Guidance Procedures
| Published date | 16 October 2020 |
| Citation | 85 FR 65651 |
| Record Number | 2020-21393 |
| Section | Rules and Regulations |
| Court | Personnel Management Office |
Federal Register, Volume 85 Issue 201 (Friday, October 16, 2020)
[Federal Register Volume 85, Number 201 (Friday, October 16, 2020)]
[Rules and Regulations]
[Pages 65651-65653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21393]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 85, No. 201 / Friday, October 16, 2020 /
Rules and Regulations
[[Page 65651]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 120
RIN 3206-AO01
Guidance Procedures
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: This rule codifies the Office of Personnel Management's
policies and procedures for reviewing and clearing administrative
guidance documents.
DATES: Effective October 16, 2020.
FOR FURTHER INFORMATION CONTACT: Alexys Stanley by telephone at (202)
606-1000 or by email at [email protected].
SUPPLEMENTARY INFORMATION: This final rule, which adds part 120 to
Title 5 of the Code of Federal Regulations, is adopted pursuant to
Executive Order 13891, titled: ``Promoting the Rule of Law Through
Improved Agency Guidance Documents'' (84 FR 55235, October 9, 2019).
The Executive order requires Federal agencies to finalize regulations,
or amend existing regulations as necessary, to set forth processes and
procedures for issuing guidance documents. This final rule also
incorporates the requirements of Office of Management and Budget
Memorandum M-20-02 of October 31, 2019, which implements the Executive
order.
Waiver of Notice of Proposed Rule Making
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)(A). The Civil Service Reform Act's additional provisions for
rulemaking by OPM incorporate this exception. See 5 U.S.C. 1105. Since
this is not a substantive rule but a rule of agency procedure, notice
and comment are not necessary.
Executive Order 12866
This rule is not a significant regulatory action under E.O. 12866.
Executive Order 13771
This rule is not subject to the requirements of E.O. 13771 because
this rule is not a significant regulatory action under E.O. 12866 and
imposes only de minimis costs.
Regulatory Flexibility Act
This regulation will not have a significant economic impact on a
substantial number of small entities because it will apply only to
Federal agencies and employees.
Federalism
OPM has examined this rule in accordance with Executive Order
13132, Federalism, and has determined that this rule will not have any
negative impact on the rights, roles and responsibilities of State,
local, or tribal governments.
Civil Justice Reform
This regulation meets the applicable standard set forth in
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any year and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Paperwork Reduction Act Requirements
This rule does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act.
List of Subjects in 5 CFR Part 120
Administrative practice and procedure.
Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
For the reasons stated in the preamble, OPM amends title 5 of the
Code of Federal Regulations by adding part 120 as follows:
0
1. Add part 120 to read as follows:
PART 120--ADMINISTRATIVE GUIDANCE
Sec.
120.1 Purpose and scope.
120.2 Definitions applicable to this part.
120.3 Requirements for clearance.
120.4 Public access to guidance documents.
120.5 Definition of significant guidance document.
120.6 Procedure for guidance documents identified as
``significant''.
120.7 Notice-and-comment procedures.
120.8 Petitions to withdraw or modify guidance.
120.9 Rescinded guidance.
120.10 Exceptional circumstances.
120.11 Reports to Congress and GAO.
120.12 No judicial review or enforceable rights.
Authority: 5 U.S.C. 552(a)(1); E.O. 13891, 84 FR 55235.
Sec. 120.1 Purpose and scope.
(a) This part prescribes general procedures that apply to OPM
guidance documents.
(b) This part governs all OPM employees and contractors involved
with all phases of issuing guidance documents.
(c) This part applies to all OPM guidance documents in effect on or
after April 28, 2020.
Sec. 120.2 Definitions applicable to this part.
(a) Except as provided in paragraph (b) of this section, the term
guidance document means an agency statement of general applicability,
intended to have future effect on the behavior of regulated parties,
that sets forth a policy on a statutory, regulatory, or technical
issue, or an interpretation of a statute or regulation.
