Administrative Guidance Procedures
| Published date | 28 May 2020 |
| Citation | 85 FR 31978 |
| Record Number | 2020-09353 |
| Section | Rules and Regulations |
| Court | National Archives And Records Administration |
Federal Register, Volume 85 Issue 103 (Thursday, May 28, 2020)
[Federal Register Volume 85, Number 103 (Thursday, May 28, 2020)]
[Rules and Regulations]
[Pages 31978-31981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09353]
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1213
[FDMS No. NARA-20-0009; Agency No. NARA-2020-03f4]
RIN 3095-AC04
Administrative Guidance Procedures
AGENCY: National Archives and Records Administration (NARA).
ACTION: Final rule.
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SUMMARY: This rule codifies our policies and procedures for reviewing
and clearing administrative guidance documents.
DATES: Effective July 7, 2020, unless we receive adverse comments by
June 29, 2020 that warrant revising or rescinding this rulemaking.
ADDRESSES: You may submit comments, identified by RIN 3095-AC04, by
either of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Search for RIN 3095-AC04 and follow the site's instructions for
submitting comments.
Mail (for paper, flash drive, or CD-ROM submissions.
Include RIN 3095-AC04 on the submission): National Archives and Records
Administration; Regulation Comments Desk, Suite 4100; 8601 Adelphi
Road; College Park, MD 20740-6001.
We may publish any comments we receive without changes, including
any personal information you include.
FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, Regulatory and
External Policy Program Manager, by email at
[email protected], or by telephone at 301.837.3151.
SUPPLEMENTARY INFORMATION: This rule codifies internal policies and
procedures on developing, reviewing, and clearing guidance documents,
which ensure that all guidance documents receive appropriate review
before we issue them. This rule also responds to Executive Order 13891,
Promoting the Rule of Law Through Improved Agency Guidance Documents
(October 9, 2019), which requires Federal agencies to issue final
regulations, or amend existing regulations as necessary, to set forth
processes and procedures for issuing guidance documents. As a result,
this rule incorporates requirements from the E.O. that were not
otherwise in our internal procedures, primarily a requirement for a
centralized guidance portal on our website and a requirement that the
comment period for significant guidance documents be at least 30 days,
except when the agency for good cause finds that notice and public
comment are impracticable, unnecessary, or contrary to the public
interest.
The procedures contained in this rule apply to all guidance
documents. We define guidance documents as established by OMB and the
E.O.: Any statement we make of agency policy or interpretation
concerning a statute, regulation, or technical matter within our
jurisdiction that we intend to have general applicability and future
effect on the behavior of regulated parties, but which we do not intend
to have the force or effect of law in its own right on non-Governmental
regulated parties, and for which a statute does not otherwise require
us to follow the rulemaking procedures of the Administrative Procedure
Act.
We review guidance documents before we issue them so they are
written in plain language and do not impose any substantive
requirements above and
[[Page 31979]]
beyond statute, regulation, or other authority (such as an executive
order). Although we have in the past complied with the requirements of
the Administrative Procedure Act with regard to the content of our
guidance documents and required procedures, we are now incorporating
additional steps to show this compliance, as required by the E.O. and
OMB's implementing memorandum (OMB M-20-02). This includes labeling
each guidance document with a clear and prominent statement that the
contents of the guidance document do not have the force and effect of
law on the public and are not meant to bind the public beyond what is
already required in a law, regulation, or other authority. This
regulation also addresses significant guidance documents and their
potential to, in some cases, have an economic impact on the public. We
conduct a good faith cost assessment to determine economic impact on
the public where possible, and submit significant guidance to OMB for
review before providing informal notice-and-comment opportunity for the
public.
Regulatory Analysis
Administrative Procedure
Under the Administrative Procedure Act, an agency may waive the
normal notice and comment procedures if the action is a rule of agency
organization, procedure, or practice. See 5 U.S.C. 553(b)(3)(A). Since
this rule incorporates internal procedures about our administrative
procedures into the Code of Federal Regulations, notice and comment are
not necessary.
Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563, Improving Regulation and Regulation Review
The Office of Management and Budget (OMB) has reviewed this
rulemaking and determined it is not ``significant'' under section 3(f)
of Executive Order 12866. It is not significant because it is a rule of
agency procedure and practice, describing our procedures for
promulgating and processing guidance documents, and we do not
anticipate it having an economic impact on the public. It will help
ensure transparency, robust public participation, and the quality and
fairness of administrative actions.
Regulatory Flexibility Act (5 U.S.C. 601, et seq.)
