[Federal Register Volume 60, Number 169 (Thursday, August 31, 1995)]
[Proposed Rules]
[Pages 45388-45390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21654]



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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Ch. XIV


Older Workers Benefit Protection Act of 1990 (OWBPA)

AGENCY: Equal Employment Opportunity Commission (EEOC).

ACTION: Notice of Intent to form a Negotiated Rulemaking Advisory 
Committee to Develop a Proposed Rule: Request for representation.

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SUMMARY: EEOC announces its intent to establish an OWBPA Negotiated 
Rulemaking Advisory Committee (``the Committee'') under the Negotiated 
Rulemaking Act (NRA), the Federal Advisory Committee Act (FACA), and 
section 9 of the Age Discrimination in Employment Act of 1967, as 
amended (ADEA), 29 U.S.C. 628, to negotiate issues associated with the 
development of a Notice of Proposed Rulemaking (NPRM) on Title II of 
OWBPA. The Committee will include representatives of the parties 
interested in, or affected by, the outcome of the proposed rule. EEOC 
requests that interested parties submit their requests for membership 
on the Committee.

DATES: EEOC must receive written requests for membership by October 2, 
1995.

ADDRESSES: All written requests for Committee membership, and any 
comments on the rulemaking process, should be sent to: Executive 
Secretariat, EEOC, 1801 L Street, NW., Washington, DC 20507.

FOR FURTHER INFORMATION CONTACT:
Joseph N. Cleary, Director, ADEA Division, Office of Legal Counsel, 
EEOC, 1801 L Street, NW., Washington, DC 20507 (202) 663-4690.

SUPPLEMENTARY INFORMATION:

I. Background

    Congress amended the ADEA in 1990 to clarify the prohibitions 
against discrimination on the basis of age. In Title I of OWBPA, 
Congress addressed discrimination in employee benefits. Title II 
addressed waivers of rights and claims under the ADEA, amending section 
7 of that Act by adding a new subsection (f). Title II expressly 
provided that unsupervised waivers may be valid and enforceable under 
the ADEA only if they meet certain enumerated requirements and are 
knowing and voluntary waivers of rights. EEOC intends to engage in 
rulemaking on certain Title II issues.
    In light of the 1990 amendments to the ADEA, EEOC published an 
Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register, 
57 FR 10626 (March 27, 1992), seeking information from the public on 
various issues under Titles I and II of OWBPA. In response to the 
ANPRM, EEOC received approximately 40 comments, many of which presented 
detailed analyses of Title II issues, raising the possibility that EEOC 
should provide formal guidance on waivers of rights.
    This Notice announces EEOC's intent to use negotiated rulemaking to 
develop a proposed Title II rule. It also sets forth basic concepts of 
negotiated rulemaking and outlines the criteria that EEOC expects to 
use in selecting the Committee and conducting the rulemaking. This 
Notice allows 30 days for interested parties to request appointment to 
the Committee.

II. Negotiated Rulemaking in General

    The Administrative Conference of the United States (ACUS) has 
discussed why negotiated rulemaking may alleviate certain problems 
associated with more traditional rulemaking procedures:

    Experience indicates that if the parties in interest were to 
work together to negotiate the text of a proposed rule, they might 
be able in some circumstances to identify the major issues, gauge 
their importance to the respective parties, identify the information 
and data necessary to resolve the issues, and develop a rule that is 
acceptable to the respective interests, all within the contours of 
the substantive statute.

47 FR 30708 (June 18, 1982); 1 CFR 305.82-4.
    There have been numerous effective uses of negotiated rulemaking 
procedures by such agencies as the Environmental Protection Agency, the 
Department of Transportation, and the Federal Aviation Administration. 
EEOC believes that the use of negotiated rulemaking procedures will 
meet the goals set out in the ACUS analysis, above, and adopts those 
goals by reference.
III. Justification for Use of Negotiated Rulemaking

