Procedural Regulations for Issuing Guidance, 69167-69172 [2020-22542]

Agencies

• Equal Employment Opportunity Commission

[Federal Register Volume 85, Number 212 (Monday, November 2, 2020)]
[Rules and Regulations]
[Pages 69167-69172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22542]


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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: Final rule.

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SUMMARY: The Equal Employment Opportunity Commission (EEOC or 
Commission) is issuing a final rule to establish procedural regulations 
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: Effective date: December 2, 2020.

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

SUPPLEMENTARY INFORMATION: 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.
    On October 9, 2019, President Donald J. Trump issued Executive 
Order (E.O.) 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.'' E.O. 13891, 84 FR 55235 (October 9, 2019). E.O. 
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.
    Independent of E.O. 13891, the Commission believes that this final 
rule will provide clearer procedures for issuance of its guidance 
documents and ensure an opportunity for the public to comment on 
proposed significant guidance. Such steps will improve the guidance the 
Commission issues. Guidance documents are a critical component of the 
Commission's

[[Page 69168]]

outreach and education efforts, as they inform the public of the 
Commission's current interpretations of the law on specific topics and 
promote voluntary compliance. So, establishing permanent procedures 
through its regulations on how the Commission will issue guidance will 
be beneficial to the Commission and its stakeholders.
    This final rule creates a new part, 29 CFR part 1695, to address 
the requirements of Executive Order 13891 and the Office of Management 
and Budget's explanation in Memorandum M-20-02. The requirements of 
this 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 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.  1695.8 of posting of all existing 
guidance on the Commission website in a single, searchable, indexed 
database (launched on February 28, 2020) is consistent with section 
3(a) of the Executive order. 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.
    The Commission published a Notice of Proposed Rulemaking (NPRM) in 
the Federal Register (85 FR 30667) on May 20, 2020 for a 30-day notice 
and comment period, which ended on June 19, 2020.

Comments Generally

    The Commission received nine comments on the NPRM during the 30-day 
comment period. These were submitted through Regulations.gov, the 
Federal government's electronic docket system, under EEOC-2020-0004. No 
comments were faxed or mailed to the Executive Secretariat.
    Of the nine comments, two organizations supported the proposed rule 
and three opposed it. Four individuals submitted comments that were 
non-responsive and require no additional discussion.
    The Commission has reviewed and considered each of the comments in 
preparing this final rule. They are discussed in further detail below.

Comments Supporting the NPRM

    The American Road & Transportation Builders Association (``ARTBA'') 
supported the mandatory disclaimer language of proposed Sec.  
1695.2(c)(7)(i) as a means to ensure that the Commission's guidance is 
considered non-binding. It noted that guidance has become a new de 
facto regulation of its own, creating additional mandates on the 
entities it covers, while evading the public comment process.
    ARTBA further supported the creation of a web-based index of 
guidance pursuant to proposed Sec.  1695.8. It affirmed that making 
guidance documents more accessible would help smaller businesses stay 
aware of their employment responsibilities and comply with EEOC 
objectives.
    The Center for Workplace Compliance (``CWC'') also supported the 
notice and public comment provisions of proposed Sec.  1695.6, noting 
that the Commission has not always solicited public comments for 
guidance. It further supported the petition provisions of proposed 
Sec.  1695.7, affirming that the Commission would be less likely to 
retain outdated or incorrect guidance if the public had an opportunity 
to petition for a rescission or revision of guidance. It noted that the 
Commission's 1997 Policy Statement on Mandatory Binding Arbitration of 
Employment Discrimination Disputes as a Condition of Employment was 
inconsistent with more than 20 Supreme Court decisions and rejected by 
every U.S. Court of Appeals, but not rescinded until December 2019.
    The CWC recommended improvements to the indexing and search 
capabilities of the guidance web portal. For example, it noted that 
searching for the topic ``ADA'' would not retrieve all documents 
related to the Americans with Disabilities Act because many are 
classified using the topic ``disability.'' Issues regarding the 
methodology of the database's search function do not need to be 
addressed in the final rule and this comment was referred to the 
Commission's Office of Communications and Legislative Affairs, which 
controls the website.

Comments Opposing the NPRM

    Comments opposing the NPRM were received from The Leadership 
Conference, National Women's Law Center, and a joint letter from the 
Texas RioGrande Legal Aid and Disability Rights Texas. Comments shared 
by all three letters are addressed together.

Comment Period

    All three letters criticized the Commission's decision to issue the 
NPRM with a 30-day comment period during the Covid-19 pandemic. They 
contended that the decision did not provide sufficient time for comment 
and ``casts a shadow on the integrity of the comment process.''

