Procedural Regulations for Issuing Guidance, 30667-30670 [2020-09813]
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Federal Register / Vol. 85, No. 98 / Wednesday, May 20, 2020 / Proposed Rules
inspect the rod end for a crack as described
in paragraph (e)(3) of this AD.
(iii) If there are no cracks, before further
flight, mark the rod end and body end with
a dot of black polyurethane paint as shown
in Figure 13 of BT 189–080.
(iv) Thereafter, before the first flight of
each day, using a mirror and a magnifying
glass visually inspect each rod end and body
end for a crack in the areas shown in Figure
14 of BT 189–080. If there is a crack in the
rod end, before further flight, replace the rod
end. If there is a crack on the body end,
before further flight, replace the MR damper.
(4) Within the compliance times listed in
paragraphs (e)(4)(i) and (ii) of this AD,
inspect each rod end bearing and body end
for bearing rotation in the damper seat. An
example of rotation (misaligned slippage
marks) is shown in Figure 4 of BT 189–080.
If there is any bearing rotation in the rod end,
before further flight, replace the rod end. If
there is any bearing rotation in the body end,
before further flight, replace the MR damper.
(i) For MR dampers that have accumulated
less than 300 hours TIS since new or since
the last overhaul, within 30 hours TIS and
thereafter at intervals not to exceed 10 hours
TIS.
(ii) For MR dampers that have accumulated
300 or more hours TIS since new or since the
last overhaul, within 5 hours TIS and
thereafter before the first flight of each day.
(5) For helicopters with an MR damper
with a serial number (S/N) MCR0001 through
MCR0154 and MCR0174 through MCR0195,
within 30 hours TIS and thereafter at
intervals not to exceed 20 hours TIS until the
MR damper has accumulated 600 hours TIS,
visually inspect each MR damper broached
ring nut for broken teeth, proper engagement,
and alignment as depicted in Figure 5 and
shown in Figures 6, 7, and 8 of BT 189–080.
If there is a broken tooth, improper
engagement, or misalignment of the broached
ring nut, before further flight, remove from
service the rod end and broached ring nut.
(6) Within 50 hours TIS and thereafter at
intervals not to exceed 100 hours TIS:
(i) Rotate the body end around the damper
axis to put it near the middle position and
determine the bearing friction torque value of
the body end, using as a reference Figure 11
of BT 189–080.
Note 1 to Paragraph (e)(6)(i) of this AD:
Applying too much force while rotating the
body end around the damper axis may cause
damage.
(A) If the torque value of the body end is
more than 30.0 Nm (265.5 in lb), before
further flight, replace the MR damper.
(B) If the torque value of the body end is
30.0 Nm (265.5 in lb) or less, determine the
bearing friction torque value of each rod end,
using as a reference Figure 11 of BT 189–080.
If the torque value of the rod end is more
than 30.0 Nm (265.5 in lb), before further
flight, replace the rod end.
(ii) Inspect each MR damper anti-rotation
block for wear by following paragraphs 4.3
through 4.3.6 of the Compliance Instructions,
Part VI, of BT 189–080. If there is wear,
before further flight, replace the MR damper
anti-rotation block.
(7) Within 50 hours TIS:
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(i) On each MR damper, replace special
washer P/N 3G6220A05051 with special
washer P/N 3G6220A05052.
(ii) For helicopters with an MR damper
with a S/N MCR0001 through MCR0041,
MCR0043, MCR0045 through MCR0151,
MCR0153 through MCR0157, MCR0159
through MCR 0179, and MCR0185 through
MCR0370; and for MR dampers with a rod
end P/N M006–01H004–045 or P/N M006–
01H004–053 installed, do the following:
(A) Inspect each broached ring for wear,
bent teeth, missing teeth, and stripped
threads. Pay particular attention to the four
pins that engage the piston grooves. If there
is any wear or damage to the broached ring,
before further flight, remove from service the
broached ring. An example of an acceptable
broached ring is shown in Figure 4, Annex
A, of BT 189–080.
(B) Align each rod end and broached ring
by applying a torque of 60 Nm (531 in lb) to
80 Nm (708 in lb). If the rod end and
broached ring cannot be aligned, before
further flight, replace the broached ring.
(8) Except for MR dampers with a S/N
MCR0042, MCR0044, MCR0152, MCR0158,
and MCR0180 through MCR0184, do not
install an MR damper P/N 4F6220V00251 on
any helicopter unless the MR damper has
passed the requirements in paragraph
(e)(7)(ii) of this AD.