    In selecting Title II of OWBPA as a subject for negotiated 
rulemaking, EEOC has made the following determinations under criteria 
set out in the NRA:
    (1) There is a need for a rule;
    (2) There are a limited number of identifiable interests that will 
be significantly affected by the rule;
    (3) There is a reasonable likelihood that a Committee can be 
convened with a balanced representation of persons who:
    (a) Can adequately represent the interests identified under 
paragraph (2), above; and
    (b) Are willing to negotiate in good faith to reach a consensus on 
the proposed rule;
    (4) There is a reasonable likelihood that the Committee will reach 
a consensus on the proposed rule within a reasonable fixed period of 
time;
    (5) The procedure will not unreasonably delay the NPRM and the 
issuance of a final rule;
    (6) EEOC has adequate resources and is willing to commit those 
resources, including technical assistance, to the Committee;
    (7) EEOC, to the maximum extent possible consistent with its legal 
obligations and the need by EEOC Commissioners to review any draft 
rulemaking, will use the consensus of the Committee with respect to the 
proposed rule as the basis for the NPRM.
    EEOC will follow all requirements set out in the ADEA, the 
Administrative 

[[Page 45389]]
Procedures Act (APA), or any other statute with regard to rulemaking, 
including the need for a notice and comment period to permit members of 
the public to present their concerns regarding the NPRM. Nothing herein 
would deny Committee members the right to take part in the APA comment 
process.
    In the event that EEOC does not receive requests for representation 
from a sufficient number of individuals or groups representing the 
affected interests, EEOC reserves the right to undertake rulemaking 
processes other than negotiated rulemaking.

IV. Issues for Negotiation

    This list is for purposes of general notice only and is not 
intended to be either an exclusive or a mandatory list of issues. EEOC 
will work with the Committee to decide which of the issues listed, or 
other issues not listed, will be negotiated in the negotiated 
rulemaking process. EEOC welcomes comments from the public within the 
next 30 days with regard to possible issues to be considered by the 
Committee.
    1. Section 7(f)(1)(F) of the ADEA mandates that an employee be 
given either 21 days or 45 days to decide whether or not to sign a 
waiver, depending upon whether the employer's action falls within the 
requirements of section 7(f)(1)(H). Is it necessary to restart the 21 
or 45 day period if (a) a material modification is made to the waiver 
agreement and/or to the consideration offered by the employer; or (b) 
any modification is made to the waiver agreement?
    2. May the 21, 45, and 7 day periods set out in section 7 of the 
ADEA be shortened by mutual consent of the parties? If so, what proof 
is necessary to determine if the time shortening is voluntary on the 
employee's part?
    3. Section 7(f)(1)(H) of the ADEA contains notification 
requirements ``if a waiver is requested in connection with an exit 
incentive or other employment termination program offered to a group or 
class of employees * * *'' Are the requirements in that section limited 
to voluntary separation programs, or would the requirements apply also 
to a waiver offered during an involuntary termination such as a 
reduction in force?
    4. How should EEOC define such terms appearing in section 
7(f)(1)(H) as ``program'', ``class'', ``unit'', ``group'', ``job 
classification'', and ``organizational unit''?
    5. Does the ADEA permit an employer to satisfy the notification 
requirements in section 7(f)(1)(H) by having the information available 
for any interested employee in a central location, such as the 
employer's personnel office, or is it necessary for an employer to 
provide all relevant information to every affected employee?
    6. What are the minimum requirements of ``knowing and voluntary'' 
where an employer and employee privately and independently settle a 
charge that has been filed with the EEOC?
    7. What is meant by the language in section 7(f)(1)(D) of the ADEA 
allowing waivers ``only in exchange for consideration in addition to 
anything of value to which the individual already is entitled''? May an 
employer that has previously given benefits (such as severance pay) 
without requiring a waiver of ADEA rights later change its policy or 
practice to require a waiver in exchange for such benefits?
    8. What is the legal status of the consideration given for a waiver 
if EEOC finds that the waiver is invalid?
    9. Is an employer required to offer more consideration for a waiver 
of rights by a person who is age 40 or over than is offered to a person 
under the age of 40?

V. Negotiation Procedures

    The following proposed procedures and guidelines are based upon 5 
U.S.C. 581 et seq., and would apply to EEOC's process. These procedures 
and guidelines may be augmented or modified as a result of comments 
received in response to this Notice of Intent or during the negotiation 
process, within the parameters of applicable law.

