1608.1 Statement of purpose.(a) Need for Guidelines. Since the pas-

sage of title VII in 1964, many employ-ers, labor organizations, and other per-sons subject to title VII have changedtheir employment practices and sys-tems to improve employment opportu-nities for minorities and women, andthis must continue. These changeshave been undertaken either on the ini-tiative of the employer, labor organiza-tion, or other person subject to titleVII, or as a result of conciliation ef-forts under title VII, action under Ex-ecutive Order 11246, as amended, orunder other Federal, State, or locallaws, or litigation. Many decisionstaken pursuant to affirmative actionplans or programs have been race, sex,or national origin conscious in order toachieve the Congressional purpose ofproviding equal employment oppor-tunity. Occasionally, these actionshave been challenged as inconsistentwith title VII, because they took intoaccount race, sex, or national origin.


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2 Congress has also addressed these condi-tions in other laws, including the Equal PayAct of 1963, Pub. L. 88–38, 77 Stat. 56 (1963), asamended; the other titles of the Civil RightsAct of 1964, Pub. L. 88–352, 78 Stat. 241 (1964),as amended; the Voting Rights Act of 1965,Pub. L. 89–110, 79 Stat. 437 (1965), as amended;the Fair Housing Act of 1968, Pub. L. 90–284,title VII, 82 Stat. 73, 81 (1968), as amended;the Educational Opportunity Act (title IX),Pub. L. 92–318, 86 Stat. 373 (1972), as amended;and the Equal Employment Opportunity Actof 1972, Pub. L. 92–261, 86 Stat. 103 (1972), asamended.

3 Equal Pay Act of 1963: S. Rep. No. 176,88th Cong., 1st Sess., 1–2 (1963). Civil RightsAct of 1964: H.R. Rep. No. 914, pt. 2, 88thCong., 1st Sess. (1971). Equal EmploymentOpportunity Act of 1972: H.R. Rep. No. 92–238,92d Cong., 1st Sess. (1971); S. Rep. No. 92–415,92d Cong., 1st Sess. (1971). See also, EqualEmployment Opportunity Commission,Equal Employment Opportunity Report—1975,Job Patterns for Women in Private Industry(1977); Equal Employment Opportunity Com-mission, Minorities and Women in State andLocal Government—1975 (1977); United StatesCommission on Civil Rights, Social Indicatorsof Equality for Minorities and Women (1978).

This is the so-called ‘‘reverse discrimi-nation’’ claim. In such a situation,both the affirmative action undertakento improve the conditions of minoritiesand women, and the objection to thataction, are based upon the principles oftitle VII. Any uncertainty as to themeaning and application of title VII insuch situations threatens the accom-plishment of the clear Congressionalintent to encourage voluntary affirma-tive action. The Commission believesthat by the enactment of title VII Con-gress did not intend to expose thosewho comply with the Act to chargesthat they are violating the very stat-ute they are seeking to implement.Such a result would immobilize or re-duce the efforts of many who wouldotherwise take action to improve theopportunities of minorities and womenwithout litigation, thus frustrating theCongressional intent to encourage vol-untary action and increasing the pros-pect of title VII litigation. The Com-mission believes that it is now nec-essary to clarify and harmonize theprinciples of title VII in order toachieve these Congressional objectivesand protect those employers, labor or-ganizations, and other persons whocomply with the principles of title VII.

(b) Purposes of title VII. Congress en-acted title VII in order to improve theeconomic and social conditions of mi-norities and women by providing equal-ity of opportunity in the work place.These conditions were part of a largerpattern of restriction, exclusion, dis-crimination, segregation, and inferiortreatment of minorities and women inmany areas of life.2 The LegislativeHistories of title VII, the Equal PayAct, and the Equal Employment Oppor-tunity Act of 1972 contain extensiveanalyses of the higher unemployment

rate, the lesser occupational status,and the consequent lower income levelsof minorities and women.3 The purposeof Executive Order No. 11246, as amend-ed, is similar to the purpose of titleVII. In response to these economic andsocial conditions, Congress, by passageof title VII, established a national pol-icy against discrimination in employ-ment on grounds of race, color, reli-gion, sex, and national origin. In addi-tion, Congress strongly encouraged em-ployers, labor organizations, and otherpersons subject to title VII (hereinafterreferred to as ‘‘persons,’’ see section701(a) of the Act) to act on a voluntarybasis to modify employment practicesand systems which constituted barriersto equal employment opportunity,without awaiting litigation or formalgovernment action. Conference, concil-iation, and persuasion were the pri-mary processes adopted by Congress in1964, and reaffirmed in 1972, to achievethese objectives, with enforcement ac-tion through the courts or agencies asa supporting procedure where vol-untary action did not take place andconciliation failed. See section 706 oftitle VII.

(c) Interpretation in furtherance of leg-islative purpose. The principle of non-discrimination in employment becauseof race, color, religion, sex, or nationalorigin, and the principle that each per-son subject to title VII should take vol-untary action to correct the effects ofpast discrimination and to preventpresent and future discriminationwithout awaiting litigation, are mutu-ally consistent and interdependentmethods of addressing social and eco-nomic conditions which precipitatedthe enactment of title VII. Voluntary


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4 Affirmative action often improves oppor-tunities for all members of the workforce, aswhere affirmative action includes the post-ing of notices of job vacancies. Similarly,the integration of previously segregated jobsmeans that all workers will be provided op-portunities to enter jobs previously re-stricted. See, e.g., EEOC v. AT&T, 419 F.Supp. 1022 (E.D.Pa. 1976), aff’d, 556 F. 2d 167(3rd Cir. 1977), cert. denied, 98 S.Ct. 3145 (1978).

affirmative action to improve opportu-nities for minorities and women mustbe encouraged and protected in orderto carry out the Congressional intentembodied in title VII.4 Affirmative ac-tion under these principles meansthose actions appropriate to overcomethe effects of past or present practices,policies, or other barriers to equal em-ployment opportunity. Such voluntaryaffirmative action cannot be measuredby the standard of whether it wouldhave been required had there been liti-gation, for this standard would under-mine the legislative purpose of first en-couraging voluntary action withoutlitigation. Rather, persons subject totitle VII must be allowed flexibility inmodifying employment systems andpractices to comport with the purposesof title VII. Correspondingly, title VIImust be construed to permit such vol-untary action, and those taking suchaction should be afforded the protec-tion against title VII liability whichthe Commission is authorized to pro-vide under section 713(b)(1).

(d) Guidelines interpret title VII andauthorize use of section 713(b)(1). TheseGuidelines describe the circumstancesin which persons subject to title VIImay take or agree upon action to im-prove employment opportunities of mi-norities and women, and describe thekinds of actions they may take whichare consistent with title VII. TheseGuidelines constitute the Commis-sion’s interpretation of title VII andwill be applied in the processing ofclaims of discrimination which involvevoluntary affirmative action plans andprograms. In addition, these Guidelinesstate the circumstances under whichthe Commission will recognize that aperson subject to title VII is entitled toassert that actions were taken ‘‘ingood faith, in conformity with, and inreliance upon a written interpretationor opinion of the Commission,’’ includ-

ing reliance upon the interpretationand opinion contained in these Guide-lines, and thereby invoke the protec-tion of section 713(b)(1) of title VII.

(e) Review of existing plans rec-ommended. Only affirmative actionplans or programs adopted in goodfaith, in conformity with, and in reli-ance upon these Guidelines can receivethe full protection of these Guidelines,including the section 713(b)(1) defense.See § 1608.10. Therefore, persons subjectto title VII who have existing affirma-tive action plans, programs, or agree-ments are encouraged to review themin light of these Guidelines, to modifythem to the extent necessary to com-ply with these Guidelines, and toreadopt or reaffirm them.

§ 1608.2 Written interpretation andopinion.

These Guidelines constitute ‘‘a writ-ten interpretation and opinion’’ of theEqual Employment Opportunity Com-mission as that term is used in section713(b)(1) of title VII of the Civil RightsAct of 1964, as amended, 42 U.S.C. 2000e–12(b)(1), and § 1601.33 of the ProceduralRegulations of the Equal EmploymentOpportunity Commission (29 CFR1601.30; 42 FR 55,394 (October 14, 1977)).Section 713(b)(1) provides:

In any action or proceeding based on anyalleged unlawful employment practice, noperson shall be subject to any liability orpunishment for or on account of (1) the com-mission by such person of an unlawful em-ployment practice if he pleads and provesthat the act or omission complained of wasin good faith, in conformity with, and in reli-ance on any written interpretation or opin-ion of the Commission * * *. Such a defense,if established, shall be a bar to the action orproceeding, notwithstanding that * * * aftersuch act or omission, such interpretation oropinion is modified or rescinded or is deter-mined by judicial authority to be invalid orof no legal effect * * *.

The applicability of these Guidelines issubject to the limitations on use setforth in § 1608.11.

§ 1608.3 Circumstances under whichvoluntary affirmative action is ap-propriate.

(a) Adverse effect. Title VII prohibitspractices, procedures, or policies whichhave an adverse impact unless they are


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justified by business necessity. In addi-tion, title VII proscribes practiceswhich ‘‘tend to deprive’’ persons ofequal employment opportunities. Em-ployers, labor organizations and otherpersons subject to title VII may takeaffirmative action based on an analysiswhich reveals facts constituting actualor potential adverse impact, if such ad-verse impact is likely to result fromexisting or contemplated practices.

(b) Effects of prior discriminatory prac-tices. Employers, labor organizations,or other persons subject to title VIImay also take affirmative action tocorrect the effects of prior discrimina-tory practices. The effects of prior dis-criminatory practices can be initiallyidentified by a comparison between theemployer’s work force, or a part there-of, and an appropriate segment of thelabor force.

(c) Limited labor pool. Because of his-toric restrictions by employers, labororganizations, and others, there arecircumstances in which the availablepool, particularly of qualified minori-ties and women, for employment orpromotional opportunities is artifi-cially limited. Employers, labor orga-nizations, and other persons subject totitle VII may, and are encouraged totake affirmative action in such cir-cumstances, including, but not limitedto, the following:

(1) Training plans and programs, in-cluding on-the-job training, which em-phasize providing minorities andwomen with the opportunity, skill, andexpericence necessary to perform thefunctions of skilled trades, crafts, orprofessions;

(2) Extensive and focused recruitingactivity;

(3) Elimination of the adverse impactcaused by unvalidated selection cri-teria (see sections 3 and 6, UniformGuidelines on Employee Selection Pro-cedures (1978), 43 FR 30290; 38297; 38299(August 25, 1978));

(4) Modification through collectivebargaining where a labor organizationrepresents employees, or unilaterallywhere one does not, of promotion andlayoff procedures.

§ 1608.4 Establishing affirmative ac-tion plans.

An affirmative action plan or pro-gram under this section shall containthree elements: a reasonable self anal-ysis; a reasonable basis for concludingaction is appropriate; and reasonableaction.

(a) Reasonable self analysis. The objec-tive of a self analysis is to determinewhether employment practices do, ortend to, exclude, disadvantage, re-strict, or result in adverse impact ordisparate treatment of previously ex-cluded or restricted groups or leave un-corrected the effects of prior discrimi-nation, and if so, to attempt to deter-mine why. There is no mandatorymethod of conducting a self analysis.The employer may utilize techniquesused in order to comply with ExecutiveOrder 11246, as amended, and its imple-menting regulations, including 41 CFRpart 60–2 (known as Revised Order 4), orrelated orders issued by the Office ofFederal Contract Compliance Pro-grams or its authorized agencies, ormay use an analysis similar to that re-quired under other Federal, State, orlocal laws or regulations prohibitingemployment discrimination. In con-ducting a self analysis, the employer,labor organization, or other personsubject to title VII should be concernedwith the effect on its employmentpractices of circumstances which maybe the result of discrimination by otherpersons or institutions. See Griggs v.Duke Power Co., 401 U.S. 424 (1971).

(b) Reasonable basis. If the self anal-ysis shows that one or more employ-ment practices:

(1) Have or tend to have an adverseeffect on employment opportunities ofmembers of previously excludedgroups, or groups whose employmentor promotional opportunities have beenartificially limited,

(2) Leave uncorrected the effects ofprior discrimination, or

(3) Result in disparate treatment, theperson making the self analysis has areasonable basis for concluding thataction is appropriate.It is not necessary that the self anal-ysis establish a violation of title VII.This reasonable basis exists without


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any admission or formal finding thatthe person has violated title VII, andwithout regard to whether there existsarguable defenses to a title VII action.

(c) Reasonable action. The actiontaken pursuant to an affirmative ac-tion plan or program must be reason-able in relation to the problems dis-closed by the self analysis. Such rea-sonable action may include goals andtimetables or other appropriate em-ployment tools which recognize therace, sex, or national origin of appli-cants or employees. It may include theadoption of practices which will elimi-nate the actual or potential adverseimpact, disparate treatment, or effector past discrimination by providing op-portunities for members of groupswhich have been excluded, regardless ofwhether the persons benefited werethemselves the victims of prior policiesor procedures which produced the ad-verse impact or disparate treatment orwhich perpetuated past discrimination.

(1) Illustrations of appropriate affirma-tive action. Affirmative action plans orprograms may include, but are not lim-ited to, those described in the EqualEmployment Opportunity CoordinatingCouncil ‘‘Policy Statement on Affirma-tive Action Programs for State andLocal Government Agencies,’’ 41 FR38814 (September 13, 1976), reaffirmedand extended to all persons subject toFederal equal employment opportunitylaws and orders, in the Uniform Guide-lines on Employee Selection Proce-dures (1978) 43 FR 38290; 38300 (Aug. 25,1978). That statement reads, in relevantpart:

When an employer has reason to believethat its selection procedures have * * * exclu-sionary effect * * *, it should initiate affirm-ative steps to remedy the situation. Suchsteps, which in design and execution may berace, color, sex or ethnic ‘conscious,’ include,but are not limited to, the following:

The establishment of a long term goal andshort range, interim goals and timetables forthe specific job classifications, all of whichshould take into account the availability ofbasically qualified persons in the relevantjob market;

A recruitment program designed to attractqualified members of the group in question;

A systematic effort to organize work andre-design jobs in ways that provide opportu-nities for persons lacking ‘journeyman’ levelknowledge or skills to enter and, with appro-priate training, to progress in a career field;

Revamping selection instruments or proce-dures which have not yet been validated inorder to reduce or eliminate exclusionary ef-fects on particular groups in particular jobclassifications;

The initiation of measures designed to as-sure that members of the affected group whoare qualified to perform the job are includedwithin the pool of persons from which the se-lecting official makes the selection;

A systematic effort to provide career ad-vancement training, both classroom and on-the-job, to employees locked into dead endjobs; and

The establishment of a system for regu-larly monitoring the effectiveness of the par-ticular affirmative action program, and pro-cedures for making timely adjustments inthis program where effectiveness is not dem-onstrated.

(2) Standards of reasonable action. Inconsidering the reasonableness of aparticular affirmative action plan orprogram, the Commission will gen-erally apply the following standards:

(i) The plan should be tailored tosolve the problems which were identi-fied in the self analysis, see § 1608.4(a),supra, and to ensure that employmentsystems operate fairly in the future,while avoiding unnecessary restric-tions on opportunities for the work-force as a whole. The race, sex, and na-tional origin conscious provisions ofthe plan or program should be main-tained only so long as is necessary toachieve these objectives.

(ii) Goals and timetables should bereasonably related to such consider-ations as the effects of past discrimina-tion, the need for prompt eliminationof adverse impact or disparate treat-ment, the availability of basicallyqualified or qualifiable applicants, andthe number of employment opportuni-ties expected to be available.

(d) Written or unwritten plans or pro-grams—(1) Written plans required for713(b)(1) protection. The protection ofsection 713(b) of title VII will be ac-corded by the Commission to a personsubject to title VII only if the selfanalysis and the affirmative actionplan are dated and in writing, and theplan otherwise meets the requirementsof section 713(b)(1). The Commissionwill not require that there be any writ-ten statement concluding that a titleVII violation exists.

(2) Reasonable cause determinations.Where an affirmative action plan or


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program is alleged to violate title VII,or is asserted as a defense to a chargeof discrimination, the Commission willinvestigate the charge in accordancewith its usual procedures and pursuantto the standards set forth in theseGuidelines, whether or not the analysisand plan are in writing. However, theabsence of a written self analysis and awritten affirmative action plan or pro-gram may make it more difficult toprovide credible evidence that theanalysis was conducted, and that ac-tion was taken pursuant to a plan orprogram based on the analysis. There-fore, the Commission recommends thatsuch analyses and plans be in writing.

§ 1608.5 Affirmative action complianceprograms under Executive OrderNo. 11246, as amended.

Under title VII, affirmative actioncompliance programs adopted pursuantto Executive Order 11246, as amended,and its implementing regulations, in-cluding 41 CFR part 60–2 (Revised Order4), will be considered by the Commis-sion in light of the similar purposes oftitle VII and the Executive Order, andthe Commission’s responsibility underExecutive Order 12067 to avoid poten-tial conflict among Federal equal em-ployment opportunity programs. Ac-cordingly, the Commission will processtitle VII complaints involving such af-firmative action compliance programsunder this section.

(a) Procedures for review of AffirmativeAction Compliance Programs. If adher-ence to an affirmative action compli-ance program adopted pursuant to Ex-ecutive Order 11246, as amended, andits implementing regulations, is thebasis of a complaint filed under titleVII, or is alleged to be the justificationfor an action which is challenged undertitle VII, the Commission will inves-tigate to determine whether the af-firmative action compliance programwas adopted by a person subject to theOrder and pursuant to the Order, andwhether adherence to the program wasthe basis of the complaint or the jus-tification.

(1) Programs previously approved. Ifthe Commission makes the determina-tion described in paragraph (a) of thissection and also finds that the affirma-tive action program has been approved

by an appropriate official of the De-partment of Labor or its authorizedagencies, or is part of a conciliation orsettlement agreement or an order of anadministrative agency, whether en-tered by consent or after contested pro-ceedings brought to enforce ExecutiveOrder 11246, as amended, the Commis-sion will issue a determination of noreasonable cause.

(2) Program not previously approved. Ifthe Commission makes the determina-tion described in paragraph (a), of thissection but the program has not beenapproved by an appropriate official ofthe Department of Labor or its author-ized agencies, the Commission will: (i)Follow the procedure in § 1608.10(a) andreview the program, or (ii) refer theplan to the Department of Labor for adetermination of whether it is to be ap-proved under Executive Order 11246, asamended, and its implementing regula-tions. If, the Commission finds that theprogram does conform to these Guide-lines, or the Department of Labor ap-proves the affirmative action compli-ance program, the Commission willissue a determination of no reasonablecause under § 1608.10(a).

(b) Reliance on these guidelines. In ad-dition, if the affirmative action com-pliance program has been adopted ingood faith reliance on these Guidelines,the provisions of section 713(b)(1) oftitle VII and of § 1608.10(b), of this part,may be asserted by the contractor.

§ 1608.6 Affirmative action planswhich are part of Commission con-ciliation or settlement agreements.

(a) Procedures for review of plans. Ifadherence to a conciliation or settle-ment agreement executed under titleVII and approved by a responsible offi-cial of the EEOC is the basis of a com-plaint filed under title VII, or is al-leged to be the justification for an ac-tion challenged under title VII, theCommission will investigate to deter-mine:

(1) Whether the conciliation agree-ment or settlement agreement was ap-proved by a responsible official of theEEOC, and

(2) Whether adherence to the agree-ment was the basis for the complaintor justification.


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If the Commission so finds, it willmake a determination of no reasonablecause under § 1608.10(a) and will advisethe respondent of its right under sec-tion 713(b)(1) of title VII to rely on theconciliation agreement.

(b) Reliance on these guidelines. In ad-dition, if the affirmative action plan orprogram has been adopted in good faithreliance on these Guidelines, the provi-sions of section 713(b)(1) of title VII andof § 1608.10(b), of this part, may be as-serted by the respondent.

§ 1608.7 Affirmative action plans orprograms under State or local law.

Affirmative action plans or programsexecuted by agreement with State orlocal government agencies, or by orderof State or local government agencies,whether entered by consent or aftercontested proceedings, under statutesor ordinances described in title VII,will be reviewed by the Commission inlight of the similar purposes of titleVII and such statutes and ordinances.Accordingly, the Commission will proc-ess title VII complaints involving suchaffirmative action plans or programsunder this section.

(a) Procedures for review of plans orprograms. If adherence to an affirma-tive action plan or program executedpursuant to a State statute or local or-dinance described in title VII is thebasis of a complaint filed under titleVII or is alleged to be the justificationfor an action which is challenged underTitle VII, the Commission will inves-tigate to determine:

(1) Whether the affirmative actionplan or program was executed by anemployer, labor organization, or personsubject to the statute or ordinance,

(2) Whether the agreement was ap-proved by an appropriate official of theState or local government, and

(3) Whether adherence to the plan orprogram was the basis of the complaintor justification.

(1) Previously approved plans or pro-grams. If the Commission finds thefacts described in paragraph (a) of thissection, the Commission will, in ac-cordance with the ‘‘substantialweight’’ provisions of section 706 of theAct, find no reasonable cause where ap-propriate.

(2) Plans or programs not previously ap-proved. If the plan or program has notbeen approved by an appropriate offi-cial of the State or local government,the Commission will follow the proce-dure of § 1608.10 of these Guidelines. Ifthe Commission finds that the plan orprogram does conform to these Guide-lines, the Commission will make a de-termination of no reasonable cause asset forth in § 1608.10(a).

(b) Reliance on these guidelines. In ad-dition, if the affirmative action plan orprogram has been adopted in good faithreliance on these Guidelines, the provi-sions of section 713(b)(1) and § 1608.10(b),of this part, may be asserted by the re-spondent.

§ 1608.8 Adherence to court order.Parties are entitled to rely on orders

of courts of competent jurisdiction. Ifadherence to an Order of a UnitedStates District Court or other court ofcompetent jurisdiction, whether en-tered by consent or after contested liti-gation, in a case brought to enforce aFederal, State, or local equal employ-ment opportunity law or regulation, isthe basis of a complaint filed undertitle VII or is alleged to be the jus-tification for an action which is chal-lenged under title VII, the Commissionwill investigate to determine:

(a) Whether such an Order exists and(b) Whether adherence to the affirm-

ative action plan which is part of theOrder was the basis of the complaint orjustification.If the Commission so finds, it will issuea determination of no reasonablecause. The Commission interprets titleVII to mean that actions taken pursu-ant to the direction of a Court Ordercannot give rise to liability under titleVII.

§ 1608.9 Reliance on directions ofother government agencies.

When a charge challenges an affirma-tive action plan or program, or whensuch a plan or program is raised as jus-tification for an employment decision,and when the plan or program was de-veloped pursuant to the requirementsof a Federal or State law or regulationwhich in part seeks to ensure equal em-ployment opportunity, the Commissionwill process the charge in accordance


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with § 1608.10(a). Other agencies withequal employment opportunity respon-sibilities may apply the principles ofthese Guidelines in the exercise oftheir authority.

§ 1608.10 Standard of review.(a) Affirmative action plans or programs

not specifically relying on these guide-lines. If, during the investigation of acharge of discrimination filed with theCommission, a respondent asserts thatthe action complained of was takenpursuant to an in accordance with aplan or program of the type describedin these Guidelines, the Commissionwill determine whether the assertion istrue, and if so, whether such a plan orprogram conforms to the requirementsof these guidelines. If the Commissionso finds, it will issue a determinationof no reasonable cause and, where ap-propriate, will state that the deter-mination constitutes a written inter-pretation or opinion of the Commissionunder section 713(b)(1). This interpreta-tion may be relied upon by the re-spondent and asserted as a defense inthe event that new charges involvingsimilar facts and circumstances arethereafter filed against the respondent,which are based on actions taken pur-suant to the affirmative action plan orprogram. If the Commission does not sofind, it will proceed with the investiga-tion in the usual manner.

(b) Reliance on these guidelines. If a re-spondent asserts that the action takenwas pursuant to and in accordancewith a plan or program which wasadopted or implemented in good faith,in conformity with, and in relianceupon these Guidelines, and the selfanalysis and plan are in writing, theCommission will determine whethersuch assertion is true. If the Commis-sion so finds, it will so state in the de-termination of no reasonable cause andwill advise the respondent that:

(1) The Commission has found thatthe respondent is entitled to the pro-tection of section 713(b)(1) of title VII;and

(2) That the determination is itselfan additional written interpretation oropinion of the Commission pursuant tosection 713(b)(1).

§ 1608.11 Limitations on the applica-tion of these guidelines.

(a) No determination of adequacy ofplan or program. These Guidelines areapplicable only with respect to the cir-cumstances described in § 1608.1(d), ofthis part. They do not apply to, and thesection 713(b)(1) defense is not avail-able for the purpose of, determiningthe adequacy of an affirmative actionplan or program to eliminate discrimi-nation. Whether an employer whotakes such affirmative action has doneenough to remedy such discriminationwill remain a question of fact in eachcase.

(b) Guidelines inapplicable in absence ofaffirmative action. Where an affirmativeaction plan or program does not exist,or where the plan or program is not thebasis of the action complained of, theseGuidelines are inapplicable.

(c) Currency of plan or program. Undersection 713(b)(1), persons may rely onthe plan or program only during thetime when it is current. Currency is re-lated to such factors as progress in cor-recting the conditions disclosed by theself analysis. The currency of the planor program is a question of fact to bedetermined on a case by case basis.Programs developed under ExecutiveOrder 11246, as amended, will be deemedcurrent in accordance with Departmentof Labor regulations at 41 CFR chapter60, or successor orders or regulations.

§ 1608.12 Equal employment oppor-tunity plans adopted pursuant tosection 717 of title VII.

If adherence to an Equal Employ-ment Opportunity Plan, adopted pursu-ant to section 717 of title VII, and ap-proved by an appropriate official of theU.S. Civil Service Commission, is thebasis of a complaint filed under titleVII, or is alleged to be the justificationfor an action under title VII, theseGuidelines will apply in a manner simi-lar to that set forth in § 1608.5. TheCommission will issue regulations set-ting forth the procedure for processingsuch complaints.


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PART 1610—AVAILABILITY OFRECORDS

Subpart A—Production or Disclosure Under5 U.S.C. 552

Sec.1610.1 Definitions.1610.2 Statutory requirements.1610.3 Purpose and scope.1610.4 Public reference facilities and cur-

rent index.1610.5 Request for records.1610.6 Records of other agencies.1610.7 Where to make request; form.1610.8 Authority to determine.1610.9 Responses: timing.1610.10 Responses: form and content.1610.11 Appeals to the Legal Counsel from

initial denials.1610.13 Maintenance of files.1610.14 Waiver of user charges.1610.15 Schedule of fees and method of pay-

ment for services rendered.1610.16 Payment of fees.1610.17 Exemptions.1610.18 Information to be disclosed.1610.19 Predisclosure notification proce-

dures for confidential commercial infor-mation.

1610.20 Deletion of exempted matters.1610.21 Annual report.

Subpart B—Production in Response to Sub-penas or Demands of Courts or OtherAuthorities

1610.30 Purpose and scope.1610.32 Production prohibited unless ap-

proved by the Legal Counsel.1610.34 Procedure in the event of a demand

for production or disclosure.1610.36 Procedure in the event of an adverse

ruling.

AUTHORITY: 42 U.S.C. 2000e–12(a), 5 U.S.C.552 as amended by Pub. L. 93–502, Pub. L. 99–570, and Pub. L. 105–231; for § 1610.15, non-search or copy portions are issued under 31U.S.C. 9701.

Subpart A—Production orDisclosure Under 5 U.S.C. 552

§ 1610.1 Definitions.(a) Title VII refers to title VII of the

Civil Rights Act of 1964, as amended byPublic Law 92–261, 42 U.S.C. (Supp. II)2000e et seq.

(b) Commission refers to the EqualEmployment Opportunity Commission.

(c) Freedom of Information Act refersto 5 U.S.C. 552 (Pub. L. 90–23 as amend-ed by Pub. L. 93–502).

(d) Commercial use refers to a use orpurpose by the requester of informa-tion for the information that furthersthe requester’s commercial, trade orprofit interests. Requests for chargefiles by profit-making entities, otherthan educational and noncommercialscientific institutions and representa-tives of the new media, shall be consid-ered for commercial use unless the re-quest demonstrates a noncommercialuse.

[40 FR 8171, Feb. 26, 1975, as amended at 52FR 13830, Apr. 27, 1987]

§ 1610.2 Statutory requirements.

5 U.S.C. 552(a)(3) requires each Agen-cy, upon request for reasonably de-scribed records made in accordancewith published rules stating the time,place, fees, if any, and procedure to befollowed, to make such records prompt-ly available to any person. 5 U.S.C.552(b) exempts specified classes ofrecords from the public access require-ments of 5 U.S.C. 552(a) and permitsthem to be withheld.

[40 FR 8171, Feb. 26, 1975]

§ 1610.3 Purpose and scope.

This subpart contains the regulationsof the Equal Employment OpportunityCommission implementing 5 U.S.C. 552.The regulations of this subpart provideinformation concerning the proceduresby which records may be obtained fromall organizational units within theCommission. Official records of theCommission made available pursuantto the requirements of 5 U.S.C. 552shall be furnished to members of thepublic only as prescribed by this sub-part. Officers and employees of theCommission may continue to furnishto the public, informally and withoutcompliance with the procedures pre-scribed herein, information and recordswhich prior to the enactment of 5U.S.C. 552 were furnished customarilyin the regular performance of their du-ties. To the extent that it is not pro-hibited by other laws, the Commissionalso will make available records whichit is authorized to withhold under 5U.S.C. 552 whenever it determines thatsuch disclosure is in the public inter-est.


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§ 1610.4 Public reference facilities andcurrent index.

(a) The Commission will maintain ina public reading area located in theCommission’s library at 1801 L StreetNW., Washington DC 20507, the mate-rials which are required by 5 U.S.C.552(a)(2) and 552(a)(5) to be made avail-able for public inspection and copying.Any such materials created on or afterNovember 1, 1996 may also be accessedthrough the Internet at EEOC’s WorldWide Web site at http:www.eeoc.gov.The Commission will maintain andmake available for public inspectionand copying in this public reading areaa current index providing identifyinginformation for the public as to anymatter which is issued, adopted, or pro-mulgated after July 4, 1967, and whichis required to be indexed by 5 U.S.C.552(a)(2). The Commission in its discre-tion may, however, include preceden-tial materials issued, adopted, or pro-mulgated prior to July 4, 1967. TheCommission will also maintain on filein this public reading area all materialpublished by the Commission in theFEDERAL REGISTER and currently in ef-fect.

(b) Each of the Commission’s field of-fices listed in paragraph (c) of this sec-tion, including the District Offices, theWashington Field Office, the Area Of-fices and the Local Offices, shall main-tain and make available for public in-spection and copying a copy of:

(1) The Commission’s notices and reg-ulatory amendments which are not yetor have never been published in theCode of Federal Regulations,

(2) The Commission’s annual reports,(3) The Commission’s Compliance

Manual,(4) Blank forms relating to the Com-

mission’s procedures as they affect thepublic,

(5) The Commission’s Orders (agencydirectives), and

(6) ‘‘CCH Equal Employment Oppor-tunity Commission Decisions’’ (1973)and Employment Practices Guide (vol.2), published by Commerce ClearingHouse, Inc.

(c) The Commission’s field officesare:

Albuquerque Area Office (Phoenix District),505 Marquette, NW, Suite 900, Albuquerque,NM 87102.

Atlanta District Office, 100 Alabama Street,SW, Suite 4R30, Atlanta, GA 30303.

Baltimore District Office, City CrescentBuilding, 10 South Howard Street, 3rdFloor, Baltimore, MD 21201.

Birmingham District Office, 1900 3rd Avenue,North, Suite 101, Birmingham, AL 35203–2397.

Boston Area Office (New York District), 1Congress Street, 10th Floor, Room 1001,Boston, MA 02114.

Buffalo Local Office (New York District), 6Fountain Plaza, Suite 350, Buffalo, NY14202.

Charlotte District Office, 129 West TradeStreet, Suite 400, Charlotte, NC 28202.

Chicago District Office, 500 West MadisonStreet, Suite 2800, Chicago, IL 60661.

Cincinnati Area Office (Cleveland District),525 Vine Street, Suite 810, Cincinnati, OH45202–3122.

Cleveland District Office, 1660 West SecondStreet, Suite 850, Cleveland, OH 44113–1454.

Dallas District Office, 207 S. Houston Street,3rd Floor, Dallas, TX 75202–4726.

Denver District Office, 303 E. 17th Avenue,Suite 510, Denver, CO 80203.

Detroit District Office, 477 Michigan Avenue,Room 865, Detroit, MI 48226–9704.

El Paso Area Office (San Antonio District),The Commons, Building C, Suite 100, 4171N. Mesa Street, El Paso, TX 79902.

Fresno Local Office (San Francisco District),1265 West Shaw Avenue, Suite 103, Fresno,CA 93711.

Greensboro Local Office (Charlotte District),801 Summit Avenue, Greensboro, NC 27405–7813.

Greenville Local Office (Charlotte District),Wachovia Building, 15 South Main Street,Suite 530, Greenville, SC 29601.

Honolulu Local Office (San Francisco Dis-trict), 300 Ala Moana Boulevard, Room7123–A, PO Box 50082, Honolulu, HI 96850–0051.

Houston District Office, 1919 Smith Street,7th Floor, Houston, TX 77002.

Indianapolis District Office, 101 West OhioStreet, Suite 1900, Indianapolis, IN 46204–4203.

Jackson Area Office (Birmingham District),207 West Amite Street, Jackson, MS 39201.

Kansas City Area Office (St. Louis District),400 State Avenue, Suite 905, Kansas City,KS 66101.

Little Rock Area Office (Memphis District),425 West Capitol Avenue, Suite 625, LittleRock, AR 72201.

Los Angeles District Office, 255 E. TempleStreet, 4th Floor, Los Angeles, CA 90012.

Louisville Area Office (Indianapolis Dis-trict), 600 Dr. Martin Luther King Jr.Place, Suite 268, Louisville, KY 40202.

Memphis District Office, 1407 Union Avenue,Suite 621, Memphis, TN 38104.


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Miami District Office, One Biscayne Tower, 2South Biscayne Boulevard, Suite 2700,Miami, FL 33131.

Milwaukee District Office, 310 West Wis-consin Avenue, Suite 800, Milwaukee, WI53203–2292.

Minneapolis Area Office (Milwaukee Dis-trict), 330 South Second Avenue, Suite 430,Minneapolis, MN 55402–2224.

Nashville Area Office (Memphis District), 50Vantage Way, Suite 202, Nashville, TN37228-9940.

Newark Area Office (Philadelphia District), 1Newark Center, 21st Floor, Newark, NJ07102–5233.

New Orleans District Office, 701 Loyola Ave-nue, Suite 600, New Orleans, LA 70113–9936.

New York District Office, 7 World Trade Cen-ter, 18th Floor, New York, NY 10048–1102.

Norfolk Area Office (Baltimore District),World Trade Center, 101 South MainStreet, Suite 4300, Norfolk, VA 23510.

Oakland Local Office (San Francisco Dis-trict), 1301 Clay Street, Suite 1170–N, Oak-land, CA 94612–5217.

Oklahoma Area Office (Dallas District), 210Park Avenue, Suite 1350, Oklahoma City,OK 73102.

Philadelphia District Office, 21 South 5thStreet, Suite 400, Philadelphia, PA 19106–2515.

Phoenix District Office, 3300 N. Central Ave-nue, Suite 690, Phoenix, AZ 85012–2504.

Pittsburgh Area Office (Philadelphia Dis-trict), 1001 Liberty Avenue, Suite 300,Pittsburgh, PA 15222–4187.

Raleigh Area Office (Charlotte District), 1309Annapolis Drive, Raleigh, NC 27608–2129.

Richmond Area Office (Baltimore District),3600 West Broad Street, Room 229, Rich-mond, VA 23230.

San Antonio District Office, 5410 Fredericks-burg Road, Suite 200, San Antonio, TX78229–3555.

San Diego Area Office (Los Angeles District),401 B Street, Suite 1550, San Diego, CA92101.

San Francisco District Office, 901 MarketStreet, Suite 500, San Francisco, CA 94103.

San Jose Local Office (San Francisco Dis-trict), 96 North 3rd Street, Suite 200, SanJose, CA 95112.

Savannah Local Office (Atlanta District), 410Mall Boulevard, Suite G, Savannah, GA31406–4821.

Seattle District Office, Federal Office Build-ing, 909 First Avenue, Suite 400, Seattle,WA 98104–1061.

St. Louis District Office, Robert A. YoungBuilding, 1222 Spruce Street, Room 8.100,St. Louis, MO 63103.

Tampa Area Office (Miami District), 501 EastPolk Street, Room 1020, Tampa, FL 33602.

Washington Field Office (Baltimore Dis-trict), 1400 L Street, NW, Suite 200, Wash-ington, DC 20005.

[40 FR 8171, Feb. 26, 1975, as amended at 45FR 40603, June 16, 1980; 49 FR 13024, Apr. 2,1984; 54 FR 32061, Aug. 4, 1989; 56 FR 29578,June 28, 1991; 63 FR 1341, Jan. 9, 1998]

§ 1610.5 Request for records.(a) A written request for inspection

or copying of a record of the Commis-sion may be presented in person or bymail to the Commission employee des-ignated in § 1610.7. Requests must bepresented during business hours on anyworkday.

(b) Each request must contain infor-mation which reasonably describes therecords sought and, when known,should contain a name, date, subjectmatter and location for the record re-quested in order to permit the recordto be promptly located.

(c) Where a request is not consideredreasonably descriptive or requires theproduction of voluminous records, ornecessitates the utilization of a consid-erable number of work hours to thedetriment of the business of the Com-mission, the Commission may requirethe person making the request or suchperson’s agent to confer with a Com-mission representative in order to at-tempt to verify the scope of the requestand, if possible, narrow such request.

[40 FR 8171, Feb. 26, 1975, as amended at 56FR 29578, June 28, 1991; 63 FR 1341, Jan. 9,1998]

§ 1610.6 Records of other agencies.Requests for records that originated

in another Agency and are in the cus-tody of the Commission will be coordi-nated in appropriate circumstanceswith that Agency and the person sub-mitting the request shall be so noti-fied. The decision made by that Agencywith respect to such records will behonored by the Commission.

[45 FR 40604, June 16, 1980]

§ 1610.7 Where to make request; form.(a) Requests for the following types

of records shall be submitted to the re-gional attorney for the pertinent dis-trict, area or local office, at the dis-trict office address listed in § 1610.4(c)or, in the case of the Washington Field


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Office, shall be submitted to the re-gional attorney in the Baltimore Dis-trict Office at the address listed in§ 1610.4(c):

(1) Information about current orformer employees of a field office;

(2) Existing non-confidential statis-tical data related to the case proc-essing of a field office;

(3) Agreements between the Commis-sion and State or local fair employ-ment agencies operating within the ju-risdiction of a field office; or

(4) Materials in field office investiga-tive files related to charges under:Title VII of the Civil Rights Act of 1964(42 U.S.C. 2000e et seq); the Equal PayAct (29 U.S.C. 206(d)); the Age Discrimi-nation in Employment Act of 1967 (29U.S.C. 621 et seq.); or, the Americanswith Disabilities Act of 1990 (42 U.S.C.12101 et seq.).

(b) A request for any record whichdoes not fall within the ambit of sub-paragraph (a) of this section, or a re-quest for any record the location ofwhich is unknown to the person mak-ing the request, shall be submitted inwriting to the Legal Counsel, EqualEmployment Opportunity Commission,1801 L Street NW., Washington DC20507.

(c) A request must be clearly andprominently defined as a request for in-formation under the Freedom of Infor-mation Act. If submitted by mail, orotherwise submitted under any cover,the envelope or other cover must besimilarly identified.

(d) When a request is one which bynature should properly be directed tothe Legal Counsel, or a regional attor-ney, such request shall not be deemedto have been received by the Commis-sion until the time it is actually re-ceived by the appropriate official.

(e) Any Commission official who re-ceives a written Freedom of Informa-tion request shall promptly forward itto the appropriate official specified inparagraph (a) or (b) of this section. AnyCommission official who receives anoral request under the Freedom of In-formation Act shall inform the otherperson making the request that it must

be in writing and also inform such per-son of the provisions of this subpart.

[45 FR 40604, June 16, 1980, as amended at 47FR 46275, Oct. 18, 1982; 52 FR 4902, Feb. 18,1987; 54 FR 32062, Aug. 4, 1989; 56 FR 29578,June 28, 1991]

§ 1610.8 Authority to determine.The Legal Counsel’s designee, the re-

gional attorney, or the regional attor-ney’s designee, when receiving a re-quest pursuant to these regulations,shall grant or deny each such request.That decision shall be final, subjectonly to administrative review as pro-vided in § 1610.11 of this subpart.

[63 FR 1341, Jan. 9, 1998]

§ 1610.9 Responses: timing.(a) The Legal Counsel’s designee, the

regional attorney, or the regional at-torney’s designee shall either grant ordeny a request for records within 20working days after receipt of the re-quest unless additional time is requiredfor one of the following reasons:

(1) It is necessary to search for andcollect the requested records from fieldfacilities or other establishments thatare separate from the office processingthe request;

(2) It is necessary to search for, col-lect, and appropriately examine a volu-minous amount of separate and dis-tinct records which are demanded in asingle request; or

(3) If it is necessary to consult withanother agency having a substantialinterest in the determination of the re-quest or among two or more compo-nents of the agency having substantialsubject-matter interest therein.

(b) When additional time is requiredfor one of the reasons stated in para-graph (a) of this section the LegalCounsel’s designee, the regional attor-ney, or the regional attorney’s des-ignee, shall acknowledge receipt of therequest within the 20 day period and in-clude a brief notation of the reason forthe delay and an indication of the dateon which it is expected that a deter-mination as to disclosure will be forth-coming. If more than 10 working addi-tional days are needed, the requestershall be notified and provided an oppor-tunity to limit the scope of the request


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or to arrange for an alternate timeframe for processing the request.

(c)(1) Requests for records may be eli-gible for expedited processing if the re-quester demonstrates a compellingneed. For the purposes of this section,compelling need means:

(i) that the failure to obtain therecords on an expedited basis could rea-sonably be expected to pose an immi-nent threat to the life or physical safe-ty of an individual; or

(ii) that the requester is a person pri-marily engaged in disseminating infor-mation and there is an urgency to in-form the public concerning actual oralleged Federal government activity.

(2) A requester who seeks expeditedprocessing must submit a statement,certified to be true and correct to thebest of that person’s knowledge and be-lief, explaining in detail the basis forrequesting expedited processing. A de-termination on the request for expe-dited processing will be made and therequester notified within 10 workingdays. The Legal Counsel or designeeshall promptly respond to any appealof the denial for expedited processing.

[45 FR 40604, June 16, 1980, as amended at 47FR 46275, Oct. 18, 1982; 52 FR 4902, Feb. 18,1987; 56 FR 29578, 29579, June 28, 1991; 63 FR1341, Jan. 9, 1998]

§ 1610.10 Responses: form and content.(a) Once a requested record is identi-

fied and available, the requester will benotified of when and where the recordwill be made available and the cost as-sessed for processing the request.Records shall be made available in theform or format indicated by the re-quester, if the record is readily repro-ducible in that form or format. Fees forprocessing requests will be determinedin accordance with the schedule setforth in § 1610.15. Checks shall be madepayable to the Treasurer of the UnitedStates.

(b) A reply denying a written requestfor a record shall be in writing, signedby the Legal Counsel’s designee, the re-gional attorney, or the regional attor-ney’s designee, and shall include:

(1) His or her name and title;(2) A reference to the specific exemp-

tion under the Freedom of InformationAct authorizing the withholding of therecord and a brief explanation of how

the exemption applies to the recordwithheld, or a statement that, afterdiligent effort, the requested recordshave not been found or have not beenadequately examined during the timeallowed under § 1610.9(a), and that thedenial will be reconsidered as soon asthe search or examination is complete;and

(3) A statement that the denial maybe appealed to the Legal Counsel with-in 30 days of receipt of the denial orpartial denial.

(c) When denying a request forrecords, the estimated volume of de-nied material shall be indicated, unlessproviding such estimate would harm aninterest protected by the exemptions in5 U.S.C. 522(b). When providing a rea-sonably segregable portion of a record,the amount of information deletedfrom the released portion, and to theextent technically feasible, the place inthe record where such deletion wasmade shall be indicated.

(d) If a requested record cannot be lo-cated from the information supplied, oris known to have been destroyed orotherwise disposed of, the person mak-ing the request shall be so notified.

[40 FR 8171, Feb. 26, 1975, as amended at 52FR 4902, Feb. 18, 1987; 56 FR 29579, June 28,1991; 63 FR 1342, Jan. 9, 1998]

§ 1610.11 Appeals to the Legal Counselfrom initial denials.

(a) When the Legal Counsel’s des-ignee, the regional attorney, or the re-gional attorney’s designee, has denieda request for records in whole or inpart, the person making the requestmay appeal within 30 calendar days ofits receipt. The appeal must be in writ-ing addressed to the Legal Counsel ordesignee, Equal Employment Oppor-tunity Commission, 1801 L Street NW.,Washington DC 20507, and clearly la-beled as a Freedom of Information Actappeal. Any appeal of a denial in wholeor part by a regional attorney, or theregional attorney’s designee, must in-clude a copy of the regional attorney’s,or the regional attorney’s designee’sdetermination.

(b) The Legal Counsel or designeeshall act upon the appeal within 20working days of its receipt, and morerapidly if practicable. If the decision is


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in favor of the person making the re-quest, the decision shall order recordspromptly made available to the personmaking the request. The Legal Counselor designee may extend the 20 day pe-riod in which to render a decision on anappeal for that period of time whichcould have been claimed and consumedby the Legal Counsel’s designee, the re-gional attorney, or the regional attor-ney’s designee, under § 1610.9 but whichwas either not claimed or consumed inmaking the original determination.

(c) The decision on appeal shall be inwriting and signed by the Legal Coun-sel or designee. A denial in whole or inpart of a request on appeal shall setforth the exemption relied on, a briefexplanation of how the exemption ap-plied to the records withheld and thereasons for asserting it, if differentfrom that described by the Legal Coun-sel’s designee, the regional attorney, orthe regional attorney’s designee under§ 1610.10, and that the person makingthe request may, if dissatisfied withthe decision on appeal, file a civil ac-tion in the district in which the personresides or has his principal place ofbusiness, in the district where therecords reside, or in the District of Co-lumbia.

(d) No personal appearance, oral ar-gument or hearing will ordinarily bepermitted in connection with an appealto the Legal Counsel or designee.

(e) On appeal, the Legal Counsel ordesignee may reduce any fees pre-viously assessed.

(f)In the event that the Commissionterminates its proceedings on a chargeafter the regional attorney or the re-gional attorney’s designee denies a re-quest for the charge file but duringconsideration of the requester’s appealfrom that denial, the request may beremanded for redetermination. The re-quester retains a right to appeal to theLegal Counsel from the decision on re-mand.

[49 FR 48040, Dec. 10, 1984, as amended at 52FR 4902, Feb. 18, 1987; 54 FR 32062, Aug. 4,1989; 56 FR 29579, June 28, 1991; 63 FR 1342,Jan. 9, 1998]

§ 1610.13 Maintenance of files.(a) The Legal Counsel or designee,

and regional attorneys, shall maintain

files containing all material requiredto be retained by or furnished to themunder this subpart. The material shallbe filed by individual request indexedaccording to the exemptions asserted,and, to the extent feasible, indexed ac-cording to the type of records re-quested.

(b) The Legal Counsel or designee,shall also maintain a file open to thepublic, which shall contain copies of allgrants or denials of appeals by theCommission. The material shall be in-dexed as stated in paragraph (a) of thissection.

[45 FR 40605, June 16, 1980, as amended at 47FR 46275, Oct. 18, 1982; 52 FR 4092, Feb. 18,1987; 56 FR 29578, June 28, 1991]

§ 1610.14 Waiver of user charges.

(a) Except as provided in paragraph(b) of this section the Legal Counsel ordesignee and regional attorneys or des-ignees shall assess fees where applica-ble in accordance with § 1610.15 forsearch, review and duplication ofrecords requested. They shall also haveauthority to furnish documents with-out any charge or at a reduced chargeif disclosure of the information is inthe public interest because it is likelyto contribute significantly to publicunderstanding of the operations or ac-tivities of the government and is notprimarily in the commercial interest ofthe requester.

(b) District directors, the WashingtonField Office Director, area directors,and the librarian are hereby authorizedto collect fees where applicable in ac-cordance with § 1610.15 for duplicationof records which are to be made avail-able for public inspection and copyingin the district or area office, or in theheadquarters library in accordancewith § 1610.4(b). District directors, theWashington Field Office Director, areadirectors, and the librarian are herebyauthorized to duplicate such recordswithout charge, or at a reduced chargein accordance with the criteria of para-graph (a) of this section.

[52 FR 13830, Apr. 27, 1987, as amended at 54FR 32062, Aug. 4, 1989; 56 FR 29578, June 28,1991; 63 FR 1342, Jan. 9, 1998]


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§ 1610.15 Schedule of fees and methodof payment for services rendered.

(a) Fees shall be assessed in accord-ance with the fee schedule set forth inparagraph (c) of this section as follows:

(1) When records are requested forcommercial use, the Commission shallcharge the full amount of its directcosts for document search, review andduplication. The Commission shall notcharge for review at the administrativeappeal level of an exemption alreadyapplied.

(2) When records are not sought forcommercial use and the request ismade by an educational or noncommer-cial scientific institution, or a rep-resentative of the news media, theCommission shall charge the directcosts of document duplication after thefirst 100 pages. The first 100 pages ofduplication under paragraph (a)(2) shallbe provided without charge.

(3) For all other record requests notfalling under paragraph (a) (1) or (2) ofthis section, the Commission shallcharge the direct costs for documentsearch time after the first two hoursand the direct costs for document du-plication after the first 100 pages. Thefirst two hours of search time and thefirst 100 pages of duplication underparagraph (a)(3) shall be provided with-out charge.

(b) When the Commission reasonablybelieves that a requester or group of re-questers is attempting to break a re-quest down into a series of requests forthe purpose of evading the assessmentof fees, the Commission shall aggregateany such requests and charge accord-ingly.

(c) Except as otherwise provided, thefollowing specific fees for direct costsshall be applicable with respect toservices rendered to members of thepublic under this subpart:

(1) For actual search and review timeby clerical personnel—at the rate of$7.00 per hour.

(2) For actual search and review timeby professional personnel—at the rateof $17.00 per hour.

(3) For copies made by photocopyingmachine—$.15 per page (maximum of 10copies).

(4) For attestation of such record asa true copy—$.75 per document.

(5) For certification of each record asa true copy, under the seal of the agen-cy—$1.00.

(6) For each signed statement of neg-ative result of search for record—$1.00.

(7) All other direct costs of search,review, duplication or delivery (otherthan normal mail), including computersearch time, runs and operator salaryshall be charged to the requester as ap-propriate in the same amount as in-curred by the agency.

(d) The Commission shall not chargea fee if the costs of routine collectionand processing of the fee are likely toequal or exceed the amount of the fee.

(e) The Commission shall charge in-terest at the rate prescribed in 31U.S.C. 3717, accruing from the date ofbilling, to those requesters who fail topay fees charged beginning on the 31stday following the day on which thebilling was sent.

(f) While the fees charged for searchand copying will in no event exceedthose specified in paragraph (c) of thissection, the Commission reserves theright to limit the number of copiesthat will be provided of any documentor to require that special arrangementsfor copying be made in the case ofrecords or requests presenting unusualproblems of reproduction or handling.

[52 FR 13830, Apr. 27, 1987, as amended at 63FR 1342, Jan. 9, 1998]

§ 1610.16 Payment of fees.

(a) Unless a person making a requestunder the Freedom of Information Actstates that he or she will bear all as-sessed fees levied by the Commission insearching for and, where applicable, re-producing requested data, said personwill be held liable for assessed fees notto exceed $25.00. A request which theCommission expects to exceed $25.00and which does not state acceptance ofresponsibility for all assessed fees willnot be deemed to have been receiveduntil the person making the request ispromptly advised of the anticipatedfees and agrees to bear them.

(b) A search fee will be assessablenotwithstanding that no records re-sponsive to the request or that norecords not exempt from disclosure arefound.


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(c) The Commission shall requirepayment in full prior to the commence-ment or continuation of work on a re-quest if:

(1) It estimates or determines thatthe allowable charges will exceed $250,unless the requester has a history ofprompt payment of FOIA fees, in whichcase the Commission may obtain satis-factory assurance of prompt payment;or

(2) The requester has previouslyfailed to pay fees within 30 days of thedate of billing.

[40 FR 8171, Feb. 26, 1975, as amended at 52FR 13830, Apr. 27, 1987]

§ 1610.17 Exemptions.(a) 5 U.S.C. 552 exempts from all of

its publication and disclosure require-ments nine categories of records whichare described in 552(b). These cat-egories include such matters as na-tional defense and foreign policy infor-mation, investigatory files, internalprocedures and communications, mate-rials exempted from disclosure byother statutes, information given inconfidence, and matters involving per-sonal privacy.

(b) Section 706(b) of title VII providesthat the Commission shall not makepublic charges which have been filed. Italso provides that (subsequent to thefiling of a charge, an investigation, anda finding that there is reasonable causeto believe that the charge is true)nothing said or done during and as apart of the Commission’s endeavors toeliminate any alleged unlawful em-ployment practice by informal meth-ods of conference, conciliation, andpersuasion may be made public by theCommission without the written con-sent of the parties concerned; nor mayit be used as evidence in a subsequentproceeding. Any officer or employee ofthe Commission who shall make publicin any manner whatever any informa-tion in violation of section 706(b) shallbe deemed guilty of a misdemeanor andupon conviction thereof shall be finednot more than $1,000 or imprisoned notmore than 1 year.

(c) Section 709 of title VII authorizesthe Commission to conduct investiga-tions of charges filed under section 706,engage in cooperative efforts withState and local agencies charged with

the administration of State or localfair employment practices laws, andissue regulations concerning reportsand record-keeping. Section (e) of sec-tion 709 provides that it shall be unlaw-ful for any officer or employee of theCommission to make public in anymanner whatever any information ob-tained by the Commission pursuant toits authority under section 709 prior tothe institution of any proceeding underthe act involving such information.Any officer or employee of the Com-mission who shall make public in anymanner whatever any information inviolation of section 709(e) shall beguilty of a misdemeanor and upon con-viction thereof shall be fined not morethan $1,000 or imprisoned not morethan 1 year.

(d) Special disclosure rules apply tothe case files for charging parties, ag-grieved persons on whose behalf acharge has been filed, and entitiesagainst whom charges have been filed.The special disclosure rules are avail-able in the public reading areas of theCommission. Under sections 706 and709, case files involved in the adminis-trative process of the Commission arenot available to the public.

(e) Each executed statistical report-ing form required under part 1602 ofthis chapter, such as Employer Infor-mation Report EEO–1, etc., relating toa particular employer is exempt fromdisclosure to the public prior to the in-stitution of a proceeding under titleVII involving information from suchform.

(f) Section 107 of the Americans withDisabilities Act of 1990 (42 U.S.C. 12117)explicitly adopts the powers, remedies,and procedures set forth in sections 706and 709 of title VII. Accordingly, theprohibitions on disclosure contained insections 706 and 709 of title VII as out-lined in paragraphs (b), (c), (d), and (e)of this section, apply with equal forceto requests for information related tocharges and executed statistical re-porting forms filed with the Commis-sion under the Americans with Disabil-ities Act.

(g) Requests for information relatingto open case files covering alleged vio-lations of the Equal Pay Act (29 U.S.C.206(b)) or the Age Discrimination inEmployment Act of 1967 (29 U.S.C. 621


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et seq. ) will ordinarily be denied underthe seventh exemption of the Freedomof Information Act as investigatoryrecords compiled for law enforcementpurposes.

(h) The medical, financial, and per-sonnel files of employees of the Com-mission are exempt from disclosure tothe public.

[40 FR 8171, Feb. 26, 1975, as amended at 45FR 40605, June 16, 1980; 56 FR 29579, June 28,1991]

§ 1610.18 Information to be disclosed.

The Commission will provide the fol-lowing information to the public:

(a) The Commission will make avail-able for inspection and copying certaintabulations of aggregate industry,area, and other statistics derived fromthe Commission’s reporting programsauthorized by section 709(c) of title VII,provide that such tabulations: Werepreviously compiled by the Commis-sion and are available in documentaryform; comprise an aggregation of datafrom not less than three responding en-tities; and, do not reveal the identityof an individual or dominant entity ina particular industry or area;

(b) All blank forms used by the Com-mission;

(c) Subject to the restrictions andprocedures set forth in § 1610.19, allsigned contracts, final bids on allsigned contracts, and agreements be-tween the Commission and State orlocal agencies charged with the admin-istration of State or local fair employ-ment practices laws;

(d) All final reports that do not con-tain statutorily confidential materialin a recognizable form;

(e) All agency correspondence tomembers of the public, Members ofCongress, or other persons not govern-ment employees or special governmentemployees, except those containing in-formation that would produce an inva-sion of privacy if made public;

(f) All administrative staff manualsand instructions to staff that affectmembers of the public unless the mate-rials are promptly published and copiesoffered for sale; and

(g) All final votes of each Commis-sioner, for every Commission meeting,except for votes pertaining to filing

suit against respondents until suchlitigation is commenced.

[56 FR 29579, June 28, 1991, as amended at 63FR 1342, Jan. 9, 1998]

§ 1610.19 Predisclosure notificationprocedures for confidential com-mercial information.

(a) In general. Commercial informa-tion provided to the Commission shallnot be disclosed except in accordancewith this section. For the purposes ofthis section, the following definitionsapply:

(1) Confidential commercial informationrefers to records provided by a sub-mitter containing information that isarguably exempt from disclosure under5 U.S.C. 552(b)(4), because disclosurecould reasonably be expected to causesubstantial competitive harm.

(2) Submitter refers to any person orentity who provides confidential com-mercial information to the govern-ment. The term includes, but is notlimited to, corporations, State govern-ments, and foreign governments.

(b) Notice to submitter. Except as pro-vided in paragraph (g) of this section,the Commission shall provide a sub-mitter with explicit notice of a FOIArequest for confidential commercialrecords whenever:

(1) The Commission reasonably be-lieves that disclosure could cause sub-stantial competitive harm to the sub-mitter;

(2) The information was submittedprior to January 1, 1988, the records areless than 10 years old, and the sub-mitter designated them as commer-cially sensitive; or

(3) The information was submittedafter January 1, 1988, and the submitterpreviously, in good faith, designatedthe records as confidential commercialinformation. Such designations shall:

(i) Whenever possible, include astatement or certification from an offi-cer or authorized representative of thecompany that the information is infact confidential commercial informa-tion and has not been disclosed to thepublic; and

(ii) Expire ten years from the date ofsubmission unless otherwise justified.

(c) Notice to requester. When notice isgiven to a submitter under this sec-tion, the requester shall be notified


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that notice and opportunity to com-ment are being provided to the sub-mitter.

(d) Opportunity of submitter to object.When notification is made pursuant toparagraph (b) of this section, the Com-mission shall afford the submitter aminimum of five working days to pro-vide it with a detailed statement of ob-jections to disclosure. Such statementshall provide precise identification ofthe exempted information, and thebasis for claiming it as a trade secretor as confidential information pursu-ant to 5 U.S.C. 552(b)(4), the disclosureof which is likely to cause substantialharm to the submitter’s competitiveposition.

(e) Notice of intent to disclose. (1) TheCommission shall consider carefullythe objections of a submitter providedpursuant to paragraph (d) of this sec-tion. When the Commission decides todisclose information despite such ob-jections, it shall provide the submitterwith a written statement briefly ex-plaining why the objections were notsustained. Such statement shall be pro-vided a minimum of three workingdays prior to the specified disclosuredate, in order that the submitter mayseek a court injunction to prevent re-lease of the records if it so chooses.

(2) When a submitter is notified pur-suant to paragraph (e)(1) of this sec-tion, notice of the Commission’s finaldisclosure determination and proposedrelease date shall also be provided tothe requester.

(f) Notice of lawsuit. Whenever a re-quester brings suit seeking to compeldisclosure of confidential commercialinformation, the Commission shallpromptly notify the submitter of thelegal action.

(g) Exceptions to the notice require-ment. The notice requirements of thissection shall not apply if:

(1) The Commission determines thatthe information shall not be disclosed;

(2) The information is published orotherwise officially available to thepublic;

(3) Disclosure of the information isrequired by law (other than 5 U.S.C.552).

[56 FR 29579, June 28, 1991]

§ 1610.20 Deletion of exempted mat-ters.

Where requested records containmatters which are exempted under 5U.S.C. 552(b) but which matters arereasonably segregable from the re-mainder of the records, they shall bedisclosed by the Commission with dele-tions. To each such record the Commis-sion shall attach a written justifica-tion for making deletions. A singlesuch justification shall suffice for dele-tions made in a group of similar or re-lated records.

[40 FR 8171, Feb. 26, 1975. Redesignated at 56FR 29579, June 28, 1991]

§ 1610.21 Annual report.The Legal Counsel shall, on or before

February 1, 1998, and annually there-after, submit a Freedom of InformationAct report covering the preceding fis-cal year to the Attorney General of theUnited States. The report shall includethose matters required by 5 U.S.C.552(e), and shall be made available elec-tronically.

[63 FR 1342, Jan. 9, 1998]

Subpart B—Production in Re-sponse to Subpenas or De-mands of Courts or Other Au-thorities


of the Commission concerning proce-dures to be followed when a subpena,order, or other demand (hereinafter inthis subpart referred to as a ‘‘demand’’)of a court or other authority is issuedfor the production or disclosure of (a)any material contained in the files ofthe Commission; (b) any informationrelating to material contained in thefiles of the Commission; or (c) any in-formation or material acquired by anyperson while such person was an em-ployee of the Commission as a part ofthe performance of his official dutiesor because of his official status.

[32 FR 16261, Nov. 29, 1967]

§ 1610.32 Production prohibited unlessapproved by the Legal Counsel.

No employee or former employee ofthe Commission shall, in response to a


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demand of a court or other authority,produce any material contained in thefiles of the Commission or disclose anyinformation or produce any materialacquired as part of the performance ofhis official duties or because of his offi-cial status without the prior approvalof the Legal Counsel.


§ 1610.34 Procedure in the event of ademand for production or disclo-sure.

(a) Whenever a demand is made uponan employee or former employee of theCommission for the production of ma-terial or the disclosure of informationdescribed in § 1610.30, he shall imme-diately notify the Legal Counsel. Ifpossible, the Legal Counsel shall be no-tified before the employee or formeremployee concerned replies to or ap-pears before the court or other author-ity.

(b) If response to the demand is re-quired before instructions from theLegal Counsel are received, an attor-ney designated for that purpose by theCommission shall appear with the em-ployee or former employee upon whomthe demand has been made, and shallfurnish the court or other authoritywith a copy of the regulations con-tained in this part and inform thecourt or other authority that the de-mand has been or is being, as the casemay be, referred for prompt consider-ation by the Legal Counsel. The courtor other authority shall be requestedrespectfully to stay the demand pend-ing receipt of the requested instruc-tions from the Legal Counsel.

[32 FR 16261, Nov. 29, 1967, as amended at 47FR 46275, Oct. 18, 1982; 63 FR 1342, Jan. 9,1998]

§ 1610.36 Procedure in the event of anadverse ruling.

If the court or other authority de-clines to stay the effect of the demandin response to a request made in ac-cordance with § 1610.34(b) pending re-ceipt of instructions from the LegalCounsel, or if the court or other au-thority rules that the demand must becomplied with irrespective of the in-structions from the Legal Counsel notto produce the material or disclose the

information sought, the employee orformer employee upon whom the de-mand has been made shall respectfullydecline to comply with the demand(United States ex rel. Touhy v. Ragen,340 U.S. 462 (1951)).


PART 1611—PRIVACY ACTREGULATIONS

Sec.1611.1 Purpose and scope.1611.2 Definitions.1611.3 Procedures for requests pertaining to

individual records in a record system.1611.4 Times, places, and requirements for

identification of individuals making re-quests.

1611.5 Disclosure of requested informationto individuals.

1611.6 Special procedures: Medical records.1611.7 Request for correction or amendment

to record.1611.8 Agency review of request for correc-

tion or amendment to record.1611.9 Appeal of initial adverse agency de-

termination on correction or amend-ment.

1611.10 Disclosure of record to person otherthan the individual to whom it pertains.

1611.11 Fees.1611.12 Penalties.1611.13 Specific exemptions.

AUTHORITY: 5 U.S.C. 552a.

SOURCE: 42 FR 7949, Feb. 8, 1977, unless oth-erwise noted.

§ 1611.1 Purpose and scope.This part contains the regulations of

the Equal Employment OpportunityCommission (the Commission) imple-menting the Privacy Act of 1974, 5U.S.C. 552a. It sets forth the basic re-sponsibilities of the Commission underthe Privacy Act (the Act) and offersguidance to members of the public whowish to exercise any of the rights es-tablished by the Act with regard torecords maintained by the Commission.All records contained in system EEOC/GOVT–1, including those maintainedby other agencies, are subject to theCommission’s Privacy Act regulations.Requests for access to, an accountingof disclosures for, or amendment ofrecords in EEOC/GOVT–1 must be proc-essed by agency personnel in accord-ance with this part. Commission


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records that are contained in a govern-ment-wide system of records estab-lished by the U.S. Office of PersonnelManagement (OPM), the General Serv-ices Administration (GSA), the MeritSystems Protection Board (MSPB), theOffice of Government Ethics (OGE) orthe Department of Labor (DOL) forwhich those agencies have publishedsystems notices are subject to the pub-lishing agency’s Privacy Act regula-tions. Where the government-wide sys-tems notices permit access to theserecords through the employing agency,an individual should submit requestsfor access to, for amendment of or foran accounting of disclosures to theCommission offices as indicated in§ 1611.3(b).

[56 FR 29580, June 28, 1991]

§ 1611.2 Definitions.For purposes of this part, the terms

individual, maintain, record, and systemof records shall have the meanings setforth in 5 U.S.C. 552a.

§ 1611.3 Procedures for requests per-taining to individual records in arecord system.

(a) Any person who wishes to be noti-fied if a system of records maintainedby the Commission contains any recordpertaining to him or her, or to requestaccess to such record or to request anaccounting of disclosures made of suchrecord, shall submit a written request,either in person or by mail, in accord-ance with the instructions set forth inthe system notice published in theFEDERAL REGISTER. The request shallinclude:

(1) The name of the individual mak-ing the request;

(2) The name of the system of records(as set forth in the system notice towhich the request relates);

(3) Any other information specified inthe system notice; and

(4) When the request is for access torecords, a statement indicating wheth-er the requester desires to make a per-sonal inspection of the records or besupplied with copies by mail.

(b) Requests pertaining to recordscontained in a system of records estab-lished by the Commission and forwhich the Commission has published a

system notice should be submitted tothe person or office indicated in thesystem notice. Requests pertaining toCommission records contained in thegovernment-wide systems of recordslisted below should be submitted as fol-lows:

(1) For systems OPM/GOVT–1 (Gen-eral Personnel Records), OPM/GOVT–2(Employee Performance File SystemRecords), OPM/GOVT–3 (Records of Ad-verse Actions and Actions Based onUnacceptable Performance), OPM/GOVT–5 (Recruiting, Examining andPlacement Records), OPM/GOVT–6(Personnel Research and Test Valida-tion Records), OPM/GOVT–9 (Files onPosition Classification Appeals, JobGrading Appeals and Retained Grade orPay Appeals), OPM/GOVT–10 (Em-ployee Medical File System Records)and DOL/ESA–13 (Office of Workers’Compensation Programs, Federal Em-ployees’ Compensation File), to the Di-rector of Personnel Management Serv-ices, EEOC, 1801 L Street, NW., Wash-ington, DC 20507;

(2) For systems OGE/GOVT–1 (Execu-tive Branch Public Financial Disclo-sure Reports and Other Ethics ProgramRecords), OGE/GOVT–2 (ConfidentialStatements of Employment and Finan-cial Interests) and MSPB/GOVT–1 (Ap-peal and Case Records), to the LegalCounsel, EEOC, 1801 L Street, NW.,Washington, DC 20507;

(3) For system OPM/GOVT–7 (Appli-cant Race, Sex, National Origin, andDisability Status Records), to the Di-rector of the Office of Equal Employ-ment Opportunity, EEOC, 1801 LStreet, NW., Washington, DC 20507;

(4) For systems GSA/GOVT–3 (TravelCharge Card Program) and GSA/GOVT–4 (Contracted Travel Services Pro-gram) to the Director of Financial andResource Management Services, EEOC,1801 L Street, NW., Washington, DC20507.

(c) Any person whose request for ac-cess under paragraph (a) of this sectionis denied, may appeal that denial in ac-cordance with § 1611.5(c).

[42 FR 7949, Feb. 8, 1977, as amended at 56 FR29581, June 28, 1991]


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§ 1611.4 Times, places, and require-ments for identification of individ-uals making requests.

(a) If a person submitting a requestfor access under § 1611.3 has asked thatthe Commission authorize a personalinspection of records pertaining to thatperson, and the appropriate Commis-sion official has granted that requestthe requester shall present himself orherself at the time and place specifiedin the Commission’s response or ar-range another, mutually convenienttime with the appropriate Commissionofficial.

(b) Prior to inspection of the records,the requester shall present sufficientpersonal identification (e.g., driver’s li-cense, employee identification card, so-cial security card, credit cards). If therequester is unable to provide suchidentification, the requester shall com-plete and sign in the presence of aCommission official a signed statementasserting his or her identity and stipu-lating that he or she understands thatknowingly or willfully seeking or ob-taining access to records about anotherindividual under false pretenses is amisdemeanor punishable by fine up to$5,000.

(c) Any person who has requested ac-cess under § 1611.3 to records throughpersonal inspection, and who wishes tobe accompanied by another person orpersons during this inspection, shallsubmit a written statement author-izing disclosure of the record in suchperson’s or person’s presence.

(d) If an individual submitting a re-quest by mail under § 1611.3 wishes tohave copies furnished by mail, he orshe must include with the request asigned and notarized statement assert-ing his or her identity and stipulatingthat he or she understands thatknowlingly or willfully seeking or ob-taining access to records about anotherindividual under false pretenses is amisdemeanor punishable by fine up to$5,000.

(e) A request filed by the parent ofany minor or the legal guardian of anyincompetent person shall: state the re-lationship of the requester to the indi-vidual to whom the record pertains;present sufficient identification; and, ifnot evident from information alreadyavailable to the Commission, present

appropriate proof of the relationship orguardianship.

(f) A person making a request pursu-ant to a power of attorney must pos-sess a specific power of attorney tomake that request.

(g) No verification of identity will berequired where the records sought arepublicly available under the Freedomof Information Act.

§ 1611.5 Disclosure of requested infor-mation to individuals.

(a) Upon receipt of request for notifi-cation as to whether the Commissionmaintains a record about an individualand/or request for access to suchrecord:

(1) The appropriate Commission offi-cial shall acknowledge such request inwriting within 10 working days of re-ceipt of the request. Wherever prac-ticable, the acknowledgement shouldcontain the notification and/or deter-mination required in paragraph (a) (2)of this section.

(2) The appropriate Commission offi-cial shall provide, within 30 workingdays of receipt of the request, writtennotification to the requester as to theexistence of the records and/or a deter-mination as to whether or not accesswill be granted. In some cases, such aswhere records have to be recalled fromthe Federal Records Center, notifica-tion and/or a determination of accessmay be delayed. In the event of such adelay, the Commission official shall in-form the requester of this fact, the rea-sons for the delay, and an estimate ofthe date on which notification and/or adetermination will be forthcoming.

(3) If access to a record is granted,the determination shall indicate whenand where the record will be availablefor personal inspection. If a copy of therecord has been requested, the Commis-sion official shall mail that copy or re-tain it at the Commission to present tothe individual, upon receipt of a checkor money order in an amount computedpursuant to § 1611.11.

(4) When access to a record is to begranted, the appropriate Commissionofficial will normally provide accesswithin 30 working days of receipt of therequest unless, for good cause shown,he or she is unable to do so, in whichcase the requester shall be informed


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within 30 working days of receipt of therequest as to those reasons and when itis anticipated that access will be grant-ed.

(5) The Commission shall not denyany request under § 1611.3 concerningthe existence of records about the re-quester in any system of records itmaintains, or any request for access tosuch records, unless that system is ex-empted from the requirements of 5U.S.C. 552a in § 1611.13.

(6) If the Commission receives a re-quest pursuant to § 1611.3 for access torecords in a system of records it main-tains which is so exempt, the appro-priate Commission official shall denythe request.

(b) Upon request, the appropriateCommission official shall make avail-able an accounting of disclosures pur-suant to 5 U.S.C. 552a(c)(3).

(c) If a request for access to recordsis denied pursuant to paragraph (a) or(b) of this section, the determinationshall specify the reasons for the denialand advise the individual how to appealthe denial. If the request pertains to asystem of records for which the Com-mission has published a system notice,any appeal must be submitted in writ-ing to the Legal Counsel, EEOC, 1801 LStreet, NW., Washington, DC 20507. Ifthe request pertains to a government-wide system of records any appealshould be in writing, identified as aPrivacy Act appeal and submitted asfollows:

(1) For systems established by OPMand for which OPM has published a sys-tem notice, to the Assistant Directorfor Workforce Information, PersonnelSystems and Oversight Group, OPM,1900 E Street, NW., Washington, DC20415. The OPM Privacy Act regula-tions, 5 CFR 297.207, shall govern suchappeals.

(2) For systems established by OGEand for which OGE has published a sys-tem notice, to the Privacy Act Officer,Office of Government Ethics, 1201 NewYork Avenue, NW., Suite 500, Wash-ington, DC 20005–3917. The OGE PrivacyAct regulations, 5 CFR part 2606, shallgovern such appeals.

(3) For the system established byMSPB and for which MSPB has pub-lished a system notice, to the DeputyExecutive Director for Management,

U.S. Merit Systems Protection Board,1120 Vermont Avenue, NW., Wash-ington, DC 20419. The MSPB PrivacyAct regulations, 5 CFR part 1205, shallgovern such appeals.

(4) For systems established by GSAand for which GSA has published a sys-tem notice, to GSA Privacy Act Offi-cer, General Services Administration(ATRAI), Washington, DC 20405. TheGSA Privacy Act regulations, 41 CFR105–64.301–5, shall govern such appeals.

(5) For the system established byDOL and for which DOL has publisheda system notice, to the Solicitor ofLabor, Department of Labor, 200 Con-stitution Avenue, NW., Washington, DC20210. The DOL Privacy Act regula-tions, 29 CFR 70a.9, shall govern suchappeals.

(d) In the event that access to arecord is denied on appeal by the LegalCounsel or the Legal Counsel’s des-ignee, the requestor shall be advised ofhis or her right to bring a civil actionin Federal district court for review ofthe denial in accordance with 5 U.S.C.552a(g).

(e) Nothing in 5 U.S.C. 552a or thispart allows an individual access to anyinformation compiled in reasonable an-ticipation of a civil action or pro-ceeding.


§ 1611.6 Special procedures: Medicalrecords.

In the event the Commission receivesa request pursuant to § 1611.3 for accessto medical records (including psycho-logical records) whose disclosure ofwhich the appropriate Commission offi-cial determines could be harmful to theindividual to whom they relate, he orshe may refuse to disclose the recordsdirectly to the requester but shalltransmit them to a physician des-ignated by that individual.

§ 1611.7 Request for correction oramendment to record.

(a) Any person who wishes to requestcorrection or amendment of any recordpertaining to him or her which is con-tained in a system of records main-tained by the Commission, shall sub-mit that request in writing in accord-ance with the instructions set forth in


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the system notice for that system ofrecords. If the request is submitted bymail, the envelope should be clearly la-beled ‘‘Personal Information Amend-ment.’’ The request shall include:

(1) The name of the individual mak-ing the request;

(2) The name of the system of recordsas set forth in the system notice towhich the request relates;

(3) A description of the nature (e.g.,modification, addition or deletion) andsubstance of the correction or amend-ment requested; and

(4) Any other information specified inthe system notice.

(b) Any person submitting a requestpursuant to paragraph (a) of this sec-tion shall include sufficient informa-tion in support of that request to allowthe Commission to apply the standardsset forth in 5 U.S.C. 552a (e).

(c) All requests to amend pertainingto personnel records described in§ 1611.3(b) shall conform to the require-ments of paragraphs (a) and (b) of thissection and may be directed to the ap-propriate officials as indicated in§ 1611.3(b). Such requests may also bedirected to the system manager speci-fied in the OPM’s systems notices.

(d) Any person whose request underparagraph (a) of this section is deniedmay appeal that denial in accordancewith § 1611.9(a).


§ 1611.8 Agency review of request forcorrection or amendment to record.

(a) When the Commission receives arequest for amendment or correctionunder § 1611.7(a), the appropriate Com-mission official shall acknowledge thatrequest in writing within 10 workingdays of receipt. He or she shall prompt-ly either:

(1) Determine to grant all or any por-tion of a request for correction oramendment; and:

(i) Advise the individual of that de-termination;

(ii) Make the requested correction oramendment; and

(iii) Inform any person or agency out-side the Commission to whom therecord has been disclosed, and where anaccounting of that disclosure is main-tained in accordance with 5 U.S.C.

552a(c), of the occurrence and sub-stance of the correction or amend-ments, or;

(2) Inform the requester of the refusalto amend the record in accordance withthe request; the reason for the refusal;and the procedures whereby the re-quester can appeal the refusal to theLegal Counsel of the Commission.

(b) If the Commission official informsthe requester of the determinationwithin the 10-day deadline, a separateacknowledgement is not required.

(c) In conducting the review of a re-quest for correction or amendment, theCommission official shall be guided bythe requirements of 5 U.S.C. 552a(e).

(d) In the event that the Commissionreceives a notice of correction oramendment from another agency thatpertains to records maintained by theCommission, the Commission shallmake the appropriate correction oramendment to its records and complywith paragraph (a)(1)(iii) of this sec-tion.

(e) Requests for amendment or cor-rection of records maintained in thegovernment-wide systems of recordslisted in § 1611.5(c) shall be governed bythe appropriate agency’s regulationscited in that paragraph. Requests foramendment or correction of recordsmaintained by other agencies in sys-tem EEOC/GOVT–1 shall be governedby the Commission’s regulations inthis part.


§ 1611.9 Appeal of initial adverse agen-cy determination on correction oramendment.

(a) If a request for correction oramendment of a record in a system ofrecords established by EEOC is denied,the requester may appeal the deter-mination in writing to the Legal Coun-sel, EEOC, 1801 L Street, NW., Wash-ington, DC 20507. If the request pertainsto a record that is contained in thegovernment-wide systems of recordslisted in § 1611.5(c), an appeal must bemade in accordance with the appro-priate agency’s regulations cited inthat paragraph.

(b) The Legal Counsel or the LegalCounsel’s designee shall make a finaldetermination with regard to an appeal


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submitted under paragraph (a) of thissection not later than 30 working daysfrom the date on which the individualrequests a review, unless for good causeshown, this 30-day period is extendedand the requester is notified of the rea-sons for the extension and of the esti-mated date on which a final determina-tion will be made. Such extensions willbe used only in exceptional cir-cumstances and will not normally ex-ceed 30 working days.

(c) In conducting the review of an ap-peal submitted under paragraph (a) ofthis section, the Legal Counsel or theLegal Counsel’s designee shall be guid-ed by the requirements of 5 U.S.C.552a(e).

(d) If the Legal Counsel or the LegalCounsel’s designee determines to grantall or any portion of a request on anappeal submitted under paragraph (a)of this section, he or she shall so in-form the requester, and the appropriateCommission official shall comply withthe procedures set forth in§ 1611.8(a)(1)(ii) and (iii).

(e) If the Legal Counsel or the LegalCounsel’s designee determines in ac-cordance with paragraphs (b) and (c) ofthis section not to grant all or any por-tion of a request on an appeal sub-mitted under paragraph (a) of this sec-tion, he or she shall inform the re-quester:

(1) Of this determination and the rea-sons for it;

(2) Of the requester’s right to file aconcise statement of reasons for dis-agreement with the determination ofthe Legal Counsel or the Legal Coun-sel’s designee;

(3) That such statements of disagree-ment will be made available to anyoneto whom the record is subsequentlydisclosed, together with (if the LegalCounsel or Legal Counsel’s designeedeems it appropriate) a brief statementsummarizing the Legal Counsel orLegal Counsel’s designee’s reasons forrefusing to amend the record;

(4) That prior recipients of the dis-puted record will be provided with acopy of the statement of disagreementtogether with (if the Legal Counsel orLegal Counsel’s designee deems it ap-propriate) a brief statement of theLegal Counsel or Legal Counsel’s des-ignee’s reasons for refusing to amend

the record, to the extent that an ac-counting of disclosure is maintainedunder 5 U.S.C. 552a(c); and

(5) Of the requester’s right to file acivil action in Federal district court toseek a review of the determination ofthe Legal Counsel or the Legal Coun-sel’s designee in accordance with 5U.S.C. 552a(g).

(f) The Legal Counsel or the LegalCounsel’s designee shall ensure thatany statements of disagreement sub-mitted by a requestor are made avail-able or distributed in accordance withparagraphs (e) (3) and (4) of this sec-tion.

[56 FR 29582, June 28, 1991]

§ 1611.10 Disclosure of record to per-son other than the individual towhom it pertains.

The Commission shall not discloseany record which is contained in a sys-tem of records it maintains, by anymeans of communication to any personor to another agency, except pursuantto a written request by, or with theprior written consent of the individualto whom the record pertains, unlessthe disclosure is authorized by one ormore provisions of 5 U.S.C. 552a(b).

§ 1611.11 Fees.

(a) No fee shall be charged forsearches necessary to locate records.No charge shall be made if the totalfees authorized are less than $1.00. Feesshall be charged for services renderedunder this part as follows:

(1) Photocopies (per page), $.15.(2) Attestation of each record as a

true copy, $.75.(3) Certification of each record as a

true copy under the seal of the Com-mission, $1.00.

(b) All required fees shall be paid infull prior to issuance of requested cop-ies of records. Fees are payable to‘‘Treasurer of the United States.’’


§ 1611.12 Penalties.

The criminal penalties which havebeen established for violations of thePrivacy Act of 1974 are set forth in 5U.S.C. 552a(i). Penalties are applicable


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to any officer or employee of the Com-mission; to contractors and employeesof such contractors who enter into con-tracts with the Commission on or afterSeptember 27, 1975, and who are consid-ered to be employees of the Commis-sion within the meaning of 5 U.S.C.552a(m); and to any person who know-ingly and willfully requests or obtainsany record concerning an individualfrom the Commission under false pre-tenses.

§ 1611.13 Specific exemptions.Pursuant to subsection (k)(2) of the

Act, 5 U.S.C. 552a(k)(2), systems EEOC–1 (Age and Equal Pay Act Discrimina-tion Case Files), EEOC–3 (title VII andAmericans With Disabilities Act Dis-crimination Case Files) and EEOC/GOVT–1 (Equal Employment Oppor-tunity Complaint Records and AppealRecords) are exempt from subsections(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H),(e)(4)(I) and (f) of the Act. The Commis-sion has determined to exempt thesesystems from the above named provi-sions of the Privacy Act for the fol-lowing reasons:

(a) The files in these systems containinformation obtained by the Commis-sion and other Federal agencies in thecourse of investigations of charges andcomplaints that violations of title VIIof the Civil Rights Act, the Age Dis-crimination in Employment Act, theEqual Pay Act, the Americans WithDisabilities Act and the RehabilitationAct have occurred. In some instances,agencies obtain information regardingunlawful employment practices otherthan those complained of by the indi-vidual who is the subject of the file. Itwould impede the law enforcement ac-tivities of the Commission and otheragencies for these provisions of the Actto apply to such records.

(b) The subject individuals of thefiles in these systems know that theCommission or their employing agen-cies are maintaining a file on theircharge or complaint, and the generalnature of the information contained init.

(c) Subject individuals of the files ineach of these systems have been pro-vided a means of access to their recordsby the Freedom of Information Act.Subject individuals of the charge files

in system EEOC–3 have also been pro-vided a means of access to their recordsby section 83 of the Commission’s Com-pliance Manual. Subject individuals ofthe case files in system EEOC/GOVT–1have also been provided a means of ac-cess to their records by the Commis-sion’s Equal Employment Opportunityin the Federal Government regulation,29 CFR 1613.220.

(d) Many of the records contained insystem EEOC/GOVT–1 are obtainedfrom other systems of records. If suchrecords are incorrect, it would be moreappropriate for an individual to seek toamend or correct those records in theirprimary filing location so that noticeof the correction can be given to all re-cipients of that information.

(e) Subject individuals of the files ineach of these systems have access torelevant information provided by theallegedly discriminating employer aspart of the investigatory process andare given the opportunity to explain orcontradict such information and tosubmit any responsive evidence of theirown. To allow such individuals the ad-ditional right to amend or correct therecords submitted by the allegedly dis-criminating employer would under-mine the investigatory process and de-stroy the integrity of the administra-tive record.

(f) The Commission has determinedthat the exemption of these three sys-tems from subsections (c)(3), (d), (e)(1),(e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) ofthe Privacy Act is necessary for theagency’s law enforcement efforts.

[56 FR 29582, June 28, 1991]

PART 1612—GOVERNMENT IN THESUNSHINE ACT REGULATIONS

Sec.1612.1 Purpose and scope.1612.2 Definitions.1612.3 Open meeting policy.1612.4 Exemptions to open meeting policy.1612.5 Closed meeting procedures: agency

initiated requests.1612.6 Closed meeting procedures: request

initiated by an interested person.1612.7 Public announcement of agency

meetings.1612.8 Public announcement of changes in

meetings.1612.9 Legal Counsel’s certification in

closing a meeting.


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1612.10 Recordkeeping requirements.1612.11 Public access to records.1612.12 Fees.1612.13 Meetings closed by regulation.1612.14 Judicial review.

AUTHORITY: 5 U.S.C. 552b, sec. 713, 78 Stat.265; 42 U.S.C. 2000e–12.


§ 1612.1 Purpose and scope.This part contains the regulations of

the Equal Employment OpportunityCommission (hereinafter, the Commis-sion) implementing the Government inthe Sunshine Act of 1976, 5 U.S.C. 552b,which entitles the public to the fullestpracticable information regarding thedecision-making processes of the Com-mission. The provisions of this part setforth the basic responsibilities of theCommission with regard to the Com-mission’s compliance with the require-ments of the Sunshine Act and offersguidance to members of the public whowish to exercise any of the rights es-tablished by the Act.

§ 1612.2 Definitions.The following definitions apply for

purposes of this part:(a) The term agency means the Equal

Employment Opportunity Commissionand any subdivision thereof authorizedto act on its behalf.

(b) The term meeting means the delib-erations of at least three of the mem-bers of the agency, which is a quorumof Commissioners, where such delibera-tions determine or result in the jointconduct or disposition of official agen-cy business (including conferencecalls), but does not include:

(1) Individual members’ consider-ation of official agency business cir-culated to the members in writing fordisposition by notation or other sepa-rate, sequential consideration of Com-mission business by Commissioners,

(2) Deliberations to decide whether ameeting or portion(s) of a meeting orseries of meetings should be open orclosed.

(3) Deliberations to decide whether towithhold from disclosure informationpertaining to a meeting or portions ofa meeting or a series of meetings, or

(4) Deliberations pertaining to anychange in any meeting or to changes in

the public announcement of such meet-ing.

(c) The term member means eachCommissioner of the agency.

(d) The term entire membership meansthe number of members holding officeat the time of the meeting in question.

(e) The term person means any indi-vidual, partnership, corporation, asso-ciation, or public or private organiza-tion.

(f) The term public observation meansattendance at any meeting open to thepublic but does not include participa-tion, or attempted participation, insuch meeting in any manner.

§ 1612.3 Open meeting policy.

(a) All meetings of the Commissionshall be conducted in accordance withthe provisions of this part.

(b) Except as otherwise provided in§ 1612.4, every portion of every meetingshall be open to public observation.Public observation does not includeparticipation or disruptive conduct byobservers. Any attempted participationor disruptive conduct by observersshall be cause for removal of persons soengaged at the discretion of the pre-siding member of the agency.

(c) When holding open meetings, theCommission shall provide ample space,sufficient visibility, and adequateacoustics for persons in attendance atthe meeting.

(d) Observers may take still photo-graphs and use portable sound record-ers which do not require electrical out-lets. Persons may take pictures only atthe beginning of a meeting and maynot use flash equipment. Permission touse non-battery operated sound record-ers and visual recorders must be soughtreasonably in advance of a meeting.Such request must be made in writingto the Commission through the Officeof the Executive Secretariat. The Com-mission may permit such activities tobe conducted under specified limita-tions which insure proper decorum andminimum interference with the meet-ing. In all cases, audio or visual record-ing shall not disrupt or otherwise im-pede the meeting.


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§ 1612.4 Exemptions to open meetingpolicy.

