(a) If a filer claims that the preparation or filing of the report would create undue hardship, the filer may apply to the Commission for an exemption from the requirements set forth in this part by submitting a written exemption application according to the applicable collection's accompanying instructions. Filers must demonstrate with specific facts (and supporting documentation, as appropriate) how preparing or filing the report would create undue hardship.

(b) The Commission hereby delegates to its Chief Data Officer (CDO), or the CDO's designee, authority to make determinations on applications for exemptions under this subpart.

(1) The CDO shall expeditiously issue a written determination notifying the filer of the disposition of the exemption application.

(2) If the CDO denies the application for an exemption, the CDO will notify the filer in writing of the following:

(i) The deadline for filing the report, which will be at least 30 calendar days after the CDO's determination; and

(ii) That the filer may bring a civil action in the United States District Court for the district where the filer's records are kept, pursuant to 42 U.S.C. 2000e-8(c).

(c) While an application is pending, the filer must continue to collect and prepare the data required for the report in case the exemption request is denied.

(d) The CDO will report annually to the Commission the number of exemption applications received and the determinations made on those applications and will make the applications and written determinations available to the Commission.

(a) The CDO, or the CDO's designee, will consider the facts and circumstances presented in each application, including but not limited to:

(1) The nature and extent of the filer's efforts to collect and retain the required information;

(2) The degree to which the filer attempted to anticipate and preempt any problems in collecting and retaining the required information;

(3) The filer's prior data reporting history, including whether the filer previously failed to submit a report or requested an exemption, and if so, whether such exemption was granted;

(4) The degree to which the circumstances are beyond the filer's control or are extraordinary; and

(5) The degree to which compliance has been rendered impracticable or impossible (e.g., due to natural disaster or data loss).

(b) The filer bears the burden to demonstrate that the reporting requirement would result in undue hardship.

(c) Circumstances that generally will not form the basis of a finding of undue hardship include, but are not limited to:

(1) A filer's number of establishments alone;

(2) A filer's lack of knowledge about the reporting requirements;

(3) Routine or purposeful data expungement by the filer or a third party; and

(4) A filer's failure to plan for adequate data security, maintenance, or transfer (e.g., data loss due to a change in vendor or employee succession where the filer or vendor failed to back up the data).