[Federal Register Volume 85, Number 98 (Wednesday, May 20, 2020)]
[Proposed Rules]
[Pages 30667-30670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09813]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1695

RIN 3046-AB18


Procedural Regulations for Issuing Guidance

AGENCY: Equal Employment Opportunity Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Equal Employment Opportunity Commission (EEOC or 
Commission) proposes to amend its procedural regulations to establish 
rules for issuing guidance. These rules make guidance documents readily 
available to the public, ensure that guidance will be treated as non-
binding, require a notice and public comment period for significant 
guidance, and establish a public petition process for the issuance, 
amendment, or repeal of guidance.

DATES: Comments must be received on or before June 19, 2020.

ADDRESSES: You may submit comments by any of the following methods--
please use only one method:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions on the website for submitting comments.
     Mail: Comments may be submitted by mail to Bernadette B. 
Wilson, Executive Officer, Executive Secretariat, Equal Employment 
Opportunity Commission, 131 M Street NE, Washington, DC 20507.
    Instructions: All comments received must include the agency name or 
Regulatory Information Number (RIN)

[[Page 30668]]

for this rulemaking. All comments received will be posted without 
change to http://www.regulations.gov, including any personal 
information provided. However, the EEOC reserves the right to refrain 
from posting libelous or otherwise inappropriate comments, including 
those that contain obscene, indecent, or profane language; that contain 
threats or defamatory statements; that contain hate speech directed at 
race, color, sex, national origin, age, religion, disability, or 
genetic information; or that promote or endorse services or products.
    All comments received, including any personal information provided, 
also will be available for public inspection during normal business 
hours by appointment only at the EEOC Headquarters' Library, 131 M 
Street NE, Washington, DC 20507. Upon request, individuals who require 
assistance viewing comments are provided appropriate aids such as 
readers or print magnifiers. To schedule an appointment to inspect the 
comments at the EEOC's library, contact the library staff at (202) 663-
4630 (voice) or 800-669-6820 (TTY). (These are not toll-free numbers.)

FOR FURTHER INFORMATION CONTACT: Robert Carter, Special Assistant, 
Office of Legal Counsel, (202) 663-4692 or [email protected].

SUPPLEMENTARY INFORMATION: On October 9, 2019, President Donald J. 
Trump issued Executive Order 13891, ``Executive Order on Promoting the 
Rule of Law Through Improved Agency Guidance Documents.'' It directed 
most Federal Departments, Agencies, and Commissions to adopt policies 
to ensure that ``Americans are subject only to those binding rules 
imposed through duly enacted statutes or through regulations lawfully 
promulgated under them'' and that those subject to such rules shall 
have ``fair notice of their obligations.'' Exec. Order 13891, 84 FR 
55,235 (October 9, 2019).
    The Administrative Procedure Act (APA), section 553 of Title 5, 
United States Code, generally requires federal agencies engaged in 
administrative rulemaking to give public notice of proposed 
regulations, provide interested parties an opportunity to comment, 
consider and respond to significant comments, and publish final 
regulations in the Federal Register. Agencies may also clarify existing 
obligations through non-binding guidance documents, which the APA 
exempts from the notice-and-comment process.
    Executive Order 13891 asserts that some agencies have used guidance 
in the place of regulations to avoid the APA's statutory safeguards. To 
address these concerns, the Executive Order requires agencies to adopt 
regulations that make guidance documents more readily available to the 
public, better ensure that guidance will be treated as non-binding, 
require a notice and public comment period for significant guidance, 
and establish a public petition process for the issuance, amendment, or 
repeal of guidance.
    This proposal seeks to create a new section, 29 CFR part 1695, to 
address the requirements of Executive Order 13891 and the Office of 
Management and Budget's explanation of these requirements in Memorandum 
M-20-02. The requirements of this proposed EEOC regulation apply to 
EEOC guidance documents as defined herein; they do not apply to or 
otherwise replace the requirements of the APA and associated Executive 
Orders for regulations or rules. The definitions, requirements, and 
procedures for issuing guidance, adopted in Sec. Sec.  1695.1 through 
1695.6 of the proposed rule, are modeled on sections 2 and 4 of 
Executive Order 13891. The adoption of a public petition process for 
the issuance, amendment, or repeal of guidance in Sec.  1695.7 of the 
rulemaking is mandated by section 4(a) of Executive Order 13891. The 
requirement in Sec.  1695.08 of posting of all existing guidance on the 
Commission website in a single, searchable, indexed database is 
consistent with section 3(a) of the Executive Order. (The EEOC launched 
this web page on February 28, 2020.) The prohibition in Sec.  1695.9 
against the agency citing to rescinded guidance, except for historical 
purposes, reflects the requirements of section (3)(b) of Executive 
Order 13891, and the disclaimer of judicial or enforceable rights in 
regulation Sec.  1695.10 reflects section 7 of the Executive Order.