Except in a case where the agencyfinds that the public interest requiresotherwise, the provisions of § 1612.3shall not apply to any meeting or por-tion of a meeting or portion of a meet-ing where the agency determines thatan open meeting or the disclosure of in-formation from such meeting or por-tions of a meeting is likely to:

(a) Disclose matters that are (1) spe-cifically authorized under criteria es-tablished by an Executive Order to bekept secret in the interests of nationaldefense or foreign policy and (2) in factproperly classified pursuant to suchExecutive Order;

(b) Relate solely to the internal per-sonnel rules and practices of the agen-cy;

(c) Disclose matters specifically ex-empted from disclosure by statute(other than the Freedom of Informa-tion Act, 5 U.S.C. 552), provided thatsuch statute (1) requires that the mat-ters be withheld from the public insuch a manner as to leave no discretionon the issue, or (2) establishes par-ticular criteria for withholding or re-fers to particular types of matters tobe withheld;

(d) Disclose trade secrets and com-mercial or financial information ob-tained from a person and privileged orconfidential;

(e) Involve accusing any person of acrime or formally censuring any per-son;

(f) Disclose information of a personalnature where disclosure would con-stitute a clearly unwarranted invasionof personal privacy;

(g) Disclose investigatory recordscompiled for law enforcement purposes,or information which if written wouldbe contained in such records, but onlyto the extent that the production ofsuch records or information would (1)interfere with enforcement pro-ceedings, (2) deprive a persons of aright to a fair trial or an impartial ad-judication, (3) constitute an unwar-ranted invasion of personal privacy, (4)disclose the identity of a confidentialsource, and, in the case of a recordcompiled by a criminal law enforce-ment authority in the course of acriminal investigation, or by an agency

conducting a lawful national securityintelligence investigation, confidentialinformation furnished only by the con-fidential source, (5) disclose investiga-tive techniques and procedures, or (6)endanger the life of physical safety oflaw enforcement personnel;

(h) Disclose information contained inor related to examination, operating,or condition reports prepared by, on be-half of, or for the use of an agency re-sponsible for the regulation or super-vision of financial institutions;

(i) Disclose information the pre-mature disclosure of which would belikely to significantly frustrate imple-mentation of a proposed agency action,except where the agency has alreadydisclosed to the public the content ornature of the disclosed action, or wherethe agency is required by law to makesuch disclosure on its own initiativeprior to taking final agency action onsuch proposal; or

(j) Specifically concern the agency’sissuance of a subpoena, or the agency’sparticipation in a civil action or pro-ceeding, an action in a foreign court orinternational tribunal, or an arbitra-tion, or the initiation, conduct, or dis-position by the agency of a particularcase of formal agency adjudication pur-suant to the procedures specified in 5U.S.C. 554 or otherwise involving a de-termination on the record after oppor-tunity for a hearing.

§ 1612.5 Closed meeting procedures:agency initiated requests.

(a) Any member of the agency, theLegal Counsel, or any other Commis-sion official submitting an agenda itemfor the subject meeting may requestthat any meeting or portion thereof beclosed to public observation for any ofthe reasons provided in § 1612.4 of thispart by submitting a request in writingto the Commission through the Officeof the Executive Secretariat no laterthan fourteen (14) calendar days priorto the meeting.

(b) Upon receipt of any request madeunder paragraph (a) of this section, theExecutive Secretary shall submit therequest to the Legal Counsel for cer-tification in accordance with § 1612.9 ofthis part.

(c) No later than seven (7) calendardays prior to the scheduled meeting


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the members of the agency shall, uponconsideration of the request submittedand consideration of the certified opin-ion of the Legal Counsel, determine byrecorded vote whether to close themeeting or portion of the meeting topublic observation. The members mayvote less than seven days prior to thescheduled meeting where:

(1) A majority of the members of theCommission determines by recordedvote that agency business requires thatany such meeting or series of meetingsbe held at an earlier date.

(2) A meeting is closed under theCommission’s regulation as set forth in§ 1612.13(a) of this part.

(3) A meeting is closed pursuant to arequest made under § 1612.6 of this partand submitted less than seven daysprior to the meeting.

(4) There is a need to change the sub-ject matter or the determination toopen or close a meeting previously an-nounced.

(d) The Commissioner shall, at thesame time, vote on whether to with-hold any information pertaining to themeeting and otherwise required to beannounced (§ 1612.7(a)(3)) or made pub-licly available (paragraphs (f) (2) and(3) of this section).

(e) A meeting, portion of a meeting,or series of meetings may be closed topublic observation only when a major-ity of the entire agency membershipvotes to take such action. Informationpertaining to a meeting, portion of ameeting or series of meetings other-wise required to be announced(§ 1612.7(a)(3)) or made publicly avail-able (paragraphs (f) (2) and (3) of thissection) shall be withheld only when amajority of the entire agency member-ship votes to take such action.

(f) With respect to each vote takenon whether a meeting should be openor closed, the agency shall, within oneday of such vote, make publicly avail-able the following information:

(1) A written copy of the vote of eachparticipating Commission member onthe question.

(2) A written explanation of Commis-sion action closing a meeting or por-tions thereof, and

(3) The name and affiliation of anypersons who are expected to attend aclosed meeting.

(g) The agency shall, within one day,make publicly available the vote ofeach Commission member on whetheror not to withhold any of the informa-tion described in paragraphs (f) (2) or(3) of this section.

(h) A separate vote shall be taken foreach meeting proposed to be closed tothe public and with respect to any in-formation proposed to be withheldfrom the public. However, a single votemay be taken with respect to a seriesof meetings proposed to be closed tothe public, and with respect to infor-mation concerning such series of meet-ings, if each meeting involves the sameparticular matters and is scheduled tobe held no later than thirty (30) cal-endar days after the first meeting inthe series.

[42 FR 13830, Mar. 14, 1977, as amended at 47FR 46276, Oct. 18, 1982]

§ 1612.6 Closed meeting procedures:request initiated by an interestedperson.

(a) Any person as defined in § 1612.2 ofthis part whose interest may be di-rectly affected by a portion of a meet-ing may request that the agency closethat portion of the meeting to the pub-lic for any of the reasons listed in§ 1612.4(e), (f) or (g).

(b) Any person described in para-graph (a) of this section who submits arequest that a portion of a meeting beclosed, shall submit such request to theChairman of the agency at the fol-lowing address: the Equal EmploymentOpportunity Commission, 2401 E StreetNW., Washington, DC, 20506. Such per-son shall state with particularity thatportion of a meeting sought to beclosed and the reasons for such request.

(c) The Chairman, upon receipt ofany request made under paragraph (a)of this section, shall furnish a copy ofthe request to:

(1) Each member of the agency.(2) The Legal Counsel for certifi-

cation in accordance with § 1612.9 ofthis part.

(d) Any member of the agency mayrequest agency action upon such re-quest.

(e) The Commission shall, upon therequest of any one of its members andconsideration of the certified opinion


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of the Legal Counsel, determine by re-corded vote whether to close suchmeeting or portion thereof.

(f) The Chairman of the Commissionshall promptly communicate to anyperson making a request to close ameeting or portion of a meeting underthis section the agency’s final disposi-tion of such request.


§ 1612.7 Public announcement of agen-cy meetings.

(a) Public announcement of eachmeeting by the agency shall be accom-plished by recorded telephone messageat telephone number 202–663–7100 (be-tween the hours of 9 a.m. and 5 p.m.e.t.), and by posting such announce-ment in the lobby of the Commission’sheadquarters at 1801 L Street NW.,Washington, DC 20507, not later thanone week prior to commencement of ameeting or the commencement of thefirst meeting in a series of meetings,except as otherwise provided in thissection, and shall disclose:

(1) The time of the meeting.(2) The place of the meeting.(3) The subject matter of each por-

tion of each meeting or series of meet-ings.

(4) Whether any portion(s) of a meet-ing will be open or closed to public ob-servation.

(5) The name and telephone numberof an official designated to respond torequests for information about themeeting.

(b) Where a meeting is closed to thepublic, the agency may withhold andnot announce the information specifiedin paragraph (a)(3) of this section, ifand to the extent that it finds thatsuch action is justified under § 1612.4.Information shall be withheld only bya recorded vote of a majority of the en-tire membership of the agency.

(c) The announcement described inparagraph (a) of this section may be ac-complished less than one week prior tothe commencement of any meeting orseries of meetings where:

(1) A majority of the members of theCommission determines by recordedvote that agency business requires thatany such meeting or series of meetingsbe held at an earlier date.

(2) A meeting is closed under theCommission’s regulation as set forth in§ 1612.13(a) of this part.

(3) A meeting is closed pursuant to arequest made under § 1612.6 of this partand submitted less than seven daysprior to the meeting.

(4) There has been a change in thesubject matter or determination toopen or close a meeting previously an-nounced.In these instances, the agency shallmake public announcement at the ear-liest practicable time.

(d) Immediately following any publicannouncement accomplished under theprovisions of this section, the agencyshall submit a notice for publication inthe FEDERAL REGISTER disclosing:



(4) Whether any portion(s) of a meet-ing will be open or closed to public ob-servation.

(5) The name and telephone numberof an official designated to respond torequests for information about themeeting.

[42 FR 13830, Mar. 14, 1977, as amended at 55FR 8140, Mar. 7, 1990]

§ 1612.8 Public announcement ofchanges in meetings.

(a) The agency is required to make apublic announcement of any changes inits meeting or portion(s) thereof. If,after the announcement provided for in§ 1612.7, the time or place of a meetingis changed or the meeting is cancelled,the agency will announce the change atthe earliest practicable time. The sub-ject matter or the determination toopen or close the meeting may bechanged only if (1) a majority of theentire membership of the agency deter-mines by recorded vote that agencybusiness so requires and that no earlierannouncement of the change was pos-sible and (2) the agency publicly an-nounces the change and the vote ofeach member upon such change at theearliest practicable time.

(b) Immediately following any publicannouncement of any change accom-plished under the provisions of this sec-tion, the agency shall submit a notice


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for publication in the FEDERAL REG-ISTER disclosing:



(4) Whether any portion(s) of a meet-ing is open or closed to public observa-tion.

(5) Any change in paragraphs (b) (1),(2), (3), or (4) of this section.

(6) The name and telephone numberof the official designated to respond torequests for information about anymeeting.

§ 1612.9 Legal Counsel’s certificationin closing a meeting.

(a) Upon any proper request madepursuant to this part, that the agencyclose a meeting or portion(s) thereof,the Legal Counsel shall certify in writ-ing to the agency, whether in his or heropinion the closing of a meeting or por-tion(s) thereof is proper under the pro-visions of this part and the terms ofthe Government in the Sunshine Act (5U.S.C. 552b). If, in the opinion of theLegal Counsel, a meeting or portion(s)thereof is proper for closing under thispart and the terms of the Governmentin the Sunshine Act, his or her certifi-cation of that opinion shall cite eachapplicable particular exemption of thatAct and provision of this part.

(b) A copy of the certification of theLegal Counsel as described in para-graph (a) of this section together witha statement of the presiding officer ofthe meeting setting forth the time andplace of the relevant meeting or meet-ings, and the persons present, shall bemaintained by the agency in a publicfile.


§ 1612.10 Recordkeeping requirements.(a) In the case of any meeting or por-

tion(s) thereof to be closed to publicobservation under the provisions ofthis part, the following records shall bemaintained by the Executive Secretaryof the agency:

(1) The certification of the LegalCounsel pursuant to § 1612.9 of thispart;

(2) A statement from the presidingofficer of the meeting or portion(s)thereof setting forth the time andplace of the meeting, and the personspresent;

(3) A complete electronic recordingadequate to record fully the pro-ceedings of each meeting closed to thepublic observation, except that in ameeting closed pursuant to paragraph(h) or (j) of § 1612.4, the agency maymaintain minutes in lieu of a record-ing. Such minutes shall fully, andclearly describe all matters discussedand shall provide a full and accuratesummary of any actions taken, and thereasons therefor, including a descrip-tion of each of the views expressed onany item and the record of any roll callvote. All documents considered in con-nection with any item shall be identi-fied in the minutes.

(b) If the agency has determined thatthe meeting or portion(s) thereof mayproperly be closed to the public, theelectronic recording or minutes shallnot be made available to the publicuntil such future time, if any, as it isdetermined by the Commission uponrequest, that the reasons for closingthe meeting no longer pertain; Pro-vided, however, that any separable por-tion of a recording or minutes will bemade promptly available to the publicif that portion does not contain infor-mation properly withheld under§ 1612.4.

(c) The agency shall maintain a copyof the electronic recording or minutesfor a period of two years after themeeting, or until one year after theconclusion of the proceeding to whichthe meeting relates, whichever occurslater.


§ 1612.11 Public access to records.All requests for information shall be

submitted in writing to the Chairmanof the agency. Requests to inspect orcopy the electronic recordings or min-utes of agency meetings or portionsthereof will be considered under theprovisions of § 1612.4 of this part.

§ 1612.12 Fees.(a) Records provided to the public

under this part shall be furnished at


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the expense of the party requestingcopies of the recording or minutes,upon payment of the actual cost of du-plication.

(b) All required fees shall be paid infull prior to issuance of requested cop-ies of records. Fees are payable to the‘‘Treasurer of the United States.’’

§ 1612.13 Meetings closed by regula-tion.

(a) This paragraph constitutes theCommission’s regulation promulgatedpursuant to paragraph (d)(4) of theGovernment in the Sunshine Act andmay be invoked by the agency to closemeetings or portions thereof where thesubject matter of such meeting or por-tion of a meeting is likely to involve:

(1) Matters pertaining to the issuanceof subpoenas;

(2) Subpoena modification and rev-ocation requests, and

(3) The Agency’s participation incivil actions or proceedings pertainingthereto.

(b) When closing a meeting or portionthereof under the Commission’s regula-tion set forth in paragraph (a) of thissection, a majority of the Commissionmembership shall vote at or before thebeginning of such meeting or portionthereof to do so. The vote to close ameeting by regulation shall be re-corded and made publicly available.

(c) The Commission’s determinationto promulgate the regulation in para-graph (a) of this section is based upona review of the agenda of Commissionmeetings for the two years prior to thepromulgation of these regulations.

(1) Since the Commission’s practiceof conducting weekly meetings beganin 1975, proposed litigation againsttitle VII respondents has been a reg-ular agenda item. The tenth exemptionof the Government in the SunshineAct, 5 U.S.C. 552b(c)(10), exempts thediscussion of these matters from theopen meeting requirements of the Act.

(2) Thus, the Commission has deter-mined that a majority of its meetingsor portions thereof may properly beclosed to the public under the tenth ex-emption of the Sunshine Act, and thatparagraph (d)(4) of the Sunshine Act isproperly relied upon in promulgatingthe Commission’s regulation in para-graph (a) of this section.

§ 1612.14 Judicial review.Any person may bring an action in a

United States District Court to chal-lenge or enforce the provisions of thispart. Such action may be brought priorto or within sixty (60) calendar daysafter the meeting in question, exceptthat if proper public announcement ofthe meeting is not made, the actionmay be instituted at any time withinsixty (60) days after such announce-ment is made. An action may bebrought where the agency meeting washeld or in the District of Columbia.

PART 1614—FEDERAL SECTOREQUAL EMPLOYMENT OPPORTUNITY

Subpart A—Agency Program To PromoteEqual Employment Opportunity

1614.101 General policy.1614.102 Agency program.1614.103 Complaints of discrimination cov-

ered by this part.1614.104 Agency processing.1614.105 Pre-complaint processing.1614.106 Individual complaints.1614.107 Dismissals of complaints.1614.108 Investigation of complaints.1614.109 Hearings.1614.110 Final action by agencies.

Subpart B—Provisions Applicable toParticular Complaints

1614.201 Age Discrimination in EmploymentAct.

1614.202 Equal Pay Act.1614.203 Rehabilitation Act.1614.204 Class complaints.

Subpart C—Related Processes

1614.301 Relationship to negotiated griev-ance procedure.

1614.302 Mixed case complaints.1614.303 Petitions to the EEOC from MSPB

decisions on mixed case appeals and com-plaints.

1614.304 Contents of petition.1614.305 Consideration procedures.1614.306 Referral of case to Special Panel.1614.307 Organization of Special Panel.1614.308 Practices and procedures of the

Special Panel.1614.309 Enforcement of Special Panel deci-

sion.1614.310 Right to file a civil action.

Subpart D—Appeals and Civil Actions

1614.401 Appeals to the Commission.


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1614.402 Time for appeals to the Commis-sion.

1614.403 How to appeal.1614.404 Appellate procedure.1614.405 Decisions on appeals.1614.406 Time limits. [Reserved]1614.407 Civil action: Title VII, Age Dis-

crimination in Employment Act and Re-habilitation Act.

1614.408 Civil action: Equal Pay Act.1614.409 Effect of filing a civil action.

Subpart E—Remedies and Enforcement

1614.501 Remedies and relief.1614.502 Compliance with final Commission

decisions.1614.503 Enforcement of final Commission

decisions.1614.504 Compliance with settlement agree-

ments and final action.1614.505 Interim relief.

Subpart F—Matters of GeneralApplicability

1614.601 EEO group statistics.1614.602 Reports to the Commission.1614.603 Voluntary settlement attempts.1614.604 Filing and computation of time.1614.605 Representation and official time.1614.606 Joint processing and consolidation

of complaints.1614.607 Delegation of authority.

AUTHORITY: 29 U.S.C. 206(d), 633a, 791 and794a; 42 U.S.C. 2000e–16; 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, 1969Comp., p.133; E.O. 12106, 3 CFR, 1978 Comp.,p.263; Reorg. Plan No. 1 of 1978, 3 CFR, 1978Comp., p.321.


Subpart A—Agency Program ToPromote Equal EmploymentOpportunity

§ 1614.101 General policy.(a) It is the policy of the Government

of the United States to provide equalopportunity in employment for all per-sons, to prohibit discrimination in em-ployment because of race, color, reli-gion, sex, national origin, age or handi-cap and to promote the full realizationof equal employment opportunitythrough a continuing affirmative pro-gram in each agency.

(b) No person shall be subject to re-taliation for opposing any practicemade unlawful by title VII of the CivilRights Act (title VII) (42 U.S.C. 2000e et

seq.), the Age Discrimination in Em-ployment Act (ADEA) (29 U.S.C. 621 etseq.), the Equal Pay Act (29 U.S.C.206(d)) or the Rehabilitation Act (29U.S.C. 791 et seq.) or for participating inany stage of administrative or judicialproceedings under those statutes.

§ 1614.102 Agency program.

(a) Each agency shall maintain a con-tinuing affirmative program to pro-mote equal opportunity and to identifyand eliminate discriminatory practicesand policies. In support of this pro-gram, the agency shall:

(1) Provide sufficient resources to itsequal employment opportunity pro-gram to ensure efficient and successfuloperation;

(2) Provide for the prompt, fair andimpartial processing of complaints inaccordance with this part and the in-structions contained in the Commis-sion’s Management Directives;

(3) Conduct a continuing campaign toeradicate every form of prejudice ordiscrimination from the agency’s per-sonnel policies, practices and workingconditions;

(4) Communicate the agency’s equalemployment opportunity policy andprogram and its employment needs toall sources of job candidates withoutregard to race, color, religion, sex, na-tional, origin, age or handicap, and so-licit their recruitment assistance on acontinuing basis;

(5) Review, evaluate and controlmanagerial and supervisory perform-ance in such a manner as to insure acontinuing affirmative application andvigorous enforcement of the policy ofequal opportunity, and provide orienta-tion, training and advice to managersand supervisors to assure their under-standing and implementation of theequal employment opportunity policyand program;

(6) Take appropriate disciplinary ac-tion against employees who engage indiscriminatory practices;

(7) Make reasonable accommodationto the religious needs of applicants andemployees when those accommodationscan be made without undue hardshipon the business of the agency;


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(8) Make reasonable accommodationto the known physical or mental limi-tations of qualified applicants and em-ployees with handicaps unless the ac-commodation would impose an unduehardship on the operation of the agen-cy’s program;

(9) Reassign, in accordance with§ 1614.203(g), nonprobationary employ-ees who develop physical or mentallimitations that prevent them fromperforming the essential functions oftheir positions even with reasonableaccommodation;

(10) Provide recognition to employ-ees, supervisors, managers and unitsdemonstrating superior accomplish-ment in equal employment oppor-tunity;

(11) Establish a system for periodi-cally evaluating the effectiveness ofthe agency’s overall equal employmentopportunity effort;

(12) Provide the maximum feasibleopportunity to employees to enhancetheir skills through on-the-job train-ing, work-study programs and othertraining measures so that they mayperform at their highest potential andadvance in accordance with their abili-ties;

(13) Inform its employees and recog-nized labor organizations of the affirm-ative equal employment opportunitypolicy and program and enlist their co-operation; and

(14) Participate at the communitylevel with other employers, withschools and universities and with otherpublic and private groups in coopera-tive action to improve employment op-portunities and community conditionsthat affect employability.

(b) In order to implement its pro-gram, each agency shall:

(1) Develop the plans, procedures andregulations necessary to carry out itsprogram;

(2) Establish or make available an al-ternative dispute resolution program.Such program must be available forboth the pre-complaint process and theformal complaint process.

(3) Appraise its personnel operationsat regular intervals to assure theirconformity with its program, this part1614 and the instructions contained inthe Commission’s management direc-tives;

(4) Designate a Director of Equal Em-ployment Opportunity (EEO Director),EEO Officer(s), and such Special Em-phasis Program Managers (e.g., PeopleWith Disabilities Program, FederalWomen’s Program and Hispanic Em-ployment Program), clerical and ad-ministrative support as may be nec-essary to carry out the functions de-scribed in this part in all organiza-tional units of the agency and at allagency installations. The EEO Directorshall be under the immediate super-vision of the agency head;

(5) Make written materials availableto all employees and applicants in-forming them of the variety of equalemployment opportunity programs andadministrative and judicial remedialprocedures available to them andprominently post such written mate-rials in all personnel and EEO officesand throughout the workplace;

(6) Ensure that full cooperation isprovided by all agency employees toEEO Counselors and agency EEO per-sonnel in the processing and resolutionof pre-complaint matters and com-plaints within an agency and that fullcooperation is provided to the Commis-sion in the course of appeals, includinggranting the Commission routine ac-cess to personnel records of the agencywhen required in connection with aninvestigation; and

(7) Publicize to all employees andpost at all times the names, businesstelephone numbers and business ad-dresses of the EEO Counselors (unlessthe counseling function is centralized,in which case only the telephone num-ber and address need be publicized andposted), a notice of the time limits andnecessity of contacting a Counselor be-fore filing a complaint and the tele-phone numbers and addresses of theEEO Director, EEO Officer(s) and Spe-cial Emphasis Program Managers.

(c) Under each agency program, theEEO Director shall be responsible for:

(1) Advising the head of the agencywith respect to the preparation of na-tional and regional equal employmentopportunity plans, procedures, regula-tions, reports and other matters per-taining to the policy in § 1614.101 andthe agency program;

(2) Evaluating from time to time thesufficiency of the total agency program


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for equal employment opportunity andreporting to the head of the agencywith recommendations as to any im-provement or correction needed, in-cluding remedial or disciplinary actionwith respect to managerial, super-visory or other employees who havefailed in their responsibilities;

(3) When authorized by the head ofthe agency, making changes in pro-grams and procedures designed toeliminate discriminatory practices andto improve the agency’s program forequal employment opportunity;

(4) Providing for counseling of ag-grieved individuals and for the receiptand processing of individual and classcomplaints of discrimination; and

(5) Assuring that individual com-plaints are fairly and thoroughly inves-tigated and that final action is takenin a timely manner in accordance withthis part.

(d) Directives, instructions, formsand other Commission materials ref-erenced in this part may be obtained inaccordance with the provisions of 29CFR 1610.7 of this chapter.


§ 1614.103 Complaints of discrimina-tion covered by this part.

(a) Individual and class complaints ofemployment discrimination and retal-iation prohibited by title VII (discrimi-nation on the basis of race, color, reli-gion, sex and national origin), theADEA (discrimination on the basis ofage when the aggrieved individual is atleast 40 years of age), the Rehabilita-tion Act (discrimination on the basis ofhandicap) or the Equal Pay Act (sex-based wage discrimination) shall beprocessed in accordance with this part.Complaints alleging retaliation prohib-ited by these statutes are considered tobe complaints of discrimination forpurposes of this part.

(b) This part applies to:(1) Military departments as defined

in 5 U.S.C. 102;(2) Executive agencies as defined in 5

U.S.C. 105;(3) The United States Postal Service,

Postal Rate Commission and TennesseeValley Authority;

(4) All units of the judicial branch ofthe Federal government having posi-

tions in the competitive service, exceptfor complaints under the Rehabilita-tion Act;

(5) The National Oceanic and Atmos-pheric Administration CommissionedCorps;

(6) The Government Printing Office;and

(7) The Smithsonian Institution.(c) Within the covered departments,

agencies and units, this part applies toall employees and applicants for em-ployment, and to all employment poli-cies or practices affecting employees orapplicants for employment includingemployees and applicants who are paidfrom nonappropriated funds, unlessotherwise excluded.

(d) This part does not apply to:(1) Uniformed members of the mili-

tary departments referred to in para-graph (b)(1) of this section:

(2) Employees of the General Ac-counting Office;

(3) Employees of the Library of Con-gress;

(4) Aliens employed in positions, orwho apply for positions, located out-side the limits of the United States; or

(5) Equal Pay Act complaints of em-ployees whose services are performedwithin a foreign country or certainUnited States territories as provided in29 U.S.C. 213(f).


§ 1614.104 Agency processing.

(a) Each agency subject to this partshall adopt procedures for processingindividual and class complaints of dis-crimination that include the provisionscontained in §§ 1614.105 through 1614.110and in § 1614.204, and that are con-sistent with all other applicable provi-sions of this part and the instructionsfor complaint processing contained inthe Commission’s Management Direc-tives.

(b) The Commission shall periodi-cally review agency resources and pro-cedures to ensure that an agencymakes reasonable efforts to resolvecomplaints informally, to process com-plaints in a timely manner, to develop


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adequate factual records, to issue deci-sions that are consistent with accept-able legal standards, to explain the rea-sons for its decisions, and to give com-plainants adequate and timely noticeof their rights.

§ 1614.105 Pre-complaint processing.(a) Aggrieved persons who believe

they have been discriminated againston the basis of race, color, religion,sex, national origin, age or handicapmust consult a Counselor prior to fil-ing a complaint in order to try to in-formally resolve the matter.

(1) An aggrieved person must initiatecontact with a Counselor within 45days of the date of the matter allegedto be discriminatory or, in the case ofpersonnel action, within 45 days of theeffective date of the action.

(2) The agency or the Commissionshall extend the 45-day time limit inparagraph (a)(1) of this section whenthe individual shows that he or she wasnot notified of the time limits and wasnot otherwise aware of them, that heor she did not know and reasonablyshould not have been known that thediscriminatory matter or personnel ac-tion occurred, that despite due dili-gence he or she was prevented by cir-cumstances beyond his or her controlfrom contacting the counselor withinthe time limits, or for other reasonsconsidered sufficient by the agency orthe Commission.

(b)(1) At the initial counseling ses-sion, Counselors must advise individ-uals in writing of their rights and re-sponsibilities, including the right to re-quest a hearing or an immediate finaldecision after an investigation by theagency in accordance with § 1614.108(f),election rights pursuant to §§ 1614.301and 1614.302, the right to file a notice ofintent to sue pursuant to § 1614.201(a)and a lawsuit under the ADEA insteadof an administrative complaint of agediscrimination under this part, theduty to mitigate damages, administra-tive and court time frames, and thatonly the claims raised in precomplaintcounseling (or issues or claims like orrelated to issues or claims raised inpre-complaint counseling) may be al-leged in a subsequent complaint filedwith the agency. Counselors must ad-vise individuals of their duty to keep

the agency and Commission informedof their current address and to servecopies of appeal papers on the agency.The notice required by paragraphs (d)or (e) of this section shall include a no-tice of the right to file a class com-plaint. If the aggrieved person informsthe Counselor that he or she wishes tofile a class complaint, the Counselorshall explain the class complaint pro-cedures and the responsibilities of aclass agent.

(2) Counselors shall advise aggrievedpersons that, where the agency agreesto offer ADR in the particular case,they may choose between participationin the alternative dispute resolutionprogram and the counseling activitiesprovided for in paragraph (c) of thissection.

(c) Counselors shall conduct coun-seling activities in accordance with in-structions contained in CommissionManagement Directives. When advisedthat a complaint has been filed by anaggrieved person, the Counselor shallsubmit a written report within 15 daysto the agency office that has been des-ignated to accept complaints and theaggrieved person concerning the issuesdiscussed and actions taken duringcounseling.

(d) Unless the aggrieved personagrees to a longer counseling periodunder paragraph (e) of this section, orthe aggrieved person chooses an alter-native dispute resolution procedure inaccordance with paragraph (b)(2) ofthis section, the Counselor shall con-duct the final interview with the ag-grieved person within 30 days of thedate the aggrieved person contactedthe agency’s EEO office to requestcounseling. If the matter has not beenresolved, the aggrieved person shall beinformed in writing by the Counselor,not later than the thirtieth day aftercontacting the Counselor, of the rightto file a discrimination complaint. Thenotice shall inform the complainant ofthe right to file a discrimination com-plaint within 15 days of receipt of thenotice, of the appropriate official withwhom to file a complaint and of thecomplainant’s duty to assure that theagency is informed immediately if thecomplainant retains counsel or a rep-resentative.


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(e) Prior to the end of the 30-day pe-riod, the aggrieved person may agree inwriting with the agency to postponethe final interview and extend thecounseling period for an additional pe-riod of no more than 60 days. If thematter has not been resolved before theconclusion of the agreed extension, thenotice described in paragraph (d) ofthis section shall be issued.

(f) Where the aggrieved person choos-es to participate in an alternative dis-pute resolution procedure in accord-ance with paragraph (b)(2) of this sec-tion, the pre-complaint processing pe-riod shall be 90 days. If the claim hasnot been resolved before the 90th day,the notice described in paragraph (d) ofthis section shall be issued.

(g) The Counselor shall not attemptin any way to restrain the aggrievedperson from filing a complaint. TheCounselor shall not reveal the identityof an aggrieved person who consultedthe Counselor, except when authorizedto do so by the aggrieved person, oruntil the agency has received a dis-crimination complaint under this partfrom that person involving that samematter.


§ 1614.106 Individual complaints.(a) A complaint must be filed with

the agency that allegedly discrimi-nated against the complainant.

(b) A complaint must be filed within15 days of receipt of the notice requiredby § 1614.105 (d), (e) or (f).

(c) A complaint must contain asigned statement from the personclaiming to be aggrieved or that per-son’s attorney. This statement must besufficiently precise to identify the ag-grieved individual and the agency andto describe generally the action(s) orpractice(s) that form the basis of thecomplaint. The complaint must alsocontain a telephone number and ad-dress where the complainant or therepresentative can be contacted.

(d) A complainant may amend a com-plaint at any time prior to the conclu-sion of the investigation to includeissues or claims like or related to thoseraised in the complaint. After request-ing a hearing, a complainant may file amotion with the administrative judge

to amend a complaint to include issuesor claims like or related to those raisedin the complaint.

(e) The agency shall acknowledge re-ceipt of a complaint or an amendmentto a complaint in writing and informthe complainant of the date on whichthe complaint or amendment was filed.The agency shall advise the complain-ant in the acknowledgment of theEEOC office and its address where a re-quest for a hearing shall be sent. Suchacknowledgment shall also advise thecomplainant that:

(1) The complainant has the right toappeal the final action on or dismissalof a complaint; and

(2) The agency is required to conductan impartial and appropriate investiga-tion of the complaint within 180 days ofthe filing of the complaint unless theparties agree in writing to extend thetime period. When a complaint hasbeen amended, the agency shall com-plete its investigation within the ear-lier of 180 days after the last amend-ment to the complaint or 360 days afterthe filing of the original complaint, ex-cept that the complainant may requesta hearing from an administrative judgeon the consolidated complaints anytime after 180 days from the date of thefirst filed complaint.


§ 1614.107 Dismissals of complaints.(a) Prior to a request for a hearing in

a case, the agency shall dismiss an en-tire complaint:

(1) That fails to state a claim under§ 1614.103 or § 1614.106(a) or states thesame claim that is pending before orhas been decided by the agency or Com-mission;

(2) That fails to comply with the ap-plicable time limits contained in§§ 1614.105, 1614.106 and 1614.204(c), un-less the agency extends the time limitsin accordance with § 1614.604(c), or thatraises a matter that has not beenbrought to the attention of a Counselorand is not like or related to a matterthat has been brought to the attentionof a Counselor;

(3) That is the basis of a pending civilaction in a United States DistrictCourt in which the complainant is aparty provided that at least 180 days


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have passed since the filing of the ad-ministrative complaint, or that wasthe basis of a civil action decided by aUnited States District Court in whichthe complainant was a party;

(4) Where the complainant has raisedthe matter in a negotiated grievanceprocedure that permits allegations ofdiscrimination or in an appeal to theMerit Systems Protection Board and§ 1614.301 or § 1614.302 indicates that thecomplainant has elected to pursue thenon-EEO process;

(5) That is moot or alleges that a pro-posal to take a personnel action, orother preliminary step to taking a per-sonnel action, is discriminatory;

(6) Where the complainant cannot belocated, provided that reasonable ef-forts have been made to locate thecomplainant and the complainant hasnot responded within 15 days to a no-tice of proposed dismissal sent to his orher last known address;

(7) Where the agency has providedthe complainant with a written requestto provide relevant information or oth-erwise proceed with the complaint, andthe complainant has failed to respondto the request within 15 days of its re-ceipt or the complainant’s responsedoes not address the agency’s request,provided that the request included anotice of the proposed dismissal. In-stead of dismissing for failure to co-operate, the complaint may be adju-dicated if sufficient information forthat purpose is available;

(8) That alleges dissatisfaction withthe processing of a previously filedcomplaint; or

(9) Where the agency, strictly apply-ing the criteria set forth in Commis-sion decisions, finds that the complaintis part of a clear pattern of misuse ofthe EEO process for a purpose otherthan the prevention and elimination ofemployment discrimination. A clearpattern of misuse of the EEO processrequires:

(i) Evidence of multiple complaintfilings; and

(ii) Allegations that are similar oridentical, lack specificity or involvematters previously resolved; or

(iii) Evidence of circumventing otheradministrative processes, retaliatingagainst the agency’s in-house adminis-

trative processes or overburdening theEEO complaint system.

(b) Where the agency believes thatsome but not all of the claims in acomplaint should be dismissed for thereasons contained in paragraphs (a)(1)through (9) of this section, the agencyshall notify the complainant in writingof its determination, the rationale forthat determination and that thoseclaims will not be investigated, andshall place a copy of the notice in theinvestigative file. A determinationunder this paragraph is reviewable byan administrative judge if a hearing isrequested on the remainder of the com-plaint, but is not appealable until finalaction is taken on the remainder of thecomplaint.


§ 1614.108 Investigation of complaints.

(a) The investigation of complaintsshall be conducted by the agencyagainst which the complaint has beenfiled.

(b) In accordance with instructionscontained in Commission ManagementDirectives, the agency shall develop animpartial and appropriate factualrecord upon which to make findings onthe claims raised by the written com-plaint. An appropriate factual record isone that allows a reasonable fact finderto draw conclusions as to whether dis-crimination occurred. Agencies mayuse an exchange of letters or memo-randa, interrogatories, investigations,fact-finding conferences or any otherfact-finding methods that efficientlyand thoroughly address the matters atissue. Agencies are encouraged to in-corporate alternative dispute resolu-tion techniques into their investigativeefforts in order to promote early reso-lution of complaints.

(c) The procedures in paragraphs (c)(1) through (3) of this section apply tothe investigation of complaints:

(1) The complainant, the agency, andany employee of a Federal agency shallproduce such documentary and testi-monial evidence as the investigatordeems necessary.


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(2) Investigators are authorized toadminister oaths. Statements of wit-nesses shall be made under oath or af-firmation or, alternatively, by writtenstatement under penalty of perjury.

(3) When the complainant, or theagency against which a complaint isfiled, or its employees fail withoutgood cause shown to respond fully andin timely fashion to requests for docu-ments, records, comparative data, sta-tistics, affidavits, or the attendance ofwitness(es), the investigator may notein the investigative record that the de-cisionmaker should, or the Commissionon appeal may, in appropriate cir-cumstances:

(i) Draw an adverse inference thatthe requested information, or the testi-mony of the requested witness, wouldhave reflected unfavorably on theparty refusing to provide the requestedinformation;

(ii) Consider the matters to whichthe requested information or testi-mony pertains to be established infavor of the opposing party;

(iii) Exclude other evidence offeredby the party failing to produce the re-quested information or witness;

(iv) Issue a decision fully or partiallyin favor of the opposing party; or

(v) Take such other actions as itdeems appropriate.

(d) Any investigation will be con-ducted by investigators with appro-priate security clearances. The Com-mission will, upon request, supply theagency with the name of an investi-gator with appropriate security clear-ances.

(e) The agency shall complete its in-vestigation within 180 days of the dateof filing of an individual complaint orwithin the time period contained in anorder from the Office of Federal Oper-ations on an appeal from a dismissalpursuant to § 1614.107. By written agree-ment within those time periods, thecomplainant and the respondent agen-cy may voluntarily extend the time pe-riod for not more than an additional 90days. The agency may unilaterally ex-tend the time period or any period ofextension for not more than 30 dayswhere it must sanitize a complaint filethat may contain information classi-fied pursuant to Exec. Order No. 12356,or successor orders, as secret in the in-

terest of national defense or foreignpolicy, provided the investigatingagency notifies the parties of the ex-tension.

(f) Within 180 days from the filing ofthe complaint, or where a complaintwas amended, within the earlier of 180days after the last amendment to thecomplaint or 360 days after the filing ofthe original complaint, within the timeperiod contained in an order from theOffice of Federal Operations on an ap-peal from a dismissal, or within any pe-riod of extension provided for in para-graph (e) of this section, the agencyshall provide the complainant with acopy of the investigative file, and shallnotify the complainant that, within 30days of receipt of the investigative file,the complainant has the right to re-quest a hearing and decision from anadministrative judge or may request animmediate final decision pursuant to§ 1614.110 from the agency with whichthe complaint was filed.

(g) Where the complainant has re-ceived the notice required in paragraph(f) of this section or at any time after180 days have elapsed from the filing ofthe complaint, the complainant mayrequest a hearing by submitting a writ-ten request for a hearing directly tothe EEOC office indicated in the agen-cy’s acknowledgment letter. The com-plainant shall send a copy of the re-quest for a hearing to the agency EEOoffice. Within 15 days of receipt of therequest for a hearing, the agency shallprovide a copy of the complaint file toEEOC and, if not previously provided,to the complainant.


§ 1614.109 Hearings.(a) When a complainant requests a

hearing, the Commission shall appointan administrative judge to conduct ahearing in accordance with this sec-tion. Upon appointment, the adminis-trative judge shall assume full respon-sibility for the adjudication of thecomplaint, including overseeing the de-velopment of the record. Any hearingwill be conducted by an administrativejudge or hearing examiner with appro-priate security clearances.

(b) Dismissals. Administrative judgesmay dismiss complaints pursuant to


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§ 1614.107, on their own initiative, afternotice to the parties, or upon an agen-cy’s motion to dismiss a complaint.

(c) Offer of resolution. (1) Any timeafter the filing of the written com-plaint but not later than the date anadministrative judge is appointed toconduct a hearing, the agency maymake an offer of resolution to a com-plainant who is represented by an at-torney.

(2) Any time after the parties havereceived notice that an administrativejudge has been appointed to conduct ahearing, but not later than 30 daysprior to the hearing, the agency maymake an offer of resolution to the com-plainant, whether represented by an at-torney or not.

(3) The offer of resolution shall be inwriting and shall include a notice ex-plaining the possible consequences offailing to accept the offer. The agen-cy’s offer, to be effective, must includeattorney’s fees and costs and mustspecify any non-monetary relief. Withregard to monetary relief, an agencymay make a lump sum offer coveringall forms of monetary liability, or itmay itemize the amounts and types ofmonetary relief being offered. Thecomplainant shall have 30 days fromreceipt of the offer of resolution to ac-cept it. If the complainant fails to ac-cept an offer of resolution and the re-lief awarded in the administrativejudge’s decision, the agency’s final de-cision, or the Commission decision onappeal is not more favorable than theoffer, then, except where the interest ofjustice would not be served, the com-plainant shall not receive paymentfrom the agency of attorney’s fees orcosts incurred after the expiration ofthe 30-day acceptance period. An ac-ceptance of an offer must be in writingand will be timely if postmarked or re-ceived within the 30-day period. Wherea complainant fails to accept an offerof resolution, an agency may makeother offers of resolution and eitherparty may seek to negotiate a settle-ment of the complaint at any time.

(d) Discovery. The administrativejudge shall notify the parties of theright to seek discovery prior to thehearing and may issue such discoveryorders as are appropriate. Unless theparties agree in writing concerning the

methods and scope of discovery, theparty seeking discovery shall requestauthorization from the administrativejudge prior to commencing discovery.Both parties are entitled to reasonabledevelopment of evidence on mattersrelevant to the issues raised in thecomplaint, but the administrativejudge may limit the quantity and tim-ing of discovery. Evidence may be de-veloped through interrogatories, depo-sitions, and requests for admissions,stipulations or production of docu-ments. It shall be grounds for objectionto producing evidence that the infor-mation sought by either party is irrele-vant, overburdensome, repetitious, orprivileged.

(e) Conduct of hearing. Agencies shallprovide for the attendance at a hearingof all employees approved as witnessesby an administrative judge. Attend-ance at hearings will be limited to per-sons determined by the administrativejudge to have direct knowledge relat-ing to the complaint. Hearings are partof the investigative process and arethus closed to the public. The adminis-trative judge shall have the power toregulate the conduct of a hearing, limitthe number of witnesses where testi-mony would be repetitious, and excludeany person from the hearing for con-tumacious conduct or misbehavior thatobstructs the hearing. The administra-tive judge shall receive into evidenceinformation or documents relevant tothe complaint. Rules of evidence shallnot be applied strictly, but the admin-istrative judge shall exclude irrelevantor repetitious evidence. The adminis-trative judge or the Commission mayrefer to the Disciplinary Committee ofthe appropriate Bar Association anyattorney or, upon reasonable noticeand an opportunity to be heard, sus-pend or disqualify from representingcomplainants or agencies in EEOChearings any representative who re-fuses to follow the orders of an admin-istrative judge, or who otherwise en-gages in improper conduct.

(f) Procedures. (1) The complainant,an agency, and any employee of a Fed-eral agency shall produce such docu-mentary and testimonial evidence asthe administrative judge deems nec-essary. The administrative judge shall


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serve all orders to produce evidence onboth parties.

(2) Administrative judges are author-ized to administer oaths. Statements ofwitnesses shall be made under oath oraffirmation or, alternatively, by writ-ten statement under penalty of per-jury.

(3) When the complainant, or theagency against which a complaint isfiled, or its employees fail withoutgood cause shown to respond fully andin timely fashion to an order of an ad-ministrative judge, or requests for theinvestigative file, for documents,records, comparative data, statistics,affidavits, or the attendance of wit-ness(es), the administrative judgeshall, in appropriate circumstances:

(i) Draw an adverse inference thatthe requested information, or the testi-mony of the requested witness, wouldhave reflected unfavorably on theparty refusing to provide the requestedinformation;

(ii) Consider the matters to whichthe requested information or testi-mony pertains to be established infavor of the opposing party;

(iii) Exclude other evidence offeredby the party failing to produce the re-quested information or witness;

(iv) Issue a decision fully or partiallyin favor of the opposing party; or

(v) Take such other actions as appro-priate.

(g) Decisions without hearing. (1) If aparty believes that some or all mate-rial facts are not in genuine disputeand there is no genuine issue as tocredibility, the party may, at least 15days prior to the date of the hearing orat such earlier time as required by theadministrative judge, file a statementwith the administrative judge prior tothe hearing setting forth the fact orfacts and referring to the parts of therecord relied on to support the state-ment. The statement must dem-onstrate that there is no genuine issueas to any such material fact. The partyshall serve the statement on the oppos-ing party.

(2) The opposing party may file anopposition within 15 days of receipt ofthe statement in paragraph (d)(1) ofthis section. The opposition may referto the record in the case to rebut thestatement that a fact is not in dispute

or may file an affidavit stating thatthe party cannot, for reasons stated,present facts to oppose the request.After considering the submissions, theadministrative judge may order thatdiscovery be permitted on the fact orfacts involved, limit the hearing to theissues remaining in dispute, issue a de-cision without a hearing or make suchother ruling as is appropriate.

(3) If the administrative judge deter-mines upon his or her own initiativethat some or all facts are not in gen-uine dispute, he or she may, after giv-ing notice to the parties and providingthem an opportunity to respond inwriting within 15 calendar days, issuean order limiting the scope of the hear-ing or issue a decision without holdinga hearing.

(h) Record of hearing. The hearingshall be recorded and the agency shallarrange and pay for verbatim tran-scripts. All documents submitted to,and accepted by, the administrativejudge at the hearing shall be made partof the record of the hearing. If theagency submits a document that is ac-cepted, it shall furnish a copy of thedocument to the complainant. If thecomplainant submits a document thatis accepted, the administrative judgeshall make the document available tothe agency representative for reproduc-tion.

(i) Decisions by administrative judges.Unless the administrative judge makesa written determination that goodcause exists for extending the time forissuing a decision, an administrativejudge shall issue a decision on the com-plaint, and shall order appropriateremedies and relief where discrimina-tion is found, within 180 days of receiptby the administrative judge of thecomplaint file from the agency. Theadministrative judge shall send copiesof the hearing record, including thetranscript, and the decision to the par-ties. If an agency does not issue a finalorder within 40 days of receipt of theadministrative judge’s decision in ac-cordance with 1614.110, then the deci-sion of the administrative judge shallbecome the final action of the agency.



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§ 1614.110 Final action by agencies.(a) Final action by an agency following

a decision by an administrative judge.When an administrative judge hasissued a decision under § 1614.109(b), (g)or (i), the agency shall take final ac-tion on the complaint by issuing a finalorder within 40 days of receipt of thehearing file and the administrativejudge’s decision. The final order shallnotify the complainant whether or notthe agency will fully implement the de-cision of the administrative judge andshall contain notice of the complain-ant’s right to appeal to the Equal Em-ployment Opportunity Commission,the right to file a civil action in federaldistrict court, the name of the properdefendant in any such lawsuit and theapplicable time limits for appeals andlawsuits. If the final order does notfully implement the decision of the ad-ministrative judge, then the agencyshall simultaneously file an appeal inaccordance with § 1614.403 and append acopy of the appeal to the final order. Acopy of EEOC Form 573 shall be at-tached to the final order.

(b) Final action by an agency in allother circumstances. When an agencydismisses an entire complaint under§ 1614.107, receives a request for an im-mediate final decision or does not re-ceive a reply to the notice issued under§ 1614.108(f), the agency shall take finalaction by issuing a final decision. Thefinal decision shall consist of findingsby the agency on the merits of eachissue in the complaint, or, as appro-priate, the rationale for dismissing anyclaims in the complaint and, when dis-crimination is found, appropriate rem-edies and relief in accordance with sub-part E of this part. The agency shallissue the final decision within 60 daysof receiving notification that a com-plainant has requested an immediatedecision from the agency, or within 60days of the end of the 30-day period forthe complainant to request a hearingor an immediate final decision wherethe complainant has not requested ei-ther a hearing or a decision. The finalaction shall contain notice of the rightto appeal the final action to the EqualEmployment Opportunity Commission,the right to file a civil action in federaldistrict court, the name of the proper

defendant in any such lawsuit and theapplicable time limits for appeals andlawsuits. A copy of EEOC Form 573shall be attached to the final action.

[64 FR 37657, July 12, 1999]

Subpart B—Provisions Applicableto Particular Complaints

§ 1614.201 Age Discrimination in Em-ployment Act.

(a) As an alternative to filing a com-plaint under this part, an aggrieved in-dividual may file a civil action in aUnited States district court under theADEA against the head of an allegeddiscriminating agency after giving theCommission not less than 30 days’ no-tice of the intent to file such an action.Such notice must be filed in writingwith EEOC, at P.O. Box 19848, Wash-ington, DC 20036, or by personal deliv-ery or facsimile within 180 days of theoccurrence of the alleged unlawfulpractice.

(b) The Commission may exempt aposition from the provisions of theADEA if the Commission establishes amaximum age requirement for the po-sition on the basis of a determinationthat age is a bona fide occupationalqualification necessary to the perform-ance of the duties of the position.

(c) When an individual has filed anadministrative complaint alleging agediscrimination that is not a mixedcase, administrative remedies will beconsidered to be exhausted for purposesof filing a civil action:

(1) 180 days after the filing of an indi-vidual complaint if the agency has nottaken final action and the individualhas not filed an appeal or 180 days afterthe filing of a class complaint if theagency has not issued a final decision;

(2) After final action on an individualor class complaint if the individual hasnot filed an appeal; or

(3) After the issuance of a final deci-sion by the Commission on an appealor 180 days after the filing of an appealif the Commission has not issued afinal decision.



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§ 1614.202 Equal Pay Act.(a) In its enforcement of the Equal

Pay Act, the Commission has the au-thority to investigate an agency’s em-ployment practices on its own initia-tive at any time in order to determinecompliance with the provisions of theAct. The Commission will provide no-tice to the agency that it will be initi-ating an investigation.

(b) Complaints alleging violations ofthe Equal Pay Act shall be processedunder this part.

§ 1614.203 Rehabilitation Act.(a) Definitions—(1) Individual with

handicap(s) is defined for this sectionas one who:

(i) Has a physical or mental impair-ment which substantially limits one ormore of such person’s major life activi-ties;

(ii) Has a record of such an impair-ment; or

(iii) Is regarded as having such an im-pairment.

(2) Physical or mental impairmentmeans:

(i) Any physiological disorder or con-dition, cosmetic disfigurement, or ana-tomical loss affecting one or more ofthe following body systems: Neuro-logical, musculoskeletal, special senseorgans, cardiovascular, reproductive,digestive, respiratory, genitourinary,hemic and lymphatic, skin, and endo-crine; or

(ii) Any mental or psychological dis-order, such as mental retardation, or-ganic brain syndrome, emotional ormental illness, and specific learningdisabilities.

(3) Major life activities means func-tions, such as caring for one’s self, per-forming manual tasks, walking, seeing,hearing, speaking, breathing, learning,and working.

(4) Has a record of such an impairmentmeans has a history of, or has beenclassified (or misclassified) as having, amental or physical impairment thatsubstantially limits one or more majorlife activities.

(5) Is regarded as having such an im-pairment means has a physical or men-tal impairment that does not substan-tially limit major life activities but istreated by an employer as constitutingsuch a limitation; has a physical or

mental impairment that substantiallylimits major life activities only as a re-sult of the attitude of an employer to-ward such impairment; or has none ofthe impairments defined in paragraph(a)(2) of this section but is treated byan employer as having such an impair-ment.

(6) Qualified individual with handicapsmeans with respect to employment, anindividual with handicaps who, with orwithout reasonable accommodation,can perform the essential functions ofthe position in question without endan-gering the health and safety of the in-dividual or others and who, dependingupon the type of appointing authoritybeing used:

(i) Meets the experience or educationrequirements (which may include pass-ing a written test) of the position inquestion; or

(ii) Meets the criteria for appoint-ment under one of the special appoint-ing authorities for individuals withhandicaps.

(b) The Federal Government shall be-come a model employer of individualswith handicaps. Agencies shall give fullconsideration to the hiring, placement,and advancement of qualified individ-uals with mental and physical handi-caps. An agency shall not discriminateagainst a qualified individual withphysical or mental handicaps.

(c) Reasonable accommodation. (1) Anagency shall make reasonable accom-modation to the known physical ormental limitations of an applicant oremployee who is a qualified individualwith handicaps unless the agency candemonstrate that the accommodationwould impose an undue hardship on theoperations of its program.

(2) Reasonable accommmodation mayinclude, but shall not be limited to:

(i) Making facilities readily acces-sible to and usable by individuals withhandicaps; and

(ii) Job restructuring, part-time ormodified work schedules, acquisitionor modification of equipment or de-vices, appropriate adjustment or modi-fication of examinations, the provisionof readers and interpreters, and othersimilar actions.

(3) In determining whether, pursuantto paragraph (c)(1) of this section, anaccommodation would impose an undue


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hardship on the operation of the agen-cy in question, factors to be consideredinclude:

(i) The overall size of the agency’sprogram with respect to the number ofemployees, number and type of facili-ties and size of budget;

(ii) The type of agency operation, in-cluding the composition and structureof the agency’s work force; and

(iii) The nature and the cost of theaccommodation.

(d) Employment criteria. (1) An agencymay not make use of any employmenttest or other selection criterion thatscreens out or tends to screen outqualified individuals with handicaps orany class of individuals with handicapsunless:

(i) The agency demonstrates that thetest score or other selection criterionis job-related for the position in ques-tion and consistent with business ne-cessity; and

(ii) OPM or other examining author-ity shows that job-related alternativetests, or the agency shows that job-re-lated alternative criteria, that do notscreen out or tend to screen out asmany individuals with handicaps areunavailable.

(2) An agency shall select and admin-ister tests concerning employment soas to insure that, when administered toan applicant or employee who has ahandicap that impairs sensory, man-ual, or speaking skills, the test resultsaccurately reflect the applicant’s oremployee’s ability to perform the posi-tion or type of positions in questionrather than reflecting the applicant’sor employee’s impaired sensory, man-ual, or speaking skill (except wherethose skills are the factors that thetest purports to measure).

(e) Preemployment inquiries. (1) Exceptas provided in paragraphs (e)(2) and(e)(3) of this section, an agency maynot conduct a preemployment medicalexamination and may not make pre-employment inquiry of an applicant asto whether the applicant is an indi-vidual with handicaps or as to the na-ture or severity of a handicap. Anagency may, however, make pre-employment inquiry into an appli-cant’s ability to meet the essentialfunctions of the job, or the medicalqualification requirements if applica-

ble, with or without reasonable accom-modation, of the position in question,i.e., the minimum abilities necessaryfor safe and efficient performance ofthe duties of the position in question.The Office of Personnel Managementmay also make an inquiry as to the na-ture and extent of a handicap for thepurpose of special testing.

(2) Nothing in this section shall pro-hibit an agency from conditioning anoffer of employment on the results of amedical examination conducted priorto the employee’s entrance on duty,provided that: all entering employeesare subjected to such an examinationregardless of handicap or when the pre-employment medical questionnaireused for positions that do not routinelyrequire medical examination indicatesa condition for which further examina-tion is required because of the job-re-lated nature of the condition, and theresults of such an examination are usedonly in accordance with the require-ments of this part. Nothing in this sec-tion shall be construed to prohibit thegathering of preemployment medicalinformation for the purposes of specialappointing authorities for individualswith handicaps.

(3) To enable and evaluate affirma-tive action to hire, place or advance in-dividuals with handicaps, the agencymay invite applicants for employmentto indicate whether and to what extentthey are handicapped, if:

(i) The agency states clearly on anywritten questionnaire used for this pur-pose or makes clear orally if no writtenquestionnaire is used, that the infor-mation requested is intended for usesolely in conjunction with affirmativeaction; and

(ii) The agency states clearly thatthe information is being requested on avoluntary basis, that refusal to provideit will not subject the applicant or em-ployee to any adverse treatment, andthat it will be used only in accordancewith this part.

(4) Information obtained in accord-ance with this section as to the med-ical condition or history of the appli-cant shall be kept confidential exceptthat:

(i) Managers, selecting officials, andothers involved in the selection processor responsible for affirmative action


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may be informed that an applicant iseligible under special appointing au-thority for the disabled;

(ii) Supervisors and managers may beinformed regarding necessary accom-modations;

(iii) First aid and safety personnelmay be informed, where appropriate, ifthe condition might require emergencytreatment;

(iv) Government officials inves-tigating compliance with laws, regula-tions, and instructions relevant toequal employment opportunity and af-firmative action for individuals withhandicaps shall be provided informa-tion upon request; and

(v) Statistics generated from infor-mation obtained may be used to man-age, evaluate, and report on equal em-ployment opportunity and affirmativeaction programs.

(f) Physical access to buildings. (1) Anagency shall not discriminate againstapplicants or employees who are quali-fied individuals with handicaps due tothe inaccessibility of its facility.

(2) For the purpose of this subpart, afacility shall be deemed accessible if itis in compliance with the ArchitecturalBarriers Act of 1968 (42 U.S.C. 4151 etseq.) and the Americans with Disabil-ities Act of 1990 (42 U.S.C. 12183 and12204).

(g) Reassignment. When a nonproba-tionary employee becomes unable toperform the essential functions of hisor her position even with reasonableaccommodation due to a handicap, anagency shall offer to reassign the indi-vidual to a funded vacant position lo-cated in the same commuting area andserviced by the same appointing au-thority, and at the same grade or level,the essential functions of which the in-dividual would be able to perform withreasonable accommodation if necessaryunless the agency can demonstratethat the reassignment would impose anundue hardship on the operation of itsprogram. In the absence of a positionat the same grade or level, an offer ofreassignment to a vacant position atthe highest available grade or levelbelow the employee’s current grade orlevel shall be required, but availabilityof such a vacancy shall not affect theemployee’s entitlement, if any, to dis-ability retirement pursuant to 5 U.S.C.

8337 or 5 U.S.C. 8451. If the agency hasalready posted a notice or announce-ment seeking applications for a spe-cific vacant position at the time theagency has determined that the non-probationary employee is unable toperform the essential functions of hisor her position even with reasonableaccommodation, then the agency doesnot have an obligation under this sec-tion to offer to reassign the individualto that position, but the agency mustconsider the individual on an equalbasis with those who applied for the po-sition. For the purpose of this para-graph, an employee of the UnitedStates Postal Service shall not be con-sidered qualified for any offer of reas-signment that would be inconsistentwith the terms of any applicable col-lective bargaining agreement.

(h) Exclusion from definition of ‘‘indi-vidual(s) with handicap(s)’’. (1) The term‘‘individual with handicap(s)’’ shall notinclude an individual who is currentlyengaging in the illegal use of drugs,when an agency acts on the basis ofsuch use. The term ‘‘drug’’ means acontrolled substance, as defined inschedules I through V of section 202 ofthe Controlled Substances Act (21U.S.C. 812). The term ‘‘illegal use ofdrugs’’ means the use of drugs, the pos-session or distribution of which is un-lawful under the Controlled SubstancesAct, but does not include the use of adrug taken under supervision by a li-censed health care professional, orother uses authorized by the ControlledSubstances Act or other provisions ofFederal law. This exclusion, however,does not exclude an individual withhandicaps who:

(i) Has successfully completed a su-pervised drug rehabilitation programand is no longer engaging in the illegaluse of drugs, or has otherwise been re-habilitated successfully and is nolonger engaging in such use;

(ii) Is participating in a supervisedrehabilitation program and is no longerengaging in such use; or

(iii) Is erroneously regarded as engag-ing in such use, but is not engaging insuch use.

(2) Except that it shall not violatethis section for an agency to adopt oradminister reasonable policies or pro-cedures, including but not limited to


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drug testing, designed to ensure thatan individual described in paragraph(h)(1) (i) and (ii) of this section is nolonger engaging in the illegal use ofdrugs.

§ 1614.204 Class complaints.(a) Definitions. (1) A class is a group of

employees, former employees or appli-cants for employment who, it is al-leged, have been or are being adverselyaffected by an agency personnel man-agement policy or practice that dis-criminates against the group on thebasis of their race, color, religion, sex,national origin, age or handicap.

(2) A class complaint is a written com-plaint of discrimination filed on behalfof a class by the agent of the class al-leging that:

(i) The class is so numerous that aconsolidated complaint of the membersof the class is impractical;

(ii) There are questions of fact com-mon to the class;

(iii) The claims of the agent of theclass are typical of the claims of theclass;

(iv) The agent of the class, or, if rep-resented, the representative, will fairlyand adequately protect the interests ofthe class.

(3) An agent of the class is a classmember who acts for the class duringthe processing of the class complaint.

(b) Pre-complaint processing. An em-ployee or applicant who wishes to file aclass complaint must seek counselingand be counseled in accordance with§ 1614.105. A complainant may move forclass certification at any reasonablepoint in the process when it becomesapparent that there are class implica-tions to the claim raised in an indi-vidual complaint. If a complainantmoves for class certification after com-pleting the counseling process con-tained in § 1614.105, no additional coun-seling is required. The administrativejudge shall deny class certificationwhen the complainant has unduly de-layed in moving for certification.

(c) Filing and presentation of a classcomplaint. (1) A class complaint mustbe signed by the agent or representa-tive and must identify the policy orpractice adversely affecting the classas well as the specific action or matteraffecting the class agent.

(2) The complaint must be filed withthe agency that allegedly discrimi-nated not later than 15 days after theagent’s receipt of the notice of right tofile a class complaint.

(3) The complaint shall be processedpromptly; the parties shall cooperateand shall proceed at all times withoutundue delay.

(d) Acceptance or dismissal. (1) Within30 days of an agency’s receipt of a com-plaint, the agency shall: Designate anagency representative who shall not beany of the individuals referenced in§ 1614.102(b)(3), and forward the com-plaint, along with a copy of the Coun-selor’s report and any other informa-tion pertaining to timeliness or otherrelevant circumstances related to thecomplaint, to the Commission. TheCommission shall assign the complaintto an administrative judge or com-plaints examiner with a proper secu-rity clearance when necessary. The ad-ministrative judge may require thecomplainant or agency to submit addi-tional information relevant to thecomplaint.

(2) The administrative judge may dis-miss the complaint, or any portion, forany of the reasons listed in § 1614.107 orbecause it does not meet the pre-requisites of a class complaint under§ 1614.204(a)(2).

(3) If the allegation is not included inthe Counselor’s report, the administra-tive judge shall afford the agent 15days to state whether the matter wasdiscussed with the Counselor and, ifnot, explain why it was not discussed.If the explanation is not satisfactory,the administrative judge shall dismissthe allegation. If the explanation issatisfactory, the administrative judgeshall refer the allegation to the agencyfor further counseling of the agent.After counseling, the allegation shallbe consolidated with the class com-plaint.

(4) If an allegation lacks specificityand detail, the administrative judgeshall afford the agent 15 days to pro-vide specific and detailed information.The administrative judge shall dismissthe complaint if the agent fails to pro-vide such information within the speci-fied time period. If the information


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provided contains new allegations out-side the scope of the complaint, the ad-ministrative judge shall advise theagent how to proceed on an individualor class basis concerning these allega-tions.

(5) The administrative judge shall ex-tend the time limits for filing a com-plaint and for consulting with a Coun-selor in accordance with the time limitextension provisions contained in§§ 1614.105(a)(2) and 1614.604.

(6) When appropriate, the administra-tive judge may decide that a class bedivided into subclasses and that eachsubclass be treated as a class, and theprovisions of this section then shall beconstrued and applied accordingly.

(7) The administrative judge shalltransmit his or her decision to acceptor dismiss a complaint to the agencyand the agent. The agency shall takefinal action by issuing a final orderwithin 40 days of receipt of the hearingrecord and administrative judge’s deci-sion. The final order shall notify theagent whether or not the agency willimplement the decision of the adminis-trative judge. If the final order doesnot implement the decision of the ad-ministrative judge, the agency shall si-multaneously appeal the administra-tive judge’s decision in accordancewith § 1614.403 and append a copy of theappeal to the final order. A dismissal ofa class complaint shall inform theagent either that the complaint isbeing filed on that date as an indi-vidual complaint of discrimination andwill be processed under subpart A orthat the complaint is also dismissed asan individual complaint in accordancewith § 1614.107. In addition, it shall in-form the agent of the right to appealthe dismissal of the class complaint tothe Equal Employment OpportunityCommission or to file a civil action andshall include EEOC Form 573, Notice ofAppeal/Petition.

(e) Notification. (1) Within 15 days ofreceiving notice that the administra-tive judge has accepted a class com-plaint or a reasonable time frame spec-ified by the administrative judge, theagency shall use reasonable means,such as delivery, mailing to last knownaddress or distribution, to notify allclass members of the acceptance of theclass complaint.

(2) Such notice shall contain:(i) The name of the agency or organi-

zational segment, its location, and thedate of acceptance of the complaint;

(ii) A description of the issues ac-cepted as part of the class complaint;

(iii) An explanation of the bindingnature of the final decision or resolu-tion of the complaint on class mem-bers; and

(iv) The name, address and telephonenumber of the class representative.

(f) Obtaining evidence concerning thecomplaint. (1) The administrative judgenotify the agent and the agency rep-resentative of the time period that willbe allowed both parties to prepare theircases. This time period will include atleast 60 days and may be extended bythe administrative judge upon the re-quest of either party. Both parties areentitled to reasonable development ofevidence on matters relevant to theissues raised in the complaint. Evi-dence may be developed through inter-rogatories, depositions, and requestsfor admissions, stipulations or produc-tion of documents. It shall be groundsfor objection to producing evidencethat the information sought by eitherparty is irrelevant, overburdensome,repetitious, or privileged.

(2) If mutual cooperation fails, eitherparty may request the administrativejudge to rule on a request to developevidence. If a party fails without goodcause shown to respond fully and intimely fashion to a request made or ap-proved by the administrative judge fordocuments, records, comparative data,statistics or affidavits, and the infor-mation is solely in the control of oneparty, such failure may, in appropriatecircumstances, caused the administra-tive judge:

(i) To draw an adverse inference thatthe requested information would havereflected unfavorably on the party re-fusing to provide the requested infor-mation;

(ii) To consider the matters to whichthe requested information pertains tobe established in favor of the opposingparty;

(iii) To exclude other evidence of-fered by the party failing to producethe requested information;


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(iv) To recommend that a decision beentered in favor of the opposing party;or

(v) To take such other actions as theadministrative judge deems appro-priate.

(3) During the period for developmentof evidence, the administrative judgemay, in his or her discretion, directthat an investigation of facts relevantto the complaint or any portion be con-ducted by an agency certified by theCommission.

(4) Both parties shall furnish to theadministrative judge copies of all ma-terials that they wish to be examinedand such other material as may be re-quested.

(g) Opportunity for resolution of thecomplaint. (1) The administrative judgeshall furnish the agent and the rep-resentative of the agency a copy of allmaterials obtained concerning thecomplaint and provide opportunity forthe agent to discuss materials with theagency representative and attempt res-olution of the complaint.

(2) The complaint may be resolved byagreement of the agency and the agentat any time pursuant to the notice andapproval procedure contained in para-graph (g)(4) of this section.

(3) If the complaint is resolved, theterms of the resolution shall be re-duced to writing and signed by theagent and the agency.

(4) Notice of the resolution shall begiven to all class members in the samemanner as notification of the accept-ance of the class complaint and to theadministrative judge. It shall state therelief, if any, to be granted by theagency and the name and address ofthe EEOC administrative judge as-signed to the case. It shall state thatwithin 30 days of the date of the noticeof resolution, any member of the classmay petition the administrative judgeto vacate the resolution because it ben-efits only the class agent, or is other-wise not fair, adequate and reasonableto the class as a whole. The adminis-trative judge shall review the notice ofresolution and consider any petitionsto vacate filed. If the administrativejudge finds that the proposed resolu-tion is not fair, adequate and reason-able to the class as a whole, the admin-istrative judge shall issue a decision

vacating the agreement and may re-place the original class agent with apetitioner or some other class memberwho is eligible to be the class agentduring further processing of the classcomplaint. The decision shall informthe former class agent or the petitionerof the right to appeal the decision tothe Equal Employment OpportunityCommission and include EEOC Form573, Notice of Appeal/Petition. If theadministrative judge finds that the res-olution is fair, adequate and reasonableto the class as a whole, the resolutionshall bind all members of the class.

(h) Hearing. On expiration of the pe-riod allowed for preparation of thecase, the administrative judge shall seta date for hearing. The hearing shall beconducted in accordance with 29 CFR1614.109 (a) through (f).

(i) Report of findings and recommenda-tions. (1) The administrative judgeshall transmit to the agency a reportof findings and recommendations onthe complaint, including a rec-ommended decision, systemic relief forthe class and any individual relief,where appropriate, with regard to thepersonnel action or matter that gaverise to the complaint.

(2) If the administrative judge findsno class relief appropriate, he or sheshall determine if a finding of indi-vidual discrimination is warranted and,if so, shall recommend appropriate re-lief.

(3) The administrative judge shall no-tify the agency of the date on whichthe report of findings and recommenda-tions was forwarded to the agency.

(j) Agency decision. (1) Within 60 daysof receipt of the report of findings andrecommendations issued under§ 1614.204(i), the agency shall issue afinal decision, which shall accept, re-ject, or modify the findings and rec-ommendations of the administrativejudge.

(2) The final decision of the agencyshall be in writing and shall be trans-mitted to the agent by certified mail,return receipt requested, along with acopy of the report of findings and rec-ommendations of the administrativejudge.

(3) When the agency’s final decisionis to reject or modify the findings and


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recommendations of the administra-tive judge, the decision shall containspecific reasons for the agency’s ac-tion.

(4) If the agency has not issued afinal decision with 60 days of its receiptof the administrative judge’s report offindings and recommendations, thosefindings and recommendations shallbecome the final decision. The agencyshall transmit the final decision to theagent within five days of the expirationof the 60-day period.

(5) The final decision of the agencyshall require any relief authorized bylaw and determined to be necessary ordesirable to resolve the issue of dis-crimination.

(6) A final decision on a class com-plaint shall, subject to subpart D ofthis part, be binding on all members ofthe class and the agency.

(7) The final decision shall inform theagent of the right to appeal or to file acivil action in accordance with subpartD of this part and of the applicabletime limits.

(k) Notification of decision. The agencyshall notify class members of the finaldecision and relief awarded, if any,through the same media employed togive notice of the existence of the classcomplaint. The notice, where appro-priate, shall include information con-cerning the rights of class members toseek individual relief, and of the proce-dures to be followed. Notice shall begiven by the agency within 10 days ofthe transmittal of its final decision tothe agent.

(l) Relief for individual class members.(1) When discrimination is found, anagency must eliminate or modify theemployment policy or practice out ofwhich the complaint arose and provideindividual relief, including an award ofattorney’s fees and costs, to the agentin accordance with § 1614.501.

(2) When class-wide discrimination isnot found, but it is found that the classagent is a victim of discrimination,§ 1614.501 shall apply. The agency shallalso, within 60 days of the issuance ofthe final decision finding no class-widediscrimination, issue the acknowledge-ment of receipt of an individual com-plaint as required by § 1614.106(d) andprocess in accordance with the provi-sions of subpart A of this part, each in-

dividual complaint that was subsumedinto the class complaint.

(3) When discrimination is found inthe final decision and a class memberbelieves that he or she is entitled to in-dividual relief, the class member mayfile a written claim with the head ofthe agency or its EEO Director within30 days of receipt of notification by theagency of its final decision. Adminis-trative judges shall retain jurisdictionover the complaint in order to resolveany disputed claims by class members.The claim must include a specific, de-tailed showing that the claimant is aclass member who was affected by thediscriminatory policy or practice, andthat this discriminatory action tookplace within the period of time forwhich the agency found class-wide dis-crimination in its final decision. Wherea finding of discrimination against aclass has been made, there shall be apresumption of discrimination as toeach member of the class. The agencymust show by clear and convincing evi-dence that any class member is not en-titled to relief. The administrativejudge may hold a hearing or otherwisesupplement the record on a claim filedby a class member. The agency or theCommission may find class-wide dis-crimination and order remedial actionfor any policy or practice in existencewithin 45 days of the agent’s initialcontact with the Counselor. Relief oth-erwise consistent with this Part maybe ordered for the time the policy orpractice was in effect. The agency shallissue a final decision on each suchclaim within 90 days of filing. Such de-cision must include a notice of theright to file an appeal or a civil actionin accordance with subpart D of thispart and the applicable time limits.


Subpart C—Related Processes

§ 1614.301 Relationship to negotiatedgrievance procedure.

(a) When a person is employed by anagency subject to 5 U.S.C. 7121(d) and iscovered by a collective bargainingagreement that permits allegations ofdiscrimination to be raised in a nego-tiated grievance procedure, a person


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wishing to file a complaint or a griev-ance on a matter of alleged employ-ment discrimination must elect toraise the matter under either part 1614or the negotiated grievance procedure,but not both. An election to proceedunder this part is indicated only by thefiling of a written complaint; use of thepre-complaint process as described in§ 1614.105 does not constitute an elec-tion for purposes of this section. An ag-grieved employee who files a complaintunder this part may not thereafter filea grievance on the same matter. Anelection to proceed under a negotiatedgrievance procedure is indicated by thefiling of a timely written grievance. Anaggrieved employee who files a griev-ance with an agency whose negotiatedagreement permits the acceptance ofgrievances which allege discriminationmay not thereafter file a complaint onthe same matter under this part 1614irrespective of whether the agency hasinformed the individual of the need toelect or of whether the grievance hasraised an issue of discrimination. Anysuch complaint filed after a grievancehas been filed on the same matter shallbe dismissed without prejudice to thecomplainant’s right to proceed throughthe negotiated grievance procedure in-cluding the right to appeal to the Com-mission from a final decision as pro-vided in subpart D of this part. The dis-missal of such a complaint shall advisethe complainant of the obligation toraise discrimination in the grievanceprocess and of the right to appeal thefinal grievance decision to the Com-mission.

(b) When a person is not covered by acollective bargaining agreement thatpermits allegations of discriminationto be raised in a negotiated grievanceprocedure, allegations of discrimina-tion shall be processed as complaintsunder this part.

(c) When a person is employed by anagency not subject to 5 U.S.C 7121(d)and is covered by a negotiated griev-ance procedure, allegations of discrimi-nation shall be processed as complaintsunder this part, except that the timelimits for processing the complaintcontained in § 1614.106 and for appeal tothe Commission contained in § 1614.402may be held in abeyance during proc-essing of a grievance covering the same

matter as the complaint if the agencynotifies the complainant in writingthat the complaint will be held inabeyance pursuant to this section.

§ 1614.302 Mixed case complaints.(a) Definitions—(1) Mixed case com-

plaint. A mixed case complaint is acomplaint of employment discrimina-tion filed with a Federal agency basedon race, color, religion, sex, nationalorigin, age or handicap related to orstemming from an action that can beappealed to the Merit Systems Protec-tion Board (MSPB). The complaintmay contain only an allegation of em-ployment discrimination or it maycontain additional allegations that theMSPB has jurisdiction to address.

(2) Mixed case appeals. A mixed caseappeal is an appeal filed with theMSPB that alleges that an appealableagency action was effected, in whole orin part, because of discrimination onthe basis of race, color, religion, sex,national origin, handicap or age.

(b) Election. An aggrieved person mayinitially file a mixed case complaintwith an agency pursuant to this part oran appeal on the same matter with theMSPB pursuant to 5 CFR 1201.151, butnot both. An agency shall inform everyemployee who is the subject of an ac-tion that is appealable to the MSPBand who has either orally or in writingraised the issue of discrimination dur-ing the processing of the action of theright to file either a mixed case com-plaint with the agency or to file amixed case appeal with the MSPB. Theperson shall be advised that he or shemay not initially file both a mixedcase complaint and an appeal on thesame matter and that whichever isfiled first shall be considered an elec-tion to proceed in that forum. If a per-son files a mixed case appeal with theMSPB instead of a mixed case com-plaint and the MSPB dismisses the ap-peal for jurisdictional reasons, theagency shall promptly notify the indi-vidual in writing of the right to con-tact an EEO counselor within 45 daysof receipt of this notice and to file anEEO complaint, subject to § 1614.107.The date on which the person filed hisor her appeal with MSPB shall bedeemed to be the date of initial contactwith the counselor. If a person files a


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timely appeal with MSPB from theagency’s processing of a mixed casecomplaint and the MSPB dismisses itfor jurisdictional reasons, the agencyshall reissue a notice under § 1614.108(f)giving the individual the right to electbetween a hearing before an adminis-trative judge and an immediate finaldecision.

(c) Dismissal. (1) An agency may dis-miss a mixed case complaint for thereasons contained in, and under theconditions prescribed in, § 1614.107.

(2) An agency decision to dismiss amixed case complaint on the basis ofthe complainant’s prior election of theMSPB procedures shall be made as fol-lows:

(i) Where neither the agency nor theMSPB administrative judge questionsthe MSPB’s jurisdiction over the ap-peal on the same matter, it shall dis-miss the mixed case complaint pursu-ant to § 1614.107(d) and shall advise thecomplainant that he or she must bringthe allegations of discrimination con-tained in the rejected complaint to theattention of the MSPB, pursuant to 5CFR 1201.155. The dismissal of such acomplaint shall advise the complainantof the right to petition the EEOC to re-view the MSPB’s final decision on thediscrimination issue. A dismissal of amixed case complaint is not appealableto the Commission except where it isalleged that § 1614.107(d) has been ap-plied to a non-mixed case matter.

(ii) Where the agency or the MSPBadministrative judge questions theMSPB’s jurisdiction over the appeal onthe same matter, the agency shall holdthe mixed case complaint in abeyanceuntil the MSPB’s administrative judgerules on the jurisdictional issue, notifythe complainant that it is doing so,and instruct him or her to bring the al-legation of discrimination to the atten-tion of the MSPB. During this period oftime, all time limitations for proc-essing or filing under this part will betolled. An agency decision to hold amixed case complaint in abeyance isnot appealable to EEOC. If the MSPB’sadministrative judge finds that MSPBhas jurisdiction over the matter, theagency shall dismiss the mixed casecomplaint pursuant to § 1614.107(d), andadvise the complainant of the right topetition the EEOC to review the

MSPB’s final decision on the discrimi-nation issue. If the MSPB’s administra-tive judge finds that MSPB does nothave jurisdiction over the matter, theagency shall recommence processing ofthe mixed case complaint as a non-mixed case EEO complaint.

(d) Procedures for agency processing ofmixed case complaints. When a complain-ant elects to proceed initially underthis part rather than with the MSPB,the procedures set forth in subpart Ashall govern the processing of themixed case complaint with the fol-lowing exceptions:

(1) At the time the agency advises acomplainant of the acceptance of amixed case complaint, it shall also ad-vise the complainant that:

(i) If a final decision is not issuedwithin 120 days of the date of filing ofthe mixed case complaint, the com-plainant may appeal the matter to theMSPB at any time thereafter as speci-fied at 5 CFR 1201.154(b)(2) or may filea civil action as specified at§ 1614.310(g), but not both; and

(ii) If the complainant is dissatisfiedwith the agency’s final decision on themixed case complaint, the complainantmay appeal the matter to the MSPB(not EEOC) within 30 days of receipt ofthe agency’s final decision;

(2) Upon completion of the investiga-tion, the notice provided the complain-ant in accordance with § 1614.108(f) willadvise the complainant that a final de-cision will be issued within 45 dayswithout a hearing; and

(3) At the time that the agency issuesits final decision on a mixed case com-plaint, the agency shall advise thecomplainant of the right to appeal thematter to the MSPB (not EEOC) within30 days of receipt and of the right tofile a civil action as provided at§ 1614.310(a).

[57 FR 12646, Apr. 10, 1992, as amended at 61FR 17576, Apr. 22, 1996; 64 FR 37659, July 12,1999]

§ 1614.303 Petitions to the EEOC fromMSPB decisions on mixed case ap-peals and complaints.

(a) Who may file. Individuals whohave received a final decision from theMSPB on a mixed case appeal or on theappeal of a final decision on a mixedcase complaint under 5 CFR part 1201,


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subpart E and 5 U.S.C. 7702 may peti-tion EEOC to consider that decision.The EEOC will not accept appeals fromMSPB dismissals without prejudice.

(b) Method of filing. Filing shall bemade by certified mail, return receiptrequested, to the Office of Federal Op-erations, Equal Employment Oppor-tunity Commission, P.O. Box 19848,Washington, DC 20036.

(c) Time to file. A petition must befiled with the Commission either with-in 30 days of receipt of the final deci-sion of the MSPB or within 30 days ofwhen the decision of a MSPB field of-fice becomes final.

(d) Service. The petition for reviewmust be served upon all individuals andparties on the MSPB’s service list bycertified mail on or before the filingwith the Commission, and the Clerk ofthe MSPB, 1120 Vermont Ave., NW.,Washington, DC 20419, and the peti-tioner must certify as to the date andmethod of service.

§ 1614.304 Contents of petition.(a) Form. Petitions must be written

or typed, but may use any format in-cluding a simple letter format. Peti-tioners are encouraged to use EEOCForm 573, Notice Of Appeal/Petition.

(b) Contents. Petitions must containthe following:

(1) The name and address of the peti-tioner;

(2) The name and address of the peti-tioner’s representative, if any;

(3) A statement of the reasons whythe decision of the MSPB is alleged tobe incorrect, in whole or in part, onlywith regard to issues of discriminationbased on race, color, religion, sex, na-tional origin, age or handicap;

(4) A copy of the decision issued bythe MSPB; and

(5) The signature of the petitioner orrepresentative, if any.

§ 1614.305 Consideration procedures.(a) Once a petition is filed, the Com-

mission will examine it and determinewhether the Commission will considerthe decision of the MSPB. An agencymay oppose the petition, either on thebasis that the Commission should notconsider the MSPB’s decision or thatthe Commission should concur in theMSPB’s decision, by filing any such ar-

gument with the Office of Federal Op-erations and serving a copy on the peti-tioner within 15 days of receipt by theCommission.

(b) The Commission shall determinewhether to consider the decision of theMSPB within 30 days of receipt of thepetition by the Commission’s Office ofFederal Operations. A determination ofthe Commission not to consider the de-cision shall not be used as evidencewith respect to any issue of discrimina-tion in any judicial proceeding con-cerning that issue.

(c) If the Commission makes a deter-mination to consider the decision, theCommission shall within 60 days of thedate of its determination, consider theentire record of the proceedings of theMSPB and on the basis of the evi-dentiary record before the Board assupplemented in accordance with para-graph (d) of this section, either:

(1) Concur in the decision of theMSPB; or

(2) Issue in writing a decision thatdiffers from the decision of the MSPBto the extent that the Commissionfinds that, as a matter of law:

(i) The decision of the MSPB con-stitutes an incorrect interpretation ofany provision of any law, rule, regula-tion, or policy directive referred to in 5U.S.C. 7702(a)(1)(B); or

(ii) The decision involving such pro-vision is not supported by the evidencein the record as a whole.

(d) In considering any decision of theMSPB, the Commission, pursuant to 5U.S.C. 7702(b)(4), may refer the case tothe MSPB for the taking of additionalevidence within such period as permitsthe Commission to make a decisionwithin the 60-day period prescribed orprovide on its own for the taking of ad-ditional evidence to the extent theCommission considers it necessary tosupplement the record.

(e) Where the EEOC has differed withthe decision of the MSPB under§ 1614.305(c)(2), the Commission shallrefer the matter to the MSPB.

§ 1614.306 Referral of case to SpecialPanel.

If the MSPB reaffirms its decisionunder 5 CFR 1201.162(a)(2) with or with-out modification, the matter shall beimmediately certified to the Special


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Panel established pursuant to 5 U.S.C.7702(d). Upon certification, the Boardshall, within five days (excluding Sat-urdays, Sundays, and Federal holi-days), transmit to the Chairman of theSpecial Panel and to the Chairman ofthe EEOC the administrative record inthe proceeding including—

(a) The factual record compiled underthis section, which shall include atranscript of any hearing(s);

(b) The decisions issued by the Boardand the Commission under 5 U.S.C.7702; and

(c) A transcript of oral argumentsmade, or legal brief(s) filed, before theBoard and the Commission.

§ 1614.307 Organization of SpecialPanel.

(a) The Special Panel is composed of:(1) A Chairman appointed by the

President with the advice and consentof the Senate, and whose term is 6years;

(2) One member of the MSPB des-ignated by the Chairman of the Boardeach time a panel is convened; and

(3) One member of the EEOC des-ignated by the Chairman of the Com-mission each time a panel is convened.

(b) Designation of Special Panel mem-ber—(1) Time of designation. Within fivedays of certification of the case to theSpecial Panel, the Chairman of theMSPB and the Chairman of the EEOCshall each designate one member fromtheir respective agencies to serve onthe Special Panel.

(2) Manner of designation. Letters ofdesignation shall be served on theChairman of the Special Panel and theparties to the appeal.

§ 1614.308 Practices and procedures ofthe Special Panel.

(a) Scope. The rules in this subpartapply to proceedings before the SpecialPanel.

(b) Suspension of rules in this subpart.In the interest of expediting a decision,or for good cause shown, the Chairmanof the Special Panel may, except wherethe rule in this subpart is required bystatute, suspend the rules in this sub-part on application of a party, or on hisor her own motion, and may order pro-ceedings in accordance with his or herdirection.

(c) Time limit for proceedings. Pursu-ant to 5 U.S.C. 7702(d)(2)(A), the SpecialPanel shall issue a decision within 45days of the matter being certified to it.

(d) Administrative assistance to SpecialPanel. (1) The MSPB and the EEOCshall provide the Panel with such rea-sonable and necessary administrativeresources as determined by the Chair-man of the Special Panel.

(2) Assistance shall include, but isnot limited to, processing vouchers forpay and travel expenses.

(3) The Board and the EEOC shall beresponsible for all administrative costsincurred by the Special Panel and, tothe extent practicable, shall equally di-vide the costs of providing such admin-istrative assistance. The Chairman ofthe Special Panel shall resolve themanner in which costs are divided inthe event of a disagreement betweenthe Board and the EEOC.

(e) Maintenance of the official record.The Board shall maintain the officialrecord. The Board shall transmit twocopies of each submission filed to eachmember of the Special Panel in an ex-peditious manner.

(f) Filing and service of pleadings. (1)The parties shall file the original andsix copies of all submissions with theClerk, Merit Systems ProtectionBoard, 1120 Vermont Avenue, NW.,Washington, DC 20419. One copy of eachsubmission shall be served on the otherparties.

(2) A certificate of service specifyinghow and when service was made mustaccompany all submissions of the par-ties.

(3) Service may be by mail or by per-sonal delivery during normal businesshours (8:15 a.m.–4:45 p.m.). Due to theshort statutory time limit, parties arerequired to file their submissions byovernight delivery service should theyfile by mail.

(4) The date of filing shall be deter-mined by the date of mailing as indi-cated by the order date for the over-night delivery service. If the filing isby personal delivery, it shall be consid-ered filed on that date it is received inthe office of the Clerk, MSPB.

(g) Briefs and responsive pleadings. Ifthe parties wish to submit written ar-gument, briefs shall be filed with theSpecial Panel within 15 days of the


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date of the Board’s certification order.Due to the short statutory time limitresponsive pleadings will not ordinarilybe permitted.

(h) Oral argument. The parties havethe right to oral argument if desired.Parties wishing to exercise this rightshall so indicate at the time of filingtheir brief, or if no brief is filed, within15 days of the date of the Board’s cer-tification order. Upon receipt of a re-quest for argument, the Chairman ofthe Special Panel shall determine thetime and place for argument and thetime to be allowed each side, and shallso notify the parties.

(i) Post-argument submissions. Due tothe short statutory time limit, no post-argument submissions will be per-mitted except by order of the Chairmanof the Special Panel.

(j) Procedural matters. Any proceduralmatters not addressed in this subpartshall be resolved by written order ofthe Chairman of the Special Panel.

§ 1614.309 Enforcement of SpecialPanel decision.

The Board shall, upon receipt of thedecision of the Special Panel, order theagency concerned to take any actionappropriate to carry out the decision ofthe Panel. The Board’s regulations re-garding enforcement of a final order ofthe Board shall apply. These regula-tions are set out at 5 CFR part 1201,subpart E.

§ 1614.310 Right to file a civil action.

An individual who has a complaintprocessed pursuant to 5 CFR part 1201,subpart E or this subpart is authorizedby 5 U.S.C. 7702 to file a civil action inan appropriate United States DistrictCourt:

(a) Within 30 days of receipt of a finaldecision issued by an agency on a com-plaint unless an appeal is filed with theMSPB; or

(b) Within 30 days of receipt of noticeof the final decision or action taken bythe MSPB if the individual does notfile a petition for consideration withthe EEOC; or

(c) Within 30 days of receipt of noticethat the Commission has determinednot to consider the decision of theMSPB; or

(d) Within 30 days of receipt of noticethat the Commission concurs with thedecision of the MSPB; or

(e) If the Commission issues a deci-sion different from the decision of theMSPB, within 30 days of receipt of no-tice that the MSPB concurs in andadopts in whole the decision of theCommission; or

(f) If the MSPB does not concur withthe decision of the Commission and re-affirms its initial decision or reaffirmsits initial decision with a revision,within 30 days of the receipt of noticeof the decision of the Special Panel; or

(g) After 120 days from the date of fil-ing a formal complaint if there is nofinal action or appeal to the MSPB; or

(h) After 120 days from the date of fil-ing an appeal with the MSPB if theMSPB has not yet made a decision; or

(i) After 180 days from the date of fil-ing a petition for consideration withCommission if there is no decision bythe Commission, reconsideration deci-sion by the MSPB or decision by theSpecial Panel.

Subpart D—Appeals and CivilActions

§ 1614.401 Appeals to the Commission.

(a) A complainant may appeal anagency’s final action or dismissal of acomplaint.

(b) An agency may appeal as providedin § 1614.110(a).

(c) A class agent or an agency mayappeal an administrative judge’s deci-sion accepting or dismissing all or partof a class complaint; a class agent mayappeal a final decision on a class com-plaint; a class member may appeal afinal decision on a claim for individualrelief under a class complaint; and aclass member, a class agent or an agen-cy may appeal a final decision on a pe-tition pursuant to § 1614.204(g)(4).

