[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Proposed Rules]
[Pages 32154-32158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10575]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1603

RIN 3046-AB09


Procedures for Previously Exempt State and Local Government 
Employee Complaints of Employment Discrimination Under Section 304 of 
the Government Employee Rights Act of 1991

AGENCY: Equal Employment Opportunity Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Equal Employment Opportunity Commission (EEOC or 
Commission) is proposing to amend its existing regulations by which 
state and local government employees who were previously exempt from 
coverage under Title VII of the Civil Rights Act of 1964 may bring 
claims of employment discrimination pursuant to the Government Employee 
Rights Act of 1991. The EEOC proposes to amend the regulations to 
explicitly provide for digital transmission of documents, to update the 
regulation based upon the text of other regulations or statutes, and to 
make a number of editorial revisions to improve clarity and correct 
errors.

DATES: Comments on the notice of proposed rulemaking must be received 
on or before July 18, 2023.

ADDRESSES: You may submit comments, identified by RIN Number 3046-AB09, 
by any of the following methods--please use only one method:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions on the website for submitting comments.
     Fax: Comments totaling six or fewer pages may be sent by 
fax machine to (202) 663-4114. Receipt of fax transmittals will not be 
acknowledged, except that the sender may request confirmation of 
receipt by calling the Executive Secretariat staff at (202) 921-2815 
(voice), (800) 669-6820 (TTY), or (844) 234-5122 (ASL Video Phone).
     Mail: Comments may be submitted by mail to Raymond 
Windmiller, Executive Officer, Executive Secretariat, Equal Employment 
Opportunity Commission, 131 M Street NE, Washington, DC 20507.
     Hand Delivery/Courier: Raymond Windmiller, Executive 
Officer, Executive Secretariat, U.S. Equal Employment Opportunity 
Commission, 131 M Street NE, Washington, DC 20507.
    Instructions: The Commission invites comments from all interested 
parties. All comment submissions must include the Regulatory 
Information Number (RIN) for this rulemaking. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information you provide.
    Docket: For access to comments received, go to https://www.regulations.gov. Copies of the received comments also will be 
available for review at the Commission's library, 131 M Street NE, 
Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and 
5 p.m., from July 18, 2023 until the Commission publishes the rule in 
final form. You must make an appointment with library staff to review 
the comments in the Commission's library.

FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal 
Counsel, at (202) 921-2665 or [email protected], or Erin Norris, 
Senior Attorney, Office of Legal Counsel, at (980) 296-1286 or 
[email protected]. Requests for this notice in an alternative format 
should be made to the Office of Communications and Legislative Affairs 
at (202) 921-3191 (voice), (800) 669-6820 (TTY), or (844) 234-5122 (ASL 
Video Phone).

SUPPLEMENTARY INFORMATION: Title III of the Civil Rights Act of 1991, 
entitled the Government Employee Rights Act of 1991 (GERA), extends 
protections against employment discrimination based on race, color, 
religion, sex, national origin, age and disability to previously exempt 
state and local government employees. 42 U.S.C. 2000e-16c. In addition 
to providing these protections against discrimination, section 304 of 
GERA empowered the Equal Employment Opportunity Commission to address 
complaints filed by GERA-covered employees. GERA afforded previously 
exempt individuals new equal employment opportunity protections, and it 
introduced an administrative enforcement mechanism that was different 
from EEOC's pre-existing charge resolution procedures. Consequently, 
EEOC created procedures in 29 CFR part 1603 for handling complaints 
brought by individuals covered by GERA. The interim rule setting out 
these procedures was published at 62 FR 17542 (April 10, 1997) and the 
final rule was published at 64 FR 28743 (May 27, 1999). Pursuant to its 
authority under 42 U.S.C. 2000e-12 to ``amend . . . suitable procedural 
regulations to carry out the provisions of this subchapter,'' the EEOC 
now proposes to revise those regulations as described in this document.