This requirement does not apply if the agency certifies that the
rulemaking will not, if promulgated, have a significant economic impact
on a substantial number of small entities (5 U.S.C. 603). We certify,
after review and analysis, that this rulemaking will not have a
significant adverse economic impact on small entities.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.)
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.)
requires that agencies consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from OMB for each
collection of information we conduct, sponsor, or require through
regulations. There are no information collection requirements
associated with this rule.
Executive Order 13132, Federalism
Executive Order 13132 requires agencies to ensure state and local
officials have the opportunity for meaningful and timely input when
developing regulatory policies that may have a substantial, direct
effect on the states, on the relationship between the Federal
Government and the states, or on the distribution of power and
responsibilities among the various levels of government. If the effects
of the rule on state and local governments are sufficiently
substantial, the agency must prepare a Federal assessment to assist
senior policy makers. This rulemaking will not have any effects on
state and local governments within the meaning of the E.O. Therefore,
no Federalism assessment is required.
Executive Order 13771, Reducing Regulation and Controlling Regulatory
Costs
Review under E.O. 13771 seeks to reduce Federal regulations that
impose private expenditures in order to comply with them, and to
control those costs in any such regulations. OMB has reviewed this
rulemaking and determined that it is exempt from E.O. 13771
requirements. This rulemaking is exempt because it is not significant
under E.O. 12866 and because it is a rule of agency procedure and
practice.
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4; 2 U.S.C. 1532)
The Unfunded Mandates Reform Act requires that agencies determine
whether any Federal mandate in the rulemaking may result in state,
local, and tribal governments, in the aggregate, or the private sector,
expending $100 million in any one year. This rule does not contain a
Federal mandate that may result in such an expenditure.
List of Subjects in 36 CFR Part 1213
Administrative procedure, Agency administration, Agency guidance,
Public notice and comment.
0
For the reasons discussed in the premable, NARA adds part 1213 as
follows:
PART 1213--AGENCY GUIDANCE PROCEDURES
Sec.
1213.1 Scope.
1213.2 Definitions.
1213.4 Requirements for review and clearance.
1213.6 Public access to guidance documents.
1213.8 Significant guidance.
1213.10 Petitions for guidance.
1213.12 Rescinded guidance.
1213.14 Exigent circumstances.
1213.16 No judicial review or enforceable rights.
Authority: 44 U.S.C. 2104(a).
Sec. 1213.1 Scope.
(a) This part prescribes general procedures that apply to guidance
documents NARA and its components issue after April 30, 2020, and to
all NARA employees and contractors involved in all phases of developing
and issuing policy and guidance.
(b) This part does not apply to:
(1) Regulations; although some regulations are subject to
rulemaking requirements under 5 U.S.C. 553(a), they do not constitute
guidance, so are not covered by this rule. In addition, this rule does
not apply to regulations exempt from rulemaking requirements under 5
U.S.C. 553(a) and regulations of agency organization, procedure, or
practice;
(2) Decisions of agency adjudications under 5 U.S.C. 554 or similar
statutory provisions;
(3) Internal executive branch legal advice or legal advisory
opinions addressed to executive branch officials;
(4) Agency statements of specific applicability, including advisory
or legal opinions directed to particular parties about circumstance-
specific questions (e.g., case or investigatory letters responding to
complaints, warning letters), notices regarding particular locations or
facilities (e.g., guidance pertaining to using, operating, or
controlling a Government facility or property), and correspondence with
individual people or entities (e.g., congressional correspondence),
except documents ostensibly directed to a particular party but designed
to guide the conduct of the broader regulated parties;
[[Page 31980]]
(5) Legal briefs, other court filings, or positions taken in
litigation or enforcement actions;
(6) Agency 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,
editorials, media interviews, press materials, or congressional
testimony that do not set forth for the first time a new regulatory
policy or guidance;
(7) Guidance pertaining to military or foreign affairs functions;
(8) Grant solicitations and awards;
(9) Contract solicitations and awards; or
(10) Purely internal agency policies or guidance directed solely to
NARA employees or contractors or to other Federal agencies that we do
not intend to have substantial future effect on the behavior of
regulated parties.
Sec. 1213.2 Definitions.