(b) The term guidance document does not include:
(1) Rules promulgated under 5 U.S.C. 553 (or similar statutory
provisions);
(2) Rules of agency organization, procedure, or practice that are
not anticipated to have substantial future effect on the behavior of
regulated parties or the public;
(3) Decisions of agency adjudications;
(4) Internal executive branch legal advice or legal opinions
addressed to executive branch officials;
(5) Agency statements of specific applicability, including advisory
or legal opinions directed to particular
[[Page 65652]]
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 the use, operation, or control of a Government facility
or property), and correspondence with individual persons or entities
(e.g., congressional correspondence), except documents ostensibly
directed to a particular party but designed to guide the conduct of the
broader regulated public;
(6) Legal briefs, other filings with a court or administrative
tribunal, records or communications produced in a legal proceeding, or
positions taken in litigation or enforcement actions;
(7) 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 a new regulatory policy;
(8) Guidance pertaining to military or foreign affairs functions,
or to a national security or homeland security function of the United
States (other than guidance documents involving procurement or the
import or export of non-defense articles and services), and any other
guidance when application of this order, or any part of this order,
would, in the judgment of the Director of OPM, undermine the national
security;
(9) Any action related to a criminal investigation or prosecution,
including undercover operations, or any civil enforcement action or
related investigation by the Department of Justice, including any
action related to a civil investigative demand under 18 U.S.C. 1968;
(10) Any investigation of misconduct by an agency employee or any
disciplinary, corrective, or employment action taken against an agency
employee;
(11) Grant solicitations and awards;
(12) Contract solicitations and awards;
(13) Agency documents that are not publicly disseminated, including
classified information, information subject to a statutory or
regulatory redisclosure restriction, privileged information, and
information exempt from disclosure under the Freedom of Information
Act;
(14) Purely internal agency policies or guidance directed solely to
OPM employees or contractors that are not anticipated to have
substantial future effect on the behavior of regulated parties or the
public; and
(15) Documents that are directed solely to other agencies (or
personnel of such agencies) and that are not anticipated to have
substantial future effect on the behavior of regulated parties or the
public, including the typical documents issued for government-wide use
by OPM.
(c) OMB means the Office of Management and Budget.
(d) OIRA means the Office of Information and Regulatory Affairs of
OMB.
Sec. 120.3 Requirements for clearance.
Except as described in Sec. 120.6(c), the Director of OPM may
delegate any function related to the review and clearance of guidance.
OPM's review and clearance of guidance shall ensure that each guidance
document proposed to be issued by OPM satisfies the following
requirements:
(a) The guidance document complies with all relevant statutes and
regulation (including any statutory deadlines for agency action);
(b) The guidance document identifies or includes:
(1) The term ``guidance'' or its functional equivalent;
(2) The issuing office name;
(3) A unique identifier, including, at a minimum, the date of
issuance, title of the document, and its regulatory identification
number (Z-RIN) in the case of a significant guidance document;
(4) The general topic, activity, persons, and/or entities to which
the guidance applies;
(5) Citations to applicable statutes and regulations;
(6) 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
(7) A concise summary of the guidance document's content;
(c) The guidance document avoids using mandatory language, such as
``shall,'' ``must,'' ``required,'' or ``requirement,'' unless it is
binding guidance by law or as incorporated in a contract, the language
is describing an established statutory or regulatory requirement, or
the language is addressed to agency staff or other Federal employees
and will not foreclose OPM's ability to consider positions advanced by
any affected private parties;
(d) The guidance document is written in plain and understandable
English; and
(e) The guidance document includes the following disclaimer
prominently: ``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 agency policies.'' When a
guidance document is binding because binding guidance is authorized by
law or because the guidance is incorporated into a contract, the
originating office should modify this disclaimer to reflect either of
those facts.
Sec. 120.4 Public access to guidance documents.
(a) OPM shall ensure all guidance documents in effect are on OPM's
Web portal in a single, searchable, indexed database, available to the
public.
(b) The Web portal will:
(1) Include an index with each guidance document's name, date of
issuance, date of posting, and unique agency identifier; if the
guidance document is a significant guidance document, its Z-RIN; the
general topic and a brief (1-2 sentence) summary of the guidance
document; and a hypertext link to the guidance document;
(2) Note that guidance documents lack the force and effect of law,
except as authorized by law or as incorporated into a contract;
(3) Note that OPM may not cite, use, or rely on any guidance that
is not posted except to establish historical facts unless OMB makes an
exception for particular guidance documents or categories of guidance
documents;
(4) Include a link to this part and to any Federal Register notice
referencing the Web portal;
(5) Explain how the public can request the withdrawal or
modification of an existing guidance document, including an email
address where electronic requests can be submitted, a mailing address
where hard copy requests can be submitted, and an office at the agency
responsible for coordinating such requests; and
(6) Include the information about proposed significant guidance
documents described in Sec. 120.7.
Sec. 120.5 Definition of significant guidance document.