[[Page 32155]]

Digital Submission of Documents

    Proposed revisions to Sec. Sec.  1603.102, 106, 208, 209, and 302 
update the regulations to allow for digital submission of documents. 
Since last revising this regulation, the EEOC has expanded its use of 
technology in charge and complaint processing. The Commission has 
implemented a digital system for charges and complaints of 
discrimination filed with the EEOC. The system enables the EEOC, 
charging parties and complainants, and respondents against whom charges 
or complaints are filed to communicate and transmit documents digitally 
through a secure online portal. It allows potential charging parties 
and complainants to submit online inquiries to the EEOC and to schedule 
intake interviews through the online system. In addition, in some cases 
the EEOC allows parties to submit information to agency personnel 
through email. While parties may continue to submit information using 
other methods, digital submission of documents through the online 
system is the preferred method.

Other Regulations and Statutes

    The proposed revisions also include a few changes to citations to 
other regulations or statutes, as well as cross-references to sections 
within part 1603. In Sec.  1603.108, an incorrect statutory citation 
was corrected, and in Sec. Sec.  1603.102, 107, 301, and 303, 
references to other EEOC regulations and cross-references to sections 
in part 1603 were added, updated, or corrected.
    Further, in Sec.  1603.107 the EEOC proposes to remove two 
paragraphs that are substantively analogous to paragraphs removed in 
2008 from the agency's procedural charge processing regulations in 29 
CFR 1601.18. This proposed removal of the language from part 1603 would 
standardize the EEOC's various procedural regulations. The paragraphs 
in question state that the Commission may dismiss a GERA complaint if 
the complainant cannot be located or if the complainant fails to 
provide information, appear for interviews, or otherwise cooperate with 
the agency. When similar language was removed from part 1601 in 2008, 
the agency noted that removing the language would bring part 1601 in 
line with the agency's procedural regulations governing the Age 
Discrimination in Employment Act and the Equal Pay Act, which do not 
contain the dismissal bases of failure to cooperate or failure to 
locate. Additionally, the agency noted in 2008 that the language had 
resulted in dismissals of private lawsuits when courts determined that 
the plaintiffs had not satisfied all prerequisites for filing suit; 
some courts held that having one's charge dismissed for failure to 
cooperate with the EEOC's investigation equated to failure to exhaust 
one's administrative remedies. The Commission did not intend to cause 
Federal court dismissals or to impose on charging parties any 
additional prerequisites to suit. For these reasons, the EEOC now 
proposes to remove the paragraphs addressing failure to locate a 
complainant and failure of a complainant to cooperate with the EEOC 
from Sec.  1603.107. This proposed revision is not intended to limit 
the Commission's discretion to dismiss complaints on these or other 
grounds where appropriate.
    Finally, the EEOC proposes to revise Sec.  1603.215(a) to reflect 
that transcripts of hearings before administrative law judges are 
available to the parties. The regulations now incorrectly state that 
the transcripts are available to the public as well; however, this 
statement conflicts with section 556 of the Administrative Procedure 
Act (APA), which states that a transcript shall be made available ``to 
the parties.'' \1\ The revision corrects this error and ensures that 
GERA complaints are processed in accordance with APA procedures, as 
GERA requires.
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    \1\ 5 U.S.C. 556(e).
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Other Clarifying Changes

    The EEOC proposes to revise Sec.  1603.207(c) to change the time 
for response to a motion to intervene from 15 days to 10 business days. 
Other responses to motions filed pursuant to part 1603 must be filed 
within 10 business days of service of the motion; this change is meant 
to standardize the deadline within part 1603. The EEOC also proposes to 
revise Sec.  1603.302 by adding a paragraph requiring service on the 
opposing party of appeals taken under part 1603. Additionally, a number 
of minor grammatical, punctuation, and other editorial changes were 
made throughout this part.

