Procedural Regulations for Issuing Guidance
| Published date | 02 November 2020 |
| Citation | 85 FR 69167 |
| Record Number | 2020-22542 |
| Section | Rules and Regulations |
| Court | Equal Employment Opportunity Commission |
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Act (21 U.S.C. 823(g)(2)(G)(iv)) who is
clinical nurse specialist, certified
registered nurse anesthetist, or certified
nurse midwife. * * *
* * * * *
(iii) * * *
(B) The applicable number is—
(1) 100 if not sooner than 1 year after
the date on which the practitioner
submitted the initial notification, the
practitioner submits a second
notification to the Secretary of Health
and Human Services of the need and
intent of the practitioner to treat up to
100 patients;
(2) 100 if the practitioner holds
additional credentialing, as defined in
42 CFR 8.2;
(3) 100 if the practitioner provides
medication-assisted treatment using
covered medications (as such terms are
defined in 42 CFR 8.615) in a qualified
practice setting (as described in 42 CFR
8.615); and
(4) 275 if the practitioner meets the
requirements specified in 42 CFR 8.610
through 8.655.
* * * * *
PART 1306—PRESCRIPTIONS
■3. The authority citation for 21 CFR
part 1306 is revised to read as follows:
Authority: 21 U.S.C. 821, 823, 829, 829a,
831, 871(b) unless otherwise noted.
■4. In § 1306.04, add paragraph (d) to
read as follows:
§ 1306.04 Purpose of issue of prescription.
* * * * *
(d) A prescription may be issued by
a qualifying practitioner, as defined in
section 303(g)(2)G)(iii) of the Act (21
U.S.C. 823(g)(2)(G)(iii), in accordance
with § 1306.05 for a Schedule III, IV, or
V controlled substance for the purpose
of maintenance or detoxification
treatment for the purposes of
administration in accordance with
section 309A of the Act (21 U.S.C. 829a)
and § 1306.07(f). Such prescription
issued by a qualifying practitioner shall
not be used to supply any practitioner
with a stock of controlled substances for
the purpose of general dispensing to
patients.
■5. In § 1306.07, add a reserved
paragraph (e) and paragraph (f) to read
as follows:
§ 1306.07 Administering or dispensing of
narcotic drugs
* * * * *
(f) Notwithstanding the definition of
dispense under section 102(10) of the
Act (21 U.S.C 802(10)), a pharmacy may
deliver a controlled substance to a
practitioner, pursuant to a prescription
that meets the requirements under
§ 1306.04 for the purpose of
administering the controlled substance
by the practitioner if:
(1) The controlled substance is
delivered by the pharmacy to the
prescribing practitioner or the
practitioner administering the
controlled substance, as applicable, at
the location, listed on the practitioner’s
certificate of registration;
(2) The controlled substance is to be
administered for the purpose of
maintenance or detoxification treatment
under section 303(g)(2)(G)(iii) of the Act
(21 U.S.C. 823(g)(2)(G)(iii)); and
(i) The practitioner who issued the
prescription is a qualifying practitioner
as defined in section 303(g) of the Act
(21 U.S.C. 823(g)); and
(ii) The controlled substance is to be
administered by injection or
implantation;
(3) The pharmacy and the practitioner
are authorized to conduct such activities
specified in this paragraph (f) under the
law of the State in which such activities
take place;
(4) The prescription is not issued to
supply any practitioner with a stock of
controlled substances for the purpose of
general dispensing to patients;
(5) The controlled substance is to be
administered only to the patient named
on the prescription not later than 14
days after the date of receipt of the
controlled substance by the practitioner;
and
(6) Notwithstanding any exceptions
under section 307 of the Act (21 U.S.C.
827), the prescribing practitioner, and
the practitioner administering the
controlled substance, as applicable,
shall maintain complete and accurate
records of all controlled substances
delivered, received, administered, or
otherwise disposed of, under this
paragraph (f), including the persons to
whom the controlled substances were
delivered and such other information as
may be required under this chapter.
Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020–23813 Filed 10–29–20; 4:15 pm]
BILLING CODE 4410–09–P
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
29 CFR Part 1695
RIN 3046–AB18
Procedural Regulations for Issuing
Guidance
AGENCY
: Equal Employment
Opportunity Commission.