Viale G.Agusta 520, 21017 C.Costa di
Samarate (Va) Italy; telephone +39–0331–
225074; fax +39–0331–229046; or at https://
www.leonardocompany.com/en/home. You
may view the referenced service information
at the FAA, Office of the Regional Counsel,
Southwest Region, 10101 Hillwood Pkwy,
Room 6N–321, Fort Worth, TX 76177.
(2) The subject of this AD is addressed in
European Aviation Safety Agency (now
European Union Aviation Safety Agency)
(EASA) AD No. 2016–0145R1, dated January
17, 2018. You may view the EASA AD on the
internet at https://www.regulations.gov in the
AD Docket.
(f) Credit for Previous Actions
(1) Actions accomplished before the
effective date of this AD in accordance with
the Compliance Instructions, Part II, of
Finmeccanica Bollettino Tecnico No. 189–
069, dated February 12, 2016 (BT 189–069),
are considered acceptable for compliance
with the corresponding actions in paragraph
(e)(7)(i) of this AD.
(2) Actions accomplished before the
effective date of this AD in accordance with
the Compliance Instructions, Part III, of BT
189–069, are considered acceptable for
compliance with the corresponding actions
in paragraph (e)(7)(ii) of this AD.
29 CFR Part 1695
(g) Alternative Methods of Compliance
(AMOCs)
(1) The Manager, Safety Management
Section, FAA, may approve AMOCs for this
AD. Send your proposal to: Matt Fuller,
Senior Aviation Safety Engineer, Safety
Management Section, Rotorcraft Standards
Branch, FAA, 10101 Hillwood Pkwy, Fort
Worth, TX 76177; telephone 817–222–5110;
email 9-ASW-FTW-AMOC-Requests@faa.gov.
(2) For operations conducted under a 14
CFR part 119 operating certificate or under
14 CFR part 91, subpart K, the FAA suggests
that you notify your principal inspector, or
lacking a principal inspector, the manager of
the local flight standards district office or
certificate holding district office before
operating any aircraft complying with this
AD through an AMOC.
(h) Additional Information
(1) Finmeccanica Bollettino Tecnico No.
189–069, dated February 12, 2016, which is
not incorporated by reference, contains
additional information about the subject of
this AD. For service information identified in
this AD, contact Leonardo S.p.A. Helicopters,
Emanuele Bufano, Head of Airworthiness,
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(i) Subject
Joint Aircraft Service Component (JASC)
Code: 6200, Main Rotor System.
Issued on May 14, 2020.
Lance T. Gant,
Director, Compliance & Airworthiness
Division, Aircraft Certification Service.
[FR Doc. 2020–10752 Filed 5–19–20; 8:45 am]
BILLING CODE 4910–13–P
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
RIN 3046–AB18
Procedural Regulations for Issuing
Guidance
Equal Employment
Opportunity Commission.
ACTION: Notice of proposed rulemaking.
AGENCY:
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: https://
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)
SUMMARY:
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Federal Register / Vol. 85, No. 98 / Wednesday, May 20, 2020 / Proposed Rules
for this rulemaking. All comments
received will be posted without change
to https://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
robert.carter@eeoc.gov.
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
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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 §§ 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 § 1695.7 of the rulemaking
is mandated by section 4(a) of Executive
Order 13891. The requirement in
§ 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 § 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 § 1695.10 reflects
section 7 of the Executive Order.
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.
Regulatory Procedures
While this action concerns agency
procedure that does not substantially
affect the rights or obligations of nonagency 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.
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
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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
List of Subjects in 29 CFR Part 1695
Administrative practice and
procedure, Equal Employment
Opportunity for the Commission.
Janet Dhillon,
Chair.
Accordingly, the EEOC proposes to
add 29 CFR part 1695 to read as follows:
■
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Federal Register / Vol. 85, No. 98 / Wednesday, May 20, 2020 / Proposed Rules
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.
§ 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.
§ 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;
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(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).
§ 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
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30669
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.
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§ 1695.3
Federal Register / Vol. 85, No. 98 / Wednesday, May 20, 2020 / Proposed Rules
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.).
§ 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.
§ 1695.5 Significant guidance
requirements.
§ 1695.7
(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.
§ 1695.6
Notice and public comment.
(a) Each proposed significant
guidance document shall have a period
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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 eregulation 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’’).
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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, https://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
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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.
§ 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 § 1695.6 and to submit
requests electronically for issuance,
reconsideration, modification, or
rescission of guidance documents in
accordance with § 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.
§ 1695.9
Rescinded guidance.
The Commission shall not cite, use, or
rely on guidance documents that are
rescinded, except to establish historical
facts.
§ 1695.10
rights.
No judicial review or enforceable
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
E:\FR\FM\20MYP1.SGM
20MYP1
]]>Agencies
[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.
-----------------------------------------------------------------------
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: https://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 https://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, https://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