(d) A grievant may appeal the finaldecision of the agency, the arbitratoror the Federal Labor Relations Author-ity (FLRA) on the grievance when anissue of employment discriminationwas raised in a negotiated grievanceprocedure that permits such issues tobe raised. A grievant may not appealunder this part, however, when the


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matter initially raised in the nego-tiated grievance procedure is still on-going in that process, is in arbitration,is before the FLRA, is appealable tothe MSPB or if 5 U.S.C. 7121(d) is inap-plicable to the involved agency.

(e) A complainant, agent or indi-vidual class claimant may appeal tothe Commission an agency’s allegednoncompliance with a settlementagreement or final decision in accord-ance with § 1614.504.


§ 1614.402 Time for appeals to theCommission.

(a) Appeals described in § 1614.401(a)and (c) must be filed within 30 days ofreceipt of the dismissal, final action ordecision. Appeals described in§ 1614.401(b) must be filed within 40 daysof receipt of the hearing file and deci-sion. Where a complainant has notifiedthe EEO Director of alleged noncompli-ance with a settlement agreement inaccordance with § 1614.504, the com-plainant may file an appeal 35 daysafter service of the allegations of non-compliance, but no later than 30 daysafter receipt of an agency’s determina-tion.

(b) If the complainant is representedby an attorney of record, then the 30-day time period provided in paragraph(a) of this section within which to ap-peal shall be calculated from the re-ceipt of the required document by theattorney. In all other instances, thetime within which to appeal shall becalculated from the receipt of the re-quired document by the complainant.


§ 1614.403 How to appeal.

(a) The complainant, agency, agent,grievant or individual class claimant(hereinafter appellant) must file an ap-peal with the Director, Office of Fed-eral Operations, Equal EmploymentOpportunity Commission, at P.O. Box19848, Washington, DC 20036, or by per-sonal delivery or facsimile. The appel-lant should use EEOC Form 573, Noticeof Appeal/Petition, and should indicatewhat is being appealed.

(b) The appellant shall furnish a copyof the appeal to the opposing party atthe same time it is filed with the Com-mission. In or attached to the appeal tothe Commission, the appellant mustcertify the date and method by whichservice was made on the opposingparty.

(c) If an appellant does not file an ap-peal within the time limits of this sub-part, the appeal shall be dismissed bythe Commission as untimely.

(d) Any statement or brief on behalfof a complainant in support of the ap-peal must be submitted to the Office ofFederal Operations within 30 days offiling the notice of appeal. Any state-ment or brief on behalf of the agency insupport of its appeal must be sub-mitted to the Office of Federal Oper-ations within 20 days of filing the no-tice of appeal. The Office of FederalOperations will accept statements orbriefs in support of an appeal by fac-simile transmittal, provided they areno more than 10 pages long.

(e) The agency must submit the com-plaint file to the Office of Federal Op-erations within 30 days of initial notifi-cation that the complainant has filedan appeal or within 30 days of submis-sion of an appeal by the agency.

(f) Any statement or brief in opposi-tion to an appeal must be submitted tothe Commission and served on the op-posing party within 30 days of receiptof the statement or brief supportingthe appeal, or, if no statement or briefsupporting the appeal is filed, within 60days of receipt of the appeal. The Of-fice of Federal Operations will acceptstatements or briefs in opposition to anappeal by facsimile provided they areno more than 10 pages long.

[64 FR 37659, July 12, 1999]

§ 1614.404 Appellate procedure.(a) On behalf of the Commission, the

Office of Federal Operations shall re-view the complaint file and all writtenstatements and briefs from eitherparty. The Commission may supple-ment the record by an exchange of let-ters or memoranda, investigation, re-mand to the agency or other proce-dures.

(b) If the Office of Federal Operationsrequests information from one or bothof the parties to supplement the


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record, each party providing informa-tion shall send a copy of the informa-tion to the other party.

(c) When either party to an appealfails without good cause shown to com-ply with the requirements of this sec-tion or to respond fully and in timelyfashion to requests for information, theOffice of Federal Operations shall, inappropriate circumstances:

(1) Draw an adverse inference thatthe requested information would havereflected unfavorably on the party re-fusing to provide the requested infor-mation;

(2) Consider the matters to which therequested information or testimonypertains to be established in favor ofthe opposing party;

(3) Issue a decision fully or partiallyin favor of the opposing party; or

(4) Take such other actions as appro-priate.


§ 1614.405 Decisions on appeals.(a) The Office of Federal Operations,

on behalf of the Commission, shallissue a written decision setting forthits reasons for the decision. The Com-mission shall dismiss appeals in ac-cordance with §§ 1614.107, 1614.403(c) and1614.410. The decision shall be based onthe preponderance of the evidence. Thedecision on an appeal from an agency’sfinal action shall be based on a de novoreview, except that the review of thefactual findings in a decision by an ad-ministrative judge issued pursuant to§ 1614.109(i) shall be based on a substan-tial evidence standard of review. If thedecision contains a finding of discrimi-nation, appropriate remedy(ies) shallbe included and, where appropriate, theentitlement to interest, attorney’s feesor costs shall be indicated. The deci-sion shall reflect the date of itsissuance, inform the complainant of hisor her or her civil action rights, and betransmitted to the complainant andthe agency by first class mail.

(b) A decision issued under paragraph(a) of this section is final within themeaning of § 1614.407 unless the Com-mission reconsiders the case. A partymay request reconsideration within 30days of receipt of a decision of theCommission, which the Commission in

its discretion may grant, if the partydemonstrates that:

(1) The appellate decision involved aclearly erroneous interpretation of ma-terial fact or law; or

(2) The decision will have a substan-tial impact on the policies, practices oroperations of the agency.


§ 1614.406 Time limits. [Reserved]

§ 1614.407 Civil action: Title VII, AgeDiscrimination in Employment Actand Rehabilitation Act.

A complainant who has filed an indi-vidual complaint, an agent who hasfiled a class complaint or a claimantwho has filed a claim for individual re-lief pursuant to a class complaint isauthorized under title VII, the ADEAand the Rehabilitation Act to file acivil action in an appropriate UnitedStates District Court:

(a) Within 90 days of receipt of thefinal action on an individual or classcomplaint if no appeal has been filed;

(b) After 180 days from the date of fil-ing an individual or class complaint ifan appeal has not been filed and finalaction has not been taken;

(c) Within 90 days of receipt of theCommission’s final decision on an ap-peal; or

(d) After 180 days from the date of fil-ing an appeal with the Commission ifthere has been no final decision by theCommission.

[57 FR 12646, Apr. 10, 1992. Redesignated andamended at 64 FR 37659, July 12, 1999]

§ 1614.408 Civil action: Equal Pay Act.A complainant is authorized under

section 16(b) of the Fair Labor Stand-ards Act (29 U.S.C. 216(b)) to file a civilaction in a court of competent jurisdic-tion within two years or, if the viola-tion is willful, three years of the dateof the alleged violation of the EqualPay Act regardless of whether he orshe pursued any administrative com-plaint processing. Recovery of backwages is limited to two years prior tothe date of filing suit, or to three yearsif the violation is deemed willful; liq-uidated damages in an equal amountmay also be awarded. The filing of acomplaint or appeal under this part


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shall not toll the time for filing a civilaction.

[57 FR 12646, Apr. 10, 1992. Redesignated at 64FR 37659, July 12, 1999]

§ 1614.409 Effect of filing a civil action.Filing a civil action under § 1614.408

or § 1614.409 shall terminate Commis-sion processing of the appeal. If privatesuit is filed subsequent to the filing ofan appeal, the parties are requested tonotify the Commission in writing.

[57 FR 12646, Apr. 10, 1992. Redesignated at 64FR 37659, July 12, 1999]

Subpart E—Remedies andEnforcement

§ 1614.501 Remedies and relief.(a) When an agency, or the Commis-

sion, in an individual case of discrimi-nation, finds that an applicant or anemployee has been discriminatedagainst, the agency shall provide fullrelief which shall include the followingelements in appropriate circumstances:

(1) Notification to all employees ofthe agency in the affected facility oftheir right to be free of unlawful dis-crimination and assurance that theparticular types of discriminationfound will not recur;

(2) Commitment that corrective, cu-rative or preventive action will betaken, or measures adopted, to ensurethat violations of the law similar tothose found will not recur;

(3) An unconditional offer to eachidentified victim of discrimination ofplacement in the position the personwould have occupied but for the dis-crimination suffered by that person, ora substantially equivalent position;

(4) Payment to each identified victimof discrimination on a make wholebasis for any loss of earnings the per-son may have suffered as a result of thediscrimination; and

(5) Commitment that the agencyshall cease from engaging in the spe-cific unlawful employment practicefound in the case.

(b) Relief for an applicant. (1)(i) Whenan agency, or the Commission, findsthat an applicant for employment hasbeen discriminated against, the agencyshall offer the applicant the positionthat the applicant would have occupied

absent discrimination or, if justified bythe circumstances, a substantiallyequivalent position unless clear andconvincing evidence indicates that theapplicant would not have been selectedeven absent the discrimination. Theoffer shall be made in writing. The in-dividual shall have 15 days from receiptof the offer within which to accept ordecline the offer. Failure to accept theoffer within the 15-day period will beconsidered a declination of the offer,unless the individual can show that cir-cumstances beyond his or her controlprevented a response within the timelimit.

(ii) If the offer is accepted, appoint-ment shall be retroactive to the datethe applicant would have been hired.Back pay, computed in the manner pre-scribed by 5 CFR 550.805, shall beawarded from the date the individualwould have entered on duty until thedate the individual actually enters onduty unless clear and convincing evi-dence indicates that the applicantwould not have been selected even ab-sent discrimination. Interest on backpay shall be included in the back paycomputation where sovereign immu-nity has been waived. The individualshall be deemed to have performedservice for the agency during this pe-riod for all purposes except for meetingservice requirements for completion ofa required probationary or trial period.

(iii) If the offer of employment is de-clined, the agency shall award the indi-vidual a sum equal to the back pay heor she would have received, computedin the manner prescribed by 5 CFR550.805, from the date he or she wouldhave been appointed until the date theoffer was declined, subject to the limi-tation of paragraph (b)(3) of this sec-tion. Interest on back pay shall be in-cluded in the back pay computation.The agency shall inform the applicant,in its offer of employment, of the rightto this award in the event the offer isdeclined.

(2) When an agency, or the Commis-sion, finds that discrimination existedat the time the applicant was consid-ered for employment but also finds byclear and convincing evidence that theapplicant would not have been hiredeven absent discrimination, the agency


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shall nevertheless take all steps nec-essary to eliminate the discriminatorypractice and ensure it does not recur.

(3) Back pay under this paragraph (b)for complaints under title VII or theRehabilitation Act may not extendfrom a date earlier than two yearsprior to the date on which the com-plaint was initially filed by the appli-cant.

(c) Relief for an employee. When anagency, or the Commission, finds thatan employee of the agency was dis-criminated against, the agency shallprovide relief, which shall include, butneed not be limited to, one or more ofthe following actions:

(1) Nondiscriminatory placement,with back pay computed in the mannerprescribed by 5 CFR 550.805, unlessclear and convincing evidence con-tained in the record demonstrates thatthe personnel action would have beentaken even absent the discrimination.Interest on back pay shall be includedin the back pay computation wheresovereign immunity has been waived.The back pay liability under title VIIor the Rehabilitation Act is limited totwo years prior to the date the dis-crimination complaint was filed.

(2) If clear and convincing evidenceindicates that, although discriminationexisted at the time the personnel ac-tion was taken, the personnel actionwould have been taken even absent dis-crimination, the agency shall never-theless eliminate any discriminatorypractice and ensure it does not recur.

(3) Cancellation of an unwarrantedpersonnel action and restoration of theemployee.

(4) Expunction from the agency’srecords of any adverse materials relat-ing to the discriminatory employmentpractice.

(5) Full opportunity to participate inthe employee benefit denied (e.g.,training, preferential work assign-ments, overtime scheduling).

(d) The agency has the burden ofproving by a preponderance of the evi-dence that the complainant has failedto mitigate his or her damages.

(e) Attorney’s fees or costs—(1) Awardsof attorney’s fees or costs. The provisionsof this paragraph relating to the awardof attorney’s fees or costs shall applyto allegations of discrimination prohib-

ited by title VII and the RehabilitationAct. In a decision or final action, theagency, administrative judge, or Com-mission may award the applicant oremployee reasonable attorney’s fees(including expert witness fees) andother costs incurred in the processingof the complaint.

(i) A finding of discrimination raisesa presumption of entitlement to anaward of attorney’s fees.

(ii) Any award of attorney’s fees orcosts shall be paid by the agency.

(iii) Attorney’s fees are allowableonly for the services of members of theBar and law clerks, paralegals or lawstudents under the supervision of mem-bers of the Bar, except that no award isallowable for the services of any em-ployee of the Federal Government.

(iv) Attorney’s fees shall be paid forservices performed by an attorney afterthe filing of a written complaint, pro-vided that the attorney provides rea-sonable notice of representation to theagency, administrative judge or Com-mission, except that fees are allowablefor a reasonable period of time prior tothe notification of representation forany services performed in reaching adetermination to represent the com-plainant. Agencies are not required topay attorney’s fees for services per-formed during the pre-complaint proc-ess, except that fees are allowablewhen the Commission affirms on ap-peal an administrative judge’s decisionfinding discrimination after an agencytakes final action by not implementingan administrative judge’s decision.Written submissions to the agency thatare signed by the representative shallbe deemed to constitute notice of rep-resentation.

(2) Amount of awards. (i) When theagency, administrative judge or theCommission determines an entitlementto attorney’s fees or costs, the com-plainant’s attorney shall submit averified statement of attorney’s fees(including expert witness fees) andother costs, as appropriate, to theagency or administrative judge within30 days of receipt of the decision andshall submit a copy of the statement tothe agency. A statement of attorney’sfees and costs shall be accompanied byan affidavit executed by the attorneyof record itemizing the attorney’s


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charges for legal services. The agencymay respond to a statement of attor-ney’s fees and costs within 30 days ofits receipt. The verified statement, ac-companying affidavit and any agencyresponse shall be made a part of thecomplaint file.

(ii)(A) The agency or administrativejudge shall issue a decision deter-mining the amount of attorney’s feesor costs due within 60 days of receipt ofthe statement and affidavit. The deci-sion shall include a notice of right toappeal to the EEOC along with EEOCForm 573, Notice of Appeal/Petititonand shall include the specific reasonsfor determining the amount of theaward.

(B) The amount of attorney’s feesshall be calculated using the followingstandards: The starting point shall bethe number of hours reasonably ex-pended multiplied by a reasonablehourly rate. There is a strong presump-tion that this amount represents thereasonable fee. In limited cir-cumstances, this amount may be re-duced or increased in consideration ofthe degree of success, quality of rep-resentation, and long delay caused bythe agency.

(C) The costs that may be awardedare those authorized by 28 U.S.C. 1920to include: Fees of the reporter for allor any of the stenographic transcriptnecessarily obtained for use in thecase; fees and disbursements for print-ing and witnesses; and fees for exem-plification and copies necessarily ob-tained for use in the case.

(iii) Witness fees shall be awarded inaccordance with the provisions of 28U.S.C. 1821, except that no award shallbe made for a Federal employee who isin a duty status when made availableas a witness.

[57 FR 12646, Apr. 10, 1992, as amended at 60FR 43372, Aug. 21, 1995; 64 FR 37659, July 12,1999]

§ 1614.502 Compliance with final Com-mission decisions.

(a) Relief ordered in a final Commis-sion decision is mandatory and bindingon the agency except as provided inthis section. Failure to implement or-dered relief shall be subject to judicialenforcement as specified in § 1614.503(g).

(b) Notwithstanding paragraph (a) ofthis section, when the agency requestsreconsideration and the case involvesremoval, separation, or suspension con-tinuing beyond the date of the requestfor reconsideration, and when the deci-sion orders retroactive restoration, theagency shall comply with the decisionto the extent of the temporary or con-ditional restoration of the employee toduty status in the position specified bythe Commission, pending the outcomeof the agency request for reconsider-ation.

(1) Service under the temporary orconditional restoration provisions ofthis paragraph (b) shall be credited to-ward the completion of a probationaryor trial period, eligibility for a within-grade increase, or the completion ofthe service requirement for career ten-ure, if the Commission upholds its de-cision after reconsideration.

(2) When the agency requests recon-sideration, it may delay the paymentof any amounts ordered to be paid tothe complainant until after the requestfor reconsideration is resolved. If theagency delays payment of any amountpending the outcome of the request toreconsider and the resolution of the re-quest requires the agency to make thepayment, then the agency shall pay in-terest from the date of the original ap-pellate decision until payment is made.

(3) The agency shall notify the Com-mission and the employee in writing atthe same time it requests reconsider-ation that the relief it provides is tem-porary or conditional and, if applica-ble, that it will delay the payment ofany amounts owed but will pay inter-est as specified in paragraph (b)(2) ofthis section. Failure of the agency toprovide notification will result in thedismissal of the agency’s request.

(c) When no request for reconsider-ation is filed or when a request for re-consideration is denied, the agencyshall provide the relief ordered andthere is no further right to delay im-plementation of the ordered relief. Therelief shall be provided in full not laterthan 60 days after receipt of the finaldecision unless otherwise ordered inthe decision.



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§ 1614.503 Enforcement of final Com-mission decisions.

(a) Petition for enforcement. A com-plainant may petition the Commissionfor enforcement of a decision issuedunder the Commission’s appellate ju-risdiction. The petition shall be sub-mitted to the Office of Federal Oper-ations. The petition shall specificallyset forth the reasons that lead thecomplainant to believe that the agencyis not complying with the decision.

(b) Compliance. On behalf of the Com-mission, the Office of Federal Oper-ations shall take all necessary actionto ascertain whether the agency is im-plementing the decision of the Com-mission. If the agency is found not tobe in compliance with the decision, ef-forts shall be undertaken to obtaincompliance.

(c) Clarification. On behalf of theCommission, the Office of Federal Op-erations may, on its own motion or inresponse to a petition for enforcementor in connection with a timely requestfor reconsideration, issue a clarifica-tion of a prior decision. A clarificationcannot change the result of a prior de-cision or enlarge or diminish the reliefordered but may further explain themeaning or intent of the prior decision.

(d) Referral to the Commission. Wherethe Director, Office of Federal Oper-ations, is unable to obtain satisfactorycompliance with the final decision, theDirector shall submit appropriate find-ings and recommendations for enforce-ment to the Commission, or, as di-rected by the Commission, refer thematter to another appropriate agency.

(e) Commission notice to show cause.The Commission may issue a notice tothe head of any Federal agency thathas failed to comply with a decision toshow cause why there is noncompli-ance. Such notice may request thehead of the agency or a representativeto appear before the Commission or torespond to the notice in writing withadequate evidence of compliance orwith compelling reasons for non-com-pliance.

(f) Certification to the Office of SpecialCounsel. Where appropriate and pursu-ant to the terms of a memorandum ofunderstanding, the Commission mayrefer the matter to the Office of Spe-cial Counsel for enforcement action.

(g) Notification to complainant of com-pletion of administrative efforts. Wherethe Commission has determined thatan agency is not complying with aprior decision, or where an agency hasfailed or refused to submit any re-quired report of compliance, the Com-mission shall notify the complainant ofthe right to file a civil action for en-forcement of the decision pursuant toTitle VII, the ADEA, the Equal PayAct or the Rehabilitation Act and toseek judicial review of the agency’s re-fusal to implement the ordered reliefpursuant to the Administrative Proce-dure Act, 5 U.S.C. 701 et seq., and themandamus statute, 28 U.S.C. 1361, or tocommence de novo proceedings pursu-ant to the appropriate statutes.

§ 1614.504 Compliance with settlementagreements and final action.

(a) Any settlement agreement know-ingly and voluntarily agreed to by theparties, reached at any stage of thecomplaint process, shall be binding onboth parties. Final action that has notbeen the subject of an appeal or civilaction shall be binding on the agency.If the complainant believes that theagency has failed to comply with theterms of a settlement agreement or de-cision, the complainant shall notifythe EEO Director, in writing, of the al-leged noncompliance within 30 days ofwhen the complainant knew or shouldhave known of the alleged noncompli-ance. The complainant may requestthat the terms of settlement agree-ment be specifically implemented or,alternatively, that the complaint be re-instated for further processing fromthe point processing ceased.

(b) The agency shall resolve the mat-ter and respond to the complainant, inwriting. If the agency has not re-sponded to the complainant, in writing,or if the complainant is not satisfiedwith the agency’s attempt to resolvethe matter, the complainant may ap-peal to the Commission for a deter-mination as to whether the agency hascomplied with the terms of the settle-ment agreement or decision. The com-plainant may file such an appeal 35days after he or she has served theagency with the allegations of non-compliance, but must file an appealwithin 30 days of his or her receipt of


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an agency’s determination. The com-plainant must serve a copy of the ap-peal on the agency and the agency maysubmit a response to the Commissionwithin 30 days of receiving notice ofthe appeal.

(c) Prior to rendering its determina-tion, the Commission may request thatparties submit whatever additional in-formation or documentation it deemsnecessary or may direct that an inves-tigation or hearing on the matter beconducted. If the Commission deter-mines that the agency is not in compli-ance and the noncompliance is not at-tributable to acts or conduct of thecomplainant, it may order such com-pliance or it may order that the com-plaint be reinstated for further proc-essing from the point processingceased. Allegations that subsequentacts of discrimination violate a settle-ment agreement shall be processed asseparate complaints under § 1614.106 or§ 1614.204, as appropriate, rather thanunder this section.


§ 1614.505 Interim relief.

(a)(1) When the agency appeals andthe case involves removal, separation,or suspension continuing beyond thedate of the appeal, and when the ad-ministrative judge’s decision ordersretroactive restoration, the agencyshall comply with the decision to theextent of the temporary or conditionalrestoration of the employee to dutystatus in the position specified in thedecision, pending the outcome of theagency appeal. The employee may de-cline the offer of interim relief.

(2) Service under the temporary orconditional restoration provisions ofparagraph (a)(1) of this section shall becredited toward the completion of aprobationary or trial period, eligibilityfor a within-grade increase, or the com-pletion of the service requirement forcareer tenure, if the Commission up-holds the decision on appeal. Suchservice shall not be credited toward thecompletion of any applicable proba-tionary or trial period or the comple-tion of the service requirement for ca-

reer tenure if the Commission reversesthe decision on appeal.

(3) When the agency appeals, it maydelay the payment of any amount,other than prospective pay and bene-fits, ordered to be paid to the com-plainant until after the appeal is re-solved. If the agency delays payment ofany amount pending the outcome ofthe appeal and the resolution of the ap-peal requires the agency to make thepayment, then the agency shall pay in-terest from the date of the original de-cision until payment is made.

(4) The agency shall notify the Com-mission and the employee in writing atthe same time it appeals that the reliefit provides is temporary or conditionaland, if applicable, that it will delay thepayment of any amounts owed but willpay interest as specified in paragraph(b)(2) of this section. Failure of theagency to provide notification will re-sult in the dismissal of the agency’s ap-peal.

(5) The agency may, by notice to thecomplainant, decline to return thecomplainant to his or her place of em-ployment if it determines that the re-turn or presence of the complainantwill be unduly disruptive to the workenvironment. However, prospective payand benefits must be provided. The de-termination not to return the com-plainant to his or her place of employ-ment is not reviewable. A grant of in-terim relief does not insulate a com-plainant from subsequent disciplinaryor adverse action.

(b) If the agency files an appeal andhas not provided required interim re-lief, the complainant may request dis-missal of the agency’s appeal. Any suchrequest must be filed with the Office ofFederal Operations within 25 days ofthe date of service of the agency’s ap-peal. A copy of the request must beserved on the agency at the same timeit is filed with EEOC. The agency mayrespond with evidence and argument tothe complainant’s request to dismisswithin 15 days of the date of service ofthe request.

[64 FR 37660, July 12, 1999]


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Subpart F—Matters of GeneralApplicability

§ 1614.601 EEO group statistics.(a) Each agency shall establish a sys-

tem to collect and maintain accurateemployment information on the race,national origin, sex and handicap(s) ofits employees.

(b) Data on race, national origin andsex shall be collected by voluntary self-identification. If an employee does notvoluntarily provide the requested in-formation, the agency shall advise theemployee of the importance of the dataand of the agency’s obligation to reportit. If the employee still refuses to pro-vide the information, the agency mustmake visual identification and informthe employee of the data it will be re-porting. If an agency believes that in-formation provided by an employee isinaccurate, the agency shall advise theemployee about the solely statisticalpurpose for which the data is being col-lected, the need for accuracy, the agen-cy’s recognition of the sensitivity ofthe information and the existence ofprocedures to prevent its unauthorizeddisclosure. If, thereafter, the employeedeclines to change the apparently inac-curate self-identification, the agencymust accept it.

(c) The information collected underparagraph (b) of this section shall bedisclosed only in the form of gross sta-tistics. An agency shall not collect ormaintain any information on the race,national origin or sex of individual em-ployees except when an automateddata processing system is used in ac-cordance with standards and require-ments prescribed by the Commission toinsure individual privacy and the sepa-ration of that information from per-sonnel record.

(d) Each system is subject to the fol-lowing controls:

(1) Only those categories of race andnational origin prescribed by the Com-mission may be used;

(2) Only the specific procedures forthe collection and maintenance of datathat are prescribed or approved by theCommission may be used;

(3) The Commission shall review theoperation of the agency system to in-sure adherence to Commission proce-dures and requirements. An agency

may make an exception to the pre-scribed procedures and requirementsonly with the advance written approvalof the Commission.

(e) The agency may use the data onlyin studies and analyses which con-tribute affirmatively to achieving theobjectives of the equal employment op-portunity program. An agency shallnot establish a quota for the employ-ment of persons on the basis of race,color, religion, sex, or national origin.

(f) Data on handicaps shall also becollected by voluntary self-identifica-tion. If an employee does not volun-tarily provide the requested informa-tion, the agency shall advise the em-ployee of the importance of the dataand of the agency’s obligation to reportit. If an employee who has been ap-pointed pursuant to special appoint-ment authority for hiring individualswith handicaps still refuses to providethe requested information, the agencymust identify the employee’s handicapbased upon the records supporting theappointment. If any other employeestill refuses to provide the requestedinformation or provides informationwhich the agency believes to be inac-curate, the agency should report theemployee’s handicap status as un-known.

(g) An agency shall report to theCommission on employment by race,national origin, sex and handicap inthe form and at such times as the Com-mission may require.

§ 1614.602 Reports to the Commission.

(a) Each agency shall report to theCommission information concerningpre-complaint counseling and the sta-tus, processing and disposition of com-plaints under this part at such timesand in such manner as the Commissionprescribes.

(b) Each agency shall advise theCommission whenever it is served witha Federal court complaint based upon acomplaint that is pending on appeal atthe Commission.

(c) Each agency shall submit annu-ally for the review and approval of theCommission written national and re-gional equal employment opportunityplans of action. Plans shall be sub-mitted in a format prescribed by the


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Commission and shall include, but notbe limited to:

(1) Provision for the establishment oftraining and education programs de-signed to provide maximum oppor-tunity for employees to advance so asto perform at their highest potential;

(2) Description of the qualifications,in terms of training and experience re-lating to equal employment oppor-tunity, of the principal and operatingofficials concerned with administrationof the agency’s equal employment op-portunity program; and

(3) Description of the allocation ofpersonnel and resources proposed bythe agency to carry out its equal em-ployment opportunity program.

§ 1614.603 Voluntary settlement at-tempts.

Each agency shall make reasonableefforts to voluntarily settle complaintsof discrimination as early as possiblein, and throughout, the administrativeprocessing of complaints, including thepre-complaint counseling stage. Anysettlement reached shall be in writingand signed by both parties and shallidentify the claims resolved.


§ 1614.604 Filing and computation oftime.

(a) All time periods in this part thatare stated in terms of days are cal-endar days unless otherwise stated.

(b) A document shall be deemed time-ly if it is received or postmarked beforethe expiration of the applicable filingperiod, or, in the absence of a legiblepostmark, if it is received by mailwithin five days of the expiration ofthe applicable filing period.

(c) The time limits in this part aresubject to waiver, estoppel and equi-table tolling.

(d) The first day counted shall be theday after the event from which thetime period begins to run and the lastday of the period shall be included, un-less it falls on a Saturday, Sunday orFederal holiday, in which case the pe-riod shall be extended to include thenext business day.


§ 1614.605 Representation and officialtime.

(a) At any stage in the processing ofa complaint, including the counselingstage § 1614.105, the complainant shallhave the right to be accompanied, rep-resented, and advised by a representa-tive of complainant’s choice.

(b) If the complainant is an employeeof the agency, he or she shall have areasonable amount of official time, ifotherwise on duty, to prepare the com-plaint and to respond to agency andEEOC requests for information. If thecomplainant is an employee of theagency and he designates another em-ployee of the agency as his or her rep-resentative, the representative shallhave a reasonable amount of officialtime, if otherwise on duty, to preparethe complaint and respond to agencyand EEOC requests for information.The agency is not obligated to changework schedules, incur overtime wages,or pay travel expenses to facilitate thechoice of a specific representative or toallow the complainant and representa-tive to confer. The complainant andrepresentative, if employed by theagency and otherwise in a pay status,shall be on official time, regardless oftheir tour of duty, when their presenceis authorized or required by the agencyor the Commission during the inves-tigation, informal adjustment, or hear-ing on the complaint.

(c) In cases where the representationof a complainant or agency would con-flict with the official or collateral du-ties of the representative, the Commis-sion or the agency may, after givingthe representative an opportunity torespond, disqualify the representative.

(d) Unless the complainant statesotherwise in writing, after the agencyhas received written notice of thename, address and telephone number ofa representative for the complainant,all official correspondence shall bewith the representative with copies tothe complainant. When the complain-ant designates an attorney as rep-resentative, service of all official cor-respondence shall be made on the at-torney and the complainant, but timeframes for receipt of materials shall becomputed from the time of receipt bythe attorney. The complainant mustserve all official correspondence on the


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designated representative of the agen-cy.

(e) The Complainant shall at alltimes be responsible for proceedingwith the complaint whether or not heor she has designated a representative.

(f) Witnesses who are Federal em-ployees, regardless of their tour of dutyand regardless of whether they are em-ployed by the respondent agency orsome other Federal agency, shall be ina duty status when their presence isauthorized or required by Commissionor agency officials in connection with acomplaint.


§ 1614.606 Joint processing and con-solidation of complaints.

Complaints of discrimination filed bytwo or more complainants consisting ofsubstantially similar allegations of dis-crimination or relating to the samematter may be consolidated by theagency or the Commission for jointprocessing after appropriate notifica-tion to the parties. Two or more com-plaints of discrimination filed by thesame complainant shall be consoli-dated by the agency for joint proc-essing after appropriate notification tothe complainant. When a complainthas been consolidated with one or moreearlier filed complaints, the agencyshall complete its investigation withinthe earlier of 180 days after the filing ofthe last complaint or 360 days after thefiling of the original complaint, exceptthat the complainant may request ahearing from an administrative judgeon the consolidated complaints anytime after 180 days from the date of thefirst filed complaint. Administrativejudges or the Commission may, in theirdiscretion, consolidate two or morecomplaints of discrimination filed bythe same complainant.

[64 FR 37661, July 12, 1999]

§ 1614.607 Delegation of authority.

An agency head may delegate author-ity under this part, to one or more des-ignees.

PART 1615—ENFORCEMENT OFNONDISCRIMINATION ON THEBASIS OF HANDICAP IN PRO-GRAMS OR ACTIVITIES CON-DUCTED BY THE EQUAL EMPLOY-MENT OPPORTUNITY COMMIS-SION

Sec.1615.101 Purpose.1615.102 Application.1615.103 Definitions.1615.104–1615.109 [Reserved]1615.110 Self-evaluation.1615.111 Notice.1615.112–1615.129 [Reserved]1615.130 General prohibitions against dis-

crimination.1615.131–1615.139 [Reserved]1615.140 Employment.1615.141–1615.148 [Reserved]1615.149 Program accessibility: Discrimina-

tion prohibited.1615.150 Program accessibility: Existing fa-

cilities.1615.151 Program accessibility: New con-

struction and alterations.1615.152–1615.159 [Reserved]1615.160 Communications.1615.161–1615.169 [Reserved]1615.170 Compliance procedures.1615.171–1615.999 [Reserved]



§ 1615.101 Purpose.The purpose of this part is to effec-

tuate section 119 of the Rehabilitation,Comprehensive Services, and Develop-mental Disabilities Amendments of1978, which amended section 504 of theRehabilitation Act of 1973 to prohibitdiscrimination on the basis of handicapin programs or activities conducted byExecutive agencies or the UnitedStates Postal Service.

§ 1615.102 Application.This part applies to all programs or

activities conducted by the Commis-sion.

§ 1615.103 Definitions.For purposes of this part, the term—Assistant Attorney General means the

Assistant Attorney General, CivilRights Division, United States Depart-ment of Justice.


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Auxiliary aids means services or de-vices that enable persons with im-paired sensory, manual, or speakingskills to have an equal opportunity toparticipate in, and enjoy the benefitsof, programs or activities conducted bythe Commission. For example, auxil-iary aids useful for persons with im-paired vision include readers, Brailledmaterials, audio recordings, and othersimilar services and devices. Auxiliaryaids useful for persons with impairedhearing include telephone handset am-plifiers, telephones compatible withhearing aids, telecommunication de-vices for deaf persons (TDD’s), inter-preters, notetakers, written materials,and other similar services and devices.Auxiliary aids useful for persons withimpaired ability to reach or grasp in-clude goose neck telephone headsets,mechanical page turners, and raised orlowered furniture. These examples arenot intended to be exclusive either asto the persons who are entitled to suchaids or as to the type of aids that maybe required. Although auxiliary aidsare required explicitly only by§ 1615.160(a)(1), they may also be nec-essary to meet other requirements ofthis part.

Commission means the Equal Employ-ment Opportunity Commission.

Complete complaint means writtenstatement that contains the complain-ant’s name and address and describesthe Commission’s actions in sufficientdetail to inform the Commission of thenature and date of the alleged violationof section 504. It shall be signed by thecomplainant or by someone authorizedto do so on his or her behalf. Com-plaints filed on behalf of classes orthird parties shall describe or identify(by name, if possible) the alleged vic-tims of discrimination.

Facility means all or any portion ofbuildings, structures, equipment,roads, walks, parking lots, rollingstock or other conveyances, or otherreal or personal property.

Individual with handicaps means anyperson who has a physical or mentalimpairment that substantially limitsone or more major life activities, has arecord of such an impairment, or is re-garded as having such an impairment.As used in this definition, the phrase:

(1) Physical or mental impairment in-cludes—(i) Any physiological disorderor condition, cosmetic disfigurement,or anatomical loss affecting one ormore of the following body systems:Neurological; musculoskeletal; specialsense organs; respiratory, includingspeech organs; cardiovascular; repro-ductive; digestive; genitourinary;hemic and lymphatic; skin; and endo-crine; or

(ii) Any mental or psychological dis-order, such as mental retardation, or-ganic brain syndrome, emotional ormental illness, and specific learningdisabilities. The term ‘‘physical ormental impairment’’ includes, but isnot limited to, such diseases and condi-tions as orthopedic. visual, speech, andhearing impairments, cerebral palsy,epilepsy, muscular dystrophy, multiplesclerosis, cancer, heart disease, diabe-tes, mental retardation, emotional ill-ness, and drug addiction and alco-holism.

(2) Major life activities includes func-tions such as caring for one’s self, per-forming manual tasks, walking, seeing,hearing, speaking, breathing, learning,and working.

(3) Has a record of such an impairmentmeans has a history of, or has beenmisclassified as having, a mental orphysical impairment that substantiallylimits one or more major life activi-ties.

(4) Is regarded as having such an im-pairment means—(i) Has a physical ormental impairment that does not sub-stantially limit major life activitiesbut is treated by the agency as consti-tuting such a limitation;

(ii) Has a physical or mental impair-ment that substantially limits majorlife activities only as a result of the at-titudes of others toward such impair-ment; or

(iii) Has none of the impairments de-fined in paragraph (1) of this definitionbut is treated by the agency as havingan impairment.

Qualified individual with handicapsmeans—

(1) With respect to any Commissionprogram or activity (except employ-ment), an individual with handicapswho, with or without modifications oraids required by this part, meets theessential eligibility requirements for


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participation in, or receipt of benefitsfrom, that program or activity.

(2) With respect to employment, anindividual with handicaps as defined in39 CFR 1613.702(f), which is made appli-cable to this part by § 1615.140.

Section 504 means section 504 of theRehabilitation Act of 1973 (Pub. L. 93–112, 87 Stat. 394 (29 U.S.C. 794)), asamended by the Rehabilitation ActAmendments of 1974 (Pub. L. 93–516, 88Stat. 1617), the Rehabilitation, Com-prehensive Services, and Develop-mental Disabilities Amendments of1978 (Pub. L. 95–602, 92 Stat. 2955) andthe Rehabilitation Act Amendments of1986 (Pub. L. 99–506, 100 Stat. 1810). Asused in this part, section 504 appliesonly to programs or activities con-ducted by Executive agencies and notto federally assisted programs.

§§ 1615.104–1615.109 [Reserved]

§ 1615.110 Self-evaluation.(a) The Commission shall, by June 26,

1990, evaluate its current policies andpractices, and the effects thereof, thatdo not or may not meet the require-ments of this part, and, to the extentmodification of any such policies andpractices is required, the Commissionshall proceed to make the necessarymodifications.

(b) The Commission shall provide anopportunity to interested persons, in-cluding individuals with handicaps ororganizations representing individualswith handicaps, to participate in theself evaluation process by submittingcomments (both oral and written).

(c) The Commission shall, for a leastthree years following completion of theevaluation required under paragraph(a) of this section, maintain on file andmake available for public inspection—

(1) A description of areas examinedand any problems identified; and

(2) A description of any modificationsmade.

§ 1615.111 Notice.The Commission shall make avail-

able to employees, applicants, partici-pants, beneficiaries, and other inter-ested persons such information regard-ing the provisions of this part and itsapplicability to the programs or activi-ties conducted by the Commission, and

make such information available tothem in such manner as the Chairmanof the Commission finds necessary toapprise such persons of the protectionsagainst discrimination assured themby section 504 and this regulation.

§§ 1615.112–1615.129 [Reserved]

§ 1615.130 General prohibitionsagainst discrimination.

(a) No qualified individual withhandicaps shall, on the basis of handi-cap, be excluded from participation in,be denied the benfits of, or otherwisebe subjected to discrimination underany program or activity conducted bythe Commission.

(b)(1) The Commission, in providingany aid, benefit, or service, may not,directly or through contractual, certi-fying, or other arrangements, on thebasis of handicap—

(i) Deny a qualified individual withhandicaps the opportunity to partici-pate in or benefit from the aid, benefit,or service;

(ii) Afford a qualified individual withhandicaps an opportunity to partici-pate in or benefit from the aid, benefit,or service that is not equal to that af-forded others;

(iii) Provide a qualified individualwith handicaps with an aid, benefit, orservice that is not as effective in af-fording equal opportunity to obtain thesame result, to gain the same benefit,or to reach the same level of achieve-ment as that provided to others;

(iv) Provide different or separate aid,benefits, or services to individuals withhandicaps or to any class of individualswith handicaps than is provided to oth-ers unless such action is necessary toprovide qualified individuals withhandicaps with aid, benefits, or serv-ices that are as effective as those pro-vided to others;

(v) Deny a qualified individual withhandicaps the opportunity to partici-pate as a member of planning or advi-sory boards; or

(vi) Otherwise limit a qualified indi-vidual with handicaps in the enjoy-ment of any right, privilege, advan-tage, or opportunity enjoyed by othersreceiving the aid, benefit, or service.

(2) The Commission may not deny aqualified individual with handicaps the


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29 CFR Ch. XIV (7–1–01 Edition)§§ 1615.131–1615.139

opportunity to participate in programsor activities that are not separate ordifferent, despite the existence of per-missibly separate or different programsor activities.

(3) The Commission may not, directlyor through contractual or other ar-rangements, utilize criteria or methodsof administration the purpose or effectof which would—(i) Subject qualifiedindividuals with handicaps to discrimi-nation on the basis of handicap; or

(ii) Defeat or substantially impair ac-complishment of the objectives of aprogram or activity with respect to in-dividuals with handicaps.

(4) The Commission may not, in de-termining the site or location of a fa-cility, make selections the purpose oreffect of which would—(i) Exclude indi-viduals with handicaps from, denythem the benefits of, or otherwise sub-ject them to discrimination under anyprogram or activity conducted by theCommission; or

(ii) Defeat or substantially impairthe accomplishment of the objectivesof a program or activity with respectto individuals with handicaps.

(5) The Commission, in the selectionof procurement contractors, may notuse criteria that subject qualified indi-viduals with handicaps to discrimina-tion on the basis of handicap.

(c) The exclusion of nonhandicappedpersons from the benefits of a programlimited by Federal statute or Execu-tive order to individuals with handi-caps or the exclusion of a specific classof individuals with handicaps from aprogram limited by Federal statute orExecutive order to a different class ofindividuals with handicaps is not pro-hibited by this part.

(d) The Commission shall administerprograms and activities in the most in-tegrated setting appropriate to theneeds of qualified individuals withhandicaps.

§§ 1615.131–1615.139 [Reserved]

§ 1615.140 Employment.No qualified individual with handi-

caps shall, on the basis of handicap, besubjected to discrimination in employ-ment under any program or activityconducted by the Commission. Thedefinitions, requirements, and proce-

dures of section 501 of the Rehabilita-tion Act of 1973 (29 U.S.C. 791), as estab-lished by this Commission in 29 CFRpart 1613, shall apply to employment infederally conducted programs or activi-ties.

§§ 1615.141–1615.148 [Reserved]

§ 1615.149 Program accessibility: Dis-crimination prohibited.

Except as otherwise provided in§ 1615.150, no qualified individual withhandicaps shall, because the Commis-sion’s facilities are inaccessible to orunusable by individuals with handi-caps, be denied the benefits of, be ex-cluded from participation in, or other-wise be subjected to discriminationunder any program or activity con-ducted by the Commission.

§ 1615.150 Program accessibility: Exist-ing facilities.

(a) General. The Commission shall op-erate each program or activity so thatthe program or activity, when viewedin its entirety, is readily accessible toand usable by individuals with handi-caps. This paragraph does not—

(1) Necessarily require the Commis-sion to make each of its existing facili-ties accessible to and usable by individ-uals with handicaps;

(2) Require the Commission to takeany action that it can demonstratewould result in a fundamental alter-ation in the nature of a program or ac-tivity or in undue financial and admin-istrative burdens. In those cir-cumstances where Commission per-sonnel believe that the proposed actionwould fundamentally alter the programor activity or would result in undue fi-nancial and administrative burdens,the Commission has the burden ofproving that compliance with§ 1615.150(a) would result in such alter-ation or burdens. The decision thatcompliance would result in such alter-ation or burdens must be made by theChairman of the Commission after con-sidering all Commission resourcesavailable for use in the funding and op-eration of the conducted program oractivity, and must be accompanied bya written statement of the reasons forreaching that conclusion. If an actionwould result in such an alteration or


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such burdens, the Commission shalltake any other action that would notresult in such an alteration or suchburdens but would nevertheless ensurethat individuals with handicaps receivethe benefits and services of the pro-gram or activity.

(b) Methods. The Commission maycomply with the requirements of thissection through such means as redesignof equipment, reassignment of servicesto accessible buildings, assignment ofaides to beneficiaries, home visits, de-livery of services at alternate acces-sible sites, alteration of existing facili-ties and construction of new facilities,use of accessible rolling stock, or anyother methods that result in makingits programs or activities readily ac-cessible to and usable by individualswith handicaps. The Commission is notrequired to make structural changes inexisting facilities where other methodsare effective in achieving compliancewith this section. The Commission, inmaking alterations to existing build-ings, shall meet accessibility require-ments to the extent compelled by theArchitectural Barriers Act of 1968, asamended (42 U.S.C. 4151–4157), and anyregulations implementing it. In choos-ing among available methods for meet-ing the requirements of this section,the Commission shall give priority tothose methods that offer programs andactivities to qualified individuals withhandicaps in the most integrated set-ting appropriate.

(c) Time period for compliance. TheCommission shall comply with the ob-ligations established under this sectionby August 25, 1989 except that wherestructural changes in facilities are un-dertaken, such changes shall be madeby June 26, 1992 but in any event as ex-peditiously as possible.

(d) Transition plan. In the event thatstructural changes to facilities will beundertaken to achieve program acces-sibility, the Commission shall develop,by December 26, 1989 a transition plansetting forth the steps necessary tocomplete such changes. The Commis-sion shall provide an opportunity to in-terested persons, including individualswith handicaps and organizations rep-resenting individuals with handicaps,to participate in the development ofthe transition plan by submitting com-

ments (both oral and written). A copyof the transition plan shall be madeavailable for public inspection. Theplan shall, at a minimum—(1) Identifyphysical obstacles in the Commission’sfacilities that limit the accessibility ofits programs or activities to individ-uals with handicaps;

(2) Describe in detail the methodsthat will be used to make the facilitiesaccessible;

(3) Specify the schedule for takingthe steps necessary to achieve compli-ance with this section and, if the timeperiod of the transition plan is longerthan one year, identify steps that willbe taken during each year of the tran-sition period; and

(4) Indicate the official responsiblefor implementation of the plan.

§ 1615.151 Program accessibility: Newconstruction and alterations.

Each building or part of a buildingthat is constructed or altered by, onbehalf of, or for the use of the Commis-sion shall be designed, constructed, oraltered so as to be readily accessible toand usable by individuals with handi-caps. The definitions, requirements,and standards of the Architectural Bar-riers Act (42 U.S.C. 4151–4157), as estab-lished in 41 CFR subpart 101–19.6, applyto buildings covered by this section.

§§ 1615.152–1615.159 [Reserved]

§ 1615.160 Communications.(a) The Commission shall take appro-

priate steps to ensure effective commu-nication with applicants, participants,personnel of other Federal entities, andmembers of the public.

(1) The Commission shall furnish ap-propriate auxiliary aids where nec-essary to afford an individual withhandicaps an equal opportunity to par-ticipate in, and enjoy the benefits of, aprogram or activity conducted by theCommission.

(i) In determining what type of auxil-iary aid is necessary, the Commissionshall give primary consideration to therequests of the individual with handi-caps.

(ii) The Commission need not provideindividually prescribed devices, readersfor personal use or study, or other de-vices of a personal nature.


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29 CFR Ch. XIV (7–1–01 Edition)§§ 1615.161–1615.169

(2) Where the Commission commu-nicates with applicants and bene-ficiaries by telephone, telecommuni-cation devices for deaf persons (TDD’s)or equally effective telecommunicationsystems shall be used.

(b) The Commission shall ensure thatinterested persons, including personswith impaired vision or hearing, canobtain information as to the existenceand location of accessible services, ac-tivities, and facilities.

(c) The Commission shall providesigns at a primary entrance to each ofits inaccessible facilities, directingusers to a location at which they canobtain information about accessible fa-cilities. The international symbol foraccessibility shall be used at each pri-mary entrance of an accessible facility.

(d) This section does not require theCommission to take any action that itcan demonstrate would result in a fun-damental alteration in the nature of aprogram or activity or in undue finan-cial and administrative burdens. Inthose circumstances where Commis-sion personnel believe that the pro-posed action would fundamentallyalter the program or activity or wouldresult in undue financial and adminis-trative burdens, the Commission hasthe burden of proving that compliancewith § 1615.160 would result in such al-teration or burdens. The decision thatcompliance would result in such alter-ation or burdens must be made by theChairman of the Commission after con-sidering all Commission resourcesavailable for use in the funding and op-eration of the conducted program oractivity, and must be accompanied bya written statement of the reasons forreaching that conclusion. If an actionrequired to comply with this sectionwould result in such an alteration orsuch burdens, the Commission shalltake any other action that would notresult in such an alteration or suchburdens but would nevertheless ensurethat, to the maximum extent possible,individuals with handicaps receive thebenefits and services of the program oractivity.

§§ 1615.161–1615.169 [Reserved]

§ 1615.170 Compliance procedures.

(a) Except as provided in paragraph(b) of this section, this section appliesto all allegations of discrimination onthe basis of handicap in programs oractivities conducted by the Commis-sion.

(b) The Commission shall processcomplaints alleging violations of sec-tion 504 with respect to employmentaccording to the procedures establishedby EEOC in 29 CFR part 1613 pursuantto section 501 of the Rehabilitation Actof 1973 (29 U.S.C. 791).

(c) Responsibility for implementa-tion and operation of this section shallbe vested in the Director, Equal Em-ployment Opportunity Staff.

(d) Filing a complaint. (1) Who mayfile? Any person who believes that heor she has been subjected to discrimi-nation prohibited by this part, or au-thorized representative of such person,may file a complaint with the Director,Equal Employment Opportunity Staff.Any person who believes that any spe-cific class of persons has been sub-jected to discrimination prohibited bythis part and who is a member of thatclass or the authorized representativeof a member of that class may file acomplaint with the Director. A chargeon behalf of a person or member of aclass of persons claiming to be ag-grieved may be made by any person,agency or organization.

(2) Where and when to file. Com-plaints shall be filed with the Director,Equal Employment Opportunity Staff,1801 ‘‘L’’ Street NW., Washington, DC20507, within one hundred and eightycalendar days of the alleged act of dis-crimination. A complaint shall bedeemed filed on the date it is post-marked, or, in the absence of a post-mark, on the date it is received in theOffice of the Director. The Commissionshall extend the time period for filing acomplaint upon a showing of goodcause. For example, the Commissionshall extend this time limit if a com-plainant shows that he or she was notnotified of the time limits and was nototherwise aware of them, or that he or


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she was prevented by circumstances be-yond his or her control from submit-ting the matter within the time limits.A technically incomplete complaintshall be deemed timely if the complain-ant cures any defect upon request.

(e) Acceptance of complaint. (1) TheCommission shall accept a completecomplaint that is filed in accordancewith paragraph (d) of this section andover which it has jurisdiction. The EEODirector shall notify the complainantand the respondent of receipt and ac-ceptance of the complaint.

(2) If the EEO Director receives acomplaint that is not complete, he orshe shall notify the complainant, with-in 30 days of receipt of the incompletecomplaint, that additional informationis needed. If the complainant fails tocomplete the complaint within 30 daysof receipt of this notice, the Directorshall dismiss the complaint withoutprejudice and shall so inform the com-plainant.

(f) If the Commission receives a com-plaint over which it does not have ju-risdiction, it shall promptly notify thecomplainant and shall make reason-able efforts to refer the complaint tothe appropriate government entity.

(g) The Commission shall notify theArchitectural and Transportation Bar-riers Compliance Board upon receipt ofany complaint alleging that a buildingor facility that is subject to the Archi-tectural Barriers Act of 1968, as amend-ed (42 U.S.C. 4151–4157), is not readilyaccessible to and usable by individualswith handicaps.

(h) Within 180 days of the receipt of acomplete complaint for which it has ju-risdiction, the Commission shall notifythe complainant of the results of theinvestigation in a letter containing—

(1) Findings of fact and conclusionsof law;

(2) A description of a remedy for eachviolation found; and

(3) A notice of the right to appeal.(i) Appeals of the findings of fact and

conclusions of law or remedies must befiled with the Chairman of the Com-mission by the complainant withinninety calendar days of receipt fromthe Commission of the letter requiredby § 1615.170(h). The Commission shallextend this time for good cause when acomplainant shows that he or she was

not notified of the prescribed timelimit and was not otherwise aware of itor that circumstances beyond his orher control prevented the filing of anappeal within the prescribed timelimit. An appeal shall be deemed filedon the date it is postmarked, or, in theabsence of a postmark, on the date it isreceived by the Chairman at 1801 ‘‘L’’Street NW., Washington, DC 20507. Itshould be clearly marked ‘‘Appeal ofsection 504 decision’’ and should con-tain specific objections explaining whythe person believes the initial decisionwas factually or legally wrong. At-tached to the appeal letter should be acopy of the initial decision being ap-pealed.

(j) Timely appeals shall be decided bythe Chairman of the Commission un-less the Commission determines thatan appeal raises a policy issue whichshould be addressed by the full Com-mission. The full Commission shallthen decide such appeals.

(k) The Commission shall notify thecomplainant of the results of the ap-peal within sixty days of the receipt ofthe request. If the Commission deter-mines that it needs additional informa-tion from the complainant, it shallhave sixty days from the date it re-ceives the additional information tomake its determination on the appeal.

(l) The time limits cited in para-graphs (h) and (k) of this section maybe extended with the permission of theAssistant Attorney General.

(m) The Commission may delegateits authority for conducting complaintinvestigations to other Federal agen-cies, or may contract with non-Federalentities to conduct such investigationsexcept that the authority for makingthe final determination may not bedelegated.

§§ 1615.171–1615.999 [Reserved]

PART 1620—THE EQUAL PAY ACT

Sec.1620.1 Basic applicability of the Equal Pay

Act.1620.2 General coverage of employees ‘‘en-

gaged in commerce.’’1620.3 General coverage of employees ‘‘en-

gaged in * * * the production of goods forcommerce.’’


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1620.4 ‘‘Closely related’’ and ‘‘directly es-sential’’ activities.

1620.5 What goods are considered as ‘‘pro-duced for commerce.’’

1620.6 Coverage is not based on amount ofcovered activity.

1620.7 ‘‘Enterprise’’ coverage.1620.8 ‘‘Employer,’’ ‘‘employee,’’ and ‘‘em-

ploy’’ defined.1620.9 Meaning of ‘‘establishment.’’1620.10 Meaning of ‘‘wages.’’1620.11 Fringe benefits.1620.12 Wage ‘‘rate.’’1620.13 ‘‘Equal Work’’—What it means.1620.14 Testing equality of jobs.1620.15 Jobs requiring equal skill in per-

formance.1620.16 Jobs requiring equal effort in per-

formance.1620.17 Jobs requiring equal responsibility

in performance.1620.18 Jobs performed under similar work-

ing conditions.1620.19 Equality of wages—application of

the principle.1620.20 Pay differentials claimed to be based

on extra duties.1620.21 Head of household.1620.22 Employment cost not a ‘‘factor

other than sex.’’1620.23 Collective bargaining agreements

not a defense.1620.24 Time unit for determining viola-

tions.1620.25 Equalization of rates.1620.26 Red circle rates.1620.27 Relationship to the Equal Pay Act

to title VII of the Civil Rights Act.1620.28 Relationship to other equal pay

laws.1620.29 Relationship to other labor laws.1620.30 Investigations and compliance as-

sistance.1620.31 Issuance of subpoenas.1620.32 Recordkeeping requirements.1620.33 Recovery of wages due; injunctions;

penalties for willful violations.1620.34 Rules to be liberally construed.

AUTHORITY: Sec. 1–19, 52 Stat. 1060, asamended; sec. 10, 61 Stat. 84; Pub. L. 88–38, 77Stat. 56 (29 U.S.C. 201 et seq.); sec. 1, Reorg.Plan No. 1 of 1978, 43 FR 19807; E.O. 12144, 44FR 37193.

SOURCE: 51 FR 29819, Aug. 20, 1986, unlessotherwise noted.

§ 1620.1 Basic applicability of theEqual Pay Act.

(a) Since the Equal Pay Act, 29U.S.C. 206(d) (hereinafter referred to asthe EPA), is a part of the Fair LaborStandards Act, 29 U.S.C. 201, et seq.(hereinafter referred to as the FLSA),it has the same basic coverage as theFLSA with two principal exceptions:

(1) The EPA applies to executive, ad-ministrative, and professional employ-ees who are normally exempted fromthe FLSA for most purposes by section13(a)(1) of that statute, and

(2) The EPA covers all State andlocal government employees unlessthey are specifically exempted undersection 3(e)(2)(C) of the FLSA.

(b) The EPA does not apply where theemployer has no employees who are en-gaged in commerce or in the handlingof goods that have moved in commerceand the employer is not an enterpriseengaged in commerce or in the produc-tion of goods for commerce.

(c) Men are protected under the Actequally with women. While the EPAwas motivated by concern for theweaker bargaining position of women,the Act by its express terms applies toboth sexes.

(d) Most employees of the UnitedStates Government, as described insection 3(e)(2) (A) and (B) of the FLSA,are covered by the EPA. Accordingly,these interpretations and principlesmay generally be applied to Federalsector employment.

§ 1620.2 General coverage of employ-ees ‘‘engaged in commerce.’’

(a) Like the FLSA, the EPA appliesto employees ‘‘engaged in commerce.’’‘‘Commerce’’ is broadly defined in sec-tion 3(b) of the FLSA. It includes bothinterstate and foreign commerce and isnot limited to transportation acrossState lines, or to activity of a commer-cial character. All parts of the move-ment among the several States, or be-tween any State and any place outsidethereof, of persons or things, tangiblesor intangibles, including communica-tion of information and intelligence,constitute movement in ‘‘commerce’’within the statutory definition. Thisincludes those parts of any such activ-ity which take place wholly within asingle State. In addition, the instru-mentalities for carrying on such com-merce are so inseparable from the com-merce itself that employees workingon such instrumentalities within theborders of a single State, by virtue ofthe contribution made by their work tothe movement of the commerce, are‘‘engaged in commerce’’ within themeaning of the FLSA.


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(b) Consistent with the purpose of theFLSA to apply Federal standards‘‘throughout the farthest reaches ofthe channels of interstate commerce,’’the courts have made it clear that theemployees ‘‘engaged in commerce’’ in-clude every employee employed in thechannels of such commerce or in ac-tivities so closely related to such com-merce as to be considered a part of itas a practical matter. Engaging ‘‘incommerce’’ includes activities con-nected therewith such as managementand control of the various physicalprocesses, together with the accom-panying accounting and clerical activi-ties. Thus, employees engaged in inter-state or foreign commerce will typi-cally include, among others, employeesin distributing industries such aswholesaling or retailing who sell,transport, handle, or otherwise workon goods moving in interstate or for-eign commerce as well as workers whoorder, receive, guard, pack, ship orkeep records of such goods; employeeswho handle payroll or personnel func-tions for workers engaged in such ac-tivities; clerical and other workers whoregularly use the mails, telephone, ortelegraph for communication acrossState lines; and employees who regu-larly travel across State lines whileworking. For other examples, see 29CFR part 776.

§ 1620.3 General coverage of employ-ees ‘‘engaged in * * * the produc-tion of goods for commerce.’’

(a) Like the FLSA, the EPA appliesto employees ‘‘engaged in * * * the pro-duction of goods for commerce.’’ Thebroad meaning of ‘‘commerce’’ as de-fined in section 3(b) of the FLSA hasbeen outlind in § 1620.2. ‘‘Goods’’ is alsocomprehensively defined in section 3(i)of the FLSA and includes ‘‘articles orsubjects of commerce of any character,or any part or ingredient thereof’’ notexpressly excepted by the statute. Theactivities constituting ‘‘production’’ ofthe goods for commerce are defined insection 3(j) of the FLSA. These are notlimited to such work as manufacturingbut include handling or otherwiseworking on goods intended for ship-ment out of the State either directly orindirectly or for use within the Stateto serve the needs of the instrumental-

ities or facilities by which interstate orforeign commerce is carried on. Em-ployees engaged in any closely relatedprocess or occupation directly essen-tial to such production of any goods,whether employed by the producer orby an independent employer, are alsoengaged, by definition, in ‘‘produc-tion.’’ Thus, employees engaged in theadministration, planning, manage-ment, and control of the various phys-ical processes together with the accom-panying clerical and accounting activi-ties are, from a productive standpointand for purposes of the FLSA, ‘‘en-gaged in the production of goods forcommerce.’’

(b) Employees engaged in the produc-tion of goods for interstate or foreigncommerce include those who work inmanufacturing, processing, and distrib-uting establishments, including whole-sale and retail establishments that‘‘produce’’ (including handling or work-ing on) goods for such commerce. Thisincludes everyone employed in such es-tablishments, or elsewhere in the en-terprises by which they are operated,whose activities constitute ‘‘produc-tion’’ of such goods under the prin-ciples outlined in paragraph (a) of thissection. Thus, employees who sell,process, load, pack, or otherwise han-dle or work on goods which are to beshipped or delivered outside the Stateeither by their employer or by anotherfirm, and either in the same form or asa part or ingredient of other goods, areengaged in the production of goods forcommerce within the coverage of theFLSA. So also are the office, manage-ment, sales, and shipping personnel,and maintenance, custodial, and pro-tective employees who perform as apart of the integrated effort for theproduction of the goods for commerce,services related to such production orto such goods or to the plant, equip-ment, or personnel by which the pro-duction is accomplished.

§ 1620.4 ‘‘Closely related’’ and ‘‘directlyessential’’ activities.

An employee is engaged in the pro-duction of goods for interstate or for-eign commerce within the meaning ofthe FLSA even if the employees’s workis not an actual and direct part of suchproduction, so long as the employee is


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engaged in a process or occupationwhich is ‘‘closely related’’ and ‘‘di-rectly essential’’ to it. This is truewhether the employee is employed bythe producer of the goods or by some-one else who provides goods or servicesto the producer. Typical of employeescovered under these principles are com-puter operators, bookkeepers, stenog-raphers, clerks, accountants, and audi-tors and other office and whitecollarworkers, and employees doing payroll,timekeeping, and time study work forthe producer of goods; employees in thepersonnel, labor relations, employeebenefits, safety and health, adver-tising, promotion, and public relationsactivities of the producing enterprise;work instructors for the producers; em-ployees maintaining, servicing, repair-ing or improving the buildings, ma-chinery, equipment, vehicles or otherfacilities used in the production ofgoods for commerce, and such custodialand productive employees as watch-men, guards, firemen, patrolmen, care-takers, stockroom workers and ware-housemen; and transportation workersbringing supplies, materials, or equip-ment to the producer’s premises, re-moving waste materials therefrom, ortransporting materials or other goods,or performing such other transpor-tation activities, as the needs of pro-duction may require. These examplesare illustrative, rather than exhaus-tive, of the employees who are ‘‘en-gaged in the production of goods forcommerce’’ by reason of performing ac-tivities closely related and directly es-sential to such production.

§ 1620.5 What goods are considered as‘‘produced for commerce.’’

Goods (as defined in section 3(i) ofthe FLSA) are ‘‘produced for com-merce’’ if they are ‘‘produced, manu-factured, mined, handled or in anyother manner worked on’’ in any Statefor sale, trade, transportation, trans-mission, shipment, or delivery, to anyplace outside thereof. Goods are pro-duced for commerce where the pro-ducer intends, hopes, expects, or hasreason to believe that the goods or anyunsegregated part of them will move(in the same or in an altered form or asa part of ingredient of other goods) ininterstate or foreign commerce. If such

movement of the goods in commercecan reasonably be anticipated by theproducer when the goods are produced,it makes no difference whether the pro-ducer or the person to whom the goodsare transferred puts the goods in inter-state or foreign commerce. The factthat goods do move in interstate or for-eign commerce is strong evidence thatthe producer intended, hoped, expected,or had reason to believe that theywould so move. Goods may also be pro-duced ‘‘for commerce’’ where they areto be used within the State and nottransported in any form across Statelines. This is true where the goods areused to serve the needs of the instru-mentalities or facilities by whichinterstate or foreign commerce is car-ried on within the State. For examples,see 29 CFR 776.20.

§ 1620.6 Coverage is not based onamount of covered activity.

The FLSA makes no distinction as tothe percentage, volume, or amount ofactivities of either the employee or theemployer which constitute engaged incommerce or in the production of goodsfor commerce. Every employee whoseactivities in commerce or in the pro-duction of goods for commerce, eventhough small in amount, are regularand recurring, is considered ‘‘engagedin commerce or in the production ofgoods for commerce’’.

§ 1620.7 ‘‘Enterprise’’ coverage.

(a) The terms ‘‘enterprise’’ and ‘‘en-terprise engaged in commerce or in theproduction of goods for commerce’’ aredefined in subsections 3(r) and 3(s) ofthe FLSA. Under the enterprise con-cept, if a business is an ‘‘enterprise en-gaged in commerce or in the produc-tion of goods for commerce,’’ every em-ployee employed in such enterprise orby such enterprise is within the cov-erage of the EPA unless specifically ex-empted in the FLSA, regardless ofwhether the individual employee is ac-tually engaged in commerce or in theproduction of goods for commerce. Theterm ‘‘enterprise’’ is not synonymouswith the terms ‘‘employer’’ or ‘‘estab-lishment’’ although on occasion thethree terms may apply to the samebusiness entity. An enterprise may


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consist of a single establishment oper-ated by one or more employers. (Seedefinitions of ‘‘employer’’ and ‘‘estab-lishment’’ in §§ 1620.8 and 1620.9.)

(b) In order to constitute an enter-prise, the activities sought to be aggre-gated must be related to each other,they must be performed under a unifiedoperation or common control, and theymust be performed for a common busi-ness purpose. Activities are relatedwhen they are the same or similar, orwhen they are auxiliary services nec-essary to the operation and mainte-nance of the particular business. Ac-tivities constitute a unified operationwhen the activities are operated as asingle business unit or economic enti-ty. Activities are performed undercommon control when the power to di-rect, restrict, regulate, govern or ad-minister the performance of the activi-ties resides in a single person or entityor when it is shared by a group of per-sons or entities. Activities are per-formed for a common business purposewhen they are directed to the same orsimilar business objectives. A deter-mination whether the statutory char-acteristics of an enterprise are presentin any particular case must be made ona case-by-case basis. See generally,subpart C of 29 CFR part 779 for a de-tailed discussion of the term ‘‘enter-prise’’ under the FLSA.

§ 1620.8 ‘‘Employer,’’ ‘‘employee,’’ and‘‘employ’’ defined.

The words ‘‘employer,’’ ‘‘employee,’’and ‘‘employ’’ as used in the EPA aredefined in the FLSA. Economic realityrather than technical concepts deter-mines whether there is employmentwithin the meaning of the EPA. Thecommon law test based upon the powerto control the manner of performanceis not applicable to the determinationof whether an employment relationshipsubject to the EPA exists. An ‘‘em-ployer,’’ as defined in section 3(d) ofthe FLSA, means ‘‘any person actingdirectly or indirectly in the interest ofan employer in relation to an em-ployee’’ and includes a ‘‘public agen-cy,’’ as defined in section 3(x). An ‘‘em-ployee,’’ as defined in section 3(e) ofthe FLSA, ‘‘means any individual em-ployed by an employer.’’ ‘‘Employ,’’ asused in the EPA, is defined in section

3(g) of the FLSA to include ‘‘to sufferor permit to work.’’ Two or more em-ployers may be both jointly or sever-ally responsible for compliance withthe statutory requirements applicableto employment of a particular em-ployee.

§ 1620.9 Meaning of ‘‘establishment.’’(a) Although not expressly defined in

the FLSA, the term ‘‘establishment’’had acquired a well settled meaning bythe time of enactment of the EqualPay Act. It refers to a distinct physicalplace of business rather than to an en-tire business or ‘‘enterprise’’ whichmay include several separate places ofbusiness. Accordingly, each physicallyseparate place of business is ordinarilyconsidered a separate establishment.

(b) In unusual circumstances, two ormore portions of a business enterprise,even though located in a single phys-ical place of business, may constitutemore than one establishment. For ex-ample, the facts might reveal thatthese portions of the enterprise arephysically segregated, engaged in func-tionally separate operations, and haveseparate employees and maintain sepa-rate records. Conversely, unusual cir-cumstances may call for two or moredistinct physical portions of a businessenterprise being treated as a single es-tablishment. For example, a centraladministrative unit may hire all em-ployees, set wages, and assign the loca-tion of employment; employees mayfrequently interchange work locations;and daily duties may be virtually iden-tical and performed under similarworking conditions. Barring unusualcircumstances, however, the term ‘‘es-tablishment’’ will be applied as de-scribed in paragraph (a) of this section.

§ 1620.10 Meaning of ‘‘wages.’’Under the EPA, the term ‘‘wages’’

generally includes all payments madeto [or on behalf of] an employee as re-muneration for employment. The termincludes all forms of compensation ir-respective of the time of payment,whether paid periodically or deferreduntil a later date, and whether calledwages, salary, profit sharing, expenseaccount, monthly minimum, bonus,uniform cleaning allowance, hotel ac-commodations, use of company car,


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gasoline allowance, or some othername. Fringe benefits are deemed to beremuneration for employment.‘‘Wages’’ as used in the EPA (the pur-pose of which is to assure men andwomen equal remuneration for equalwork) will therefore include paymentswhich may not be counted under sec-tion 3(m) of the FLSA toward the min-imum wage (the purpose of which is toassure employees a minimum amountof remuneration unconditionally avail-able in cash or in board, lodging orother facilities). Similarly, the provi-sions of section 7(e) of the FLSA underwhich some payments may be excludedin computing an employee’s ‘‘regularrate’’ of pay for purposes of section 7do not authorize the exclusion of anysuch remuneration from the ‘‘wages’’of an employee in applying the EPA.Thus, vacation and holiday pay, andpremium payments for work on Satur-days, Sundays, holidays, regular daysof rest or other days or hours in excessor outside of the employee’s regulardays or hours of work are deemed re-muneration for employment and there-fore wage payments that must be con-sidered in applying the EPA, eventhough not a part of the employee’s‘‘regular rate.’’

§ 1620.11 Fringe benefits.(a) ‘‘Fringe benefits’’ includes, e.g.,

such terms as medical, hospital, acci-dent, life insurance and retirementbenefits; profit sharing and bonusplans; leave; and other such concepts.

(b) It is unlawful for an employer todiscriminate between men and womenperforming equal work with regard tofringe benefits. Differences in the ap-plication of fringe benefit plans whichare based upon sex-based actuarialstudies cannot be justified as based on‘‘any other factor other than sex.’’

(c) Where an employer conditionsbenefits available to employees andtheir spouses and families on whetherthe employee is the ‘‘head of the house-hold’’ or ‘‘principal wage earner’’ in thefamily unit, the overall implementa-tion of the plan will be closely scruti-nized.

(d) It is unlawful for an employer tomake available benefits for the spousesor families of employees of one genderwhere the same benefits are not made

available for the spouses or families ofopposite gender employees.

(e) It shall not be a defense under theEPA to a charge of sex discriminationin benefits that the cost of such bene-fits is greater with respect to one sexthan the other.

(f) It is unlawful for an employer tohave a pension or retirement planwhich, with respect to benefits, estab-lishes different optional or compulsoryretirement ages based on sex or whichotherwise differentiates in benefits onthe basis of sex.

[51 FR 29816, Aug. 20, 1986; 51 FR 32636, Sept.15, 1986]

§ 1620.12 Wage ‘‘rate.’’

(a) The term wage ‘‘rate,’’ as used inthe EPA, refers to the standard ormeasure by which an employee’s wageis determined and is considered to en-compass all rates of wages whether cal-culated on a time, commission, piece,job incentive, profit sharing, bonus, orother basis. The term includes the rateat which overtime compensation orother special remuneration is paid aswell as the rate at which straight timecompensation for ordinary work ispaid. It further includes the rate atwhich a draw, advance, or guarantee ispaid against a commission settlement.

(b) Where a higher wage rate is paidto one gender than the other for theperformance of equal work, the higherrate serves as a wage standard. When aviolation of the Act is established, thehigher rate paid for equal work is thestandard to which the lower rate mustbe raised to remedy a violation of theAct.

§ 1620.13 ‘‘Equal Work’’—What itmeans.

(a) In general. The EPA prohibits dis-crimination by employers on the basisof sex in the wages paid for ‘‘equalwork on jobs the performance of whichrequires equal skill, effort and respon-sibility and which are performed undersimilar working conditions * * *.’’ Theword ‘‘requires’’ does not connote thatan employer must formally assign theequal work to the employee; the EPAapplies if the employer knowingly al-lows the employee to perform the equalwork. The equal work standard does


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not require that compared jobs be iden-tical, only that they be substantiallyequal.

(b) ‘‘Male jobs’’ and ‘‘female jobs.’’ (1)Wage classification systems which des-ignate certain jobs as ‘‘male jobs’’ andother jobs as ‘‘female jobs’’ frequentlyspecify markedly lower rates for the‘‘females jobs.’’ Such practices indicatea pay practice of discrimination basedon sex. It should also be noted that itis an unlawful employment practiceunder title VII of the Civil Rights Actof 1964 to classify a job as ‘‘male’’ or‘‘female’’ unless sex is a bona fide occu-pational qualification for the job.

(2) The EPA prohibits discriminationon the basis of sex in the payment ofwages to employees for work on jobswhich are equal under the standardswhich the Act provides. For example,where an employee of one sex is hiredor assigned to a particular job to re-place an employee of the opposite sexbut receives a lower rate of pay thanthe person replaced, a prima facie vio-lation of the EPA exists. When a primafacie violation of the EPA exists, it isincumbent on the employer to showthat the wage differential is justifiedunder one or more of the Act’s four af-firmative defenses.

(3) The EPA applies when all employ-ees of one sex are removed from a par-ticular job (by transfer or discharge) soas to retain employees of only one sexin a job previously performed inter-changeably or concurrently by employ-ees of both sexes. If a prohibited sex-based wage differential had been estab-lished or maintained in violation of theEPA when the job was being performedby employees of both sexes, the em-ployer’s obligation to pay the higherrate for the job cannot be avoided orevaded by the device of later confiningthe job to members of the lower paidsex.

(4) If a person of one sex succeeds aperson of the opposite sex on a job at ahigher rate of pay than the prede-cessor, and there is no reason for thehigher rate other than difference ingender, a violation as to the prede-cessor is established and that person isentitled to recover the difference be-tween his or her pay and the higherrate paid the successor employee.

(5) It is immaterial that a member ofthe higher paid sex ceased to be em-ployed prior to the period covered bythe applicable statute of limitationsperiod for filing a timely suit under theEPA. The employer’s continued failureto pay the member of the lower paidsex the wage rate paid to the higherpaid predecessor constitutes a primafacie continuing violation. Also, it isno defense that the unequal paymentsbegan prior to the statutory period.

(c) Standards for determining rate ofpay. The rate of pay must be equal forpersons performing equal work on jobsrequiring equal skill, effort, and re-sponsibility, and performed under simi-lar working conditions. When factorssuch as seniority, education, or experi-ence are used to determine the rate ofpay, then those standards must be ap-plied on a sex neutral basis.

(d) Inequalities in pay that raise ques-tions under the Act. It is necessary toscrutinize those inequalities in pay be-tween employees of opposite sexeswhich may indicate a pattern of dis-crimination in wage payment that isbased on sex. Thus, a serious questionwould be raised where such an inequal-ity, allegedly based on a difference injob content, is in fact one in which theemployee occupying the job purport-edly requiring the higher degree ofskill, effort, or responsibility receivesthe lower wage rate. Likewise, becausethe EPA was designed to eliminatewage rate differentials which are basedon sex, situations will be carefullyscrutinized where employees of onlyone sex are concentrated in the lowerlevels of the wage scale, and wherethere does not appear to be any mate-rial relationship other than sex be-tween the lower wage rates paid tosuch employees and the higher ratespaid to employees of the opposite sex.

(e) Job content controlling. Applicationof the equal pay standard is not de-pendent on job classifications or titlesbut depends rather on actual job re-quirements and performance. For ex-ample, the fact that jobs performed bymale and female employees may havethe same total point value under anevaluation system in use by the em-ployer does not in itself mean that thejobs concerned are equal according tothe terms of the statute. Conversely,


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although the point values allocated tojobs may add up to unequal totals, itdoes not necessarily follow that thework being performed in such jobs isunequal when the statutory tests of theequal pay standard are applied. Job ti-tles are frequently of such a generalnature as to provide very little guid-ance in determining the application ofthe equal pay standard. For example,the job title ‘‘clerk’’ may be applied toemployees who perform a variety of du-ties so dissimilar as to place many ofthem beyond the scope of comparisonunder the Act. Similarly, jobs includedunder the title ‘‘stock clerk’’ may in-clude an employee of one sex whospends all or most of his or her work-ing hours in shifting and moving goodsin the establishment whereas anotheremployee, of the opposite sex, may alsobe described as a ‘‘stock clerk’’ but beengaged entirely in checking inven-tory. In the case of jobs identified bythe general title ‘‘retail clerk’’, thefacts may show that equal skill, effort,and responsibility are required in thejobs of male and female employees not-withstanding that they are engaged inselling different kinds of merchandise.In all such situations, the applicationof the equal pay standard will have tobe determined by applying the terms ofthe Act to the specific facts involved.

§ 1620.14 Testing equality of jobs.(a) In general. What constitutes equal

skill, equal effort, or equal responsi-bility cannot be precisely defined. Ininterpreting these key terms of thestatute, the broad remedial purpose ofthe law must be taken into consider-ation. The terms constitute separatetests, each of which must be met inorder for the equal pay standard toapply. It should be kept in mind that‘‘equal’’ does not mean ‘‘identical.’’ In-substantial or minor differences in thedegree or amount of skill, or effort, orresponsibility required for the perform-ance of jobs will not render the equalpay standard inapplicable. On the otherhand, substantial differences, such asthose customarily associated with dif-ferences in wage levels when the jobsare performed by persons of one sexonly, will ordinarily demonstrate aninequality as between the jobs justi-fying differences in pay. However, dif-

ferences in skill, effort or responsi-bility which might be sufficient to jus-tify a finding that two jobs are notequal within the meaning of the EPA ifthe greater skill, effort, or responsi-bility has been required of the higherpaid sex, do not justify such a findingwhere the greater skill, effort, or re-sponsibility is required of the lowerpaid sex. In determining whether jobdifferences are so substantial as tomake jobs unequal, it is pertinent toinquire whether and to what extentsignificance has been given to such dif-ferences in setting the wage levels forsuch jobs. Such an inquiry may, for ex-ample, disclose that apparent dif-ferences between jobs have not beenrecognized as relevant for wage pur-poses and that the facts as a whole sup-port the conclusion that the differencesare too insubstantial to prevent thejobs from being equal in all significantrespects under the law.

(b) Illustrations of the concept. Whereemployees of opposite sexes are em-ployed in jobs in which the duties theyare required to perform and the work-ing conditions are substantially thesame, except that an employee of onesex is required to perform some duty orduties involving a higher skill whichan employee of the other sex is not re-quired to perform, the fact that the du-ties are different in this respect is in-sufficient to remove the jobs from theapplication of the equal pay standard ifit also appears that the employer ispaying a lower wage rate to the em-ployee performing the additional du-ties notwithstanding the additionalskill which they involve. In other situ-ations, where employees of the oppo-site sex are employed in jobs which areequal in the levels of skill, effort, andresponsibility required for their per-formance, it may be alleged that theassignment to employees of one sex butnot the other of certain duties requir-ing less skill makes the jobs too dif-ferent for comparison under the equalpay provisions. But so long as the high-er level of skill is required for the per-formance of the jobs occupied by em-ployees of both sexes, the fact thatsome of the duties assigned to employ-ees of one sex require less skill thanthe employee must have for the job as


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a whole does not warrant any conclu-sion that the jobs are outside the pur-view of the equal pay standard.

(c) Determining equality of job contentin general. In determining whether em-ployees are performing equal workwithin the meaning of the EPA, theamounts of time which employeesspend in the performance of differentduties are not the sole criteria. It isalso necessary to consider the degree ofdifference in terms of skill, effort, andresponsibility. These factors are re-lated in such a manner that a generalstandard to determine equality of jobscannot be set up solely on the basis ofa percentage of time. Consequently, afinding that one job requires employeesto expend greater effort for a certainpercentage of their working time thanemployees performing another job,would not in itself establish that thetwo jobs do not constitute equal work.Similarly, the performance of jobs ondifferent machines or equipment wouldnot necessarily result in a determina-tion that the work so performed is un-equal within the meaning of the stat-ute if the equal pay provisions other-wise apply. If the difference in skill oreffort required for the operation ofsuch equipment is inconsequential,payment of a higher wage rate to em-ployees of one sex because of a dif-ference in machines or equipmentwould constitute a prohibited wagerate differential. Where greater skill oreffort is required from the lower paidsex, the fact that the machines orequipment used to perform substan-tially equal work are different does notdefeat a finding that the EPA has beenviolated. Likewise, the fact that jobsare performed in different departmentsor locations within the establishmentwould not necessarily be sufficient todemonstrate that unequal work is in-volved where the equal pay standardotherwise applies. This is particularlytrue in the case of retail establish-ments, and unless a showing can bemade by the employer that the sale ofone article requires such higher degreeof skill or effort than the sale of an-other article as to render the equal paystandard inapplicable, it will be as-sumed that the salesmen and sales-women concerned are performing equalwork. Although the equal pay provi-

sions apply on an establishment basisand the jobs to be compared are thosein the particular establishment, all rel-evant evidence that may demonstratewhether the skill, effort, and responsi-bility required in the jobs in the par-ticular establishment are equal shouldbe considered, whether this relates tothe performance of like jobs in otherestablishments or not.

§ 1620.15 Jobs requiring equal skill inperformance.

(a) In general. The jobs to which theequal pay standard is applicable arejobs requiring equal skill in their per-formance. Where the amount or degreeof skill required to perform one job issubstantially greater than that re-quired to perform another job, theequal pay standard cannot apply eventhough the jobs may be equal in allother respects. Skill includes consider-ation of such factors as experience,training, education, and ability. It mustbe measured in terms of the performancerequirements of the job. If an employeemust have essentially the same skill inorder to perform either of two jobs, thejobs will qualify under the EPA as jobsthe performance of which requiresequal skill, even though the employeein one of the jobs may not exercise therequired skill as frequently or duringas much of his or her working time asthe employee in the other job. Posses-sion of a skill not needed to meet the re-quirements of the job cannot be consideredin making a determination regardingequality of skill. The efficiency of theemployee’s performance in the job isnot in itself an appropriate factor toconsider in evaluating skill.

(b) Comparing skill requirements ofjobs. As a simple illustration of theprinciple of equal skill, suppose that aman and a woman have jobs classifiedas administrative assistants. Both jobsrequire them to spend two-thirds oftheir working time facilitating and su-pervising support-staff duties, and theremaining one-third of their time in di-versified tasks, not necessarily thesame. Since there is no difference inthe skills required for the vast major-ity of their work, whether or not thesejobs require equal skill in performancewill depend upon the nature of the


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work performed during the latter pe-riod to meet the requirements of thejobs.

§ 1620.16 Jobs requiring equal effort inperformance.

(a) In general. The jobs to which theequal pay standard is applicable arejobs that require equal effort to per-form. Where substantial differencesexist in the amount or degree of effortrequired to be expended in the perform-ance of jobs, the equal pay standardcannot apply even though the jobs maybe equal in all other respects. Effort isconcerned with the measurement of thephysical or mental exertion needed forthe performance of a job. Job factorswhich cause mental fatigue and stress,as well as those which alleviate fa-tigue, are to be considered in deter-mining the effort required by the job.‘‘Effort’’ encompasses the total re-quirements of a job. Where jobs areotherwise equal under the EPA, andthere is no substantial difference in theamount or degree of effort which mustbe expended in performing the jobsunder comparison, the jobs may re-quire equal effort in their performanceeven though the effort may be exertedin different ways on the two jobs. Dif-ferences only in the kind of effort re-quired to be expended in such a situa-tion will not justify wage differentials.

(b) Comparing effort requirements ofjobs. To illustrate the principle of equaleffort exerted in different ways, sup-pose that a male checker employed bya supermarket is required to spend partof his time carrying out heavy pack-ages or replacing stock involving thelifting of heavy items whereas a femalechecker is required to devote an equaldegree of effort during a similar por-tion of her time to performing fill-inwork requiring greater dexterity—suchas rearranging displays of spices orother small items. The difference inkind of effort required of the employ-ees does not appear to make their ef-forts unequal in any respect whichwould justify a wage differential, wheresuch differences in kind of effort ex-pended to perform the job are not ordi-narily considered a factor in settingwage levels. Further, the occasional orsporadic performance of an activitywhich may require extra physical or

mental exertion is not alone sufficientto justify a finding of unequal effort.Suppose, however, that men andwomen are working side by side on aline assembling parts. Suppose furtherthat one of the men who performs theoperations at the end of the line mustalso lift the assembly, as he completeshis part of it, and places it on a waitingpallet. In such a situation, a wage ratedifferential might be justified for theperson (but only for the person) who isrequired to expend the extra effort inthe performance of his job, providedthat the extra effort so expended issubstantial and is performed over aconsiderable portion of the work cycle.In general, a wage rate differentialbased on differences in the degree oramount of effort required for perform-ance of jobs must be applied uniformlyto men and women. For example, if allwomen and some men performing aparticular type of job never performheavy lifting, but some men do, pay-ment of a higher wage rate to all of themen would constitute a prohibitedwage rate differential if the equal payprovisions otherwise apply.

§ 1620.17 Jobs requiring equal respon-sibility in performance.

(a) In general. The equal pay standardapplies to jobs the performance ofwhich requires equal responsibility.Responsibility is concerned with thedegree of accountability required inthe performance of the job, with em-phasis on the importance of the job ob-ligation. Differences in the degree ofresponsibility required in the perform-ance of otherwise equal jobs cover awide variety of situations. The fol-lowing illustrations in subsection (b),while by no means exhaustive, maysuggest the nature or degree of dif-ferences in responsibility which willconstitute unequal work.

(b) Comparing responsibility require-ments of jobs. (1) There are many situa-tions where one employee of a groupperforming jobs which are equal inother respects is required from time totime to assume supervisory duties forreasons such as the absence of the reg-ular supervisor. Suppose, for instance,that it is the employer’s practice topay a higher wage rate to such a ‘‘re-lief’’ supervisor with the understanding


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that during the intervals in which theemployee performs supervisory dutiesthe employee is in training for a super-visory position. In such a situation,payment of the higher rate to the em-ployee might well be based solely onthe additional responsibility requiredto perform the job and the equal payprovisions would not require the samerates to be paid to an employee of theopposite sex in the group who does nothave an equal responsibility. Therewould clearly be no question con-cerning such a wage rate differential ifthe employer pays the higher rate toboth men and women who are calledupon from time to time to assume suchsupervisory responsibilities.

(2) Other differences in responsibil-ities of employees in generally similarjobs may require similar conclusions.Sales clerks, for example, who are en-gaged primarily in selling identical orsimilar merchandise may be given dif-ferent responsibilities. Suppose thatone employee of such a group (who maybe either a man or a woman) is author-ized and required to determine whetherto accept payment for purchases bypersonal checks of customers. The per-son having this authority to acceptpersonal checks may have a consider-able, additional degree of responsi-bility which may materially affect thebusiness operations of the employer. Inthis situation, payment of a higherwage rate to this employee would bepermissible.

(3) On the other hand, there are situ-ations where one employee of the groupmay be given some minor responsi-bility which the others do not have(e.g., turning out the lights in his orher department at the end of the busi-ness day) but which is not of sufficientconsequence or importance to justify afinding of unequal responsibility. Asanother example of a minor differencein responsibility, suppose that officeemployees of both sexes work in jobsessentially alike but at certain inter-vals a male and female employee per-forming otherwise equal work withinthe meaning of the statute are respon-sible for the office payroll. One of theseemployees may be assigned the job ofchecking time cards and compiling thepayroll list. The other, of the oppositesex, may be required to make out pay-

checks, or divide up cash and put theproper amounts into pay envelopesafter drawing a payroll check. In suchcircumstances, although some of theemployees’ duties are occasionally dis-similar, the difference in responsibilityinvolved would not appear to be of akind that is recognized in wage admin-istration as a significant factor in de-termining wage rates. Under such cir-cumstances, this difference would seeminsufficient to justify a wage rate dif-ferential between the man’s and wom-an’s job if the equal pay provisions oth-erwise apply.

§ 1620.18 Jobs performed under simi-lar working conditions.

(a) In general. In order for the equalpay standard to apply, the jobs are re-quired to be performed under similarworking conditions. It should be notedthat the EPA adopts the flexible stand-ard of similarity as a basis for testingthis requirement. In determiningwhether the requirement is met, apractical judgment is required in lightof whether the differences in workingconditions are the kind customarilytaken into consideration in settingwage levels. The mere fact that jobsare in different departments of an es-tablishment will not necessarily meanthat the jobs are performed under dis-similar working conditions. This mayor may not be the case. The term‘‘similar working conditions’’ encom-passes two subfactors: ‘‘surroundings’’and ‘‘hazards.’’ ‘‘Surroundings’’ meas-ure the elements, such as toxic chemi-cals or fumes, regularly encountered bya worker, their intensity and their fre-quency. ‘‘Hazards’’ take into accountthe physical hazards regularly encoun-tered, their frequency and the severityof injury they can cause. The phrase‘‘working conditions’’ does not encom-pass shift differentials.

(b) Determining similarity of workingconditions. Generally, employees per-forming jobs requiring equal skill, ef-fort, and responsibility are likely to beperforming them under similar work-ing conditions. However, in situationswhere some employees performingwork meeting these standards haveworking conditions substantially dif-ferent from those required for the per-formance of other jobs, the equal pay


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principle would not apply. On the otherhand, slight or inconsequential dif-ferences in working conditions whichare not usually taken into consider-ation by employers or in collective bar-gaining in setting wage rates would notjustify a differential in pay.

§ 1620.19 Equality of wages—applica-tion of the principle.

Equal wages must be paid in thesame medium of exchange. In addition,an employer would be prohibited frompaying higher hourly rates to all em-ployees of one sex and then attemptingto equalize the differential by periodi-cally paying employees of the oppositesex a bonus. Comparison can be madefor equal pay purposes between em-ployees employed in equal jobs in thesame establishment although theywork in different departments.

§ 1620.20 Pay differentials claimed tobe based on extra duties.

