[Federal Register Volume 60, Number 169 (Thursday, August 31, 1995)]
[Proposed Rules]
[Pages 45388-45390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21654]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Ch. XIV
Older Workers Benefit Protection Act of 1990 (OWBPA)
AGENCY: Equal Employment Opportunity Commission (EEOC).
ACTION: Notice of Intent to form a Negotiated Rulemaking Advisory
Committee to Develop a Proposed Rule: Request for representation.
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SUMMARY: EEOC announces its intent to establish an OWBPA Negotiated
Rulemaking Advisory Committee (``the Committee'') under the Negotiated
Rulemaking Act (NRA), the Federal Advisory Committee Act (FACA), and
section 9 of the Age Discrimination in Employment Act of 1967, as
amended (ADEA), 29 U.S.C. 628, to negotiate issues associated with the
development of a Notice of Proposed Rulemaking (NPRM) on Title II of
OWBPA. The Committee will include representatives of the parties
interested in, or affected by, the outcome of the proposed rule. EEOC
requests that interested parties submit their requests for membership
on the Committee.
DATES: EEOC must receive written requests for membership by October 2,
1995.
ADDRESSES: All written requests for Committee membership, and any
comments on the rulemaking process, should be sent to: Executive
Secretariat, EEOC, 1801 L Street, NW., Washington, DC 20507.
FOR FURTHER INFORMATION CONTACT:
Joseph N. Cleary, Director, ADEA Division, Office of Legal Counsel,
EEOC, 1801 L Street, NW., Washington, DC 20507 (202) 663-4690.
SUPPLEMENTARY INFORMATION:
I. Background
Congress amended the ADEA in 1990 to clarify the prohibitions
against discrimination on the basis of age. In Title I of OWBPA,
Congress addressed discrimination in employee benefits. Title II
addressed waivers of rights and claims under the ADEA, amending section
7 of that Act by adding a new subsection (f). Title II expressly
provided that unsupervised waivers may be valid and enforceable under
the ADEA only if they meet certain enumerated requirements and are
knowing and voluntary waivers of rights. EEOC intends to engage in
rulemaking on certain Title II issues.
In light of the 1990 amendments to the ADEA, EEOC published an
Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register,
57 FR 10626 (March 27, 1992), seeking information from the public on
various issues under Titles I and II of OWBPA. In response to the
ANPRM, EEOC received approximately 40 comments, many of which presented
detailed analyses of Title II issues, raising the possibility that EEOC
should provide formal guidance on waivers of rights.
This Notice announces EEOC's intent to use negotiated rulemaking to
develop a proposed Title II rule. It also sets forth basic concepts of
negotiated rulemaking and outlines the criteria that EEOC expects to
use in selecting the Committee and conducting the rulemaking. This
Notice allows 30 days for interested parties to request appointment to
the Committee.
II. Negotiated Rulemaking in General
The Administrative Conference of the United States (ACUS) has
discussed why negotiated rulemaking may alleviate certain problems
associated with more traditional rulemaking procedures:
Experience indicates that if the parties in interest were to
work together to negotiate the text of a proposed rule, they might
be able in some circumstances to identify the major issues, gauge
their importance to the respective parties, identify the information
and data necessary to resolve the issues, and develop a rule that is
acceptable to the respective interests, all within the contours of
the substantive statute.
47 FR 30708 (June 18, 1982); 1 CFR 305.82-4.
There have been numerous effective uses of negotiated rulemaking
procedures by such agencies as the Environmental Protection Agency, the
Department of Transportation, and the Federal Aviation Administration.
EEOC believes that the use of negotiated rulemaking procedures will
meet the goals set out in the ACUS analysis, above, and adopts those
goals by reference.