Guidance Disclaimer

    The three letters objected to the mandatory disclaimer language of 
proposed Sec.  1695.2(c)(7)(i), alleging that it was broader than that 
required by Executive Order 13891. They further contended that while 
guidance is intended to provide clarity on the law, the disclaimer 
creates the impression that it cannot be relied upon to provide such 
clarity. They fear, therefore, that this language could confuse both 
workers and employers about their rights and obligations, and create 
uncertainty about the Commission's authority.
    The three letters also noted that guidance is entitled to deference 
by courts pursuant to the standard in Skidmore v. Swift & Co., 323 U.S. 
134 (1944), and that the Supreme Court has held that EEOC guidance 
reflects ``a body of experience and informed judgment to which courts 
and litigants may properly resort for guidance.'' Fed. Exp. Corp. v. 
Holowecki, 552 U.S. 389, 399 (2008) (quoting Bragdon v. Abbott, 524 
U.S. 624, 642 (1998)). They further alleged that courts can distinguish 
between guidance and rulemaking, citing the U.S Supreme Court's 
decision in Azar v. Allina Health Servs., 139 S. Ct. 1804, 1811 (2019), 
which struck down an interpretive rule that created a substantive legal 
standard.

Petitions

    The three letters alleged a lack of transparency in the petition 
process established by proposed Sec.  1695.7, which allows ``any 
interested person'' to petition the Commission to issue, amend, or 
repeal a guidance document. They noted that the process does not 
require the Commission to publish the petition contents or identity of 
the petitioner. The Leadership Conference asked that the Commission 
make petitions publicly available through the EEOC guidance portal and 
in hard copy at EEOC headquarters.
    The three letters also objected to the regulation's silence 
regarding the process for considering and resolving petitions, as well 
as the absence of a decision-making standard. They also objected to the 
provision in proposed Sec.  1695.7(d) that allowed a petition to be

[[Page 69169]]

denied without a response if it were ``self-explanatory.''

Emergency Exception

    The Texas RioGrande Legal Aid and Disability Rights Texas objected 
to the emergency provisions of proposed Sec. Sec.  1695.2(d) and 
1695.4(c), which waive certain time and/or procedural requirements 
during an emergency. They contended that the NPRM provides no 
information as to what circumstances might properly be considered 
emergencies, how that determination would be made, or what checks limit 
the Chair's power to declare an emergency.

Executive Order Compliance

    The National Women's Law Center comment questioned whether the NPRM 
adequately conformed to the provisions of Executive Order 12866, which 
requires agencies to assess the potential costs/benefits of a proposed 
rule and adopt an approach that produces the least total burden and 
most benefit to society. It contended that the Commission failed to 
adequately assess both the costs and benefits of the proposed rule.
    The Texas RioGrande Legal Aid & Disability Rights Texas noted that 
while the NPRM referenced Executive Orders 12866, 13536, 13609, 13771, 
and 13777, it failed to acknowledge how those mandates would be 
affected by subjecting significant guidance documents to review by the 
Office of Information and Regulatory Affairs (OIRA) and a 30-day notice 
and comment period.

The EEOC's Response to the Comments

Comment Period

    The Commission believes that the 30-day comment period provided 
sufficient time for the public to comment on the proposed rule. The 
NPRM was a straightforward codification of E.O. 13891 into regulatory 
text. The public was able to submit comments through multiple avenues 
(electronically, mail, and fax). As noted above, five substantive 
comment were received, containing extensive legal citations and as many 
as 10 pages and 12 footnotes, which indicates that the comment period 
was sufficient for the public to provide detailed substantive comments.

Guidance Disclaimer

    The disclaimer language in the NRPM is taken nearly verbatim from 
OMB's implementing memorandum M-20-02. The disclaimer informs the 
public regarding the legal effect of the Commission's guidance 
documents and does not interfere with a court's ability to find that 
the guidance has the ``power to persuade.'' Skidmore, 323 U.S. at 139.

Petition

    The petition language of proposed Sec.  1695.7 is modeled after the 
Commission's regulations for the issuance, amendment, or repeal of 
rules contained in 29 CFR 1601.35 and 1601.36. These provisions were 
first established on October 14, 1977 and amended twice, on August 4, 
1989 and January 21, 2009. As the final rule states, handling these 
petitions will follow the agency's usual procedures, which have existed 
for more than four decades.
    Regarding petitions denied without requiring a response, the 
Commission does occasionally receive comments that are irrelevant and 
unfit for a response. Indeed, four of the nine comments received for 
the NPRM were not responsive to the issues raised in it. Substantive 
petitions will be defined broadly and considered on their merits.
    The Commission will not specify in the rule that all petitions it 
receives will be published. Doing so would infringe on the Commission's 
internal deliberations and deliberative process and be inconsistent 
with the Commission's approach to handling petitions for rulemaking 
under Sec. Sec.  1601.35 and 1601.36.

Emergency Exception

    Commenters' objections regarding the narrow emergency exception of 
proposed Sec.  1695.4(c) are misplaced. Proposed Sec.  1695.4(c) merely 
allows the Chair to bypass OIRA's review of a ``significant guidance'' 
determination and allow guidance to be issued on an emergency basis. 
The determination would, however, be reviewed later.
    In similar manner, the emergency exception of proposed Sec.  
1695.2(d) only waives the five-day review period for Commissioners to 
review a document that ``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.'' Commission procedures already allow the Chair to approve 
such guidance without a Commission vote.