Additional duties may not be a de-fense to the payment of higher wagesto one sex where the higher pay is notrelated to the extra duties. The Com-mission will scrutinize such a defenseto determine whether it is bona fide.For example, an employer cannot suc-cessfully assert an extra duties defensewhere:

(a) Employees of the higher paid sexreceive the higher pay without doingthe extra work;

(b) Members of the lower paid sexalso perform extra duties requiringequal skill, effort, and responsibility;

(c) The proffered extra duties do notin fact exist;

(d) The extra task consumes a mini-mal amount of time and is of periph-eral importance; or

(e) Third persons (i.e., individualswho are not in the two groups of em-ployees being compared) who do theextra task as their primary job arepaid less than the members of the high-er paid sex for whom there is an at-tempt to justify the pay differential.

§ 1620.21 Head of household.Since a ‘‘head of household’’ or ‘‘head

of family’’ status bears no relationshipto the requirements of the job or to theindividual’s performance on the job,such a claimed defense to an alleged

EPA violation will be closely scruti-nized as stated in § 1620.11(c).

§ 1620.22 Employment cost not a ‘‘fac-tor other than sex.’’

A wage differential based on claimeddifferences between the average cost ofemploying workers of one sex as agroup and the average cost of employ-ing workers of the opposite sex as agroup is discriminatory and does notqualify as a differential based on any‘‘factor other than sex,’’ and will resultin a violation of the equal pay provi-sions, if the equal pay standard other-wise applies.

§ 1620.23 Collective bargaining agree-ments not a defense.

The establishment by collective bar-gaining or inclusion in a collective bar-gaining agreement of unequal rates ofpay does not constitute a defense avail-able to either an employer or to a labororganization. Any and all provisions ina collective bargaining agreementwhich provide unequal rates of pay inconflict with the requirements of theEPA are null and void and of no effect.

§ 1620.24 Time unit for determiningviolations.

In applying the various tests ofequality to the requirements for theperformance of particular jobs, it isnecessary to scrutinize each job as awhole and to look at the characteris-tics of the jobs being compared over afull work cycle. For the purpose ofsuch a comparison, the appropriatework cycle to be determined would bethat performed by members of thelower paid sex and a comparison thenmade with job duties performed bymembers of the higher paid sex duringa similar work cycle. The appropriatework cycle will be determined by anexamination of the facts of each situa-tion. For example, where men andwomen custodial workers in a schoolsystem perform equal work during theacademic year, but the men performadditional duties in the summermonths, the appropriate work cycle forEPA purposes would be the academicyear. In that instance, the additionalsummer duties would not preclude theapplication of the equal pay standardor justify the higher wage rate for men


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for the period when the work wasequal.

§ 1620.25 Equalization of rates.Under the express terms of the EPA,

when a prohibited sex-based wage dif-ferential has been proved, an employercan come into compliance only by rais-ing the wage rate of the lower paid sex.The rate-reduction provision of theEPA prohibits an employer from at-tempting to cure a violation by hiringor transferring employees to performthe previously lower-paid job at thelower rate. Similarly, the departure ofthe higher paid sex from positionswhere a violation occurred, leavingonly members of the lower paid sexbeing paid equally among themselves,does not cure the EPA violations.

§ 1620.26 Red circle rates.(a) The term ‘‘red circle’’ rate is used

to describe certain unusual, higherthan normal, wage rates which aremaintained for reasons unrelated tosex. An example of bona fide use of a‘‘red circle’’ rate might arise in a situa-tion where a company wishes to trans-fer a long-service employee, who canno longer perform his or her regularjob because of ill health, to differentwork which is now being performed byopposite gender-employees. Under the‘‘red circle’’ principle the employermay continue to pay the employee hisor her present salary, which is greaterthan that paid to the opposite genderemployees, for the work both will bedoing. Under such circumstances,maintaining an employee’s establishedwage rate, despite a reassignment to aless demanding job, is a valid reasonfor the differential even though otheremployees performing the less demand-ing work would be paid at a lower rate,since the differential is based on a fac-tor other than sex. However, wherewage rate differentials have been or arebeing paid on the basis of sex to em-ployees performing equal work, rates ofthe higher paid employees may not be‘‘red circled’’ in order to comply withthe EPA. To allow this would only con-tinue the inequities which the EPA wasintended to cure.

(b) For a variety of reasons an em-ployer may require an employee, for ashort period, to perform the work of a

job classification other than the em-ployee’s regular classification. If theemployee’s rate for his or her regularjob is higher than the rate usually paidfor the work to which the employee istemporarily reassigned, the employermay continue to pay the higher rateunder the ‘‘red circle’’ principle. Forinstance, an employer who must reducehelp in a skilled job may transfer em-ployees to less demanding work with-out reducing their pay, in order to havethem available when they are againneeded for their former jobs. Althoughemployees traditionally engaged inperforming the less demanding workwould be paid at a lower rate thanthose employees transferred from themore skilled jobs, the resultant wagedifferential would not constitute a vio-lation of the equal pay provisions sincethe differential is based on factorsother than sex. This would be true dur-ing the period of time for which the‘‘red circle’’ rate is bona fide. Tem-porary reassignments may also involvethe opposite relationship of wage rates.Thus, an employee may be required,during the period of temporary reas-signment, to perform work for whichemployees of the opposite sex are paida higher wage rate than that paid forthe duties of the employee’s regular jobclassification. In such a situation, theemployer may continue to pay the re-assigned employee at the lower rate, ifthe rate is not based on quality orquantity of production , and if the re-assignment is in fact a temporary one.If, however, a piece rate is paid em-ployees of the opposite sex who per-form the work to which the employeein question is reassigned, failure to paythe reassigned employee the samepiece rate paid such other employeeswould raise questions of discriminationbased on sex. Also, failure to pay thehigher rate to a reassigned employeeafter it becomes known that the reas-signment will not be of a temporarynature would raise a question whethersex rather than the temporary natureof the assignment is the real basis forthe wage differential. Generally, fail-ure to pay the higher rate to an em-ployee reassigned for a period longerthan one month will raise questions asto whether the reassignment was infact intended to be temporary.


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§ 1620.27 Relationship to the EqualPay Act of title VII of the CivilRights Act.

(a) In situations where the jurisdic-tional prerequisites of both the EPAand title VII of the Civil Rights Act of1964, as amended, 42 U.S.C. 200e et seq.,are satisfied, any violation of theEqual Pay Act is also a violation oftitle VII. However, title VII coverstypes of wage discrimination not ac-tionable under the EPA. Therefore, anact or practice of an employer or labororganization that is not a violation ofthe EPA may nevertheless be a viola-tion of title VII.

(b) Recovery for the same period oftime may be had under both the EPAand title VII so long as the same indi-vidual does not receive duplicative re-lief for the same wrong. Relief is com-puted to give each individual the high-est benefit which entitlement under ei-ther statute would provide. (e.g., liq-uidated damages may be availableunder the EPA but not under title VII.)Relief for the same individual may becomputed under one statute for one ormore periods of the violation and underthe other statute for other periods ofthe violation.

(c) The right to equal pay under theEqual Pay Act has no relationship towhether the employee is in the lowerpaying job as a result of discriminationin violation of title VII. Under the EPAa prima facie violation is establishedupon a showing that an employer paysdifferent wages to employees of oppo-site sexes for equal work on jobs re-quiring equal skill, effort and responsi-bility, and which are performed undersimilar working conditions. Thus, theavailability of a remedy under title VIIwhich would entitle the lower paid em-ployee to be hired into, or to transferto, the higher paid job does not defeatthe right of each person employed onthe lower paid job to the same wages asare paid to a member of the oppositesex who receives higher pay for equalwork.

§ 1620.28 Relationship to other equalpay laws.

The provisions of various State orlocal laws may differ from the equalpay provisions set forth in the FLSA.No provisions of the EPA will excuse

noncompliance with any State or otherlaw establishing fewer defenses or moreliberal work criteria than those of theEPA. On the other hand, compliancewith other applicable legislation willnot excuse violations of the EPA.

§ 1620.29 Relationship to other laborlaws.

If a higher minimum wage than thatrequired under the FLSA is applicableto a particular sex pursuant to Statelaw, and the employer pays the higherState minimum wage to male or fe-male employees, it must also pay thehigher rate to employees of the oppo-site sex for equal work in order to com-ply with the EPA. Similarly, if over-time premiums are paid to members ofone sex because of a legal requirement,such premiums must also be paid toemployees of the other sex.

§ 1620.30 Investigations and compli-ance assistance.

(a) As provided in sections 9, 11, 16,and 17 of the FLSA, the Commissionand its authorized representativesunder the Act may (1) investigate andgather data; (2) enter and inspect es-tablishments and records, and maketranscriptions thereof, and interviewindividuals; (3) advise employers re-garding any changes necessary or de-sirable to comply with the Act; (4) sub-poena witnesses and order productionof documents and other evidence; (5)supervise the payment of amountsowing pursuant to section 16(c) of theFLSA; (6) initiate and conduct litiga-tion.

(b) The General Counsel, District Di-rectors, Washington Field Office Direc-tor, and the Program Director, Officeof Program Operations, or the des-ignees of any of them are hereby dele-gated authority to exercise the powersenumerated in paragraphs (a) (1), (2),(3), and (5) of this section and to servesubpoenas. The General Counsel is del-egated authority to seek preliminaryrelief under the Act. The General Coun-sel is hereby delegated authority toinitiate other litigation at the direc-tion of the Commission and to conductsuch litigation.

(c) The identity or identifying detailsof persons giving information in con-fidence as to violations of the Act shall


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not be disclosed unless necessary in acourt proceeding.

[46 FR 4888, Jan. 19, 1981, as amended at 47FR 46276, Oct. 18, 1982; 50 FR 30700, July 29,1985. Redesignated at 51 FR 29819, Aug. 20,1986, and amended at 54 FR 32063, Aug. 4,1989]

§ 1620.31 Issuance of subpoenas.(a) With respect to the enforcement

of the Equal Pay Act, any member ofthe Commission shall have the author-ity to sign a subpoena requiring:



(3) Access to evidence for the pur-poses of examination and the right tocopy.

(b) There is no right of appeal to theCommission from the issuance of sucha subpoena.

(c) Upon the failure of any person tocomply with a subpoena issued underthis section, the Commission may uti-lize the provisions of sections 49 and 50of title 15 of the United States Code tocompel enforcement of the subpoena.

[46 FR 4888, Jan. 19, 1981. Redesignated at 51FR 29819, Aug. 20, 1986]

§ 1620.32 Recordkeeping requirements.(a) Employers having employees sub-

ject to the Act are required to keeprecords in accordance with U.S. De-partment of Labor regulations found at29 CFR part 516 (Records To Be Kept byEmployers Under the FLSA). The regu-lations of that part are adopted hereinby reference.

(b) Every employer subject to theequal pay provisions of the Act shallmaintain and preserve all records re-quired by the applicable sections of 29CFR part 516 and in addition, shall pre-serve any records which he makes inthe regular course of his business oper-ation which relate to the payment ofwages, wage rates, job evaluations, jobdescriptions, merit systems, senioritysystems, collective bargaining agree-ments, description of practices or othermatters which describe or explain thebasis for payment of any wage differen-tial to employees of the opposite sex in

the same establishment, and whichmay be pertinent to a determinationwhether such differential is based on afactor other than sex.

(c) Each employer shall preserve forat least two years the records hemakes of the kind described in§ 1620.32(b) which explain the basis forpayment of any wage differential toemployees of the opposite sex in thesame establishment.



[46 FR 4888, Jan. 19, 1981, as amended at 46FR 63268, Dec. 31, 1981. Redesignated at 51 FR29819, Aug. 20, 1986]

§ 1620.33 Recovery of wages due; in-junctions; penalties for willful vio-lations.

(a) Wages withheld in violation of theAct have the status of unpaid min-imum wages or unpaid overtime com-pensation under the FLSA. This is trueboth of the additional wages requiredby the Act to be paid to an employee tomeet the equal pay standard, and ofany wages that the employer shouldhave paid an employee whose wages hereduced in violation of the Act in anattempt to equalize his or her pay withthat of an employee of the opposite sexperforming equal work, on jobs subjectto the Act.

(b) The following methods are pro-vided under sections 16 and 17 of theFLSA for recovery of unpaid wages:The Commission may supervise pay-ment of the back wages and may bringsuit for back pay and an equal amountas liquidated damages. The employeemay sue for back pay and an additionalsum, up to the amount of back pay, asliquidated damages, plus attorney’sfees and court costs. The employeemay not bring suit if he or she has beenpaid back wages in full under super-vision of the Commission, or if theCommission has filed suit under theAct to collect the wages due the em-ployee. The Commission may also ob-tain a court injunction to restrain anyperson from violating the law, includ-ing the unlawful withholding by an em-ployer of proper compensation. A 2-year statute of limitations applies tothe recovery of unpaid wages, except


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that an action on a cause of actionarising out of a willful violation maybe commenced within 3 years after thecause of action accrued.

(c) Willful violations of the Act maybe prosecuted criminally and the viola-tor fined up to $10,000. A second convic-tion for such a violation may result inimprisonment.

(d) Violation of any provision of theAct by any person, including any labororganization or agent thereof, is un-lawful, as provided in section 15(a) ofthe FLSA. Accordingly, any labor or-ganization, or agent thereof, who vio-lates any provision of the Act is sub-ject to injunction proceedings in ac-cordance with the applicable provisionsof section 17 of the FLSA. Any suchlabor organization, or agent thereof,who willfully violates the provisions ofsection 15 is liable to the penalties setforth in section 16(a) of the FLSA.


§ 1620.34 Rules to be liberally con-strued.

(a) These rules and regulations shallbe liberally construed to effectuate thepurpose and provisions of this Act andany other Act administered by theCommission.

(b) Any person claiming to be ag-grieved or the agent for such personmay advise the Commission of the stat-ute or statutes under which he or shewishes the Commission to commenceits inquiry.

(c) Whenever the Commission is in-vestigating a charge or allegation re-lating to a possible violation of one ofthe statutes which it administers andfinds a violation of one or more of theother statutes which it administers,the Commission may seek to remedysuch violation in accordance with theprocedures of all relevant statutes.


PART 1621—PROCEDURES—THEEQUAL PAY ACT

Sec.1621.1 Purpose.1621.2 Definitions.1621.3 Procedure for requesting an opinion

letter.

1621.4 Effect of opinions and interpretationsof the Commission.

AUTHORITY: Secs. 1–19, 52 Stat. 1060, asamended, secs. 10–16, 61 Stat. 84, Pub. L. 88–38, 77 Stat. 56 (29 U.S.C. 201 et seq.); sec. 1,Reorgan. Plan No. 1 of 1978, 43 FR 19807; E. O.12144, 44 FR 37193.

SOURCE: 49 FR 31411, Aug. 7, 1984, unlessotherwise noted.

§ 1621.1 Purpose.

The regulations set forth in this partcontain the procedures established bythe Equal Employment OpportunityCommission for issuing opinion lettersunder the Equal Pay Act.


For purposes of this part, the termthe Act shall mean the Equal Pay Actthe Commission shall mean the EqualEmployment Opportunity Commissionor any of its designated representa-tives.

§ 1621.3 Procedure for requesting anopinion letter.

(a) A request for an opinion lettershould be submitted in writing to theChairman, Equal Employment Oppor-tunity Commission, 2401 E Street, NW.,Washington, DC 20507, and shall con-tain:

(1) A concise statement of the issuesfor which an opinion is requested;

(2) A full statement of the relevantfacts and law; and

(3) The names and addresses of theperson(s) making the request and otherinterested persons.

(b) Issuance of an opinion letter bythe Commission is discretionary.

(c) Informal advice: When the Com-mission, at its discretion, determinesthat it will not issue an opinion letteras defined in § 1621.4, the Commissionmay provide informal advice or guid-ance to the requestor. An informal let-ter of advice does not represent the for-mal position of the Commission anddoes not commit the Commission tothe views expressed therein. Any letterother than those defined in § 1621.4 willbe considered a letter of advice andmay not be relied upon by any em-ployer within the meaning of section 10of the Portal to Portal Act of 1947, 29U.S.C. 255.


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§ 1621.4 Effect of opinions and inter-pretations of the Commission.

(a) Section 10 of the Portal to PortalAct of 1947, 29 U.S.C. 255, which appliesto the Equal Pay Act of 1963, 29 U.S.C.206(d), provides that:

In any action or proceeding based on anyact or omission on or after the date of theenactment of this Act, no employer shall besubject to any liability or punishment * * *if he pleads and proves that the act or omis-sion complained of was in good faith in con-formity with and in reliance on any writtenadministrative regulation, order, ruling, ap-proval or interpretation * * * or any admin-istrative practice or enforcement policy of[the Commission].

The Commission has determined thatonly the following documents may berelied upon by any employer as a ‘‘rul-ing, approval or interpretation’’ or as‘‘evidence of any administrative prac-tice or enforcement policy’’ of theCommission within the meaning of thestatutory provisions quoted above.

(1) A written document, entitled‘‘opinion letter,’’ signed by the LegalCounsel on behalf of and as approvedby the Commission;

(2) A written document issued in theconduct of litigation, entitled ‘‘opinionletter,’’ signed by the General Counselon behalf of and as approved by theCommission;

(3) A matter published and specifi-cally designated as such in the FED-ERAL REGISTER.

(b) An opinion letter issued pursuantto paragraph (a)(1) or (a)(2) of this sec-tion, when issued to a specific ad-dressee, has no effect upon cir-cumstances beyond the situation of thespecific addressee.

PART 1625—AGE DISCRIMINATIONIN EMPLOYMENT ACT

Subpart A—Interpretations

Sec.1625.1 Definitions.1625.2 Discrimination between individuals

protected by the Act.1625.3 Employment agency.1625.4 Help wanted notices or advertise-

ments.1625.5 Employment applications.1625.6 Bona fide occupational qualifications.1625.7 Differentiations based on reasonable

factors other than age.

1625.8 Bona fide seniority systems.1625.9 Prohibition of involuntary retire-

ment.1625.10 Costs and benefits under employee

benefit plans.1625.11 Exemption for employees serving

under a contract of unlimited tenure.1625.12 Exemption for bona fide executive or

high policymaking employees.

Subpart B—Substantive Regulations

1625.21 Apprenticeship programs.1625.22 Waivers of rights and claims under

the ADEA.1625.23 Waivers of rights and claims: Tender

back of consideration.

AUTHORITY: 81 Stat. 602; 29 U.S.C. 621, 5U.S.C. 301, Secretary’s Order No. 10–68; Sec-retary’s Order No. 11–68; sec. 12, 29 U.S.C. 631,Pub. L. 99–592, 100 Stat. 3342; sec. 2, Reorg.Plan No. 1 of 1978, 43 FR 19807.


Subpart A—Interpretations


The Equal Employment OpportunityCommission is hereinafter referred toas the Commission. The terms person,employer, employment agency, labor orga-nization, and employee shall have themeanings set forth in section 11 of theAge Discrimination in EmploymentAct of 1967, as amended, 29 U.S.C. 621 etseq., hereinafter referred to as the Act.References to employers in this partstate principles that are applicable notonly to employers but also to labor or-ganizations and to employment agen-cies.

§ 1625.2 Discrimination between indi-viduals protected by the Act.

(a) It is unlawful in situations wherethis Act applies, for an employer todiscriminate in hiring or in any otherway by giving preference because ofage between individuals 40 and over.Thus, if two people apply for the sameposition, and one is 42 and the other 52,the employer may not lawfully turndown either one on the basis of age, butmust make such decision on the basisof some other factor.

(b) The extension of additional bene-fits, such as increased severance pay,


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to older employees within the pro-tected group may be lawful if an em-ployer has a reasonable basis to con-clude that those benefits will counter-act problems related to age discrimina-tion. The extension of those additionalbenefits may not be used as a means toaccomplish practices otherwise prohib-ited by the Act.

[46 FR 47726, Sept. 29, 1981, as amended at 53FR 5972, Feb. 29, 1988]

§ 1625.3 Employment agency.

(a) As long as an employment agencyregularly procures employees for atleast one covered employer, it qualifiesunder section 11(c) of the Act as an em-ployment agency with respect to all ofits activities whether or not such ac-tivities are for employers covered bythe act.

(b) The prohibitions of section 4(b) ofthe Act apply not only to the referralactivities of a covered employmentagency but also to the agency’s ownemployment practices, regardless ofthe number of employees the agencymay have.

§ 1625.4 Help wanted notices or adver-tisements.

(a) When help wanted notices or ad-vertisements contain terms andphrases such as age 25 to 35, young, col-lege student, recent college graduate, boy,girl, or others of a similar nature, sucha term or phrase deters the employ-ment of older persons and is a violationof the Act, unless one of the exceptionsapplies. Such phrases as age 40 to 50,age over 65, retired person, or supplementyour pension discriminate against oth-ers within the protected group and,therefore, are prohibited unless one ofthe exceptions applies.

(b) The use of the phrase state age inhelp wanted notices or advertisementsis not, in itself, a violation of the Act.But because the request that an appli-cant state his age may tend to deterolder applicants or otherwise indicatediscrimination based on age, employ-ment notices or advertisements whichinclude the phrase ‘‘state age,’’ or anysimilar term, will be closely scruti-nized to assure that the request is for alawful purpose.

§ 1625.5 Employment applications.

A request on the part of an employerfor information such as ‘‘Date ofBirth’’ or ‘‘State Age’’ on an employ-ment application form is not, in itself,a violation of the Act. But because therequest that an applicant state his agemay tend to deter older applicants orotherwise indicate discriminationbased on age, employment applicationforms which request such informationwill be closely scrutinized to assurethat the request is for a permissiblepurpose and not for purposes proscribedby the Act. That the purpose is not oneproscribed by the statute should bemade known to the applicant, either bya reference on the application form tothe statutory prohibition in languageto the following effect:

The Age Discrimination in EmploymentAct of 1967 prohibits discrimination on thebasis of age with respect to individuals whoare at least 40 years of age,’’ or by othermeans. The term ‘‘employment applica-tions,’’ refers to all written inquiries aboutemployment or applications for employmentor promotion including, but not limited to,resumes or other summaries of the appli-cant’s background. It relates not only towritten preemployment inquiries, but to in-quiries by employees concerning terms, con-ditions, or privileges of employment as spec-ified in section 4 of the Act.

[46 FR 47726, Sept. 29, 1981, as amended at 53FR 5972, Feb. 29, 1988]

§ 1625.6 Bona fide occupational quali-fications.

(a) Whether occupational qualifica-tions will be deemed to be ‘‘bona fide’’to a specific job and ‘‘reasonably nec-essary to the normal operation of theparticular business,’’ will be deter-mined on the basis of all the pertinentfacts surrounding each particular situ-ation. It is anticipated that this con-cept of a bona fide occupational quali-fication will have limited scope and ap-plication. Further, as this is an excep-tion to the Act it must be narrowlyconstrued.

(b) An employer asserting a BFOQ de-fense has the burden of proving that (1)the age limit is reasonably necessaryto the essence of the business, and ei-ther (2) that all or substantially all in-dividuals excluded from the job in-volved are in fact disqualified, or (3)


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that some of the individuals so ex-cluded possess a disqualifying traitthat cannot be ascertained except byreference to age. If the employer’s ob-jective in asserting a BFOQ is the goalof public safety, the employer mustprove that the challenged practice doesindeed effectuate that goal and thatthere is no acceptable alternativewhich would better advance it or equal-ly advance it with less discriminatoryimpact.

(c) Many State and local govern-ments have enacted laws or adminis-trative regulations which limit em-ployment opportunities based on age.Unless these laws meet the standardsfor the establishment of a valid bonafide occupational qualification undersection 4(f)(1) of the Act, they will beconsidered in conflict with and effec-tively superseded by the ADEA.

§ 1625.7 Differentiations based on rea-sonable factors other than age.

(a) Section 4(f)(1) of the Act providesthat

* * * it shall not be unlawful for an em-ployer, employment agency, or labor organi-zation * * * to take any action otherwiseprohibited under paragraphs (a), (b), (c), or(e) of this section * * * where the differentia-tion is based on reasonable factors otherthan age * * *.

(b) No precise and unequivocal deter-mination can be made as to the scopeof the phrase ‘‘differentiation based onreasonable factors other than age.’’Whether such differentiations existmust be decided on the basis of all theparticular facts and circumstances sur-rounding each individual situation.

(c) When an employment practiceuses age as a limiting criterion, the de-fense that the practice is justified by areasonable factor other than age is un-available.

(d) When an employment practice, in-cluding a test, is claimed as a basis fordifferent treatment of employees or ap-plicants for employment on thegrounds that it is a ‘‘factor other than’’age, and such a practice has an adverseimpact on individuals within the pro-tected age group, it can only be justi-fied as a business necessity. Testswhich are asserted as ‘‘reasonable fac-tors other than age’’ will be scrutinized

in accordance with the standards setforth at part 1607 of this title.

(e) When the exception of ‘‘a reason-able factor other than age’’ is raisedagainst an individual claim of discrimi-natory treatment, the employer bearsthe burden of showing that the ‘‘rea-sonable factor other than age’’ existsfactually.

(f) A differentiation based on the av-erage cost of employing older employ-ees as a group is unlawful except withrespect to employee benefit planswhich qualify for the section 4(f)(2) ex-ception to the Act.

§ 1625.8 Bona fide seniority systems.

Section 4(f)(2) of the Act providesthat

* * * It shall not be unlawful for an em-ployer, employment agency, or labor organi-zation * * * to observe the terms of a bonafide seniority system * * * which is not asubterfuge to evade the purposes of this Actexcept that no such seniority system * * *shall require or permit the involuntary re-tirement of any individual specified by sec-tion 12(a) of this Act because of the age ofsuch individual. * * *

(a) Though a seniority system maybe qualified by such factors as merit,capacity, or ability, any bona fide se-niority system must be based on lengthof service as the primary criterion forthe equitable allocation of availableemployment opportunities and prerog-atives among younger and older work-ers.

(b) Adoption of a purported senioritysystem which gives those with longerservice lesser rights, and results in dis-charge or less favored treatment tothose within the protection of the Act,may, depending upon the cir-cumstances, be a ‘‘subterfuge to evadethe purposes’’ of the Act.

(c) Unless the essential terms andconditions of an alleged seniority sys-tem have been communicated to the af-fected employees and can be shown tobe applied uniformly to all of those af-fected, regardless of age, it will not beconsidered a bona fide seniority systemwithin the meaning of the Act.

(d) It should be noted that senioritysystems which segregate, classify, or


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otherwise discriminate against individ-uals on the basis of race, color, reli-gion, sex, or national origin, are pro-hibited under title VII of the CivilRights Act of 1964, where that Act oth-erwise applies. The ‘‘bona fides’’ ofsuch a system will be closely scruti-nized to ensure that such a system is,in fact, bona fide under the ADEA.

[53 FR 15673, May 3, 1988]

§ 1625.9 Prohibition of involuntary re-tirement.

(a)(1) As originally enacted in 1967,section 4(f)(2) of the Act provided:

It shall not be unlawful * * * to observethe terms of a bona fide seniority system orany bona fide employee benefit plan such asa retirement, pension, or insurance plan,which is not a subterfuge to evade the pur-poses of this Act, except that no such em-ployee benefit plan shall excuse the failureto hire any individual * * *.

The Department of Labor interpretedthe provision as ‘‘Authoriz[ing] invol-untary retirement irrespective of age:Provided, That such retirement is pur-suant to the terms of a retirement orpension plan meeting the requirementsof section 4(f)(2).’’ See 34 FR 9709 (June21, 1969). The Department took the po-sition that in order to meet the re-quirements of section 4(f)(2), the invol-untary retirement provision had to be(i) contained in a bona fide pension orretirement plan, (ii) required by theterms of the plan and not optional, and(iii) essential to the plan’s economicsurvival or to some other legitimatebusiness purpose—i.e., the provisionwas not in the plan as the result of ar-bitrary discrimination on the basis ofage.

(2) As revised by the 1978 amend-ments, section 4(f)(2) was amended byadding the following clause at the end:

and no such seniority system or employeebenefit plan shall require or permit the in-voluntary retirement of any individual spec-ified by section 12(a) of this Act because ofthe age of such individual * * *.

The Conference Committee Report ex-pressly states that this amendment isintended ‘‘to make absolutely clear oneof the original purposes of this provi-sion, namely, that the exception doesnot authorize an employer to requireor permit involuntary retirement of an

employee within the protected agegroup on account of age’’ (H.R. Rept.No. 95–950, p. 8).

(b)(1) The amendment applies to allnew and existing seniority systems andemployee benefit plans. Accordingly,any system or plan provision requiringor permitting involuntary retirementis unlawful, regardless of whether theprovision antedates the 1967 Act or the1978 amendments.

(2) Where lawsuits pending on thedate of enactment (April 6, 1978) orfiled thereafter challenge involuntaryretirements which occurred either be-fore or after that date, the amendmentapplies.

(c)(1) The amendment protects all in-dividuals covered by section 12(a) ofthe Act. Section 12(a) was amended inOctober of 1986 by the Age Discrimina-tion in Employment Amendments of1986, Pub. L. 99–592, 100 Stat. 3342 (1986),which removed the age 70 limit. Sec-tion 12(a) provides that the Act’s prohi-bitions shall be limited to individualswho are at least forty years of age. Ac-cordingly, unless a specific exemptionapplies, an employer can no longerforce retirement or otherwise discrimi-nate on the basis of age against an in-dividual because (s)he is 70 or older.

(2) The amendment to section 12(a) ofthe Act became effective on January 1,1987, except with respect to any em-ployee subject to a collective bar-gaining agreement containing a provi-sion that would be superseded by suchamendment that was in effect on June30, 1986, and which terminates afterJanuary 1, 1987. In that case, theamendment is effective on the termi-nation of the agreement or January 1,1990, whichever comes first.

(d) Neither section 4(f)(2) nor anyother provision of the Act makes it un-lawful for a plan to permit individualsto elect early retirement at a specifiedage at their own option. Nor is it un-lawful for a plan to require early re-tirement for reasons other than age.

[46 FR 47726, Sept. 29, 1981, as amended at 52FR 23811, June 25, 1987; 53 FR 5973, Feb. 29,1988]

§ 1625.10 Costs and benefits under em-ployee benefit plans.

(a)(1) General. Section 4(f)(2) of theAct provides that it is not unlawful for


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an employer, employment agency, orlabor organization

to observe the terms of * * * any bona fideemployee benefit plan such as a retirement,pension, or insurance plan, which is not asubterfuge to evade the purposes of this Act,except that no such employee benefit planshall excuse the failure to hire any indi-vidual, and no such * * * employee benefitplan shall require or permit the involuntaryretirement of any individual specified by sec-tion 12(a) of this Act because of the age ofsuch individuals.

The legislative history of this provi-sion indicates that its purpose is topermit age-based reductions in em-ployee benefit plans where such reduc-tions are justified by significant costconsiderations. Accordingly, section4(f)(2) does not apply, for example, topaid vacations and uninsured paid sickleave, since reductions in these bene-fits would not be justified by signifi-cant cost considerations. Where em-ployee benefit plans do meet the cri-teria in section 4(f)(2), benefit levels forolder workers may be reduced to theextent necessary to achieve approxi-mate equivalency in cost for older andyounger workers. A benefit plan will beconsidered in compliance with the stat-ute where the actual amount of pay-ment made, or cost incurred, in behalfof an older worker is equal to thatmade or incurred in behalf of a youngerworker, even though the older workermay thereby receive a lesser amount ofbenefits or insurance coverage. Sincesection 4(f)(2) is an exception from thegeneral non-discrimination provisionsof the Act, the burden is on the oneseeking to invoke the exception toshow that every element has beenclearly and unmistakably met. The ex-ception must be narrowly construed.The following sections explain threekey elements of the exception:

(i) What a ‘‘bona fide employee ben-efit plan’’ is;

(ii) What it means to ‘‘observe theterms’’ of such a plan; and

(iii) What kind of plan, or plan provi-sion, would be considered ‘‘a subterfugeto evade the purposes of [the] Act.’’

There is also a discussion of the appli-cation of the general rules governingall plans with respect to specific kindsof employee benefit plans.

(2) Relation of section 4(f)(2) to sections4(a), 4(b) and 4(c). Sections 4(a), 4(b) and4(c) prohibit specified acts of discrimi-nation on the basis of age. Section 4(a)in particular makes it unlawful for anemployer to ‘‘discriminate against anyindividual with respect to his com-pensation, terms, conditions, or privi-leges of employment, because of suchindividual’s age * * *.’’ Section 4(f)(2)is an exception to this general prohibi-tion. Where an employer under an em-ployee benefit plan provides the samelevel of benefits to older workers as toyounger workers, there is no violationof section 4(a), and accordingly thepractice does not have to be justifiedunder section 4(f)(2).

(b) Bona fide employee benefit plan.Section 4(f)(2) applies only to bona fideemployee benefit plans. A plan is con-sidered ‘‘bona fide’’ if its terms (includ-ing cessation of contributions or accru-als in the case of retirement incomeplans) have been accurately describedin writing to all employees and if it ac-tually provides the benefits in accord-ance with the terms of the plan. Noti-fying employees promptly of the provi-sions and changes in an employee ben-efit plan is essential if they are toknow how the plan affects them. Forthese purposes, it would be sufficientunder the ADEA for employers to fol-low the disclosure requirements ofERISA and the regulations thereunder.The plan must actually provide thebenefits its provisions describe, sinceotherwise the notification of the provi-sions to employees is misleading andinaccurate. An ‘‘employee benefitplan’’ is a plan, such as a retirement,pension, or insurance plan, which pro-vides employees with what are fre-quently referred to as ‘‘fringe bene-fits.’’ The term does not refer to wagesor salary in cash; neither section 4(f)(2)nor any other section of the Act ex-cuses the payment of lower wages orsalary to older employees on accountof age. Whether or not any particularemployee benefit plan may lawfullyprovide lower benefits to older employ-ees on account of age depends onwhether all of the elements of the ex-ception have been met. An ‘‘employee-pay-all’’ employee benefit plan is oneof the ‘‘terms, conditions, or privilegesof employment’’ with respect to which


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discrimination on the basis of age isforbidden under section 4(a)(1). In sucha plan, benefits for older workers maybe reduced only to the extent and ac-cording to the same principles as applyto other plans under section 4(f)(2).

(c) ‘‘To observe the terms’’ of a plan. Inorder for a bona fide employee benefitplan which provides lower benefits toolder employees on account of age tobe within the section 4(f)(2) exception,the lower benefits must be provided in‘‘observ[ance of] the terms of’’ theplan. As this statutory text makesclear, the section 4(f)(2) exception islimited to otherwise discriminatory ac-tions which are actually prescribed bythe terms of a bona fide employee ben-efit plan. Where the employer, employ-ment agency, or labor organization isnot required by the express provisionsof the plan to provide lesser benefits toolder workers, section 4(f)(2) does notapply. Important purposes are servedby this requirement. Where a discrimi-natory policy is an express term of abenefit plan, employees presumablyhave some opportunity to know of thepolicy and to plan (or protest) accord-ingly. Moreover, the requirement thatthe discrimination actually be pre-scribed by a plan assures that the par-ticular plan provision will be equallyapplied to all employees of the sameage. Where a discriminatory provisionis an optional term of the plan, it per-mits individual, discretionary acts ofdiscrimination, which do not fall with-in the section 4(f)(2) exception.

(d) Subterfuge. In order for a bona fideemployee benefit plan which prescribeslower benefits for older employees onaccount of age to be within the section4(f)(2) exception, it must not be ‘‘a sub-terfuge to evade the purposes of [the]Act.’’ In general, a plan or plan provi-sion which prescribes lower benefits forolder employees on account of age isnot a ‘‘subterfuge’’ within the meaningof section 4(f)(2), provided that thelower level of benefits is justified byage-related cost considerations. (Theonly exception to this general rule iswith respect to certain retirementplans. See paragraph (f)(4) of this sec-tion.) There are certain other require-ments that must be met in order for aplan not to be a subterfuge. These re-quirements are set forth below.

(1) Cost data—general. Cost data usedin justification of a benefit plan whichprovides lower benefits to older em-ployees on account of age must be validand reasonable. This standard is metwhere an employer has cost data whichshow the actual cost to it of providingthe particular benefit (or benefits) inquestion over a representative periodof years. An employer may rely in costdata for its own employees over such aperiod, or on cost data for a largergroup of similarly situated employees.Sometimes, as a result of experiencerating or other causes, an employer in-curs costs that differ significantly fromcosts for a group of similarly situatedemployees. Such an employer may notrely on cost data for the similarly situ-ated employees where such reliancewould result in significantly lower ben-efits for its own older employees.Where reliable cost information is notavailable, reasonable projections madefrom existing cost data meeting thestandards set forth above will be con-sidered acceptable.

(2) Cost data—Individual benefit basisand ‘‘benefit package’’ basis. Cost com-parisons and adjustments under section4(f)(2) must be made on a benefit-by-benefit basis or on a ‘‘benefit package’’basis, as described below.

(i) Benefit-by-benefit basis. Adjust-ments made on a benefit-by-benefitbasis must be made in the amount orlevel of a specific form of benefit for aspecific event or contingency. For ex-ample, higher group term life insur-ance costs for older workers would jus-tify a corresponding reduction in theamount of group term life insurancecoverage for older workers, on thebasis of age. However, a benefit-by-ben-efit approach would not justify the sub-stitution of one form of benefit for an-other, even though both forms of ben-efit are designed for the same contin-gency, such as death. See paragraph(f)(1) of this section.

(ii) ‘‘Benefit package’’ basis. As an al-ternative to the benefit-by-benefitbasis, cost comparisons and adjust-ments under section 4(f)(2) may bemade on a limited ‘‘benefit package’’basis. Under this approach, subject tothe limitations described below, costcomparisons and adjustments can bemade with respect to section 4(f)(2)


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plans in the aggregate. This alter-native basis provides greater flexibilitythan a benefit-by-benefit basis in orderto carry out the declared statutorypurpose ‘‘to help employers and work-ers find ways of meeting problems aris-ing from the impact of age on employ-ment.’’ A ‘‘benefit package’’ approachis an alternative approach consistentwith this purpose and with the generalpurpose of section 4(f)(2) only if it isnot used to reduce the cost to the em-ployer or the favorability to the em-ployees of overall employee benefits forolder employees. A ‘‘benefit package’’approach used for either of these pur-poses would be a subterfuge to evadethe purposes of the Act. In order to as-sure that such a ‘‘benefit package’’ ap-proach is not abused and is consistentwith the legislative intent, it is subjectto the limitations described in para-graph (f), which also includes a generalexample.

(3) Cost data—five year maximum basis.Cost comparisons and adjustmentsunder section 4(f)(2) may be made onthe basis of age brackets of up to 5years. Thus a particular benefit may bereduced for employees of any age with-in the protected age group by anamount no greater than that whichcould be justified by the additionalcost to provide them with the samelevel of the benefit as younger employ-ees within a specified five-year agegroup immediately preceding theirs.For example, where an employer choos-es to provide unreduced group term lifeinsurance benefits until age 60, benefitsfor employees who are between 60 and65 years of age may be reduced only tothe extent necessary to achieve approx-imate equivalency in costs with em-ployees who are 55 to 60 years old.Similarly, any reductions in benefitlevels for 65 to 70 year old employeescannot exceed an amount which is pro-portional to the additional costs fortheir coverage over 60 to 65 year oldemployees.

(4) Employee contributions in support ofemployee benefit plans—(i) As a conditionof employment. An older employee with-in the protected age group may not berequired as a condition of employmentto make greater contributions than ayounger employee in support of an em-ployee benefit plan. Such a require-

ment would be in effect a mandatoryreduction in take-home pay, which isnever authorized by section 4(f)(2), andwould impose an impediment to em-ployment in violation of the specificrestrictions in section 4(f)(2).

(ii) As a condition of participation in avoluntary employee benefit plan. Anolder employee within the protectedage group may be required as a condi-tion of participation in a voluntaryemployee benefit plan to make a great-er contribution than a younger em-ployee only if the older employee is notthereby required to bear a greater pro-portion of the total premium cost (em-ployer-paid and employee-paid) thanthe younger employee. Otherwise therequirement would discriminateagainst the older employee by makingcompensation in the form of an em-ployer contribution available on lessfavorable terms than for the youngeremployee and denying that compensa-tion altogether to an older employeeunwilling or unable to meet the less fa-vorable terms. Such discrimination isnot authorized by section 4(f)(2). Thisprinciple applies to three different con-tribution arrangements as follows:

(A) Employee-pay-all plans. Older em-ployees, like younger employees, maybe required to contribute as a condi-tion of participation up to the full pre-mium cost for their age.

(B) Non-contributory (‘‘employer-pay-all’’) plans. Where younger employeesare not required to contribute any por-tion of the total premium cost, olderemployees may not be required to con-tribute any portion.

(C) Contributory plans. In these plansemployers and participating employeesshare the premium cost. The requiredcontributions of participants may in-crease with age so long as the propor-tion of the total premium required tobe paid by the participants does not in-crease with age.

(iii) As an option in order to receive anunreduced benefit. An older employeemay be given the option, as an indi-vidual, to make the additional con-tribution necessary to receive the samelevel of benefits as a younger employee(provided that the contemplated reduc-tion in benefits is otherwise justifiedby section 4(f)(2)).


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(5) Forfeiture clauses. Clauses in em-ployee benefit plans which state thatlitigation or participation in any man-ner in a formal proceeding by an em-ployee will result in the forfeiture ofhis rights are unlawful insofar as theymay be applied to those who seek re-dress under the Act. This is by reasonof section 4(d) which provides that it isunlawful for an employer, employmentagency, or labor organization to dis-criminate against any individual be-cause such individual ‘‘has made acharge, testified, assisted, or partici-pated in any manner in an investiga-tion, proceeding, or litigation underthis Act.’’

(6) Refusal to hire clauses. Any provi-sion of an employee benefit plan whichrequires or permits the refusal to hirean individual specified in section 12(a)of the Act on the basis of age is a sub-terfuge to evade the purposes of theAct and cannot be excused under sec-tion 4(f)(2).

(7) Involuntary retirement clauses. Anyprovision of an employee benefit planwhich requires or permits the involun-tary retirement of any individual spec-ified in section 12(a) of the Act on thebasis of age is a subterfuge to evade thepurpose of the Act and cannot be ex-cused under section 4(f)(2).

(e) Benefits provided by the Govern-ment. An employer does not violate theAct by permitting certain benefits tobe provided by the Government, eventhough the availability of such benefitsmay be based on age. For example, it isnot necessary for an employer to pro-vide health benefits which are other-wise provided to certain employees byMedicare. However, the availability ofbenefits from the Government will notjustify a reduction in employer-pro-vided benefits if the result is that, tak-ing the employer-provided and Govern-ment-provided benefits together, anolder employee is entitled to a lesserbenefit of any type (including coveragefor family and/or dependents) than asimilarly situated younger employee.For example, the availability of cer-tain benefits to an older employeeunder Medicare will not justify denyingan older employee a benefit which isprovided to younger employees and isnot provided to the older employee byMedicare.

(f) Application of section 4(f)(2) to var-ious employee benefit plans—(1) Benefit-by-benefit approach. This portion of theinterpretation discusses how a benefit-by-benefit approach would apply tofour of the most common types of em-ployee benefit plans.

(i) Life insurance. It is not uncommonfor life insurance coverage to remainconstant until a specified age, fre-quently 65, and then be reduced. Thispractice will not violate the Act (evenif reductions start before age 65), pro-vided that the reduction for an em-ployee of a particular age is no greaterthan is justified by the increased costof coverage for that employee’s specificage bracket encompassing no morethan five years. It should be noted thata total denial of life insurance, on thebasis of age, would not be justifiedunder a benefit-by-benefit analysis.However, it is not unlawful for life in-surance coverage to cease upon separa-tion from service.

(ii) Long-term disability. Under a ben-efit-by-benefit approach, where em-ployees who are disabled at youngerages are entitled to long-term dis-ability benefits, there is no cost—basedjustification for denying such benefitsaltogether, on the basis of age, to em-ployees who are disabled at older ages.It is not unlawful to cut off long-termdisability benefits and coverage on thebasis of some non-age factor, such asrecovery from disability. Reductionson the basis of age in the level or dura-tion of benefits available for disabilityare justifiable only on the basis of age-related cost considerations as set forthelsewhere in this section. An employerwhich provides long-term disabilitycoverage to all employees may avoidany increases in the cost to it thatsuch coverage for older employeeswould entail by reducing the level ofbenefits available to older employees.An employer may also avoid such costincreases by reducing the duration ofbenefits available to employees who be-come disabled at older ages, withoutreducing the level of benefits. In thisconnection, the Department would notassert a violation where the level ofbenefits is not reduced and the dura-tion of benefits is reduced in the fol-lowing manner:


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(A) With respect to disabilities whichoccur at age 60 or less, benefits cease atage 65.

(B) With respect to disabilities whichoccur after age 60, benefits cease 5years after disablement. Cost data maybe produced to support other patternsof reduction as well.

(iii) Retirement plans—(A) Participa-tion. No employee hired prior to normalretirement age may be excluded from adefined contribution plan. With respectto defined benefit plans not subject tothe Employee Retirement Income Se-curity Act (ERISA), Pub. L. 93–406, 29U.S.C. 1001, 1003 (a) and (b), an em-ployee hired at an age more than 5years prior to normal retirement agemay not be excluded from such a planunless the exclusion is justifiable onthe basis of cost considerations as setforth elsewhere in this section. Withrespect to defined benefit plans subjectto ERISA, such an exclusion would beunlawful in any case. An employeehired less than 5 years prior to normalretirement age may be excluded from adefined benefit plan, regardless ofwhether or not the plan is covered byERISA. Similarly, any employee hiredafter normal retirement age may be ex-cluded from a defined benefit plan.

(2) ‘‘Benefit package’’ approach. A‘‘benefit package’’ approach to compli-ance under section 4(f)(2) offers greaterflexibility than a benefit-by-benefit ap-proach by permitting deviations from abenefit-by-benefit approach so long asthe overall result is no lesser cost tothe employer and no less favorable ben-efits for employees. As previouslynoted, in order to assure that such anapproach is used for the benefit of olderworkers and not to their detriment,and is otherwise consistent with thelegislative intent, it is subject to limi-tations as set forth below:

(i) A benefit package approach shallapply only to employee benefit planswhich fall within section 4(f)(2).

(ii) A benefit package approach shallnot apply to a retirement or pensionplan. The 1978 legislative history setsforth specific and comprehensive rulesgoverning such plans, which have beenadopted above. These rules are not tiedto actuarially significant cost consid-erations but are intended to deal withthe special funding arrangements of re-

tirement or pension plans. Variationsfrom these special rules are thereforenot justified by variations from thecost-based benefit-by-benefit approachin other benefit plans, nor may vari-ations from the special rules governingpension and retirement plans justifyvariations from the benefit-by-benefitapproach in other benefit plans.

(iii) A benefit package approach shallnot be used to justify reductions inhealth benefits greater than would bejustified under a benefit-by-benefit ap-proach. Such benefits appear to be ofparticular importance to older workersin meeting ‘‘problems arising from theimpact of age’’ and were of particularconcern to Congress. Therefore, the‘‘benefit package’’ approach may notbe used to reduce health insurance ben-efits by more than is warranted by theincrease in the cost to the employer ofthose benefits alone. Any greater re-duction would be a subterfuge to evadethe purpose of the Act.

(iv) A benefit reduction greater thanwould be justified under a benefit-by-benefit approach must be offset by an-other benefit available to the same em-ployees. No employees may be deprivedbecause of age of one benefit withoutan offsetting benefit being made avail-able to them.

(v) Employers who wish to justifybenefit reductions under a benefitpackage approach must be prepared toproduce data to show that those reduc-tions are fully justified. Thus employ-ers must be able to show that devi-ations from a benefit-by-benefit ap-proach do not result in lesser cost tothem or less favorable benefits to theiremployees. A general example con-sistent with these limitations may begiven. Assume two employee benefitplans, providing Benefit ‘‘A’’ and Ben-efit ‘‘B.’’ Both plans fall within section4(f)(2), and neither is a retirement orpension plan subject to special rules.Both benefits are available to all em-ployees. Age-based cost increaseswould justify a 10% decrease in bothbenefits on a benefit-by-benefit basis.The affected employees would, how-ever, find it more favorable—that is,more consistent with meeting theirneeds—for no reduction to be made inBenefit ‘‘A’’ and a greater reduction tobe made in Benefit ‘‘B.’’ This ‘‘trade-


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off’’ would not result in a reduction inhealth benefits. The ‘‘trade-off’’ maytherefore be made. The details of the‘‘trade-off’’ depend on data on the rel-ative cost to the employer of the twobenefits. If the data show that Benefit‘‘A’’ and Benefit ‘‘B’’ cost the same,Benefit ‘‘B’’ may be reduced up to 20%if Benefit ‘‘A’’ is unreduced. If the datashow that Benefit ‘‘A’’ costs only halfas much as Benefit ‘‘B’’, however, Ben-efit ‘‘B’’ may be reduced up to only 15%if Benefit ‘‘A’’ is unreduced, since agreater reduction in Benefit ‘‘B’’ wouldresult in an impermissible reduction intotal benefit costs.

(g) Relation of ADEA to State laws.The ADEA does not preempt State agediscrimination in employment laws.However, the failure of the ADEA topreempt such laws does not affect theissue of whether section 514 of the Em-ployee Retirement Income SecurityAct (ERISA) preempts State lawswhich related to employee benefitplans.

[44 FR 30658, May 25, 1979, as amended at 52FR 8448, Mar. 18, 1987. Redesignated andamended at 52 FR 23812, June 25, 1987; 53 FR5973, Feb. 29, 1988]

§ 1625.11 Exemption for employeesserving under a contract of unlim-ited tenure.

(a)(1) Section 12(d) of the Act, addedby the 1986 amendments, provides:

Nothing in this Act shall be construed toprohibit compulsory retirement of any em-ployee who has attained 70 years of age, andwho is serving under a contract of unlimitedtenure (or similar arrangement providing forunlimited tenure) at an institution of highereducation (as defined by section 1201(a) ofthe Higher Education Act of 1965).

(2) This exemption from the Act’sprotection of covered individuals tookeffect on January 1, 1987, and is re-pealed on December 31, 1993 (see section6 of the Age Discrimination in Employ-ment Act Amendments of 1986, Pub. L.99–592, 100 Stat. 3342). The Equal Em-ployment Opportunity Commission isrequired to enter into an agreementwith the National Academy ofSciences, for the conduct of a study toanalyze the potential consequences ofthe elimination of mandatory retire-ment on institutions of higher edu-cation.

(b) Since section 12(d) is an exemp-tion from the nondiscrimination re-quirements of the Act, the burden is onthe one seeking to invoke the exemp-tion to show that every element hasbeen clearly and unmistakably met.Moreover, as with other exemptionsfrom the ADEA, this exemption mustbe narrowly construed.

(c) Section 1201(a) of the Higher Edu-cation Act of 1965, as amended, and setforth in 20 U.S.C. 1141(a), provides inpertinent part:

The term institution of higher educationmeans an educational institution in anyState which (1) admits as regular studentsonly persons having a certificate of gradua-tion from a school providing secondary edu-cation, or the recognized equivalent of sucha certificate, (2) is legally authorized withinsuch State to provide a program of educationbeyond secondary education, (3) provides aneducational program for which it awards abachelor’s degree or provides not less than atwo-year program which is acceptable forfull credit toward such a degree, (4) is a pub-lic or other nonprofit institution, and (5) isaccredited by a nationally recognized accred-iting agency or association or, if not so ac-credited, (A) is an institution with respect towhich the Commissioner has determinedthat there is satisfactory assurance, consid-ering the resources available to the institu-tion, the period of time, if any, during whichit has operated, the effort it is making tomeet accreditation standards, and the pur-pose for which this determination is beingmade, that the institution will meet the ac-creditation standards of such an agency orassociation within a reasonable time, or (B)is an institution whose credits are accepted,on transfer, by not less than three institu-tions which are so accredited, for credit onthe same basis as if transferred from an in-stitution so accredited.

The definition encompasses almost allpublic and private universities and twoand four year colleges. The omittedportion of the text of section 1201(a) re-fers largely on one–year technicalschools which generally do not granttenure to employees but which, if theydo, are also eligible to claim the ex-emption.

(d)(1) Use of the term any employeeindicates that application of the ex-emption is not limited to teachers, whoare traditional recipients of tenure.The exemption may also be availablewith respect to other groups, such asacademic deans, scientific researchers,professional librarians and counseling


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staff, who frequently have tenured sta-tus.

(2) The Conference Committee Reporton the 1978 amendments expresslystates that the exemption does notapply to Federal employees covered bysection 15 of the Act (H.R. Rept. No. 95–950, p. 10).

(e)(1) The phrase unlimited tenure isnot defined in the Act. However, the al-most universally accepted definition ofacademic ‘‘tenure’’ is an arrangementunder which certain appointments inan institution of higher education arecontinued until retirement for age ofphysical disability, subject to dis-missal for adequate cause or under ex-traordinary circumstances on accountof financial exigency or change of in-stitutional program. Adopting that def-inition, it is evident that the word un-limited refers to the duration of tenure.Therefore, a contract (or other similararrangement) which is limited to a spe-cific term (for example, one year or 10years) will not meet the requirementsof the exemption.

(2) The legislative history shows thatCongress intented the exemption toapply only where the minimum rightsand privileges traditionally associatedwith tenure are guaranteed to an em-ployee by contract or similar arrange-ment. While tenure policies and prac-tices vary greatly from one institutionto another, the minimum standards setforth in the 1940 Statement of Prin-ciples on Academic Freedom and Ten-ure, jointly developed by the Associa-tion of American Colleges and theAmerican Association of UniversityProfessors, have enjoyed widespreadadoption or endorsement. The 1940Statement of Principles on academictenure provides as follows:

(a) After the expiration of a probationaryperiod, teachers or investigators should havepermanent or continuous tenure, and theirservice should be terminated only for ade-quate cause, except in the case of retirementfor age, or under extraordinary cir-cumstances because of financial exigencies.

In the interpretation of this principle it isunderstood that the following represents ac-ceptable academic practice:

(1) The precise terms and conditions ofevery appointment should be stated in writ-ing and be in the possession of both institu-tion and teacher before the appointment isconsumated.

(2) Beginning with appointment to therank of full-time instructor or a higher rank,the probationary period should not exceedseven years, including within this periodfull-time service in all institutions of highereducation; but subject to the proviso thatwhen, after a term of probationary service ofmore than three years in one or more insti-tutions, a teacher is called to another insti-tution it may be agreed in writing that hisnew appointment is for a probationary pe-riod of not more than four years, eventhough thereby the person’s total proba-tionary period in the academic profession isextended beyond the normal maximum ofseven years. Notice should be given at leastone year prior to the expiration of the proba-tionary period if the teacher is not to be con-tinued in service after the expiration of thatperiod.

(3) During the probationary period a teach-er should have the academic freedom that allother members of the faculty have.

(4) Termination for cause of a continuousappointment, or the dismissal for cause of ateacher previous to the expiration of a termappointment, should, if possible, be consid-ered by both a faculty committee and thegoverning board of the institution. In allcases where the facts are in dispute, the ac-cused teacher should be informed before thehearing in writing of the charges againsthim and should have the opportunity to beheard in his own defense by all bodies thatpass judgment upon his case. He should bepermitted to have with him an advisor of hisown choosing who may act as counsel.Thereshould be a full stenographic record of thehearing available to the parties concerned.In the hearing of charges of incompetencethe testimony should include that of teach-ers and other scholars, either from his ownor from other institutions. Teachers on con-tinuous appointment who are dismissed forreasons not involving moral turpitude shouldreceive their salaries for at least a year fromthe date of notification of dismissal whetheror not they are continued in their duties atthe institution.

(5) Termination of a continuous appoint-ment because of financial exigency should bedemonstrably bona fide.

(3) A contract or similar arrange-ment which meets the standards in the1940 Statement of Principles will sat-isfy the tenure requirements of the ex-emption. However, a tenure arrange-ment will not be deemed inadequatesolely because it fails to meet thesestandards in every respect. For exam-ple, a tenure plan will not be deemedinadequate solely because it includes aprobationary period somewhat longerthan seven years. Of course, the great-er the deviation from the standards in


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the 1940 Statement of Principles, theless likely it is that the employee inquestion will be deemed subject to ‘‘un-limited tenure’’ within the meaning ofthe exemption. Whether or not a ten-ure arrangement is adequate to satisfythe requirements of the exemptionmust be determined on the basis of thefacts of each case.

(f) Employees who are not assured ofa continuing appointment either bycontract of unlimited tenure or othersimilar arrangement (such as a Statestatute) would not, of course, be ex-empted from the prohibitions againstcompulsory retirement, even if theyperform functions identical to thoseperformed by employees with appro-priate tenure.

(g) An employee within the exemp-tion can lawfully be forced to retire onaccount of age at age 70 (see paragraph(a)(1) of this section). In addition, theemployer is free to retain such employ-ees, either in the same position or sta-tus or in a different position or status:Provided, That the employee volun-tarily accepts this new position or sta-tus. For example, an employee whofalls within the exemption may be of-fered a nontenured position or part-time employment. An employee whoaccepts a nontenured position or part-time employment, however, may not betreated any less favorably, on accountof age, than any similarly situatedyounger employee (unless such less fa-vorable treatment is excused by an ex-ception to the Act).

[44 FR 66799, Nov. 21, 1979; 45 FR 43704, June30, 1980, as amended at 53 FR 5973, Feb. 29,1988]

§ 1625.12 Exemption for bona fide ex-ecutive or high policymaking em-ployees.

(a) Section 12(c)(1) of the Act, addedby the 1978 amendments and as amend-ed in 1984 and 1986, provides:

Nothing in this Act shall be construed toprohibit compulsory retirement of any em-ployee who has attained 65 years of age, andwho, for the 2-year period immediately be-fore retirement, is employed in a bona fideexecutive or higher policymaking position, ifsuch employee is entitled to an immediatenonforfeitable annual retirement benefitfrom a pension, profit-sharing, savings, ordeferred compensation plan, or any combina-tion of such plans, of the employer of such

employee which equals, in the aggregate, atleast $44,000.

(b) Since this provision is an exemp-tion from the non-discrimination re-quirements of the Act, the burden is onthe one seeking to invoke the exemp-tion to show that every element hasbeen clearly and unmistakably met.Moreover, as with other exemptionsfrom the Act, this exemption must benarrowly construed.

(c) An employee within the exemp-tion can lawfully be forced to retire onaccount of age at age 65 or above. Inaddition, the employer is free to retainsuch employees, either in the same po-sition or status or in a different posi-tion or status. For example, an em-ployee who falls within the exemptionmay be offered a position of lesser sta-tus or a part-time position. An em-ployee who accepts such a new statusor position, however, may not be treat-ed any less favorably, on account ofage, than any similarly situatedyounger employee.

(d)(1) In order for an employee toqualify as a ‘‘bona fide executive,’’ theemployer must initially show that theemployee satisfies the definition of abona fide executive set forth in § 541.1of this chapter. Each of the require-ments in paragraphs (a) through (e) of§ 541.1 must be satisfied, regardless ofthe level of the employee’s salary orcompensation.

(2) Even if an employee qualifies asan executive under the definition in§ 541.1 of this chapter, the exemptionfrom the ADEA may not be claimed un-less the employee also meets the fur-ther criteria specified in the Con-ference Committee Report in the formof examples (see H.R. Rept. No. 95–950,p. 9). The examples are intended tomake clear that the exemption doesnot apply to middle-management em-ployees, no matter how great their re-tirement income, but only to a veryfew top level employees who exercisesubstantial executive authority over asignificant number of employees and alarge volume of business. As stated inthe Conference Report (H.R. Rept. No.95–950, p. 9):

Typically the head of a significant and sub-stantial local or regional operation of a cor-poration [or other business organization],such as a major production facility or retail


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establishment, but not the head of a minorbranch, warehouse or retail store, would becovered by the term ‘‘bona fide executive.’’Individuals at higher levels in the corporateorganizational structure who possess com-parable or greater levels of responsibilityand authority as measured by establishedand recognized criteria would also be cov-ered.

The heads of major departments or divi-sions of corporations [or other business orga-nizations] are usually located at corporate orregional headquarters. With respect to em-ployees whose duties are associated with cor-porate headquarters operations, such as fi-nance, marketing, legal, production andmanufacturing (or in a corporation organizedon a product line basis, the management ofproduct lines), the definition would coveremployees who head those divisions.

In a large organization the immediate sub-ordinates of the heads of these divisionssometimes also exercise executive authority,within the meaning of this exemption. Theconferees intend the definition to cover suchemployees if they possess responsibilitywhich is comparable to or greater than thatpossessed by the head of a significant andsubstantial local operation who meets thedefinition.

(e) The phrase ‘‘high policymakingposition,’’ according to the ConferenceReport (H.R. Rept. No. 95–950, p. 10), islimited to ‘‘* * * certain top level em-ployees who are not ‘bona fide execu-tives’ * * *.’’ Specifically, these are:

* * * individuals who have little or no lineauthority but whose position and responsi-bility are such that they play a significantrole in the development of corporate policyand effectively recommend the implementa-tion thereof.

For example, the chief economist or thechief research scientist of a corporationtypically has little line authority. His dutieswould be primarily intellectual as opposed toexecutive or managerial. His responsibilitywould be to evaluate significant economic orscientific trends and issues, to develop andrecommend policy direction to the top exec-utive officers of the corporation, and hewould have a significant impact on the ulti-mate decision on such policies by virtue ofhis expertise and direct access to the deci-sionmakers. Such an employee would meetthe definition of a ‘‘high policymaking’’ em-ployee.

On the other hand, as this descriptionmakes clear, the support personnel of a‘‘high policymaking’’ employee wouldnot be subject to the exemption even ifthey supervise the development, and

draft the recommendation, of variouspolicies submitted by their supervisors.

(f) In order for the exemption toapply to a particular employee, theemployee must have been in a ‘‘bonafide executive or high policymakingposition,’’ as those terms are defined inthis section, for the two-year periodimmediately before retirement. Thus,an employee who holds two or moredifferent positions during the two-yearperiod is subject to the exemption onlyif each such job is an executive or highpolicymaking position.

(g) The Conference Committee Re-port expressly states that the exemp-tion is not applicable to Federal em-ployees covered by section 15 of the Act(H.R. Rept. No. 95–950, p. 10).

(h) The ‘‘annual retirement benefit,’’to which covered employees must beentitled, is the sum of amounts payableduring each one-year period from thedate on which such benefits first be-come receivable by the retiree. Onceestablished, the annual period uponwhich calculations are based may notbe changed from year to year.

(i) The annual retirement benefitmust be immediately available to theemployee to be retired pursuant to theexemption. For purposes of deter-mining compliance, ‘‘immediate’’means that the payment of plan bene-fits (in a lump sum or the first of a se-ries of periodic payments) must occurnot later than 60 days after the effec-tive date of the retirement in question.The fact that an employee will receivebenefits only after expiration of the 60-day period will not preclude his retire-ment pursuant to the exemption, if theemployee could have elected to receivebenefits within that period.

(j)(1) The annual retirement benefitmust equal, in the aggregate, at least$44,000. The manner of determiningwhether this requirement has been sat-isfied is set forth in § 1627.17(c).

(2) In determining whether the aggre-gate annual retirement benefit equalsat least $44,000, the only benefits whichmay be counted are those authorizedby and provided under the terms of apension, profit-sharing, savings, or de-ferred compensation plan. (Regulationsissued pursuant to section 12(c)(2) of


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the Act, regarding the manner of calcu-lating the amount of qualified retire-ment benefits for purposes of the ex-emption, are set forth in § 1627.17 ofthis chapter.)

(k)(1) The annual retirement benefitmust be ‘‘nonforfeitable.’’ Accordingly,the exemption may not be applied toany employee subject to plan provi-sions which could cause the cessationof payments to a retiree or result inthe reduction of benefits to less than$44,000 in any one year. For example,where a plan contains a provisionunder which benefits would be sus-pended if a retiree engages in litigationagainst the former employer, or ob-tains employment with a competitor ofthe former employer, the retirementbenefit will be deemed to be forfeitable.However, retirement benefits will notbe deemed forfeitable solely becausethe benefits are discontinued or sus-pended for reasons permitted undersection 411(a)(3) of the Internal Rev-enue Code.

(2) An annual retirement benefit willnot be deemed forfeitable merely be-cause the minimum statutory benefitlevel is not guaranteed against the pos-sibility of plan bankruptcy or is sub-ject to benefit restrictions in the eventof early termination of the plan in ac-cordance with Treasury Regulation1.401–4(c). However, as of the effectivedate of the retirement in question,there must be at least a reasonable ex-pectation that the plan will meet itsobligations.

(Sec. 12(c)(1) of the Age Discrimination InEmployment Act of 1967, as amended by sec.802(c)(1) of the Older Americans Act Amend-ments of 1984, Pub. L. 98–459, 98 Stat. 1792))

[44 FR 66800, Nov. 21, 1979; 45 FR 43704, June30, 1980, as amended at 50 FR 2544, Jan. 17,1985; 53 FR 5973, Feb. 29, 1988]

Subpart B—SubstantiveRegulations

§ 1625.21 Apprenticeship programs.All apprenticeship programs, includ-

ing those apprenticeship programs cre-ated or maintained by joint labor-man-agement organizations, are subject tothe prohibitions of sec. 4 of the AgeDiscrimination in Employment Act of1967, as amended, 29 U.S.C. 623. Age

limitations in apprenticeship programsare valid only if excepted under sec.4(f)(1) of the Act, 29 U.S.C. 623(f)(1), orexempted by the Commission undersec. 9 of the Act, 29 U.S.C. 628, in ac-cordance with the procedures set forthin 29 CFR 1627.15.

[61 FR 15378, Apr. 8, 1996]

§ 1625.22 Waivers of rights and claimsunder the ADEA.

(a) Introduction. (1) Congress amendedthe ADEA in 1990 to clarify the prohibi-tions against discrimination on thebasis of age. In Title II of OWBPA, Con-gress addressed waivers of rights andclaims under the ADEA, amending sec-tion 7 of the ADEA by adding a newsubsection (f).

(2) Section 7(f)(1) of the ADEA ex-pressly provides that waivers may bevalid and enforceable under the ADEAonly if the waiver is ‘‘knowing and vol-untary’’. Sections 7(f)(1) and 7(f)(2) ofthe ADEA set out the minimum re-quirements for determining whether awaiver is knowing and voluntary.

(3) Other facts and circumstancesmay bear on the question of whetherthe waiver is knowing and voluntary,as, for example, if there is a materialmistake, omission, or misstatement inthe information furnished by the em-ployer to an employee in connectionwith the waiver.

(4) The rules in this section apply toall waivers of ADEA rights and claims,regardless of whether the employee isemployed in the private or public sec-tor, including employment by theUnited States Government.

(b) Wording of Waiver Agreements.(1) Section 7(f)(1)(A) of the ADEA

provides, as part of the minimum re-quirements for a knowing and vol-untary waiver, that:

The waiver is part of an agreement be-tween the individual and the employer thatis written in a manner calculated to be un-derstood by such individual, or by the aver-age individual eligible to participate.

(2) The entire waiver agreement mustbe in writing.

(3) Waiver agreements must be draft-ed in plain language geared to the levelof understanding of the individualparty to the agreement or individualseligible to participate. Employers


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should take into account such factorsas the level of comprehension and edu-cation of typical participants. Consid-eration of these factors usually will re-quire the limitation or elimination oftechnical jargon and of long, complexsentences.

(4) The waiver agreement must nothave the effect of misleading, misin-forming, or failing to inform partici-pants and affected individuals. Any ad-vantages or disadvantages describedshall be presented without either exag-gerating the benefits or minimizing thelimitations.

(5) Section 7(f)(1)(H) of the ADEA, re-lating to exit incentive or other em-ployment termination programs of-fered to a group or class of employees,also contains a requirement that infor-mation be conveyed ‘‘in writing in amanner calculated to be understood bythe average participant.’’ The samestandards applicable to the similar lan-guage in section 7(f)(1)(A) of the ADEAapply here as well.

(6) Section 7(f)(1)(B) of the ADEA pro-vides, as part of the minimum require-ments for a knowing and voluntarywaiver, that ‘‘the waiver specificallyrefers to rights or claims under thisAct.’’ Pursuant to this subsection, thewaiver agreement must refer to theAge Discrimination in EmploymentAct (ADEA) by name in connectionwith the waiver.

(7) Section 7(f)(1)(E) of the ADEA re-quires that an individual must be ‘‘ad-vised in writing to consult with an at-torney prior to executing the agree-ment.’’

(c) Waiver of future rights. (1) Section7(f)(1)(C) of the ADEA provides that:

A waiver may not be considered knowingand voluntary unless at a minimum . . . theindividual does not waive rights or claimsthat may arise after the date the waiver isexecuted.

(2) The waiver of rights or claimsthat arise following the execution of awaiver is prohibited. However, section7(f)(1)(C) of the ADEA does not bar, ina waiver that otherwise is consistentwith statutory requirements, the en-forcement of agreements to perform fu-ture employment-related actions suchas the employee’s agreement to retireor otherwise terminate employment ata future date.

(d) Consideration. (1) Section 7(f)(1)(D)of the ADEA states that:

A waiver may not be considered knowingand voluntary unless at a minimum * * * theindividual waives rights or claims only in ex-change for consideration in addition to any-thing of value to which the individual al-ready is entitled.

(2) ‘‘Consideration in addition’’means anything of value in addition tothat to which the individual is alreadyentitled in the absence of a waiver.

(3) If a benefit or other thing of valuewas eliminated in contravention of lawor contract, express or implied, thesubsequent offer of such benefit orthing of value in connection with awaiver will not constitute ‘‘consider-ation’’ for purposes of section 7(f)(1) ofthe ADEA. Whether such eliminationas to one employee or group of employ-ees is in contravention of law or con-tract as to other employees, or to thatindividual employee at some latertime, may vary depending on the factsand circumstances of each case.

(4) An employer is not required togive a person age 40 or older a greateramount of consideration than is givento a person under the age of 40, solelybecause of that person’s membership inthe protected class under the ADEA.

(e) Time periods. (1) Section 7(f)(1)(F)of the ADEA states that:

A waiver may not be considered knowingand voluntary unless at a minimum * * *

(i) The individual is given a period of atleast 21 days within which to consider theagreement; or

(ii) If a waiver is requested in connectionwith an exit incentive or other employmenttermination program offered to a group orclass of employees, the individual is given aperiod of at least 45 days within which toconsider the agreement.

(2) Section 7(f)(1)(G) of the ADEAstates:

A waiver may not be considered knowingand voluntary unless at a minimum . . . theagreement provides that for a period of atleast 7 days following the execution of suchagreement, the individual may revoke theagreement, and the agreement shall not be-come effective or enforceable until the rev-ocation period has expired.

(3) The term ‘‘exit incentive or otheremployment termination program’’ in-cludes both voluntary and involuntaryprograms.


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(4) The 21 or 45 day period runs fromthe date of the employer’s final offer.Material changes to the final offer re-start the running of the 21 or 45 day pe-riod; changes made to the final offerthat are not material do not restartthe running of the 21 or 45 day period.The parties may agree that changes,whether material or immaterial, do notrestart the running of the 21 or 45 dayperiod.

(5) The 7 day revocation period can-not be shortened by the parties, byagreement or otherwise.

(6) An employee may sign a releaseprior to the end of the 21 or 45 day timeperiod, thereby commencing the man-datory 7 day revocation period. This ispermissible as long as the employee’sdecision to accept such shortening oftime is knowing and voluntary and isnot induced by the employer throughfraud, misrepresentation, a threat towithdraw or alter the offer prior to theexpiration of the 21 or 45 day time pe-riod, or by providing different terms toemployees who sign the release prior tothe expiration of such time period.However, if an employee signs a releasebefore the expiration of the 21 or 45 daytime period, the employer may expe-dite the processing of the considerationprovided in exchange for the waiver.

(f) Informational requirements. (1) In-troduction. (i) Section 7(f)(1)(H) of theADEA provides that:

A waiver may not be considered knowingand voluntary unless at a minimum . . . if awaiver is requested in connection with anexit incentive or other employment termi-nation program offered to a group or class ofemployees, the employer (at the commence-ment of the period specified in subparagraph(F)) [which provides time periods for employ-ees to consider the waiver] informs the indi-vidual in writing in a manner calculated tobe understood by the average individual eli-gible to participate, as to—

(i) Any class, unit, or group of individualscovered by such program, any eligibility fac-tors for such program, and any time limitsapplicable to such program; and

(ii) The job titles and ages of all individ-uals eligible or selected for the program, andthe ages of all individuals in the same jobclassification or organizational unit who arenot eligible or selected for the program.

(ii) Section 7(f)(1)(H) of the ADEA ad-dresses two principal issues: to whominformation must be provided, and

what information must be disclosed tosuch individuals.

(iii)(A) Section 7(f)(1)(H) of the ADEAreferences two types of ‘‘programs’’under which employers seeking waiversmust make written disclosures: ‘‘exitincentive programs’’ and ‘‘other em-ployment termination programs.’’ Usu-ally an ‘‘exit incentive program’’ is avoluntary program offered to a groupor class of employees where such em-ployees are offered consideration in ad-dition to anything of value to whichthe individuals are already entitled(hereinafter in this section, ‘‘additionalconsideration’’) in exchange for theirdecision to resign voluntarily and signa waiver. Usually ‘‘other employmenttermination program’’ refers to a groupor class of employees who were invol-untarily terminated and who are of-fered additional consideration in re-turn for their decision to sign a waiver.

(B) The question of the existence of a‘‘program’’ will be decided based uponthe facts and circumstances of eachcase. A ‘‘program’’ exists when an em-ployer offers additional considerationfor the signing of a waiver pursuant toan exit incentive or other employmenttermination (e.g., a reduction in force)to two or more employees. Typically,an involuntary termination program isa standardized formula or package ofbenefits that is available to two ormore employees, while an exit incen-tive program typically is a standard-ized formula or package of benefits de-signed to induce employees to severtheir employment voluntarily. In bothcases, the terms of the programs gen-erally are not subject to negotiationbetween the parties.

(C) Regardless of the type of pro-gram, the scope of the terms ‘‘class,’’‘‘unit,’’ ‘‘group,’’ ‘‘job classification,’’and ‘‘organizational unit’’ is deter-mined by examining the ‘‘decisionalunit’’ at issue. (See paragraph (f)(3) ofthis section, ‘‘The Decisional Unit.’’)

(D) A ‘‘program’’ for purposes of theADEA need not constitute an ‘‘em-ployee benefit plan’’ for purposes of theEmployee Retirement Income SecurityAct of 1974 (ERISA). An employer mayor may not have an ERISA severanceplan in connection with its OWBPAprogram.


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(iv) The purpose of the informationalrequirements is to provide an employeewith enough information regarding theprogram to allow the employee tomake an informed choice whether ornot to sign a waiver agreement.

(2) To whom must the information begiven. The required information mustbe given to each person in thedecisional unit who is asked to sign awaiver agreement.

(3) The decisional unit. (i)(A) Theterms ‘‘class,’’ ‘‘unit,’’ or ‘‘group’’ insection 7(f)(1)(H)(i) of the ADEA and‘‘job classification or organizationalunit’’ in section 7(f)(1)(H)(ii) of theADEA refer to examples of categoriesor groupings of employees affected by aprogram within an employer’s par-ticular organizational structure. Theterms are not meant to be an exclusivelist of characterizations of an employ-er’s organization.

(B) When identifying the scope of the‘‘class, unit, or group,’’ and ‘‘job classi-fication or organizational unit,’’ anemployer should consider its organiza-tional structure and decision-makingprocess. A ‘‘decisional unit’’ is thatportion of the employer’s organiza-tional structure from which the em-ployer chose the persons who would beoffered consideration for the signing ofa waiver and those who would not beoffered consideration for the signing ofa waiver. The term ‘‘decisional unit’’has been developed to reflect the proc-ess by which an employer chose certainemployees for a program and ruled outothers from that program.

(ii)(A) The variety of terms used insection 7(f)(1)(H) of the ADEA dem-onstrates that employers often use dif-fering terminology to describe their or-ganizational structures. When identi-fying the population of the decisionalunit, the employer acts on a case-by-case basis, and thus the determinationof the appropriate class, unit, or group,and job classification or organizationalunit for purposes of section 7(f)(1)(H) ofthe ADEA also must be made on a case-by-case basis.

(B) The examples in paragraph(f)(3)(iii), of this section demonstratethat in appropriate cases some sub-group of a facility’s work force may bethe decisional unit. In other situations,it may be appropriate for the

decisional unit to comprise several fa-cilities. However, as the decisional unitis typically no broader than the facil-ity, in general the disclosure need beno broader than the facility. ‘‘Facil-ity’’ as it is used throughout this sec-tion generally refers to place or loca-tion. However, in some circumstancesterms such as ‘‘school,’’ ‘‘plant,’’ or‘‘complex’’ may be more appropriate.

(C) Often, when utilizing a programan employer is attempting to reduceits workforce at a particular facility inan effort to eliminate what it deems tobe excessive overhead, expenses, orcosts from its organization at that fa-cility. If the employer’s goal is the re-duction of its workforce at a particularfacility and that employer undertakesa decision-making process by whichcertain employees of the facility areselected for a program, and others arenot selected for a program, then thatfacility generally will be the decisionalunit for purposes of section 7(f)(1)(H) ofthe ADEA.

(D) However, if an employer seeks toterminate employees by exclusivelyconsidering a particular portion or sub-group of its operations at a specific fa-cility, then that subgroup or portion ofthe workforce at that facility will beconsidered the decisional unit.

(E) Likewise, if the employer ana-lyzes its operations at several facili-ties, specifically considers and com-pares ages, seniority rosters, or similarfactors at differing facilities, and de-termines to focus its workforce reduc-tion at a particular facility, then bythe nature of that employer’s decision-making process the decisional unitwould include all considered facilitiesand not just the facility selected forthe reductions.

(iii) The following examples are notall-inclusive and are meant only to as-sist employers and employees in deter-mining the appropriate decisional unit.Involuntary reductions in force typi-cally are structured along one or moreof the following lines:

(A) Facility-wide: Ten percent of theemployees in the Springfield facilitywill be terminated within the next tendays;

(B) Division-wide: Fifteen of the em-ployees in the Computer Division willbe terminated in December;


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(C) Department-wide: One-half of theworkers in the Keyboard Departmentof the Computer Division will be termi-nated in December;

(D) Reporting: Ten percent of the em-ployees who report to the Vice Presi-dent for Sales, wherever the employeesare located, will be terminated imme-diately;

(E) Job Category: Ten percent of allaccountants, wherever the employeesare located, will be terminated nextweek.

(iv) In the examples in paragraph(f)(3)(iii) of this section, the decisionalunits are, respectively:

(A) The Springfield facility;(B) The Computer Division;(C) The Keyboard Department;(D) All employees reporting to the

Vice President for Sales; and(E) All accountants.(v) While the particular cir-

cumstances of each termination pro-gram will determine the decisionalunit, the following examples also mayassist in determining when thedecisional unit is other than the entirefacility:

(A) A number of small facilities withinterrelated functions and employeesin a specific geographic area may com-prise a single decisional unit;

(B) If a company utilizes personnelfor a common function at more thanone facility, the decisional unit forthat function (i.e., accounting) may bebroader than the one facility;

(C) A large facility with several dis-tinct functions may comprise a numberof decisional units; for example, if asingle facility has distinct internalfunctions with no employee overlap(i.e., manufacturing, accounting,human resources), and the program isconfined to a distinct function, asmaller decisional unit may be appro-priate.

(vi)(A) For purposes of this section,higher level review of termination de-cisions generally will not change thesize of the decisional unit unless thereviewing process alters its scope. Forexample, review by the Human Re-sources Department to monitor compli-ance with discrimination laws does notaffect the decisional unit. Similarly,when a regional manager in charge ofmore than one facility reviews the ter-

mination decisions regarding one ofthose facilities, the review does notalter the decisional unit, which re-mains the one facility under consider-ation.

(B) However, if the regional managerin the course of review determines thatpersons in other facilities should alsobe considered for termination, thedecisional unit becomes the populationof all facilities considered. Further, if,for example, the regional manager andhis three immediate subordinatesjointly review the termination deci-sions, taking into account more thanone facility, the decisional unit be-comes the populations of all facilitiesconsidered.

(vii) This regulatory section is lim-ited to the requirements of section7(f)(1)(H) and is not intended to affectthe scope of discovery or of substantiveproceedings in the processing ofcharges of violation of the ADEA or inlitigation involving such charges.

(4) Presentation of information. (i)The information provided must be inwriting and must be written in a man-ner calculated to be understood by theaverage individual eligible to partici-pate.

(ii) Information regarding agesshould be broken down according tothe age of each person eligible or se-lected for the program and each personnot eligible or selected for the pro-gram. The use of age bands broaderthan one year (such as ‘‘age 20–30’’)does not satisfy this requirement.

(iii) In a termination of persons inseveral established grade levels and/orother established subcategories withina job category or job title, the informa-tion shall be broken down by gradelevel or other subcategory.

(iv) If an employer in its disclosurecombines information concerning bothvoluntary and involuntary termi-nations, the employer shall present theinformation in a manner that distin-guishes between voluntary and invol-untary terminations.

(v) If the terminees are selected froma subset of a decisional unit, the em-ployer must still disclose informationfor the entire population of thedecisional unit. For example, if the em-ployer decides that a 10% RIF in theAccounting Department will come


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from the accountants whose perform-ance is in the bottom one-third of theDivision, the employer still must dis-close information for all employees inthe Accounting Department, eventhose who are the highest rated.

(vi) An involuntary termination pro-gram in a decisional unit may takeplace in successive increments over aperiod of time. Special rules apply tothis situation. Specifically, informa-tion supplied with regard to the invol-untary termination program should becumulative, so that later terminees areprovided ages and job titles or job cat-egories, as appropriate, for all personsin the decisional unit at the beginningof the program and all persons termi-nated to date. There is no duty to sup-plement the information given to ear-lier terminees so long as the disclosure,at the time it is given, conforms to therequirements of this section.

(vii) The following example dem-onstrates one way in which the re-quired information could be presentedto the employees. (This example is notpresented as a prototype notificationagreement that automatically willcomply with the ADEA. Each informa-tion disclosure must be structuredbased upon the individual case, takinginto account the corporate structure,

the population of the decisional unit,and the requirements of section7(f)(1)(H) of the ADEA): Example: YCorporation lost a major constructioncontract and determined that it mustterminate 10% of the employees in theConstruction Division. Y decided tooffer all terminees $20,000 in severancepay in exchange for a waiver of allrights. The waiver provides the section7(f)(1)(H) of the ADEA information asfollows:

(A) The decisional unit is the Con-struction Division.

(B) All persons in the ConstructionDivision are eligible for the program.All persons who are being terminatedin our November RIF are selected forthe program.

(C) All persons who are being offeredconsideration under a waiver agree-ment must sign the agreement and re-turn it to the Personnel Office within45 days after receiving the waiver. Oncethe signed waiver is returned to thePersonnel Office, the employee has 7days to revoke the waiver agreement.

(D) The following is a listing of theages and job titles of persons in theConstruction Division who were andwere not selected for termination andthe offer of consideration for signing awaiver:

Job Title Age No. Se-lected

No. not se-lected

(1) Mechanical Engineers, I .............................................................. 25 ........................................... 21 4826 ........................................... 11 7363 ........................................... 4 1864 ........................................... 3 11

(2) Mechanical Engineers, II ............................................................. 28 ........................................... 3 1029 ........................................... 11 17Etc., for all ages

(3) Structural Engineers, I ................................................................. 21 ........................................... 5 8Etc., for all ages

(4) Structural Engineers, II ................................................................ 23 ........................................... 2 4Etc., for all ages

(5) Purchasing Agents ....................................................................... 26 ........................................... 10 11Etc., for all ages

(g) Waivers settling charges and law-suits. (1) Section 7(f)(2) of the ADEAprovides that:

A waiver in settlement of a charge filedwith the Equal Employment OpportunityCommission, or an action filed in court bythe individual or the individual’s representa-tive, alleging age discrimination of a kindprohibited under section 4 or 15 may not beconsidered knowing and voluntary unless ata minimum—

(A) Subparagraphs (A) through (E) of para-graph (1) have been met; and

(B) The individual is given a reasonable pe-riod of time within which to consider thesettlement agreement.

(2) The language in section 7(f)(2) ofthe ADEA, ‘‘discrimination of a kindprohibited under section 4 or 15’’ refersto allegations of age discrimination ofthe type prohibited by the ADEA.


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(3) The standards set out in para-graph (f) of this section for complyingwith the provisions of section 7(f)(1)(A)–(E) of the ADEA also will apply forpurposes of complying with the provi-sions of section 7(f)(2)(A) of the ADEA.

(4) The term ‘‘reasonable time withinwhich to consider the settlementagreement’’ means reasonable under allthe circumstances, including whetherthe individual is represented by coun-sel or has the assistance of counsel.

(5) However, while the time periodsunder section 7(f)(1) of the ADEA donot apply to subsection 7(f)(2) of theADEA, a waiver agreement under thissubsection that provides an employeethe time periods specified in section7(f)(1) of the ADEA will be considered‘‘reasonable’’ for purposes of section7(f)(2)(B) of the ADEA.

(6) A waiver agreement in compliancewith this section that is in settlementof an EEOC charge does not require theparticipation or supervision of EEOC.

(h) Burden of proof. In any disputethat may arise over whether any of therequirements, conditions, and cir-cumstances set forth in section 7(f) ofthe ADEA, subparagraph (A), (B), (C),(D), (E), (F), (G), or (H) of paragraph(1), or subparagraph (A) or (B) of para-graph (2), have been met, the party as-serting the validity of a waiver shallhave the burden of proving in a courtof competent jurisdiction that a waiverwas knowing and voluntary pursuantto paragraph (1) or (2) of section 7(f) ofthe ADEA.

(i) EEOC’s enforcement powers. (1) Sec-tion 7(f)(4) of the ADEA states:

No waiver agreement may affect the Com-mission’s rights and responsibilities to en-force [the ADEA]. No waiver may be used tojustify interfering with the protected rightof an employee to file a charge or participatein an investigation or proceeding conductedby the Commission.

(2) No waiver agreement may includeany provision prohibiting any indi-vidual from:

(i) Filing a charge or complaint, in-cluding a challenge to the validity ofthe waiver agreement, with EEOC, or

(ii) Participating in any investiga-tion or proceeding conducted by EEOC.

(3) No waiver agreement may includeany provision imposing any conditionprecedent, any penalty, or any other

limitation adversely affecting any indi-vidual’s right to:

(i) File a charge or complaint, includ-ing a challenge to the validity of thewaiver agreement, with EEOC, or

(ii) Participate in any investigationor proceeding conducted by EEOC.

(j) Effective date of this section. (1)This section is effective July 6, 1998.

(2) This section applies to waivers of-fered by employers on or after the ef-fective date specified in paragraph(j)(1) of this section.

(3) No inference is to be drawn fromthis section regarding the validity ofwaivers offered prior to the effectivedate.

(k) Statutory authority. The regula-tions in this section are legislative reg-ulations issued pursuant to section 9 ofthe ADEA and Title II of OWBPA.

[63 FR 30628, June 5, 1998]

§ 1625.23 Waivers of rights and claims:Tender back of consideration.

(a) An individual alleging that awaiver agreement, covenant not to sue,or other equivalent arrangement wasnot knowing and voluntary under theADEA is not required to tender backthe consideration given for that agree-ment before filing either a lawsuit or acharge of discrimination with EEOC orany state or local fair employmentpractices agency acting as an EEOC re-ferral agency for purposes of filing thecharge with EEOC. Retention of con-sideration does not foreclose a chal-lenge to any waiver agreement, cov-enant not to sue, or other equivalentarrangement; nor does the retentionconstitute the ratification of any waiv-er agreement, covenant not to sue, orother equivalent arrangement.

(b) No ADEA waiver agreement, cov-enant not to sue, or other equivalentarrangement may impose any condi-tion precedent, any penalty, or anyother limitation adversely affectingany individual’s right to challenge theagreement. This prohibition includes,but is not limited to, provisions requir-ing employees to tender back consider-ation received, and provisions allowingemployers to recover attorneys’ feesand/or damages because of the filing ofan ADEA suit. This rule is not intendedto preclude employers from recovering


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attorneys’ fees or costs specifically au-thorized under federal law.

(c) Restitution, recoupment, or setoff.(1) Where an employee successfullychallenges a waiver agreement, cov-enant not to sue, or other equivalentarrangement, and prevails on the mer-its of an ADEA claim, courts have thediscretion to determine whether an em-ployer is entitled to restitution,recoupment or setoff (hereinafter, ‘‘re-duction’’) against the employee’s mon-etary award. A reduction never can ex-ceed the amount recovered by the em-ployee, or the consideration the em-ployee received for signing the waiveragreement, covenant not to sue, orother equivalent arrangement, which-ever is less.

(2) In a case involving more than oneplaintiff, any reduction must be ap-plied on a plaintiff-by-plaintiff basis.No individual’s award can be reducedbased on the consideration received byany other person.

(d) No employer may abrogate its du-ties to any signatory under a waiveragreement, covenant not to sue, orother equivalent arrangement, even ifone or more of the signatories or theEEOC successfully challenges the va-lidity of that agreement under theADEA.

[65 FR 77446, Dec. 11, 2000]

PART 1626—PROCEDURES—AGEDISCRIMINATION IN EMPLOY-MENT ACT

Sec.1626.1 Purpose.1626.2 Terms defined in the Age Discrimina-

tion in Employment Act of 1967, asamended.