Regulatory Procedures

Executive Order 12866

    The proposed rule will only govern the internal practices of the 
EEOC. It will not have an annual effect on the economy of $100 million 
or more, or adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. The proposed rule also will not create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency, nor will it materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof. Furthermore, it will not raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in Executive Order 12866. In 
consequence, this rule is not a ``significant regulatory action'' 
within the meaning of section 3 of Executive Order 12866.

Paperwork Reduction Act

    This regulation contains no new information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities because it primarily affects EEOC internal procedure. To the 
extent that it does affect small entities, it provides free access to 
all EEOC guidance documents, which may conserve their resources. 
Further, allowing small employers advance notice of significant 
guidance, and an opportunity to comment on proposed significant 
guidance, gives small employers a greater opportunity to have their 
concerns heard and addressed before documents are finalized.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Congressional Review Act

    While this action concerns agency procedure that does not 
substantially affect the rights or obligations of non-agency parties 
and, accordingly, is not a ``rule'' as that term is used by the 
Congressional Review Act (Subtitle E of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA)), the Commission will still 
follow the reporting requirement of 5 U.S.C. 801.

List of Subjects in 29 CFR Part 1695

    Administrative practice and procedure, Equal Employment Opportunity 
for the Commission.

Janet Dhillon,
Chair.

0
Accordingly, the EEOC proposes to add 29 CFR part 1695 to read as 
follows:

[[Page 30669]]

PART 1695--GUIDANCE PROCEDURES

Sec.
1695.0 Applicability
1695.1 Definitions.
1695.2 Guidance requirements.
1695.3 Good faith cost estimates.
1695.4 Significance determination.
1695.5 Significant guidance requirements.
1695.6 Notice and public comment.
1695.7 Petitions.
1695.8 Public access to current guidance documents.
1695.9 Rescinded guidance.
1695.10 No judicial review or enforceable rights.

    Authority:  E.O. 13891, 84 FR 55235; OMB Memorandum M-20-02.


Sec.  1695.0  Applicability.

    This part prescribes general procedures that apply to guidance 
documents of the Equal Employment Opportunity Commission (EEOC or 
Commission) under all statutes enforced by the Commission.


Sec.  1695.1  Definitions.

    (a) Guidance document means any statement of Commission policy or 
interpretation concerning a statute, regulation, or technical matter 
within its jurisdiction that is intended to have general applicability 
and future effect, but which is not intended to be binding in its own 
right and is not otherwise required by statute to satisfy the 
rulemaking procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556. The 
term is not confined to formal written documents, and may include 
letters, memoranda, circulars, bulletins, advisories that set forth for 
the first time a new regulatory policy. It may also include equivalent 
video, audio, and Web-based formats. This definition does not apply to:
    (1) Rules promulgated pursuant to notice and comment requirements 
under 5 U.S.C. 553 or similar statutory provisions.
    (2) Rules exempt from rulemaking requirements under 5 U.S.C. 
553(a);
    (3) Rules of Commission organization, procedure, or practice;
    (4) Decisions of Commission adjudications under 5 U.S.C. 554 or 
similar statutory provisions;
    (5) Internal executive branch legal advice or legal advisory 
opinions addressed to executive branch officials;
    (6) Commission statements of specific applicability, including 
advisory or legal opinions directed to particular parties about 
circumstance-specific questions, notices regarding particular locations 
or facilities, and correspondence with individual persons or entities;
    (7) Legal briefs, other court filings, or positions taken in 
litigation or enforcement actions;
    (8) Commission statements that do not set forth a policy on a 
statutory, regulatory, or technical issue or an interpretation of a 
statute or regulation, including speeches and individual presentations, 
PowerPoint slides, editorials, media interviews, press materials, or 
congressional testimony that do not set forth for the first time a new 
regulatory policy;
    (9) Guidance pertaining to military or foreign affairs functions;
    (10) Grant solicitations and awards;
    (11) Contract solicitations and awards; or
    (12) Purely internal Commission policies or guidance directed 
solely to EEOC employees or contractors or to other Federal agencies 
that are not anticipated to have substantial future effect on the 
behavior of regulated parties outside of the government; for example, 
Volume I of the Commission's Compliance Manual, which is only for 
internal use.
    (b) Significant guidance document means a guidance document that 
will be disseminated to regulated entities or the general public and 
that may reasonably be anticipated:
    (1) To lead to an annual effect on the economy of $100 million or 
more or adversely affect in a material way the U.S. economy, a sector 
of the U.S. economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities;
    (2) To create serious inconsistency or otherwise interfere with an 
action taken or planned by another Federal agency;
    (3) To alter materially the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (4) To raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
E.O. 12866, as further amended. It does not include any other category 
of guidance documents exempted in writing by OMB's Office of 
Information and Regulatory Affairs (OIRA).