Executive Order Compliance

    The National Women's Law Center challenged whether the Commission 
assessed both the costs and benefits of the proposed rule. In response, 
the Commission affirms that it complied with section 1(b)(6) of 
Executive Order 12866, which requires each agency to assess the costs 
and benefits of an intended regulation (recognizing that these can be 
difficult to quantify) and adopt a regulation only when the benefits 
justify its costs.
    The final rule is focused solely on the Commission's internal 
procedures for issuing guidance and imposes no direct costs on any 
third parties. The rule does not prevent the Commission from issuing 
guidance and will ensure that the guidance the Commission does issue: 
Clearly states its legal effect, when necessary has been subject to 
public input, can be found by the public, and is overall legally and 
economically sound. All of these are benefits to both employers and 
employees, as well as the public at large.
    The Texas RioGrande Legal Aid & Disability Rights Texas alleged 
that the Commission failed to acknowledge how the NPRM would affect the 
requirements of Executive Orders 12866, 13536, 13609, 13771, and 13777, 
since they subject significant guidance documents to review by OIRA and 
require a 30-day notice and comment period. Given that OIRA review and 
public comment procedures already exist for Commission regulations, the 
addition of a relatively few significant guidance documents to the 
existing system will not be overly burdensome.

Determination

    After considering all responsive comments, the Commission has 
determined that this final rule will adopt the language as proposed in 
the NPRM without change, except for a non-substantive change in Sec.  
1695.1(a) and including that the Chair must also inform other 
Commissioners in Sec.  1695.4(c).\1\ The final rule adopts the 
requirements of E.O. 13891 and OMB M-20-02 into the Commission's 
processes and will further E.O. 13891's important goal of improving the 
Commission's guidance documents. As noted above, independent of E.O. 
13891, the Commission believes that the procedures described in this 
final rule are good policy that will improve its guidance documents. As 
discussed above, the comments have not provided

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compelling reasons to adjust what the Commission initially proposed. 
Therefore, other than a minor stylistic change in Sec.  1695.1(a) and 
adding that the Chair must inform Commissioners as well in Sec.  
1695.4(c), the Commission adopts as a final rule the language proposed 
in the NPRM.
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    \1\ In Sec.  1695.1(a) the Commission is making a stylistic 
change to the proposed language by adding ``and'' prior to 
``advisories.'' Section 1695.4(c) discusses when the Chair can avoid 
the normal review procedures outlined in this rule due to 
emergencies, statutory deadlines, or court orders. As originally 
proposed, Sec.  1695.4(c) only stated that the Chair had to inform 
OIRA, but in the final rule, the Commission is adding that all 
Commissioners must also be notified to ensure that all Commissioners 
are fully aware that the Commission will not be going through normal 
review procedures.
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Regulatory Procedures

Executive Order 12866

    This rule will govern the internal practices of the Commission. 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. This 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 rule 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 internal Commission procedure. To 
the extent that this rule does affect small entities, it provides free 
access to all EEOC guidance documents. 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 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.\2\ It is strictly internal, and does 
not impose mandates on any entity outside the Commission. Indeed, the 
rule's advance notice and comment requirements give small governments a 
greater opportunity to voice their concerns and have them addressed 
before documents are finalized. In consequence, it is not anticipated 
to significantly or uniquely affect small government. In consequence, 
no actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.
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    \2\ The Unfunded Mandates Reform Act of 1995 adopts the term 
``small governments'' from 5 U.S.C. 601(5): ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.''
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Congressional Review Act

    While this action concerns agency procedure, it 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 
continue to 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
For the reasons set forth in the preamble, the Equal Employment 
Opportunity Commission amends 29 CFR chapter XIV by adding part 1695 to 
read as follows:

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: 5 U.S.C. 553, 42 U.S.C. 2000e-12, 29 U.S.C. 201 et 
seq., 29 U.S.C. 628, 42 U.S.C. 12116, 42 U.S.C. 2000ff-10; 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, and advisories that set forth 
for the first time a new regulatory policy. It may also include 
equivalent video, audio, and web-based formats. The 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

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    (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. (1) Significant guidance 
document means a guidance document that will be disseminated to 
regulated entities or the general public and that may reasonably be 
anticipated:
    (i) 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;
    (ii) To create serious inconsistency or otherwise interfere with an 
action taken or planned by another Federal agency;
    (iii) To alter materially the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (iv) 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.
    (2) 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 language 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.


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 Sec.  1695.5.
    (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 and all Commissioners as soon as possible 
and, to the extent practicable, comply with the requirements of this 
part 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

[[Page 69172]]

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. 2020-22542 Filed 10-30-20; 8:45 am]
BILLING CODE 6570-01-P