Regulatory Procedures

Executive Order 12866

    The Commission has complied with the principles in section 1(b) of 
Executive Order 12866, Regulatory Planning and Review. This proposed 
rule is not a ``significant regulatory action'' under section 3(f) of 
the order and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of the order.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to 
rulemakings in which an agency creates a new paperwork burden on 
regulated entities or modifies an existing burden. This proposed rule 
contains no new information collection requirements for the public, and 
therefore it will create no new paperwork burdens or modifications to 
existing burdens that are subject to review by the Office of Management 
and Budget under the PRA.

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities because it does not affect any small business 
entities. The regulation affects only certain employees of state or 
local governments. For this reason, a regulatory flexibility analysis 
is not required.

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. To the extent that 
it affects small governments by allowing for digital transmission of 
documents, it will save resources of those entities. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Congressional Review Act

    This proposed rule is not a ``rule'' under the Congressional Review 
Act (Subtitle E of the Small Business Regulatory Enforcement Fairness 
Act of 1996) because the Congressional Review Act only applies to final 
rules. Therefore, the reporting requirement of 5 U.S.C. 801 does not 
apply.

List of Subjects in 29 CFR Part 1603

    Administrative practice and procedure, Equal employment 
opportunity, Intergovernmental relations, Investigations, State and 
local governments.

    Accordingly, for the reasons set forth in the preamble, the Equal 
Employment Opportunity Commission proposes to amend 29 CFR part 1603 as 
follows:

[[Page 32156]]

PART 1603--PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND LOCAL 
GOVERNMENT EMPLOYEE COMPLAINTS OF EMPLOYMENT DISCRIMINATION UNDER 
SECTION 304 OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991

0
1. The authority citation for part 1603 is revised to read as follows:

    Authority:  42 U.S.C. 2000e-12 and -16c; 42 U.S.C. 2000ff-6(b).

0
2. Amend Sec.  1603.102:
0
a. By revising paragraphs (a), (b), the introductory text of paragraph 
(c), (c)(1), (c)(2), (c)(4), and the last sentence of paragraph (d); 
and
0
b. In paragraph (e), in the first sentence, by removing the commas.
    The revisions read as follows:


Sec.  1603.102  Filing a complaint.

    (a) Who may make a complaint. Individuals referred to in Sec.  
1603.101 who believe they have been discriminated against on the basis 
of race, color, religion, sex, national origin, age, disability, or 
genetic information, or retaliated against for opposing any practice 
made unlawful by federal laws protecting equal employment opportunity 
or for participating in any stage of administrative or judicial 
proceedings under those federal laws, may file a complaint not later 
than 180 days after the occurrence of the alleged discrimination or 
retaliation.
    (b) Where to file a complaint. A complaint may be filed using the 
Commission's designated digital systems, in person, by facsimile, or by 
mail to any Commission office or with any designated agent or 
representative of the Commission. The addresses of the Commission's 
offices may be found at www.eeoc.gov.
    (c) Contents of a complaint. A complaint shall be in writing and 
signed and shall be verified as defined in Sec.  1601.3(a). In 
addition, each complaint should contain the following:
    (1) The full name and contact information of the person making the 
complaint;
    (2) The full name and contact information of the person, 
governmental entity, or political subdivision against whom the 
complaint is made, if known (hereinafter referred to as the 
respondent);
* * * * *
    (4) A statement disclosing whether proceedings involving the 
alleged unlawful employment practice have been commenced before a State 
or local Fair Employment Practices (FEP) agency charged with the 
enforcement of fair employment practice laws and, if so, the date of 
such commencement and the name of the agency.
    (d) * * * A complaint that has been amended after it was referred 
(see Sec.  1603.103) shall not be again referred to the appropriate 
State or local FEP agency.
* * * * *


Sec.  1603.103  [Amended]

0
3. Amend Sec.  1603.103(b) by removing the comma.
0
4. Revise Sec.  1603.106 to read as follows:


Sec.  1603.106  Computation of time generally and for timely receipt by 
the Commission.