Sec.  1695.2  Guidance requirements.

    (a) Each guidance document shall comply with all relevant statutes 
and regulations.
    (b) It shall be written in plain and understandable English and 
avoid using mandatory language, such as ``shall,'' ``must,'' 
``required,'' or ``requirement,'' unless the language describes an 
established statutory or regulatory requirement or is addressed to EEOC 
staff and will not foreclose the Commission's consideration of 
positions advanced by affected private parties;
    (c) It shall identify or include:
    (1) The term ``guidance'' or its functional equivalent and that the 
Commission is issuing the document;
    (2) A unique identifier that provides information on whether the 
document was subject to a vote (CV) or not (NVTA), the year of 
issuance, and unique number of its issuance and, if applicable, a Z-
RIN;
    (3) The activity or entities to which the guidance applies;
    (4) A short summary of the subject matter covered in the guidance 
document at the top of the document.
    (5) A statement noting whether the guidance is intended to revise 
or replace any previously issued guidance and, if so, sufficient 
information to identify the previously issued guidance; and
    (6) Citations to applicable statutes and regulations;
    (7)(i) A clear and prominent statement of the following: ``The 
contents of this document do not have the force and effect of law and 
are not meant to bind the public in any way. This document is intended 
only to provide clarity to the public regarding existing requirements 
under the law or Commission policies.''
    (ii) When binding guidance is authorized by law or is incorporated 
into contract, the guidance statement in paragraph (c)(7)(i) of this 
section may be modified to reflect either of those facts.
    (d) If the guidance document sets forth the Commission's position 
on a legal principle for the first time or changes the Commission's 
legal position on any issue, the Commission must approve the guidance 
document by majority vote. Any significant guidance or guidance that is 
otherwise subject to notice and comment procedures must be approved by 
a Commission vote. Any guidance document that requires a vote of the 
Commission to be approved shall be circulated to the Commissioners, 
and, if approved, shall be signed by the Chair on behalf of the 
Commission. If the document is not setting forth a new or changed legal 
position, is reiterating already established Commission policies, or is 
otherwise simply providing technical assistance on the laws the 
Commission enforces without announcing any new policy or legal 
position, it shall be circulated to the Commission for informational 
purposes for a period of not less than five days, unless emergency 
circumstances do not allow, and shall only require approval, but not 
signature, by the Chair.

[[Page 30670]]

Sec.  1695.3  Good faith cost estimates.

    (a) A good faith effort shall be made, to the extent practicable, 
to estimate the likely economic cost impact of the guidance document to 
determine whether the document might be significant. It may, however, 
be difficult to predict with precision the economic impact of voluntary 
guidance.
    (b) When determining the likely economic cost impact, the same 
level of analysis should be given as that required for a major 
determination under the Congressional Review Act (5 U.S.C. 801 et seq.) 
and the economic impact on small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).


Sec.  1695.4  Significance determination.

    (a) Prior to issuance, the Commission shall provide OIRA with an 
opportunity to review a guidance document to determine if it meets the 
definition of ``significant guidance document.''
    (b) If the guidance document is determined not to be significant, 
the Commission shall proceed with issuance of the guidance without 
going through the procedures described in section 1695.05.
    (c) In emergency situations, or when required by statutory deadline 
or court order to act more quickly than normal review procedures allow, 
the Chair shall notify OIRA as soon as possible and, to the extent 
practicable, comply with the requirements of this subpart at the 
earliest opportunity.


Sec.  1695.5  Significant guidance requirements.

