NASA Guidance Procedures
| Published date | 24 March 2020 |
| Citation | 85 FR 16541 |
| Record Number | 2020-05675 |
| Section | Rules and Regulations |
| Court | National Aeronautics And Space Administration |
Federal Register, Volume 85 Issue 57 (Tuesday, March 24, 2020)
[Federal Register Volume 85, Number 57 (Tuesday, March 24, 2020)]
[Rules and Regulations]
[Pages 16541-16544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05675]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Part 1204
[Document Number NASA-20-035; Docket Number-NASA-2020-0003]
RIN 2700-AE55
NASA Guidance Procedures
AGENCY: National Aeronautics and Space Administration.
ACTION: Final rule.
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SUMMARY: This final rule incorporates the National Aeronautics and
Space Administration's (NASA) existing internal policy and procedures
relating to the issuance of guidance documents into the Code of Federal
Regulations.
DATES: Effective: April 23, 2020.
FOR FURTHER INFORMATION CONTACT: Nanette Jennings, Directives and
Regulations Management, Mission Support Directorate, (202) 358-0819,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Executive Order 13891, Promoting the Rule of Law Through Improved
Agency Guidance Documents, requires agencies to finalize regulations to
set forth processes and procedures for issuing guidance documents to
include:
Requirements for each guidance document to clearly state
that it does not bind the public, except as authorized by law or as
incorporated into a contract.
Procedures for the public to petition for withdrawal or
modification of a particular guidance document, including a designation
of the officials to which the petition should be directed.
Provisions requiring significant guidance documents,
unless exempted for reasons of exigency, safety, health, or other
compelling cause as determined by NASA and the Office of Management and
Budget, Office of Information and Regulatory Affairs (OIRA)
Administrator, to undergo a 30-day public notice and comment period; be
approved on a non-delegable basis by the NASA Administrator; be
reviewed by OIRA; and comply with the applicable requirements for
guidance documents including significant regulatory actions.
This final rule also incorporates NASA's existing internal policy
and procedures, NASA Policy Directive (NPD) 1400.2, Publishing NASA
Documents in the Federal Register and Responding to Regulatory Actions,
into the Code of Federal Regulation (CFR) in response to the order. NPD
1400.2 establishes the Agency's policy, procedures, and
responsibilities for issuing guidance documents to ensure that the
required review and clearance is obtained before issuance and all
stages of the rulemaking process are followed.
II. Regulatory Analysis
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
This rule is not a significant regulatory action under Executive Order
12866.
Executive Order 13132--Federalism
Executive Order 13132 requires agencies to ensure meaningful and
timely input by state and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
states, on the relationship between the National Government and the
states, or on the distribution of power and responsibilities among the
various levels of government. This action has been analyzed in
accordance with the principles and criteria contained in the order, and
NASA has determined that this action will not have a substantial direct
effect or federalism implications on the states and would not preempt
any state law or regulation or affect the states' ability to discharge
traditional state governmental functions. Therefore, consultation with
the states is not necessary.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175. NASA has determined
that because this rulemaking does not significantly or uniquely affect
the communities of the Indian tribal governments or impose substantial
direct compliance costs on them, the funding and consultation
requirements of Executive Order 13175 does not apply.
Executive Order 13771--Reducing Regulations and Controlling Regulatory
Costs
This rule is not an E.O. 13771 regulatory action because this rule
is not significant under E.O. 12866.
Regulatory Flexibility Act
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Administrative Procedure Act
This final rule merely incorporates requirements of the order and
NASA's existing internal policy and procedures for issuing guidance
documents into the CFR. Therefore, in accordance with 5 U.S.C. 553, the
Administrator of NASA has concluded that there is good cause to publish
this rule without prior opportunity for public comment because the
action is of Agency
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organization, procedure, or practice. See 5 U.S.C 553(b)(3)(A).
Statutory Authority
Part 1204 is established under the National Aeronautics and Space
Act (Space Act). In accordance with 51 U.S.C. 20113(a), ``In the
performance of its functions, the Administration is authorized to make,
promulgate, issue, rescind, and amend rules and regulations governing
the manner of its operations and the exercise of the powers vested in
it by law.''
Paperwork Reduction Act
This rule does not contain an information collection requirement
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
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
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments.
List of Subjects in 14 CFR Part 1204
Administrative practice and procedure.