(a) The term significant guidance document means a guidance
document that will be disseminated to regulated entities or the general
public and that may reasonably be anticipated:
(1) To lead to an annual effect on the economy of $100 million or
more or adversely affect in a material way the U.S. economy, a sector
of the U.S. economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities;
[[Page 65653]]
(2) To create serious inconsistency or otherwise interfere with an
action taken or planned by another Federal agency;
(3) To alter materially the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(4) To raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
E.O. 112866.
(b) The term significant guidance document does not include the
categories of documents excluded by Sec. 120.2 or any other category
of guidance documents exempted in writing by OPM in consultation with
OIRA.
Sec. 120.6 Procedure for guidance documents identified as
``significant.''
(a) OPM will make an initial, preliminary determination about a
guidance document's significance. Thereafter, OPM must submit the
guidance document to OIRA for its determination whether guidance is
significant guidance, unless the guidance is otherwise exempted from
such a determination by the Administrator of OIRA.
(b) Significant guidance documents, as determined by the
Administrator of OIRA, must be reviewed by OIRA under E.O. 12866 before
issuance; and must demonstrate 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. 113777.
(c) Significant guidance documents must be signed by the Director
of OPM.
Sec. 120.7 Notice-and-comment procedures.
(a) Except as provided in paragraph (b) of this section, all
proposed OPM guidance documents determined to be a ``significant
guidance document'' within the meaning of Sec. 120.5 shall be subject
to the following informal notice-and-comment procedures. OPM shall
publish notification in the Federal Register announcing that a draft of
the proposed guidance document is publicly available, shall post a link
to the Federal Register notice and the draft guidance document on its
guidance portal, shall invite public comment on the draft document for
a minimum of 30 days, and shall prepare and post a public response to
major concerns raised in the comments, as appropriate, on its guidance
Web portal, either before or when the guidance document is finalized
and issued.
(b) The requirements of paragraph (a) of this section will not
apply to any significant guidance document or categories of significant
guidance documents for which OPM finds good cause that notice and
public procedure thereon are impracticable, unnecessary, or contrary to
the public interest (and incorporates the finding of good cause and a
brief statement of reasons therefore in the guidance issued).
(c) Where appropriate, the originating office may recommend to the
Director of OPM that a particular guidance document that is otherwise
of importance to OPM's interests shall also be subject to the informal
notice-and-comment procedures described in paragraph (a) of this
section.
Sec. 120.8 Petitions to withdraw or modify guidance.
(a) Any person may petition OPM to withdraw or modify a particular
guidance document as specified by Sec. 120.4(b)(5).
(b) Any person may submit a petition to OPM requesting withdrawal
or modification of any effective guidance document by writing to OPM
Office of the Executive Secretariat at: [email protected], or U.S.
Office of Personnel Management Attn: Executive Secretariat 1900 E
Street NW, Washington, DC 220415.
(c) OPM will respond to all requests in a timely manner, but no
later than 90 days after receipt of the request.
Sec. 120.9 Rescinded guidance.
(a) In the absence of a petition, OPM may rescind a guidance
document on grounds that it is no longer accurate or necessary.
(b) If OPM rescinds a guidance document, the hyperlink to the
guidance document will be removed. The name, title, unique identifier,
and date of rescission will be listed on the guidance portal for at
least one year after rescission.
(c) No employee of OPM may cite, use, or rely on rescinded guidance
documents, except to establish historical facts, unless OMB makes an
exception for particular guidance documents or categories of guidance
documents.
Sec. 120.10 Exceptional circumstances.
(a) A guidance document may be exempted from the requirements of
section 120.6(b) or 120.7(a) by agreement of OPM and OIRA for reasons
of exigency, safety, health, or other compelling cause.
(b) In emergency situations or when OPM is required by statutory
deadline or court order to act more quickly than normal review
procedures allow, OPM will notify OIRA as soon as possible and, to the
extent practicable, shall comply with the requirements of this part at
the earliest opportunity. Wherever practicable, OPM should schedule its
proceedings to permit sufficient time to comply with the procedures set
forth in this part.
Sec. 120.11 Reports to Congress and GAO.
When OPM adopts final guidance constituting a ``rule'' under 5
U.S.C. 804, OPM will submit the reports to Congress and GAO and comply
with the procedures specified by 5 U.S.C. 801 (commonly known as the
Congressional Review Act).
Sec. 120.12 No judicial review or enforceable rights.
This part is intended to improve the internal management of OPM. As
such, it is for the use of OPM 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. 2020-21393 Filed 10-15-20; 8:45 am]
BILLING CODE 6325-38-P