III. Justification for Use of Negotiated Rulemaking
In selecting Title II of OWBPA as a subject for negotiated
rulemaking, EEOC has made the following determinations under criteria
set out in the NRA:
(1) There is a need for a rule;
(2) There are a limited number of identifiable interests that will
be significantly affected by the rule;
(3) There is a reasonable likelihood that a Committee can be
convened with a balanced representation of persons who:
(a) Can adequately represent the interests identified under
paragraph (2), above; and
(b) Are willing to negotiate in good faith to reach a consensus on
the proposed rule;
(4) There is a reasonable likelihood that the Committee will reach
a consensus on the proposed rule within a reasonable fixed period of
time;
(5) The procedure will not unreasonably delay the NPRM and the
issuance of a final rule;
(6) EEOC has adequate resources and is willing to commit those
resources, including technical assistance, to the Committee;
(7) EEOC, to the maximum extent possible consistent with its legal
obligations and the need by EEOC Commissioners to review any draft
rulemaking, will use the consensus of the Committee with respect to the
proposed rule as the basis for the NPRM.
EEOC will follow all requirements set out in the ADEA, the
Administrative
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Procedures Act (APA), or any other statute with regard to rulemaking,
including the need for a notice and comment period to permit members of
the public to present their concerns regarding the NPRM. Nothing herein
would deny Committee members the right to take part in the APA comment
process.
In the event that EEOC does not receive requests for representation
from a sufficient number of individuals or groups representing the
affected interests, EEOC reserves the right to undertake rulemaking
processes other than negotiated rulemaking.
IV. Issues for Negotiation
This list is for purposes of general notice only and is not
intended to be either an exclusive or a mandatory list of issues. EEOC
will work with the Committee to decide which of the issues listed, or
other issues not listed, will be negotiated in the negotiated
rulemaking process. EEOC welcomes comments from the public within the
next 30 days with regard to possible issues to be considered by the
Committee.
1. Section 7(f)(1)(F) of the ADEA mandates that an employee be
given either 21 days or 45 days to decide whether or not to sign a
waiver, depending upon whether the employer's action falls within the
requirements of section 7(f)(1)(H). Is it necessary to restart the 21
or 45 day period if (a) a material modification is made to the waiver
agreement and/or to the consideration offered by the employer; or (b)
any modification is made to the waiver agreement?
2. May the 21, 45, and 7 day periods set out in section 7 of the
ADEA be shortened by mutual consent of the parties? If so, what proof
is necessary to determine if the time shortening is voluntary on the
employee's part?
3. Section 7(f)(1)(H) of the ADEA contains notification
requirements ``if a waiver is requested in connection with an exit
incentive or other employment termination program offered to a group or
class of employees * * *'' Are the requirements in that section limited
to voluntary separation programs, or would the requirements apply also
to a waiver offered during an involuntary termination such as a
reduction in force?
4. How should EEOC define such terms appearing in section
7(f)(1)(H) as ``program'', ``class'', ``unit'', ``group'', ``job
classification'', and ``organizational unit''?
5. Does the ADEA permit an employer to satisfy the notification
requirements in section 7(f)(1)(H) by having the information available
for any interested employee in a central location, such as the
employer's personnel office, or is it necessary for an employer to
provide all relevant information to every affected employee?
6. What are the minimum requirements of ``knowing and voluntary''
where an employer and employee privately and independently settle a
charge that has been filed with the EEOC?
7. What is meant by the language in section 7(f)(1)(D) of the ADEA
allowing waivers ``only in exchange for consideration in addition to
anything of value to which the individual already is entitled''? May an
employer that has previously given benefits (such as severance pay)
without requiring a waiver of ADEA rights later change its policy or
practice to require a waiver in exchange for such benefits?
8. What is the legal status of the consideration given for a waiver
if EEOC finds that the waiver is invalid?
9. Is an employer required to offer more consideration for a waiver
of rights by a person who is age 40 or over than is offered to a person
under the age of 40?
V. Negotiation Procedures
The following proposed procedures and guidelines are based upon 5
U.S.C. 581 et seq., and would apply to EEOC's process. These procedures
and guidelines may be augmented or modified as a result of comments
received in response to this Notice of Intent or during the negotiation
process, within the parameters of applicable law.