1626.3 Other definitions.1626.4 Information concerning alleged viola-

tions of the Act.1626.5 Where to submit complaints and

charges.1626.6 Form of charge.1626.7 Timeliness of charge.1626.8 Contents of charge; amendment of

charge.1626.9 Referral to and from State agencies;

referral States.1626.10 Agreements with State or local fair

employment practices agencies.1626.11 Notice of charge.1626.12 Conciliation efforts pursuant to sec-

tion 7(d) of the Act.1626.13 Withdrawal of charge.

1626.14 Right to inspect or copy data.1626.15 Commission enforcement.1626.16 Subpoenas.1626.17 Procedure for requesting an opinion

letter.1626.18 Effect of opinions and interpreta-

tions of the Commission.1626.19 Rules to be liberally construed.

AUTHORITY: Sec. 9, 81 Stat. 605, 29 U.S.C.628; sec. 2, Reorg. Plan No. 1 of 1978, 3 CFR,1978 Comp., p. 321.

SOURCE: 48 FR 140, Jan. 3, 1983, unless oth-erwise noted.

§ 1626.1 Purpose.The regulations set forth in this part

contain the procedures established bythe Equal Employment OpportunityCommission for carrying out its re-sponsibilities in the administrationand enforcement of the Age Discrimi-nation in Employment Act of 1967, asamended.

§ 1626.2 Terms defined in the Age Dis-crimination in Employment Act of1967, as amended.

The terms person, employer, employ-ment agency, labor organization, em-ployee, commerce, industry affecting com-merce, and State as used herein shallhave the meanings set forth in section11 of the Age Discrimination in Em-ployment Act, as amended.

§ 1626.3 Other definitions.For purpose of this part, the term the

Act shall mean the Age Discriminationin Employment Act of 1967, as amend-ed; the Commission shall mean theEqual Employment Opportunity Com-mission or any of its designated rep-resentatives; charge shall mean a state-ment filed with the Commission by oron behalf of an aggrieved person whichalleges that the named prospective de-fendant has engaged in or is about toengage in actions in violation of theAct; complaint shall mean informationreceived from any source, that is not acharge, which alleges that a namedprospective defendant has engaged inor is about to engage in actions in vio-lation of the Act; charging party meansthe person filing a charge; complainantmeans the person filing a complaint;and respondent means the person namedas a prospective defendant in a chargeor complaint, or as a result of a Com-mission-initiated investigation.


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§ 1626.4 Information concerning al-leged violations of the Act.

The Commission may, on its own ini-tiative, conduct investigations of em-ployers, employment agencies andlabor organizations, in accordance withthe powers vested in it pursuant to sec-tions 6 and 7 of the Act. The Commis-sion shall also receive information con-cerning alleged violations of the Act,including charges and complaints, fromany source. Where the information dis-closes a possible violation, the appro-priate Commission office may renderassistance in the filing of a charge. Theidentity of a complainant, confidentialwitness, or aggrieved person on whosebehalf a charge was filed will ordi-narily not be disclosed without priorwritten consent, unless necessary in acourt proceeding.

§ 1626.5 Where to submit complaintsand charges.

Complaints and charges may be sub-mitted in person, by telephone, or bymail to any of the District, Area orlocal Offices of the Commission, or tothe Washington Field Office, or at theHeadquarters of the Commission atWashington, DC, or with any des-ignated representative of the Commis-sion. The addresses of the Commis-sion’s District, Area and Local Officesappear at § 1610.4.

[48 FR 140, Jan. 3, 1983, as amended at 49 FR13025, Apr. 2, 1984; 54 FR 32063, Aug. 4, 1989]

§ 1626.6 Form of charge.A charge shall be in writing and shall

name the prospective respondent andshall generally allege the discrimina-tory act(s). Charges received in personor by telephone shall be reduced towriting.

§ 1626.7 Timeliness of charge.(a) Charges will not be rejected as un-

timely provided that they are notbarred by the statute of limitations asstated in section 6 of the Portal to Por-tal Act of 1947.

(b) Potential charging parties will beadvised that, pursuant to section 7(d)(1) and (2) of the Act, no civil suit maybe commenced by an individual until 60days after a charge has been filed onthe subject matter of the suit, and such

charge shall be filed with the Commis-sion or its designated agent within 180days of the alleged discriminatory ac-tion, or, in a case where the allegeddiscriminatory action occurs in a Statewhich has its own age discriminationlaw and authority administering thatlaw, within 300 days of the alleged dis-criminatory action, or 30 days after re-ceipt of notice of termination of Stateproceedings, whichever is earlier.

(c) For purposes of determining thedate of filing with the Commission, thefollowing applies:

(1) Charges filed by mail:(i) Date of postmark, if legible,(ii) Date of letter, if postmark is il-

legible,(iii) Date of receipt by Commission,

or its designated agent, if postmarkand letter date are illegible and/or can-not be accurately affixed;

(2) Written charges filed in person:Date of receipt;

(3) Oral charges filed in person or bytelephone, as reduced to writing: Dateof oral communication received byCommission.

§ 1626.8 Contents of charge; amend-ment of charge.

(a) In addition to the requirements of§ 1626.6, each charge should contain thefollowing:

(1) The full name, address and tele-phone number of the person makingthe charge;

(2) The full name and address of theperson against whom the charge ismade;

(3) A clear and concise statement ofthe facts, including pertinent dates,constituting the alleged unlawful em-ployment practices;

(4) If known, the approximate num-ber of employees of the prospective de-fendant employer or members of theprospective defendant labor organiza-tion.

(5) A statement disclosing whetherproceedings involving the alleged un-lawful employment practice have beencommenced before a State agencycharged with the enforcement of fairemployment practice laws and, if so,the date of such commencement andthe name of the agency.

(b) Notwithstanding the provisions ofparagraph (a) of this section, a charge


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is sufficient when the Commission re-ceives from the person making thecharge either a written statement orinformation reduced to writing by theCommission that conforms to the re-quirements of § 1626.6.

(c) A charge may be amended to clar-ify or amplify allegations made there-in. Such amendments and amendmentsalleging additional acts which con-stitute unlawful employment practicesrelated to or growing out of the subjectmatter of the original charge will re-late back to the date the charge wasfirst received. A charge that has beenso amended shall not again be referredto the appropriate State agency.

§ 1626.9 Referral to and from Stateagencies; referral States.

(a) The Commission may refer allcharges to any appropriate State agen-cy and will encourage State agencies torefer charges to the Commission inorder to assure that the prerequisitesfor private law suits, as set out in sec-tion 14(b) of the Act, are met. Chargesso referred shall be deemed to havebeen filed with the Commission in ac-cordance with the specifications con-tained in § 1626.7(b). The Commissionmay process any charge at any time,notwithstanding provisions for referralto and from appropriate State agen-cies.

(b) States to which all ADEA chargesmay be referred: Alaska, California,Connecticut, Delaware, District of Co-lumbia, Florida, Georgia, Guam, Ha-waii, Idaho, Illinois, Iowa, Kentucky,Maryland, Massachusetts, Michigan,Minnesota, Montana, Nebraska, Ne-vada, New Hampshire, New Jersey, NewMexico, New York, Oregon, Pennsyl-vania, Puerto Rico, South Carolina,Utah, Virgin Islands, West Virginia,and Wisconsin.

(c) States to which only specifiedclasses of charges are referred: Arizona,Colorado, Kansas, Maine, Ohio, RhodeIsland, South Dakota, and Washington.

§ 1626.10 Agreements with State orlocal fair employment practicesagencies.

(a) Pursuant to sections 6 and 7 of theADEA and section 11(b) of the FLSA,the Commission may enter into agree-ments with State or local fair employ-

ment practices agencies to cooperatein enforcement, technical assistance,research, or public informational ac-tivities, and may engage the services ofsuch agencies in processing charges as-suring the safeguard of the Federalrights of aggrieved persons.

(b) The Commission may enter intoagreements with State or local agen-cies which authorize such agencies toreceive charges and complaints pursu-ant to § 1626.5 and in accordance withthe specifications contained in §§ 1626.7and 1626.8.

(c) When a worksharing agreementwith a State agency is in effect, theState agency will act on certaincharges and the Commission willpromptly process charges which theState agency does not pursue. Chargesreceived by one agency under theagreement shall be deemed received bythe other agency for purposes of § 1626.7

§ 1626.11 Notice of charge.Upon receipt of a charge, the Com-

mission shall promptly notify the re-spondent that a charge has been filed.

§ 1626.12 Conciliation efforts pursuantto section 7(d) of the Act.

Upon receipt of a charge, the Com-mission shall promptly attempt toeliminate any alleged unlawful prac-tice by informal methods of concilia-tion, conference and persuasion. Uponfailure of such conciliation the Com-mission will notify the charging party.Such notification enables the chargingparty or any person aggrieved by thesubject matter of the charge to com-mence action to enforce their rightswithout waiting for the lapse of 60days.

§ 1626.13 Withdrawal of charge.Charging parties may request with-

drawal of a charge. Because the Com-mission has independent investigativeauthority, see § 1626.4, it may continueany investigation and may secure relieffor all affected persons notwith-standing a request by a charging partyto withdraw a charge.

§ 1626.14 Right to inspect or copy data.A person who submits data or evi-

dence to the Commission may retainor, on payment of lawfully prescribed


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costs, procure a copy or transcriptthereof, except that a witness may forgood cause be limited to inspection ofthe official transcript of his or her tes-timony.

§ 1626.15 Commission enforcement.(a) As provided in sections 9, 11, 16

and 17 of the Fair Labor Standards Actof 1938, as amended (29 U.S.C. 209, 211,216 and 217) (FLSA) and sections 6 and7 of this Act, the Commission and itsauthorized representatives may (1) in-vestigate and gather data; (2) enter andinspect establishments and records andmake transcripts thereof; (3) interviewemployees; (4) impose on persons sub-ject to the Act appropriate record-keeping and reporting requirements; (5)advise employers, employment agen-cies and labor organizations with re-gard to their obligations under the Actand any changes necessary in theirpolicies, practices and procedures toassure compliance with the Act; (6)subpoena witnesses and require theproduction of documents and other evi-dence; (7) supervise the payment ofamounts owing pursuant to section16(c) of the FLSA, and (8) institute ac-tion under section 16(c) or section 17 ofthe FLSA or both to obtain appro-priate relief.

(b) Whenever the Commission has areasonable basis to conclude that a vio-lation of the Act has occurred or willoccur, it may commence conciliationunder section 7(b) of the Act. The dateof issuance of written notice to the re-spondent of the Commission’s intent tobegin or continue conciliation shall de-termine when the statute of limita-tions is tolled pursuant to section7(e)(2) of the Act. Such notice will ordi-narily be issued in the form of a letterof violation; provided, however, thatfailure to issue a written violation let-ter shall in no instance be construed asa finding of no violation. The Commis-sion will ordinarily notify the respond-ent and aggrieved persons of its deter-mination. In the process of conductingany investigation or conciliation underthis Act, the identity of persons whohave provided information in con-fidence shall not be disclosed except inaccordance with § 1626.4. When the writ-ten notice prescribed above is issued,the statute of limitations shall be

tolled for a period of one year unless aconciliation agreement is obtained ear-lier. The tolling period pursuant to sec-tion 7(e)(2) is applicable to both Com-mission and private party litigation.

(c) Any agreement reached as a re-sult of efforts undertaken pursuant tothis section shall, as far as practicable,require the respondent to eliminate theunlawful practice(s) and provide appro-priate affirmative relief. Such agree-ment shall be reduced to writing andwill ordinarily be signed by the Com-mission’s delegated representative, therespondent, and the charging party, ifany. A copy of the signed agreementshall be sent to all the signatoriesthereto.

(d) Upon the failure of informal con-ciliation, conference and persuasionunder section 7(b) of the Act, the Com-mission may initiate and conduct liti-gation.

(e) The District Directors, the Wash-ington Field Office Director, and theDirector of the Office of Program Oper-ations or their designees, are herebydelegated authority to exercise thepowers enumerated in § 1626.15(a) (1)through (7) and (b) and (c). The GeneralCounsel or his/her designee is herebydelegated the authority to exercise thepowers in paragraph (a) of this sectionand at the direction of the Commissionto initiate and conduct litigation.

[48 FR 140, Jan. 3, 1983, as amended at 54 FR32063, Aug. 4, 1989; 54 FR 33503, Aug. 15, 1989]

§ 1626.16 Subpoenas.(a) To effectuate the purposes of the

Act the Commission shall have the au-thority to issue a subpoena requiring:



(3) Access to evidence for the purposeof examination and the right to copy.

(b) The power to issue subpoenas hasbeen delegated by the Commission,pursuant to section 6(a) of the Act, tothe General Counsel, the District Di-rectors, the Washington Field OfficeDirector, the Director of the Office ofProgram Operations, or their des-ignees. The subpoena shall state the


333


name, address and title of the issuer,identify the person or evidence subpoe-naed, the name of the person to whomthe subpoena is returnable, the date,time and place that testimony is to begiven or that documents are to be pro-vided or access provided.

(c) A subpoena issued by the Commis-sion or its designee pursuant to the Actis not subject to review or appeal.

(d) Upon the failure of any person tocomply with a subpoena issued underthis section, the Commission may uti-lize the provisions of sections 9 and 10of the Federal Trade Commission Act,15 U.S.C. 49 and 50, to compel compli-ance with the subpoena.

(e) Persons subpoenaed shall be enti-tled to the same fees and mileage thatare paid witnesses in the courts of theUnited States.

[48 FR 140, Jan. 3, 1983, as amended at 54 FR32063, Aug. 4, 1989]

§ 1626.17 Procedure for requesting anopinion letter.

(a) A request for an opinion lettershould be submitted in writing to theChairman, Equal Employment Oppor-tunity Commission, 1801 L Street NW.,Washington DC 20507, and shall con-tain:

(1) A concise statement of the issueson which an opinion is requested;

(2) As full a statement as possible ofrelevant facts and law; and

(3) The names and addresses of theperson making the request and otherinterested persons.

(b) Issuance of an opinion letter bythe Commission is discretionary.

(c) Informal advice. When the Com-mission, at its discretion, determinesthat it will not issue an opinion letteras defined in § 1626.18, the Commissionmay provide informal advice or guid-ance to the requestor. An informal let-ter of advice does not represent the for-mal position of the Commission anddoes not commit the Commission tothe views expressed therein. Any letterother than those defined in§ 1626.18(a)(1) will be considered a letterof advice and may not be relied uponby any employer within the meaning ofsection 10 of the Portal to Portal Actof 1947, incorporated into the Age Dis-

crimination in Employment Act of 1967through section 7(e)(1) of the Act.

[48 FR 140, Jan. 3, 1983, as amended at 54 FR32063, Aug. 4, 1989]

§ 1626.18 Effect of opinions and inter-pretations of the Commission.

(a) Section 10 of the Portal to PortalAct of 1947, incorporated into the AgeDiscrimination in Employment Act of1967 through section 7(e)(1) of the Act,provides that:

In any action or proceeding based on anyact or omission on or after the date of theenactment of this Act, no employer shall besubject to any liability or punishment * * *if he pleads and proves that the act or omis-sion complained of was in good faith in con-formity with and in reliance on any writtenadministrative regulations, order, ruling, ap-proval or interpretation * * * or any admin-istrative practice or enforcement policy of[the Commission].

The Commission has determined thatonly (1) a written document, entitled‘‘opinion letter,’’ signed by the LegalCounsel on behalf of and as approvedby the Commission, or (2) a writtendocument issued in the conduct of liti-gation, entitled ‘‘opinion letter,’’signed by the General Counsel on be-half of and as approved by the Commis-sion, or (3) matter published and spe-cifically designated as such in the FED-ERAL REGISTER, may be relied upon byany employer as a ‘‘written regulation,order, ruling, approval or interpreta-tion’’ or ‘‘evidence of any administra-tive practice or enforcement policy’’ ofthe Commission ‘‘with respect to theclass of employers to which he be-longs,’’ within the meaning of the stat-utory provisions quoted above.

(b) An opinion letter issued pursuantto paragraph (a)(1) of this section,when issued to the specific addressee,has no effect upon situations otherthan that of the specific addressee.

(c) When an opinion letter, as definedin paragraph (a)(1) of this section, is re-quested, the procedure stated in§ 1626.17 shall be followed.

§ 1626.19 Rules to be liberally con-strued.

(a) These rules and regulations shallbe liberally construed to effectuate thepurposes and provisions of this Act and


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any other acts administered by theCommission.

(b) Whenever the Commission re-ceives a charge or obtains informationrelating to possible violations of one ofthe statutes which it administers andthe charge or information reveals pos-sible violations of one or more of theother statutes which it administers,the Commission will treat such chargesor information in accordance with allsuch relevant statutes.

(c) Whenever a charge is filed underone statute and it is subsequently be-lieved that the alleged discriminationconstitutes an unlawful employmentpractice under another statute admin-istered and enforced by the Commis-sion, the charge may be so amendedand timeliness determined from thedate of filing of the original charge.

PART 1627—RECORDS TO BE MADEOR KEPT RELATING TO AGE: NO-TICES TO BE POSTED: ADMINIS-TRATIVE EXEMPTIONS

Subpart A—General

Sec.1627.1 Purpose and scope.

Subpart B—Records To Be Made or KeptRelating to Age; Notices To Be Posted

1627.2 Forms of records.1627.3 Records to be kept by employers.1627.4 Records to be kept by employment

agencies.1627.5 Records to be kept by labor organiza-

tions.1627.6 Availability of records for inspection.1627.7 Transcriptions and reports.1627.8–1627.9 [Reserved]1627.10 Notices to be posted.1627.11 Petitions for recordkeeping excep-

tions.

Subpart C—Administrative Exemptions

1627.15 Administrative exemptions; proce-dures.

1627.16 Specific exemptions.

Subpart D—Statutory Exemption

1627.17 Calculating the amount of qualifiedretirement benefits for purposes of theexemption for bona fide executives orhigh policymaking employees.

AUTHORITY: Sec. 7, 81 Stat. 604; 29 U.S.C.626; sec. 11, 52 Stat. 1066, 29 U.S.C. 211; sec. 12,

29 U.S.C. 631, Pub. L. 99–592, 100 Stat. 3342;sec. 2, Reorg. Plan No. 1 of 1978, 43 FR 19807.


Subpart A—General§ 1627.1 Purpose and scope.

(a) Section 7 of the Age Discrimina-tion in Employment Act of 1967 (here-inafter referred to in this part as theAct) empowers the Commission to re-quire the keeping of records which arenecessary or appropriate for the admin-istration of the Act in accordance withthe powers contained in section 11 ofthe Fair Labor Standards Act of 1938.Subpart B of this part sets forth therecordkeeping and posting require-ments which are prescribed by theCommission for employers, employ-ment agencies, and labor organizationswhich are subject to the Act. Referenceshould be made to section 11 of the Actfor definitions of the terms ‘‘em-ployer’’, ‘‘employment agency’’, and‘‘labor organization’’. General interpre-tations of the Act and of this part arepublished in part 1625 of this chapter.This part also reflects pertinent dele-gations of the Commission’s duties.

(b) Subpart C of this part sets forththe Commission’s rules under section 9of the Act providing that the Commis-sion may establish reasonable exemp-tions to and from any or all provisionsof the Act as it may find necessary andproper in the public interest.

(c) Subpart D of this part sets forththe Commission’s regulations issuedpursuant to section 12(c)(2) of the Act,providing that the Secretary of Labor,after consultation with the Secretaryof the Treasury, shall prescribe themanner of calculating the amount ofqualified retirement benefits for pur-poses of the exemption in section12(c)(1) of the Act.

[44 FR 38459, July 2, 1979, as amended at 44FR 66797, Nov. 21, 1979]

Subpart B—Records To Be Madeor Kept Relating to Age; No-tices To Be Posted

§ 1627.2 Forms of records.No particular order or form of

records is required by the regulations


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in this part 1627. It is required onlythat the records contain in some formthe information specified. If the infor-mation required is available in recordskept for other purposes, or can be ob-tained readily by recomputing or ex-tending data recorded in some otherform, no further records are required tobe made or kept on a routine basis bythis part 1627.

§ 1627.3 Records to be kept by employ-ers.

(a) Every employer shall make andkeep for 3 years payroll or otherrecords for each of his employees whichcontain:

(1) Name;(2) Address;(3) Date of birth;(4) Occupation;(5) Rate of pay, and(6) Compensation earned each week.(b)(1) Every employer who, in the

regular course of his business, makes,obtains, or uses, any personnel or em-ployment records related to the fol-lowing, shall, except as provided inparagraphs (b) (3) and (4) of this sec-tion, keep them for a period of 1 yearfrom the date of the personnel actionto which any records relate:

(i) Job applications, resumes, or anyother form of employment inquirywhenever submitted to the employer inresponse to his advertisement or othernotice of existing or anticipated jobopenings, including records pertainingto the failure or refusal to hire any in-dividual,

(ii) Promotion, demotion, transfer,selection for training, layoff, recall, ordischarge of any employee,

(iii) Job orders submitted by the em-ployer to an employment agency orlabor organization for recruitment ofpersonnel for job openings,

(iv) Test papers completed by appli-cants or candidates for any positionwhich disclose the results of any em-ployer-administered aptitude or otheremployment test considered by the em-ployer in connection with any per-sonnel action,

(v) The results of any physical exam-ination where such examination is con-sidered by the employer in connectionwith any personnel action,

(vi) Any advertisements or notices tothe public or to employees relating tojob openings, promotions, training pro-grams, or opportunities for overtimework.

(2) Every employer shall keep on fileany employee benefit plans such aspension and insurance plans, as well ascopies of any seniority systems andmerit systems which are in writing, forthe full period the plan or system is ineffect, and for at least 1 year after itstermination. If the plan or system isnot in writing, a memorandum fullyoutlining the terms of such plan or sys-tem and the manner in which it hasbeen communicated to the affected em-ployees, together with notations relat-ing to any changes or revisions there-to, shall be kept on file for a like pe-riod.

(3) When an enforcement action iscommenced under section 7 of the Actregarding a particular applicant or em-ployee, the Commission or its author-ized representative shall require theemployer to retain any record requiredto be kept under paragraph (b) (1) or (2)of this section which is relative to suchaction until the final disposition there-of.



[44 FR 38459, July 2, 1979, as amended at 46FR 63268, Dec. 31, 1981; 56 FR 35756, July 26,1991]

§ 1627.4 Records to be kept by employ-ment agencies.

(a)(1) Every employment agencywhich, in the regular course of its busi-ness, makes, obtains, or uses, anyrecords related to the following, shall,except as provided in paragraphs (a) (2)and (3) of this section, keep them for aperiod of 1 year from the date of the ac-tion to which the records relate:

(i) Placements;(ii) Referrals, where an individual is

referred to an employer for a known orreasonably anticipated job opening;

(iii) Job orders from employers seek-ing individuals for job openings;

(iv) Job applications, resumes, or anyother form of employment inquiry orrecord of any individual which identi-fies his qualifications for employment,


336


whether for a known job opening at thetime of submission or for future refer-ral to an employer;

(v) Test papers completed by appli-cants or candidates for any positionwhich disclose the results of any agen-cy-administered aptitude or other em-ployment test considered by the agen-cy in connection with any referrals;

(vi) Advertisements or notices rel-ative to job openings.

(2) When an enforcement action iscommenced under section 7 of the Actregarding a particular applicant, theCommission or its authorized rep-resentative shall require the employ-ment agency to retain any record re-quired to be kept under paragraph(a)(1) of this section which is relativeto such action until the final disposi-tion thereof.

(b) Whenever an employment agencyhas an obligation as an ‘‘employer’’ ora ‘‘labor organization’’ under the Act,the employment agency must alsocomply with the recordkeeping re-quirements set forth in § 1627.3 or§ 1627.5, as appropriate.




§ 1627.5 Records to be kept by labororganizations.

(a) Every labor organization shallkeep current records identifying itsmembers by name, address, and date ofbirth.

(b) Every labor organization shall,except as provided in paragraph (c) ofthis section, keep for a period of 1 yearfrom the making thereof, a record ofthe name, address, and age of any indi-vidual seeking membership in the orga-nization. An individual seeking mem-bership is considered to be a personwho files an application for member-ship or who, in some other manner, in-dicates a specific intention to be con-sidered for membership, but does notinclude any individual who is servingfor a stated limited probationary pe-riod prior to permanent employmentand formal union membership. A per-son who merely makes an inquiry

about the labor organization or, for ex-ample, about its general program, isnot considered to be an individualseeking membership in a labor organi-zation.

(c) When an enforcement action iscommenced under section 7 of the Actregarding a labor organization, theCommission or its authorized rep-resentative shall require the labor or-ganization to retain any record re-quired to be kept under paragraph (b)of this section which is relative to suchaction until the final disposition there-of.

(d) Whenever a labor organizationhas an obligation as an ‘‘employer’’ oras an ‘‘employment agency’’ under theAct, the labor organization must alsocomply with the recordkeeping re-quirements set forth in § 1627.3 or§ 1627.4, as appropriate.




§ 1627.6 Availability of records for in-spection.

(a) Place records are to be kept. Therecords required to be kept by this partshall be kept safe and accessible at theplace of employment or business atwhich the individual to whom they re-late is employed or has applied for em-ployment or membership, or at one ormore established central recordkeepingoffices.

(b) Inspection of records. All recordsrequired by this part to be kept shallbe made available for inspection andtranscription by authorized representa-tives of the Commission during busi-ness hours generally observed by theoffice at which they are kept or in thecommunity generally. Where recordsare maintained at a central record-keeping office pursuant to paragraph(a) of this section, such records shall bemade available at the office at whichthey would otherwise be required to bekept within 72 hours following request


337


from the Commission or its authorizedrepresentative.




§ 1627.7 Transcriptions and reports.Every person required to maintain

records under the Act shall make suchextension, recomputation or tran-scriptions of his records and shall sub-mit such reports concerning actionstaken and limitations and classifica-tions of individuals set forth in recordsas the Commission or its authorizedrepresentative may request in writing.




§§ 1627.8–1627.9 [Reserved]

§ 1627.10 Notices to be posted.Every employer, employment agen-

cy, and labor organization which hasan obligation under the Age Discrimi-nation in Employment Act of 1967 shallpost and keep posted in conspicuousplaces upon its premises the notice per-taining to the applicability of the Actprescribed by the Commission or itsauthorized representative. Such a no-tice must be posted in prominent andaccessible places where it can readilybe observed by employees, applicantsfor employment and union members.

§ 1627.11 Petitions for recordkeepingexceptions.

(a) Submission of petitions for relief.Each employer, employment agency, orlabor organization who for good causewishes to maintain records in a mannerother than required in this part, or tobe relieved of preserving certainrecords for the period or periods pre-scribed in this part, may submit inwriting a petition to the Commissionrequesting such relief setting forth thereasons therefor and proposing alter-native recordkeeping or record-reten-tion procedures.

(b) Action on petitions. If, no review ofthe petition and after completion ofany necessary or appropriate investiga-tion supplementary thereto, the Com-mission shall find that the alternativeprocedure proposed, if granted, will nothamper or interfere with the enforce-ment of the Act, and will be of equiva-lent usefulness in its enforcement, theCommission may grant the petitionsubject to such conditions as it maydetermine appropriate and subject torevocation. Whenever any relief grant-ed to any person is sought to be re-voked for failure to comply with theconditions of the Commission, thatperson shall be notified in writing ofthe facts constituting such failure andafforded an opportunity to achieve ordemonstrate compliance.

(c) Compliance after submission of peti-tions. The submission of a petition orany delay of the Commission in actingupon such petition shall not relieveany employer, employment agency, orlabor organization from any obliga-tions to comply with this part. How-ever, the Commission shall give noticeof the denial of any petition with duepromptness.

Subpart C—AdministrativeExemptions

§ 1627.15 Administrative exemptions;procedures.

(a) Section 9 of the Act provides that,

In accordance with the provisions of sub-chapter II of chapter 5, of title 5, UnitedStates Code, the Secretary of Labor * * *may establish such reasonable exemptions toand from any or all provisions of this Act ashe may find necessary and proper in the pub-lic interest.

(b) The authority conferred on theCommission by section 9 of the Act toestablish reasonable exemptions will beexercised with caution and due regardfor the remedial purpose of the statuteto promote employment of older per-sons based on their ability rather thanage and to prohibit arbitrary age dis-crimination in employment. Adminis-trative action consistent with thisstatutory purpose may be taken underthis section, with or without a requesttherefor, when found necessary andproper in the public interest in accord-ance with the statutory standards. No


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formal procedures have been prescribedfor requesting such action. However, areasonable exemption from the Act’sprovisions will be granted only if it isdecided, after notice published in theFEDERAL REGISTER giving all inter-ested persons an opportunity topresent data, views, or arguments, thata strong and affirmative showing hasbeen made that such exemption is infact necessary and proper in the publicinterest. Request for such exemptionshall be submitted in writing to theCommission.

§ 1627.16 Specific exemptions.

(a) Pursuant to the authority con-tained in section 9 of the Act and in ac-cordance with the procedure providedtherein and in § 1627.15(b) of this part,it has been found necessary and properin the public interest to exempt fromall prohibitions of the Act all activitiesand programs under Federal contractsor grants, or carried out by the publicemployment services of the severalStates, designed exclusively to provideemployment for, or to encourage theemployment of, persons with specialemployment problems, including em-ployment activities and programsunder the Manpower Development andTraining Act of 1962, as amended, andthe Economic Opportunity Act of 1964,as amended, for persons among thelong-term unemployed, handicapped,members of minority groups, olderworkers, or youth. Questions con-cerning the application of this exemp-tion shall be referred to the Commis-sion for decision.

(b) Any employer, employment agen-cy, or labor organization the activitiesof which are exempt from the prohibi-tions of the Act under paragraph (a) ofthis section shall maintain and pre-serve records containing the same in-formation and data that is required ofemployers, employment agencies, andlabor organizations under §§ 1627.3,1627.4, and 1627.5, respectively.

[44 FR 38459, July 2, 1979, as amended at 52FR 32296, Aug. 27, 1987; 55 FR 24078, June 14,1990; 57 FR 4158, Feb. 4, 1992]

Subpart D—Statutory Exemption

§ 1627.17 Calculating the amount ofqualified retirement benefits forpurposes of the exemption for bonafide executives or high policy-making employees.

(a) Section 12(c)(1) of the Act, addedby the 1978 amendments and amendedin 1984 and 1986, provides:

Nothing in this Act shall be construed toprohibit compulsory retirement of any em-ployee who has attained 65 years of age, andwho, for the 2-year period immediately be-fore retirement, is employed in a bona fideexecutive or high policymaking position, ifsuch employee is entitled to an immediatenonforfeitable annual retirement benefitfrom a pension, profit-sharing, savings, ordeferred compensation plan, or any combina-tion of such plans, of the employer of suchemployee, which equals, in the aggregate, atleast $44,000.

The Commission’s interpretative state-ments regarding this exemption are setforth in section 1625 of this chapter.

(b) Section 12(c)(2) of the Act pro-vides:

In applying the retirement benefit test ofparagraph (a) of this subsection, if any suchretirement benefit is in a form other than astraight life annuity (with no ancillary bene-fits), or if employees contribute to any suchplan or make rollover contributions, suchbenefit shall be adjusted in accordance withregulations prescribed by the Commission,after consultation with the Secretary of theTreasury, so that the benefit is the equiva-lent of a straight life annuity (with no ancil-lary benefits) under a plan to which employ-ees do not contribute and under which norollover contributions are made.

(c)(1) The requirement that an em-ployee be entitled to the equivalent ofa $44,000 straight life annuity (with noancillary benefits) is statisfied in anycase where the employee has the optionof receiving, during each year of his orher lifetime following retirement, anannual payment of at least $44,000, orperiodic payments on a more frequentbasis which, in the aggregate, equal atleast $44,000 per year: Provided, how-ever, that the portion of the retirementincome figure attributable to SocialSecurity, employee contributions, roll-over contributions and contributions of


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prior employers is excluded in the man-ner described in paragraph (e) of thissection. (A retirement benefit whichexcludes these amounts is sometimesreferred to herein as a ‘‘qualified’’ re-tirement benefit.)

(2) The requirment is also met wherethe employee has the option of receiv-ing, upon retirement, a lump sum pay-ment with which it is possible to pur-chase a single life annuity (with no an-cillary benefits) yielding at least$44,000 per year as adjusted.

(3) The requirement is also satisfiedwhere the employee is entitled to re-ceive, upon retirement, benefits whoseaggregate value, as of the date of theemployee’s retirement, with respect tothose payments which are scheduled tobe made within the period of life ex-pectancy of the employee, is $44,000 peryear as adjusted.

(4) Where an employee has one ormore of the options described in para-graphs (c)(1) through (3) of this section,but instead selects another option (oroptions), the test is also met. On theother hand, where an employee has nochoice but to have certain benefits pro-vided after his or her death, the valueof these benefits may not be includedin this determination.

(5) The determination of the value ofthose benefits which may be countedtowards the $44,000 requirement mustbe made on the basis of reasonable ac-tuarial assumptions with respect tomortality and interest. For purposes ofexcluding from this determination anybenefits which are available only afterdeath, it is not necessary to determinethe life expectancy of each person onan individual basis. A reasonable actu-arial assumption with respect to mor-tality will suffice.

(6) The benefits computed underparagraphs (c)(1), (2) and (3) of this sec-tion shall be aggregated for purposes ofdetermining whether the $44,000 re-quirement has been met.

(d) The only retirement benefitswhich may be counted towards the$44,000 annual benefit are those from apension, profit-sharing, savings, or de-ferred compensation plan, or any com-bination of such plans. Such plans in-clude, but are not limited to, stockbonus, thrift and simplified employeepensions. The value of benefits from

any other employee benefit plans, suchas health or life insurance, may not becounted.

(e) In calculating the value of a pen-sion, profit-sharing, savings, or de-ferred compensation plan (or any com-bination of such plans), amounts at-tributable to Social Security, em-ployee contributions, contributions ofprior employers, and rollover contribu-tions must be excluded. Specific rulesare set forth below.

(1) Social Security. Amounts attrib-utable to Social Security must be ex-cluded. Since these amounts are read-ily determinable, no specific rules aredeemed necessary.

(2) Employee contributions. Amountsattributable to employee contributionsmust be excluded. The regulations gov-erning this requirement are based onsection 411(c) of the Internal RevenueCode and Treasury Regulations there-under (§ 1.411(c)–(1)), relating to the al-location of accrued benefits betweenemployer and employee contributions.Different calculations are needed to de-termine the amount of employee con-tributions, depending upon whether theretirement income plan is a definedcontribution plan or a defined benefitplan. Defined contribution plans (alsoreferred to as individual account plans)generally provide that each participanthas an individual account and the par-ticipant’s benefits are based solely onthe account balance. No set benefit ispromised in defined contribution plans,and the final amount is a result notonly of the actual contributions, butalso of other factors, such as invest-ment gains and losses. Any retirementincome plan which is not an individualaccount plan is a defined benefit plan.Defined benefit plans generally providea definitely determinable benefit, byspecifying either a flat monthly pay-ment or a schedule of payments basedon a formula (frequently involving sal-ary and years of service), and they arefunded according to actuarial prin-ciples over the employee’s period ofparticipation.

(i) Defined contribution plans—(A) Sep-arate accounts maintained. If a separateaccount is maintained with respect toan employee’s contributions and all in-come, expenses, gains and losses attrib-utable thereto, the balance in such an


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account represents the amount attrib-utable to employee contributions.

(B) Separate accounts not maintained.If a separate account is not maintainedwith respect to an employee’s contribu-tions and the income, expenses, gainsand losses attributable thereto, theproportion of the total benefit attrib-utable to employee contributions is de-termined by multiplying that benefitby a fraction:

(1) The numerator of which is thetotal amount of the employee’s con-tributions under the plan (less with-drawals), and

(2) The denominator of which is thesum of the numerator and the totalcontributions made under the plan bythe employer on behalf of the employee(less withdrawals).

Example: A defined contribution plan doesnot maintain separate accounts for employeecontributions. An employee’s annual retire-ment benefit under the plan is $40,000. Theemployee has contributed $96,000 and the em-ployer has contributed $144,000 to the em-ployee’s individual account; no withdrawalshave been made. The amount of the $40,000annual benefit attributable to employee con-tributions is $40,000×$96,000/$96,000+$144,000=$16,000. Hence the employer’sshare of the $40,000 annual retirement benefitis $40,000 minus $16,000 or $24,000—too low tofall within the exemption.

(ii) Defined benefit plans—(A) Separateaccounts maintained. If a separate ac-count is maintained with respect to anemployee’s contributions and all in-come, expenses, gains and losses attrib-utable thereto, the balance in such anaccount represents the amount attrib-utable to employee contributions.

(B) Separate accounts not maintained.If a separate account is not maintainedwith respect to an employee’s contribu-tions and the income, expenses, gainsand losses attributable thereto, all ofthe contributions made by an employeemust be converted actuarially to a sin-gle life annuity (without ancillary ben-efits) commencing at the age of forcedretirement. An employee’s accumu-lated contributions are the sum of allcontributions (mandatory and, if notseparately accounted for, voluntary)made by the employee, together withinterest on the sum of all such con-tributions compounded annually at therate of 5 percent per annum from thetime each such contribution was made

until the date of retirement. Provided,however, That prior to the date anyplan became subject to section 411(c) ofthe Internal Revenue Code, interestwill be credited at the rate (if any)specified in the plan. The amount ofthe employee’s accumulated contribu-tion described in the previous sentencemust be multiplied by an ‘‘appropriateconversion factor’’ in order to convertit to a single life annuity (without an-cillary benefits) commencing at theage of actual retirement. The appro-priate conversion factor depends uponthe age of retirement. In accordancewith Rev. Rul. 76–47, 1976–2 C.B. 109, thefollowing conversion factors shall beused with respect to the specified re-tirement ages:

Retirement ageConversionfactor per-

cent

65 through 66 ...................................................... 1067 through 68 ...................................................... 1169 ......................................................................... 12

Example: An employee is scheduled to re-ceive a pension from a defined benefit plan of$50,000 per year. Over the years he has con-tributed $150,000 to the plan, and at age 65this amount, when contributions have beencompounded at appropriate annual interestrates, is equal to $240,000. In accordance withRev. Rul. 76–47, 10 percent is an appropriateconversion factor. When the $240,000 is multi-plied by this conversion factor, the productis $24,000, which represents that part of the$50,000 annual pension payment which is at-tributable to employee contributions. Thedifference—$26,000—represents the employ-er’s contribution, which is too low to meetthe test in the exemption.

(3) Contributions of prior employers.Amounts attributable to contributionsof prior employers must be excluded.

(i) Current employer distinguished fromprior employers. Under the section 12(c)exemption, for purposes of excludingcontributions of prior employers, aprior employer is every previous em-ployer of the employee except thoseprevious employers which are membersof a ‘‘controlled group of corporations’’with, or ‘‘under common control’’ with,the employer which forces the em-ployee to retire, as those terms areused in sections 414 (b) and 414(c) of theInternal Revenue Code, as modified bysection 414(h) (26 U.S.C. 414(b), (c) and(h)).


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(ii) Benefits attributable to current em-ployer and to prior employers. Where thecurrent employer maintains or contrib-utes to a plan which is separate fromplans maintained or contributed to byprior employers, the amount of the em-ployee’s benefit attributable to thoseprior employers can be readily deter-mined. However, where the current em-ployer maintains or contributes to thesame plan as prior employers, the fol-lowing rule shall apply. The benefit at-tributable to the current employershall be the total benefit received bythe employee, reduced by the benefitthat the employee would have receivedfrom the plan if he or she had neverworked for the current employer. Forpurposes of this calculation, it shall beassumed that all benefits have alwaysbeen vested, even if benefits accrued asa result of service with a prior em-ployer had not in fact been vested.

(4) Rollover contributions. Amounts at-tributable to rollover contributionsmust be excluded. For purposes of§ 1627.17(e), a rollover contribution (asdefined in sections 402(a)(5), 403(a)(4),408(d)(3) and 409(b)(3)(C) of the InternalRevenue Code) shall be treated as anemployee contribution. These amountshave already been excluded as a resultof the computations set forth in§ 1627.17(e)(2). Accordingly, no separatecalculation is necessary to complywith this requirement.

(Sec. 12(c)(1) of the Age Discrimination InEmployment Act of 1967, as amended by sec.802(c)(1) of the Older Americans Act Amend-ments of 1984, Pub. L. 98–459, 98 Stat. 1792))

[44 FR 66797, Nov. 21, 1979, as amended at 50FR 2544, Jan. 17, 1985; 53 FR 5973, Feb. 29,1988]

PART 1630—REGULATIONS TO IM-PLEMENT THE EQUAL EMPLOY-MENT PROVISIONS OF THEAMERICANS WITH DISABILITIESACT

Sec.1630.1 Purpose, applicability, and construc-

tion.1630.2 Definitions.1630.3 Exceptions to the definitions of ‘‘Dis-

ability’’ and ‘‘Qualified Individual with aDisability.’’

1630.4 Discrimination prohibited.

1630.5 Limiting, segregating, andclassifying.

1630.6 Contractual or other arrangements.1630.7 Standards, criteria, or methods of ad-

ministration.1630.8 Relationship or association with an

individual with a disability.1630.9 Not making reasonable accommoda-

tion.1630.10 Qualification standards, tests, and

other selection criteria.1630.11 Administration of tests.1630.12 Retaliation and coercion.1630.13 Prohibited medical examinations

and inquiries.1630.14 Medical examinations and inquiries

specifically permitted.1630.15 Defenses.1630.16 Specific activities permitted.

APPENDIX TO PART 1630—INTERPRETIVE GUID-ANCE ON TITLE I OF THE AMERICANS WITH

DISABILITIES ACT



§ 1630.1 Purpose, applicability, andconstruction.

(a) Purpose. The purpose of this partis to implement title I of the Ameri-cans with Disabilities Act (42 U.S.C.12101, et seq.) (ADA), requiring equalemployment opportunities for qualifiedindividuals with disabilities, and sec-tions 3(2), 3(3), 501, 503, 506(e), 508, 510,and 511 of the ADA as those sectionspertain to the employment of qualifiedindividuals with disabilities.

(b) Applicability. This part applies to‘‘covered entities’’ as defined at§ 1630.2(b).

(c) Construction—(1) In general. Ex-cept as otherwise provided in this part,this part does not apply a lesser stand-ard than the standards applied undertitle V of the Rehabilitation Act of 1973(29 U.S.C. 790–794a), or the regulationsissued by Federal agencies pursuant tothat title.

(2) Relationship to other laws. Thispart does not invalidate or limit theremedies, rights, and procedures of anyFederal law or law of any State or po-litical subdivision of any State or ju-risdiction that provides greater orequal protection for the rights of indi-viduals with disabilities than are af-forded by this part.


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§ 1630.2 Definitions.(a) Commission means the Equal Em-

ployment Opportunity Commission es-tablished by section 705 of the CivilRights Act of 1964 (42 U.S.C. 2000e–4).

(b) Covered Entity means an em-ployer, employment agency, labor or-ganization, or joint labor managementcommittee.

(c) Person, labor organization, employ-ment agency, commerce and industry af-fecting commerce shall have the samemeaning given those terms in section701 of the Civil Rights Act of 1964 (42U.S.C. 2000e).

(d) State means each of the severalStates, the District of Columbia, theCommonwealth of Puerto Rico, Guam,American Samoa, the Virgin Islands,the Trust Territory of the Pacific Is-lands, and the Commonwealth of theNorthern Mariana Islands.

(e) Employer—(1) In general. The termemployer means a person engaged in anindustry affecting commerce who has15 or more employees for each workingday in each of 20 or more calendarweeks in the current or preceding cal-endar year, and any agent of such per-son, except that, from July 26, 1992through July 25, 1994, an employermeans a person engaged in an industryaffecting commerce who has 25 or moreemployees for each working day ineach of 20 or more calendar weeks inthe current or preceding year and anyagent of such person.

(2) Exceptions. The term employerdoes not include—

(i) The United States, a corporationwholly owned by the government of theUnited States, or an Indian tribe; or

(ii) A bona fide private membershipclub (other than a labor organization)that is exempt from taxation undersection 501(c) of the Internal RevenueCode of 1986.

(f) Employee means an individual em-ployed by an employer.

(g) Disability means, with respect toan individual—

(1) A physical or mental impairmentthat substantially limits one or moreof the major life activities of such indi-vidual;

(2) A record of such an impairment;or

(3) Being regarded as having such animpairment.

(See § 1630.3 for exceptions to this defi-nition).

(h) Physical or mental impairmentmeans:

(1) Any physiological disorder, orcondition, cosmetic disfigurement, oranatomical loss affecting one or moreof the following body systems: neuro-logical, musculoskeletal, special senseorgans, respiratory (including speechorgans), cardiovascular, reproductive,digestive, genito-urinary, hemic andlymphatic, skin, and endocrine; or

(2) Any mental or psychological dis-order, such as mental retardation, or-ganic brain syndrome, emotional ormental illness, and specific learningdisabilities.

(i) Major Life Activities means func-tions such as caring for oneself, per-forming manual tasks, walking, seeing,hearing, speaking, breathing, learning,and working.

(j) Substantially limits—(1) The termsubstantially limits means:

(i) Unable to perform a major life ac-tivity that the average person in thegeneral population can perform; or

(ii) Significantly restricted as to thecondition, manner or duration underwhich an individual can perform a par-ticular major life activity as comparedto the condition, manner, or durationunder which the average person in thegeneral population can perform thatsame major life activity.

(2) The following factors should beconsidered in determining whether anindividual is substantially limited in amajor life activity:

(i) The nature and severity of the im-pairment;

(ii) The duration or expected dura-tion of the impairment; and

(iii) The permanent or long term im-pact, or the expected permanent orlong term impact of or resulting fromthe impairment.

(3) With respect to the major life ac-tivity of working—

(i) The term substantially limits meanssignificantly restricted in the abilityto perform either a class of jobs or abroad range of jobs in various classesas compared to the average person hav-ing comparable training, skills andabilities. The inability to perform a


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single, particular job does not con-stitute a substantial limitation in themajor life activity of working.

(ii) In addition to the factors listed inparagraph (j)(2) of this section, the fol-lowing factors may be considered in de-termining whether an individual is sub-stantially limited in the major life ac-tivity of ‘‘working’’:

(A) The geographical area to whichthe individual has reasonable access;

(B) The job from which the individualhas been disqualified because of an im-pairment, and the number and types ofjobs utilizing similar training, knowl-edge, skills or abilities, within thatgeographical area, from which the indi-vidual is also disqualified because ofthe impairment (class of jobs); and/or

(C) The job from which the individualhas been disqualified because of an im-pairment, and the number and types ofother jobs not utilizing similar train-ing, knowledge, skills or abilities,within that geographical area, fromwhich the individual is also disquali-fied because of the impairment (broadrange of jobs in various classes).

(k) Has a record of such impairmentmeans has a history of, or has beenmisclassified as having, a mental orphysical impairment that substantiallylimits one or more major life activi-ties.

(l) Is regarded as having such an im-pairment means:

(1) Has a physical or mental impair-ment that does not substantially limitmajor life activities but is treated by acovered entity as constituting suchlimitation;

(2) Has a physical or mental impair-ment that substantially limits majorlife activities only as a result of the at-titudes of others toward such impair-ment; or

(3) Has none of the impairments de-fined in paragraph (h) (1) or (2) of thissection but is treated by a covered en-tity as having a substantially limitingimpairment.

(m) Qualified individual with a dis-ability means an individual with a dis-ability who satisfies the requisite skill,experience, education and other job-re-lated requirements of the employmentposition such individual holds or de-sires, and who, with or without reason-able accommodation, can perform the

essential functions of such position.(See § 1630.3 for exceptions to this defi-nition).

(n) Essential functions—(1) In general.The term essential functions means thefundamental job duties of the employ-ment position the individual with adisability holds or desires. The term‘‘essential functions’’ does not includethe marginal functions of the position.

(2) A job function may be consideredessential for any of several reasons, in-cluding but not limited to the fol-lowing:

(i) The function may be essential be-cause the reason the position exists isto perform that function;

(ii) The function may be essential be-cause of the limited number of employ-ees available among whom the per-formance of that job function can bedistributed; and/or

(iii) The function may be highly spe-cialized so that the incumbent in theposition is hired for his or her expertiseor ability to perform the particularfunction.

(3) Evidence of whether a particularfunction is essential includes, but isnot limited to:

(i) The employer’s judgment as towhich functions are essential;

(ii) Written job descriptions preparedbefore advertising or interviewing ap-plicants for the job;

(iii) The amount of time spent on thejob performing the function;

(iv) The consequences of not requir-ing the incumbent to perform the func-tion;

(v) The terms of a collective bar-gaining agreement;

(vi) The work experience of past in-cumbents in the job; and/or

(vii) The current work experience ofincumbents in similar jobs.

(o) Reasonable accommodation. (1) Theterm reasonable accommodation means:

(i) Modifications or adjustments to ajob application process that enable aqualified applicant with a disability tobe considered for the position suchqualified applicant desires; or

(ii) Modifications or adjustments tothe work environment, or to the man-ner or circumstances under which theposition held or desired is customarily


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performed, that enable a qualified indi-vidual with a disability to perform theessential functions of that position; or

(iii) Modifications or adjustmentsthat enable a covered entity’s em-ployee with a disability to enjoy equalbenefits and privileges of employmentas are enjoyed by its other similarlysituated employees without disabil-ities.

(2) Reasonable accommodation may in-clude but is not limited to:

(i) Making existing facilities used byemployees readily accessible to and us-able by individuals with disabilities;and

(ii) Job restructuring; part-time ormodified work schedules; reassignmentto a vacant position; acquisition ormodifications of equipment or devices;appropriate adjustment or modifica-tions of examinations, training mate-rials, or policies; the provision of quali-fied readers or interpreters; and othersimilar accommodations for individ-uals with disabilities.

(3) To determine the appropriate rea-sonable accommodation it may be nec-essary for the covered entity to ini-tiate an informal, interactive processwith the qualified individual with adisability in need of the accommoda-tion. This process should identify theprecise limitations resulting from thedisability and potential reasonable ac-commodations that could overcomethose limitations.

(p) Undue hardship—(1) In general.Undue hardship means, with respect tothe provision of an accommodation,significant difficulty or expense in-curred by a covered entity, when con-sidered in light of the factors set forthin paragraph (p)(2) of this section.

(2) Factors to be considered. In deter-mining whether an accommodationwould impose an undue hardship on acovered entity, factors to be consideredinclude:

(i) The nature and net cost of the ac-commodation needed under this part,taking into consideration the avail-ability of tax credits and deductions,and/or outside funding;

(ii) The overall financial resources ofthe facility or facilities involved in theprovision of the reasonable accommo-dation, the number of persons em-

ployed at such facility, and the effecton expenses and resources;

(iii) The overall financial resourcesof the covered entity, the overall sizeof the business of the covered entitywith respect to the number of its em-ployees, and the number, type and lo-cation of its facilities;

(iv) The type of operation or oper-ations of the covered entity, includingthe composition, structure and func-tions of the workforce of such entity,and the geographic separateness andadministrative or fiscal relationship ofthe facility or facilities in question tothe covered entity; and

(v) The impact of the accommodationupon the operation of the facility, in-cluding the impact on the ability ofother employees to perform their du-ties and the impact on the facility’sability to conduct business.

(q) Qualification standards means thepersonal and professional attributes in-cluding the skill, experience, edu-cation, physical, medical, safety andother requirements established by acovered entity as requirements whichan individual must meet in order to beeligible for the position held or desired.

(r) Direct Threat means a significantrisk of substantial harm to the healthor safety of the individual or othersthat cannot be eliminated or reducedby reasonable accommodation. The de-termination that an individual poses a‘‘direct threat’’ shall be based on an in-dividualized assessment of the individ-ual’s present ability to safely performthe essential functions of the job. Thisassessment shall be based on a reason-able medical judgment that relies onthe most current medical knowledgeand/or on the best available objectiveevidence. In determining whether anindividual would pose a direct threat,the factors to be considered include:

(1) The duration of the risk;(2) The nature and severity of the po-

tential harm;(3) The likelihood that the potential

harm will occur; and(4) The imminence of the potential

harm.


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§ 1630.3 Exceptions to the definitionsof ‘‘Disability’’ and ‘‘Qualified Indi-vidual with a Disability.’’

(a) The terms disability and qualifiedindividual with a disability do not in-clude individuals currently engaging inthe illegal use of drugs, when the cov-ered entity acts on the basis of suchuse.

(1) Drug means a controlled sub-stance, as defined in schedules Ithrough V of section 202 of the Con-trolled Substances Act (21 U.S.C 812)

(2) Illegal use of drugs means the useof drugs the possession or distributionof which is unlawful under the Con-trolled Substances Act, as periodicallyupdated by the Food and Drug Admin-istration. This term does not includethe use of a drug taken under the su-pervision of a licensed health care pro-fessional, or other uses authorized bythe Controlled Substances Act or otherprovisions of Federal law.

(b) However, the terms disability andqualified individual with a disabilitymay not exclude an individual who:

(1) Has successfully completed a su-pervised drug rehabilitation programand is no longer engaging in the illegaluse of drugs, or has otherwise been re-habilitated successfully and is nolonger engaging in the illegal use ofdrugs; or

(2) Is participating in a supervised re-habilitation program and is no longerengaging in such use; or

(3) Is erroneously regarded as engag-ing in such use, but is not engaging insuch use.

(c) It shall not be a violation of thispart for a covered entity to adopt oradminister reasonable policies or pro-cedures, including but not limited todrug testing, designed to ensure thatan individual described in paragraph(b) (1) or (2) of this section is no longerengaging in the illegal use of drugs.(See § 1630.16(c) Drug testing).

(d) Disability does not include:(1) Transvestism, transsexualism,

pedophilia, exhibitionism, voyeurism,gender identity disorders not resultingfrom physical impairments, or othersexual behavior disorders;

(2) Compulsive gambling, klep-tomania, or pyromania; or

(3) Psychoactive substance use dis-orders resulting from current illegaluse of drugs.

(e) Homosexuality and bisexuality arenot impairments and so are not disabil-ities as defined in this part.

§ 1630.4 Discrimination prohibited.

It is unlawful for a covered entity todiscriminate on the basis of disabilityagainst a qualified individual with adisability in regard to:

(a) Recruitment, advertising, and jobapplication procedures;

(b) Hiring, upgrading, promotion,award of tenure, demotion, transfer,layoff, termination, right of returnfrom layoff, and rehiring;

(c) Rates of pay or any other form ofcompensation and changes in com-pensation;

(d) Job assignments, job classifica-tions, organizational structures, posi-tion descriptions, lines of progression,and seniority lists;

(e) Leaves of absence, sick leave, orany other leave;

(f) Fringe benefits available by virtueof employment, whether or not admin-istered by the covered entity;

(g) Selection and financial supportfor training, including: apprentice-ships, professional meetings, con-ferences and other related activities,and selection for leaves of absence topursue training;

(h) Activities sponsored by a coveredentity including social and rec-reational programs; and

(i) Any other term, condition, orprivilege of employment.

The term discrimination includes, but isnot limited to, the acts described in§§ 1630.5 through 1630.13 of this part.

§ 1630.5 Limiting, segregating, andclassifying.

It is unlawful for a covered entity tolimit, segregate, or classify a job appli-cant or employee in a way that ad-versely affects his or her employmentopportunities or status on the basis ofdisability.


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§ 1630.6 Contractual or other arrange-ments.

(a) In qeneral. It is unlawful for a cov-ered entity to participate in a contrac-tual or other arrangement or relation-ship that has the effect of subjectingthe covered entity’s own qualified ap-plicant or employee with a disabilityto the discrimination prohibited bythis part.

(b) Contractual or other arrangementdefined. The phrase contractual or otherarrangement or relationship includes, butis not limited to, a relationship withan employment or referral agency;labor union, including collective bar-gaining agreements; an organizationproviding fringe benefits to an em-ployee of the covered entity; or an or-ganization providing training and ap-prenticeship programs.

(c) Application. This section appliesto a covered entity, with respect to itsown applicants or employees, whetherthe entity offered the contract or initi-ated the relationship, or whether theentity accepted the contract or accededto the relationship. A covered entity isnot liable for the actions of the otherparty or parties to the contract whichonly affect that other party’s employ-ees or applicants.

§ 1630.7 Standards, criteria, or meth-ods of administration.

It is unlawful for a covered entity touse standards, criteria, or methods ofadministration, which are not job-re-lated and consistent with business ne-cessity, and:

(a) That have the effect of discrimi-nating on the basis of disability; or

(b) That perpetuate the discrimina-tion of others who are subject to com-mon administrative control.

§ 1630.8 Relationship or associationwith an individual with a disability.

It is unlawful for a covered entity toexclude or deny equal jobs or benefitsto, or otherwise discriminate against, aqualified individual because of theknown disability of an individual withwhom the qualified individual is knownto have a family, business, social orother relationship or association.

§ 1630.9 Not making reasonable accom-modation.

(a) It is unlawful for a covered entitynot to make reasonable accommoda-tion to the known physical or mentallimitations of an otherwise qualifiedapplicant or employee with a dis-ability, unless such covered entity candemonstrate that the accommodationwould impose an undue hardship on theoperation of its business.

(b) It is unlawful for a covered entityto deny employment opportunities toan otherwise qualified job applicant oremployee with a disability based on theneed of such covered entity to makereasonable accommodation to such in-dividual’s physical or mental impair-ments.

(c) A covered entity shall not be ex-cused from the requirements of thispart because of any failure to receivetechnical assistance authorized by sec-tion 506 of the ADA, including any fail-ure in the development or dissemina-tion of any technical assistance man-ual authorized by that Act.

(d) A qualified individual with a dis-ability is not required to accept an ac-commodation, aid, service, opportunityor benefit which such qualified indi-vidual chooses not to accept. However,if such individual rejects a reasonableaccommodation, aid, service, oppor-tunity or benefit that is necessary toenable the individual to perform theessential functions of the position heldor desired, and cannot, as a result ofthat rejection, perform the essentialfunctions of the position, the indi-vidual will not be considered a quali-fied individual with a disability.

§ 1630.10 Qualification standards,tests, and other selection criteria.

It is unlawful for a covered entity touse qualification standards, employ-ment tests or other selection criteriathat screen out or tend to screen outan individual with a disability or aclass of individuals with disabilities,on the basis of disability, unless thestandard, test or other selection cri-teria, as used by the covered entity, isshown to be job-related for the positionin question and is consistent with busi-ness necessity.


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§ 1630.11 Administration of tests.

It is unlawful for a covered entity tofail to select and administer tests con-cerning employment in the most effec-tive manner to ensure that, when a testis administered to a job applicant oremployee who has a disability that im-pairs sensory, manual or speakingskills, the test results accurately re-flect the skills, aptitude, or whateverother factor of the applicant or em-ployee that the test purports to meas-ure, rather than reflecting the im-paired sensory, manual, or speakingskills of such employee or applicant(except where such skills are the fac-tors that the test purports to measure).

§ 1630.12 Retaliation and coercion.

(a) Retaliation. It is unlawful to dis-criminate against any individual be-cause that individual has opposed anyact or practice made unlawful by thispart or because that individual made acharge, testified, assisted, or partici-pated in any manner in an investiga-tion, proceeding, or hearing to enforceany provision contained in this part.

(b) Coercion, interference or intimida-tion. It is unlawful to coerce, intimi-date, threaten, harass or interfere withany individual in the exercise or enjoy-ment of, or because that individualaided or encouraged any other indi-vidual in the exercise of, any rightgranted or protected by this part.

§ 1630.13 Prohibited medical examina-tions and inquiries.

(a) Pre-employment examination or in-quiry. Except as permitted by § 1630.14,it is unlawful for a covered entity toconduct a medical examination of anapplicant or to make inquiries as towhether an applicant is an individualwith a disability or as to the nature orseverity of such disability.

(b) Examination or inquiry of employ-ees. Except as permitted by § 1630.14, itis unlawful for a covered entity to re-quire a medical examination of an em-ployee or to make inquiries as towhether an employee is an individualwith a disability or as to the nature orseverity of such disability.

§ 1630.14 Medical examinations and in-quiries specifically permitted.

(a) Acceptable pre-employment inquiry.A covered entity may make pre-em-ployment inquiries into the ability ofan applicant to perform job-relatedfunctions, and/or may ask an applicantto describe or to demonstrate how,with or without reasonable accommo-dation, the applicant will be able toperform job-related functions.

(b) Employment entrance examination.A covered entity may require a med-ical examination (and/or inquiry) aftermaking an offer of employment to ajob applicant and before the applicantbegins his or her employment duties,and may condition an offer of employ-ment on the results of such examina-tion (and/or inquiry), if all enteringemployees in the same job category aresubjected to such an examination (and/or inquiry) regardless of disability.

(1) Information obtained under para-graph (b) of this section regarding themedical condition or history of the ap-plicant shall be collected and main-tained on separate forms and in sepa-rate medical files and be treated as aconfidential medical record, exceptthat:

(i) Supervisors and managers may beinformed regarding necessary restric-tions on the work or duties of the em-ployee and necessary accommodations;

(ii) First aid and safety personnelmay be informed, when appropriate, ifthe disability might require emergencytreatment; and

(iii) Government officials inves-tigating compliance with this partshall be provided relevant informationon request.

(2) The results of such examinationshall not be used for any purpose in-consistent with this part.

(3) Medical examinations conductedin accordance with this section do nothave to be job-related and consistentwith business necessity. However, ifcertain criteria are used to screen outan employee or employees with disabil-ities as a result of such an examinationor inquiry, the exclusionary criteriamust be job-related and consistentwith business necessity, and perform-ance of the essential job functions can-not be accomplished with reasonableaccommodation as required in this


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part. (See § 1630.15(b) Defenses tocharges of discriminatory applicationof selection criteria.)

(c) Examination of employees. A cov-ered entity may require a medical ex-amination (and/or inquiry) of an em-ployee that is job-related and con-sistent with business necessity. A cov-ered entity may make inquiries intothe ability of an employee to performjob-related functions.

(1) Information obtained under para-graph (c) of this section regarding themedical condition or history of anyemployee shall be collected and main-tained on separate forms and in sepa-rate medical files and be treated as aconfidential medical record, exceptthat:




(2) Information obtained under para-graph (c) of this section regarding themedical condition or history of anyemployee shall not be used for any pur-pose inconsistent with this part.

(d) Other acceptable examinations andinquiries. A covered entity may conductvoluntary medical examinations andactivities, including voluntary medicalhistories, which are part of an em-ployee health program available to em-ployees at the work site.

(1) Information obtained under para-graph (d) of this section regarding themedical condition or history of anyemployee shall be collected and main-tained on separate forms and in sepa-rate medical files and be treated as aconfidential medical record, exceptthat:




(2) Information obtained under para-graph (d) of this section regarding themedical condition or history of anyemployee shall not be used for any pur-pose inconsistent with this part.

§ 1630.15 Defenses.Defenses to an allegation of discrimi-

nation under this part may include,but are not limited to, the following:

(a) Disparate treatment charges. It maybe a defense to a charge of disparatetreatment brought under §§ 1630.4through 1630.8 and 1630.11 through1630.12 that the challenged action isjustified by a legitimate, nondiscrim-inatory reason.

(b) Charges of discriminatory applica-tion of selection criteria—(1) In general.It may be a defense to a charge of dis-crimination, as described in § 1630.10,that an alleged application of quali-fication standards, tests, or selectioncriteria that screens out or tends toscreen out or otherwise denies a job orbenefit to an individual with a dis-ability has been shown to be job-re-lated and consistent with business ne-cessity, and such performance cannotbe accomplished with reasonable ac-commodation, as required in this part.

(2) Direct threat as a qualificationstandard. The term ‘‘qualificationstandard’’ may include a requirementthat an individual shall not pose a di-rect threat to the health or safety ofthe individual or others in the work-place. (See § 1630.2(r) defining directthreat.)

(c) Other disparate impact charges. Itmay be a defense to a charge of dis-crimination brought under this partthat a uniformly applied standard, cri-terion, or policy has a disparate impacton an individual with a disability or aclass of individuals with disabilitiesthat the challenged standard, criterionor policy has been shown to be job-re-lated and consistent with business ne-cessity, and such performance cannotbe accomplished with reasonable ac-commodation, as required in this part.

(d) Charges of not making reasonableaccommodation. It may be a defense to acharge of discrimination, as described


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in § 1630.9, that a requested or nec-essary accommodation would imposean undue hardship on the operation ofthe covered entity’s business.

(e) Conflict with other Federal laws. Itmay be a defense to a charge of dis-crimination under this part that achallenged action is required or neces-sitated by another Federal law or regu-lation, or that another Federal law orregulation prohibits an action (includ-ing the provision of a particular rea-sonable accommodation) that wouldotherwise be required by this part.

(f) Additional defenses. It may be a de-fense to a charge of discriminationunder this part that the alleged dis-criminatory action is specifically per-mitted by § 1630.14 or § 1630.16.

§ 1630.16 Specific activities permitted.

(a) Religious entities. A religious cor-poration, association, educational in-stitution, or society is permitted togive preference in employment to indi-viduals of a particular religion to per-form work connected with the carryingon by that corporation, association,educational institution, or society ofits activities. A religious entity mayrequire that all applicants and employ-ees conform to the religious tenets ofsuch organization. However, a religiousentity may not discriminate against aqualified individual, who satisfies thepermitted religious criteria, because ofhis or her disability.

(b) Regulation of alcohol and drugs. Acovered entity:

(1) May prohibit the illegal use ofdrugs and the use of alcohol at theworkplace by all employees;

(2) May require that employees notbe under the influence of alcohol or beengaging in the illegal use of drugs atthe workplace;

(3) May require that all employeesbehave in conformance with the re-quirements established under the Drug-Free Workplace Act of 1988 (41 U.S.C.701 et seq.);

(4) May hold an employee who en-gages in the illegal use of drugs or whois an alcoholic to the same qualifica-tion standards for employment or jobperformance and behavior to which theentity holds its other employees, evenif any unsatisfactory performance or

behavior is related to the employee’sdrug use or alcoholism;

(5) May require that its employeesemployed in an industry subject tosuch regulations comply with thestandards established in the regula-tions (if any) of the Departments of De-fense and Transportation, and of theNuclear Regulatory Commission, re-garding alcohol and the illegal use ofdrugs; and

(6) May require that employees em-ployed in sensitive positions complywith the regulations (if any) of the De-partments of Defense and Transpor-tation and of the Nuclear RegulatoryCommission that apply to employmentin sensitive positions subject to suchregulations.

(c) Drug testing—(1) General policy.For purposes of this part, a test to de-termine the illegal use of drugs is notconsidered a medical examination.Thus, the administration of such drugtests by a covered entity to its job ap-plicants or employees is not a violationof § 1630.13 of this part. However, thispart does not encourage, prohibit, orauthorize a covered entity to conductdrug tests of job applicants or employ-ees to determine the illegal use ofdrugs or to make employment deci-sions based on such test results.

(2) Transportation employees. This partdoes not encourage, prohibit, or au-thorize the otherwise lawful exerciseby entities subject to the jurisdictionof the Department of Transportation ofauthority to:

(i) Test employees of entities in, andapplicants for, positions involving safe-ty sensitive duties for the illegal use ofdrugs or for on-duty impairment by al-cohol; and

(ii) Remove from safety-sensitive po-sitions persons who test positive for il-legal use of drugs or on-duty impair-ment by alcohol pursuant to paragraph(c)(2)(i) of this section.

(3) Confidentiality. Any informationregarding the medical condition or his-tory of any employee or applicant ob-tained from a test to determine the il-legal use of drugs, except informationregarding the illegal use of drugs, issubject to the requirements of§ 1630.14(b) (2) and (3) of this part.


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(d) Regulation of smoking. A coveredentity may prohibit or impose restric-tions on smoking in places of employ-ment. Such restrictions do not violateany provision of this part.

(e) Infectious and communicable dis-eases; food handling jobs—(1) In general.Under title I of the ADA, section103(d)(1), the Secretary of Health andHuman Services is to prepare a list, tobe updated annually, of infectious andcommunicable diseases which aretransmitted through the handling offood. (Copies may be obtained fromCenter for Infectious Diseases, Centersfor Disease Control, 1600 Clifton Road,NE., Mailstop C09, Atlanta, GA 30333.)If an individual with a disability is dis-abled by one of the infectious or com-municable diseases included on thislist, and if the risk of transmitting thedisease associated with the handling offood cannot be eliminated by reason-able accommodation, a covered entitymay refuse to assign or continue to as-sign such individual to a job involvingfood handling. However, if the indi-vidual with a disability is a currentemployee, the employer must considerwhether he or she can be accommo-dated by reassignment to a vacant po-sition not involving food handling.

(2) Effect on State or other laws. Thispart does not preempt, modify, oramend any State, county, or local law,ordinance or regulation applicable tofood handling which:

(i) Is in accordance with the list, re-ferred to in paragraph (e)(1) of this sec-tion, of infectious or communicablediseases and the modes of trans-missibility published by the Secretaryof Health and Human Services; and

(ii) Is designed to protect the publichealth from individuals who pose a sig-nificant risk to the health or safety ofothers, where that risk cannot beeliminated by reasonable accommoda-tion.

(f) Health insurance, life insurance, andother benefit plans—(1) An insurer, hos-pital, or medical service company,health maintenance organization, orany agent or entity that administersbenefit plans, or similar organizationsmay underwrite risks, classify risks, oradminister such risks that are based onor not inconsistent with State law.

(2) A covered entity may establish,sponsor, observe or administer theterms of a bona fide benefit plan thatare based on underwriting risks,classifying risks, or administering suchrisks that are based on or not incon-sistent with State law.

(3) A covered entity may establish,sponsor, observe, or administer theterms of a bona fide benefit plan that isnot subject to State laws that regulateinsurance.

(4) The activities described in para-graphs (f) (1), (2), and (3) of this sectionare permitted unless these activitiesare being used as a subterfuge to evadethe purposes of this part.

APPENDIX TO PART 1630—INTERPRETIVEGUIDANCE ON TITLE I OF THE AMERI-CANS WITH DISABILITIES ACT

BACKGROUND

The ADA is a Federal antidiscriminationstatute designed to remove barriers whichprevent qualified individuals with disabil-ities from enjoying the same employmentopportunities that are available to personswithout disabilities.

Like the Civil Rights Act of 1964 that pro-hibits discrimination on the bases of race,color, religion, national origin, and sex, theADA seeks to ensure access to equal employ-ment opportunities based on merit. It doesnot guarantee equal results, establishquotas, or require preferences favoring indi-viduals with disabilities over those withoutdisabilities.

However, while the Civil Rights Act of 1964prohibits any consideration of personal char-acteristics such as race or national origin,the ADA necessarily takes a different ap-proach. When an individual’s disability cre-ates a barrier to employment opportunities,the ADA requires employers to considerwhether reasonable accommodation could re-move the barrier.

The ADA thus establishes a process inwhich the employer must assess a disabledindividual’s ability to perform the essentialfunctions of the specific job held or desired.While the ADA focuses on eradicating bar-riers, the ADA does not relieve a disabledemployee or applicant from the obligation toperform the essential functions of the job. Tothe contrary, the ADA is intended to enabledisabled persons to compete in the work-place based on the same performance stand-ards and requirements that employers expectof persons who are not disabled.

However, where that individual’s func-tional limitation impedes such job perform-ance, an employer must take steps to reason-ably accommodate, and thus help overcome


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the particular impediment, unless to do sowould impose an undue hardship. Such ac-commodations usually take the form of ad-justments to the way a job customarily isperformed, or to the work environmentitself.

This process of identifying whether, and towhat extent, a reasonable accommodation isrequired should be flexible and involve boththe employer and the individual with a dis-ability. Of course, the determination ofwhether an individual is qualified for a par-ticular position must necessarily be made ona case-by-case basis. No specific form of ac-commodation is guaranteed for all individ-uals with a particular disability. Rather, anaccommodation must be tailored to matchthe needs of the disabled individual with theneeds of the job’s essential functions.

This case-by-case approach is essential ifqualified individuals of varying abilities areto receive equal opportunities to compete foran infinitely diverse range of jobs. For thisreason, neither the ADA nor this part cansupply the ‘‘correct’’ answer in advance foreach employment decision concerning an in-dividual with a disability. Instead, the ADAsimply establishes parameters to guide em-ployers in how to consider, and take into ac-count, the disabling condition involved.

INTRODUCTION

The Equal Employment Opportunity Com-mission (the Commission or EEOC) is respon-sible for enforcement of title I of the Ameri-cans with Disabilities Act (ADA), 42 U.S.C.12101 et seq. (1990), which prohibits employ-ment discrimination on the basis of dis-ability. The Commission believes that it isessential to issue interpretive guidance con-currently with the issuance of this part inorder to ensure that qualified individualswith disabilities understand their rightsunder this part and to facilitate and encour-age compliance by covered entities. This ap-pendix represents the Commission’s interpre-tation of the issues discussed, and the Com-mission will be guided by it when resolvingcharges of employment discrimination. Theappendix addresses the major provisions ofthis part and explains the major concepts ofdisability rights.

The terms ‘‘employer’’ or ‘‘employer orother covered entity’’ are used interchange-ably throughout the appendix to refer to allcovered entities subject to the employmentprovisions of the ADA.

Section 1630.1 Purpose, Applicability andConstruction

Section 1630.1(a) Purpose

The Americans with Disabilities Act wassigned into law on July 26, 1990. It is an anti-discrimination statute that requires that in-dividuals with disabilities be given the sameconsideration for employment that individ-

uals without disabilities are given. An indi-vidual who is qualified for an employmentopportunity cannot be denied that oppor-tunity because of the fact that the individualis disabled. The purpose of title I and thispart is to ensure that qualified individualswith disabilities are protected from discrimi-nation on the basis of disability.

The ADA uses the term ‘‘disabilities’’ rath-er than the term ‘‘handicaps’’ used in the Re-habilitation Act of 1973, 29 U.S.C. 701–796.Substantively, these terms are equivalent.As noted by the House Committee on the Ju-diciary, ‘‘[t]he use of the term ‘disabilities’instead of the term ‘handicaps’ reflects thedesire of the Committee to use the most cur-rent terminology. It reflects the preferenceof persons with disabilities to use that termrather than ‘handicapped’ as used in previouslaws, such as the Rehabilitation Act of 1973* * *.’’ H.R. Rep. No. 485 part 3, 101st Cong.,2d Sess. 26–27 (1990) (hereinafter House Judi-ciary Report); see also S. Rep. No. 116, 101stCong., 1st Sess. 21 (1989) (hereinafter SenateReport); H.R. Rep. No. 485 part 2, 101st Cong.,2d Sess. 50–51 (1990) [hereinafter House LaborReport].

The use of the term ‘‘Americans’’ in thetitle of the ADA is not intended to implythat the Act only applies to United Statescitizens. Rather, the ADA protects all quali-fied individuals with disabilities, regardlessof their citizenship status or nationality.

Section 1630.1(b) and (c) Applicability andConstruction

Unless expressly stated otherwise, thestandards applied in the ADA are not in-tended to be lesser than the standards ap-plied under the Rehabilitation Act of 1973.

The ADA does not preempt any Federallaw, or any State or local law, that grants toindividuals with disabilities protectiongreater than or equivalent to that providedby the ADA. This means that the existenceof a lesser standard of protection to individ-uals with disabilities under the ADA will notprovide a defense to failing to meet a higherstandard under another law. Thus, for exam-ple, title I of the ADA would not be a defenseto failing to collect information required tosatisfy the affirmative action requirementsof section 503 of the Rehabilitation Act. Onthe other hand, the existence of a lesserstandard under another law will not providea defense to failing to meet a higher stand-ard under the ADA. See House Labor Reportat 135; House Judiciary Report at 69–70.

This also means that an individual with adisability could choose to pursue claimsunder a State discrimination or tort lawthat does not confer greater substantiverights, or even confers fewer substantiverights, if the potential available remedieswould be greater than those available underthe ADA and this part. The ADA does not re-strict an individual with a disability from


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pursuing such claims in addition to chargesbrought under this part. House Judiciary at69–70.

The ADA does not automatically preemptmedical standards or safety requirements es-tablished by Federal law or regulations. Itdoes not preempt State, county, or locallaws, ordinances or regulations that are con-sistent with this part, and are designed toprotect the public health from individualswho pose a direct threat, that cannot beeliminated or reduced by reasonable accom-modation, to the health or safety of others.However, the ADA does preempt inconsistentrequirements established by State or locallaw for safety or security sensitive positions.See Senate Report at 27; House Labor Reportat 57.

An employer allegedly in violation of thispart cannot successfully defend its actionsby relying on the obligation to comply withthe requirements of any State or local lawthat imposes prohibitions or limitations onthe eligibility of qualified individuals withdisabilities to practice any occupation orprofession. For example, suppose a munici-pality has an ordinance that prohibits indi-viduals with tuberculosis from teachingschool children. If an individual with dor-mant tuberculosis challenges a privateschool’s refusal to hire him or her because ofthe tuberculosis, the private school wouldnot be able to rely on the city ordinance asa defense under the ADA.

Sections 1630.2(a)–(f) Commission, CoveredEntity, etc.

The definitions section of part 1630 in-cludes several terms that are identical, or al-most identical, to the terms found in titleVII of the Civil Rights Act of 1964. Amongthese terms are ‘‘Commission,’’ ‘‘Person,’’‘‘State,’’ and ‘‘Employer.’’ These terms areto be given the same meaning under the ADAthat they are given under title VII.

In general, the term ‘‘employee’’ has thesame meaning that it is given under titleVII. However, the ADA’s definition of ‘‘em-ployee’’ does not contain an exception, asdoes title VII, for elected officials and theirpersonal staffs. It should be further notedthat all State and local governments arecovered by title II of the ADA whether or notthey are also covered by this part. Title II,which is enforced by the Department of Jus-tice, becomes effective on January 26, 1992.See 28 CFR part 35.

The term ‘‘covered entity’’ is not found intitle VII. However, the title VII definitionsof the entities included in the term ‘‘coveredentity’’ (e.g., employer, employment agency,etc.) are applicable to the ADA.

Section 1630.2(g) Disability

In addition to the term ‘‘covered entity,’’there are several other terms that are unique

to the ADA. The first of these is the term‘‘disability.’’ Congress adopted the definitionof this term from the Rehabilitation Act def-inition of the term ‘‘individual with handi-caps.’’ By so doing, Congress intended thatthe relevant caselaw developed under the Re-habilitation Act be generally applicable tothe term ‘‘disability’’ as used in the ADA.Senate Report at 21; House Labor Report at50; House Judiciary Report at 27.

The definition of the term ‘‘disability’’ isdivided into three parts. An individual mustsatisfy at least one of these parts in order tobe considered an individual with a disabilityfor purposes of this part. An individual isconsidered to have a ‘‘disability’’ if that in-dividual either (1) has a physical or mentalimpairment which substantially limits oneor more of that person’s major life activities,(2) has a record of such an impairment, or,(3) is regarded by the covered entity as hav-ing such an impairment. To understand themeaning of the term ‘‘disability,’’ it is nec-essary to understand, as a preliminary mat-ter, what is meant by the terms ‘‘physical ormental impairment,’’ ‘‘major life activity,’’and ‘‘substantially limits.’’ Each of theseterms is discussed below.

Section 1630.2(h) Physical or MentalImpairment

This term adopts the definition of the term‘‘physical or mental impairment’’ found inthe regulations implementing section 504 ofthe Rehabilitation Act at 34 CFR part 104. Itdefines physical or mental impairment asany physiological disorder or condition, cos-metic disfigurement, or anatomical loss af-fecting one or more of several body systems,or any mental or psychological disorder.

It is important to distinguish between con-ditions that are impairments and physical,psychological, environmental, cultural andeconomic characteristics that are not im-pairments. The definition of the term ‘‘im-pairment’’ does not include physical charac-teristics such as eye color, hair color, left-handedness, or height, weight or muscle tonethat are within ‘‘normal’’ range and are notthe result of a physiological disorder. Thedefinition, likewise, does not include char-acteristic predisposition to illness or disease.Other conditions, such as pregnancy, thatare not the result of a physiological disorderare also not impairments. Similarly, the def-inition does not include common personalitytraits such as poor judgment or a quick tem-per where these are not symptoms of a men-tal or psychological disorder. Environ-mental, cultural, or economic disadvantagessuch as poverty, lack of education or a pris-on record are not impairments. Advancedage, in and of itself, is also not an impair-ment. However, various medical conditions


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commonly associated with age, such as hear-ing loss, osteoporosis, or arthritis would con-stitute impairments within the meaning ofthis part. See Senate Report at 22–23; HouseLabor Report at 51–52; House Judiciary Re-port at 28–29.

Section 1630.2(i) Major Life Activities

This term adopts the definition of the term‘‘major life activities’’ found in the regula-tions implementing section 504 of the Reha-bilitation Act at 34 CFR part 104. ‘‘Major lifeactivities’’ are those basic activities that theaverage person in the general population canperform with little or no difficulty. Majorlife activities include caring for oneself, per-forming manual tasks, walking, seeing, hear-ing, speaking, breathing, learning, and work-ing. This list is not exhaustive. For example,other major life activities include, but arenot limited to, sitting, standing, lifting,reaching. See Senate Report at 22; HouseLabor Report at 52; House Judiciary Reportat 28.

Section 1630.2(j) Substantially Limits

Determining whether a physical or mentalimpairment exists is only the first step indetermining whether or not an individual isdisabled. Many impairments do not impactan individual’s life to the degree that theyconstitute disabling impairments. An im-pairment rises to the level of disability if theimpairment substantially limits one or moreof the individual’s major life activities. Mul-tiple impairments that combine to substan-tially limit one or more of an individual’smajor life activities also constitute a dis-ability.

The ADA and this part, like the Rehabili-tation Act of 1973, do not attempt a ‘‘laundrylist’’ of impairments that are ‘‘disabilities.’’The determination of whether an individualhas a disability is not necessarily based onthe name or diagnosis of the impairment theperson has, but rather on the effect of thatimpairment on the life of the individual.Some impairments may be disabling for par-ticular individuals but not for others, de-pending on the stage of the disease or dis-order, the presence of other impairmentsthat combine to make the impairment dis-abling or any number of other factors.

Other impairments, however, such as HIVinfection, are inherently substantially lim-iting.

On the other hand, temporary, non-chronicimpairments of short duration, with little orno long term or permanent impact, are usu-ally not disabilities. Such impairments mayinclude, but are not limited to, broken limbs,sprained joints, concussions, appendicitis,and influenza. Similarly, except in rare cir-cumstances, obesity is not considered a dis-abling impairment.

An impairment that prevents an individualfrom performing a major life activity sub-stantially limits that major life activity.For example, an individual whose legs areparalyzed is substantially limited in themajor life activity of walking because he orshe is unable, due to the impairment, to per-form that major life activity.

Alternatively, an impairment is substan-tially limiting if it significantly restrictsthe duration, manner or condition underwhich an individual can perform a particularmajor life activity as compared to the aver-age person in the general population’s abil-ity to perform that same major life activity.Thus, for example, an individual who, be-cause of an impairment, can only walk forvery brief periods of time would be substan-tially limited in the major life activity ofwalking.

Part 1630 notes several factors that shouldbe considered in making the determinationof whether an impairment is substantiallylimiting. These factors are (1) the nature andseverity of the impairment, (2) the durationor expected duration of the impairment, and(3) the permanent or long term impact, orthe expected permanent or long term impactof, or resulting from, the impairment. Theterm ‘‘duration,’’ as used in this context, re-fers to the length of time an impairment per-sists, while the term ‘‘impact’’ refers to theresidual effects of an impairment. Thus, forexample, a broken leg that takes eight weeksto heal is an impairment of fairly brief dura-tion. However, if the broken leg heals im-properly, the ‘‘impact’’ of the impairmentwould be the resulting permanent limp.Likewise, the effect on cognitive functionsresulting from traumatic head injury wouldbe the ‘‘impact’’ of that impairment.

The determination of whether an indi-vidual is substantially limited in a major lifeactivity must be made on a case by casebasis. An individual is not substantially lim-ited in a major life activity if the limitation,when viewed in light of the factors notedabove, does not amount to a significant re-striction when compared with the abilities ofthe average person. For example, an indi-vidual who had once been able to walk at anextraordinary speed would not be substan-tially limited in the major life activity ofwalking if, as a result of a physical impair-ment, he or she were only able to walk at anaverage speed, or even at moderately belowaverage speed.

It is important to remember that the re-striction on the performance of the majorlife activity must be the result of a conditionthat is an impairment. As noted earlier, ad-vanced age, physical or personality charac-teristics, and environmental, cultural, andeconomic disadvantages are not impair-ments. Consequently, even if such factorssubstantially limit an individual’s ability toperform a major life activity, this limitation


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will not constitute a disability. For example,an individual who is unable to read becausehe or she was never taught to read would notbe an individual with a disability becauselack of education is not an impairment.However, an individual who is unable to readbecause of dyslexia would be an individualwith a disability because dyslexia, a learningdisability, is an impairment.

If an individual is not substantially lim-ited with respect to any other major life ac-tivity, the individual’s ability to perform themajor life activity of working should be con-sidered. If an individual is substantially lim-ited in any other major life activity, no de-termination should be made as to whetherthe individual is substantially limited inworking. For example, if an individual isblind, i.e., substantially limited in the majorlife activity of seeing, there is no need to de-termine whether the individual is also sub-stantially limited in the major life activityof working. The determination of whether anindividual is substantially limited in work-ing must also be made on a case by casebasis.

This part lists specific factors that may beused in making the determination of wheth-er the limitation in working is ‘‘substan-tial.’’ These factors are:

(1) The geographical area to which the in-dividual has reasonable access;

(2) The job from which the individual hasbeen disqualified because of an impairment,and the number and types of jobs utilizingsimilar training, knowledge, skills or abili-ties, within that geographical area, fromwhich the individual is also disqualified be-cause of the impairment (class of jobs); and/or

(3) The job from which the individual hasbeen disqualified because of an impairment,and the number and types of other jobs notutilizing similar training, knowledge, skillsor abilities, within that geographical area,from which the individual is also disqualifiedbecause of the impairment (broad range ofjobs in various classes).

Thus, an individual is not substantiallylimited in working just because he or she isunable to perform a particular job for oneemployer, or because he or she is unable toperform a specialized job or profession re-quiring extraordinary skill, prowess or tal-ent. For example, an individual who cannotbe a commercial airline pilot because of aminor vision impairment, but who can be acommercial airline co-pilot or a pilot for acourier service, would not be substantiallylimited in the major life activity of working.Nor would a professional baseball pitcherwho develops a bad elbow and can no longerthrow a baseball be considered substantiallylimited in the major life activity of working.In both of these examples, the individualsare not substantially limited in the abilityto perform any other major life activity and,

with regard to the major life activity ofworking, are only unable to perform either aparticular specialized job or a narrow rangeof jobs. See Forrisi v. Bowen, 794 F.2d 931 (4thCir. 1986); Jasany v. U.S. Postal Service, 755F.2d 1244 (6th Cir. 1985); E.E Black, Ltd. v.Marshall, 497 F. Supp. 1088 (D. Hawaii 1980).

On the other hand, an individual does nothave to be totally unable to work in order tobe considered substantially limited in themajor life activity of working. An individualis substantially limited in working if the in-dividual is significantly restricted in theability to perform a class of jobs or a broadrange of jobs in various classes, when com-pared with the ability of the average personwith comparable qualifications to performthose same jobs. For example, an individualwho has a back condition that prevents theindividual from performing any heavy laborjob would be substantially limited in themajor life activity of working because theindividual’s impairment eliminates his orher ability to perform a class of jobs. Thiswould be so even if the individual were ableto perform jobs in another class, e.g., theclass of semi-skilled jobs. Similarly, supposean individual has an allergy to a substancefound in most high rise office buildings, butseldom found elsewhere, that makes breath-ing extremely difficult. Since this individualwould be substantially limited in the abilityto perform the broad range of jobs in variousclasses that are conducted in high rise officebuildings within the geographical area towhich he or she has reasonable access, he orshe would be substantially limited in work-ing.

The terms ‘‘number and types of jobs’’ and‘‘number and types of other jobs,’’ as used inthe factors discussed above, are not intendedto require an onerous evidentiary showing.Rather, the terms only require the presen-tation of evidence of general employment de-mographics and/or of recognized occupa-tional classifications that indicate the ap-proximate number of jobs (e.g., ‘‘few,’’‘‘many,’’ ‘‘most’’) from which an individualwould be excluded because of an impairment.

If an individual has a ‘‘mental or physicalimpairment’’ that ‘‘substantially limits’’ hisor her ability to perform one or more ‘‘majorlife activities,’’ that individual will satisfythe first part of the regulatory definition of‘‘disability’’ and will be considered an indi-vidual with a disability. An individual whosatisfies this first part of the definition ofthe term ‘‘disability’’ is not required to dem-onstrate that he or she satisfies either of theother parts of the definition. However, if anindividual is unable to satisfy this part ofthe definition, he or she may be able to sat-isfy one of the other parts of the definition.


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Section 1630.2(k) Record of a SubstantiallyLimiting Condition

The second part of the definition providesthat an individual with a record of an im-pairment that substantially limits a majorlife activity is an individual with a dis-ability. The intent of this provision, in part,is to ensure that people are not discrimi-nated against because of a history of dis-ability. For example, this provision protectsformer cancer patients from discriminationbased on their prior medical history. Thisprovision also ensures that individuals arenot discriminated against because they havebeen misclassified as disabled. For example,individuals misclassified as learning disabledare protected from discrimination on thebasis of that erroneous classification. SenateReport at 23; House Labor Report at 52–53;House Judiciary Report at 29.