    (a) Each proposed significant guidance document shall be:
    (1) Approved by the Commission before issuance and assigned a Z-RIN 
through the Regulatory Management System (RMS), or a successor data 
management system.
    (2) Comply with the applicable requirements for regulations, 
including significant regulatory actions, in E.O. 12866, E.O. 13563, 
E.O. 13609, E.O. 13771, and E.O. 13777.
    (3) Submitted to OMB for coordinated review. Proposed guidance 
documents that are otherwise important to the Commission's interests 
may also be submitted for review.
    (4) Reviewed by OIRA under E.O. 12866 before issuance.
    (b) The Chair may determine that it is appropriate to coordinate 
with OMB in the review of guidance documents that are otherwise of 
importance to the Commission's interests.


Sec.  1695.6  Notice and public comment.

    (a) Each proposed significant guidance document shall have a period 
of notice and public comment of at least 30 days, unless the 
Commission, in consultation with OIRA, finds good cause that such 
notice and public comment are impracticable, unnecessary, or contrary 
to the public interest, and incorporates such finding and a brief 
statement of reasons therefor into the guidance document.
    (b) Notice shall be published in the Federal Register announcing 
that a draft of the proposed guidance document is publicly available on 
the Federal e-regulation website, and the proposed significant guidance 
document also shall be posted on the Commission website.
    (c) The Commission shall prepare and post a public response to 
major concerns raised in the comments, as appropriate, either before or 
when the significant guidance document is finalized and issued.
    (d) When appropriate, the Chair may determine that a guidance 
document that is not otherwise required to go through notice and public 
comment shall also be subject to a period of public comment following 
the document's approval by the Commission before the document becomes 
effective.
    (e) Unless otherwise determined in writing by the Chair, upon 
issuing a significant guidance document, a report shall be submitted to 
Congress and GAO in accordance with the procedures described in 5 
U.S.C. 801 (the ``Congressional Review Act'').


Sec.  1695.7  Petitions.

    (a) Any interested person may petition the Commission, in writing, 
for the issuance, amendment, or repeal of a guidance. Such petition 
shall state the guidance, regulation, or rule, together with a 
statement of grounds in support of such petition.
    (b) Petitions may be filed with the EEOC, Office of Executive 
Secretariat, either electronically at the EEOC guidance portal, http://www.eeoc.gov/guidance, or in hard copy to U.S. Equal Employment 
Opportunity Commission, Executive Secretariat, 131 M Street NE, 
Washington, DC 20507.
    (c) Upon the filing of such petition, the Commission shall consider 
the same and may thereupon either grant or deny the petition in whole 
or in part, conduct an appropriate proceeding thereon, or make other 
disposition of the petition.
    (d) The Commission should respond to all petitions in a timely 
manner, but no later than 90 days after receipt of the petition, as to 
how it intends to proceed. Should the petition be denied in whole or in 
part, prompt notice shall be given of the denial, accompanied by a 
simple statement of the grounds unless the denial be self-explanatory.
    (e) The issuance, amendment, or repeal of a guidance in response to 
a petition shall be considered by the Commission pursuant to its 
regular procedures.


Sec.  1695.8  Public access to current guidance documents.

    (a) All current guidance documents shall be published with a unique 
identifier including, at a minimum, the document's title, date of 
issuance or revision, and its Z-RIN (if applicable).
    (b) All current guidance documents shall made available through a 
single ``guidance portal'' on the Commission website, together with a 
single, searchable, indexed database available to the public;
    (c) The guidance portal shall include a statement that guidance 
documents lack the force and effect of law, except as authorized by law 
or as incorporated into a contract;
    (d) The Commission shall maintain and advertise on its website a 
means for the public to comment electronically on any guidance 
documents that are subject to the notice and comment procedures 
described in Sec.  1695.6 and to submit requests electronically for 
issuance, reconsideration, modification, or rescission of guidance 
documents in accordance with Sec.  1695.7; and
    (e) Designate an office to receive and address complaints from the 
public that the Commission is not following the relevant requirements 
for issuing guidance or is improperly treating a guidance document as a 
binding requirement.


Sec.  1695.9  Rescinded guidance.

    The Commission shall not cite, use, or rely on guidance documents 
that are rescinded, except to establish historical facts.


Sec.  1695.10  No judicial review or enforceable rights.

    This part is intended to improve the internal management of the 
Commission. As such, it is for the use of EEOC personnel only and is 
not intended to, and does not, create any right or benefit, substantive 
or procedural, enforceable at law or in equity by any party against the 
United States, its agencies or other entities, its officers or 
employees, or any other person.

[FR Doc. 2020-09813 Filed 5-19-20; 8:45 am]
 BILLING CODE 6570-01-P