A. Notice of Intent To Establish an OWBPA Negotiated Rulemaking 
Advisory Committee

    For the reasons stated in previous sections, EEOC announces its 
intent to establish the Committee in accordance with the requirements 
of FACA and the General Services Administration (GSA) guidelines at 41 
CFR 101-6.10 et seq.

B. Committee Notice

    After evaluating the comments and requests received pursuant to 
this Notice, EEOC will issue a Committee Notice announcing the 
establishment of the Committee and the membership of the Committee. The 
Committee membership roster will be published in the Federal Register.
C. Interests Involved

    (1) EEOC has tentatively identified the following interests as ones 
that may wish to participate in the negotiations through their 
representatives:
    * Groups assisting older persons.
    * Large and small employers.
    * Labor organizations.
    * State and local governments.
    * Bar organizations.
    * Institutions of higher education.
    (2) One purpose of this Notice of Intent is to determine whether 
the rulemaking would substantially affect any interests that are not 
listed above. EEOC is willing to expand the list of affected interests 
based upon comments received. EEOC believes that affected interests 
should be represented on the Committee and that the Committee have 
balanced representation.

D. Participants

    The Committee is not likely to exceed 20 participants, including 
EEOC's representatives on the Committee. If a smaller number of 
participants can represent effectively the interests affected by the 
rulemaking, EEOC will structure a smaller Committee.
    It is expected that Committee members will have substantial 
expertise in the technical aspects of Title II of OWBPA and the 
concerns of employers and older employees with respect to rights and 
obligations under the ADEA. Persons interested in being appointed as 
members of the Committee should detail their experience and 
qualifications, the interest(s) they wish to represent, and how those 
interest(s) would be affected by the rule.

E. Good Faith Negotiation

    Participants should be willing to negotiate in good faith in an 
effort to reach an appropriate consensus on the issues involved in the 
rulemaking.

F. Facilitators

    The Federal Mediation and Conciliation Service will provide two 
Facilitators for this rulemaking. Their role is to help the negotiation 
process to run smoothly, assist participants reach consensus, chair the 
actual negotiations, and determine the feasibility of negotiating 
particular issues. Other duties may be added during the negotiating 
process.

G. EEOC Representatives

    The EEOC representatives will be full and active participants in 
the consensus building negotiations. EEOC also will provide the 
Committee with necessary support personnel and technical resources, to 
the extent feasible.

H. Meeting Schedule

    Once the Committee has been selected, EEOC will, after consultation 
with the Committee members, publish in the Federal Register the date of 
the first meeting. The first meeting will be held at EEOC Headquarters, 
1801 L 

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Street, NW., Washington, DC, and it is anticipated that all future 
meetings will also be held at that address. At that first meeting, the 
Committee will focus upon procedural matters and protocols, including 
dates, times, and locations of future meetings; identification of the 
principal issues for resolution; and a target date for the completion 
of the NPRM.
    In order to prevent delay in the preparation of guidance under 
Title II of OWBPA, EEOC intends to terminate the Committee's activities 
no later than 180 days after the date of the first meeting, unless 
circumstances call for extending the deadline.

I. Committee Procedures

    Committee meetings will be conducted in accordance with the 
requirements of FACA, which provides for filing a Committee Charter 
with GSA and appropriate Congressional committees, meetings open to the 
public, filing of written statements by interested persons before or 
after meetings, presentation of oral statements where time permits, and 
retention of meeting records.
    Committee meetings will be announced in the Federal Register. The 
Committee will establish the detailed procedures for its meetings.

J. Records of Meetings

    In accordance with FACA, EEOC will keep minutes of all Committee 
meetings and will place these minutes in the public rulemaking docket.

K. Definition of Consensus

    The goal of the negotiation process is ``unanimous concurrence 
among the interests represented.'' 5 U.S.C. 582(2). EEOC expects 
Committee members to establish their own working definition of the term 
``consensus.''

Dated: August 28, 1995.
Gilbert F. Casellas,
Chairman.
[FR Doc. 95-21654 Filed 8-30-95; 8:45 am]
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