    (a)(1) All time periods in this part that are stated in terms of 
days are calendar days unless otherwise stated.
    (2) The first day counted shall be the day after the event from 
which the time period begins to run, and the last day of the period 
shall be included unless it falls on a Saturday, Sunday, or federal 
holiday, in which case the period shall be extended to include the next 
business day.
    (3) All time limits in this part are subject to waiver, estoppel, 
and equitable tolling.
    (b) Documents submitted to the Commission are deemed timely 
received as follows:
    (1) A document submitted by digital transmission, by facsimile not 
exceeding 20 pages, or by personal delivery or commercial delivery 
service shall be deemed timely if it is received before the expiration 
of the applicable filing period. A document submitted by digital means 
shall be deemed received on the date the EEOC's designated digital 
system records the upload.
    (2) A document submitted by mail shall be deemed timely if it is 
received or postmarked before the expiration of the applicable filing 
period or, in the absence of a legible postmark, if it is received 
within 5 days of the expiration of the applicable filing period.
    (c) For the purposes of this part, the terms file, serve, receive, 
issue, transmit, send, and any other word forms of these terms, such as 
filing or serving, when used to describe transmission of documents, 
shall include all forms of digital transmission.
0
5. Amend Sec.  1603.107:
0
a. By revising paragraph (a);
0
b. By removing paragraphs (b) and (c); and
0
c. By redesignating paragraphs (d) and (e) as paragraphs (b) and (c) 
and revising newly redesignated paragraphs (b) and (c).
    The revisions read as follows:


Sec.  1603.107  Dismissals of complaints.

    (a) Where a complaint is not timely filed or, except as described 
in Sec.  1603.102(e), fails to state a claim under this part, the 
Commission shall dismiss the complaint.
    (b) Written notice of dismissal pursuant to paragraph (a) of this 
section shall be issued to the complainant and the respondent. The 
Commission hereby delegates authority to dismiss complaints to the 
Director, Office of Field Programs or the Director's designees, and to 
District Directors or their designees.
    (c) A complainant who is dissatisfied with a dismissal issued 
pursuant to this section may appeal to the Commission in accordance 
with the procedures in subpart C of this part.


Sec.  1603.108  [Amended]

0
6. Amend Sec.  1603.108:
0
a. In paragraph (c), by adding a comma after the words ``employees of 
the Commission''; and
0
b. In paragraph (d), by removing the number ``584'' and adding in its 
place the number ``574''.


Sec.  1603.109  [Amended]

0
7. Amend Sec.  1603.109:
0
a. In paragraph (a), by adding the word ``an'' before the word 
``investigation'' and by adding a comma after the word ``visits''; and
0
b. In paragraph (b), in the first sentence, by adding a comma after the 
words ``the production of evidence''.


Sec.  1603.201  [Amended]

0
8. Amend Sec.  1603.201:
0
a. In paragraph (a), by adding a comma after the words ``of this 
section or'';
0
b. In paragraph (c), by removing the words ``representatives or 
witnesses'' and adding in their place the words ``representatives, and 
their witnesses''.
0
9. Amend Sec.  1603.202:
0
a. In paragraph (a), by adding a comma after the word ``place''; and
0
b. By revising paragraph (b) to read as follows:


Sec.  1603.202  Administrative law judge.

* * * * *
    (b) Enter a default decision against a party failing to appear at a 
hearing unless the party shows good cause by contacting the 
administrative law judge either prior to the hearing or within 2 days 
after the scheduled hearing and presenting arguments as to why the 
party or the party's representative could not appear; and
* * * * *
0
10. Amend Sec.  1603.203:
0
a. By revising paragraphs (a) and (b); and

[[Page 32157]]

0
b. By removing paragraph (c).
    The revisions read as follows:


Sec.  1603.203  Unavailability or withdrawal of administrative law 
judges.