For reasons set forth in the preamble, and under the authority of
51 U.S.C. 20113, NASA is amending 14 CFR part 1204 as follows:
PART 1204--ADMINISTRATIVE AUTHORITY AND POLICY
0
1. Add subpart 3 to read as follows:
Subpart 3--NASA Guidance Documents
Sec.
1204.300 General.
1204.301 Review and clearance.
1204.302 Requirements for clearance.
1204.303 Public access to effective guidance documents.
1204.304 Good faith cost estimates.
1204.305 Approved procedures for guidance documents identified as
``significant'' or ``otherwise of importance to the NASA's
interests.''
1204.306 Definitions of ``significant guidance document'' and
guidance documents that are ``otherwise of importance to NASA's
interests.''
1204.307 Designation procedures.
1204.308 Notice-and-comment procedures.
1204.309 Petitions for guidance.
1204.310 Rescinded guidance.
1204.311 Exigent circumstances.
1204.312 Reports to Congress and the Government Accountability
Office (GAO).
204.313 No judicial review or enforceable rights.
Authority: 51 U.S.C. 20113.
Sec. 1204.300 General.
(a) This subpart governs all National Aeronautics and Space
Administration (NASA or Agency) employees and contractors involved with
all phases of issuing NASA guidance documents.
(b) Subject to the qualifications and exemptions contained in this
subpart, the procedures in this subpart apply to all guidance documents
issued by NASA after April 23, 2020.
(c) For purposes of this subpart, the term guidance document
includes any statement of Agency policy or interpretation concerning a
statute, regulation, or technical matter within the jurisdiction of the
Agency that is intended to have general applicability and future
effect, but which is not intended to have the force or effect of law 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; guidance may come in
a variety of forms, including (but not limited to) letters, memoranda,
circulars, bulletins, advisories, and may include video, audio, and
web-based formats. See Office of Management and Budget (OMB) Bulletin
07-02, ``Agency Good Guidance Practices,'' (``OMB Good Guidance
Bulletin'').
(d) This subpart does not apply to:
(1) Rules exempt from rulemaking requirements under 5 U.S.C.
553(a);
(2) Rules of Agency organization, procedure, or practice;
(3) Decisions of Agency adjudications under 5 U.S.C. 554 or similar
statutory provisions;
(4) Internal executive branch legal advice or legal advisory
opinions addressed to executive branch officials;
(5) 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 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 court filings, 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 for the first time a new regulatory
policy;
(8) Guidance pertaining to military or foreign affairs functions;
(9) Grant solicitations and awards;
(10) Contract solicitations and awards; or
(11) Purely internal Agency policies or guidance directed solely to
NASA employees or contractors or to other Federal agencies that are not
intended to have substantial future effect on the behavior of regulated
parties.
Sec. 1204.301 Review and clearance.
All NASA guidance documents, as defined in Sec. 1204.300(c),
require review and clearance in accordance with this subpart.
(a) Guidance proposed by a NASA responsible office must be reviewed
by the head of the relevant legal practice group within NASA's Office
of General Counsel (OGC) and cleared by the General Counsel.
(b) Additional reviews by other NASA offices are also conducted and
are described in NPD 1400.2, Publishing NASA Documents in the Federal
Register and Responding to Regulatory Actions, https://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPD&c=1400&s=2E.
Sec. 1204.302 Requirements for clearance.
NASA's review and clearance of guidance shall ensure that each
guidance document proposed by a NASA responsible office 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 NASA responsible office name;
(3) A unique identifier, including, at a minimum, the date of
issuance and title of the document and its regulatory identification
number (RIN), if applicable;
(4) The activity 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
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(7) A short summary of the subject matter covered in the guidance
document at the top of the document;
(c) The guidance document avoids using mandatory language, such as
``shall,'' ``must,'' ``required,'' or ``requirement,'' unless the
language is describing an established statutory or regulatory
requirement or is addressed to NASA employees and will not foreclose
NASA's consideration of positions advanced by affected private parties;
(d) The guidance document is written in plain and understandable
English; and
(e) All guidance documents include a clear and prominent statement
declaring that the contents of the document do not have the force and
effect of law, are not meant to bind the public in any way, and the
document is intended only to provide clarity to the public regarding
existing requirements under the law or NASA's policies.
Sec. 1204.303 Public access to effective guidance documents.