(a) Guidance or guidance document means any statement of agency
policy or interpretation concerning a statute, regulation, or technical
matter within our jurisdiction that we intend to have general
applicability and future effect on the behavior of regulated parties,
but which we do not intend to have the force or effect of law in its
own right on non-Governmental regulated parties, and for which we are
not otherwise required by statute to satisfy the rulemaking procedures
in 5 U.S.C. 553 or 5 U.S.C. 556. The term is not confined to formal
written documents; guidance may come in a variety of forms, including
(but not limited to) letters, memoranda, circulars, bulletins,
advisories, notices, handbooks and manuals, and may include video,
audio, and web-based formats. See OMB Bulletin 07-02, Agency Good
Guidance Practices, 72 FR 3432, 3434, 3439 (January 25, 2007) (``OMB
Good Guidance Bulletin'').
(b) Significant guidance document means a guidance document that we
reasonably anticipate will:
(1) 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) Create serious inconsistency or otherwise interfere with an
action another Federal agency takes or plans;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of those who
receive them; or
(4) 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.
Sec. 1213.4 Requirements for review and clearance.
(a) NARA's regulatory office must review and clear, according to
this subpart, all NARA guidance documents before we issue them.
(b) The regulatory office ensures that each guidance document
satisfies the following requirements:
(1) It complies with relevant statutes and regulations, and other
applicable authorities;
(2) It identifies or includes:
(i) The term ``guidance'' or its functional equivalent;
(ii) The issuing office's name;
(iii) A unique agency identifier, according to naming conventions
we establish, and a z-RIN, if applicable;
(iv) A concise title;
(iv) The issuing or effective date;
(v) A notice about the guidance document's force and effect that is
consistent with OMB M-2020-02, Q20;
(vi) An indicator of whether the guidance revises or replaces any
previously issued guidance and, if so, sufficient information to
identify the previously issued guidance; and
(vii) Appropriate citations to applicable statutes, regulations,
and other authorities;
(3) It is consistent with NARA policies, guidance, strategic
initiatives, and other authorities, is written in plain and
understandable English, and meets other guidance and policy analysis
factors; and
(4) It avoids using mandatory language, such as ``shall,''
``must,'' or ``required,'' unless the language is describing an
established statutory or regulatory requirement or is addressed to
agency staff or other Federal employees and will not foreclose our
ability to consider positions advanced by any affected private parties.
(c) The guidance document must also either contain or be
accompanied by an appropriate topic keyword and a short summary of the
subject matter covered in the guidance document, for use on the
guidance portal.
(d) The regulatory office also assesses whether the guidance
document constitutes significant guidance and works with the submitting
office to make a good faith cost estimate, as applicable, in accordance
with Sec. 1213.8(a). If we determine that a guidance document might be
significant, the regulatory office coordinates with OMB's Office of
Information and Regulatory Affairs (OIRA), as outlined in Sec.
1213.8(d).
(e) We also assess whether the guidance document might be otherwise
important to the agency's interests, if we reasonably anticipate that
it might: Relate to a major program, policy, or activity, or a high-
profile issue involving the agency or its interests; involve one of
NARA's top policy priorities; garner significant press, congressional,
or other attention; or raise significant questions or concerns from
constituencies such as committees of Congress, states or Indian tribes,
the White House or other departments of the executive branch, courts,
public interest groups, or leading representatives of industry. When
appropriate, we may determine that a particular guidance document that
is otherwise of importance to the agency's interests be subject to the
informal notice-and-comment procedures described in Sec. 1213.8(f).
(f) The regulatory office submits guidance documents we determine
may be significant to OIRA for significance determinations, before
clearing the submitting office to issue them.
(f) When we issue a guidance document, we post it on our
centralized guidance portal (see Sec. 1213.6(a)).
Sec. 1213.6 Public access to guidance documents.
(a) We post the cleared document on our centralized guidance portal
at www.archives.gov/guidance. The portal contains a searchable, indexed
database of our various kinds of guidance along with links to each
document and an agency-unique identifier, title, date issued, z-RIN, if
applicable, topic keywords, brief summary, date added to the portal,
and any status information (for example, that it supersedes a previous
guidance document). All guidance currently in effect (including
guidance originally issued before April 30, 2020) must appear on the
portal; if it does not, it is deemed rescinded and without any effect.
(b) The guidance portal notes that guidance documents lack the
force and effect of law on the public, except as authorized by law,
executive order, or regulation or as incorporated into a contract, and
that the guidance is not legally binding on the public, except as
established by such law, regulation, or contract. Each guidance
document and web page that contains a listing of guidance must also
include an appropriate notice about the force and effect of the
guidance.