This part of the definition is satisfied if arecord relied on by an employer indicatesthat the individual has or has had a substan-tially limiting impairment. The impairmentindicated in the record must be an impair-ment that would substantially limit one ormore of the individual’s major life activities.There are many types of records that couldpotentially contain this information, includ-ing but not limited to, education, medical, oremployment records.

The fact that an individual has a record ofbeing a disabled veteran, or of disability re-tirement, or is classified as disabled forother purposes does not guarantee that theindividual will satisfy the definition of ‘‘dis-ability’’ under part 1630. Other statutes, reg-ulations and programs may have a definitionof ‘‘disability’’ that is not the same as thedefinition set forth in the ADA and con-tained in part 1630. Accordingly, in order foran individual who has been classified in arecord as ‘‘disabled’’ for some other purposeto be considered disabled for purposes of part1630, the impairment indicated in the recordmust be a physical or mental impairmentthat substantially limits one or more of theindividual’s major life activities.

Section 1630.2(l) Regarded as SubstantiallyLimited in a Major Life Activity

If an individual cannot satisfy either thefirst part of the definition of ‘‘disability’’ orthe second ‘‘record of’’ part of the definition,he or she may be able to satisfy the thirdpart of the definition. The third part of thedefinition provides that an individual who isregarded by an employer or other covered en-tity as having an impairment that substan-tially limits a major life activity is an indi-vidual with a disability.

There are three different ways in which anindividual may satisfy the definition of‘‘being regarded as having a disability’’:

(1) The individual may have an impairmentwhich is not substantially limiting but is

perceived by the employer or other coveredentity as constituting a substantially lim-iting impairment;

(2) The individual may have an impairmentwhich is only substantially limiting becauseof the attitudes of others toward the impair-ment; or

(3) The individual may have no impairmentat all but is regarded by the employer orother covered entity as having a substan-tially limiting impairment.Senate Report at 23; House Labor Report at53; House Judiciary Report at 29.

An individual satisfies the first part of thisdefinition if the individual has an impair-ment that is not substantially limiting, butthe covered entity perceives the impairmentas being substantially limiting. For example,suppose an employee has controlled highblood pressure that is not substantially lim-iting. If an employer reassigns the individualto less strenuous work because of unsubstan-tiated fears that the individual will suffer aheart attack if he or she continues to per-form strenuous work, the employer would beregarding the individual as disabled.

An individual satisfies the second part ofthe ‘‘regarded as’’ definition if the individualhas an impairment that is only substantiallylimiting because of the attitudes of otherstoward the condition. For example, an indi-vidual may have a prominent facial scar ordisfigurement, or may have a condition thatperiodically causes an involuntary jerk ofthe head but does not limit the individual’smajor life activities. If an employer dis-criminates against such an individual be-cause of the negative reactions of customers,the employer would be regarding the indi-vidual as disabled and acting on the basis ofthat perceived disability. See Senate Reportat 24; House Labor Report at 53; House Judi-ciary Report at 30–31.

An individual satisfies the third part of the‘‘regarded as’’ definition of ‘‘disability’’ ifthe employer or other covered entity erro-neously believes the individual has a sub-stantially limiting impairment that the in-dividual actually does not have. This situa-tion could occur, for example, if an employerdischarged an employee in response to arumor that the employee is infected withHuman Immunodeficiency Virus (HIV). Eventhough the rumor is totally unfounded andthe individual has no impairment at all, theindividual is considered an individual with adisability because the employer perceived ofthis individual as being disabled. Thus, inthis example, the employer, by dischargingthis employee, is discriminating on the basisof disability.

The rationale for the ‘‘regarded as’’ part ofthe definition of disability was articulatedby the Supreme Court in the context of theRehabilitation Act of 1973 in School Board ofNassau County v. Arline, 480 U.S. 273 (1987).The Court noted that, although an individual


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may have an impairment that does not infact substantially limit a major life activity,the reaction of others may prove just as dis-abling. ‘‘Such an impairment might not di-minish a person’s physical or mental capa-bilities, but could nevertheless substantiallylimit that person’s ability to work as a re-sult of the negative reactions of others tothe impairment.’’ 480 U.S. at 283. The Courtconcluded that by including ‘‘regarded as’’ inthe Rehabilitation Act’s definition, ‘‘Con-gress acknowledged that society’s accumu-lated myths and fears about disability anddiseases are as handicapping as are the phys-ical limitations that flow from actual im-pairment.’’ 480 U.S. at 284.

An individual rejected from a job becauseof the ‘‘myths, fears and stereotypes’’ associ-ated with disabilities would be covered underthis part of the definition of disability,whether or not the employer’s or other cov-ered entity’s perception were shared by oth-ers in the field and whether or not the indi-vidual’s actual physical or mental conditionwould be considered a disability under thefirst or second part of this definition. As thelegislative history notes, sociologists haveidentified common attitudinal barriers thatfrequently result in employers excluding in-dividuals with disabilities. These includeconcerns regarding productivity, safety, in-surance, liability, attendance, cost of accom-modation and accessibility, workers’ com-pensation costs, and acceptance by cowork-ers and customers.

Therefore, if an individual can show thatan employer or other covered entity made anemployment decision because of a perceptionof disability based on ‘‘myth, fear or stereo-type,’’ the individual will satisfy the ‘‘re-garded as’’ part of the definition of dis-ability. If the employer cannot articulate anon-discriminatory reason for the employ-ment action, an inference that the employeris acting on the basis of ‘‘myth, fear orstereotype’’ can be drawn.

Section 1630.2(m) Qualified Individual Witha Disability

The ADA prohibits discrimination on thebasis of disability against qualified individ-uals with disabilities. The determination ofwhether an individual with a disability is‘‘qualified’’ should be made in two steps. Thefirst step is to determine if the individualsatisfies the prerequisites for the position,such as possessing the appropriate edu-cational background, employment experi-ence, skills, licenses, etc. For example, thefirst step in determining whether an ac-countant who is paraplegic is qualified for acertified public accountant (CPA) position isto examine the individual’s credentials todetermine whether the individual is a li-censed CPA. This is sometimes referred to inthe Rehabilitation Act caselaw as deter-

mining whether the individual is ‘‘otherwisequalified’’ for the position. See Senate Re-port at 33; House Labor Report at 64–65. (See§ 1630.9 Not Making Reasonable Accommoda-tion).

The second step is to determine whether ornot the individual can perform the essentialfunctions of the position held or desired,with or without reasonable accommodation.The purpose of this second step is to ensurethat individuals with disabilities who canperform the essential functions of the posi-tion held or desired are not denied employ-ment opportunities because they are not ableto perforn marginal functions of the posi-tion. House Labor Report at 55.

The determination of whether an indi-vidual with a disability is qualified is to bemade at the time of the employment deci-sion. This determination should be based onthe capabilities of the individual with a dis-ability at the time of the employment deci-sion, and should not be based on speculationthat the employee may become unable in thefuture or may cause increased health insur-ance premiums or workers compensationcosts.

Section 1630.2(n) Essential Functions

The determination of which functions areessential may be critical to the determina-tion of whether or not the individual with adisability is qualified. The essential func-tions are those functions that the individualwho holds the position must be able to per-form unaided or with the assistance of a rea-sonable accommodation.

The inquiry into whether a particularfunction is essential initially focuses onwhether the employer actually requires em-ployees in the position to perform the func-tions that the employer asserts are essential.For example, an employer may state thattyping is an essential function of a position.If, in fact, the employer has never requiredany employee in that particular position totype, this will be evidence that typing is notactually an essential function of the posi-tion.

If the individual who holds the position isactually required to perform the functionthe employer asserts is an essential function,the inquiry will then center around whetherremoving the function would fundamentallyalter that position. This determination ofwhether or not a particular function is es-sential will generally include one or more ofthe following factors listed in part 1630.

The first factor is whether the position ex-ists to perform a particular function. For ex-ample, an individual may be hired to proof-read documents. The ability to proofread thedocuments would then be an essential func-tion, since this is the only reason the posi-tion exists.

The second factor in determining whethera function is essential is the number of other


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employees available to perform that jobfunction or among whom the performance ofthat job function can be distributed. Thismay be a factor either because the totalnumber of available employees is low, or be-cause of the fluctuating demands of the busi-ness operation. For example, if an employerhas a relatively small number of availableemployees for the volume of work to be per-formed, it may be necessary that each em-ployee perform a multitude of different func-tions. Therefore, the performance of thosefunctions by each employee becomes morecritical and the options for reorganizing thework become more limited. In such a situa-tion, functions that might not be essential ifthere were a larger staff may become essen-tial because the staff size is small comparedto the volume of work that has to be done.See Treadwell v. Alexander, 707 F.2d 473 (11thCir. 1983).

A similar situation might occur in a largerwork force if the workflow follows a cycle ofheavy demand for labor intensive work fol-lowed by low demand periods. This type ofworkflow might also make the performanceof each function during the peak periodsmore critical and might limit the employer’sflexibility in reorganizing operating proce-dures. See Dexler v. Tisch, 660 F. Supp. 1418(D. Conn. 1987).

The third factor is the degree of expertiseor skill required to perform the function. Incertain professions and highly skilled posi-tions the employee is hired for his or her ex-pertise or ability to perform the particularfunction. In such a situation, the perform-ance of that specialized task would be an es-sential function.

Whether a particular function is essentialis a factual determination that must bemade on a case by case basis. In determiningwhether or not a particular function is es-sential, all relevant evidence should be con-sidered. Part 1630 lists various types of evi-dence, such as an established job description,that should be considered in determiningwhether a particular function is essential.Since the list is not exhaustive, other rel-evant evidence may also be presented. Great-er weight will not be granted to the types ofevidence included on the list than to thetypes of evidence not listed.

Although part 1630 does not require em-ployers to develop or maintain job descrip-tions, written job descriptions prepared be-fore advertising or interviewing applicantsfor the job, as well as the employer’s judg-ment as to what functions are essential areamong the relevant evidence to be consid-ered in determining whether a particularfunction is essential. The terms of a collec-tive bargaining agreement are also relevantto the determination of whether a particularfunction is essential. The work experience ofpast employees in the job or of current em-ployees in similar jobs is likewise relevant

to the determination of whether a particularfunction is essential. See H.R. Conf. Rep. No.101–596, 101st Cong., 2d Sess. 58 (1990) [herein-after Conference Report]; House JudiciaryReport at 33–34. See also Hall v. U.S. PostalService, 857 F.2d 1073 (6th Cir. 1988).

The time spent performing the particularfunction may also be an indicator of whetherthat function is essential. For example, if anemployee spends the vast majority of his orher time working at a cash register, thiswould be evidence that operating the cashregister is an essential function. The con-sequences of failing to require the employeeto perform the function may be another indi-cator of whether a particular function is es-sential. For example, although a firefightermay not regularly have to carry an uncon-scious adult out of a burning building, theconsequence of failing to require the fire-fighter to be able to perform this functionwould be serious.

It is important to note that the inquiryinto essential functions is not intended tosecond guess an employer’s business judg-ment with regard to production standards,whether qualitative or quantitative, nor torequire employers to lower such standards.(See § 1630.10 Qualification Standards, Testsand Other Selection Criteria). If an employerrequires its typists to be able to accuratelytype 75 words per minute, it will not becalled upon to explain why an inaccuratework product, or a typing speed of 65 wordsper minute, would not be adequate. Simi-larly, if a hotel requires its service workersto thoroughly clean 16 rooms per day, it willnot have to explain why it requires thoroughcleaning, or why it chose a 16 room ratherthan a 10 room requirement. However, if anemployer does require accurate 75 word perminute typing or the thorough cleaning of 16rooms, it will have to show that it actuallyimposes such requirements on its employeesin fact, and not simply on paper. It shouldalso be noted that, if it is alleged that theemployer intentionally selected the par-ticular level of production to exclude indi-viduals with disabilities, the employer mayhave to offer a legitimate, nondiscrim-inatory reason for its selection.

Section 1630.2(o) ReasonableAccommodation

An individual is considered a ‘‘qualified in-dividual with a disability’’ if the individualcan perform the essential functions of theposition held or desired with or without rea-sonable accommodation. In general, an ac-commodation is any change in the work en-vironment or in the way things are custom-arily done that enables an individual with adisability to enjoy equal employment oppor-tunities. There are three categories of rea-sonable accommodation. These are (1) ac-commodations that are required to ensure


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equal opportunity in the application process;(2) accommodations that enable the employ-er’s employees with disabilities to performthe essential functions of the position heldor desired; and (3) accommodations that en-able the employer’s employees with disabil-ities to enjoy equal benefits and privileges ofemployment as are enjoyed by employeeswithout disabilities. It should be noted thatnothing in this part prohibits employers orother covered entities from providing accom-modations beyond those required by thispart.

Part 1630 lists the examples, specified intitle I of the ADA, of the most commontypes of accommodation that an employer orother covered entity may be required to pro-vide. There are any number of other specificaccommodations that may be appropriate forparticular situations but are not specificallymentioned in this listing. This listing is notintended to be exhaustive of accommodationpossibilities. For example, other accom-modations could include permitting the useof accrued paid leave or providing additionalunpaid leave for necessary treatment, mak-ing employer provided transportation acces-sible, and providing reserved parking spaces.Providing personal assistants, such as a pageturner for an employee with no hands or atravel attendant to act as a sighted guide toassist a blind employee on occasional busi-ness trips, may also be a reasonable accom-modation. Senate Report at 31; House LaborReport at 62; House Judiciary Report at 39.

It may also be a reasonable accommoda-tion to permit an individual with a disabilitythe opportunity to provide and utilize equip-ment, aids or services that an employer isnot required to provide as a reasonable ac-commodation. For example, it would be areasonable accommodation for an employerto permit an individual who is blind to use aguide dog at work, even though the employerwould not be required to provide a guide dogfor the employee.

The accommodations included on the listof reasonable accommodations are generallyself explanatory. However, there are a fewthat require further explanation. One ofthese is the accommodation of making exist-ing facilities used by employees readily ac-cessible to, and usable by, individuals withdisabilities. This accommodation includesboth those areas that must be accessible forthe employee to perform essential job func-tions, as well as non-work areas used by theemployer’s employees for other purposes.For example, accessible break rooms, lunchrooms, training rooms, restrooms etc., maybe required as reasonable accommodations.

Another of the potential accommodationslisted is ‘‘job restructuring.’’ An employer orother covered entity may restructure a jobby reallocating or redistributing non-essential, marginal job functions. For exam-ple, an employer may have two jobs, each of

which entails the performance of a numberof marginal functions. The employer hires aqualified individual with a disability who isable to perform some of the marginal func-tions of each job but not all of the marginalfunctions of either job. As an accommoda-tion, the employer may redistribute the mar-ginal functions so that all of the marginalfunctions that the qualified individual with adisability can perform are made a part of theposition to be filled by the qualified indi-vidual with a disability. The remaining mar-ginal functions that the individual with adisability cannot perform would then betransferred to the other position. See SenateReport at 31; House Labor Report at 62.

An employer or other covered entity is notrequired to reallocate essential functions.The essential functions are by definitionthose that the individual who holds the jobwould have to perform, with or without rea-sonable accommodation, in order to be con-sidered qualified for the position. For exam-ple, suppose a security guard position re-quires the individual who holds the job to in-spect identification cards. An employerwould not have to provide an individual whois legally blind with an assistant to look atthe identification cards for the legally blindemployee. In this situation the assistantwould be performing the job for the indi-vidual with a disability rather than assistingthe individual to perform the job. See Cole-man v. Darden, 595 F.2d 533 (10th Cir. 1979).

An employer or other covered entity mayalso restructure a job by altering when and/or how an essential function is performed.For example, an essential function custom-arily performed in the early morning hoursmay be rescheduled until later in the day asa reasonable accommodation to a disabilitythat precludes performance of the functionat the customary hour. Likewise, as a rea-sonable accommodation, an employee with adisability that inhibits the ability to write,may be permitted to computerize recordsthat were customarily maintained manually.

Reassignment to a vacant position is alsolisted as a potential reasonable accommoda-tion. In general, reassignment should be con-sidered only when accommodation withinthe individual’s current position would posean undue hardship. Reassignment is notavailable to applicants. An applicant for aposition must be qualified for, and be able toperform the essential functions of, the posi-tion sought with or without reasonable ac-commodation.

Reassignment may not be used to limit,segregate, or otherwise discriminate againstemployees with disabilities by forcing re-assignments to undesirable positions or todesignated offices or facilities. Employersshould reassign the individual to an equiva-lent position, in terms of pay, status, etc., ifthe individual is qualified, and if the posi-tion is vacant within a reasonable amount of


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time. A ‘‘reasonable amount of time’’ shouldbe determined in light of the totality of thecircumstances. As an example, suppose thereis no vacant position available at the timethat an individual with a disability requestsreassignment as a reasonable accommoda-tion. The employer, however, knows that anequivalent position for which the individualis qualified, will become vacant next week.Under these circumstances, the employershould reassign the individual to the posi-tion when it becomes available.

An employer may reassign an individual toa lower graded position if there are no ac-commodations that would enable the em-ployee to remain in the current position andthere are no vacant equivalent positions forwhich the individual is qualified with orwithout reasonable accommodation. An em-ployer, however, is not required to maintainthe reassigned individual with a disability atthe salary of the higher graded position if itdoes not so maintain reassigned employeeswho are not disabled. It should also be notedthat an employer is not required to promotean individual with a disability as an accom-modation. See Senate Report at 31–32; HouseLabor Report at 63.

The determination of which accommoda-tion is appropriate in a particular situationinvolves a process in which the employer andemployee identify the precise limitationsimposed by the disability and explore poten-tial accommodations that would overcomethose limitations. This process is discussedmore fully in § 1630.9 Not Making ReasonableAccommodation.

Section 1630.2(p) Undue Hardship

An employer or other covered entity is notrequired to provide an accommodation thatwill impose an undue hardship on the oper-ation of the employer’s or other covered en-tity’s business. The term ‘‘undue hardship’’means significant difficulty or expense in, orresulting from, the provision of the accom-modation. The ‘‘undue hardship’’ provisiontakes into account the financial realities ofthe particular employer or other covered en-tity. However, the concept of undue hardshipis not limited to financial difficulty. ‘‘Unduehardship’’ refers to any accommodation thatwould be unduly costly, extensive, substan-tial, or disruptive, or that would fundamen-tally alter the nature or operation of thebusiness. See Senate Report at 35; HouseLabor Report at 67.

For example, suppose an individual with adisabling visual impairment that makes itextremely difficult to see in dim lighting ap-plies for a position as a waiter in a nightcluband requests that the club be brightly lit asa reasonable accommodation. Although theindividual may be able to perform the job inbright lighting, the nightclub will probablybe able to demonstrate that that particularaccommodation, though inexpensive, would

impose an undue hardship if the bright light-ing would destroy the ambience of the night-club and/or make it difficult for the cus-tomers to see the stage show. The fact thatthat particular accommodation poses anundue hardship, however, only means thatthe employer is not required to provide thataccommodation. If there is another accom-modation that will not create an undue hard-ship, the employer would be required to pro-vide the alternative accommodation.

An employer’s claim that the cost of a par-ticular accommodation will impose an unduehardship will be analyzed in light of the fac-tors outlined in part 1630. In part, this anal-ysis requires a determination of whose finan-cial resources should be considered in decid-ing whether the accommodation is undulycostly. In some cases the financial resourcesof the employer or other covered entity inits entirety should be considered in deter-mining whether the cost of an accommoda-tion poses an undue hardship. In other cases,consideration of the financial resources ofthe employer or other covered entity as awhole may be inappropriate because it maynot give an accurate picture of the financialresources available to the particular facilitythat will actually be required to provide theaccommodation. See House Labor Report at68–69; House Judiciary Report at 40–41; seealso Conference Report at 56–57.

If the employer or other covered entity as-serts that only the financial resources of thefacility where the individual will be em-ployed should be considered, part 1630 re-quires a factual determination of the rela-tionship between the employer or other cov-ered entity and the facility that will providethe accommodation. As an example, supposethat an independently owned fast food fran-chise that receives no money from thefranchisor refuses to hire an individual witha hearing impairment because it asserts thatit would be an undue hardship to provide aninterpreter to enable the individual to par-ticipate in monthly staff meetings. Since thefinancial relationship between the franchisorand the franchise is limited to payment of anannual franchise fee, only the financial re-sources of the franchise would be consideredin determining whether or not providing theaccommodation would be an undue hardship.See House Labor Report at 68; House Judici-ary Report at 40.

If the employer or other covered entity canshow that the cost of the accommodationwould impose an undue hardship, it wouldstill be required to provide the accommoda-tion if the funding is available from anothersource, e.g., a State vocational rehabilitationagency, or if Federal, State or local tax de-ductions or tax credits are available to offsetthe cost of the accommodation. If the em-ployer or other covered entity receives, or iseligible to receive, monies from an externalsource that would pay the entire cost of the


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accommodation, it cannot claim cost as anundue hardship. In the absence of such fund-ing, the individual with a disability request-ing the accommodation should be given theoption of providing the accommodation or ofpaying that portion of the cost which con-stitutes the undue hardship on the operationof the business. To the extent that such mon-ies pay or would pay for only part of the costof the accommodation, only that portion ofthe cost of the accommodation that couldnot be recovered—the final net cost to theentity—may be considered in determiningundue hardship. (See § 1630.9 Not MakingReasonable Accommodation). See Senate Re-port at 36; House Labor Report at 69.

Section 1630.2(r) Direct Threat

An employer may require, as a qualifica-tion standard, that an individual not pose adirect threat to the health or safety of him-self/herself or others. Like any other quali-fication standard, such a standard mustapply to all applicants or employees and notjust to individuals with disabilities. If, how-ever, an individual poses a direct threat as aresult of a disability, the employer must de-termine whether a reasonable accommoda-tion would either eliminate the risk or re-duce it to an acceptable level. If no accom-modation exists that would either eliminateor reduce the risk, the employer may refuseto hire an applicant or may discharge an em-ployee who poses a direct threat.

An employer, however, is not permitted todeny an employment opportunity to an indi-vidual with a disability merely because of aslightly increased risk. The risk can only beconsidered when it poses a significant risk,i.e., high probability, of substantial harm; aspeculative or remote risk is insufficient.See Senate Report at 27; House Report LaborReport at 56–57; House Judiciary Report at45.

Determining whether an individual poses asignificant risk of substantial harm to oth-ers must be made on a case by case basis.The employer should identify the specificrisk posed by the individual. For individualswith mental or emotional disabilities, theemployer must identify the specific behavioron the part of the individual that would posethe direct threat. For individuals with phys-ical disabilities, the employer must identifythe aspect of the disability that would posethe direct threat. The employer should thenconsider the four factors listed in part 1630:

(1) The duration of the risk;(2) The nature and severity of the potential

harm;(3) The likelihood that the potential harm

will occur; and(4) The imminence of the potential harm.Such consideration must rely on objective,

factual evidence—not on subjective percep-

tions, irrational fears, patronizing attitudes,or stereotypes—about the nature or effect ofa particular disability, or of disability gen-erally. See Senate Report at 27; House LaborReport at 56–57; House Judiciary Report at45–46. See also Strathie v. Department ofTransportation, 716 F.2d 227 (3d Cir. 1983). Rel-evant evidence may include input from theindividual with a disability, the experienceof the individual with a disability in pre-vious similar positions, and opinions of med-ical doctors, rehabilitation counselors, orphysical therapists who have expertise in thedisability involved and/or direct knowledgeof the individual with the disability.

An employer is also permitted to requirethat an individual not pose a direct threat ofharm to his or her own safety or health. Ifperforming the particular functions of a jobwould result in a high probability of substan-tial harm to the individual, the employercould reject or discharge the individual un-less a reasonable accommodation that wouldnot cause an undue hardship would avert theharm. For example, an employer would notbe required to hire an individual, disabled bynarcolepsy, who frequently and unexpectedlyloses consciousness for a carpentry job theessential functions of which require the useof power saws and other dangerous equip-ment, where no accommodation exists thatwill reduce or eliminate the risk.

The assessment that there exists a highprobability of substantial harm to the indi-vidual, like the assessment that there existsa high probability of substantial harm toothers, must be strictly based on valid med-ical analyses and/or on other objective evi-dence. This determination must be based onindividualized factual data, using the factorsdiscussed above, rather than on stereotypicor patronizing assumptions and must con-sider potential reasonable accommodations.Generalized fears about risks from the em-ployment environment, such as exacerbationof the disability caused by stress, cannot beused by an employer to disqualify an indi-vidual with a disability. For example, a lawfirm could not reject an applicant with a his-tory of disabling mental illness based on ageneralized fear that the stress of trying tomake partner might trigger a relapse of theindividual’s mental illness. Nor can general-ized fears about risks to individuals with dis-abilities in the event of an evacuation orother emergency be used by an employer todisqualify an individual with a disability.See Senate Report at 56; House Labor Reportat 73–74; House Judiciary Report at 45. Seealso Mantolete v. Bolger, 767 F.2d 1416 (9th Cir.1985); Bentivegna v. U.S. Department of Labor,694 F.2d 619 (9th Cir.1982).


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Section 1630.3 Exceptions to the Definitions of‘‘Disability’’ and ‘‘Qualified Individual with aDisability’’

Section 1630.3 (a) through (c) Illegal Use ofDrugs

Part 1630 provides that an individual cur-rently engaging in the illegal use of drugs isnot an individual with a disability for pur-poses of this part when the employer orother covered entity acts on the basis ofsuch use. Illegal use of drugs refers both tothe use of unlawful drugs, such as cocaine,and to the unlawful use of prescriptiondrugs.

Employers, for example, may discharge ordeny employment to persons who illegallyuse drugs, on the basis of such use, withoutfear of being held liable for discrimination.The term ‘‘currently engaging’’ is not in-tended to be limited to the use of drugs onthe day of, or within a matter of days orweeks before, the employment action inquestion. Rather, the provision is intendedto apply to the illegal use of drugs that hasoccurred recently enough to indicate thatthe individual is actively engaged in suchconduct. See Conference Report at 64.

Individuals who are erroneously perceivedas engaging in the illegal use of drugs, butare not in fact illegally using drugs are notexcluded from the definitions of the terms‘‘disability’’ and ‘‘qualified individual with adisability.’’ Individuals who are no longer il-legally using drugs and who have either beenrehabilitated successfully or are in the proc-ess of completing a rehabilitation programare, likewise, not excluded from the defini-tions of those terms. The term ‘‘rehabilita-tion program’’ refers to both in-patient andout-patient programs, as well as to appro-priate employee assistance programs, profes-sionally recognized self-help programs, suchas Narcotics Anonymous, or other programsthat provide professional (not necessarilymedical) assistance and counseling for indi-viduals who illegally use drugs. See Con-ference Report at 64; see also House LaborReport at 77; House Judiciary Report at 47.

It should be noted that this provision sim-ply provides that certain individuals are notexcluded from the definitions of ‘‘disability’’and ‘‘qualified individual with a disability.’’Consequently, such individuals are still re-quired to establish that they satisfy the re-quirements of these definitions in order to beprotected by the ADA and this part. An indi-vidual erroneously regarded as illegallyusing drugs, for example, would have to showthat he or she was regarded as a drug addictin order to demonstrate that he or she meetsthe definition of ‘‘disability’’ as defined inthis part.

Employers are entitled to seek reasonableassurances that no illegal use of drugs is oc-curring or has occurred recently enough sothat continuing use is a real and ongoing

problem. The reasonable assurances that em-ployers may ask applicants or employees toprovide include evidence that the individualis participating in a drug treatment programand/or evidence, such as drug test results, toshow that the individual is not currently en-gaging in the illegal use of drugs. An em-ployer, such as a law enforcement agency,may also be able to impose a qualificationstandard that excludes individuals with ahistory of illegal use of drugs if it can showthat the standard is job-related and con-sistent with business necessity. (See § 1630.10Qualification Standards, Tests and Other Se-lection Criteria) See Conference Report at64.

Section 1630.4 Discrimination Prohibited

This provision prohibits discriminationagainst a qualified individual with a dis-ability in all aspects of the employment re-lationship. The range of employment deci-sions covered by this nondiscriminationmandate is to be construed in a manner con-sistent with the regulations implementingsection 504 of the Rehabilitation Act of 1973.

Part 1630 is not intended to limit the abil-ity of covered entities to choose and main-tain a qualified workforce. Employers cancontinue to use job-related criteria to selectqualified employees, and can continue tohire employees who can perform the essen-tial functions of the job.

Section 1630.5 Limiting, Segregating andClassifying

This provision and the several provisionsthat follow describe various specific forms ofdiscrimination that are included within thegeneral prohibition of § 1630.4. Covered enti-ties are prohibited from restricting the em-ployment opportunities of qualified individ-uals with disabilities on the basis of stereo-types and myths about the individual’s dis-ability. Rather, the capabilities of qualifiedindividuals with disabilities must be deter-mined on an individualized, case by casebasis. Covered entities are also prohibitedfrom segregating qualified employees withdisabilities into separate work areas or intoseparate lines of advancement.

Thus, for example, it would be a violationof this part for an employer to limit the du-ties of an employee with a disability basedon a presumption of what is best for an indi-vidual with such a disability, or on a pre-sumption about the abilities of an individualwith such a disability. It would be a viola-tion of this part for an employer to adopt aseparate track of job promotion or progres-sion for employees with disabilities based ona presumption that employees with disabil-ities are uninterested in, or incapable of, per-forming particular jobs. Similarly, it wouldbe a violation for an employer to assign orreassign (as a reasonable accommodation)


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employees with disabilities to one particularoffice or installation, or to require that em-ployees with disabilities only use particularemployer provided non-work facilities suchas segregated break-rooms, lunch rooms, orlounges. It would also be a violation of thispart to deny employment to an applicant oremployee with a disability based on general-ized fears about the safety of an individualwith such a disability, or based on general-ized assumptions about the absenteeism rateof an individual with such a disability.

In addition, it should also be noted thatthis part is intended to require that employ-ees with disabilities be accorded equal accessto whatever health insurance coverage theemployer provides to other employees. Thispart does not, however, affect pre-existingcondition clauses included in health insur-ance policies offered by employers. Con-sequently, employers may continue to offerpolicies that contain such clauses, even ifthey adversely affect individuals with dis-abilities, so long as the clauses are not usedas a subterfuge to evade the purposes of thispart.

So, for example, it would be permissible foran employer to offer an insurance policythat limits coverage for certain proceduresor treatments to a specified number peryear. Thus, if a health insurance plan pro-vided coverage for five blood transfusions ayear to all covered employees, it would notbe discriminatory to offer this plan simplybecause a hemophiliac employee may requiremore than five blood transfusions annually.However, it would not be permissible to limitor deny the hemophiliac employee coveragefor other procedures, such as heart surgeryor the setting of a broken leg, even thoughthe plan would not have to provide coveragefor the additional blood transfusions thatmay be involved in these procedures. Like-wise, limits may be placed on reimburse-ments for certain procedures or on the typesof drugs or procedures covered (e.g. limits onthe number of permitted X-rays or non-cov-erage of experimental drugs or procedures),but that limitation must be applied equallyto individuals with and without disabilities.See Senate Report at 28–29; House Labor Re-port at 58–59; House Judiciary Report at 36.

Leave policies or benefit plans that areuniformly applied do not violate this partsimply because they do not address the spe-cial needs of every individual with a dis-ability. Thus, for example, an employer thatreduces the number of paid sick leave daysthat it will provide to all employees, or re-duces the amount of medical insurance cov-erage that it will provide to all employees, isnot in violation of this part, even if the bene-fits reduction has an impact on employeeswith disabilities in need of greater sick leaveand medical coverage. Benefits reductionsadopted for discriminatory reasons are inviolation of this part. See Alexander v.

Choate, 469 U.S. 287 (1985). See Senate Reportat 85; House Labor Report at 137. (See also,the discussion at § 1630.16(f) Health Insur-ance, Life Insurance, and Other BenefitPlans).

Section 1630.6 Contractual or OtherArrangements

An employer or other covered entity maynot do through a contractual or other rela-tionship what it is prohibited from doing di-rectly. This provision does not affect the de-termination of whether or not one is a ‘‘cov-ered entity’’ or ‘‘employer’’ as defined in§ 1630.2.

This provision only applies to situationswhere an employer or other covered entityhas entered into a contractual relationshipthat has the effect of discriminating againstits own employees or applicants with disabil-ities. Accordingly, it would be a violation foran employer to participate in a contractualrelationship that results in discriminationagainst the employer’s employees with dis-abilities in hiring, training, promotion, or inany other aspect of the employment rela-tionship. This provision applies whether ornot the employer or other covered entity in-tended for the contractual relationship tohave the discriminatory effect.

Part 1630 notes that this provision appliesto parties on either side of the contractualor other relationship. This is intended tohighlight that an employer whose employeesprovide services to others, like an employerwhose employees receive services, must en-sure that those employees are not discrimi-nated against on the basis of disability. Forexample, a copier company whose servicerepresentative is a dwarf could be required toprovide a stepstool, as a reasonable accom-modation, to enable him to perform the nec-essary repairs. However, the employer wouldnot be required, as a reasonable accommoda-tion, to make structural changes to its cus-tomer’s inaccessible premises.

The existence of the contractual relation-ship adds no new obligations under part 1630.The employer, therefore, is not liablethrough the contractual arrangement forany discrimination by the contractor againstthe contractors own employees or appli-cants, although the contractor, as an em-ployer, may be liable for such discrimina-tion.

An employer or other covered entity, onthe other hand, cannot evade the obligationsimposed by this part by engaging in a con-tractual or other relationship. For example,an employer cannot avoid its responsibilityto make reasonable accommodation subjectto the undue hardship limitation through acontractual arrangement. See ConferenceReport at 59; House Labor Report at 59–61;House Judiciary Report at 36–37.


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To illustrate, assume that an employer isseeking to contract with a company to pro-vide training for its employees. Any respon-sibilities of reasonable accommodation ap-plicable to the employer in providing thetraining remain with that employer even ifit contracts with another company for thisservice. Thus, if the training company wereplanning to conduct the training at an inac-cessible location, thereby making it impos-sible for an employee who uses a wheelchairto attend, the employer would have a duty tomake reasonable accommodation unless todo so would impose an undue hardship.Under these circumstances, appropriate ac-commodations might include (1) having thetraining company identify accessible train-ing sites and relocate the training program;(2) having the training company make thetraining site accessible; (3) directly makingthe training site accessible or providing thetraining company with the means by whichto make the site accessible; (4) identifyingand contracting with another training com-pany that uses accessible sites; or (5) anyother accommodation that would result inmaking the training available to the em-ployee.

As another illustration, assume that in-stead of contracting with a training com-pany, the employer contracts with a hotel tohost a conference for its employees. The em-ployer will have a duty to ascertain and en-sure the accessibility of the hotel and itsconference facilities. To fulfill this obliga-tion the employer could, for example, in-spect the hotel first-hand or ask a local dis-ability group to inspect the hotel. Alter-natively, the employer could ensure that thecontract with the hotel specifies it will pro-vide accessible guest rooms for those whoneed them and that all rooms to be used forthe conference, including exhibit and meet-ing rooms, are accessible. If the hotelbreaches this accessibility provision, thehotel may be liable to the employer, under anon-ADA breach of contract theory, for thecost of any accommodation needed to pro-vide access to the hotel and conference, andfor any other costs accrued by the employer.(In addition, the hotel may also be independ-ently liable under title III of the ADA). How-ever, this would not relieve the employer ofits responsibility under this part nor shieldit from charges of discrimination by its ownemployees. See House Labor Report at 40;House Judiciary Report at 37.

Section 1630.8 Relationship or AssociationWith an Individual With a Disability

This provision is intended to protect anyqualified individual, whether or not that in-dividual has a disability, from discrimina-tion because that person is known to have anassociation or relationship with an indi-vidual who has a known disability. This pro-

tection is not limited to those who have a fa-milial relationship with an individual with adisability.

To illustrate the scope of this provision,assume that a qualified applicant without adisability applies for a job and discloses tothe employer that his or her spouse has adisability. The employer thereupon declinesto hire the applicant because the employerbelieves that the applicant would have tomiss work or frequently leave work early inorder to care for the spouse. Such a refusalto hire would be prohibited by this provision.Similarly, this provision would prohibit anemployer from discharging an employee be-cause the employee does volunteer workwith people who have AIDS, and the em-ployer fears that the employee may contractthe disease.

This provision also applies to other bene-fits and privileges of employment. For exam-ple, an employer that provides health insur-ance benefits to its employees for their de-pendents may not reduce the level of thosebenefits to an employee simply because thatemployee has a dependent with a disability.This is true even if the provision of such ben-efits would result in increased health insur-ance costs for the employer.

It should be noted, however, that an em-ployer need not provide the applicant or em-ployee without a disability with a reasonableaccommodation because that duty only ap-plies to qualified applicants or employeeswith disabilities. Thus, for example, an em-ployee would not be entitled to a modifiedwork schedule as an accommodation to en-able the employee to care for a spouse witha disability. See Senate Report at 30; HouseLabor Report at 61–62; House Judiciary Re-port at 38–39.

Section 1630.9 Not Making ReasonableAccommodation

The obligation to make reasonable accom-modation is a form of non-discrimination. Itapplies to all employment decisions and tothe job application process. This obligationdoes not extend to the provision of adjust-ments or modifications that are primarilyfor the personal benefit of the individualwith a disability. Thus, if an adjustment ormodification is job-related, e.g., specificallyassists the individual in performing the du-ties of a particular job, it will be considereda type of reasonable accommodation. On theother hand, if an adjustment or modificationassists the individual throughout his or herdaily activities, on and off the job, it will beconsidered a personal item that the em-ployer is not required to provide. Accord-ingly, an employer would generally not berequired to provide an employee with a dis-ability with a prosthetic limb, wheelchair, oreyeglasses. Nor would an employer have toprovide as an accommodation any amenityor convenience that is not job-related, such


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as a private hot plate, hot pot or refrigeratorthat is not provided to employees withoutdisabilities. See Senate Report at 31; HouseLabor Report at 62.

It should be noted, however, that the pro-vision of such items may be required as areasonable accommodation where such itemsare specifically designed or required to meetjob-related rather than personal needs. Anemployer, for example, may have to providean individual with a disabling visual impair-ment with eyeglasses specifically designed toenable the individual to use the office com-puter monitors, but that are not otherwiseneeded by the individual outside of the of-fice.

The term ‘‘supported employment,’’ whichhas been applied to a wide variety of pro-grams to assist individuals with severe dis-abilities in both competitive and non-com-petitive employment, is not synonymouswith reasonable accommodation. Examplesof supported employment include modifiedtraining materials, restructuring essentialfunctions to enable an individual to performa job, or hiring an outside professional (‘‘jobcoach’’) to assist in job training. Whether aparticular form of assistance would be re-quired as a reasonable accommodation mustbe determined on an individualized, case bycase basis without regard to whether that as-sistance is referred to as ‘‘supported employ-ment.’’ For example, an employer, under cer-tain circumstances, may be required to pro-vide modified training materials or a tem-porary ‘‘job coach’’ to assist in the trainingof a qualified individual with a disability asa reasonable accommodation. However, anemployer would not be required to restruc-ture the essential functions of a position tofit the skills of an individual with a dis-ability who is not otherwise qualified to per-form the position, as is done in certain sup-ported employment programs. See 34 CFRpart 363. It should be noted that it would notbe a violation of this part for an employer toprovide any of these personal modificationsor adjustments, or to engage in supportedemployment or similar rehabilitative pro-grams.

The obligation to make reasonable accom-modation applies to all services and pro-grams provided in connection with employ-ment, and to all non-work facilities providedor maintained by an employer for use by itsemployees. Accordingly, the obligation toaccommodate is applicable to employersponsored placement or counseling services,and to employer provided cafeterias,lounges, gymnasiums, auditoriums, trans-portation and the like.

The reasonable accommodation require-ment is best understood as a means by whichbarriers to the equal employment oppor-tunity of an individual with a disability areremoved or alleviated. These barriers may,for example, be physical or structural obsta-

cles that inhibit or prevent the access of anindividual with a disability to job sites, fa-cilities or equipment. Or they may be rigidwork schedules that permit no flexibility asto when work is performed or when breaksmay be taken, or inflexible job proceduresthat unduly limit the modes of communica-tion that are used on the job, or the way inwhich particular tasks are accomplished.

The term ‘‘otherwise qualified’’ is intendedto make clear that the obligation to makereasonable accommodation is owed only toan individual with a disability who is quali-fied within the meaning of § 1630.2(m) in thathe or she satisfies all the skill, experience,education and other job-related selection cri-teria. An individual with a disability is ‘‘oth-erwise qualified,’’ in other words, if he or sheis qualified for a job, except that, because ofthe disability, he or she needs a reasonableaccommodation to be able to perform thejob’s essential functions.

For example, if a law firm requires that allincoming lawyers have graduated from anaccredited law school and have passed thebar examination, the law firm need not pro-vide an accommodation to an individualwith a visual impairment who has not metthese selection criteria. That individual isnot entitled to a reasonable accommodationbecause the individual is not ‘‘otherwisequalified’’ for the position.

On the other hand, if the individual hasgraduated from an accredited law school andpassed the bar examination, the individualwould be ‘‘otherwise qualified.’’ The law firmwould thus be required to provide a reason-able accommodation, such as a machine thatmagnifies print, to enable the individual toperform the essential functions of the attor-ney position, unless the necessary accommo-dation would impose an undue hardship onthe law firm. See Senate Report at 33–34;House Labor Report at 64–65.

The reasonable accommodation that is re-quired by this part should provide the quali-fied individual with a disability with anequal employment opportunity. Equal em-ployment opportunity means an opportunityto attain the same level of performance, orto enjoy the same level of benefits and privi-leges of employment as are available to theaverage similarly situated employee withouta disability. Thus, for example, an accommo-dation made to assist an employee with adisability in the performance of his or herjob must be adequate to enable the indi-vidual to perform the essential functions ofthe relevant position. The accommodation,however, does not have to be the ‘‘best’’ ac-commodation possible, so long as it is suffi-cient to meet the job-related needs of the in-dividual being accommodated. Accordingly,an employer would not have to provide anemployee disabled by a back impairmentwith a state-of-the art mechanical lifting de-vice if it provided the employee with a less


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expensive or more readily available devicethat enabled the employee to perform the es-sential functions of the job. See Senate Re-port at 35; House Labor Report at 66; see alsoCarter v. Bennett, 840 F.2d 63 (DC Cir. 1988).

Employers are obligated to make reason-able accommodation only to the physical ormental limitations resulting from the dis-ability of a qualified individual with a dis-ability that is known to the employer. Thus,an employer would not be expected to ac-commodate disabilities of which it is un-aware. If an employee with a known dis-ability is having difficulty performing his orher job, an employer may inquire whetherthe employee is in need of a reasonable ac-commodation. In general, however, it is theresponsibility of the individual with a dis-ability to inform the employer that an ac-commodation is needed. When the need foran accommodation is not obvious, an em-ployer, before providing a reasonable accom-modation, may require that the individualwith a disability provide documentation ofthe need for accommodation.

See Senate Report at 34; House Labor Re-port at 65.

Process of Determining the AppropriateReasonable Accommodation

Once a qualified individual with a dis-ability has requested provision of a reason-able accommodation, the employer mustmake a reasonable effort to determine theappropriate accommodation. The appro-priate reasonable accommodation is best de-termined through a flexible, interactiveprocess that involves both the employer andthe qualified individual with a disability. Al-though this process is described below interms of accommodations that enable the in-dividual with a disability to perform the es-sential functions of the position held or de-sired, it is equally applicable to accommoda-tions involving the job application process,and to accommodations that enable the indi-vidual with a disability to enjoy equal bene-fits and privileges of employment. See Sen-ate Report at 34–35; House Labor Report at65–67.

When a qualified individual with a dis-ability has requested a reasonable accommo-dation to assist in the performance of a job,the employer, using a problem solving ap-proach, should:

(1) Analyze the particular job involved anddetermine its purpose and essential func-tions;

(2) Consult with the individual with a dis-ability to ascertain the precise job-relatedlimitations imposed by the individual’s dis-ability and how those limitations could beovercome with a reasonable accommodation;

(3) In consultation with the individual tobe accommodated, identify potential accom-modations and assess the effectiveness eachwould have in enabling the individual to per-

form the essential functions of the position;and

(4) Consider the preference of the indi-vidual to be accommodated and select andimplement the accommodation that is mostappropriate for both the employee and theemployer.

In many instances, the appropriate reason-able accommodation may be so obvious to ei-ther or both the employer and the qualifiedindividual with a disability that it may notbe necessary to proceed in this step-by-stepfashion. For example, if an employee whouses a wheelchair requests that his or herdesk be placed on blocks to elevate the desk-top above the arms of the wheelchair and theemployer complies, an appropriate accom-modation has been requested, identified, andprovided without either the employee or em-ployer being aware of having engaged in anysort of ‘‘reasonable accommodation proc-ess.’’

However, in some instances neither the in-dividual requesting the accommodation northe employer can readily identify the appro-priate accommodation. For example, the in-dividual needing the accommodation maynot know enough about the equipment usedby the employer or the exact nature of thework site to suggest an appropriate accom-modation. Likewise, the employer may notknow enough about the individual’s dis-ability or the limitations that disabilitywould impose on the performance of the jobto suggest an appropriate accommodation.Under such circumstances, it may be nec-essary for the employer to initiate a moredefined problem solving process, such as thestep-by-step process described above, as partof its reasonable effort to identify the appro-priate reasonable accommodation.

This process requires the individual assess-ment of both the particular job at issue, andthe specific physical or mental limitations ofthe particular individual in need of reason-able accommodation. With regard to assess-ment of the job, ‘‘individual assessment’’means analyzing the actual job duties anddetermining the true purpose or object of thejob. Such an assessment is necessary to as-certain which job functions are the essentialfunctions that an accommodation must en-able an individual with a disability to per-form.

After assessing the relevant job, the em-ployer, in consultation with the individualrequesting the accommodation, should makean assessment of the specific limitations im-posed by the disability on the individual’sperformance of the job’s essential functions.This assessment will make it possible to as-certain the precise barrier to the employ-ment opportunity which, in turn, will makeit possible to determine the accommoda-tion(s) that could alleviate or remove thatbarrier.


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If consultation with the individual in needof the accommodation still does not revealpotential appropriate accommodations, thenthe employer, as part of this process, mayfind that technical assistance is helpful indetermining how to accommodate the par-ticular individual in the specific situation.Such assistance could be sought from theCommission, from State or local rehabilita-tion agencies, or from disability constituentorganizations. It should be noted, however,that, as provided in § 1630.9(c) of this part,the failure to obtain or receive technical as-sistance from the Federal agencies that ad-minister the ADA will not excuse the em-ployer from its reasonable accommodationobligation.

Once potential accommodations have beenidentified, the employer should assess the ef-fectiveness of each potential accommodationin assisting the individual in need of the ac-commodation in the performance of the es-sential functions of the position. If morethan one of these accommodations will en-able the individual to perform the essentialfunctions or if the individual would prefer toprovide his or her own accommodation, thepreference of the individual with a disabilityshould be given primary consideration. How-ever, the employer providing the accommo-dation has the ultimate discretion to choosebetween effective accommodations, and maychoose the less expensive accommodation orthe accommodation that is easier for it toprovide. It should also be noted that the in-dividual’s willingness to provide his or herown accommodation does not relieve the em-ployer of the duty to provide the accommo-dation should the individual for any reasonbe unable or unwilling to continue to providethe accommodation.

Reasonable Accommodation ProcessIllustrated

The following example illustrates the in-formal reasonable accommodation process.Suppose a Sack Handler position requiresthat the employee pick up fifty pound sacksand carry them from the company loadingdock to the storage room, and that a sackhandler who is disabled by a back impair-ment requests a reasonable accommodation.Upon receiving the request, the employeranalyzes the Sack Handler job and deter-mines that the essential function and pur-pose of the job is not the requirement thatthe job holder physically lift and carry thesacks, but the requirement that the job hold-er cause the sack to move from the loadingdock to the storage room.

The employer then meets with the sackhandler to ascertain precisely the barrierposed by the individual’s specific disabilityto the performance of the job’s essentialfunction of relocating the sacks. At thismeeting the employer learns that the indi-

vidual can, in fact, lift the sacks to waistlevel, but is prevented by his or her dis-ability from carrying the sacks from theloading dock to the storage room. The em-ployer and the individual agree that any of anumber of potential accommodations, suchas the provision of a dolly, hand truck, orcart, could enable the individual to transportthe sacks that he or she has lifted.

Upon further consideration, however, it isdetermined that the provision of a cart isnot a feasible effective option. No carts arecurrently available at the company, andthose that can be purchased by the companyare the wrong shape to hold many of thebulky and irregularly shaped sacks thatmust be moved. Both the dolly and the handtruck, on the other hand, appear to be effec-tive options. Both are readily available tothe company, and either will enable the indi-vidual to relocate the sacks that he or shehas lifted. The sack handler indicates his orher preference for the dolly. In considerationof this expressed preference, and because theemployer feels that the dolly will allow theindividual to move more sacks at a time andso be more efficient than would a handtruck, the employer ultimately provides thesack handler with a dolly in fulfillment ofthe obligation to make reasonable accommo-dation.

Section 1630.9(b)

This provision states that an employer orother covered entity cannot prefer or selecta qualified individual without a disabilityover an equally qualified individual with adisability merely because the individualwith a disability will require a reasonableaccommodation. In other words, an individ-ual’s need for an accommodation cannotenter into the employer’s or other coveredentity’s decision regarding hiring, discharge,promotion, or other similar employment de-cisions, unless the accommodation would im-pose an undue hardship on the employer. SeeHouse Labor Report at 70.

Section 1630.9(d)

The purpose of this provision is to clarifythat an employer or other covered entitymay not compel a qualified individual with adisability to accept an accommodation,where that accommodation is neither re-quested nor needed by the individual. How-ever, if a necessary reasonable accommoda-tion is refused, the individual may not beconsidered qualified. For example, an indi-vidual with a visual impairment that re-stricts his or her field of vision but who isable to read unaided would not be required toaccept a reader as an accommodation. How-ever, if the individual were not able to readunaided and reading was an essential func-tion of the job, the individual would not bequalified for the job if he or she refused a


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reasonable accommodation that would en-able him or her to read. See Senate Reportat 34; House Labor Report at 65; House Judi-ciary Report at 71–72.

Section 1630.10 Qualification Standards, Tests,and Other Selection Criteria

The purpose of this provision is to ensurethat individuals with disabilities are not ex-cluded from job opportunities unless theyare actually unable to do the job. It is to en-sure that there is a fit between job criteriaand an applicant’s (or employee’s) actualability to do the job. Accordingly, job cri-teria that even unintentionally screen out,or tend to screen out, an individual with adisability or a class of individuals with dis-abilities because of their disability may notbe used unless the employer demonstratesthat that criteria, as used by the employer,are job-related to the position to which theyare being applied and are consistent withbusiness necessity. The concept of ‘‘businessnecessity’’ has the same meaning as the con-cept of ‘‘business necessity’’ under section504 of the Rehabilitation Act of 1973.

Selection criteria that exclude, or tend toexclude, an individual with a disability or aclass of individuals with disabilities becauseof their disability but do not concern an es-sential function of the job would not be con-sistent with business necessity.

The use of selection criteria that are re-lated to an essential function of the job maybe consistent with business necessity. How-ever, selection criteria that are related to anessential function of the job may not be usedto exclude an individual with a disability ifthat individual could satisfy the criteriawith the provision of a reasonable accommo-dation. Experience under a similar provisionof the regulations implementing section 504of the Rehabilitation Act indicates thatchallenges to selection criteria are, in fact,most often resolved by reasonable accommo-dation. It is therefore anticipated that chal-lenges to selection criteria brought underthis part will generally be resolved in a likemanner.

This provision is applicable to all types ofselection criteria, including safety require-ments, vision or hearing requirements, walk-ing requirements, lifting requirements, andemployment tests. See Senate Report at 37–39; House Labor Report at 70–72; House Judi-ciary Report at 42. As previously noted, how-ever, it is not the intent of this part to sec-ond guess an employer’s business judgmentwith regard to production standards. (Seesection 1630.2(n) Essential Functions). Con-sequently, production standards will gen-erally not be subject to a challenge underthis provision.

The Uniform Guidelines on Employee Se-lection Procedures (UGESP) 29 CFR part 1607do not apply to the Rehabilitation Act andare similarly inapplicable to this part.

Section 1630.11 Administration of Tests

The intent of this provision is to furtheremphasize that individuals with disabilitiesare not to be excluded from jobs that theycan actually perform merely because a dis-ability prevents them from taking a test, ornegatively influences the results of a test,that is a prerequisite to the job. Read to-gether with the reasonable accommodationrequirement of section 1630.9, this provisionrequires that employment tests be adminis-tered to eligible applicants or employeeswith disabilities that impair sensory, man-ual, or speaking skills in formats that do notrequire the use of the impaired skill.

The employer or other covered entity is,generally, only required to provide such rea-sonable accommodation if it knows, prior tothe administration of the test, that the indi-vidual is disabled and that the disability im-pairs sensory, manual or speaking skills.Thus, for example, it would be unlawful toadminister a written employment test to anindividual who has informed the employer,prior to the administration of the test, thathe is disabled with dyslexia and unable toread. In such a case, as a reasonable accom-modation and in accordance with this provi-sion, an alternative oral test should be ad-ministered to that individual. By the sametoken, a written test may need to be sub-stituted for an oral test if the applicant tak-ing the test is an individual with a disabilitythat impairs speaking skills or impairs theprocessing of auditory information.

Occasionally, an individual with a dis-ability may not realize, prior to the adminis-tration of a test, that he or she will need anaccommodation to take that particular test.In such a situation, the individual with a dis-ability, upon becoming aware of the need foran accommodation, must so inform the em-ployer or other covered entity. For example,suppose an individual with a disabling visualimpairment does not request an accommoda-tion for a written examination because he orshe is usually able to take written tests withthe aid of his or her own specially designedlens. When the test is distributed, the indi-vidual with a disability discovers that thelens is insufficient to distinguish the wordsof the test because of the unusually lowcolor contrast between the paper and theink, the individual would be entitled, at thatpoint, to request an accommodation. Theemployer or other covered entity would,thereupon, have to provide a test with highercontrast, schedule a retest, or provide anyother effective accommodation unless to doso would impose an undue hardship.

Other alternative or accessible test modesor formats include the administration oftests in large print or braille, or via a readeror sign interpreter. Where it is not possible


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to test in an alternative format, the em-ployer may be required, as a reasonable ac-commodation, to evaluate the skill to betested in another manner (e.g., through aninterview, or through education license, orwork experience requirements). An employermay also be required, as a reasonable accom-modation, to allow more time to completethe test. In addition, the employer’s obliga-tion to make reasonable accommodation ex-tends to ensuring that the test site is acces-sible. (See § 1630.9 Not Making ReasonableAccommodation) See Senate Report at 37–38;House Labor Report at 70–72; House Judici-ary Report at 42; see also Stutts v. Freeman,694 F.2d 666 (11th Cir. 1983); Crane v. Dole, 617F. Supp. 156 (D.D.C. 1985).

This provision does not require that an em-ployer offer every applicant his or her choiceof test format. Rather, this provision onlyrequires that an employer provide, upon ad-vance request, alternative, accessible teststo individuals with disabilities that impairsensory, manual, or speaking skills neededto take the test.

This provision does not apply to employ-ment tests that require the use of sensory,manual, or speaking skills where the testsare intended to measure those skills. Thus,an employer could require that an applicantwith dyslexia take a written test for a par-ticular position if the ability to read is theskill the test is designed to measure. Simi-larly, an employer could require that an ap-plicant complete a test within establishedtime frames if speed were one of the skillsfor which the applicant was being tested.However, the results of such a test could notbe used to exclude an individual with a dis-ability unless the skill was necessary to per-form an essential function of the positionand no reasonable accommodation was avail-able to enable the individual to perform thatfunction, or the necessary accommodationwould impose an undue hardship.

Section 1630.13 Prohibited MedicalExaminations and Inquiries

Section 1630.13(a) Pre-employmentExamination or Inquiry

This provision makes clear that an em-ployer cannot inquire as to whether an indi-vidual has a disability at the pre-offer stageof the selection process. Nor can an employerinquire at the pre-offer stage about an appli-cant’s workers’ compensation history.

Employers may ask questions that relateto the applicant’s ability to perform job-re-lated functions. However, these questionsshould not be phrased in terms of disability.An employer, for example, may ask whetherthe applicant has a driver’s license, if drivingis a job function, but may not ask whetherthe applicant has a visual disability. Em-ployers may ask about an applicant’s abilityto perform both essential and marginal job

functions. Employers, though, may notrefuse to hire an applicant with a disabilitybecause the applicant’s disability preventshim or her from performing marginal func-tions. See Senate Report at 39; House LaborReport at 72–73; House Judiciary Report at42–43.

Section 1630.13(b) Examination or Inquiryof Employees

The purpose of this provision is to preventthe administration to employees of medicaltests or inquiries that do not serve a legiti-mate business purpose. For example, if anemployee suddenly starts to use increasedamounts of sick leave or starts to appearsickly, an employer could not require thatemployee to be tested for AIDS, HIV infec-tion, or cancer unless the employer can dem-onstrate that such testing is job-related andconsistent with business necessity. See Sen-ate Report at 39; House Labor Report at 75;House Judiciary Report at 44.

Section 1630.14 Medical Examinations andInquiries Specifically Permitted

Section 1630.14(a) Pre-employment Inquiry

Employers are permitted to make pre-em-ployment inquiries into the ability of an ap-plicant to perform job-related functions.This inquiry must be narrowly tailored. Theemployer may describe or demonstrate thejob function and inquire whether or not theapplicant can perform that function with orwithout reasonable accommodation. For ex-ample, an employer may explain that the jobrequires assembling small parts and ask ifthe individual will be able to perform thatfunction, with or without reasonable accom-modation. See Senate Report at 39; HouseLabor Report at 73; House Judiciary Reportat 43.

An employer may also ask an applicant todescribe or to demonstrate how, with orwithout reasonable accommodation, the ap-plicant will be able to perform job-relatedfunctions. Such a request may be made of allapplicants in the same job category regard-less of disability. Such a request may also bemade of an applicant whose known disabilitymay interfere with or prevent the perform-ance of a job-related function, whether ornot the employer routinely makes such a re-quest of all applicants in the job category.For example, an employer may ask an indi-vidual with one leg who applies for a positionas a home washing machine repairman todemonstrate or to explain how, with or with-out reasonable accommodation, he would beable to transport himself and his tools downbasement stairs. However, the employer maynot inquire as to the nature or severity ofthe disability. Therefore, for example, theemployer cannot ask how the individual lost


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the leg or whether the loss of the leg is indic-ative of an underlying impairment.

On the other hand, if the known disabilityof an applicant will not interfere with or pre-vent the performance of a job-related func-tion, the employer may only request a de-scription or demonstration by the applicantif it routinely makes such a request of all ap-plicants in the same job category. So, for ex-ample, it would not be permitted for an em-ployer to request that an applicant with oneleg demonstrate his ability to assemblesmall parts while seated at a table, if theemployer does not routinely request that allapplicants provide such a demonstration.

An employer that requires an applicantwith a disability to demonstrate how he orshe will perform a job-related function musteither provide the reasonable accommoda-tion the applicant needs to perform the func-tion or permit the applicant to explain how,with the accommodation, he or she will per-form the function. If the job-related functionis not an essential function, the employermay not exclude the applicant with a dis-ability because of the applicant’s inability toperform that function. Rather, the employermust, as a reasonable accommodation, eitherprovide an accommodation that will enablethe individual to perform the function,transfer the function to another position, orexchange the function for one the applicantis able to perform.

An employer may not use an applicationform that lists a number of potentially dis-abling impairments and ask the applicant tocheck any of the impairments he or she mayhave. In addition, as noted above, an em-ployer may not ask how a particular indi-vidual became disabled or the prognosis ofthe individual’s disability. The employer isalso prohibited from asking how often the in-dividual will require leave for treatment oruse leave as a result of incapacitation be-cause of the disability. However, the em-ployer may state the attendance require-ments of the job and inquire whether the ap-plicant can meet them.

An employer is permitted to ask, on a testannouncement or application form, that in-dividuals with disabilities who will require areasonable accommodation in order to takethe test so inform the employer within a rea-sonable established time period prior to theadministration of the test. The employermay also request that documentation of theneed for the accommodation accompany therequest. Requested accommodations may in-clude accessible testing sites, modified test-ing conditions and accessible test formats.(See § 1630.11 Administration of Tests).

Physical agility tests are not medical ex-aminations and so may be given at any pointin the application or employment process.Such tests must be given to all similarly sit-uated applicants or employees regardless ofdisability. If such tests screen out or tend to

screen out an individual with a disability ora class of individuals with disabilities, theemployer would have to demonstrate thatthe test is job-related and consistent withbusiness necessity and that performance can-not be achieved with reasonable accommoda-tion. (See § 1630.9 Not Making ReasonableAccommodation: Process of Determining theAppropriate Reasonable Accommodation).

As previously noted, collecting informa-tion and inviting individuals to identifythemselves as individuals with disabilities asrequired to satisfy the affirmative action re-quirements of section 503 of the Rehabilita-tion Act is not restricted by this part. (See§ 1630.1 (b) and (c) Applicability and Con-struction).

Section 1630.14(b) Employment EntranceExamination

An employer is permitted to require post-offer medical examinations before the em-ployee actually starts working. The em-ployer may condition the offer of employ-ment on the results of the examination, pro-vided that all entering employees in thesame job category are subjected to such anexamination, regardless of disability, andthat the confidentiality requirements speci-fied in this part are met.

This provision recognizes that in many in-dustries, such as air transportation or con-struction, applicants for certain positionsare chosen on the basis of many factors in-cluding physical and psychological criteria,some of which may be identified as a resultof post-offer medical examinations givenprior to entry on duty. Only those employeeswho meet the employer’s physical and psy-chological criteria for the job, with or with-out reasonable accommodation, will bequalified to receive confirmed offers of em-ployment and begin working.

Medical examinations permitted by thissection are not required to be job-related andconsistent with business necessity. However,if an employer withdraws an offer of employ-ment because the medical examination re-veals that the employee does not satisfy cer-tain employment criteria, either the exclu-sionary criteria must not screen out or tendto screen out an individual with a disabilityor a class of individuals with disabilities, orthey must be job-related and consistent withbusiness necessity. As part of the showingthat an exclusionary criteria is job-relatedand consistent with business necessity, theemployer must also demonstrate that thereis no reasonable accommodation that willenable the individual with a disability toperform the essential functions of the job.See Conference Report at 59–60; Senate Re-port at 39; House Labor Report at 73–74;House Judiciary Report at 43.

As an example, suppose an employer makesa conditional offer of employment to an ap-plicant, and it is an essential function of the


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job that the incumbent be available to workevery day for the next three months. An em-ployment entrance examination then revealsthat the applicant has a disabling impair-ment that, according to reasonable medicaljudgment that relies on the most currentmedical knowledge, will require treatmentthat will render the applicant unable towork for a portion of the three month period.Under these circumstances, the employerwould be able to withdraw the employmentoffer without violating this part.

The information obtained in the course ofa permitted entrance examination or inquiryis to be treated as a confidential medicalrecord and may only be used in a manner notinconsistent with this part. State workers’compensation laws are not preempted by theADA or this part. These laws require the col-lection of information from individuals forState administrative purposes that do notconflict with the ADA or this part. Con-sequently, employers or other covered enti-ties may submit information to State work-ers’ compensation offices or second injuryfunds in accordance with State workers’compensation laws without violating thispart.

Consistent with this section and with§ 1630.16(f) of this part, information obtainedin the course of a permitted entrance exam-ination or inquiry may be used for insurancepurposes described in § 1630.16(f).

Section 1630.14(c) Examination ofEmployees

This provision permits employers to makeinquiries or require medical examinations(fitness for duty exams) when there is a needto determine whether an employee is stillable to perform the essential functions of hisor her job. The provision permits employersor other covered entities to make inquiriesor require medical examinations necessaryto the reasonable accommodation process de-scribed in this part. This provision also per-mits periodic physicals to determine fitnessfor duty or other medical monitoring if suchphysicals or monitoring are required by med-ical standards or requirements establishedby Federal, State, or local law that are con-sistent with the ADA and this part (or in thecase of a Federal standard, with section 504of the Rehabilitation Act) in that they arejob-related and consistent with business ne-cessity.

Such standards may include Federal safetyregulations that regulate bus and truck driv-er qualifications, as well as laws establishingmedical requirements for pilots or other airtransportation personnel. These standardsalso include health standards promulgatedpursuant to the Occupational Safety andHealth Act of 1970, the Federal Coal MineHealth and Safety Act of 1969, or other simi-lar statutes that require that employees ex-posed to certain toxic and hazardous sub-

stances be medically monitored at specificintervals. See House Labor Report at 74–75.

The information obtained in the course ofsuch examination or inquiries is to be treat-ed as a confidential medical record and mayonly be used in a manner not inconsistentwith this part.

Section 1630.14(d) Other AcceptableExaminations and Inquiries

Part 1630 permits voluntary medical ex-aminations, including voluntary medical his-tories, as part of employee health programs.These programs often include, for example,medical screening for high blood pressure,weight control counseling, and cancer detec-tion. Voluntary activities, such as bloodpressure monitoring and the administeringof prescription drugs, such as insulin, arealso permitted. It should be noted, however,that the medical records developed in thecourse of such activities must be maintainedin the confidential manner required by thispart and must not be used for any purpose inviolation of this part, such as limitinghealth insurance eligibility. House Labor Re-port at 75; House Judiciary Report at 43–44.

Section 1630.15 Defenses

The section on defenses in part 1630 is notintended to be exhaustive. However, it is in-tended to inform employers of some of thepotential defenses available to a charge ofdiscrimination under the ADA and this part.

Section 1630.15(a) Disparate TreatmentDefenses

The ‘‘traditional’’ defense to a charge ofdisparate treatment under title VII, as ex-pressed in McDonnell Douglas Corp. v. Green,411 U.S. 792 (1973), Texas Department of Com-munity Affairs v. Burdine, 450 U.S. 248 (1981),and their progeny, may be applicable tocharges of disparate treatment broughtunder the ADA. See Prewitt v. U.S. PostalService, 662 F.2d 292 (5th Cir. 1981). Disparatetreatment means, with respect to title I ofthe ADA, that an individual was treated dif-ferently on the basis of his or her disability.For example, disparate treatment has oc-curred where an employer excludes an em-ployee with a severe facial disfigurementfrom staff meetings because the employerdoes not like to look at the employee. Theindividual is being treated differently be-cause of the employer’s attitude towards hisor her perceived disability. Disparate treat-ment has also occurred where an employerhas a policy of not hiring individuals withAIDS regardless of the individuals’ qualifica-tions.

The crux of the defense to this type ofcharge is that the individual was treated dif-ferently not because of his or her disabilitybut for a legitimate nondiscriminatory rea-son such as poor performance unrelated to


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the individual’s disability. The fact that theindividual’s disability is not covered by theemployer’s current insurance plan or wouldcause the employer’s insurance premiums orworkers’ compensation costs to increase,would not be a legitimate nondiscriminatoryreason justifying disparate treatment of anindividual with a disability. Senate Reportat 85; House Labor Report at 136 and HouseJudiciary Report at 70. The defense of a le-gitimate nondiscriminatory reason is rebut-ted if the alleged nondiscriminatory reasonis shown to be pretextual.

Section 1630.15 (b) and (c) Disparate ImpactDefenses

Disparate impact means, with respect totitle I of the ADA and this part, that uni-formly applied criteria have an adverse im-pact on an individual with a disability or adisproportionately negative impact on aclass of individuals with disabilities. Section1630.15(b) clarifies that an employer may useselection criteria that have such a disparateimpact, i.e., that screen out or tend to screenout an individual with a disability or a classof individuals with disabilities only whenthey are job-related and consistent withbusiness necessity.

For example, an employer interviews twocandidates for a position, one of whom isblind. Both are equally qualified. The em-ployer decides that while it is not essentialto the job it would be convenient to have anemployee who has a driver’s license and socould occasionally be asked to run errandsby car. The employer hires the individualwho is sighted because this individual has adriver’s license. This is an example of a uni-formly applied criterion, having a driver’spermit, that screens out an individual whohas a disability that makes it impossible toobtain a driver’s permit. The employerwould, thus, have to show that this criterionis job-related and consistent with businessnecessity. See House Labor Report at 55.

However, even if the criterion is job-re-lated and consistent with business necessity,an employer could not exclude an individualwith a disability if the criterion could bemet or job performance accomplished with areasonable accommodation. For example,suppose an employer requires, as part of itsapplication process, an interview that is job-related and consistent with business neces-sity. The employer would not be able torefuse to hire a hearing impaired applicantbecause he or she could not be interviewed.This is so because an interpreter could beprovided as a reasonable accommodationthat would allow the individual to be inter-viewed, and thus satisfy the selection cri-terion.

With regard to safety requirements thatscreen out or tend to screen out an indi-vidual with a disability or a class of individ-uals with disabilities, an employer must

demonstrate that the requirement, as ap-plied to the individual, satisfies the ‘‘directthreat’’ standard in § 1630.2(r) in order toshow that the requirement is job-related andconsistent with business necessity.

Section 1630.15(c) clarifies that there maybe uniformly applied standards, criteria andpolicies not relating to selection that mayalso screen out or tend to screen out an indi-vidual with a disability or a class of individ-uals with disabilities. Like selection criteriathat have a disparate impact, non-selectioncriteria having such an impact may alsohave to be job-related and consistent withbusiness necessity, subject to considerationof reasonable accommodation.

It should be noted, however, that some uni-formly applied employment policies or prac-tices, such as leave policies, are not subjectto challenge under the adverse impact the-ory. ‘‘No-leave’’ policies (e.g., no leave dur-ing the first six months of employment) arelikewise not subject to challenge under theadverse impact theory. However, an em-ployer, in spite of its ‘‘no-leave’’ policy, may,in appropriate circumstances, have to con-sider the provision of leave to an employeewith a disability as a reasonable accommo-dation, unless the provision of leave wouldimpose an undue hardship. See discussion at§ 1630.5 Limiting, Segregating andClassifying, and § 1630.10 Qualification Stand-ards, Tests, and Other Selection Criteria.

Section 1630.15(d) Defense to Not MakingReasonable Accommodation

An employer or other covered entity al-leged to have discriminated because it didnot make a reasonable accommodation, asrequired by this part, may offer as a defensethat it would have been an undue hardship tomake the accommodation.

It should be noted, however, that an em-ployer cannot simply assert that a neededaccommodation will cause it undue hardship,as defined in § 1630.2(p), and thereupon be re-lieved of the duty to provide accommoda-tion. Rather, an employer will have topresent evidence and demonstrate that theaccommodation will, in fact, cause it unduehardship. Whether a particular accommoda-tion will impose an undue hardship for a par-ticular employer is determined on a case bycase basis. Consequently, an accommodationthat poses an undue hardship for one em-ployer at a particular time may not pose anundue hardship for another employer, oreven for the same employer at another time.Likewise, an accommodation that poses anundue hardship for one employer in a par-ticular job setting, such as a temporary con-struction worksite, may not pose an unduehardship for another employer, or even forthe same employer at a permanent worksite.See House Judiciary Report at 42.


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The concept of undue hardship that hasevolved under section 504 of the Rehabilita-tion Act and is embodied in this part is un-like the ‘‘undue hardship’’ defense associatedwith the provision of religious accommoda-tion under title VII of the Civil Rights Act of1964. To demonstrate undue hardship pursu-ant to the ADA and this part, an employermust show substantially more difficulty orexpense than would be needed to satisfy the‘‘de minimis’’ title VII standard of unduehardship. For example, to demonstrate thatthe cost of an accommodation poses anundue hardship, an employer would have toshow that the cost is undue as compared tothe employer’s budget. Simply comparingthe cost of the accommodation to the salaryof the individual with a disability in need ofthe accommodation will not suffice. More-over, even if it is determined that the cost ofan accommodation would unduly burden anemployer, the employer cannot avoid mak-ing the accommodation if the individualwith a disability can arrange to cover thatportion of the cost that rises to the unduehardship level, or can otherwise arrange toprovide the accommodation. Under such cir-cumstances, the necessary accommodationwould no longer pose an undue hardship. SeeSenate Report at 36; House Labor Report at68–69; House Judiciary Report at 40–41.

Excessive cost is only one of several pos-sible bases upon which an employer might beable to demonstrate undue hardship. Alter-natively, for example, an employer coulddemonstrate that the provision of a par-ticular accommodation would be unduly dis-ruptive to its other employees or to the func-tioning of its business. The terms of a collec-tive bargaining agreement may be relevantto this determination. By way of illustra-tion, an employer would likely be able toshow undue hardship if the employer couldshow that the requested accommodation ofthe upward adjustment of the business’ ther-mostat would result in it becoming undulyhot for its other employees, or for its pa-trons or customers. The employer wouldthus not have to provide this accommoda-tion. However, if there were an alternate ac-commodation that would not result in unduehardship, the employer would have to pro-vide that accommodation.

It should be noted, moreover, that the em-ployer would not be able to show undue hard-ship if the disruption to its employees werethe result of those employees fears or preju-dices toward the individual’s disability andnot the result of the provision of the accom-modation. Nor would the employer be able todemonstrate undue hardship by showing thatthe provision of the accommodation has anegative impact on the morale of its otheremployees but not on the ability of theseemployees to perform their jobs.

Section 1630.15(e) Defense—ConflictingFederal Laws and Regulations

There are several Federal laws and regula-tions that address medical standards andsafety requirements. If the alleged discrimi-natory action was taken in compliance withanother Federal law or regulation, the em-ployer may offer its obligation to complywith the conflicting standard as a defense.The employer’s defense of a conflicting Fed-eral requirement or regulation may be rebut-ted by a showing of pretext, or by showingthat the Federal standard did not require thediscriminatory action, or that there was anonexclusionary means to comply with thestandard that would not conflict with thispart. See House Labor Report at 74.

Section 1630.16 Specific Activities Permitted

Section 1630.16(a) Religious Entities

Religious organizations are not exemptfrom title I of the ADA or this part. A reli-gious corporation, association, educationalinstitution, or society may give a preferencein employment to individuals of the par-ticular religion, and may require that appli-cants and employees conform to the reli-gious tenets of the organization. However, areligious organization may not discriminateagainst an individual who satisfies the per-mitted religious criteria because that indi-vidual is disabled. The religious entity, inother words, is required to consider qualifiedindividuals with disabilities who satisfy thepermitted religious criteria on an equal basiswith qualified individuals without disabil-ities who similarly satisfy the religious cri-teria. See Senate Report at 42; House LaborReport at 76–77; House Judiciary Report at46.

Section 1630.16(b) Regulation of Alcohol andDrugs

This provision permits employers to estab-lish or comply with certain standards regu-lating the use of drugs and alcohol in theworkplace. It also allows employers to holdalcoholics and persons who engage in the il-legal use of drugs to the same performanceand conduct standards to which it holds allof its other employees. Individuals disabledby alcoholism are entitled to the same pro-tections accorded other individuals with dis-abilities under this part. As noted above, in-dividuals currently engaging in the illegaluse of drugs are not individuals with disabil-ities for purposes of part 1630 when the em-ployer acts on the basis of such use.

Section 1630.16(c) Drug Testing

This provision reflects title I’s neutralitytoward testing for the illegal use of drugs.Such drug tests are neither encouraged, au-thorized nor prohibited. The results of such


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drug tests may be used as a basis for discipli-nary action. Tests for the illegal use of drugsare not considered medical examinations forpurposes of this part. If the results reveal in-formation about an individual’s medical con-dition beyond whether the individual is cur-rently engaging in the illegal use of drugs,this additional information is to be treatedas a confidential medical record. For exam-ple, if a test for the illegal use of drugs re-veals the presence of a controlled substancethat has been lawfully prescribed for a par-ticular medical condition, this informationis to be treated as a confidential medicalrecord. See House Labor Report at 79; HouseJudiciary Report at 47.

Section 1630.16(e) Infectious andCommunicable Diseases; Food Handling Jobs

This provision addressing food handlingjobs applies the ‘‘direct threat’’ analysis tothe particular situation of accommodatingindividuals with infectious or communicablediseases that are transmitted through thehandling of food. The Department of Healthand Human Services is to prepare a list of in-fectious and communicable diseases that aretransmitted through the handling of food. Ifan individual with a disability has one of thelisted diseases and works in or applies for aposition in food handling, the employer mustdetermine whether there is a reasonable ac-commodation that will eliminate the risk oftransmitting the disease through the han-dling of food. If there is an accommodationthat will not pose an undue hardship, andthat will prevent the transmission of the dis-ease through the handling of food, the em-ployer must provide the accommodation tothe individual. The employer, under thesecircumstances, would not be permitted todiscriminate against the individual becauseof the need to provide the reasonable accom-modation and would be required to maintainthe individual in the food handling job.

If no such reasonable accommodation ispossible, the employer may refuse to assign,or to continue to assign the individual to aposition involving food handling. This meansthat if such an individual is an applicant fora food handling position the employer is notrequired to hire the individual. However, ifthe individual is a current employee, the em-ployer would be required to consider the ac-commodation of reassignment to a vacantposition not involving food handling forwhich the individual is qualified. ConferenceReport at 61–63. (See § 1630.2(r) DirectThreat).

Section 1630.16(f) Health Insurance, LifeInsurance, and Other Benefit Plans

This provision is a limited exemption thatis only applicable to those who establish,sponsor, observe or administer benefit plans,such as health and life insurance plans. It

does not apply to those who establish, spon-sor, observe or administer plans not involv-ing benefits, such as liability insuranceplans.

The purpose of this provision is to permitthe development and administration of ben-efit plans in accordance with accepted prin-ciples of risk assessment. This provision isnot intended to disrupt the current regu-latory structure for self-insured employers.These employers may establish, sponsor, ob-serve, or administer the terms of a bona fidebenefit plan not subject to State laws thatregulate insurance. This provision is also notintended to disrupt the current nature of in-surance underwriting, or current insuranceindustry practices in sales, underwriting,pricing, administrative and other services,claims and similar insurance related activi-ties based on classification of risks as regu-lated by the States.

The activities permitted by this provisiondo not violate part 1630 even if they result inlimitations on individuals with disabilities,provided that these activities are not used asa subterfuge to evade the purposes of thispart. Whether or not these activities arebeing used as a subterfuge is to be deter-mined without regard to the date the insur-ance plan or employee benefit plan wasadopted.

However, an employer or other covered en-tity cannot deny a qualified individual witha disability equal access to insurance or sub-ject a qualified individual with a disabilityto different terms or conditions of insurancebased on disability alone, if the disabilitydoes not pose increased risks. Part 1630 re-quires that decisions not based on risk clas-sification be made in conformity with non-discrimination requirements. See Senate Re-port at 84–86; House Labor Report at 136–138;House Judiciary Report at 70–71. See the dis-cussion of § 1630.5 Limiting, Segregating andClassifying.

[56 FR 35734, July 26, 1991, as amended at 65FR 36327, June 8, 2000]

PART 1640—PROCEDURES FOR CO-ORDINATING THE INVESTIGATIONOF COMPLAINTS OR CHARGESOF EMPLOYMENT DISCRIMINA-TION BASED ON DISABILITY SUB-JECT TO THE AMERICANS WITHDISABILITIES ACT AND SECTION504 OF THE REHABILITATION ACTOF 1973

Sec.1640.1 Purpose and application.1640.2 Definitions.1640.3 Exchange of information.1640.4 Confidentiality.1640.5 Date of receipt.


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1640.6 Processing of complaints of employ-ment discrimination filed with an agencyother than the EEOC.

1640.7 Processing of charges of employmentdiscrimination filed with the EEOC.

1640.8 Processing of complaints or chargesof employment discrimination filed withboth the EEOC and a section 504 agency.

1640.9 Processing of complaints or chargesof employment discrimination filed witha designated agency and either a section504 agency, the EEOC, or both.

1640.10 Section 504 agency review of deferredcomplaints.

1640.11 EEOC review of deferred charges.1640.12 Standards.1640.13 Agency specific memoranda of un-

derstanding.

AUTHORITY: 5 U.S.C. 301; 29 U.S.C. 794(d); 42U.S.C. 12117(b).

SOURCE: 59 FR 39904, 39908, Aug. 4, 1994, un-less otherwise noted.

§ 1640.1 Purpose and application.(a) This part establishes the proce-

dures to be followed by the Federalagencies responsible for processing andresolving complaints or charges of em-ployment discrimination filed againstrecipients of Federal financial assist-ance when jurisdiction exists underboth section 504 and title I.

(b) This part also repeats the provi-sions established by 28 CFR 35.171 fordetermining which Federal agencyshall process and resolve complaints orcharges of employment discrimination:

(1) That fall within the overlappingjurisdiction of titles I and II (but arenot covered by section 504); and

(2) That are covered by title II, butnot title I (whether or not they arealso covered by section 504).

(c) This part also describes the proce-dures to be followed when a complaintor charge arising solely under section504 or title I is filed with a section 504agency or the EEOC.

(d) This part does not apply to com-plaints or charges against Federal con-tractors under section 503 of the Reha-bilitation Act.

(e) This part does not create rights inany person or confer agency jurisdic-tion not created or conferred by theADA or section 504 over any complaintor charge.

§ 1640.2 Definitions.As used in this part, the term:

Americans with Disabilities Act of 1990or ADA means the Americans with Dis-abilities Act of 1990 (Pub. L. 101–336, 104Stat. 327, 42 U.S.C. 12101–12213 and 47U.S.C. 225 and 611).

Assistant Attorney General refers tothe Assistant Attorney General, CivilRights Division, United States Depart-ment of Justice, or his or her designee.

Chairman of the Equal Employment Op-portunity Commission refers to theChairman of the United States EqualEmployment Opportunity Commission,or his or her designee.

Civil Rights Division means the CivilRights Division of the United StatesDepartment of Justice.

Designated agency means any one ofthe eight agencies designated under§ 35.190 of 28 CFR part 35 (the Depart-ment’s title II regulation) to imple-ment and enforce title II of the ADAwith respect to the functional areaswithin their jurisdiction.

Dual-filed complaint or charge means acomplaint or charge of employmentdiscrimination that:

(1) Arises under both section 504 andtitle I;

(2) Has been filed with both a section504 agency that has jurisdiction undersection 504 and with the EEOC, whichhas jurisdiction under title I; and

(3) Alleges the same facts and raisesthe same issues in both filings.

Due weight shall mean, with respectto the weight a section 504 agency orthe EEOC shall give to the other agen-cy’s findings and conclusions, such fulland careful consideration as is appro-priate, taking into account such fac-tors as:

(1) The extent to which the under-lying investigation is complete and theevidence is supportive of the findingsand conclusions;

(2) The nature and results of any sub-sequent proceedings;

(3) The extent to which the findings,conclusions and any actions taken:

(i) Under title I are consistent withthe effective enforcement of section504; or

(ii) Under section 504 are consistentwith the effective enforcement of titleI; and

(4) The section 504 agency’s respon-sibilities under section 504 or theEEOC’s responsibilities under title I.


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Equal Employment Opportunity Com-mission or EEOC refers to the UnitedStates Equal Employment OpportunityCommission, and, when appropriate, toany of its headquarters, district, area,local, or field offices.

Federal financial assistance shall havethe meaning, with respect to each sec-tion 504 agency, as defined in suchagency’s regulations implementing sec-tion 504 for Federally- assisted pro-grams.

Program or activity shall have themeaning defined in the RehabilitationAct of 1973 (Pub. L. 93–112, 87 Stat. 394,29 U.S.C. 794), as amended.

Public entity means:(1) Any State or local government;(2) Any department, agency, special

purpose district, or other instrumen-tality of a State or States or local gov-ernment; and

(3) The National Railroad PassengerCorporation, and any commuter au-thority (as defined in section 103(8) ofthe Rail Passenger Service Act, 45U.S.C. 502(8)).

Recipient means any State, politicalsubdivision of any State, or instrumen-tality of any State or political subdivi-sion, any public or private agency, in-stitution, organization, or other enti-ty, or any individual, in any State, towhom Federal financial assistance isextended, directly or through anotherrecipient, for any program, includingany successor, assignee, or transfereethereof, but such term does not includeany ultimate beneficiary under suchprogram.

Section 504 means section 504 of theRehabilitation Act of 1973 (Pub. L. 93–112, 87 Stat. 394, 29 U.S.C. 794), asamended.

Section 504 agency means any Federaldepartment or agency that extendsFederal financial assistance to pro-grams or activities of recipients.

Title I means title I of the ADA.Title II means subtitle A of title II of

the ADA.

§ 1640.3 Exchange of information.The EEOC, section 504 agencies, and

designated agencies shall share any in-formation relating to the employmentpolicies and practices of a respondentthat may assist each agency in car-rying out its responsibilities, to the ex-

tent permissible by law. Such informa-tion shall include, but is not limitedto, complaints, charges, investigativefiles, compliance review reports andfiles, affirmative action programs, andannual employment reports.

§ 1640.4 Confidentiality.(a) When a section 504 agency or a

designated agency receives informationobtained by the EEOC, such agencyshall observe the confidentiality re-quirements of section 706(b) and sec-tion 709(e) of the Civil Rights Act of1964, as amended (42 U.S.C. 2000e-5(b)and 2000e-8(e)), as incorporated by sec-tion 107(a) of the ADA, to the same ex-tent as these provisions would bind theEEOC, except when the agency receivesthe same information from a sourceindependent of the EEOC. Agency ques-tions concerning the confidentiality re-quirements of title I shall be directedto the Associate Legal Counsel forLegal Services, Office of Legal Counsel,the EEOC.

(b) When the EEOC receives informa-tion from a section 504 or a designatedagency, the EEOC shall observe anyconfidentiality requirements applica-ble to that information.

§ 1640.5 Date of receipt.A complaint or charge of employ-

ment discrimination is deemed to befiled, for purposes of determining time-liness, on the date the complaint orcharge is first received by a Federalagency with section 504 or ADA juris-diction, regardless of whether it is sub-sequently transferred to another agen-cy for processing.

§ 1640.6 Processing of complaints ofemployment discrimination filedwith an agency other than theEEOC.

(a) Agency determination of jurisdic-tion. Upon receipt of a complaint ofemployment discrimination, an agencyother than the EEOC shall:

(1) Determine whether it has jurisdic-tion over the complaint under section504 or under title II of the ADA; and

(2) Determine whether the EEOC mayhave jurisdiction over the complaintunder title I of the ADA.

(b) Referral to the Civil Rights Division.If the agency determines that it does


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not have jurisdiction under section 504or title II, and determines that theEEOC does not have jurisdiction undertitle I, the agency shall promptly referthe complaint to the Civil Rights Divi-sion. The Civil Rights Division shalldetermine if another Federal agencymay have jurisdiction over the com-plaint under section 504 or title II, and,if so, shall promptly refer the com-plaint to a section 504 or a designatedagency with jurisdiction over the com-plaint.

(c) Referral to the EEOC—(1) Referralby an agency without jurisdiction. If anagency determines that it does nothave jurisdiction over a complaint ofemployment discrimination under ei-ther section 504 or title II and deter-mines that the EEOC may have juris-diction under title I, the agency shallpromptly refer the complaint to theEEOC for investigation and processingunder title I of the ADA.

(2) Referral by a section 504 agency. (i)A section 504 agency that otherwise hasjurisdiction over a complaint of em-ployment discrimination under section504 shall promptly refer to the EEOC,for investigation and processing undertitle I of the ADA, any complaint ofemployment discrimination that solelyalleges discrimination against an indi-vidual (and that does not allege dis-crimination in both employment and inother practices or services of the re-spondent or a pattern or practice ofemployment discrimination), unless:

(A) The section 504 agency deter-mines that the EEOC does not have ju-risdiction over the complaint undertitle I; or

(B) The EEOC has jurisdiction overthe complaint under title I, but thecomplainant, either independently, orfollowing receipt of the notificationletter required to be sent to the com-plainant pursuant to paragraph(c)(2)(ii) of this section, specifically re-quests that the complaint be inves-tigated by the section 504 agency.

(ii) Prior to referring an individualcomplaint of employment discrimina-tion to the EEOC pursuant to para-graph (c)(2)(i) of this section (but notprior to making such a referral pursu-ant to paragraph (c)(1) of this section),a section 504 agency that otherwise hasjurisdiction over the complaint shall

promptly notify the complainant, inwriting, of its intention to make sucha referral. The notice letter shall:

(A) Inform the complainant that, un-less the agency receives a written re-quest from the complainant withintwenty days of the date of the noticeletter requesting that the agency re-tain the complaint for investigation,the agency will forward the complaintto the EEOC for investigation andprocessing; and

(B) Describe the basic procedural dif-ferences between an investigationunder section 504 and an investigationunder title I, and inform the complain-ant of the potential for differing rem-edies under each statute.

(3) Referral by a designated agency. Adesignated agency that does not havesection 504 jurisdiction over a com-plaint of employment discriminationand that has determined that theEEOC may have jurisdiction over thecomplaint under title I shall promptlyrefer the complaint to the EEOC.

(4) Processing of complaints referred tothe EEOC. (i) A complaint referred tothe EEOC in accordance with this sec-tion by an agency with jurisdictionover the complaint under section 504shall be deemed to be a dual-filed com-plaint under section 504 and title I.When a section 504 agency with juris-diction over a complaint refers thecomplaint to the EEOC, the section 504agency shall defer its processing of thecomplaint pursuant to § 1640.10, pendingresolution by the EEOC.

(ii) A complaint referred to the EEOCby an agency that has jurisdiction overthe complaint solely under title II (andnot under section 504) will be treated asa complaint filed under title I only.