The NASA responsible office issuing guidance documents shall:
(a) Ensure all effective guidance documents, identified by a unique
identifier which includes, at a minimum, the document's title and date
of issuance or revision and its RIN, if applicable, are on its website
in a single, searchable, indexed database, and available to the public
in accordance with Sec. 1204.309;
(b) Note on its website that guidance documents lack the force and
effect of law, except as authorized by law or as incorporated into a
contract;
(c) Advertise on its website where the public can comment
electronically on any guidance documents that are subject to the
notice-and-comment procedures described in Sec. 1204.308 and to submit
requests electronically for issuance, reconsideration, modification, or
rescission of guidance documents. Guidance documents subject to the
notice-and-comment procedures, but not published on the Agency's
website, will be rescinded; and
(d) Designate an office to receive and address complaints from the
public that NASA is not following the requirements of OMB's Good
Guidance Bulletin or is improperly treating a guidance document as a
binding requirement.
Sec. 1204.304 Good faith cost estimates.
Even though not legally binding, some Agency guidance may result in
a substantial economic impact. For example, the issuance of Agency
guidance 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 and regulations. While it
may be difficult to predict with precision the economic impact of
voluntary guidance, the proposing NASA responsible office shall, to the
extent practicable, make a good faith effort to estimate the likely
economic cost impact of the guidance document to determine whether the
document might be significant. When a NASA responsible office is
assessing or explaining whether it believes a guidance document is
significant, it should, at a minimum, provide the same level of
analysis that would be required for a major determination under the
Congressional Review Act. When NASA determines that a guidance document
will be economically significant, the NASA responsible office should
conduct and publish a Regulatory Impact Analysis of the sort that would
accompany an economically significant rulemaking, to the extent
reasonably possible.
Sec. 1204.305 Approved procedures for guidance documents identified
as ``significant'' or ``otherwise of importance to the NASA's
interests.''
(a) For guidance proposed by a NASA responsible office, if there is
a reasonable possibility the guidance may be considered ``significant''
or ``otherwise of importance to NASA's interests'' within the meaning
of Sec. 1204.306 or if the NASA responsible office is uncertain
whether the guidance may qualify as such, the NASA responsible office
should email a copy of the proposed guidance document (or a summary of
it) to OGC for review and further direction before issuance. Unless
exempt, each proposed NASA guidance document determined to be
significant or otherwise of importance to NASA's interests must be
approved by the NASA Administrator before issuance. In such instances,
the NASA Mission Support Directorate (MSD) will:
(1) Request that the proposing NASA responsible office obtain a RIN
to report what NASA is planning to issue;
(2) Coordinate the guidance document with OMB's Office of
Information and Regulatory Affairs (OIRA) for the interagency review,
final significance determination, and clearance; and
(3) Advise the NASA responsible office on coordinating the guidance
document for an internal NASA review before submitting it to the NASA
Administrator for approval.
(b) If the guidance document is determined not to be either
significant or otherwise of importance to NASA's interests within the
meaning of Sec. 1204.306, OGC will advise the NASA responsible office
to proceed with issuance of the guidance through the NASA MSD for
publication in the Federal Register. For each guidance document
coordinated through the NASA MSD, the issuing NASA responsible office
should include a statement in the action memorandum indicating that the
guidance document has been reviewed and cleared in accordance with this
process.
Sec. 1204.306 Definitions of ``significant guidance document'' and
guidance documents that are ``otherwise of importance to NASA's
interests.''
(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. Historically, NASA has not issued any significant guidance
documents with these implications;
(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. 12866, as further amended.
(b) The term ``significant guidance document'' does not include the
categories of documents excluded by Sec. 1204.306 or any other
category of guidance documents exempted in writing by NASA in
consultation with OIRA.
(c) Significant and economically significant guidance documents
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.
(d) Even if not ``significant,'' a guidance document will be
considered ``otherwise of importance to NASA's interests'' within the
meaning of this paragraph (d) if it may reasonably be anticipated:
(1) To relate to a major program, policy, or activity of NASA or a
high-
[[Page 16544]]
profile issue pending for decision before NASA;
(2) To involve one of the NASA Administrator's top policy
priorities;
(3) To garner significant press or congressional attention; or
(4) To raise significant questions or concerns from constituencies
of importance to NASA, such as Committees of Congress, states, Indian
tribes, the White House or other departments of the Executive Branch,
courts, consumer or public interest groups, or leading representatives
of industry.