    (a) In the event the administrative law judge designated to conduct 
the hearing becomes unavailable or withdraws from the adjudication, 
another administrative law judge may be designated for the purpose of 
further hearing or issuing a decision on the record as made, or both. 
At any time administrative law judges deem themselves disqualified, 
they may withdraw from an adjudication.
    (b) Prior to issuance of a decision on the complaint, any party may 
move that the administrative law judge withdraw on the grounds of 
personal bias or other disqualification by filing with the 
administrative law judge an affidavit setting forth in detail the 
matters alleged to constitute grounds for withdrawal promptly upon 
discovery of the alleged facts. The administrative law judge shall rule 
upon the motion for withdrawal. If the administrative law judge 
concludes that the motion was filed promptly and has merit, the 
administrative law judge shall immediately withdraw from the 
adjudication. If the administrative law judge does not withdraw, the 
adjudication shall proceed.
0
11. Amend Sec.  1603.204:
0
a. By revising the last sentence of paragraph (a); and
0
b. By revising paragraphs (b) and (d).
    The revisions read as follows:


Sec.  1603.204  Ex parte communications.

    (a) * * * Communications between the administrative law judge or 
Commission personnel and one party concerning the status of the case, 
the date of a hearing, the method of transmitting evidence to the 
Commission, and other purely procedural questions are permitted.
    (b) ``Decision-making personnel of the Commission'' includes 
members of the Commission and their staffs as well as personnel in the 
Office of Federal Operations but does not include investigators and 
intake staff.
* * * * *
    (d) Where it appears that a party has engaged in prohibited ex 
parte communications, that party may be required to show cause why, in 
the interest of justice, the party's claim or defense should not be 
dismissed, denied, or otherwise adversely affected.


Sec.  1603.205  [Amended]

0
12. Amend Sec.  1603.205(b) by removing the comma after the words ``in 
the adjudication''.


Sec.  1603.206  [Amended]

0
13. Amend Sec.  1603.206:
0
a. In paragraph (a), in the first sentence, by removing the words ``his 
or her'' and adding in their place the words ``the administrative law 
judge's'', by removing the comma after the words ``common parties'', 
and by adding the word ``common'' before the word ``factual''; and
0
b. In paragraph (b), by removing the words ``his or her'' and adding in 
their place the words ``the administrative law judge's'' and by adding 
a comma after the word ``claims''.


Sec.  1603.207  [Amended]

0
14. Amend Sec.  1603.207:
0
a. In paragraph (b), by adding the word ``relevant'' before the words 
``facts or reasons''; and
0
b. In paragraph (c), by removing the words ``15 days after the filing'' 
and adding in their place the words ``10 business days after service''.


Sec.  1603.208  [Amended]

0
15. Amend Sec.  1603.208:
0
a. In paragraph (b), in the first sentence, by removing the words ``ten 
(10)'' and adding in their place the number ``10'', and in the last 
sentence, by removing the words ``judge, in his or her discretion, 
orders'' and adding in their place the words ``judge exercises 
discretion to order'';
0
b. In paragraph (c), in the third sentence, by adding the words ``or 
other digital means'' after the word ``telephone'', and in the last 
sentence, by removing the words ``five (5)'' and adding in their place 
the number ``5'', and by adding a comma after the word ``vacate''; and
0
c. In paragraph (d), by removing the words ``dilatory, repetitive or 
frivolous motions'' and adding in their place the words ``motions that 
are repetitive, frivolous, or intended to delay the proceedings''.
0
16. Revise Sec.  1603.209 to read as follows:


Sec.  1603.209  Filing and service.

    (a) Unless otherwise ordered by the administrative law judge, a 
signed original of each motion, brief, or other document shall be filed 
with the administrative law judge, with a certificate of service 
indicating that a copy has been sent to all other parties and stating 
the date and manner of service. Digitally submitted documents may be 
electronically signed. All documents presented in hard copy shall be on 
standard size (8\1/2\ x 11) paper. Each document filed shall be clear 
and legible.
    (b) Filing and service shall be made by first class mail or other 
more expeditious means of delivery, including, at the discretion of the 
administrative law judge, by facsimile, digital transmission, or other 
means. The administrative law judge may exercise discretion to limit 
the number of pages that may be filed or served by facsimile. Service 
shall be made on a party's representative, or, if not represented, on 
the party.
    (c) Every document shall contain a caption including the parties' 
names, the complaint number or docket number assigned to the matter, a 
designation of the type of filing (e.g., motion, brief, etc.), and the 
filing person's signature and contact information.