A. Notice of Intent To Establish an OWBPA Negotiated Rulemaking
Advisory Committee
For the reasons stated in previous sections, EEOC announces its
intent to establish the Committee in accordance with the requirements
of FACA and the General Services Administration (GSA) guidelines at 41
CFR 101-6.10 et seq.
B. Committee Notice
After evaluating the comments and requests received pursuant to
this Notice, EEOC will issue a Committee Notice announcing the
establishment of the Committee and the membership of the Committee. The
Committee membership roster will be published in the Federal Register.
C. Interests Involved
(1) EEOC has tentatively identified the following interests as ones
that may wish to participate in the negotiations through their
representatives:
* Groups assisting older persons.
* Large and small employers.
* Labor organizations.
* State and local governments.
* Bar organizations.
* Institutions of higher education.
(2) One purpose of this Notice of Intent is to determine whether
the rulemaking would substantially affect any interests that are not
listed above. EEOC is willing to expand the list of affected interests
based upon comments received. EEOC believes that affected interests
should be represented on the Committee and that the Committee have
balanced representation.
D. Participants
The Committee is not likely to exceed 20 participants, including
EEOC's representatives on the Committee. If a smaller number of
participants can represent effectively the interests affected by the
rulemaking, EEOC will structure a smaller Committee.
It is expected that Committee members will have substantial
expertise in the technical aspects of Title II of OWBPA and the
concerns of employers and older employees with respect to rights and
obligations under the ADEA. Persons interested in being appointed as
members of the Committee should detail their experience and
qualifications, the interest(s) they wish to represent, and how those
interest(s) would be affected by the rule.
E. Good Faith Negotiation
Participants should be willing to negotiate in good faith in an
effort to reach an appropriate consensus on the issues involved in the
rulemaking.
F. Facilitators
The Federal Mediation and Conciliation Service will provide two
Facilitators for this rulemaking. Their role is to help the negotiation
process to run smoothly, assist participants reach consensus, chair the
actual negotiations, and determine the feasibility of negotiating
particular issues. Other duties may be added during the negotiating
process.
G. EEOC Representatives
The EEOC representatives will be full and active participants in
the consensus building negotiations. EEOC also will provide the
Committee with necessary support personnel and technical resources, to
the extent feasible.
H. Meeting Schedule
Once the Committee has been selected, EEOC will, after consultation
with the Committee members, publish in the Federal Register the date of
the first meeting. The first meeting will be held at EEOC Headquarters,
1801 L
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Street, NW., Washington, DC, and it is anticipated that all future
meetings will also be held at that address. At that first meeting, the
Committee will focus upon procedural matters and protocols, including
dates, times, and locations of future meetings; identification of the
principal issues for resolution; and a target date for the completion
of the NPRM.
In order to prevent delay in the preparation of guidance under
Title II of OWBPA, EEOC intends to terminate the Committee's activities
no later than 180 days after the date of the first meeting, unless
circumstances call for extending the deadline.
I. Committee Procedures
Committee meetings will be conducted in accordance with the
requirements of FACA, which provides for filing a Committee Charter
with GSA and appropriate Congressional committees, meetings open to the
public, filing of written statements by interested persons before or
after meetings, presentation of oral statements where time permits, and
retention of meeting records.
Committee meetings will be announced in the Federal Register. The
Committee will establish the detailed procedures for its meetings.
J. Records of Meetings
In accordance with FACA, EEOC will keep minutes of all Committee
meetings and will place these minutes in the public rulemaking docket.
K. Definition of Consensus
The goal of the negotiation process is ``unanimous concurrence
among the interests represented.'' 5 U.S.C. 582(2). EEOC expects
Committee members to establish their own working definition of the term
``consensus.''
Dated: August 28, 1995.
Gilbert F. Casellas,
Chairman.
[FR Doc. 95-21654 Filed 8-30-95; 8:45 am]
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