ACTION
: Final rule.
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.carter@eeoc.gov.
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
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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 §§ 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 § 1695.7 of the rulemaking
is mandated by section 4(a) of Executive
Order 13891. The requirement in
§ 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
§ 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.
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 § 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 § 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
§ 1695.6, noting that the Commission
has not always solicited public
comments for guidance. It further
supported the petition provisions of
proposed § 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 § 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 § 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
§ 1695.7(d) that allowed a petition to be
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1
In §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, §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.
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
§§ 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
§ 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
§§ 1601.35 and 1601.36.
Emergency Exception
Commenters’ objections regarding the
narrow emergency exception of
proposed § 1695.4(c) are misplaced.
Proposed § 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 § 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 § 1695.1(a) and
including that the Chair must also
inform other Commissioners in
§ 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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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.’’
compelling reasons to adjust what the
Commission initially proposed.
Therefore, other than a minor stylistic
change in § 1695.1(a) and adding that
the Chair must inform Commissioners
as well in § 1695.4(c), the Commission
adopts as a final rule the language
proposed in the NPRM.
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.
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.
■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.
§ 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, 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).
§ 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.
§ 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.).
§ 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
§ 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.
§ 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.
§ 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
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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’’).
§ 1695.7 Petitions.
(a) Any interested person may
petition the Commission, in writing, for
the issuance, amendment, or repeal of a
guidance. Such petition shall state the
guidance, regulation, or rule, together
with a statement of grounds in support
of such petition.
(b) Petitions may be filed with the
EEOC, Office of Executive Secretariat,
either electronically at the EEOC
guidance portal, http://www.eeoc.gov/
guidance, or in hard copy to U.S. Equal
Employment Opportunity Commission,
Executive Secretariat, 131 M Street NE,
Washington, DC 20507.
(c) Upon the filing of such petition,
the Commission shall consider the same
and may thereupon either grant or deny
the petition in whole or in part, conduct
an appropriate proceeding thereon, or
make other disposition of the petition.
(d) The Commission should respond
to all petitions in a timely manner, but
no later than 90 days after receipt of the
petition, as to how it intends to proceed.
Should the petition be denied in whole
or in part, prompt notice shall be given
of the denial, accompanied by a simple
statement of the grounds unless the
denial be self-explanatory.
(e) The issuance, amendment, or
repeal of a guidance in response to a
petition shall be considered by the
Commission pursuant to its regular
procedures.
§ 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 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
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2020–0600]
RIN 1625–AA00
Safety Zone; East River, New York, NY
AGENCY
: Coast Guard, DHS.
ACTION
: Temporary final rule.
SUMMARY
: The Coast Guard is
establishing a temporary safety zone for
navigable waters of the east channel of
the East River between the Roosevelt
Island Bridge (mile 6.4) and Gibbs Point
approximately 800 yards northeast of
the bridge. The safety zone is needed to
protect personnel, vessels, and the
marine environment from potential
hazards created by the installation of
one TriFrame with three attached
underwater turbines, associated cabling
and 4 to 6 Private Aids to Navigation.
When enforced, entry of vessels or
persons into this zone is prohibited
unless specifically authorized by the
Captain of the Port New York.
DATES
: This rule is effective without
actual notice from November 2, 2020
through 11:59 p.m., December 31, 2020.
For the purposes of enforcement, actual
notice will be used from 7 a.m., October
22, 2020 through November 2, 2020.
ADDRESSES
: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2020–
0600 in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rule.
FOR FURTHER INFORMATION CONTACT
: If
you have questions on this rule, call or
email Mr. Jeff Yunker, Sector New York
Waterways Management Division; U. S.
Coast Guard; telephone 718–354–4195,
email jeffrey.m.yunker@uscg.mil.
SUPPLEMENTARY INFORMATION
:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
PATON Private Aids to Navigation
RITE Roosevelt Island Tidal Energy Project
§ Section
U.S.C. United States Code
II. Background Information and
Regulatory History
The Coast Guard is issuing this
temporary rule without prior notice and
opportunity to comment pursuant to
authority under section 4(a) of the
Administrative Procedure Act (APA) (5
U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because the
contractor did not provide enough
notice that three barges, three tugs and
three work vessels will be conducting
heavy lift operations and installing 4 to
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