(iii) Any complaint referred to theEEOC pursuant to this section shall beprocessed by the EEOC under its title Iprocedures.

(d) Retention by the agency for inves-tigation—(1) Retention by a section 504agency. A section 504 agency shall re-tain a complaint for investigationwhen the agency determines that it hasjurisdiction over the complaint undersection 504, and one or more of the fol-lowing conditions are met:

(i) The EEOC does not have jurisdic-tion over the complaint under title I;or


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(ii) The EEOC has jurisdiction overthe complaint, but the complainantelects to have the section 504 agencyprocess the complaint and the section504 agency receives a written requestfrom the complainant for section 504agency processing within twenty daysof the date of the notice letter requiredto be sent pursuant to paragraph(c)(2)(ii) of this section; or

(iii) The complaint alleges discrimi-nation in both employment and inother practices or services of the re-spondent that are covered by section504; or

(iv) The complaint alleges a patternor practice of employment discrimina-tion.

(2) Retention by a designated agency. Adesignated agency that does not havejurisdiction over the complaint undersection 504 shall retain a complaint forinvestigation when the agency deter-mines that it has jurisdiction over thecomplaint under title II of the ADAand that the EEOC does not have juris-diction over the complaint under titleI.

(3) Processing of complaints retained byan agency. Any complaint retained forinvestigation and processing by anagency pursuant to paragraphs (d)(1)and (d)(2) of this section will be inves-tigated and processed under section504, title II, or both, as applicable, andwill not be considered to be dual filedunder title I.

§ 1640.7 Processing of charges of em-ployment discrimination filed withthe EEOC.

(a) EEOC determination of jurisdiction.Upon receipt of a charge of employ-ment discrimination, the EEOC shall:

(1) Determine whether it has jurisdic-tion over the charge under title I of theADA. If it has jurisdiction, except asprovided in paragraph (b)(2) of this sec-tion, the EEOC shall process the chargepursuant to title I procedures.

(2) If the EEOC determines that itdoes not have jurisdiction under title I,the EEOC shall promptly refer thecharge to the Civil Rights Division.The Civil Rights Division shall deter-mine if a Federal agency may have ju-risdiction over the charge under sec-tion 504 or title II, and, if so, shall referthe charge to a section 504 agency or to

a designated agency with jurisdictionover the complaint.

(b) Retention by the EEOC for inves-tigation. (1) The EEOC shall retain acharge for investigation when it deter-mines that it has jurisdiction over thecharge under title I.

(2) Referral to an agency. Any chargeretained by the EEOC for investigationand processing will be investigated andprocessed under title I only, and willnot be deemed dual filed under section504, except that ADA cause charges (asdefined in 29 CFR 1601.21) that also fallwithin the jurisdiction of a section 504agency and that the EEOC (or the CivilRights Division, if such a charge isagainst a government, governmentalagency, or political subdivision) hasdeclined to litigate shall be referred tothe appropriate section 504 agency forreview of the file and any administra-tive or other action deemed appro-priate under section 504. Such chargesshall be deemed complaints, dual filedunder section 504, solely for the pur-poses of the agency review and actiondescribed in this paragraph. The dateof such dual filing shall be deemed tobe the date the complaint was receivedby the EEOC.

§ 1640.8 Processing of complaints orcharges of employment discrimina-tion filed with both the EEOC and asection 504 agency.

(a) Procedures for handling dual-filedcomplaints or charges. As between theEEOC and a section 504 agency, exceptas provided in paragraph (e) of this sec-tion, a complaint or charge of employ-ment discrimination that is dual filedwith both the EEOC and a section 504agency shall be processed as follows:

(1) EEOC processing. The EEOC shallinvestigate and process the chargewhen the EEOC determines that it hasjurisdiction over the charge under titleI and the charge solely alleges employ-ment discrimination against an indi-vidual, unless the charging party electsto have the section 504 agency processthe charge and the section 504 agencyreceives a written request from thecomplainant for section 504 agencyprocessing within twenty days of thedate of the notice letter required to besent pursuant to § 1640.6(c)(2)(ii).


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(2) Section 504 agency processing. Asection 504 agency shall investigateand process the complaint when theagency determines that it has jurisdic-tion over the complaint under section504, and:

(i) The complaint alleges discrimina-tion in both employment and in otherpractices or services of the respondent;or

(ii) The complaint alleges a patternor practice of discrimination in em-ployment; or

(iii) In the case of a complaint solelyalleging employment discriminationagainst an individual, the complainantelects to have a section 504 agencyprocess the complaint and the section504 agency receives a written requestfrom the complainant for section 504agency processing within twenty daysof the date of the notice letter requiredto be sent pursuant to § 1640.6(c)(2)(ii).

(b) Referral to the Civil Rights Division.If the EEOC determines that it doesnot have jurisdiction under title I, andthe section 504 agency determines thatit does not have jurisdiction under sec-tion 504 or title II, the complaint orcharge shall be promptly referred tothe Civil Rights Division. The CivilRights Division shall determine if an-other Federal agency may have juris-diction over the complaint under sec-tion 504 or title II, and, if so, shallpromptly refer the complaint to a sec-tion 504 or a designated agency with ju-risdiction over the complaint.

(c) Procedures for determining whethera complaint or charge has been dual filed.The EEOC and each agency with juris-diction to investigate and process com-plaints of employment discriminationunder section 504 shall jointly developprocedures for determining whethercomplaints or charges of discrimina-tion have been dual filed with theEEOC and with one or more otheragencies.

(d) Notification of deferral. The agencyrequired to process a dual-filed com-plaint or charge under this sectionshall notify the complainant or charg-ing party and the respondent that thecomplaint or charge was dual filed withone or more other agencies and thatsuch other agencies have agreed todefer processing and will take no fur-

ther action except as provided in§ 1640.10 or § 1640.11, as applicable.

(e) Exceptions. When special cir-cumstances make deferral as providedin this section inappropriate, theEEOC, and an agency with investiga-tive authority under section 504, mayjointly determine to reallocate inves-tigative responsibilities. Special cir-cumstances include, but are not lim-ited to, cases in which the EEOC hasalready commenced its investigationat the time that the agency discoversthat the complaint or charge is a dual-filed complaint or charge in which thecomplainant has elected section 504processing, alleged discrimination inboth employment and in other prac-tices or services of the respondent, oralleged a pattern or practice of em-ployment discrimination.

§ 1640.9 Processing of complaints orcharges of employment discrimina-tion filed with a designated agencyand either a section 504 agency, theEEOC, or both.

(a) Designated agency processing. Adesignated agency shall investigateand process a complaint that has beenfiled with it and with the EEOC, a sec-tion 504 agency, or both, when either ofthe following conditions is met:

(1) The designated agency determinesthat it has jurisdiction over the com-plaint under title II and that neitherthe EEOC nor a section 504 agency(other than the designated agency, ifthe designated agency is also a section504 agency) has jurisdiction over thecomplaint; or

(2) The designated agency determinesthat it has jurisdiction over the com-plaint under section 504 and the com-plaint meets the requirements for proc-essing by a section 504 agency set forthin § 1640.8(a)(2).

(b) Referral by a designated agency. Adesignated agency that has jurisdictionover a complaint solely under title II(and not under section 504) shall for-ward a complaint that has been filedwith it and with the EEOC, a section504 agency, or both, to either the EEOCor to a section 504 agency, as follows:

(1) If the designated agency deter-mines that the EEOC is the sole agen-cy, other than the designated agency,with jurisdiction over the complaint,the designated agency shall forward


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the complaint to the EEOC for proc-essing under title I; or

(2) If the designated agency deter-mines that the section 504 agency isthe sole agency, other than the des-ignated agency, with jurisdiction overthe complaint, the designated agencyshall forward the complaint to the sec-tion 504 agency for processing undersection 504; or

(3) If the designated agency deter-mines that both the EEOC and a sec-tion 504 agency have jurisdiction overthe complaint, the designated agencyshall forward the complaint to theEEOC if it determines that the com-plaint solely alleges employment dis-crimination against an individual, or itshall forward the complaint to the sec-tion 504 agency if it determines thatthe complaint meets the requirementsfor processing by a section 504 agencyset out in § 1640.8(a)(2)(i) or (a)(2)(ii).

§ 1640.10 Section 504 agency review ofdeferred complaints.

(a) Deferral by the section 504 agency.When a section 504 agency refers acomplaint to the EEOC pursuant to§ 1640.6(c)(2) or when it is determinedthat, as between the EEOC and a sec-tion 504 agency, the EEOC is the agen-cy that shall process a dual-filed com-plaint or charge under § 1640.8(a)(1) or§ 1640.8(e), the section 504 agency shalldefer further action until:

(1) The EEOC issues a no cause find-ing and a notice of right-to-sue pursu-ant to 29 CFR 1601.19; or

(2) The EEOC enters into a concilia-tion agreement; or

(3) The EEOC issues a cause findingand a notice of failure of conciliationpursuant to 29 CFR 1601.21, and:

(i) If the recipient is not a govern-ment, governmental agency, or polit-ical subdivision, the EEOC completesenforcement proceedings or issues a no-tice of right-to-sue in accordance with29 CFR 1601.28; or

(ii) If the recipient is a government,governmental agency, or political sub-division, the EEOC refers the charge tothe Civil Rights Division in accordancewith 29 CFR 1601.29, and the CivilRights Division completes enforcementproceedings or issues a notice of right-to-sue in accordance with 29 CFR1601.28(d); or

(4) The EEOC or, when a case hasbeen referred pursuant to 29 CFR1601.29, the Civil Rights Division, oth-erwise resolves the charge.

(b) Notification of the deferring agency.The EEOC or the Civil Rights Division,as appropriate, shall notify the agencythat has deferred processing of thecharge upon resolution of any dual-filed complaint or charge.

(c) Agency review. After receipt of no-tification that the EEOC or the CivilRights Division, as appropriate, has re-solved the complaint or charge, theagency shall promptly determine whatfurther action by the agency is war-ranted. In reaching that determina-tion, the agency shall give due weightto the findings and conclusions of theEEOC and to those of the Civil RightsDivision, as applicable. If the agencyproposes to take an action inconsistentwith the EEOC’s or the Civil Rights Di-vision’s findings and conclusions as towhether a violation has occurred, theagency shall notify in writing the As-sistant Attorney General, the Chair-man of the EEOC, and the head of theEEOC office that processed the com-plaint. In the written notification, theagency shall state the action that itproposes to take and the basis of its de-cision to take such action.

(d) Provision of information. Uponwritten request, the EEOC or the CivilRights Division shall provide the sec-tion 504 agency with any materials re-lating to its resolution of the charge,including its findings and conclusions,investigative reports and files, and anyconciliation agreement.

§ 1640.11 EEOC review of deferredcharges.

(a) Deferral by the EEOC. When it isdetermined that a section 504 agency isthe agency that shall process a dual-filed complaint or charge under§ 1640.8(a)(2) or § 1640.8(e), the EEOCshall defer further action until the sec-tion 504 agency takes one of the fol-lowing actions:

(1) Makes a finding that a violationhas not occurred;

(2) Enters into a voluntary compli-ance agreement;

(3) Following a finding that a viola-tion has occurred, refers the complaintto the Civil Rights Division for judicial


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enforcement and the Civil Rights Divi-sion resolves the complaint;

(4) Following a finding that a viola-tion has occurred, resolves the com-plaint through final administrative en-forcement action; or

(5) Otherwise resolves the charge.(b) Notification of the EEOC. The sec-

tion 504 agency shall notify the EEOCupon resolution of any dual-filed com-plaint or charge.

(c) Agency review. After receipt of no-tification that the section 504 agencyhas resolved the complaint, the EEOCshall promptly determine what furtheraction by the EEOC is warranted. Inreaching that determination, the EEOCshall give due weight to the section 504agency’s findings and conclusions. Ifthe EEOC proposes to take an actioninconsistent with the section 504 agen-cy’s findings and conclusions as towhether a violation has occurred, theEEOC shall notify in writing the As-sistant Attorney General, the Chair-man of the EEOC, and the head of thesection 504 agency that processed thecomplaint. In the written notification,the EEOC shall state the action that itproposes to take and the basis of its de-cision to take such action.

(d) Provision of information. Uponwritten request, the section 504 agencyshall provide the EEOC with any mate-rials relating to its resolution of thecomplaint, including its conclusions,investigative reports and files, and anyvoluntary compliance agreement.

§ 1640.12 Standards.

In any investigation, compliance re-view, hearing or other proceeding, thestandards used to determine whethersection 504 has been violated in a com-plaint alleging employment discrimi-nation shall be the standards appliedunder title I of the ADA and the provi-sions of sections 501 through 504, and510, of the ADA, as such sections relateto employment. Section 504 agenciesshall consider the regulations and ap-pendix implementing title I of theADA, set forth at 29 CFR part 1630, andcase law arising under such regula-tions, in determining whether a recipi-ent of Federal financial assistance hasengaged in an unlawful employmentpractice.

§ 1640.13 Agency specific memorandaof understanding.

When a section 504 agency amends itsregulations to make them consistentwith title I of the ADA, the EEOC andthe individual section 504 agency mayelect to enter into a memorandum ofunderstanding providing for the inves-tigation and processing of complaintsdual filed under both section 504 andtitle I of the ADA by the section 504agency.

PART 1641—PROCEDURES FORCOMPLAINTS/CHARGES OF EM-PLOYMENT DISCRIMINATIONBASED ON DISABILITY FILEDAGAINST EMPLOYERS HOLDINGGOVERNMENT CONTRACTS ORSUBCONTRACTS

Sec.1641.1 Purpose and application.1641.2 Exchange of information.1641.3 Confidentiality.1641.4 Standards for investigations, hear-

ings, determinations and other pro-ceedings.

1641.5 Processing of complaints filed withOFCCP.

1641.6 Processing of charges filed withEEOC.

1641.7 Review of this part.1641.8 Definitions.

AUTHORITY: 42 U.S.C. 12117(b).

SOURCE: 57 FR 2962, 2964, Jan. 24, 1992, un-less otherwise noted.

§ 1641.1 Purpose and application.The purpose of this part is to imple-

ment procedures for processing and re-solving complaints/charges of employ-ment discrimination filed against em-ployers holding government contractsor subcontracts, where the complaints/charges fall within the jurisdiction ofboth section 503 of the RehabilitationAct of 1973 (hereinafter ‘‘Section 503’’)and the Americans with DisabilitiesAct of 1990 (hereinafter ‘‘ADA’’). Thepromulgation of this part is requiredpursuant to section 107(b) of the ADA.Nothing in this part should be deemedto affect the Department of Labor’s(hereinafter ‘‘DOL’’) Office of FederalContract Compliance Programs’ (here-inafter ‘‘OFCCP’’) conduct of compli-ance reviews of government contrac-tors and subcontractors under section


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503. Nothing in this part is intended tocreate rights in any person.

§ 1641.2 Exchange of information.(a) EEOC and OFCCP shall share any

information relating to the employ-ment policies and practices of employ-ers holding government contracts orsubcontracts that may assist each of-fice in carrying out its responsibilities.Such information shall include, but notnecessarily be limited to, affirmativeaction programs, annual employmentreports, complaints, charges, investiga-tive files, and compliance review re-ports and files.

(b) All requests by third parties fordisclosure of the information describedin paragraph (a) of this section shall becoordinated with the agency which ini-tially compiled or collected the infor-mation.

(c) Paragraph (b) of this section isnot applicable to requests for data inEEOC files made by any State or localagency designated as a ‘‘FEP agency’’with which EEOC has a charge resolu-tion contract and a work-sharingagreement containing the confiden-tiality requirements of sections 706(b)and 709(e) of title VII of the CivilRights Act of 1964 (42 U.S.C. 2000e etseq.). However, such an agency shallnot disclose any of the information,initially compiled by OFCCP, to thepublic without express written ap-proval by the Director of OFCCP.

§ 1641.3 Confidentiality.When the Department of Labor re-

ceives information obtained by EEOC,the Department of Labor shall observethe confidentiality requirements ofsections 706(b) and 709(e) of title VII ofthe Civil Rights Act of 1964, as incor-porated by section 107(a) of the ADA,as would EEOC, except in cases whereDOL receives the same informationfrom a source independent of EEOC.Questions concerning confidentialityshall be directed to the Associate LegalCounsel for Legal Services, Office ofLegal Counsel of EEOC.

§ 1641.4 Standards for investigations,hearings, determinations and otherproceedings.

In any OFCCP investigation, hearing,determination or other proceeding in-

volving a complaint/charge that is dualfiled under both section 503 and theADA, OFCCP will utilize legal stand-ards consistent with those appliedunder the ADA in determining whetheran employer has engaged in an unlaw-ful employment practice. EEOC andOFCCP will coordinate the arrange-ment of any necessary training regard-ing the substantive or procedural pro-visions of the ADA, and of EEOC’s im-plementing regulations (29 CFR part1630 and 29 CFR part 1601).

§ 1641.5 Processing of complaints filedwith OFCCP.

(a) Complaints of employment dis-crimination filed with OFCCP will beconsidered charges, simultaneouslydual filed, under the ADA whenever thecomplaints also fall within the juris-diction of the ADA. OFCCP will act asEEOC’s agent for the sole purposes ofreceiving, investigating and processingthe ADA charge component of a section503 complaint dual filed under theADA, except as otherwise set forth inparagraph (e) of this section.

(b) Within ten days of receipt of acomplaint of employment discrimina-tion under section 503 (charge underthe ADA), OFCCP shall notify the con-tractor/respondent that it has receiveda complaint of employment discrimina-tion under section 503 (charge underthe ADA). This notification shall statethe date, place and circumstances ofthe alleged unlawful employment prac-tice.

(c) Pursuant to work-sharing agree-ments between EEOC and State andlocal agencies designated as FEP agen-cies, the deferral period for section 503complaints/ADA charges dual filedwith OFCCP will be waived.

(d) OFCCP shall transfer promptly toEEOC a complaint of employment dis-crimination over which it does nothave jurisdiction but over which EEOCmay have jurisdiction. At the sametime, OFCCP shall notify the com-plainant and the contractor/respondentof the transfer, the reason for thetransfer, the location of the EEOC of-fice to which the complaint was trans-ferred and that the date OFCCP re-ceived the complaint will be deemedthe date it was received by EEOC.


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(e) OFCCP shall investigate and proc-ess as set forth in this section all sec-tion 503 complaints/ADA charges dualfiled with OFCCP, except as specifi-cally provided in this paragraph. Sec-tion 503 complaints/ADA charges rais-ing Priority List issues, those whichalso include allegations of discrimina-tion of an individual nature on thebasis of race, color, religion, sex, or na-tional origin, and those which also in-clude an allegation of discriminationon the basis of age will be referred intheir entirety by OFCCP to EEOC forinvestigation, processing and final res-olution, provided that such complaints/charges do not include allegations ofviolation of affirmative action require-ments under section 503. In such a situ-ation, OFCCP will bifurcate the com-plaints/charges and refer to EEOC thePriority List issues or allegations ofdiscrimination on the basis of race,color, religion, sex, national origin, orage. OFCCP shall normally retain, in-vestigate, process and resolve all alle-gations of discrimination, over whichit has jurisdiction, of a systemic orclass nature on the basis of race, color,religion, sex, or national origin that itreceives. However, in appropriate casesthe EEOC may request that it be re-ferred such allegations so as to avoidduplication of effort and assure effec-tive law enforcement.

(1) No cause section 503 complaints/ADAcharges. If the OFCCP investigation ofthe section 503 complaint/ADA chargeresults in a finding of no violationunder section 503 (no cause under theADA), OFCCP will issue a determina-tion of no violation/no cause underboth section 503 and the ADA, and issuea right-to-sue letter under the ADA,closing the complaint/charge.

(2) Cause section 503 complaints/ADAcharges—(i) Successful conciliation. Ifthe OFCCP investigation of the section503 complaint/ADA charge results in afinding of violation under section 503(cause under the ADA), OFCCP willissue a finding of violation/cause underboth section 503 and ADA. OFCCP shallattempt conciliation to obtain appro-priate full relief for the complainant(charging party), consistent withEEOC’s standards for remedies. If con-ciliation is successful and the con-tractor/respondent agrees to provide

full relief, the section 503 complaint/ADA charge will be closed and the con-ciliation agreement will state that thecomplainant (charging party) agrees towaive the right to pursue the subjectissues further under section 503 and/orthe ADA.

(ii) Unsuccessful conciliation. All sec-tion 503 complaints/ADA charges notsuccessfully conciliated will be consid-ered for OFCCP administrative litiga-tion under section 503, consistent withOFCCP’s usual procedures. (See 41 CFRpart 60–741, subpart B.) If OFCCP pur-sues administrative litigation undersection 503, OFCCP will close the com-plaint/charge at the conclusion of thelitigation process (including the impo-sition of appropriate sanctions), unlessthe complaint/charge is dismissed onprocedural grounds or because of a lackof jurisdiction, or the contractor/re-spondent fails to comply with an orderto provide make whole relief. In thesethree cases, OFCCP will refer the mat-ter to EEOC for any action it deems ap-propriate. If EEOC declines to pursuefurther action, it will issue a notice ofright-to-sue. If OFCCP does not pursueadministrative enforcement, it willclose the section 503 component of thecomplaint/charge and refer the ADAcharge component to EEOC for litiga-tion review under the ADA. If EEOCdeclines to litigate, EEOC will closethe ADA charge and issue a notice ofright-to-sue.

(f) Consistent with the ADA proce-dures set forth at 29 CFR 1601.28,OFCCP shall promptly issue upon re-quest a notice of right-to-sue after 180days from the date the complaint/charge was filed. Issuance of a notice ofright-to-sue shall terminate furtherOFCCP processing of any complaint/charge unless it is determined at thattime or at a later time that it would ef-fectuate the purposes of section 503and/or the ADA to further process thecomplaint/charge.

(g) If an individual who has alreadyfiled a section 503 complaint withOFCCP subsequently attempts to fileor files an ADA charge with EEOC cov-ering the same facts and issues, EEOCwill decline to accept the charge (or,alternatively, dismiss a charge thathas been filed) on the grounds thatsuch charge has already been filed


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under the ADA, simultaneous with thefiling of the earlier section 503 com-plaint, and will be processed by OFCCPin accordance with the provisions ofthis section.

§ 1641.6 Processing of charges filedwith EEOC.

(a) ADA cause charges falling withinthe jurisdiction of section 503 that theCommission has declined to litigate. ADAcause charges that also fall within thejurisdiction of section 503 and that theCommission has declined to litigatewill be referred to OFCCP for review ofthe file and any administrative actiondeemed appropriate under section 503.Such charges will be considered to becomplaints, simultaneously dual filedunder section 503, solely for the pur-poses of OFCCP review and administra-tive action described in this paragraph.

(b) ADA charges which also include al-legations of failure to comply with section503 affirmative action requirements. ADAcharges filed with EEOC, in which bothallegations of discrimination under theADA and violation of affirmative ac-tion requirements under section 503 aremade, will be referred in their entiretyto OFCCP for processing and resolutionunder section 503 and the ADA, unlessthe charges also include allegations ofdiscrimination on the basis of race,color, religion, sex, national origin orage, or include allegations involvingPriority List issues, or the charges areotherwise deemed of particular impor-tance to EEOC’s enforcement of theADA. In such situations, EEOC will bi-furcate the charges and retain the ADAcomponent of the charges (and whenapplicable, the allegations pertainingto discrimination on the basis of race,color, religion, sex, national origin orage), referring the section 503 affirma-tive action component of the chargesto OFCCP for processing and resolutionunder section 503. ADA charges whichraise both discrimination issues underthe ADA and section 503 affirmative ac-tion issues will be considered com-plaints, simultaneously dual filedunder section 503, solely for the pur-poses of referral to OFCCP for proc-essing, as described in this paragraph.

(c) EEOC shall transfer promptly toOFCCP a charge of disability-relatedemployment discrimination over which

it does not have jurisdiction, but overwhich OFCCP may have jurisdiction.At the same time, EEOC shall notifythe charging party and the contractor/respondent of the transfer, the reasonfor the transfer, the location of theOFCCP office to which the charge wastransferred and that the date EEOC re-ceived the charge will be deemed thedate it was received by OFCCP.

(d) Except as otherwise stated inparagraphs (a) and (b) of this section,individuals alleging violations of lawsenforced by DOL and over which EEOChas no jurisdiction will be referred toDOL to file a complaint.

(e) If an individual who has alreadyfiled an ADA charge with EEOC subse-quently attempts to file or files a sec-tion 503 complaint with OFCCP cov-ering the same facts and issues, OFCCPwill accept the complaint, but willadopt as a disposition of the complaintEEOC’s resolution of the ADA charge(including EEOC’s termination of pro-ceedings upon its issuance of a noticeof right-to-sue).

§ 1641.7 Review of this part.

This part shall be reviewed by theChairman of the EEOC and the Direc-tor of OFCCP periodically, and as ap-propriate, to determine whetherchanges to the part are necessary ordesirable, and whether the part shouldremain in effect.


As used in this part, the term:ADA refers to title I of the Ameri-

cans with Disabilities Act of 1990 (42U.S.C. 12101 et seq.).

Affirmative action requirements refersto affirmative action requirements re-quired by DOL pursuant to section 503of the Rehabilitation Act of 1973, thatgo beyond the nondiscrimination re-quirements imposed by the ADA.

Chairman of the EEOC refers to theChairman of the U.S. Equal Employ-ment Opportunity Commission, or hisor her designee.

Complaint/Charge means a section 503complaint/ADA charge. The terms areused interchangeably.

Director of the Office of Federal Con-tract Compliance Programs refers to thatindividual or his or her designee.


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DOL means the U.S. Department ofLabor, and where appropriate, any ofits headquarters or regional offices.

EEOC means the U.S. Equal Employ-ment Opportunity Commission, andwhere appropriate, any of its head-quarters, district, area, local, or fieldoffices.

Government means the government ofthe United States of America.

Priority List refers to a document list-ing a limited number of controversialtopics under the ADA on which there isnot yet definitive guidance settingforth EEOC’s position. The PriorityList will be jointly developed and peri-odically reviewed by EEOC and DOL.Any policy documents involving Pri-ority List issues will be coordinated be-tween DOL and EEOC pursuant to Ex-ecutive Order 12067 (3 CFR, 1978 Comp.,p. 206) prior to final approval by EEOC.

OFCCP means the Office of FederalContract Compliance Programs, andwhere appropriate, any of its regionalor district offices.

Section 503 refers to section 503 of theRehabilitation Act of 1973 (29 U.S.C.793).

Section 503 complaint/ADA charge re-fers to a complaint that has been filedwith OFCCP under section 503 of theRehabilitation Act, and has beendeemed to be simultaneously dual filedwith EEOC under the ADA.

PART 1650—DEBT COLLECTION

Subpart A—Procedures for the Collectionof Debts by Salary Offset

Sec.1650.101 Purpose.1650.102 Scope.1650.103 Definitions.1650.104 Notice of salary offset.1650.105 Request for reconsideration or re-

quest for consideration of waiver, com-promise, or forgiveness.

1650.106 Reconsideration or consideration ofwaiver, compromise or forgiveness deci-sion.

1650.107 Oral hearing.1650.108 Method of collection.1650.109 Source of deductions.1650.110 Duration of deductions.1650.111 Limitation on amount of deduc-

tions.1650.112 When deductions may begin.1650.113 Liquidation of final check.1650.114 Recovery from other payments due

a separated employee.

1650.115 Interest, penalties, and administra-tive costs.

1650.116 Non-waiver of rights by payments.1650.117 Refunds.1650.118 Salary offset requests by other

agencies.1650.119 Salary offset request by the Com-

mission to another agency.

Subpart B—Procedures for the Collectionof Debts by Federal Tax Refund Offset

1650.201 Purpose.1650.202 Past-due legally enforceable debt.1650.203 Notification of intent to collect.1650.204 Reasonable attempt to notify.1650.205 Consideration of evidence sub-

mitted as a result of notification of in-tent.

1650.206 Notification to Internal RevenueService.

1650.207 Administrative charges.

Subpart C—Procedures for Collection ofDebts by Administrative Offset

1650.301 Purpose.1650.302 Scope.1650.303 Definitions.1650.304 Notice of administrative offset.1650.305 Agency review.1650.306 Written repayment agreement.1650.307 Administrative offset.1650.308 Accelerated procedures.1650.309 Additional administrative proce-

dures.

Subpart D—Procedures for the Collectionof Debts by Administrative Wage Gar-nishment

1650.401 Purpose and regulatory proceduresfor the collection of debts by administra-tive wage garnishment.

AUTHORITY: 5 U.S.C. 5514; 31 U.S.C. 321, 3701,3711, 3716, 3720A, 3720D; EO 13019, 61 FR 51763,3 CFR 1996 Comp., p. 216; 5 CFR 550.1101.

SOURCE: 59 FR 24, Jan. 3, 1994, unless other-wise noted.

Subpart A—Procedures for theCollection of Debts by SalaryOffset

SOURCE: 56 FR 28817, June 25, 1991, unlessotherwise noted. Redesignated at 61 FR 7067,Feb. 26, 1996.

§ 1650.101 Purpose.This subpart sets forth the proce-

dures to be followed in the collection ofdebts owed to the United States bypresent or former Commission employ-ees by salary offset under 5 U.S.C. 5514.


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The general standards and proceduresgoverning the collection, compromise,termination, and referral to the De-partment of Justice of claims formoney and property that are pre-scribed in the regulations issued joint-ly by the General Accounting Officeand the Department of Justice pursu-ant to the Federal Claims CollectionAct of 1966 (4 CFR Parts 101–105) applyto the administrative collection activi-ties of the EEOC. The Director of theFinancial Management Division shallact on all claims arising out of the ac-tivities of the EEOC.

[56 FR 28817, June 25, 1991. Redesignated at 61FR 7067, Feb. 26, 1996, as amended at 64 FR28917, May 28, 1999]

§ 1650.102 Scope.(a) Applicability. (1) The procedures in

this subpart apply to the collection ofdebts owed to the Commission or an-other Federal agency by present orformer Commission employees by off-set against their basic pay, special pay,incentive pay, retired pay, retainerpay, or, in the case of an individual notentitled to basic pay, other authorizedpay from the Commission or otheragency pursuant to the offset author-ity in 5 U.S.C. 5514.

(2) The procedures in this subpartapply to the collection by salary offsetof the following types of debts owed tothe United States: Interest, penalties,fees, direct loans, loans insured andguaranteed by the United States,leases, rents, royalties, services, salesof real or personal property, fines andforfeitures (except those arising underthe Uniform Code of Military Justice),erroneous payments of pay and allother similar sources.

(b) Non-applicability. The proceduresin this subpart do not apply where col-lection of a debt by salary offset is ex-plicitly provided for or prohibited byanother statute (e.g., travel advancesin 5 U.S.C. 5705 and employee trainingexpenses in 5 U.S.C. 4108). The proce-dures in this subpart also do not applyto debts or claims arising under the In-ternal Revenue Code of 1954 as amend-ed, 25 U.S.C. 1 et seq., the Social Secu-rity Act, 42 U.S.C. 301 et seq., or the tar-iff laws of the United States.

(c) Waiver requests and claims to theGAO. The procedures in this subpart do

not preclude an employee from re-questing waiver of a salary overpay-ment under 5 U.S.C. 5584, or any othersimilar provision of law, or in any wayquestioning the amount or validity of adebt by submitting a subsequent claimto the General Accounting Office.

(d) Compromise, suspension, or termi-nation under the Federal Claims Collec-tion Standards. Nothing in this subpartprecludes the compromise, suspension,or termination of 5 U.S.C. 5514 salaryoffset collection actions, where appro-priate, in accordance with the FederalClaims Collection Standards in 4 CFRchapter II.

§ 1650.103 Definitions.For the purpose of this subpart,

terms are defined as follows:(a) Agency means:(1) An Executive agency as defined in

section 105 of title 5, United StatesCode, including the U.S. Postal Serviceand the U.S. Postal Rate Commission;

(2) A military department as definedin section 102 of title 5, United StatesCode;

(3) An agency or court in the judicialbranch, including a court as defined insection 610 of title 28, United StatesCode, the District Court for the North-ern Mariana Islands, and the JudicialPanel on Multidistrict Litigation;

(4) An agency of the legislativebranch, including the U.S. Senate andthe U.S. House of Representatives; and

(5) Other independent establishmentsthat are entities of the Federal Govern-ment.

(b) Creditor agency means an agencyto which a debt is owed.

(c) Debt means an amount owed tothe United Stated from sources that in-clude loans insured or guaranteed bythe United States and all otheramounts due the United States fromfees, leases, rents, royalties, services,sales of real or personal property, over-payments, penalties, damages, interest,fines and forfeitures (except those aris-ing under the Uniform Code of MilitaryJustice), and all other similar sources.

(d) Disposable pay means that part ofcurrent basic pay, special pay, incen-tive pay, retired pay, retainer pay, or,in the case of an employee not entitledto basic pay, other authorized pay re-maining after the deduction of any


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amount required by law to be withheld.Deductions described in 5 CFR581.105(b) through (f) will not be used todetermine disposable pay subject tosalary offset.

(e) Employee means a current em-ployee of an agency, including a cur-rent member of the Armed Forces or aReserve of the Armed Forces (Re-serves).

(f) FCCS means the Federal ClaimsCollection Standards jointly publishedby the Justice Department and theGeneral Accounting Office at 4 CFRchapter II.

(g) FRMS means Financial and Re-source Management Services, EEOC Of-fice of Management.

(h) Paying agency means the agencyemploying the individual and author-izing the payment of his or her currentpay.

(i) Salary offset means an administra-tive offset to collect a debt under 5U.S.C. 5514 by deduction(s) at one ormore officially established pay inter-vals from the current pay account ofan employee without his or her con-sent.

(j) Waiver means the cancellation, re-mission, forgiveness, or non-recoveryof a debt allegedly owed by an em-ployee to an agency as permitted or re-quired by 5 U.S.C. 5584, 10 U.S.C. 2774,32 U.S.C. 716, 5 U.S.C. 8346(b), or anyother applicable statute.

§ 1650.104 Notice of salary offset.(a) Notice of the Commission’s intent

to collect a debt by salary offset shallbe given at least 30 days in advance.The written notice shall include, interalia, the following:

(1) The Commission’s determinationthat a debt is owed, including origin,nature, and amount of the debt;

(2) The Commission’s intention tocollect the debt by means of deductionfrom the employee’s current disposalpay account;

(3) The amount, frequency, proposedbeginning date, and duration of the in-tended deduction(s);

(4) An explanation of the Commis-sion’s policy concerning interest, pen-alties, and administrative costs;

(5) The employee’s right to inspectand copy the Commission’s records re-lating to the debt;

(6) The opportunity to establish aschedule for voluntary repayment ofthe debt agreeable to the Commissionin lieu of an offset;

(7) The employee’s right to an oralhearing, the method and time periodfor petitioning for a hearing, and theoral hearing procedures;

(8) The employee’s right to requestreconsideration of the validity of theindebtedness; and

(9) The employee’s right to requestwaiver, forgiveness, or compromise andthe standards involved for each.

(b) Exception to the advance notice re-quirement. Where an adjustment to payarises out of an employee’s election ofcoverage or change in coverage under aFederal benefits program requiringperiodic deductions from the employ-ee’s pay and the amount to be recov-ered was accumulated over four pay pe-riods or less, the advance notice provi-sion in paragraph (a) of this section isnot required. In such cases, the Com-mission’s servicing Payroll Office, Gen-eral Services Administration’s Na-tional Payroll Center, will notify theemployee in writing that because ofthe employee’s election his or her paywill be reduced to cover the period be-tween the effective date of the electionand the first regular withholding, andthat the employee may dispute theamount collected or request waiver ofthe debt by filing a request in writingwith the Director of Financial and Re-source Management Services.

(c) Acknowledgment of receipt of ad-vance notice. Notice will be acknowl-edged in writing. A copy of the noticewith the acknowledgment containingthe debtor’s original signature will bereturned to the sender.

§ 1650.105 Request for reconsiderationor request for consideration ofwaiver, compromise, or forgiveness.

A request for reconsideration or a re-quest for consideration of waiver, com-promise, or forgiveness must be sub-mitted to the Director of FRMS, or hisor her designee, within 15 calendardays of the issuance of the demand forpayment. The Director of FRMS mayextend the time limit for filing whenthe employee shows he or she was noti-fied of the time limit and was not oth-erwise aware of it, or that he or she


387


was prevented by circumstances be-yond his or her control from makingthe request within the limit. Any em-ployee requesting reconsideration orconsideration of waiver, compromise,or forgiveness will be given a full op-portunity to present all pertinent doc-umentation and written informationsupporting his or her request.

§ 1650.106 Reconsideration or consid-eration of waiver, compromise orforgiveness decision.

Decisions will be based upon the em-ployee’s written submissions supportedby evidence of record and other perti-nent available information. After con-sideration of all pertinent documentedinformation, a written decision will beissued as to whether the debt is valid,and the amount demanded is correct,or whether it will be waived, com-promised, or forgiven. The decision willalso inform the employee of his or herright to an oral hearing; hearing proce-dures contained in § 1600.735–507(c) ofthis subpart shall be attached to thedecision.

§ 1650.107 Oral hearing.(a) Right to an oral hearing. After a

decision is issued on an employee’s re-quest for reconsideration, or consider-ation of waiver, compromise, or for-giveness, the employee is entitled to anoral hearing upon request prior to sal-ary or administrative offset, on anyissue that raises a significant questionas to the credibility or veracity of anyindividual(s) involved in his or hercase. The decision whether such a gen-uine issue exists will rest solely withthe Commission. Further, where aclaim has been reduced to judgment, ahearing only on the payment scheduleneed be given. A hearing shall not beprovided, however, where a paymentschedule was established by writtenagreement between the employee andthe Commission.

(b) Request for hearing. (1) A requestfor an oral hearing must be made with-in 30 calendar days from the date of thewritten decision on reconsideration orconsideration of waiver, forgiveness, orcompromise decision. Requests madeafter this time will be accepted wherethe employee can show that the delaywas because of circumstances beyond

his or her control or because of failureto receive notice of the time limit, un-less the employee is otherwise aware ofit.

(2) A debtor must file a petition for ahearing in writing. The petition mustidentify and explain with reasonablebrevity the facts, evidence, and wit-nesses that the debtor believes supporthis or her petition, state the relief re-quested, and include the signature andaddress of the petitioner or authorizedrepresentative.

(3) The timely filing of a petition foran oral hearing shall automaticallystay the commencement of collectionaction.

(c) Hearing procedures. (1) The hearingshall be conducted by a hearing officialwho is not an employee of EEOC orotherwise under the control or super-vision of the Chairman.

(2) A debtor may represent himself orherself or may be represented by an-other person, including an attorneyduring any portion of the hearing.

(3) Where possible, the hearing willbe held in a Commission office close tothe debtor’s home or place of work.Hearings may be scheduled so that sev-eral cases can be heard at one location.In such cases, the hearings will bescheduled in a location centrally lo-cated to all requesting parties.

(4) A record or transcript of the hear-ing shall not be made.

(5) At the hearing, the employee andthe Commission may introduce evi-dence and may call witnesses. Thehearing shall not be conducted in ac-cordance with formal rules of evidencewith regard to the admissibility of evi-dence or the use of evidence once ad-mitted. The hearing official may onlypermit the introduction of evidencethat is relevant to the issues being con-sidered. Witnesses shall testify underoath and may be cross-examined. TheCommission has the burden of first pre-senting evidence on the relevant issues.The debtor then has the burden of pre-senting evidence regarding thoseissues.

(6) The hearing official shall issue awritten opinion stating his or her deci-sion with the rationale supporting thedecision as soon as practicable afterthe hearing, but not later than 60 days


388


after the timely filing of the petitionrequesting the hearing.

§ 1650.108 Method of collection.A debt will be collected in a lump

sum or by installment deductions at of-ficially established pay intervals froman employee’s current pay account, un-less the employee and the Commissionagree in writing to alternate arrange-ments for repayment.

§ 1650.109 Source of deductions.Except as provided in § 1600.735–513

and § 1600.735–514 of this subpart, deduc-tions will be made only from basic pay,special pay, incentive pay, retired pay,retainer pay or in the case of an em-ployee not entitled to basic pay, otherauthorized pay.

§ 1650.110 Duration of deductions.Debts will be collected in one lump

sum when possible. If the employee isfinancially unable to pay in one lumpsum or the amount of debt exceeds 15percent of the employee’s disposablepay for an officially established pay in-terval, collection by offset will bemade in installments. Such install-ment deductions will be made over aperiod not greater than the anticipatedperiod of active duty or employment ofthe employee, as the case may be, ex-cept as provided in § 1600.735–513 and§ 1600.735–514 of this subpart.

§ 1650.111 Limitation on amount of de-ductions.

The size and frequency of installmentdeductions will bear a reasonable rela-tionship to the size of the debt and theemployee’s ability to pay. The amountdeducted for any period, however, willnot exceed 15 percent of the disposablepay from which the deduction is made,unless the employee has agreed in writ-ing to the deduction of a greateramount. Installment payments of lessthan $25 will be accepted only in themost unusual circumstances.

§ 1650.112 When deductions may begin.(a) Deductions to liquidate an em-

ployee’s debt should be scheduled tobegin by the date and in the amountstated in the demand for payment.

(b) If the employee files a timely re-quest for reconsideration or consider-

ation of waiver, compromise or forgive-ness, deductions will begin after a finaldecision is issued on the request.

(c) If the employee fails to submit atimely request for reconsideration orconsideration of waiver, compromise,or forgiveness, or request for a hearing,deductions will commence in the nextbi-weekly check vouchered for pay-ment after the time limit to make sucha request expires.

§ 1650.113 Liquidation of final check.When the employee retires or resigns

or if his or her employment or period ofactive duty ends before the debt is col-lected in full, the employee’s debt willbe automatically deducted from thefinal payments (e.g., final salary pay-ment, lump-sum leave, etc.) due theemployee to the extent necessary toliquidate the debt. If the employee’sfinal pay is not sufficient to permit alldeductions to be made, the order ofprecedence for the deductions will be:retirement and FICA; Medicare; Fed-eral income taxes; health benefits;group life insurance; indebtedness dueto the United States; State incometaxes; and voluntary deductions and al-lotments.

§ 1650.114 Recovery from other pay-ments due a separated employee.

When the debt cannot be liquidatedby offset from any final payment dueto the employee on the date of separa-tion, the Director of FRMS will at-tempt to liquidate the debt by adminis-trative offset as authorized under 31U.S.C. 3716 from later payments of anykind due the former employee from theUnited States. (See 4 CFR 102.3)

§ 1650.115 Interest, penalties, and ad-ministrative costs.

When a delinquent debt is collectedby salary offset, interest, penalties,and administrative costs on the debtwill be assessed, unless waived by theManagement Director, or his or herdesignee, in accordance with 4 CFR102.13.

§ 1650.116 Non-waiver of rights by pay-ments.

An employee’s payment of all or anyportion of a debt collected by salaryoffset will not be construed as a waiver


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of any right the employee may haveunder 5 U.S.C. 5514 or any other provi-sion of contract or law, unless thereare statutory or contractual provisionsto the contrary.

§ 1650.117 Refunds.Amounts paid, or deducted by salary

offset, by an employee for a debt thatis waived or otherwise not found owingto the United States will be promptlyrefunded to the employee. Refunds donot bear interest unless required orpermitted by law or contract.

§ 1650.118 Salary offset requests byother agencies.

(a) Statutory limitation. Salary offsetrequests against Commission employ-ees by other agencies may only be ac-cepted within 10 years after the in-volved debt accrues. Whenever any re-quest barred by this limitation is re-ceived in the Commission, the requestshall be returned by FRMS to the re-questing agency, with a copy of 4 CFRpart 102, and this action shall be a com-plete response to the request.

(b) Where salary requests should befiled. Requests from other agencies forsalary offset should be forwarded or ad-dressed to:

Director, Financial and Resource Manage-ment Services, Equal Employment Oppor-tunity Commission, 1801 L Street, NW.,room 2001; Washington, DC 20507.

(c) Form of request. (1) Requests shallbe considered only when presented witha completed and certified appropriatedebt claim.

(2) The requesting agency must cer-tify in writing that the employee owesthe debt, the amount and basis of thedebt, the date on which payment(s) is/are due, the date the Government’sright to collect the debt first accrued,and that the requesting agency’s regu-lations for salary offset have been ap-proved by OPM.

(3) If the collection must be made ininstallments, the requesting agencymust also advise FRMS of the numberof installments and the commencingdate of the first installment, if a dateother than the next officially estab-lished pay period is required.

(4) Unless the employee has con-sented to the salary offset in writing orsigned a statement acknowledging re-

ceipt of the required procedures, andthe writing or statement is attached tothe debt claim form, the requestingagency must also indicate to FRMS theaction(s) taken by it under its offsetregulations and give the date(s) the ac-tion(s) was/were taken.

(d) Submitting the Request for Offset—(1) Current Commission employees. Therequesting agency must submit a com-pleted and certified debt claim, agree-ment, or other instruction on the pay-ment schedule to FRMS.

(2) Separating or separated Commissionemployees—(i) Separating employees. Ifthe employee is in the process of sepa-rating, the requesting agency mustsubmit its debt claim to FRMS for col-lection as provided in § 1600.735–513 ofthis subpart. FRMS must certify thetotal amount of its collection and no-tify the requesting agency and the em-ployee as provided in paragraph(d)(2)(iii) of this section. If FRMS isaware that the employee is entitled topayments from the Civil Service Re-tirement and Disability Fund, or othersimilar payments, it will send a copy ofthe debt claim and certification to theagency responsible for making suchpayments as notice that a debt is out-standing. The requesting agency, how-ever, must submit a properly certifiedclaim to the agency responsible formaking such payments before collec-tion can be made.

(ii) Separated employees. If the em-ployee is already separated and all pay-ments due the employee from the Com-mission have been paid, FRMS will re-turn the request and notify the re-questing agency in writing of the em-ployee’s separation, that all paymentsdue the employee from the Commissionhave been paid, and that any moniesdue and payable to the employee fromthe Civil Service Retirement and Dis-ability Fund, or other similar funds,may be administratively offset to col-lect the debt.

(iii) Transferred employees. If, afterthe requesting agency has submittedthe debt claim to FRMS, the employeetransfers to another agency before thedebt is collected in full, FRMS shallcertify the total amount of the collec-tion made on the debt. FRMS shall fur-nish one copy of the certification to


390


the employee and another to the re-questing agency along with a notice ofthe employee’s transfer. FRMS shallalso provide the employee’s personneloffice at the new agency with the origi-nal debt claim form from the request-ing agency to insert in the employee’sOfficial Personnel Folder along with acopy of the certification of the amountwhich has been collected. It shall bethe responsibility of the requestingagency to review the debt upon receiv-ing from FRMS a notice of the employ-ee’s transfer to make sure the collec-tion is resumed by the employee’s newagency.

(e) Processing the debt claim upon re-ceipt by FRMS—(1) Complete claim. IfFRMS receives a properly certifieddebt claim from another agency on acurrent or separating Commission em-ployee, FRMS shall schedule the re-quested deductions to begin prospec-tively at the next officially establishedpay interval. Before the deductions aremade, FRMS shall provide the em-ployee a copy of the debt claim formalong with notice of the amount of thedeductions, and of the date deductionswill commence if different from thatstated in the debt claim.

(2) Incomplete claim. If FRMS receivesan improperly completed debt claimfrom another agency, FRMS shall re-turn the request with a notice that pro-cedures under 5 U.S.C. 5514 and 5 CFRpart 550, subpart K must be followedand a properly certified debt claim re-ceived before action will be taken tocollect the debt from the employee’spay.

(3) Claims disputes. The commission isnot required or authorized to reviewthe merits of the requesting agency’sdetermination with respect to theamount or validity of the debt as stat-ed in the debt claim.

§ 1650.119 Salary offset request by theCommission to another agency.

(a) Statutory limitation. Salary offsetrequests by the Commission to otheragencies shall only be made within 10years after the involved debt accrues,unless the right to collect the involveddebt was unknown and could not rea-

sonably have been known by the Com-mission employee responsible for thediscovery and collection of the in-volved debt.

(b) Who may make a request for salaryoffset to another agency. Unless other-wise specifically provided, salary offsetrequests to other agencies to collectdebts due to the Commission shall onlybe made by the Director of FRMS.

(c) Form of request. (1) FRMS shallmake an offset request to anotheragency by presenting it with a com-pleted and certified debt claim.

(2) FRMS shall certify in writingthat the employee owes the debt, theamount and basis of the debt, the dateon which payment(s) is/are due, thedate the Government’s right to collectthe debt first accrued, and that theCommission’s salary offset regulationshave been approved by OPM and pub-lished in the FEDERAL REGISTER.

(3) Where the collection must bemade in installments, FRMS shall ad-vise the involved agency of the numberof installments to be collected, theamount of each installment, and thecommencing date of the first install-ment.

(4) Where the involved employee doesnot agree or consent to the offset,FRMS shall advise the other agency ofthis in writing and also indicate the ac-tion(s) taken by the Commission underits offset regulations and the date(s)the action(s) was/were taken.

(5) Where the employee agrees orconsents to the offset, FRMS shall at-tach to the debt claim the employee’swritten agreement or consent.

(d) Submitting the Request for Offset—(1) Current employees of other agencies.FRMS shall submit a certified debtclaim, agreement, or other instructionon the payment schedule to the em-ployee’s current employing agency.

(2) Separating employees of other agen-cies. If the employee is in the process ofseparating, FRMS shall submit a cer-tified debt claim to the employee’s em-ploying agency for collection as pro-vided in 5 CFR 550.1104(l).


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Subpart B—Procedures for theCollection of Debts by Fed-eral Tax Refund Offset

§ 1650.201 Purpose.This subpart establishes procedures

for EEOC to refer past-due legally en-forceable debts to the Internal RevenueService (IRS) for offset against the in-come tax refunds of persons owingdebts to EEOC. It specifies the agencyprocedures and the rights of the debtorapplicable to claims referred under theFederal Tax Refund Offset Program forthe collection of debts owned to EEOC.The general standards and proceduresgoverning the collection, compromise,termination, and referral to the De-partment of Justice of claims formoney and property that are pre-scribed in the regulations issued joint-ly by the General Accounting Officeand the Department of Justice pursu-ant to the Federal Claims CollectionAct of 1966 (4 CFR Parts 101–105) applyto the administrative collection activi-ties of the EEOC. The Director of theFinancial Management Division shallact on all claims arising out of the ac-tivities of the EEOC.

[59 FR 24, Jan. 3, 1994, as amended at 64 FR28917, May 28, 1999]

§ 1650.202 Past-due legally enforceabledebt.

A past-due legally enforceable debtfor referral to the IRS is a debt that re-sulted from any statute administeredby EEOC and:

(a) Is an obligation of a debtor who isa natural person;

(b) Except in the case of a judgmentdebt, has been delinquent at least 3months but not more than 10 years atthe time the offset is made;

(c) Is at least $25.00;(d) Cannot be currently collected pur-

suant to the salary offset provisions of5 U.S.C. 5514(a)(1);

(e) Is ineligible for administrativeoffset under 31 U.S.C. 3716(a) by reasonof 31 U.S.C. 3716(c)(2) or cannot be col-lected by administrative offset under 31U.S.C. 3716(a) by the EEOC againstamounts payable to or on behalf of thedebtor by or on behalf of the EEOC;

(f) With respect to which EEOC hasgiven the debtor at least 60 days from

the date of notification to present evi-dence that all or part of the debt is notpast-due or legally enforceable, hasconsidered evidence presented by suchdebtor, and has determined that anamount of such debt is past-due and le-gally enforceable;

(g) Has been disclosed by EEOC to aconsumer reporting agency as author-ized by 31 U.S.C. 3711(f), unless the con-sumer reporting agency would be pro-hibited from reporting such informa-tion by 15 U.S.C. 1681c, or unless theamount of the debt does not exceed$100.00;

(h) EEOC’s records do not containevidence that the person owing thatdebt (or his or her spouse) has filed forbankruptcy under title 11 of the UnitedStates Code; and

(i) EEOC can clearly establish at thetime of the referral that the automaticstay under 11 U.S.C. 362 has been liftedor is no longer in effect with respect tothe person owing the debt or his or herspouse, and the debt was not dis-charged in the bankruptcy proceeding.

§ 1650.203 Notification of intent to col-lect.

(a) Notification before submission to theIRS. A request for reduction of an IRSincome tax refund will be made onlyafter EEOC makes a determinationthat an amount is owed and past-dueand gives or makes a reasonable at-tempt to give the debtor 60 days writ-ten notification of intent to collect byFederal tax refund offset.

(b) Contents of notification. EEOC’snotification of intent to collect by Fed-eral tax refund offset shall provide:

(1) The amount of the debt;(2) That unless the debt is repaid

within 60 days from the date of EEOC’snotification of intent, EEOC intends tocollect the debt by requesting the IRSto offset an amount equal to theamount of the debt and all accumu-lating interest and other chargesagainst any overpayment of tax afterliabilities subject to 26 U.S.C. 6402(a)and (c) have been satisfied;

(3) A mailing address for forwardingany written correspondence and a con-tact and a toll-free or collect telephonenumber for any questions; and

(4) That the debtor may present evi-dence to EEOC that all or part of the


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debt is not past due or legally enforce-able by—

(i) Sending a written request for a re-view of the evidence to the address pro-vided in the notification;

(ii) Stating in the request for reviewthe amount disputed and the reasonswhy the debtor believes that the debtis not past-due or is not legally en-forceable; or

(iii) Including in the request for re-view any documents that the debtorwishes to be considered to stating thatthe additional information will be sub-mitted within the remainder of the 60-day period.

§ 1650.204 Reasonable attempt to no-tify.

In order to constitute a reasonableattempt to notify the debtor, EEOCmust have used a mailing address forthe debtor obtained from the IRS pur-suant to 26 U.S.C. 6103(m)(2) within aperiod of 1 year preceding the attemptto notify the debtor, unless EEOC re-ceives clear and concise notificationfrom the debtor that notices from theagency are to be sent to an address dif-ferent from the address obtained fromIRS. Clear and concise notificationmeans that the debtor has provided theagency with written notification, in-cluding the debtor’s name and identi-fying number (as defined in 26 CFR301.6109–1), the debtor’s new address,and the debtor’s intent to have theagency notices sent to the new address.

§ 1650.205 Consideration of evidencesubmitted as a result of notificationof intent.

(a) Consideration of evidence. If, as aresult of the notification of intent,EEOC receives notice that the debtorwill submit additional evidence or re-ceives additional evidence from thedebtor within the prescribed time pe-riod, any referral to the IRS will bestayed until EEOC—

(1) Considers the evidence presentedby the debtor;

(2) Determines whether or not all ora portion of the debt is still past-dueand legally enforceable; and

(3) Notifies the debtor of its deter-mination.Failure to submit the evidence within60 days from the date of notification

will result in an automatic referral ofthe debt to IRS without further actionby EEOC.

(b) Notification to the debtor. Fol-lowing its review of the evidence,EEOC will issue a written decision no-tifying the debtor whether EEOC hassustained, amended, or canceled its de-termination that the debt is past-dueand legally enforceable. The notice willadvise the debtor of any further actionto be taken and explain the supportingrationale for the decision.

(1) EEOC will notify the debtor of itsintent to refer the debt to the IRS foroffset against the debtor’s Federal in-come tax refund if it sustains its deci-sion that the debt is past-due and le-gally enforceable. EEOC will also no-tify the debtor whether the amount ofthe debt remains the same or is modi-fied.

(2) EEOC will not refer the debt tothe IRS for offset against the debtor’sFederal income tax refund if it reversesits decision that the debt is past-dueand legally enforceable.

§ 1650.206 Notification to Internal Rev-enue Service.

(a) Except as noted in paragraph (b)of this section, after EEOC’s initial no-tification and referral of a debt to IRSfor offset against a debtor’s Federal in-come tax refund, EEOC will promptlynotify IRS of any changes in the notifi-cation, if EEOC—

(1) Determines that an error has beenmade with respect to the informationcontained in the notification;

(2) Receives a payment or credits apayment to the account of the debtornamed in the notification that reducesthe amount of the debt referred to IRSfor offset;

(3) Receives notification that the in-dividual owing the debt has filed forbankruptcy under title 11 of the UnitedStates Code or has been adjudicatedbankrupt and the debt has been dis-charged;

(4) Receives notification that an off-set was made at a time when the auto-matic stay provisions of 11 U.S.C. 362were in effect; or

(5) Refunds all or part of the offsetamount to the debtor.

(b) EEOC shall not request the IRS toincrease the amount of a debt owed by


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a debtor named in EEOC’s original no-tification to IRS.

(c) If the amount of a debt is reducedafter referral by EEOC and offset bythe IRS, EEOC will refund to the debt-or any excess amount and will prompt-ly notify the IRS of any refund madeby EEOC.

§ 1650.207 Administrative charges.All administrative charges incurred

in connection with the referral of thedebts to the IRS will be assessed on thedebt and thus increase the amount ofthe offset.

Subpart C—Procedures for Collec-tion of Debts by Administra-tive Offset


§ 1650.301 Purpose.This subpart sets forth the proce-

dures to be followed in the collectionby administrative offset of debts owedto the United States. The generalstandards and procedures governingthe collection, compromise, termi-nation, and referral to the Departmentof Justice of claims for money andproperty that are prescribed in the reg-ulations issued jointly by the GeneralAccounting Office and the Departmentof Justice pursuant to the FederalClaims Collection Act of 1966 (4 CFRPart 101–105) apply to the administra-tive collection activities of the EEOC.The Director of the Financial Manage-ment Division shall act on all claimsarising out of the activities of theEEOC.

[62 FR 32685, June 17, 1997, as amended at 64FR 28917, May 28, 1999]

§ 1650.302 Scope.(a) Applicability. (1) The procedures in

this subpart apply to the collection byadministrative offset of debts owed tothe Commission or other Federal agen-cies by former or current Commissionemployees under the authority of 31U.S.C. 3716, common law, or any otherapplicable statutory authority, e.g.,training expenses under 5 U.S.C. 4108,debts of employees removed for causeunder 5 U.S.C. 5511, amounts owed by

accountable officers under 5 U.S.C.5512, advances of pay under 5 U.S.C.5522, temporary duty travel advancesunder 5 U.S.C. 5705, and relocation ad-vances under 5 U.S.C. 5724.

(2) The procedures in this subpartalso apply to offset of debts owed tothe Commission or other Federal agen-cies by the Commission’s contractorsand grant recipients.

(b) Non-applicability. (1) The proce-dures in this subpart do not applywhere collection by administrative off-set of the debt involved is explicitlyprovided for or prohibited by anotherstatute.

(2) The procedures in this subpartalso do not apply to debts owed to theCommission by other Federal agenciesor debts owed to the Commission orother Federal agencies by a State orlocal government.

(c) Waiver requests and claims to theGAO. The procedures in this subpart donot preclude a debtor from requestingwaiver of an erroneous payment of pay,travel, transportation, or relocationexpenses under 5 U.S.C. 5584 or anyother provision of law or from ques-tioning the amount or validity of adebt by submitting a subsequent claimto the U.S. Government Accounting Of-fice.

(d) Compromise, suspension, or termi-nation under the Federal Claims Collec-tion Standards. Nothing in this subpartprecludes the compromise, suspension,or termination of administrative offsetcollection actions, where appropriate,in accordance with the Federal ClaimsCollection Standards in 4 CFR chapterII.


For purposes of this subpart, theterm administrative offset means thewithholding of money payable by theCommission to, or held by the Commis-sion for, a person to satisfy a debt theperson owes to the Government. Theterm person means a natural person orpersons, profit or non-profit corpora-tion, partnership, association, trust,estate, consortium, or other entitywhich is capable of owing a debt to theUnited States Government except thatthe term does not include an agency ofthe United States Government or any


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State or a unit of a general local gov-ernment. The terms agency, creditoragency, debt, employee, FCCS, FRMS andwaiver shall have the meanings setforth in subpart A of this part.

§ 1650.304 Notice of administrative off-set.

(a) Advance notice. At least 30 days inadvance of collecting any debt by ad-ministrative offset, notice of the Com-mission’s intent to offset shall be givento the debtor by certified mail, returnreceipt requested, at the most currentaddress that is available to the Com-mission. The notice shall provide:

(1) A description of the nature andamount of the debt and the Commis-sion’s intention to collect the debtthrough administrative offset;

(2) An opportunity to inspect andcopy the records of the Commissionwith respect to the debt;

(3) An opportunity to request reviewof the Commission’s determinationswith respect to the debt; and

(4) An opportunity to enter into awritten agreement for the repaymentof the amount of the debt.

(b) Exception to the advance notice re-quirement. When the procedural re-quirements in this subpart have beenpreviously provided to a debtor in con-nection with the same debt under an-other statutory or regulatory author-ity, such as for salary offset or pursu-ant to a notice of audit disallowance,the Commission is not required to du-plicate those procedures before initi-ating collection of the debt by adminis-trative offset.

§ 1650.305 Agency review.

(a) A debtor may dispute the exist-ence of the debt, the amount of thedebt, or the terms of repayment. Therequest to review the disputed debtmust be received by the Director of theFinancial Management Division within30 calendar days of the debtor’s receiptof the pre-offset notice.

(b) If the debtor requests an oppor-tunity to inspect or copy the Commis-sion’s records concerning the debt,then the debtor will have 10 businessdays from the date of inspection orfrom receipt of the mailed documentsfor review.

(c) Pending review of the disputeddebt, transactions in any of the debt-or’s account(s) maintained in the Com-mission may be temporarily suspendedto the extent of the debt that is owed.Depending on the type of transaction,the suspension could preclude pay-ment, withdrawal, or transfer, as wellas prevent the payment of interest ordiscount due thereon. Should the dis-pute be resolved in the debtor’s favor,the suspension will be lifted imme-diately.

(d) During the review period, inter-est, penalties, and administrative costsauthorized under the Federal ClaimsCollection Act of 1966, as amended (31U.S.C. 3711), will continue to accrue.

§ 1650.306 Written repayment agree-ment.

A debtor may request an opportunityto negotiate a written agreement forthe repayment of the debt. If the finan-cial position of the debtor does not sup-port the ability to pay in one lump-sum, reasonable installments may beconsidered. No installment arrange-ment will be considered unless thedebtor submits a financial statement,executed under penalty of perjury, re-flecting the debtor’s assets, liabilities,income, and expenses. The financialstatement must be submitted within 10business days of the Commission’s re-quest for the statement. At the Com-mission’s option, a confess-judgmentnote or bond of indemnity with suretymay be required for the installmentagreement. Notwithstanding the provi-sions of this section, any reduction orcompromise of a claim will be governedby 4 CFR part 103 and 31 U.S.C. 3711.

§ 1650.307 Administrative offset.(a) If the debtor does not timely exer-

cise his right to review or, as a resultof the review, it is determined that thedebt is due and no written agreement isexecuted, then administrative offsetshall be ordered in accordance withthese regulations without further no-tice.

(b) The Director of the FinancialManagement Division of Financial andResource Management Services or des-ignee, after attempting to collect adebt from a person under the FederalClaims Collection Act of 1966, as


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amended (31 U.S.C. 3711), may collectthe debt by administrative offset sub-ject to the following:

(1) The debt is certain in amount; and(2) It is in the best interest of the

United States to collect the debt by ad-ministrative offset because it is lesscostly and speeds repayment of thedebt.

(c) If the 6-year period for bringingaction on a debt provided in 28 U.S.C.2415 has expired, then administrativeoffset may be used to collect the debtonly if the costs of bringing such ac-tion are likely to be less than theamount of the debt.

(d) No collection by administrativeoffset shall be made on any debt thathas been outstanding for more than 10years unless facts material to the Gov-ernment’s right to collect the debtwere not known, and reasonably couldnot have been known, by the official orofficials responsible for discovering andcollecting such debt.

(e) Request for administrative offset bythe Commission to another Federal agen-cy. The Director of the Financial Man-agement Division, or designee, may re-quest that funds due and payable to adebtor by a Federal agency be adminis-tratively offset in order to collect adebt owed to the Commission by thatdebtor. In requesting administrativeoffset the Commission, as creditor, willcertify in writing to the Federal agen-cy holding funds of the debtor:

(1) That the debtor owes the debt;(2) The amount and basis of the debt;

and(3) That the Commission has com-

plied with the requirements of its ownadministrative offset regulations inthis subpart, and the applicable provi-sions of 4 CFR part 102, including pro-viding any required hearing or review.

(f) Request for administrative offsetfrom another Federal agency. Any Fed-eral creditor agency may request theCommission make an administrativeoffset from any Commission funds dueand payable to a creditor agency’sdebtor. The Commission shall initiatethe requested administrative offsetonly upon:

(1) Receipt of written certificationfrom the creditor agency:

(i) That the debtor owes the debt;(ii) The amount and basis of the debt;

(iii) That the agency has prescribedregulations for the exercise of adminis-trative offset; and

(iv) That the agency has compliedwith its own administrative offset reg-ulations and with the applicable provi-sions of 4 CFR part 102, including pro-viding any required hearing or review;and

(2) A determination by the Commis-sion that collection by administrativeoffset against funds payable to thedebtor by the Commission would nototherwise be contrary to law.

§ 1650.308 Accelerated procedures.The Commission may make an ad-

ministrative offset against a paymentto be made to the debtor prior to thecompletion of the procedures requiredby this subpart, if failure to take theoffset would substantially jeopardizethe Commission’s ability to collect thedebt, and the time before the paymentis to be made does not reasonably per-mit the completion of those proce-dures. Such prior offset shall bepromptly followed by the completion ofthe procedures required by this sub-part. Amounts recovered by offset butlater found not to be owed to the Com-mission shall be promptly refunded.

§ 1650.309 Additional administrativeprocedures.

Nothing contained in this subpart isintended to preclude the use of anyother administrative remedy whichmay be available.

Subpart D—Procedures for theCollection of Debts by Admin-istrative Wage Garnishment


§ 1650.401 Purpose and regulatory pro-cedures for the collection of debtsby administrative wage garnish-ment.

The Commission hereby adopts bycross-reference the administrativewage garnishment regulation issued bythe Department of the Treasury at 31CFR 285.11. The general standards andprocedures governing the collection,compromise, termination, and referralto the Department of Justice of claims


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for money and property that are pre-scribed in the regulations issued joint-ly by the General Accounting Officeand the Department of Justice pursu-ant to the Federal Claims CollectionAct of 1966 (4 CFR Parts 101–105) applyto the administrative collection activi-ties of the EEOC. The Director of theFinancial Management Division shallact on all claims arising out of the ac-tivities of the EEOC.

PART 1690—PROCEDURES ONINTERAGENCY COORDINATIONOF EQUAL EMPLOYMENT OPPOR-TUNITY ISSUANCES

Subpart A—General

Sec.1690.101 Subject.1690.102 Purpose.1690.103 Supersession.1690.104 Authority.1690.105 Policy intent.1690.106 Scope.1690.107 Definitions.

Subpart B—Responsibilities

1690.201 Responsibilities.

Subpart C—Policies and Procedures

1690.301 Notification to EEOC during devel-opment of issuances.

1690.302 Issuances proposed by EEOC.1690.303 Consultation with affected agen-

cies.1690.304 Coordination of proposed issuance.1690.305 Nondisclosure of proposed

issuances.1690.306 Formal submission in absence of

consultation.1690.307 Temporary waivers.1690.308 Notice of unresolved disputes.1690.309 Interpretation of the Order.

Subpart D—Reporting Requirements

1690.401 Reporting requirements.

AUTHORITY: Sec. 715 of title VII of the CivilRights Act of 1964, as amended, (42 U.S.C.2000e–14); Reorganization Plan No. 1 of 1978,43 FR 19807; E.O. 12067, 43 FR 28967.


Subpart A—General

§ 1690.101 Subject.

Procedures on Interagency Coordina-tion of Equal Employment OpportunityIssuances.

§ 1690.102 Purpose.

These regulations prescribe themeans by which review and consulta-tion shall occur between the Equal Em-ployment Opportunity Commission andother Federal agencies having respon-sibility for enforcement of Federalstatutes, Executive Orders, regulationsand policies which require equal em-ployment opportunity without regardto race, color, religion, sex, nationalorigin, age or handicap. Subsequentregulations will expand on standardsfor the coordination of specific mattersreferenced or alluded to herein.

§ 1690.103 Supersession.

None. These regulations are the firstin a series of instructions issued byEEOC pursuant to its authority underExecutive Order 12067.

§ 1690.104 Authority.

These regulations are prepared pur-suant to the Equal Employment Oppor-tunity Commission’s obligation and au-thority under sections 1–303 and 1–304of Executive Order 12067 (Providing forCoordination of Federal Equal Employ-ment Opportunity Programs) 43 FR28967, July 5, 1978. (These regulationswill also appear as EEOC ManagementDirective No. 1000).

§ 1690.105 Policy intent.

These procedures will govern the con-duct of such agencies in the develop-ment of uniform standards, guidelinesand policies for defining discrimina-tion, uniform procedures for investiga-tions and compliance reviews and uni-form recordkeeping and reporting re-quirements and training programs.These procedures will also facilitate in-formation sharing and programs to de-velop appropriate publications andother cooperative programs. The goalsof uniformity and consistency are to be


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achieved with the maximum participa-tion and review on both an informaland formal basis by the relevant Fed-eral agencies and, finally, by the pub-lic.

§ 1690.106 Scope.These regulations apply to Federal

agencies having equal employment op-portunity program responsibilities orauthority other than equal employ-ment responsibilities for their ownFederal employees or applicants foremployment. Its provisions do notapply to issuances related to internalmanagement or administration of theagency.

§ 1690.107 Definitions.(a) Affected agency means any agency

whose programs, policies, procedures,authority or other statutory mandates(including coverage of groups of em-ployers, unions, State and local gov-ernments or other organizations man-dated by statute or Executive Order)indicate that the agency may have aninterest in the proposed issuance.

(b) Agencies means those Executiveand independent agencies, agency com-ponents, regulatory commissions, andadvisory bodies having equal employ-ment opportunity program responsibil-ities or authority other than equal em-ployment opportunity responsibilitiesfor their own Federal employees.

(c) Consultation means the exchangeof advice and opinions on a subject oc-curring among the EEOC and affectedagencies before formal submission ofthe issuance.

(d) Formal submission means thetransmittal of a written, publication-ready document by the issuing agencyto the EEOC and other affected agen-cies for at least 15 working days fromdate of receipt. The formal submissionshall take place before the publicationof any issuance as a final document.

(e) Internal or administrative docu-ments, pursuant to 1–304 of the Order,may include, but are not limited to,forms for internal audit and record-keeping; forms for performance andprogram evaluation; internal directivesdealing with program accountability;routine intra-agency budget forms;intra-agency agreements; correspond-ence which does not transmit signifi-

cant new policy interpretations or pro-gram standards having an impact uponother Federal agencies; tables of orga-nization; and other documents settingforth administrative procedures for theconduct of programs. Internal or ad-ministrative documents do not includecompliance manuals, training mate-rials, publications or any other inter-nal documents setting forth proceduresfor the resolution of complaints, stand-ards of review or proof, or any otherpolicies, standards or directives havingimplications for non-Federal employ-ees.

(f) Issuance refers to any rule, regula-tion, guideline, order, policy directive,procedural directive, legislative pro-posal, publication, or data collection orrecordkeeping instrument. It also in-cludes agency documents as describedabove, or revisions of such documents,developed pursuant to court order.Issuance does not include orders issuedto specific parties as a result of adju-dicatory-type processes.

(g) Order means Executive Order 12067(Providing for Coordination of FederalEqual Employment Opportunity Pro-grams).

(h) Public announcement means thepublication of a document in final formin the FEDERAL REGISTER or any otherpromulgation for general agency orpublic reference.

(i) Significant issuance means anyissuance which the public must be af-forded an opportunity to commentupon. In determining whether anissuance is significant, the EEOC shallapply the following criteria:

(1) The type and number of individ-uals, businesses, organizations, em-ployers, labor unions, or State andlocal governments affected;

(2) The compliance and reporting re-quirements likely to be involved;

(3) The impact on the identificationand elimination of discrimination inemployment;

(4) The relationship of the proposedissuance to those of other programsand agencies.

[45 FR 68361, Oct. 14, 1980, as amended at 45FR 71799, Oct. 30, 1980]


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Subpart B—Responsibilities

§ 1690.201 Responsibilities.(a) The Associate Legal Counsel, Co-

ordination and Guidance Services is re-sponsible for coordinating the con-sultation and review process with otheragencies on any issuances covered bythe Order.

(b) All Federal agencies shall adviseand offer to consult with the EEOCduring the development of any pro-posed issuances, concerning equal em-ployment opportunity which affect theobligations of employers, labor organi-zations, employment agencies or otherFederal agencies.

(c) The Equal Employment Oppor-tunity Commission shall advise andoffer to consult with the affected Fed-eral agencies during the developmentof any proposed issuances concerningequal employment opportunity whichaffect the obligations of employers,labor organizations, employment agen-cies or other Federal agencies.


Subpart C—Policies andProcedures

§ 1690.301 Notification to EEOC duringdevelopment of issuances.

(a) Agencies shall notify the Commis-sion whenever they intend to develop asignificant issuance or an issuance af-fecting other agencies so that potentialduplication, overlap, or inconsistencywith the proposed issuances of otheragencies can be identified before sub-stantial agency time and resourceshave been expended. The requirementfor consultation applies whether or notthe agency plans to publish theissuance in the FEDERAL REGISTER forpublic comment.

(b) Whenever an agency of the Fed-eral government (initiating agency) de-velops a proposed issuance which willrequire consultation among the af-fected agencies, a responsible official ofthat agency or agency component shallinitiate consultation by submitting anearly draft of the appropriate docu-ments, preferably after review at thefirst or second supervisory level, to thechair of the EEOC (ATTN: Associate

Legal Counsel, Coordination and Guid-ance Services). The submission shall bemade prior to the point that theissuance is deemed final and ready forpublication and shall indicate the ap-propriate office or person responsiblefor development of the issuance.

(c) EEOC recognizes that subsequentintra-agency clearance activities maychange the policies outlined in theissuance and may add or delete itemsincluded in prior drafts. Therefore, dur-ing this period of policy development,an initiating agency shall not be boundby the contents of drafts which precedethe final draft.

(d) Except as provided in § 1690.307, inno instance shall there be formal sub-mission to the EEOC or the affectedagencies without prior consultationpursuant to section 1–304 of the Order.

(e) Where an agency issuance is re-lated to the internal management oradministration of the agency, theissuance is exempt from the consulta-tion process under the Order. The initi-ating agencies will make the deter-mination of what must be submitted.When the agencies are in doubt, EEOCwill determine the extent to which aparticular issuance is covered by thisexemption.


§ 1690.302 Issuances proposed byEEOC.

Whenever the EEOC proposes to de-velop a significant issuance or anyissuance requiring consultation, theprocedure outlined in these regula-tions, shall also apply, as set forth insection 1–303 of the Order. The EEOCshall advise and consult with other af-fected agencies whenever it develops anissuance, in the same manner and tothe same extent as other agencies arerequired to do in § 1690.301 of this part,and in other sections below.

§ 1690.303 Consultation with affectedagencies.

At the start of consultation, theEEOC shall determine which otheragencies would be affected by the pro-posed issuance, and the initiating agen-cy shall consult with such agencies.Initiating agencies shall also consultwith other agencies which claim that


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their internal equal employment op-portunity or personnel programs areaffected by proposed issuances other-wise directed at external equal employ-ment opportunity efforts. Agenciesmay consult with any other agenciesthat they believe would be affected bythe issuance. The consultation periodshall be determined by the parties.During the consultation period, theEEOC shall seek to resolve any dis-putes with the initiating agency beforepublication.

§ 1690.304 Coordination of proposedissuance.

(a) Procedure for publication of pro-posed issuance. (1) If the initiatingagency, after consultation with EEOC,proposes to publish the issuance forpurposes of receiving comments fromthe public, it shall confer with EEOCand agree on a mutually agreeablelength of time, no less than 15 workingdays, during which the proposal shallbe submitted to all affected Federalagencies pursuant to section 1–304 ofthe Order. The period of review shall besufficient to allow all affected agenciesreasonable time in which to properlyreview the proposal.

(2) When an affected agency wishesan extension of the review period, itshall make such request of the initi-ating agency. If the initiating agencydoes not grant the request, the affectedagency may then make that request ofEEOC. EEOC may, at its discretion,grant the additional time requested,whereupon EEOC will inform the initi-ating agency which shall extend the re-view period. EEOC shall also informthe initiating agency of the reasons forthe extension.

(3) After 15 working days, if theEEOC has not requested an extensionof time or otherwise communicated theneed for more time to review the pro-posal, the initiating agency may pro-ceed to publication of the proposed sig-nificant issuance for public commentfor at least 60 days.

(4) During this public comment pe-riod, certain issues may be submittedto employer and employee representa-tives for comment pursuant to section2(c) of Executive Order 12044 (Improv-ing Government Regulations) which re-quires that agencies give the public an

early and meaningful opportunity toparticipate in the development of sig-nificant regulations.

(b) Procedure for publication of finalissuance. After the period for publiccomment has closed, the initiatingagency shall then incorporate thechanges it deems appropriate and for-ward to EEOC for review, a copy of thedocument as published, a copy of thedocument as amended, with changeshighlighted, any staff analysis, and alist of commentors. EEOC or affectedagencies may review and copy the com-ments received. The time needed to re-view these materials shall be agreed onby the EEOC and the initiating agency.After completion of this review, theinitiating agency shall formally sub-mit the proposed final issuance to allaffected agencies for at least 15 work-ing days prior to publication.

§ 1690.305 Nondisclosure of proposedissuances.

(a) In the interest of encouraging fullinteragency discussion of these mat-ters and expediting the coordinationprocess, the EEOC will not discuss theproposed issuances of other agencies atan open Commission meeting wheredisclosure of information would belikely to significantly frustrate imple-mentation of a proposed agency action.The Commission will make this deter-mination on a case by case basis.

(b) Requests by the public for draftsof proposed issuances of another agen-cy will be coordinated, in appropriatecircumstances, with that agency andthe person submitting the request shallbe so notified. The decision made bythat agency with respect to such pro-posed issuances will be honored by theCommission.


§ 1690.306 Formal submission in ab-sence of consultation.

If an initiating agency has anissuance which was already under de-velopment on or before July 1, 1978,when Executive Order 12067 became ef-fective, and on which there has been noconsultation, the agency shall imme-diately notify the EEOC of the exist-ence of such proposals and the fol-lowing procedure shall apply:


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(a) EEOC shall confer with the initi-ating agency and shall determinewhether the proposal should be thesubject of informal consultation and/orformal submission to other affectedFederal agencies pursuant to section 1–304 of the Order. This does not precludethe right of the agency to consult withany other agency it wishes.

(b) If the EEOC decides that informalconsultation and/or formal submissionis necessary, it shall confer with theproposing agency and agree on a mutu-ally acceptable length of time for oneor both (the informal consultation and/or formal submission).

(c) The period of formal submissionshall be sufficient to allow all affectedagencies time in which to properly re-view the proposal. While such periodmay be longer, in no instance may it beshorter than 15 working days.

§ 1690.307 Temporary waivers.

(a) In the event that the proposedissuance is of great length or com-plexity, the EEOC may, at its discre-tion, grant a temporary waiver of therequirements contained in § 1690.303 or§ 1690.304. Such waivers may be grantedif:

(1) The period of consultation andthorough review required for these doc-uments would be so long as to disruptnormal agency operations; or

(2) The initiating agency is issuing adocument to meet an immediate statu-tory deadline; or

(3) The initiating agency presentsother compelling reasons why interimissuance is essential.

(b) In the event of a waiver, the initi-ating agency shall clearly indicate thatthe issuance is interim, has been pub-lished pursuant to a wavier, and is sub-ject to review. EEOC reserves theright, after publication, to review thedocument in light of the objectives ofthe Order. The initiating agency maymake substantive conforming changesin light of comments by EEOC andother affected agencies.


§ 1690.308 Notice of unresolved dis-putes.

(a) The disputes resolution mecha-nism in section 1–307 of the ExecutiveOrder should be used only in extraor-dinary circumstances, and only whenfurther good faith efforts on the part ofthe EEOC and the agency involvedwould be ineffective in achieving a res-olution of the dispute. Before using thedisputes resolution mechanism, theEEOC or the initiating agency musthave fully participated in the coordina-tion process, including giving notifica-tion to the EEOC and the affectedagencies of its intention to publish infinal within 15 working days.

(b) EEOC or the affected agency shallthen send written notification of thedispute and the reasons for it to theEEOC and to the other affected agen-cies. Thereafter, but within the 15 daynotice period, the EEOC or the affectedagency may refer the dispute to theExecutive Office of the President. Suchreference may be made by the Chair ofthe EEOC or the head of the Federalagency. If no reference is made within15 working days, the decision of theagency which initiated the proposedissuance will become effective.

§ 1690.309 Interpretation of the Order.

Subject to the dispute resolution pro-cedures set forth above and in accord-ance with the objectives set forth in 1–201 and the procedures in 1–303 of theOrder, the EEOC shall interpret themeaning and intent of the Order. EEOCalso will issue procedural changesunder the Order, as appropriate, afteradvice and consultation with affectedagencies as provided for in these proce-dures.

Subpart D—ReportingRequirements

§ 1690.401 Reporting requirements.

The regulations do not establish re-porting requirements other than therequired notices of proposed rule-making and formal and informal re-view.


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PART 1691—PROCEDURES FORCOMPLAINTS OF EMPLOYMENTDISCRIMINATION FILED AGAINSTRECIPIENTS OF FEDERAL FINAN-CIAL ASSISTANCE

Sec.1691.1 Purpose and application.1691.2 Exchange of information.1691.3 Confidentiality.1691.4 Standards for investigation, reviews

and hearings.1691.5 Agency processing of complaints of

employment discrimination.1691.6 General rules concerning EEOC ac-

tion on complaints.1691.7 EEOC dismissals of complaints.1691.8 Agency action on complaints dis-

missed by EEOC.1691.9 EEOC reasonable cause determina-

tions and conciliation efforts.1691.10 Agency enforcement of unresolved

complaints.1691.11 EEOC negotiated settlements and

conciliation agreements.1691.12 Interagency consultation.1691.13 Definitions.

AUTHORITY: E.O. 12250, 45 FR 72995 (Novem-ber 4, 1980) and E.O. 12067, 43 FR 28967 (June30, 1978).


§ 1691.1 Purpose and application.

The purpose of this regulation is toimplement procedures for processingand resolving complaints of employ-ment discrimination filed against re-cipients of Federal financial assistancesubject to title VI of the Civil RightsAct of 1964, title IX of the EducationAmendments of 1972, the State andLocal Fiscal Assistance Act of 1972, asamended, and provisions similar totitle VI and title IX in Federal grantstatutes. Enforcement of such provi-sions in Federal grant statutes is cov-ered by this regulation to the extentthey relate to prohibiting employmentdiscrimination on the ground of race,color, national origin, religion or sex inprograms receiving Federal financialassistance of the type subject to titleVI or title IX. This regulation does not,however, apply to the Omnibus CrimeControl and Safe Streets Act of 1968, asamended, the Juvenile Justice and De-linquency Prevention Act, as amended,the Comprehensive Employment Train-

ing Act of 1973, as amended, or Execu-tive Order 11246.

§ 1691.2 Exchange of information.

EEOC and agencies shall share anyinformation relating to the employ-ment policies and practices of recipi-ents of Federal financial assistancethat may assist each office in carryingout its responsibilities. Such informa-tion shall include, but not necessarilybe limited to, affirmative action pro-grams, annual employment reports,complaints, investigative files, concil-iation or compliance agreements, andcompliance review reports and files.

§ 1691.3 Confidentiality.

When an agency receives informationobtained by EEOC, the agency shall ob-serve the confidentiality requirementsof sections 706(b) and 709(e) of title VIIas would EEOC, except in cases wherethe agency receives the same informa-tion from a source independent ofEEOC or has referred a joint complaintto EEOC under this regulation. In suchcases, the agency may use independentsource information or information ob-tained by EEOC under the agency’s in-vestigative authority in a subsequenttitle VI, title IX or revenue sharing actenforcement proceeding. Agency ques-tions concerning confidentiality shallbe directed to the Deputy Legal Coun-sel, EEOC.

[48 FR 3574, Jan. 25, 1983, as amended at 52FR 4902, Feb. 18, 1987]

§ 1691.4 Standards for investigation,reviews and hearings.

In any investigation, compliance re-view, hearing or other proceeding,agencies shall consider title VII caselaw and EEOC Guidelines, 29 CFR parts1604–1607, unless inapplicable, in deter-mining whether a recipient of Federalfinancial assistance has engaged in anunlawful employment practice.

§ 1691.5 Agency processing of com-plaints of employment discrimina-tion.

(a) Within ten days of receipt of acomplaint of employment discrimina-tion, an agency shall notify the re-spondent that it has received a com-plaint of employment discrimination,


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including the date, place and cir-cumstances of the alleged unlawful em-ployment practice.

(b) Within thirty days of receipt of acomplaint of employment discrimina-tion an agency shall:

(1) Determine whether it has jurisdic-tion over the complaint under title VI,title IX, or the revenue sharing act;and

(2) Determine whether EEOC mayhave jurisdiction over the complaintunder title VII or the Equal Pay Act.

(c) An agency shall transfer to EEOCa complaint of employment discrimina-tion over which it does not have juris-diction but over which EEOC may havejurisdiction within thirty days of re-ceipt of a complaint. At the same time,the agency shall notify the complain-ant and the respondent of the transfer,the reason for the transfer, the loca-tion of the EEOC office to which thecomplaint was transferred and that thedate the agency received the complaintwill be deemed the date it was receivedby EEOC.

(d) If an agency determines that acomplaint of employment discrimina-tion is a joint complaint, then theagency may refer the complaint toEEOC. The agency need not consultwith EEOC prior to such a referral. Anagency referral of a joint complaintshould occur within thirty days of re-ceipt of the complaint.

(e) An agency shall refer to EEOC alljoint complaints solely alleging em-ployment discrimination against an in-dividual. If an agency determines thatspecial circumstances warrant its in-vestigation of such a joint complaint,then the agency shall determinewhether the complainant has filed asimilar charge of employment dis-crimination with EEOC.

(1) If an agency determines that thecomplainant has filed a similar chargeof employment discrimination withEEOC, then the agency may inves-tigate the complaint if EEOC agrees todefer its investigation pending theagency investigation.

(2) If an agency determines that thecomplainant has not filed a similarcharge of employment discriminationwith EEOC, then the agency may in-vestigate the complaint if special cir-cumstances warrant such action. In

such cases, EEOC shall defer its inves-tigation of the referred joint complaintpending the agency investigation.

(f) An agency shall not refer to EEOCa joint complaint alleging a pattern orpractice of employment discriminationunless special circumstances warrantagency referral of the complaint toEEOC.

(g) If a joint complaint alleges dis-crimination in employment and inother practices of a recipient, an agen-cy should, absent special cir-cumstances, handle the entire com-plaint under the agency’s own inves-tigation procedures. In such cases, theagency shall determine whether thecomplainant has filed a similar chargeof employment discrimination withEEOC. If such a charge has been filed,the agency and EEOC shall coordinatetheir activities. Upon agency request,EEOC should ordinarily defer its inves-tigation pending the agency investiga-tion.

(h) When a joint complaint is referredto EEOC for investigation, the agencyshall advise EEOC of the relevant civilrights provision(s) applicable to theemployment practices of the recipient,whether the agency wants to receiveadvance notice of any conciliation ne-gotiations, whether the agency wantsEEOC to seek information concerningthe relationship between the allegeddiscrimination and the recipient’s Fed-erally assisted programs or activitiesand, where appropriate, whether a pri-mary objective of the Federal financialassistance is to provide employment.The agency shall also notify the com-plainant and the recipient of the refer-ral, the location of the EEOC office towhich the complaint was referred, theidentity of the civil rights provision(s)involved, the authority of EEOC underthis regulation and that the date theagency received the complaint will bedeemed the date it was received byEEOC. Specifically, the notice shall in-form the recipient that the agency hasdelegated to EEOC its investigative au-thority under title VI, title IX, or therevenue sharing act, and the relevantact’s implementing regulations. Theagency, therefore, may use informationobtained by EEOC under the agency’sinvestigative authority in a subsequent


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title VI, title IX or revenue sharing actenforcement proceeding.

§ 1691.6 General rules concerningEEOC action on complaints.

(a) A complaint of employment dis-crimination filed with an agency,which is transferred or referred toEEOC under this regulation, shall bedeemed a charge received by EEOC.For all purposes under title VII and theEqual Pay Act, the date such a com-plaint was received by an agency shallbe deemed the date it was received byEEOC.

(b) When EEOC investigates a jointcomplaint it shall, where appropriate,seek sufficient information to allowthe referring agency to determinewhether the alleged employment dis-crimination is in a program or activitythat receives Federal financial assist-ance and/or whether the alleged em-ployment discrimination causes dis-crimination with respect to bene-ficiaries or potential beneficiaries ofthe assisted program.

(c) Upon referral of a joint complaintalleging a pattern or practice of em-ployment discrimination, EEOC gen-erally will limit its investigation tothe allegation(s) which directly affectthe complainant.

(d) If EEOC, in the course of an inves-tigation of a joint complaint, is unableto obtain information from a recipientthrough voluntary means, EEOC shallconsult with the referring agency todetermine an appropriate course of ac-tion.

(e) If EEOC agrees to defer its inves-tigation of a complaint of employmentdiscrimination pending an agency in-vestigation of the complaint, thenEEOC shall give due weight to theagency’s determination concerning thecomplaint.