(c) The guidance portal also includes instructions for how the
public can comment on guidance documents that
[[Page 31981]]
are subject to the informal notice-and-comment procedures described in
Sec. 1213.8 and to submit requests that we issue, reconsider, modify,
or rescind guidance documents, in accordance with Sec. 1213.10. It
also provides contact information for the public to submit complaints
that an office is not following the requirements of OMB's Good Guidance
Bulletin or is improperly treating a guidance document as a requirement
binding on the public.
Sec. 1213.8 Significant guidance.
(a) Good faith cost estimates. Even though not legally binding on
the public, some agency guidance may result in a substantial economic
impact on the public. For example, the guidance's existence may induce
private parties to alter their conduct to conform to recommended
standards or practices, thereby incurring costs beyond the costs of
complying with existing statutes, regulations, and other authorities.
While it may be difficult to predict with precision the economic impact
of voluntary guidance on the public, we, to the extent practicable,
make a good faith effort to estimate the likely economic cost impact on
the public, to determine whether the document might be significant.
(b) Regulatory impact analyses. When we, or OIRA, determine that a
guidance document will have an economically significant impact on the
public, we conduct and publish a regulatory impact analysis of the sort
that would accompany an economically significant rulemaking, to the
extent reasonably possible.
(c) Excluded guidance. Significant guidance documents do not
include the categories of documents excluded by Sec. 1213.1(b) or any
other category of guidance documents the regulatory office exempts in
writing in consultation with OIRA.
(d) OIRA review of significant guidance. If OIRA designates a
guidance document as significant or economically significant, we submit
it to OIRA for review under E.O. 12866 before we issue it, as with
regulations; and we process significant guidance in compliance with the
applicable requirements for regulations or rules, including significant
regulatory actions, set forth in E.O. 12866, E.O. 13563, E.O. 13609,
E.O. 13771, and E.O. 13777.
(e) Signature or approval. The Archivist of the United States or a
senior executive designee signs or approves significant guidance.
(f) Informal notice-and-comment procedures. Except as outlined in
paragraph (g) of this section, we subject all proposed guidance
documents OIRA determines to be significant to the following informal
notice-and-comment procedures. We publish a notice in the Federal
Register announcing that a draft of the proposed guidance document is
publicly available and where, either post the draft guidance document
on our guidance portal or on regulations.gov in a docket with the
notice (depending on the nature, size, and scope of the guidance),
invite public comment on the draft document for a minimum of 30 days,
and prepare and post a public response to major concerns raised in the
comments, as appropriate, on our guidance portal or in the docket on
regulations.gov (whichever location we used to post the draft
guidance), either before or when we issue the guidance document.
(g) Exceptions to notice-and-comment procedures. The requirements
of paragraph (f) of this section do not apply to any significant
guidance document or categories of significant guidance documents for
which we find, in consultation with OIRA, good cause that notice and
public comments are impracticable, unnecessary, or contrary to the
public interest (and we will incorporate the finding of good cause and
a brief statement of reasons in the guidance).
Sec. 1213.10 Petitions for guidance.
(a) Any person may petition that we issue, reconsider, modify, or
rescind a particular guidance document by using the procedures
described here and on our guidance portal at www.archives.gov/guidance.
(b) Submit your petition using the contact information and method
noted on the guidance portal, which includes an email address or web
portal for submitting electronic petitions, a mailing address for
submitting hard copy petitions, and the office responsible for
coordinating the request. You must submit your petition through one of
these means, and the petition must:
(1) Describe the nature of the request and set out the text or
substance of the guidance you are requesting or that you wish us to
reconsider, modify, or rescind;
(2) Explain your interest in the action you are requesting; and
(3) Contain any information and arguments you have to support the
action you are seeking.
(c) We will review your request and make a decision whether to
grant the request or deny it in whole or in part. We will provide you
with a response to your request and a status update or our decision
within 90 days after we receive the petition, if you provide email or
mail contact information.
Sec. 1213.14 Rescinded guidance.
We may not cite, use, or rely on guidance documents that we have
rescinded, except to establish historical facts.
Sec. 1213.16 Exigent circumstances.
In emergency situations or when we are required by statutory
deadline, court order, or other exigent circumstances to act more
quickly than normal review procedures allow, we notify OIRA as soon as
possible and, to the extent practicable, comply with the requirements
of this subpart at the earliest opportunity. Whenever practicable, we
permit sufficient time to comply with the procedures in this subpart.
Sec. 1213.18 No judicial review or enforceable rights.
We intend this part to improve our internal management. As a
result, it is for the use of NARA personnel only and we do not intend
it to, nor does it, 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.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2020-09353 Filed 5-27-20; 8:45 am]
BILLING CODE 7515-01-P