Sec.  1603.210  [Amended]

0
17. Amend Sec.  1603.210(b) by adding a comma after the word 
``admission''.


Sec.  1603.211  [Amended]

0
18. Amend Sec.  1603.211:
0
a. In paragraph (a), in the last sentence, by adding the word ``state'' 
before the words ``the date and time''; and
0
b. In paragraph (b), in the second sentence, by adding the word 
``also'' before the words ``be served upon''.


Sec.  1603.213  [Amended]

0
19. Amend Sec.  1603.213:
0
a. In paragraph (a) introductory text, by adding the words ``either 
independently or'' before the words ``upon motion of a party'', and by 
removing the words ``or upon his or her own motion'';
0
b. In paragraph (a)(2), by removing the word ``ruling'' and adding in 
its place the word ``appeal'', and by removing the word ``or'' and 
adding in its place the word ``and'';
0
c. In paragraph (a)(3), by removing the word ``ruling'' and adding in 
its place the word ``appeal'';
0
d. In paragraph (b) introductory text, by removing the words ``ten 
(10)'' and adding in their place the number ``10''; and
0
e. In paragraph (c), in the last sentence, by removing the comma after 
the word ``judge'' and by removing the words ``within his or her 
discretion,''.


Sec.  1603.214  [Amended]

0
20. Amend Sec.  1603.214 by adding the word ``that'' before the words 
``the rules on hearsay''.


Sec.  1603.215  [Amended]

0
21. Amend Sec.  1603.215:
0
a. In paragraph (a), in the first sentence, by removing the words 
``mechanically or stenographically reported'' and adding in their place 
the words ``audio or video recorded, stenographically reported, or 
both'' and

[[Page 32158]]

in the last sentence, by removing the words ``and the public''; and
0
b. In paragraph (b), by removing a comma after the words ``upon 
motion'' and by removing the words ``ten (10)'' and adding in their 
place the number ``10''.


Sec.  1603.217  [Amended]

0
22. Amend Sec.  1603.217(b), in the last sentence, by adding a 
semicolon after the word ``discovery''.


Sec.  1603.301  [Amended]

0
23. Amend Sec.  1603.301 by removing the citation ``Sec.  1613.213'' 
and adding in its place the citation ``Sec.  1603.213''.
0
24. Amend Sec.  1603.302:
0
a. By revising paragraph (b); and
0
b. By adding a new paragraph (c).
    The revisions read as follows:


Sec.  1603.302  Filing an appeal.

* * * * *
    (b) An appeal shall be filed with the Director, Office of Federal 
Operations, Equal Employment Opportunity Commission, by mail to P.O. 
Box 77960, Washington, DC 20013, by personal delivery or commercial 
delivery service, by digital transmission, or by facsimile to 202-663-
7022.
    (c) The appellant shall furnish a copy of the appeal to the 
opposing party at the same time it is filed with the Commission. In or 
attached to the appeal to the Commission, the appellant must certify 
the date and method by which service was made on the opposing party.


Sec.  1603.303  [Amended]

0
25. Amend Sec.  1603.303:
0
a. In paragraph (c), introductory text, by adding a comma after the 
word ``order'';
0
b. In paragraph (c)(2), by adding a comma after the word 
``regulation''; and
0
c. In paragraph (e), by removing the words ``the appeal and'' and by 
removing the citation ``Sec.  1603.209'' and adding in its place the 
citation ``Sec.  1603.302(b) and (c)''.


Sec.  1603.306  [Amended]

0
26. Amend Sec.  1603.306 by removing a comma after the word 
``resides''.

    Dated: May 12, 2023.

    For the Commission,
Charlotte A. Burrows,
Chair.
[FR Doc. 2023-10575 Filed 5-18-23; 8:45 am]
BILLING CODE 6570-01-P