§ 1691.7 EEOC dismissals of com-plaints.

If EEOC determines that the title VIIallegations of a joint complaint shouldbe dismissed, EEOC shall notify thecomplainant and the recipient of thereason for the dismissal and the effectthe dismissal has on the complainant’srights under the relevant civil rightsprovision(s) of the referring agency,and issue a notice of right to sue under

title VII. At the same time, EEOC shalltransmit to the referring agency a copyof EEOC’s file.

§ 1691.8 Agency action on complaintsdismissed by EEOC.

Upon EEOC’s transmittal of a dis-missal under § 1691.7 of this part, thereferring agency shall determine with-in thirty days, what, if any, action theagency intends to take with respect tothe complaint and then notify the com-plainant and the recipient. In reachingthat determination, the referring agen-cy shall give due weight to EEOC’s de-termination that the title VII allega-tions of the joint complaint should bedismissed. If the referring agency de-cides to take action with respect to acomplaint that EEOC has dismissed forlack of reasonable cause to believe thattitle VII has been violated, the agencyshall notify the Assistant AttorneyGeneral and the Chairman of the EEOCin writing of the action it plans to takeand the basis of its decision to takesuch action.

§ 1691.9 EEOC reasonable cause deter-minations and conciliation efforts.

(a) If EEOC, after investigation of ajoint complaint, determines that rea-sonable cause exists to believe thattitle VII has been violated, EEOC shalladvise the referring agency, the com-plainant and the recipient of that de-termination and attempt to resolve thecomplaint by informal methods of con-ference, conciliation and persuasion. IfEEOC would like the referring agencyto participate in conciliation negotia-tions, EEOC shall so notify the agencyand the agency shall participate. EEOCshall provide advance notice of anyconciliation negotiations to referringagencies that request such notice,whether or not EEOC requests theirparticipation in the negotiations.

(b) If EEOC’s efforts to resolve thecomplaint by informal methods of con-ference, conciliation and persuasionfail, EEOC shall:

(1) Issue a notice of failure of concil-iation to the recipient in accordancewith 29 CFR 1601.25;

(2) Transmit to the referring agencya copy of EEOC’s investigative file, in-cluding its Letter of Determinationand notice of failure of conciliation;


404


(3) If the recipient is not a govern-ment, governmental entity or politicalsubdivision, determine whether EEOCwill bring suit under title VII and, inaccordance with 29 CFR 1601.28, issue anotice of right to sue under title VII;

(4) If the recipient is a government,governmental entity or political sub-division, refer the matter to the Attor-ney General in accordance with 29 CFR1601.29. The Attorney General, or his orher delegate, will determine whetherthe Department of Justice will bringsuit under title VII and, in accordancewith 29 CFR 1601.28, issue a notice ofright to sue under title VII.

§ 1691.10 Agency enforcement of unre-solved complaints.

(a) Upon EEOC’s transmittal of a rea-sonable cause determination and noticeof failure of conciliation under§ 1691.9(b)(2) of this regulation, the re-ferring agency shall determine, withinthirty days, whether the recipient hasviolated any applicable civil rights pro-vision(s) which the agency has a re-sponsibility to enforce. The referringagency shall give due weight to EEOC’sdetermination that reasonable causeexists to believe that title VII has beenviolated.

(b) If the referring agency determinesthat the recipient has violated any ap-plicable civil rights provision(s) whichthe agency has a responsibility to en-force, the agency shall so notify thecomplainant and the recipient and de-termine whether further efforts to ob-tain voluntary compliance are war-ranted. In reaching that determina-tion, the agency shall give due weightto the failure of EEOC’s efforts to re-solve the complaint by informal meth-ods. If the referring agency determinesthat further efforts to obtain voluntarycompliance are not warranted or ifsuch further efforts fail, the agencyshall initiate appropriate enforcementproceedings under its own regulations.

(c) If the referring agency determinesthat the recipient has not violated anyapplicable civil rights provision(s)which the agency has a responsibilityto enforce, the agency shall notify thecomplainant, the recipient, the Assist-ant Attorney General and the Chair-man of the EEOC in writing of thebasis of that determination.

§ 1691.11 EEOC negotiated settlementsand conciliation agreements.

If the parties enter into a negotiatedsettlement (as described in 29 CFR1601.20) prior to a determination or aconciliation agreement (as described in29 CFR 1601.24) after a determination,EEOC shall notify the referring agencythat the complaint has been settled.The agency shall take no further ac-tion on the complaint of employmentdiscrimination thereafter except thatthe agency may take the existence ofthe complaint into account in sched-uling the recipient for a review underthe agency’s regulations.

§ 1691.12 Interagency consultation.

(a) Before investigating whether theemployment practices of a recipient ofFederal financial assistance constitutea pattern or practice of unlawful dis-crimination or initiating formal ad-ministrative enforcement procedureson that basis, an agency shall, to theextent practical, consult with theChairman of the EEOC and the Assist-ant Attorney General to assure thatduplication of effort will be minimized.

(b) Prior to the initiation of anylegal action against a recipient of Fed-eral financial assistance alleging un-lawful employment practices, the De-partment of Justice and/or EEOC shall,to the extent practical, notify the ap-propriate agency or agencies of theproposed action and the substance ofthe allegations.


As used in this regulation, the term:(a) Agency means any Federal depart-

ment or agency which extends Federalfinancial assistance subject to anycivil rights provision(s) to which thisregulation applies.

(b) Assistant Attorney General refers tothe Assistant Attorney General, CivilRights Division, United States Depart-ment of Justice, or his or her delegate.

(c) Chairman of the EEOC refers to theChairman of the Equal EmploymentOpportunity Commission, or his or herdelegate.

(d) EEOC means the Equal Employ-ment Opportunity Commission and,where appropriate, any of its DistrictOffices and its Washington Field Office.


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(e) Federal financial assistance in-cludes:

(1) Grants and loans of Federal funds,(2) The grant or donation of Federal

property and interests in property,(3) The detail of Federal personnel,(4) The sale and lease of, and the per-

mission to use (on other than a casualor transient basis), Federal property orany interest in such property withoutconsideration or at a nominal consider-ation, or at a consideration which is re-duced for the purpose of assisting therecipient, or in recognition of the pub-lic interest to be served by such sale orlease to the recipient, and

(5) Any Federal agreement, arrange-ment, or other contract which has asone of its purposes the provision of as-sistance.For purposes of this regulation, theterm Federal financial assistance also in-cludes funds disbursed under the rev-enue sharing act.

(f) Joint complaint means a complaintof employment discrimination coveredby title VII or the Equal Pay Act andby title VI, title IX, or the revenuesharing act.

(g) Recipient means any State, polit-ical subdivision of any State, or instru-mentality of any State or political sub-division, any public or private agency,institution, organization, or other enti-

ty, or any individual, in any State, towhom Federal financial assistance isextended, directly or through anotherrecipient, for any program, includingany successor, assign, or transfereethereof, but such term does not includeany ultimate beneficiary under suchprogram.

(h) Revenue sharing act refers to theState and Local Fiscal Assistance Actof 1972, as amended, 31 U.S.C. 1221 etseq.

(i) Title VI refers to title VI of theCivil Rights Act of 1964, 42 U.S.C. 2000dto 2000d–4. Where appropriate, title VIalso refers to the civil rights provisionsof other Federal statutes or regula-tions to the extent that they prohibitemployment discrimination on thegrounds of race, color, religion, sex ornational origin in programs receivingFederal financial assistance of the typesubject to title VI itself.

(j) Title VII refers to title VII of theCivil Rights Act of 1964, as amended, 42U.S.C. 2000e, et seq.

(k) Title IX refers to title IX of theEducation Amendments of 1972, 20U.S.C. 1681 to 1683.

[48 FR 3574, Jan. 25, 1983, as amended at 54FR 32063, Aug. 4, 1989]

PARTS 1692—1899 [RESERVED]


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FINDING AIDS

A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabet-ical list of agencies publishing in the CFR are included in the CFR Index andFinding Aids volume to the Code of Federal Regulations which is published sepa-rately and revised annually.

Table of CFR Titles and ChaptersAlphabetical List of Agencies Appearing in the CFRList of CFR Sections Affected

VerDate 11<MAY>2000 09:50 Jul 23, 2001 Jkt 194106 PO 00000 Frm 00001 Fmt 8008 Sfmt 8008 Y:\SGML\194106B.XXX pfrm09 PsN: 194106B

409

Table of CFR Titles and Chapters(Revised as of July 1, 2001)

Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49)

II Office of the Federal Register (Parts 50—299)

IV Miscellaneous Agencies (Parts 400—500)

Title 2—[Reserved]

Title 3—The President

I Executive Office of the President (Parts 100—199)

Title 4—Accounts

I General Accounting Office (Parts 1—99)

Title 5—Administrative Personnel

I Office of Personnel Management (Parts 1—1199)

II Merit Systems Protection Board (Parts 1200—1299)

III Office of Management and Budget (Parts 1300—1399)

V The International Organizations Employees Loyalty Board(Parts 1500—1599)

VI Federal Retirement Thrift Investment Board (Parts 1600—1699)

VII Advisory Commission on Intergovernmental Relations (Parts1700—1799)

VIII Office of Special Counsel (Parts 1800—1899)

IX Appalachian Regional Commission (Parts 1900—1999)

XI Armed Forces Retirement Home (Part 2100)

XIV Federal Labor Relations Authority, General Counsel of the Fed-eral Labor Relations Authority and Federal Service ImpassesPanel (Parts 2400—2499)

XV Office of Administration, Executive Office of the President(Parts 2500—2599)

XVI Office of Government Ethics (Parts 2600—2699)

XXI Department of the Treasury (Parts 3100—3199)

XXII Federal Deposit Insurance Corporation (Part 3201)

XXIII Department of Energy (Part 3301)

XXIV Federal Energy Regulatory Commission (Part 3401)


410

Chap.Title 5—Administrative Personnel—Continued

XXV Department of the Interior (Part 3501)

XXVI Department of Defense (Part 3601)

XXVIII Department of Justice (Part 3801)

XXIX Federal Communications Commission (Parts 3900—3999)

XXX Farm Credit System Insurance Corporation (Parts 4000—4099)

XXXI Farm Credit Administration (Parts 4100—4199)

XXXIII Overseas Private Investment Corporation (Part 4301)

XXXV Office of Personnel Management (Part 4501)

XL Interstate Commerce Commission (Part 5001)

XLI Commodity Futures Trading Commission (Part 5101)

XLII Department of Labor (Part 5201)

XLIII National Science Foundation (Part 5301)

XLV Department of Health and Human Services (Part 5501)

XLVI Postal Rate Commission (Part 5601)

XLVII Federal Trade Commission (Part 5701)

XLVIII Nuclear Regulatory Commission (Part 5801)

L Department of Transportation (Part 6001)

LII Export-Import Bank of the United States (Part 6201)

LIII Department of Education (Parts 6300—6399)

LIV Environmental Protection Agency (Part 6401)

LVII General Services Administration (Part 6701)

LVIII Board of Governors of the Federal Reserve System (Part 6801)

LIX National Aeronautics and Space Administration (Part 6901)

LX United States Postal Service (Part 7001)

LXI National Labor Relations Board (Part 7101)

LXII Equal Employment Opportunity Commission (Part 7201)

LXIII Inter-American Foundation (Part 7301)

LXV Department of Housing and Urban Development (Part 7501)

LXVI National Archives and Records Administration (Part 7601)

LXIX Tennessee Valley Authority (Part 7901)

LXXI Consumer Product Safety Commission (Part 8101)

LXXIII Department of Agriculture (Part 8301)

LXXIV Federal Mine Safety and Health Review Commission (Part 8401)

LXXVI Federal Retirement Thrift Investment Board (Part 8601)

LXXVII Office of Management and Budget (Part 8701)

Title 6—[Reserved]

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS0—26)

SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE


411

Chap.Title 7—Agriculture—Continued

I Agricultural Marketing Service (Standards, Inspections, Mar-keting Practices), Department of Agriculture (Parts 27—209)

II Food and Nutrition Service, Department of Agriculture (Parts210—299)

III Animal and Plant Health Inspection Service, Department of Ag-riculture (Parts 300—399)

IV Federal Crop Insurance Corporation, Department of Agriculture(Parts 400—499)

V Agricultural Research Service, Department of Agriculture(Parts 500—599)

VI Natural Resources Conservation Service, Department of Agri-culture (Parts 600—699)

VII Farm Service Agency, Department of Agriculture (Parts 700—799)

VIII Grain Inspection, Packers and Stockyards Administration (Fed-eral Grain Inspection Service), Department of Agriculture(Parts 800—899)

IX Agricultural Marketing Service (Marketing Agreements and Or-ders; Fruits, Vegetables, Nuts), Department of Agriculture(Parts 900—999)

X Agricultural Marketing Service (Marketing Agreements and Or-ders; Milk), Department of Agriculture (Parts 1000—1199)

XI Agricultural Marketing Service (Marketing Agreements and Or-ders; Miscellaneous Commodities), Department of Agriculture(Parts 1200—1299)

XIII Northeast Dairy Compact Commission (Parts 1300—1399)

XIV Commodity Credit Corporation, Department of Agriculture(Parts 1400—1499)

XV Foreign Agricultural Service, Department of Agriculture (Parts1500—1599)

XVI Rural Telephone Bank, Department of Agriculture (Parts 1600—1699)

XVII Rural Utilities Service, Department of Agriculture (Parts 1700—1799)

XVIII Rural Housing Service, Rural Business-Cooperative Service,Rural Utilities Service, and Farm Service Agency, Depart-ment of Agriculture (Parts 1800—2099)

XXVI Office of Inspector General, Department of Agriculture (Parts2600—2699)

XXVII Office of Information Resources Management, Department ofAgriculture (Parts 2700—2799)

XXVIII Office of Operations, Department of Agriculture (Parts 2800—2899)

XXIX Office of Energy, Department of Agriculture (Parts 2900—2999)

XXX Office of the Chief Financial Officer, Department of Agriculture(Parts 3000—3099)

XXXI Office of Environmental Quality, Department of Agriculture(Parts 3100—3199)

XXXII Office of Procurement and Property Management, Departmentof Agriculture (Parts 3200—3299)


412

Chap.Title 7—Agriculture—Continued

XXXIII Office of Transportation, Department of Agriculture (Parts3300—3399)

XXXIV Cooperative State Research, Education, and Extension Service,Department of Agriculture (Parts 3400—3499)

XXXV Rural Housing Service, Department of Agriculture (Parts 3500—3599)

XXXVI National Agricultural Statistics Service, Department of Agri-culture (Parts 3600—3699)

XXXVII Economic Research Service, Department of Agriculture (Parts3700—3799)

XXXVIII World Agricultural Outlook Board, Department of Agriculture(Parts 3800—3899)

XLI [Reserved]

XLII Rural Business-Cooperative Service and Rural Utilities Service,Department of Agriculture (Parts 4200—4299)

Title 8—Aliens and Nationality

I Immigration and Naturalization Service, Department of Justice(Parts 1—599)

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag-riculture (Parts 1—199)

II Grain Inspection, Packers and Stockyards Administration(Packers and Stockyards Programs), Department of Agri-culture (Parts 200—299)

III Food Safety and Inspection Service, Department of Agriculture(Parts 300—599)

Title 10—Energy

I Nuclear Regulatory Commission (Parts 0—199)

II Department of Energy (Parts 200—699)

III Department of Energy (Parts 700—999)

X Department of Energy (General Provisions) (Parts 1000—1099)

XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799)

XVIII Northeast Interstate Low-Level Radioactive Waste Commission(Part 1800)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099)

Title 12—Banks and Banking

I Comptroller of the Currency, Department of the Treasury (Parts1—199)


413

Chap.Title 12—Banks and Banking—Continued

II Federal Reserve System (Parts 200—299)

III Federal Deposit Insurance Corporation (Parts 300—399)

IV Export-Import Bank of the United States (Parts 400—499)

V Office of Thrift Supervision, Department of the Treasury (Parts500—599)

VI Farm Credit Administration (Parts 600—699)

VII National Credit Union Administration (Parts 700—799)

VIII Federal Financing Bank (Parts 800—899)

IX Federal Housing Finance Board (Parts 900—999)

XI Federal Financial Institutions Examination Council (Parts1100—1199)

XIV Farm Credit System Insurance Corporation (Parts 1400—1499)

XV Department of the Treasury (Parts 1500—1599)

XVII Office of Federal Housing Enterprise Oversight, Department ofHousing and Urban Development (Parts 1700—1799)

XVIII Community Development Financial Institutions Fund, Depart-ment of the Treasury (Parts 1800—1899)

Title 13—Business Credit and Assistance

I Small Business Administration (Parts 1—199)

III Economic Development Administration, Department of Com-merce (Parts 300—399)

IV Emergency Steel Guarantee Loan Board (Parts 400—499)

V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)

Title 14—Aeronautics and Space

I Federal Aviation Administration, Department of Transportation(Parts 1—199)

II Office of the Secretary, Department of Transportation (AviationProceedings) (Parts 200—399)

III Commercial Space Transportation, Federal Aviation Adminis-tration, Department of Transportation (Parts 400—499)

V National Aeronautics and Space Administration (Parts 1200—1299)

Title 15—Commerce and Foreign Trade

SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0—29)

SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGNTRADE

I Bureau of the Census, Department of Commerce (Parts 30—199)

II National Institute of Standards and Technology, Department ofCommerce (Parts 200—299)

III International Trade Administration, Department of Commerce(Parts 300—399)


414

Chap.Title 15—Commerce and Foreign Trade—Continued

IV Foreign-Trade Zones Board, Department of Commerce (Parts400—499)

VII Bureau of Export Administration, Department of Commerce(Parts 700—799)

VIII Bureau of Economic Analysis, Department of Commerce (Parts800—899)

IX National Oceanic and Atmospheric Administration, Departmentof Commerce (Parts 900—999)

XI Technology Administration, Department of Commerce (Parts1100—1199)

XIII East-West Foreign Trade Board (Parts 1300—1399)

XIV Minority Business Development Agency (Parts 1400—1499)

SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE-MENTS

XX Office of the United States Trade Representative (Parts 2000—2099)

SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONSAND INFORMATION

XXIII National Telecommunications and Information Administration,Department of Commerce (Parts 2300—2399)

Title 16—Commercial Practices

I Federal Trade Commission (Parts 0—999)

II Consumer Product Safety Commission (Parts 1000—1799)

Title 17—Commodity and Securities Exchanges

I Commodity Futures Trading Commission (Parts 1—199)

II Securities and Exchange Commission (Parts 200—399)

IV Department of the Treasury (Parts 400—499)

Title 18—Conservation of Power and Water Resources

I Federal Energy Regulatory Commission, Department of Energy(Parts 1—399)

III Delaware River Basin Commission (Parts 400—499)

VI Water Resources Council (Parts 700—799)

VIII Susquehanna River Basin Commission (Parts 800—899)

XIII Tennessee Valley Authority (Parts 1300—1399)

Title 19—Customs Duties

I United States Customs Service, Department of the Treasury(Parts 1—199)

II United States International Trade Commission (Parts 200—299)

III International Trade Administration, Department of Commerce(Parts 300—399)


415

Chap.Title 20—Employees’ Benefits

I Office of Workers’ Compensation Programs, Department ofLabor (Parts 1—199)

II Railroad Retirement Board (Parts 200—399)

III Social Security Administration (Parts 400—499)

IV Employees’ Compensation Appeals Board, Department of Labor(Parts 500—599)

V Employment and Training Administration, Department of Labor(Parts 600—699)

VI Employment Standards Administration, Department of Labor(Parts 700—799)

VII Benefits Review Board, Department of Labor (Parts 800—899)

VIII Joint Board for the Enrollment of Actuaries (Parts 900—999)

IX Office of the Assistant Secretary for Veterans’ Employment andTraining, Department of Labor (Parts 1000—1099)

Title 21—Food and Drugs

I Food and Drug Administration, Department of Health andHuman Services (Parts 1—1299)

II Drug Enforcement Administration, Department of Justice (Parts1300—1399)

III Office of National Drug Control Policy (Parts 1400—1499)

Title 22—Foreign Relations

I Department of State (Parts 1—199)

II Agency for International Development (Parts 200—299)

III Peace Corps (Parts 300—399)

IV International Joint Commission, United States and Canada(Parts 400—499)

V Broadcasting Board of Governors (Parts 500—599)

VII Overseas Private Investment Corporation (Parts 700—799)

IX Foreign Service Grievance Board Regulations (Parts 900—999)

X Inter-American Foundation (Parts 1000—1099)

XI International Boundary and Water Commission, United Statesand Mexico, United States Section (Parts 1100—1199)

XII United States International Development Cooperation Agency(Parts 1200—1299)

XIII Board for International Broadcasting (Parts 1300—1399)

XIV Foreign Service Labor Relations Board; Federal Labor RelationsAuthority; General Counsel of the Federal Labor RelationsAuthority; and the Foreign Service Impasse Disputes Panel(Parts 1400—1499)

XV African Development Foundation (Parts 1500—1599)

XVI Japan-United States Friendship Commission (Parts 1600—1699)

XVII United States Institute of Peace (Parts 1700—1799)


416

Chap.Title 23—Highways

I Federal Highway Administration, Department of Transportation(Parts 1—999)

II National Highway Traffic Safety Administration and FederalHighway Administration, Department of Transportation(Parts 1200—1299)

III National Highway Traffic Safety Administration, Department ofTransportation (Parts 1300—1399)

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSINGAND URBAN DEVELOPMENT (PARTS 0—99)

SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE-VELOPMENT

I Office of Assistant Secretary for Equal Opportunity, Departmentof Housing and Urban Development (Parts 100—199)

II Office of Assistant Secretary for Housing-Federal Housing Com-missioner, Department of Housing and Urban Development(Parts 200—299)

III Government National Mortgage Association, Department ofHousing and Urban Development (Parts 300—399)

IV Office of Housing and Office of Multifamily Housing AssistanceRestructuring, Department of Housing and Urban Develop-ment (Parts 400—499)

V Office of Assistant Secretary for Community Planning and De-velopment, Department of Housing and Urban Development(Parts 500—599)

VI Office of Assistant Secretary for Community Planning and De-velopment, Department of Housing and Urban Development(Parts 600—699) [Reserved]

VII Office of the Secretary, Department of Housing and Urban Devel-opment (Housing Assistance Programs and Public and IndianHousing Programs) (Parts 700—799)

VIII Office of the Assistant Secretary for Housing—Federal HousingCommissioner, Department of Housing and Urban Develop-ment (Section 8 Housing Assistance Programs, Section 202 Di-rect Loan Program, Section 202 Supportive Housing for the El-derly Program and Section 811 Supportive Housing for PersonsWith Disabilities Program) (Parts 800—899)

IX Office of Assistant Secretary for Public and Indian Housing, De-partment of Housing and Urban Development (Parts 900—999)

X Office of Assistant Secretary for Housing—Federal HousingCommissioner, Department of Housing and Urban Develop-ment (Interstate Land Sales Registration Program) (Parts1700—1799)

XII Office of Inspector General, Department of Housing and UrbanDevelopment (Parts 2000—2099)

XX Office of Assistant Secretary for Housing—Federal HousingCommissioner, Department of Housing and Urban Develop-ment (Parts 3200—3899)

XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)


417

Chap.Title 25—Indians

I Bureau of Indian Affairs, Department of the Interior (Parts 1—299)

II Indian Arts and Crafts Board, Department of the Interior (Parts300—399)

III National Indian Gaming Commission, Department of the Inte-rior (Parts 500—599)

IV Office of Navajo and Hopi Indian Relocation (Parts 700—799)

V Bureau of Indian Affairs, Department of the Interior, and IndianHealth Service, Department of Health and Human Services(Part 900)

VI Office of the Assistant Secretary-Indian Affairs, Department ofthe Interior (Parts 1000—1199)

VII Office of the Special Trustee for American Indians, Departmentof the Interior (Part 1200)

Title 26—Internal Revenue

I Internal Revenue Service, Department of the Treasury (Parts 1—799)

Title 27—Alcohol, Tobacco Products and Firearms

I Bureau of Alcohol, Tobacco and Firearms, Department of theTreasury (Parts 1—299)

Title 28—Judicial Administration

I Department of Justice (Parts 0—199)

III Federal Prison Industries, Inc., Department of Justice (Parts300—399)

V Bureau of Prisons, Department of Justice (Parts 500—599)

VI Offices of Independent Counsel, Department of Justice (Parts600—699)

VII Office of Independent Counsel (Parts 700—799)

VIII Court Services and Offender Supervision Agency for the Districtof Columbia (Parts 800—899)

IX National Crime Prevention and Privacy Compact Council (Parts900—999)

Title 29—Labor

SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99)

SUBTITLE B—REGULATIONS RELATING TO LABOR

I National Labor Relations Board (Parts 100—199)

II Office of Labor-Management Standards, Department of Labor(Parts 200—299)

III National Railroad Adjustment Board (Parts 300—399)

IV Office of Labor-Management Standards, Department of Labor(Parts 400—499)


418

Chap.Title 29—Labor—Continued

V Wage and Hour Division, Department of Labor (Parts 500—899)

IX Construction Industry Collective Bargaining Commission (Parts900—999)

X National Mediation Board (Parts 1200—1299)

XII Federal Mediation and Conciliation Service (Parts 1400—1499)

XIV Equal Employment Opportunity Commission (Parts 1600—1699)

XVII Occupational Safety and Health Administration, Department ofLabor (Parts 1900—1999)

XX Occupational Safety and Health Review Commission (Parts2200—2499)

XXV Pension and Welfare Benefits Administration, Department ofLabor (Parts 2500—2599)

XXVII Federal Mine Safety and Health Review Commission (Parts2700—2799)

XL Pension Benefit Guaranty Corporation (Parts 4000—4999)

Title 30—Mineral Resources

I Mine Safety and Health Administration, Department of Labor(Parts 1—199)

II Minerals Management Service, Department of the Interior(Parts 200—299)

III Board of Surface Mining and Reclamation Appeals, Departmentof the Interior (Parts 300—399)

IV Geological Survey, Department of the Interior (Parts 400—499)

VI Bureau of Mines, Department of the Interior (Parts 600—699)

VII Office of Surface Mining Reclamation and Enforcement, Depart-ment of the Interior (Parts 700—999)

Title 31—Money and Finance: Treasury

SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS0—50)

SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE

I Monetary Offices, Department of the Treasury (Parts 51—199)

II Fiscal Service, Department of the Treasury (Parts 200—399)

IV Secret Service, Department of the Treasury (Parts 400—499)

V Office of Foreign Assets Control, Department of the Treasury(Parts 500—599)

VI Bureau of Engraving and Printing, Department of the Treasury(Parts 600—699)

VII Federal Law Enforcement Training Center, Department of theTreasury (Parts 700—799)

VIII Office of International Investment, Department of the Treasury(Parts 800—899)

IX Federal Claims Collection Standards (Department of the Treas-ury—Department of Justice) (Parts 900—999)


419

Chap.Title 32—National Defense

SUBTITLE A—DEPARTMENT OF DEFENSE

I Office of the Secretary of Defense (Parts 1—399)

V Department of the Army (Parts 400—699)

VI Department of the Navy (Parts 700—799)

VII Department of the Air Force (Parts 800—1099)

SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE-FENSE

XII Defense Logistics Agency (Parts 1200—1299)

XVI Selective Service System (Parts 1600—1699)

XVIII National Counterintelligence Center (Parts 1800—1899)

XIX Central Intelligence Agency (Parts 1900—1999)

XX Information Security Oversight Office, National Archives andRecords Administration (Parts 2000—2099)

XXI National Security Council (Parts 2100—2199)

XXIV Office of Science and Technology Policy (Parts 2400—2499)

XXVII Office for Micronesian Status Negotiations (Parts 2700—2799)

XXVIII Office of the Vice President of the United States (Parts 2800—2899)

Title 33—Navigation and Navigable Waters

I Coast Guard, Department of Transportation (Parts 1—199)

II Corps of Engineers, Department of the Army (Parts 200—399)

IV Saint Lawrence Seaway Development Corporation, Departmentof Transportation (Parts 400—499)

Title 34—Education

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU-CATION (PARTS 1—99)

SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENTOF EDUCATION

I Office for Civil Rights, Department of Education (Parts 100—199)

II Office of Elementary and Secondary Education, Department ofEducation (Parts 200—299)

III Office of Special Education and Rehabilitative Services, Depart-ment of Education (Parts 300—399)

IV Office of Vocational and Adult Education, Department of Edu-cation (Parts 400—499)

V Office of Bilingual Education and Minority Languages Affairs,Department of Education (Parts 500—599)

VI Office of Postsecondary Education, Department of Education(Parts 600—699)

VII Office of Educational Research and Improvement, Department ofEducation (Parts 700—799)

XI National Institute for Literacy (Parts 1100—1199)

SUBTITLE C—REGULATIONS RELATING TO EDUCATION

XII National Council on Disability (Parts 1200—1299)


420

Chap.Title 35—Panama Canal

I Panama Canal Regulations (Parts 1—299)

Title 36—Parks, Forests, and Public Property

I National Park Service, Department of the Interior (Parts 1—199)

II Forest Service, Department of Agriculture (Parts 200—299)

III Corps of Engineers, Department of the Army (Parts 300—399)

IV American Battle Monuments Commission (Parts 400—499)

V Smithsonian Institution (Parts 500—599)

VII Library of Congress (Parts 700—799)

VIII Advisory Council on Historic Preservation (Parts 800—899)

IX Pennsylvania Avenue Development Corporation (Parts 900—999)

X Presidio Trust (Parts 1000—1099)

XI Architectural and Transportation Barriers Compliance Board(Parts 1100—1199)

XII National Archives and Records Administration (Parts 1200—1299)

XV Oklahoma City National Memorial Trust (Part 1501)

XVI Morris K. Udall Scholarship and Excellence in National Environ-mental Policy Foundation (Parts 1600—1699)

Title 37—Patents, Trademarks, and Copyrights

I United States Patent and Trademark Office, Department ofCommerce (Parts 1—199)

II Copyright Office, Library of Congress (Parts 200—299)

IV Assistant Secretary for Technology Policy, Department of Com-merce (Parts 400—499)

V Under Secretary for Technology, Department of Commerce(Parts 500—599)

Title 38—Pensions, Bonuses, and Veterans’ Relief

I Department of Veterans Affairs (Parts 0—99)

Title 39—Postal Service

I United States Postal Service (Parts 1—999)

III Postal Rate Commission (Parts 3000—3099)

Title 40—Protection of Environment

I Environmental Protection Agency (Parts 1—799)

IV Environmental Protection Agency and Department of Justice(Parts 1400—1499)

V Council on Environmental Quality (Parts 1500—1599)

VI Chemical Safety and Hazard Investigation Board (Parts 1600—1699)


421

Chap.Title 40—Protection of Environment—Continued

VII Environmental Protection Agency and Department of Defense;Uniform National Discharge Standards for Vessels of theArmed Forces (Parts 1700—1799)

Title 41—Public Contracts and Property Management

SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS

50 Public Contracts, Department of Labor (Parts 50–1—50–999)

51 Committee for Purchase From People Who Are Blind or SeverelyDisabled (Parts 51–1—51–99)

60 Office of Federal Contract Compliance Programs, Equal Employ-ment Opportunity, Department of Labor (Parts 60–1—60–999)

61 Office of the Assistant Secretary for Veterans Employment andTraining, Department of Labor (Parts 61–1—61–999)

SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONSSYSTEM

101 Federal Property Management Regulations (Parts 101–1—101–99)

102 Federal Management Regulation (Parts 102–1—102–299)

105 General Services Administration (Parts 105–1—105–999)

109 Department of Energy Property Management Regulations (Parts109–1—109–99)

114 Department of the Interior (Parts 114–1—114–99)

115 Environmental Protection Agency (Parts 115–1—115–99)

128 Department of Justice (Parts 128–1—128–99)

SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE-MENT [RESERVED]

SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENTREGULATIONS SYSTEM

201 Federal Information Resources Management Regulation (Parts201–1—201–99) [Reserved]

SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM

300 General (Parts 300–1—300–99)

301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99)

302 Relocation Allowances (Parts 302–1—302–99)

303 Payment of Expenses Connected with the Death of Certain Em-ployees (Part 303–70)

304 Payment from a Non-Federal Source for Travel Expenses (Parts304–1—304–99)

Title 42—Public Health

I Public Health Service, Department of Health and Human Serv-ices (Parts 1—199)

IV Health Care Financing Administration, Department of Healthand Human Services (Parts 400—499)

V Office of Inspector General-Health Care, Department of Healthand Human Services (Parts 1000—1999)


422

Chap.Title 43—Public Lands: Interior

SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS1—199)

SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS

I Bureau of Reclamation, Department of the Interior (Parts 200—499)

II Bureau of Land Management, Department of the Interior (Parts1000—9999)

III Utah Reclamation Mitigation and Conservation Commission(Parts 10000—10005)

Title 44—Emergency Management and Assistance

I Federal Emergency Management Agency (Parts 0—399)

IV Department of Commerce and Department of Transportation(Parts 400—499)

Title 45—Public Welfare

SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES(PARTS 1—199)

SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE

II Office of Family Assistance (Assistance Programs), Administra-tion for Children and Families, Department of Health andHuman Services (Parts 200—299)

III Office of Child Support Enforcement (Child Support Enforce-ment Program), Administration for Children and Families,Department of Health and Human Services (Parts 300—399)

IV Office of Refugee Resettlement, Administration for Children andFamilies Department of Health and Human Services (Parts400—499)

V Foreign Claims Settlement Commission of the United States,Department of Justice (Parts 500—599)

VI National Science Foundation (Parts 600—699)

VII Commission on Civil Rights (Parts 700—799)

VIII Office of Personnel Management (Parts 800—899)

X Office of Community Services, Administration for Children andFamilies, Department of Health and Human Services (Parts1000—1099)

XI National Foundation on the Arts and the Humanities (Parts1100—1199)

XII Corporation for National and Community Service (Parts 1200—1299)

XIII Office of Human Development Services, Department of Healthand Human Services (Parts 1300—1399)

XVI Legal Services Corporation (Parts 1600—1699)

XVII National Commission on Libraries and Information Science(Parts 1700—1799)

XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899)

XXI Commission on Fine Arts (Parts 2100—2199)


423

Chap.Title 45—Public Welfare—Continued

XXIII Arctic Research Commission (Part 2301)

XXIV James Madison Memorial Fellowship Foundation (Parts 2400—2499)

XXV Corporation for National and Community Service (Parts 2500—2599)

Title 46—Shipping

I Coast Guard, Department of Transportation (Parts 1—199)

II Maritime Administration, Department of Transportation (Parts200—399)

III Coast Guard (Great Lakes Pilotage), Department of Transpor-tation (Parts 400—499)

IV Federal Maritime Commission (Parts 500—599)

Title 47—Telecommunication

I Federal Communications Commission (Parts 0—199)

II Office of Science and Technology Policy and National SecurityCouncil (Parts 200—299)

III National Telecommunications and Information Administration,Department of Commerce (Parts 300—399)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99)

2 Department of Defense (Parts 200—299)

3 Department of Health and Human Services (Parts 300—399)

4 Department of Agriculture (Parts 400—499)

5 General Services Administration (Parts 500—599)

6 Department of State (Parts 600—699)

7 United States Agency for International Development (Parts700—799)

8 Department of Veterans Affairs (Parts 800—899)

9 Department of Energy (Parts 900—999)

10 Department of the Treasury (Parts 1000—1099)

12 Department of Transportation (Parts 1200—1299)

13 Department of Commerce (Parts 1300—1399)

14 Department of the Interior (Parts 1400—1499)

15 Environmental Protection Agency (Parts 1500—1599)

16 Office of Personnel Management Federal Employees Health Ben-efits Acquisition Regulation (Parts 1600—1699)

17 Office of Personnel Management (Parts 1700—1799)

18 National Aeronautics and Space Administration (Parts 1800—1899)

19 Broadcasting Board of Governors (Parts 1900—1999)

20 Nuclear Regulatory Commission (Parts 2000—2099)


424

Chap.Title 48—Federal Acquisition Regulations System—Continued

21 Office of Personnel Management, Federal Employees Group LifeInsurance Federal Acquisition Regulation (Parts 2100—2199)

23 Social Security Administration (Parts 2300—2399)

24 Department of Housing and Urban Development (Parts 2400—2499)

25 National Science Foundation (Parts 2500—2599)

28 Department of Justice (Parts 2800—2899)

29 Department of Labor (Parts 2900—2999)

34 Department of Education Acquisition Regulation (Parts 3400—3499)

35 Panama Canal Commission (Parts 3500—3599)

44 Federal Emergency Management Agency (Parts 4400—4499)

51 Department of the Army Acquisition Regulations (Parts 5100—5199)

52 Department of the Navy Acquisition Regulations (Parts 5200—5299)

53 Department of the Air Force Federal Acquisition RegulationSupplement (Parts 5300—5399)

54 Defense Logistics Agency, Department of Defense (Part 5452)

57 African Development Foundation (Parts 5700—5799)

61 General Services Administration Board of Contract Appeals(Parts 6100—6199)

63 Department of Transportation Board of Contract Appeals (Parts6300—6399)

99 Cost Accounting Standards Board, Office of Federal Procure-ment Policy, Office of Management and Budget (Parts 9900—9999)

Title 49—Transportation

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION(PARTS 1—99)

SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION

I Research and Special Programs Administration, Department ofTransportation (Parts 100—199)

II Federal Railroad Administration, Department of Transportation(Parts 200—299)

III Federal Motor Carrier Safety Administration, Department ofTransportation (Parts 300—399)

IV Coast Guard, Department of Transportation (Parts 400—499)

V National Highway Traffic Safety Administration, Department ofTransportation (Parts 500—599)

VI Federal Transit Administration, Department of Transportation(Parts 600—699)

VII National Railroad Passenger Corporation (AMTRAK) (Parts700—799)

VIII National Transportation Safety Board (Parts 800—999)

X Surface Transportation Board, Department of Transportation(Parts 1000—1399)


425

Chap.Title 49—Transportation—Continued

XI Bureau of Transportation Statistics, Department of Transpor-tation (Parts 1400—1499)

Title 50—Wildlife and Fisheries

I United States Fish and Wildlife Service, Department of the Inte-rior (Parts 1—199)

II National Marine Fisheries Service, National Oceanic and Atmos-pheric Administration, Department of Commerce (Parts 200—299)

III International Fishing and Related Activities (Parts 300—399)

IV Joint Regulations (United States Fish and Wildlife Service, De-partment of the Interior and National Marine Fisheries Serv-ice, National Oceanic and Atmospheric Administration, De-partment of Commerce); Endangered Species Committee Reg-ulations (Parts 400—499)

V Marine Mammal Commission (Parts 500—599)

VI Fishery Conservation and Management, National Oceanic andAtmospheric Administration, Department of Commerce (Parts600—699)

CFR Index and Finding Aids

Subject/Agency Index

List of Agency Prepared Indexes

Parallel Tables of Statutory Authorities and Rules

List of CFR Titles, Chapters, Subchapters, and Parts

Alphabetical List of Agencies Appearing in the CFR


427

Alphabetical List of Agencies Appearing in the CFR(Revised as of July 1, 2001)

AgencyCFR Title, Subtitle or

Chapter

Administrative Committee of the Federal Register 1, IAdvanced Research Projects Agency 32, IAdvisory Commission on Intergovernmental Relations 5, VIIAdvisory Council on Historic Preservation 36, VIIIAfrican Development Foundation 22, XV

Federal Acquisition Regulation 48, 57Agency for International Development, United States 22, II

Federal Acquisition Regulation 48, 7Agricultural Marketing Service 7, I, IX, X, XIAgricultural Research Service 7, VAgriculture Department 5, LXXIII

Agricultural Marketing Service 7, I, IX, X, XIAgricultural Research Service 7, VAnimal and Plant Health Inspection Service 7, III; 9, IChief Financial Officer, Office of 7, XXXCommodity Credit Corporation 7, XIVCooperative State Research, Education, and Extension

Service7, XXXIV

Economic Research Service 7, XXXVIIEnergy, Office of 7, XXIXEnvironmental Quality, Office of 7, XXXIFarm Service Agency 7, VII, XVIIIFederal Acquisition Regulation 48, 4Federal Crop Insurance Corporation 7, IVFood and Nutrition Service 7, IIFood Safety and Inspection Service 9, IIIForeign Agricultural Service 7, XVForest Service 36, IIGrain Inspection, Packers and Stockyards Administration 7, VIII; 9, IIInformation Resources Management, Office of 7, XXVIIInspector General, Office of 7, XXVINational Agricultural Library 7, XLINational Agricultural Statistics Service 7, XXXVINatural Resources Conservation Service 7, VIOperations, Office of 7, XXVIIIProcurement and Property Management, Office of 7, XXXIIRural Business-Cooperative Service 7, XVIII, XLIIRural Development Administration 7, XLIIRural Housing Service 7, XVIII, XXXVRural Telephone Bank 7, XVIRural Utilities Service 7, XVII, XVIII, XLIISecretary of Agriculture, Office of 7, Subtitle ATransportation, Office of 7, XXXIIIWorld Agricultural Outlook Board 7, XXXVIII

Air Force Department 32, VIIFederal Acquisition Regulation Supplement 48, 53

Alcohol, Tobacco and Firearms, Bureau of 27, IAMTRAK 49, VIIAmerican Battle Monuments Commission 36, IVAmerican Indians, Office of the Special Trustee 25, VIIAnimal and Plant Health Inspection Service 7, III; 9, IAppalachian Regional Commission 5, IXArchitectural and Transportation Barriers Compliance Board 36, XI


428


Chapter

Arctic Research Commission 45, XXIIIArmed Forces Retirement Home 5, XIArmy Department 32, V

Engineers, Corps of 33, II; 36, IIIFederal Acquisition Regulation 48, 51

Benefits Review Board 20, VIIBilingual Education and Minority Languages Affairs, Office of 34, VBlind or Severely Disabled, Committee for Purchase From

People Who Are41, 51

Board for International Broadcasting 22, XIIIBroadcasting Board of Governors 22, V

Federal Acquisition Regulation 48, 19Census Bureau 15, ICentral Intelligence Agency 32, XIXChief Financial Officer, Office of 7, XXXChild Support Enforcement, Office of 45, IIIChildren and Families, Administration for 45, II, III, IV, XCivil Rights, Commission on 45, VIICivil Rights, Office for 34, ICoast Guard 33, I; 46, I; 49, IVCoast Guard (Great Lakes Pilotage) 46, IIICommerce Department 44, IV

Census Bureau 15, IEconomic Affairs, Under Secretary 37, VEconomic Analysis, Bureau of 15, VIIIEconomic Development Administration 13, IIIEmergency Management and Assistance 44, IVExport Administration, Bureau of 15, VIIFederal Acquisition Regulation 48, 13Fishery Conservation and Management 50, VIForeign-Trade Zones Board 15, IVInternational Trade Administration 15, III; 19, IIINational Institute of Standards and Technology 15, IINational Marine Fisheries Service 50, II, IV, VINational Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VINational Telecommunications and Information

Administration15, XXIII; 47, III

National Weather Service 15, IXPatent and Trademark Office, United States 37, IProductivity, Technology and Innovation, Assistant

Secretary for37, IV

Secretary of Commerce, Office of 15, Subtitle ATechnology, Under Secretary for 37, VTechnology Administration 15, XITechnology Policy, Assistant Secretary for 37, IV

Commercial Space Transportation 14, IIICommodity Credit Corporation 7, XIVCommodity Futures Trading Commission 5, XLI; 17, ICommunity Planning and Development, Office of Assistant

Secretary for24, V, VI

Community Services, Office of 45, XComptroller of the Currency 12, IConstruction Industry Collective Bargaining Commission 29, IXConsumer Product Safety Commission 5, LXXI; 16, IICooperative State Research, Education, and Extension

Service7, XXXIV

Copyright Office 37, IICorporation for National and Community Service 45, XII, XXVCost Accounting Standards Board 48, 99Council on Environmental Quality 40, VCourt Services and Offender Supervision Agency for the

District of Columbia28, VIII

Customs Service, United States 19, IDefense Contract Audit Agency 32, IDefense Department 5, XXVI; 32, Subtitle A;

40, VIIAdvanced Research Projects Agency 32, I


429


Chapter

Air Force Department 32, VIIArmy Department 32, V; 33, II; 36, III, 48,

51Defense Intelligence Agency 32, IDefense Logistics Agency 32, I, XII; 48, 54Engineers, Corps of 33, II; 36, IIIFederal Acquisition Regulation 48, 2National Imagery and Mapping Agency 32, INavy Department 32, VI; 48, 52Secretary of Defense, Office of 32, I

Defense Contract Audit Agency 32, IDefense Intelligence Agency 32, IDefense Logistics Agency 32, XII; 48, 54Defense Nuclear Facilities Safety Board 10, XVIIDelaware River Basin Commission 18, IIIDistrict of Columbia, Court Services and Offender Supervision

Agency for the28, VIII

Drug Enforcement Administration 21, IIEast-West Foreign Trade Board 15, XIIIEconomic Affairs, Under Secretary 37, VEconomic Analysis, Bureau of 15, VIIIEconomic Development Administration 13, IIIEconomic Research Service 7, XXXVIIEducation, Department of 5, LIII

Bilingual Education and Minority Languages Affairs, Officeof

34, V

Civil Rights, Office for 34, IEducational Research and Improvement, Office of 34, VIIElementary and Secondary Education, Office of 34, IIFederal Acquisition Regulation 48, 34Postsecondary Education, Office of 34, VISecretary of Education, Office of 34, Subtitle ASpecial Education and Rehabilitative Services, Office of 34, IIIVocational and Adult Education, Office of 34, IV

Educational Research and Improvement, Office of 34, VIIElementary and Secondary Education, Office of 34, IIEmergency Oil and Gas Guaranteed Loan Board 13, VEmergency Steel Guarantee Loan Board 13, IVEmployees’ Compensation Appeals Board 20, IVEmployees Loyalty Board 5, VEmployment and Training Administration 20, VEmployment Standards Administration 20, VIEndangered Species Committee 50, IVEnergy, Department of 5, XXIII; 10, II, III, X

Federal Acquisition Regulation 48, 9Federal Energy Regulatory Commission 5, XXIV; 18, IProperty Management Regulations 41, 109

Energy, Office of 7, XXIXEngineers, Corps of 33, II; 36, IIIEngraving and Printing, Bureau of 31, VIEnvironmental Protection Agency 5, LIV; 40, I, IV, VII

Federal Acquisition Regulation 48, 15Property Management Regulations 41, 115

Environmental Quality, Office of 7, XXXIEqual Employment Opportunity Commission 5, LXII; 29, XIVEqual Opportunity, Office of Assistant Secretary for 24, IExecutive Office of the President 3, I

Administration, Office of 5, XVEnvironmental Quality, Council on 40, VManagement and Budget, Office of 25, III, LXXVII; 48, 99National Drug Control Policy, Office of 21, IIINational Security Council 32, XXI; 47, 2Presidential Documents 3Science and Technology Policy, Office of 32, XXIV; 47, IITrade Representative, Office of the United States 15, XX

Export Administration, Bureau of 15, VIIExport-Import Bank of the United States 5, LII; 12, IV


430


Chapter

Family Assistance, Office of 45, IIFarm Credit Administration 5, XXXI; 12, VIFarm Credit System Insurance Corporation 5, XXX; 12, XIVFarm Service Agency 7, VII, XVIIIFederal Acquisition Regulation 48, 1Federal Aviation Administration 14, I

Commercial Space Transportation 14, IIIFederal Claims Collection Standards 31, IXFederal Communications Commission 5, XXIX; 47, IFederal Contract Compliance Programs, Office of 41, 60Federal Crop Insurance Corporation 7, IVFederal Deposit Insurance Corporation 5, XXII; 12, IIIFederal Election Commission 11, IFederal Emergency Management Agency 44, I

Federal Acquisition Regulation 48, 44Federal Employees Group Life Insurance Federal Acquisition

Regulation48, 21

Federal Employees Health Benefits Acquisition Regulation 48, 16Federal Energy Regulatory Commission 5, XXIV; 18, IFederal Financial Institutions Examination Council 12, XIFederal Financing Bank 12, VIIIFederal Highway Administration 23, I, IIFederal Home Loan Mortgage Corporation 1, IVFederal Housing Enterprise Oversight Office 12, XVIIFederal Housing Finance Board 12, IXFederal Labor Relations Authority, and General Counsel of

the Federal Labor Relations Authority5, XIV; 22, XIV

Federal Law Enforcement Training Center 31, VIIFederal Management Regulation 41, 102Federal Maritime Commission 46, IVFederal Mediation and Conciliation Service 29, XIIFederal Mine Safety and Health Review Commission 5, LXXIV; 29, XXVIIFederal Motor Carrier Safety Administration 49, IIIFederal Prison Industries, Inc. 28, IIIFederal Procurement Policy Office 48, 99Federal Property Management Regulations 41, 101Federal Railroad Administration 49, IIFederal Register, Administrative Committee of 1, IFederal Register, Office of 1, IIFederal Reserve System 12, II

Board of Governors 5, LVIIIFederal Retirement Thrift Investment Board 5, VI, LXXVIFederal Service Impasses Panel 5, XIVFederal Trade Commission 5, XLVII; 16, IFederal Transit Administration 49, VIFederal Travel Regulation System 41, Subtitle FFine Arts, Commission on 45, XXIFiscal Service 31, IIFish and Wildlife Service, United States 50, I, IVFishery Conservation and Management 50, VIFood and Drug Administration 21, IFood and Nutrition Service 7, IIFood Safety and Inspection Service 9, IIIForeign Agricultural Service 7, XVForeign Assets Control, Office of 31, VForeign Claims Settlement Commission of the United States 45, VForeign Service Grievance Board 22, IXForeign Service Impasse Disputes Panel 22, XIVForeign Service Labor Relations Board 22, XIVForeign-Trade Zones Board 15, IVForest Service 36, IIGeneral Accounting Office 4, IGeneral Services Administration 5, LVII; 41, 105

Contract Appeals, Board of 48, 61Federal Acquisition Regulation 48, 5Federal Management Regulation 41, 102Federal Property Management Regulations 41, 101


431


Chapter

Federal Travel Regulation System 41, Subtitle FGeneral 41, 300Payment From a Non-Federal Source for Travel Expenses 41, 304Payment of Expenses Connected With the Death of Certain

Employees41, 303

Relocation Allowances 41, 302Temporary Duty (TDY) Travel Allowances 41, 301

Geological Survey 30, IVGovernment Ethics, Office of 5, XVIGovernment National Mortgage Association 24, IIIGrain Inspection, Packers and Stockyards Administration 7, VIII; 9, IIHarry S. Truman Scholarship Foundation 45, XVIIIHealth and Human Services, Department of 5, XLV; 45, Subtitle A

Child Support Enforcement, Office of 45, IIIChildren and Families, Administration for 45, II, III, IV, XCommunity Services, Office of 45, XFamily Assistance, Office of 45, IIFederal Acquisition Regulation 48, 3Food and Drug Administration 21, IHealth Care Financing Administration 42, IVHuman Development Services, Office of 45, XIIIIndian Health Service 25, VInspector General (Health Care), Office of 42, VPublic Health Service 42, IRefugee Resettlement, Office of 45, IV

Health Care Financing Administration 42, IVHousing and Urban Development, Department of 5, LXV; 24, Subtitle B

Community Planning and Development, Office of AssistantSecretary for

24, V, VI

Equal Opportunity, Office of Assistant Secretary for 24, IFederal Acquisition Regulation 48, 24Federal Housing Enterprise Oversight, Office of 12, XVIIGovernment National Mortgage Association 24, IIIHousing—Federal Housing Commissioner, Office of

Assistant Secretary for24, II, VIII, X, XX

Housing, Office of, and Multifamily Housing AssistanceRestructuring, Office of

24, IV

Inspector General, Office of 24, XIIPublic and Indian Housing, Office of Assistant Secretary for 24, IXSecretary, Office of 24, Subtitle A, VII

Housing—Federal Housing Commissioner, Office of AssistantSecretary for

24, II, VIII, X, XX

Housing, Office of, and Multifamily Housing AssistanceRestructuring, Office of

24, IV

Human Development Services, Office of 45, XIIIImmigration and Naturalization Service 8, IIndependent Counsel, Office of 28, VIIIndian Affairs, Bureau of 25, I, VIndian Affairs, Office of the Assistant Secretary 25, VIIndian Arts and Crafts Board 25, IIIndian Health Service 25, VInformation Resources Management, Office of 7, XXVIIInformation Security Oversight Office, National Archives and

Records Administration32, XX

Inspector GeneralAgriculture Department 7, XXVIHealth and Human Services Department 42, VHousing and Urban Development Department 24, XII

Institute of Peace, United States 22, XVIIInter-American Foundation 5, LXIII; 22, XIntergovernmental Relations, Advisory Commission on 5, VIIInterior Department

American Indians, Office of the Special Trustee 25, VIIEndangered Species Committee 50, IVFederal Acquisition Regulation 48, 14Federal Property Management Regulations System 41, 114Fish and Wildlife Service, United States 50, I, IV


432


Chapter

Geological Survey 30, IVIndian Affairs, Bureau of 25, I, VIndian Affairs, Office of the Assistant Secretary 25, VIIndian Arts and Crafts Board 25, IILand Management, Bureau of 43, IIMinerals Management Service 30, IIMines, Bureau of 30, VINational Indian Gaming Commission 25, IIINational Park Service 36, IReclamation, Bureau of 43, ISecretary of the Interior, Office of 43, Subtitle ASurface Mining and Reclamation Appeals, Board of 30, IIISurface Mining Reclamation and Enforcement, Office of 30, VII

Internal Revenue Service 26, IInternational Boundary and Water Commission, United States

and Mexico, United States Section22, XI

International Development, United States Agency for 22, IIFederal Acquisition Regulation 48, 7

International Development Cooperation Agency, UnitedStates

22, XII

International Fishing and Related Activities 50, IIIInternational Investment, Office of 31, VIIIInternational Joint Commission, United States and Canada 22, IVInternational Organizations Employees Loyalty Board 5, VInternational Trade Administration 15, III; 19, IIIInternational Trade Commission, United States 19, IIInterstate Commerce Commission 5, XLJames Madison Memorial Fellowship Foundation 45, XXIVJapan–United States Friendship Commission 22, XVIJoint Board for the Enrollment of Actuaries 20, VIIIJustice Department 5, XXVIII; 28, I; 40, IV

Drug Enforcement Administration 21, IIFederal Acquisition Regulation 48, 28Federal Claims Collection Standards 31, IXFederal Prison Industries, Inc. 28, IIIForeign Claims Settlement Commission of the United

States45, V

Immigration and Naturalization Service 8, IOffices of Independent Counsel 28, VIPrisons, Bureau of 28, VProperty Management Regulations 41, 128

Labor Department 5, XLIIBenefits Review Board 20, VIIEmployees’ Compensation Appeals Board 20, IVEmployment and Training Administration 20, VEmployment Standards Administration 20, VIFederal Acquisition Regulation 48, 29Federal Contract Compliance Programs, Office of 41, 60Federal Procurement Regulations System 41, 50Labor-Management Standards, Office of 29, II, IVMine Safety and Health Administration 30, IOccupational Safety and Health Administration 29, XVIIPension and Welfare Benefits Administration 29, XXVPublic Contracts 41, 50Secretary of Labor, Office of 29, Subtitle AVeterans’ Employment and Training, Office of the Assistant

Secretary for41, 61; 20, IX

Wage and Hour Division 29, VWorkers’ Compensation Programs, Office of 20, I

Labor-Management Standards, Office of 29, II, IVLand Management, Bureau of 43, IILegal Services Corporation 45, XVILibrary of Congress 36, VII

Copyright Office 37, IIManagement and Budget, Office of 5, III, LXXVII; 48, 99Marine Mammal Commission 50, VMaritime Administration 46, II


433


Chapter

Merit Systems Protection Board 5, IIMicronesian Status Negotiations, Office for 32, XXVIIMine Safety and Health Administration 30, IMinerals Management Service 30, IIMines, Bureau of 30, VIMinority Business Development Agency 15, XIVMiscellaneous Agencies 1, IVMonetary Offices 31, IMorris K. Udall Scholarship and Excellence in National

Environmental Policy Foundation36, XVI

National Aeronautics and Space Administration 5, LIX; 14, VFederal Acquisition Regulation 48, 18

National Agricultural Library 7, XLINational Agricultural Statistics Service 7, XXXVINational and Community Service, Corporation for 45, XII, XXVNational Archives and Records Administration 5, LXVI; 36, XII

Information Security Oversight Office 32, XXNational Bureau of Standards 15, IINational Capital Planning Commission 1, IVNational Commission for Employment Policy 1, IVNational Commission on Libraries and Information Science 45, XVIINational Council on Disability 34, XIINational Counterintelligence Center 32, XVIIINational Credit Union Administration 12, VIINational Crime Prevention and Privacy Compact Council 28, IXNational Drug Control Policy, Office of 21, IIINational Foundation on the Arts and the Humanities 45, XINational Highway Traffic Safety Administration 23, II, III; 49, VNational Imagery and Mapping Agency 32, INational Indian Gaming Commission 25, IIINational Institute for Literacy 34, XINational Institute of Standards and Technology 15, IINational Labor Relations Board 5, LXI; 29, INational Marine Fisheries Service 50, II, IV, VINational Mediation Board 29, XNational Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VINational Park Service 36, INational Railroad Adjustment Board 29, IIINational Railroad Passenger Corporation (AMTRAK) 49, VIINational Science Foundation 5, XLIII; 45, VI

Federal Acquisition Regulation 48, 25National Security Council 32, XXINational Security Council and Office of Science and

Technology Policy47, II

National Telecommunications and InformationAdministration

15, XXIII; 47, III

National Transportation Safety Board 49, VIIINational Weather Service 15, IXNatural Resources Conservation Service 7, VINavajo and Hopi Indian Relocation, Office of 25, IVNavy Department 32, VI

Federal Acquisition Regulation 48, 52Neighborhood Reinvestment Corporation 24, XXVNortheast Dairy Compact Commission 7, XIIINortheast Interstate Low-Level Radioactive Waste

Commission10, XVIII

Nuclear Regulatory Commission 5, XLVIII; 10, IFederal Acquisition Regulation 48, 20

Occupational Safety and Health Administration 29, XVIIOccupational Safety and Health Review Commission 29, XXOffices of Independent Counsel 28, VIOklahoma City National Memorial Trust 36, XVOperations Office 7, XXVIIIOverseas Private Investment Corporation 5, XXXIII; 22, VIIPanama Canal Commission 48, 35Panama Canal Regulations 35, IPatent and Trademark Office, United States 37, I


434


Chapter

Payment From a Non-Federal Source for Travel Expenses 41, 304Payment of Expenses Connected With the Death of Certain

Employees41, 303

Peace Corps 22, IIIPennsylvania Avenue Development Corporation 36, IXPension and Welfare Benefits Administration 29, XXVPension Benefit Guaranty Corporation 29, XLPersonnel Management, Office of 5, I, XXXV; 45, VIII

Federal Acquisition Regulation 48, 17Federal Employees Group Life Insurance Federal

Acquisition Regulation48, 21

Federal Employees Health Benefits Acquisition Regulation 48, 16Postal Rate Commission 5, XLVI; 39, IIIPostal Service, United States 5, LX; 39, IPostsecondary Education, Office of 34, VIPresident’s Commission on White House Fellowships 1, IVPresidential Documents 3Presidio Trust 36, XPrisons, Bureau of 28, VProcurement and Property Management, Office of 7, XXXIIProductivity, Technology and Innovation, Assistant

Secretary37, IV

Public Contracts, Department of Labor 41, 50Public and Indian Housing, Office of Assistant Secretary for 24, IXPublic Health Service 42, IRailroad Retirement Board 20, IIReclamation, Bureau of 43, IRefugee Resettlement, Office of 45, IVRegional Action Planning Commissions 13, VRelocation Allowances 41, 302Research and Special Programs Administration 49, IRural Business-Cooperative Service 7, XVIII, XLIIRural Development Administration 7, XLIIRural Housing Service 7, XVIII, XXXVRural Telephone Bank 7, XVIRural Utilities Service 7, XVII, XVIII, XLIISaint Lawrence Seaway Development Corporation 33, IVScience and Technology Policy, Office of 32, XXIVScience and Technology Policy, Office of, and National

Security Council47, II

Secret Service 31, IVSecurities and Exchange Commission 17, IISelective Service System 32, XVISmall Business Administration 13, ISmithsonian Institution 36, VSocial Security Administration 20, III; 48, 23Soldiers’ and Airmen’s Home, United States 5, XISpecial Counsel, Office of 5, VIIISpecial Education and Rehabilitative Services, Office of 34, IIIState Department 22, I

Federal Acquisition Regulation 48, 6Surface Mining and Reclamation Appeals, Board of 30, IIISurface Mining Reclamation and Enforcement, Office of 30, VIISurface Transportation Board 49, XSusquehanna River Basin Commission 18, VIIITechnology Administration 15, XITechnology Policy, Assistant Secretary for 37, IVTechnology, Under Secretary for 37, VTennessee Valley Authority 5, LXIX; 18, XIIIThrift Supervision Office, Department of the Treasury 12, VTrade Representative, United States, Office of 15, XXTransportation, Department of 5, L

Coast Guard 33, I; 46, I; 49, IVCoast Guard (Great Lakes Pilotage) 46, IIICommercial Space Transportation 14, IIIContract Appeals, Board of 48, 63Emergency Management and Assistance 44, IV


435


Chapter

Federal Acquisition Regulation 48, 12Federal Aviation Administration 14, IFederal Highway Administration 23, I, IIFederal Motor Carrier Safety Administration 49, IIIFederal Railroad Administration 49, IIFederal Transit Administration 49, VIMaritime Administration 46, IINational Highway Traffic Safety Administration 23, II, III; 49, VResearch and Special Programs Administration 49, ISaint Lawrence Seaway Development Corporation 33, IVSecretary of Transportation, Office of 14, II; 49, Subtitle ASurface Transportation Board 49, XTransportation Statistics Bureau 49, XI

Transportation, Office of 7, XXXIIITransportation Statistics Brureau 49, XITravel Allowances, Temporary Duty (TDY) 41, 301Treasury Department 5, XXI; 12, XV; 17, IV;

31, IXAlcohol, Tobacco and Firearms, Bureau of 27, ICommunity Development Financial Institutions Fund 12, XVIIIComptroller of the Currency 12, ICustoms Service, United States 19, IEngraving and Printing, Bureau of 31, VIFederal Acquisition Regulation 48, 10Federal Law Enforcement Training Center 31, VIIFiscal Service 31, IIForeign Assets Control, Office of 31, VInternal Revenue Service 26, IInternational Investment, Office of 31, VIIIMonetary Offices 31, ISecret Service 31, IVSecretary of the Treasury, Office of 31, Subtitle AThrift Supervision, Office of 12, V

Truman, Harry S. Scholarship Foundation 45, XVIIIUnited States and Canada, International Joint Commission 22, IVUnited States and Mexico, International Boundary and Water

Commission, United States Section22, XI

Utah Reclamation Mitigation and Conservation Commission 43, IIIVeterans Affairs Department 38, I

Federal Acquisition Regulation 48, 8Veterans’ Employment and Training, Office of the Assistant

Secretary for41, 61; 20, IX

Vice President of the United States, Office of 32, XXVIIIVocational and Adult Education, Office of 34, IVWage and Hour Division 29, VWater Resources Council 18, VIWorkers’ Compensation Programs, Office of 20, IWorld Agricultural Outlook Board 7, XXXVIII


437

List of CFR Sections AffectedAll changes in this volume of the Code of Federal Regulations which

were made by documents published in the FEDERAL REGISTER since Jan-uary 1, 1986, are enumerated in the following list. Entries indicate thenature of the changes effected. Page numbers refer to FEDERAL REGISTERpages. The user should consult the entries for chapters and parts as wellas sections for revisions.

For the period before January 1, 1986, see the ‘‘List of CFR SectionsAffected, 1949–1963, 1964–1972, and 1973–1985,’’ published in seven separatevolumes.

198629 CFR 51 FR

Page

Chapter VII1450 Added .................................... 24817Chapter XIV1601 Authority citation re-

vised......................................... 290981601.16 (b) revised.......................... 290981601.21 (d) introductory text

amended................................... 187781601.74 (a) amended ....................... 30486

(a) footnote 4 amended ................320731601.77 Amended ........................... 187781602 Authority citation revised;

section authority citations re-moved ...................................... 11018

1602.22 Revised ............................. 110181613.232 Revised; eff. 7–21–86 .......... 225191613.414 (b) revised; eff. 7–21–86.......225191613.806 (a) revised; eff. 7–21–86.......225191620.1 Added ................................. 298191620.2 Added ................................. 298191620.3—1620.6 Added ...................... 298201620.7—1620.11 Added .................... 298211620.11 (c) corrected ...................... 326361620.12—1620.14 Added ................... 298221620.15—1620.16 Added ................... 298231620.17—1620.18 Added ................... 298241620.19 Redesignated as 1620.30 ......29819

Added ..........................................298251620.20 Redesignated as 1620.31 ......29819




Added ..........................................29825

29 CFR—Continued 51 FRPage

Chapter XIV—Continued1620.24—1620.26 Added ................... 298251620.27—1620.29 Added ................... 298261620.30 Redesignated from

1620.19....................................... 298191620.31 Redesignated from




1620.23....................................... 298191691 Procedural limitations ........... 8608

198729 CFR 52 FR

Page

Chapter XIV1600.735–204 (d) and (f)(4) amend-

ed............................................... 49021600.735–402 Nomenclature

change ....................................... 49021600.735–403 Nomenclature

change ....................................... 49021601 Authority citation re-

vised......................................... 342151601.6 Existing text designated as

(a); (b) redesignated from1601.18....................................... 26957

1601.13 (a)(3) removed; (a)(4) and(5) redesignated as (a)(3) and(4); new (a)(3) introductorytext, (4) introductory text and(ii) introductory text re-vised......................................... 10224

(a)(4)(ii) (A) and (B) corrected......18354


438

29 CFR (7–1–01 Edition)


Chapter XIV—Continued1601.18 Redesignated as 1601.6 (b);

new 1601.18 redesignated from1601.19; (b) removed; (c)through (g) redesignated as (b)through (f); new (e) and (f)amended................................... 26957

1601.19 Redesignated as 1601.18;(b) removed; (c) through (g) re-designated as (b) through (f);new (e) and (f) amended ............. 26957

Added ..........................................269581601.21 (a) revised; (d) introduc-

tory text amended .................... 269591601.24 (a) amended ....................... 269591601.28 (b)(3) amended ................... 269591601.74 (a) amended ....................... 342151601.80 Amended.............. 43, 45454, 489981610 Authority citation re-

vised......................................... 138301610.1 (d) added; interim................ 138301610.7 Nomenclature change........... 49021610.8 Nomenclature change........... 49021610.9 Nomenclature change........... 49021610.10 Nomenclature change .........49021610.11 Nomenclature change; (b),

(c), and (e) amended.................... 49021610.13 Nomenclature change .........49021610.14 Nomenclature change .........4902

Revised; interim..........................138301610.15 Revised; interim................ 138301610.16 (a) amended; (c) revised;

interim..................................... 138311613 Nomenclature changes .......... 10086

Letters and bulletins revoked .....38226Authority citation revised ..........41922

1613.211 Revised ............................ 419221613.212 (a) revised ........................ 419221613.213 (a) amended; (b) and (c)

redesignated as (c) and (d); new(b) added................................... 41922

1613.214 Revised ............................ 419221613.215 Revised ............................ 419231613.216 Revised ............................ 419231613.217 Revised ............................ 419241613.218 (a) amended...................... 10085

Revised........................................419251613.219 Revised ............................ 419261613.220 (c) amended...................... 10085

(c) amended; (b) and (d) revised................................................. 41926

1613.221 Revised ............................ 419261613.222 Amended.......................... 10086

Revised........................................419271613.231 Revised ............................ 419271613.234 Revised ............................ 419271613.235 Revised ............................ 41927


Chapter XIV—Continued1613.236 Removed.......................... 419271613.237 Added .............................. 419281613.238 Added .............................. 419281613.239 Added .............................. 419281613.240 Added .............................. 419281613.261 Revised ............................ 419281613.262 Revised ............................ 419281613.271 Revised ............................ 419291613.283 Revised ............................ 419301613.513 Revised ............................ 419301613.521 Revised ............................ 419301613.601 (a) revised ........................ 419301613.602 (a) revised ........................ 419301613.603 (b)(1) amended; (c) and (g)

revised ..................................... 419301613.604 (i) amended ...................... 10086

Revised........................................419301613.606 Revised ............................ 419311613.607 (a) revised ........................ 419311613.608 (b)(2) amended.................. 10086

(a) amended; (b)(2) revised ...........419311613.609 Revised ............................ 419321613.610 Revised ............................ 419321613.612 (b) amended...................... 10086

(a)(1) amended .............................419321613.614 (e) amended...................... 419321613.631 Revised ............................ 419321613.632 Revised ............................ 419321613.643 Revised ............................ 419331613 Appendix A added .................. 41933

Appendix A corrected ..................482631625.9 (a)(1) and (d)(2) amended......238111625.10 Removed; new 1625.10 re-

designated from 860.120 and(a)(1), (d)(2) (i) and (ii) amend-ed ............................................. 23812

1625.13 Existing regulations un-changed.................................... 33809

1627 Authority citation re-vised......................................... 32296

1627.16 (c) added ............................ 322961691.3 Nomenclature change........... 4902

198829 CFR 53 FR

Page

Chapter XII1470 Added; eff. 10–1–88 ............ 8069, 80871471 Added; nomenclature

change; eff. 10–1–88 ........... 19189, 192041471.105 (w) added; eff. 10–1–88 ........19189Chapter XIV1601.21 (d) introductory text

amended .................................... 33701601.80 Amended............................. 3888


439

List of CFR Sections Affected


Chapter XIV—Continued1625 Authority citation re-

vised .......................................... 59721625.2 (a) and (b) amended ............... 59721625.5 Amended .............................. 59721625.8 Introductory text re-

vised .......................................... 5972Correctly revised.........................15673

1625.9 (c) revised; (d) and (e) re-moved; (f) redesignated as (d)and revised................................. 5973

1625.10 (f)(1)(i) amended; (f)(1)(ii)removed; (f)(1) (iii) and (iv) re-designated as (f)(1) (ii) and (iii);new (f)(1)(ii) introductory textand (B) revised............................ 5973

1625.11 (a) (1) and (2) revised; (g)amended .................................... 5973

1625.12 (a) revised ........................... 59731627 Authority citation re-

vised .......................................... 59731627.16 (c) suspended....................... 33701627.17 (a) revised ........................... 5973

198929 CFR 54 FR

Page

Chapter XII1471 Heading and authority cita-

tion revised................................ 4959Technical correction.....................6363

1471.305 (c) (3) and (4) amended;(c)(5) added; interim............ 4950, 4959

1471.320 (a) revised; interim.....4950, 49601471.600—1471.630 (Subpart F)

Added; interim ................... 4950, 49601471 Appendix C added; in-

terim.................................. 4951, 4960Chapter XIV1600.735–401 (b)(4) amended............ 320611601.3 (a) amended......................... 320611601.5 Nomenclature change;

amended................................... 320611601.6 (a) amended......................... 320611601.8 Amended............................. 320611601.10 Nomenclature change........320611601.14 (b) nomenclature

change...................................... 320611601.16 (a)(3) nomenclature

change; (b)(1) amended.............. 320611601.19 (a) amended; (g) nomen-

clature change.......................... 320611601.20 (a) nomenclature

change...................................... 320611601.21 (d) nomenclature

change...................................... 32061


Chapter XIV—Continued1601.23 (a) and (b) nomenclature

change...................................... 320611601.24 (b) nomenclature

change...................................... 320611601.25 Nomenclature change........320611601.28 (a) (2), (3), and (c) nomen-

clature change.......................... 320611601.30 (a) amended ....................... 320611601.35 Amended ........................... 320611601.74 (a) amended ....................... 13520

(a) amended........................20123, 20124(a) footnotes 2 through 12 redes-

ignated as footnotes 3 through13, list, and section amended................................................. 38671

1601.75 (b)(2) amended ................... 320611601.80 Amended .................. 35876, 406571610.4 (a), (b), and (c) amended .......320611610.7 (a) introductory text, (1),

(2), (3), and (4), (b), and (d)amended................................... 32062

1610.11 (a) amended ....................... 320621610.14 (b) amended ....................... 320621611.3 (b) introductory text

amended; (b)(1) removed; (b) (2)and (3) redesignated as (b) (1)and (2) and amended .................. 32062

1611.5 (c) amended......................... 320631611.9 (a) amended......................... 320631615 Added .................................... 227491620.30 (b) amended ....................... 320631625 Notice of EEOC position............ 6041626 Authority citation re-

vised......................................... 335031626.5 Amended............................. 320631626.15 (e) amended ....................... 32063

(b) amended .................................335031626.16 (b) amended ....................... 320631626.17 (a) amended ....................... 320631627.16 (c) suspended ..................... 336751691.13 (d) amended ....................... 32063

199029 CFR 55 FR

Page

Chapter XII1401 Authority citation re-

vised......................................... 176021401.36 Revised ............................. 176021471.600—1471.635 (Subpart F)

Regulation at 54 FR 4950, 4959confirmed; revised; eff. in part7–24–90 ............................. 21688, 21697

1471 Appendix C regulation at 54FR 4950, 4956 confirmed; re-vised; eff. in part 7–24–90 ...21690, 21697


440



Chapter XIV1601.16 (d) redesignated as (e); new

(d) added................................... 142451601.18 (f) amended........................ 266841601.19 (b)(2) amended ................... 266841601.30 (a) revised; (b) removed;

(c) redesignated as (b) ................. 25181601.74 (a) footnotes 2, 3, 4, 5, 9, and

13 corrected; footnotes 12 and13 correctly redesignated as 11and 12 ....................................... 26684

1601.80 Correctly designated........... 43061602.7 Deadline extended............... 142451612.7 (a) amended .......................... 81401627.16 (c) suspended ..................... 24078

199129 CFR 56 FR

Page

Chapter XIV1600 Authority citation re-

vised......................................... 28817Technical correction ...................30502

1600.735–501—1600.735–519 (SubpartE) Added; interim................... 28817

Technical correction ...................305021601 Nomenclature change; au-

thority citation revised.............. 9624Technical correction ...................12816

1601.1 Revised ................................ 96241601.2 Revised ................................ 96241601.3 (a) revised............................. 96241601.6 (a) amended .......................... 96241601.7 (a) amended .......................... 96241601.10 Amended............................. 96241601.11 (b) amended......................... 96241601.13 (a)(3)(i) and (4)(i) amend-

ed............................................... 9624(a)(4)(i)(C) and (c) amended ...........9625

1601.16 (a) introductory textamended .................................... 9624

1601.17 (a) amended......................... 96241601.18 (a) amended ................. 9624, 96251601.19 (b) through (d) removed;

(e) redesignated as (b); (a) re-vised .......................................... 9625

(a) corrected ................................144701601.21 (a) and (e)(2)(iii) amend-

ed............................................... 9624(d) amended...................................9625

1601.22 Amended ..................... 9624, 96251601.24 (c) amended......................... 9624

(a) amended...................................96251601.25 Amended............................. 96241601.26 (a) amended......................... 96251601.28 (a)(3) amended..................... 9624


Chapter XIV—Continued(b)(1) introductory text and

(e)(1) amended............................96251601.30 (a) amended......................... 96251601.31—1601.33 (Subpart D) Re-

designated as Subpart H; head-ing revised ................................. 9625

1601.31 Redesignated as 1601.91........96251601.32 Redesignated as 1601.92........96251601.33 Redesignated as 1601.93........96261601.34 (Subpart E) Redesignated

as Subpart D............................... 9625Amended .......................................9624

1601.35—1601.36 (Subpart F) Re-designated as Subpart E ............. 9625

1601.70—1601.80 (Subpart H) Re-designated as Subpart G ............. 9625

1601.70 (a)(1) and (b) through (d)amended .................................... 9625

1601.74 (a) footnote 7 amended.........96251601.75 (a) amended......................... 96251601.79 Amended............................. 96241601.91 Redesignated from 1601.31

and revised................................. 96251601.92 Redesignated from 1601.32;

introductory text and (c)amended .................................... 9625

1601.93 Redesignated from1601.33 ........................................ 9626

1602 Records and reports deadlineextension ................................. 18698

Heading and authority citationrevised......................................35755

1602.1—1602.6 (Subpart A) Head-ing revised................................ 35755

1602.1 Revised; transferred toSubpart A ................................. 35755

1602.2 Removed............................. 357551602.3 Removed............................. 357551602.4 Removed............................. 357551602.5 Removed............................. 357551602.6 Removed............................. 357551602.7 Amended............................. 357551602.10 Revised ............................. 357551602.11 Amended ........................... 357551602.12 Amended; OMB num-

bers .......................................... 357551602.14 (a) amended; (a) designa-

tion and (b) removed; OMBnumbers ................................... 35755

1602.19 Amended ........................... 357551602.21 (b) amended ....................... 357551602.26 Amended ........................... 357551602.28 (a) amended; OMB num-

bers .......................................... 35755


441



Chapter XIV—Continued1602.31 (a) designation and (b) re-

moved; amended; OMB num-bers .......................................... 35756

1602.37 Amended ........................... 357561602.40 (a) designation and (b) re-

moved; amended; OMB num-bers .......................................... 35756

1602.45 Amended ........................... 357561602.49 (b) removed; (c) redesig-

nated as (b); (a) amended; OMBnumbers ................................... 35756

1602.54 Amended ........................... 357561602.56 (Subpart R) Added ............. 357561610 Authority citation re-

vised......................................... 295781610.4 (c) revised ........................... 295781610.5 (d) removed ......................... 295781610.7 Nomenclature change; (a)

revised ..................................... 295781610.8 Nomenclature change ........29578,

295791610.9 Nomenclature change ........29578,

295791610.10 (a) and (b) revised............... 295791610.11 Nomenclature change;

heading revised; (f) added.......... 295791610.13 Nomenclature change........295781610.14 Nomenclature change........295781610.17 (f) and (g) redesignated as

(g) and (h); new (f) added ............ 295791610.18 Revised ............................. 295791610.19 Redesignated as 1610.20;

new 1610.19 added ...................... 295791610.20 Redesignated as 1610.21;

new 1610.20 redesignated from1610.19....................................... 29579

1610.21 Redesignated from1610.20....................................... 29579

1611.1 Revised ............................... 295801611.3 (a) and (b) revised ................ 295811611.5 (a)(5) amended; (c) and (d)

revised ..................................... 295811611.7 (c) amended......................... 295811611.8 (a)(2) amended; (d) and (e)

revised ..................................... 295811611.9 Revised ............................... 295821611.11 (a)(1) revised...................... 295821611.13 Removed; new 1611.13 re-

designated from 1611.14 and re-vised......................................... 29582

1611.14 Redesignated as 1611.13 ......295821613.232 Amended ........................... 69831613.234 (a) amended ....................... 69831613.235 (b) introductory text and

(c)(2) amended............................ 69831613.237 (a) amended ....................... 6983


Chapter XIV—Continued1613.238 (a) through (d) amend-

ed............................................... 69831613.414 (b) amended ....................... 69831613.416 (b) amended ....................... 69831613.609 (d) and (e) amended ............ 69831613.612 (e) amended ....................... 69831613.614 (g) amended ....................... 69831613.631 Heading, (a) introduc-

tory text, (b) introductorytext, and (d) amended ................. 6983

1613.641 (a)(3) and (4) amended......... 69831613.806 (a) amended ....................... 69831627.3 (b)(3) removed; (b)(4) redes-

ignated as (b)(3) and amend-ed ............................................. 35756

1627.4 (a)(2) removed; (a)(3) redes-ignated as (a)(2) and amend-ed ............................................. 35756

1627.5 (c) amended......................... 357561630 Added; eff. 7-26-92 ................... 35734

199229 CFR 57 FR

Page


vised......................................... 303991425.2 Revised ............................... 30399Chapter XIV1601.74 (a) corrected; CFR correc-

tion .......................................... 609951602 Waiver................................... 269961602 Filing deadline extension ......455701613.232 Amended.......................... 114311613.414 (b) amended...................... 114311613.806 (a) amended...................... 114311614 Added; eff. 10–1–92 .................. 126461627.16 (c) removed ......................... 41581641 Added; eff. 7-26-92 ............. 2962, 2964

199329 CFR 58 FR

Page


vised......................................... 180081400.735–1 Removed....................... 180081400.735–2 Removed....................... 180081400.735–10 Removed ..................... 180081400.735–11 Removed ..................... 180081400.735–12 Amended ..................... 353771400.735–13 Removed ..................... 180081400.735–14 Removed ..................... 180081400.735–15 Removed ..................... 18008


442



Chapter XII—Continued1400.735–16 Removed ..................... 180081400.735–17 Removed ..................... 180081400.735–18 Removed ..................... 180081400.735–30—1400.735–35 (Subpart C)

Removed .................................. 180081400.735–40—1400.735–42 (Subpart D)

Removed .................................. 180081400.735–50—1400.735–53 (Subpart E)

Removed .................................. 18008Chapter XIV1601.74 (a) amended ....................... 192111602 Filing deadline extension .........2391602.32 Revised ............................. 29536

199429 CFR 59 FR

Page

Chapter XIV1601.74 (a) amended .....5708, 14554, 18752,

44928, 527041601.80 Amended.................... 5709, 548181640 Added ........................... 39904, 399081650 Added ........................................ 24

199529 CFR 60 FR

Page


vised .......................................... 25091425.2 Revised ................................ 25091470.36 (d), (g), (h) and (i) re-

vised................................ 19639, 196431471.100 Revised; eff. 8–25–95 .........33040,

330521471.105 Amended; eff. 8–25–95 .......33041,

330521471.110 (c) revised; eff. 8–25–95......33041,

330521471.200 Revised; eff. 8–25–95 .........33041,

330521471.215 Revised; eff. 8–25–95 .........33041,

330521471.220 Revised; eff. 8–25–95 .........33041,

330521471.225 Revised; eff. 8–25–95 .........33041,

330521471 Appendixes A and B revised;

eff. 8–25–95........................ 33042, 33052Chapter XIV1601.70 (b) and (e) amended ............ 462201601.71 (a), (b) and (c) amended.......462201602 Deadline extension ................ 513501613 Removed ............................... 43372


Chapter XIV—Continued1614.501 (a) amended...................... 43372

199629 CFR 61 FR

Page


vised .......................................... 70671600.101 Added; interim .................. 70671600.735–101—1600.735–106 (Subpart

A) Removed; interim ............... 70671600.735–201—1600.735–206 (Subpart

B) Removed; interim................ 70671600.735–301 (Subpart C) Re-

moved; interim .......................... 70671600.735–401—1600.735–406 (Subpart

D) Removed; interim ............... 70671600.735–501 Redesignated as

1650.101; interim ......................... 70671600.735–502 Redesignated as


















1650.119; interim ......................... 70671600 Appendix A removed ............... 7067


443



Chapter XIV—Continued1601.74 (a) amended ....................... 213701602.41 Amended; eff. 7–29–96.......... 336601602.43 Revised; eff. 7–29–96 ............ 336601602.44 Revised; eff. 7–29–96 ............ 336601614.302 (d)(1)(ii) and (3) amend-

ed ............................................. 175761625.13 Removed ........................... 153781625.21 Added ................................ 153781650 Authority citation re-

vised .......................................... 70671650.101 Redesignated from

1600.735–501; interim ................... 70671650.102 Redesignated from


















1600.735–519; interim..................... 7061691 Notice ................................... 42556

199729 CFR 62 FR

Page

Chapter XII1404 Revised; eff. 10–1–97................ 341711404.7 Added; eff. 9–1–97 ................. 34173


Chapter XII—Continued1404.17—1404.21 (Subpart D)

Added ....................................... 489491470.26 (a), (b) introductory text

and (1) revised.................. 45939, 45942

Chapter XIV1600.101 Regulation at 61 FR 7067

confirmed................................. 364471600.735–101—1600.735–106 (Subpart

A) Regulation at 61 FR 7067confirmed................................. 36447

1600.735–201—1600.735–206 (SubpartB) Regulation at 61 FR 7067confirmed................................. 36447

1600.735–301 (Subpart C) Regula-tion at 61 FR 7067 confirmed ......36447

1600.735–401—1600.735–406 (SubpartD) Regulation at 61 FR 7067confirmed................................. 36447

1600.735–501—1600.735.519 (SubpartE) Regulation at 61 FR 7067confirmed................................. 36447

1601.30 (b) revised.......................... 269341603 Added; interim ...................... 175431614.204 (d)(1) corrected; CFR cor-

rection ..................................... 638471650 Authority citation re-

vised......................................... 326851650.101—1650.119 (Subpart A)

Regulation at 61 FR 7067 con-firmed ...................................... 36447

1650.301—1650.309 (Subpart C)Added; interim ......................... 32685

199829 CFR 63 FR

Page

Chapter X1200 Removed................................. 66451208 Authority citation re-

vised......................................... 443941208.2 Revised ............................... 443941208.6 Revised ............................... 44395


vised .......................................... 13411610.4 (a) and (c) amended; in-

terim ......................................... 13411610.5 (c) amended; interim............. 13411610.8 Revised; interim................... 13411610.9 Heading revised; (a) intro-

ductory text and (b) revised; (c)added; interim............................ 1341


444



Chapter XIV—Continued1610.10 (a) introductory text

amended; (b) introductory textrevised; (c) redesignated as (d);new (c) added; interim ................ 1342

1610.11 (a), (b) and (f) amended; (c)revised; interim ......................... 1342

1610.14 (a) amended; interim........... 13421610.15 (f) amended; interim............ 13421610.18 (a) amended; interim........... 13421610.21 Revised; interim ................. 13421610.34 (a) amended; interim........... 13421625.22 Added; eff. 7–6–98 ................ 30628

199929 CFR 64 FR

Page

Chapter X1203.1 Amended............................. 402871203.2 Amended............................. 402871203.3 (a) amended ........................ 402871205.4 Amended............................. 402871209 Authority citation re-

vised......................................... 402871209.07 (f) amended........................ 402871209.08 (d) amended ....................... 40287Chapter XIV1601.74 Footnote 4 correctly

added; CFR correction .............. 230191603 Regulation at 62 FR 17542

confirmed................................. 287441603.107 (d) amended...................... 287441604.11 (c) removed; Appendix A

added........................................ 583341606.8 (c) removed; Appendix A

added........................................ 583341610.4 Regulation at 63 FR 1341

confirmed................................. 451641610.5 Regulation at 63 FR 1341









confirmed................................. 45164


Chapter XIV—Continued1610.34 Regulation at 63 FR 1342

confirmed................................. 451641614.102 (b)(2) through (6) redesig-

nated as (b)(3) through (7);(b)(2) added; (c)(5) revised.......... 37655

1614.103 (b)(3) amended; (b)(4) re-vised; (5), (6) and (7) added.......... 37655

1614.105 (b) redesignated as (b)(1);new (b)(1) and (d) amended;(b)(2) added; (f) revised .............. 37656

1614.106 (d) redesignated as (e);new (d) added; (e) revised........... 37656

1614.107 (a) through (h) redesig-nated as (a)(1) through (8); in-troductory text redesignatedas (a) introductory text and re-vised; (7) and (8) revised; (9) and(b) added................................... 37656

1614.108 (b) amended; (f) revised;(g) added................................... 37656

1614.109 (b) through (g) redesig-nated as (d) through (i); (a),new (f)(3) introductory textand new (i) revised; new (b) andnew (c) added; new (f) introduc-tory text removed..................... 37657

1614.110 Revised ............................ 376571614.201 (a), (c)(1) and (2) amend-

ed ............................................. 376581614.204 (b) revised; (d)(2) through

(6) amended; (d)(7), (e)(1), (g)(2),(4) and (l)(3) revised; (j)(7)amended................................... 37658

1614.302 (d)(1)(i) amended .............. 376591614.401 (a) revised; (b), (c) and (d)

redesignated as (c), (d) and (e);new (b) added; new (c) re-vised......................................... 37659

1614.402 (a) revised ........................ 376591614.403 Revised ............................ 376591614.404 (c) added........................... 376591614.405 (a) amended; (b) re-

vised......................................... 376591614.407 Removed; new 1614.407 re-

designated from 1614.408; (a)and (b) amended;....................... 37659

1614.408 Redesignated as 1614.407;new 1614.408 redesignated from1614.409 ..................................... 37659

1614.409 Redesignated as 1614.408;new 1614.409 redesignated from1614.410 ..................................... 37659

1614.410 Redesignated as1614.409 ..................................... 37659


445



Chapter XIV—Continued1614.501 (e)(1) introductory text

and (2)(ii) amended; (e)(1)(iv),(2)(i), (ii)(A) and (B) revised .......37659

1614.502 (a) amended; (b) intro-ductory text and (2) revised;(b)(3) added ............................... 37660

1614.504 (a) and (b) amended........... 376601614.505 Added .............................. 376601614.603 Amended.......................... 376611614.604 (b) amended...................... 376611614.605 (d) amended...................... 376611614.606 Revised ............................ 376611650 Authority citation re-

vised......................................... 289171650.101 Amended.......................... 28917


Chapter XIV—Continued1650.201 Amended.......................... 289171650.301 Amended.......................... 289171650.401 (Subpart D) Added............ 28917

200029 CFR 65 FR

Page

Chapter XIV1625.23 Added ................................ 774461630 Appendix amended ................ 36327

2001(No Regulations published)

Æ