Sec. 1204.307 Designation procedures.
(a) OGC may request a NASA responsible office to prepare a
designation request for their respective guidance document. Designation
requests must include the following information:
(1) A summary of the guidance document; and
(2) The NASA responsible office's recommended designation of ``not
significant,'' ``significant,'' or ``economically significant,'' as
well as a justification for that designation.
(b) Except as otherwise provided in paragraph (c) of this section,
the NASA MSD will seek significance determinations from OIRA. Prior to
publishing these guidance documents, and with sufficient time to allow
OIRA to review the document in the event that a significance
determination is made, the NASA MSD should provide OIRA with an
opportunity to review the designation request or the guidance document,
if requested, to determine if it meets the definition of
``significant'' or ``economically significant'' under Executive Order
113891.
(c) Unless they present novel issues, significant risks,
interagency considerations, unusual circumstances, or other unique
issues, the categories of guidance documents exempted pursuant to an
agreement between NASA and OIRA do not require designation by OIRA.
Sec. 1204.308 Notice-and-comment procedures.
(a) Except as provided in paragraph (b) of this section, all
proposed NASA guidance documents determined to be a ``significant
guidance document'' within the meaning of Sec. 1204.306 are subject to
notice-and-comment procedures. The issuing NASA responsible office
shall publish an advance notice in the Federal Register of the proposed
guidance document and invite public comments for a minimum of 30 days,
then publish a response to major concerns raised in the comments when
the final guidance document is published.
(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 OGC finds, in consultation with OIRA, the
proposing NASA responsible office, and the NASA Administrator, good
cause that notice-and-comment procedure thereon are impracticable,
unnecessary, or contrary to the public interest (and incorporates the
finding of good cause and a brief statement of reasons in the guidance
issued). Unless the NASA responsible office, in consultation with OGC,
advises otherwise in writing, the categories of guidance exempted
pursuant to an agreement between NASA and OIRA will be exempt from the
requirements of paragraph (a) of this section.
(c) Where appropriate, the NASA responsible office, in consultation
with OGC, may recommend to the NASA Administrator that a particular
guidance document that is otherwise of importance to NASA's interests
shall also be subject to the informal notice-and-comment procedures
described in paragraph (a) of this section.
Sec. 1204.309 Petitions for guidance.
(a) Interested parties may submit petitions to NASA requesting
withdrawal or modification of any effective guidance document by
selecting the ``petition'' link for the respective guidance document
located on the NASA Regulations website at: https://nodis3.gsfc.nasa.gov/CFR_rep/CFR_list.cfm.
(b) Interested parties should include the guidance document's title
and a summarized justification describing why the document should be
withdrawn, how it should be modified, or the nature of the complaint in
the petition in order to receive an expedited response.
(c) The responsible office, in consultation with OGC, will review
the petition, determine if withdrawal or modification is necessary or
the best way to resolve the complaint, and respond to the petitioner
with a decision no later than 90 days after receipt of the request.
Sec. 1204.310 Rescinded guidance.
No NASA office or NASA Center may cite, use, or rely on guidance
documents that are rescinded, except to establish historical facts.
Sec. 1204.311 Exigent circumstances.
In emergency situations or when NASA is required by statutory
deadline or court order to act more quickly than normal review
procedures allow, the issuing NASA responsible office shall coordinate
with NASA's MSD to notify OIRA as soon as possible and, to the extent
practicable, comply with the requirements of this subpart at the
earliest opportunity. Wherever practicable, the issuing NASA
responsible office should schedule its proceedings to permit sufficient
time to comply with the procedures set forth in this subpart.
Sec. 1204.312 Reports to Congress and the Government Accountability
Office (GAO).
Unless otherwise determined in writing by NASA, it is the policy of
the Agency that upon issuing a guidance document determined to be
``significant'' within the meaning of Sec. 1204.306, the issuing NASA
responsible office will submit a report to Congress and GAO in
accordance with the procedures described in 5 U.S.C. 801 (the
``Congressional Review Act'').
Sec. 1204.313 No judicial review or enforceable rights.
This subpart is intended to improve the internal management of
NASA. As such, it is for the use of NASA personnel only and is not
intended to, and does not create any right or benefit, substantive or
procedural, enforceable by law or in equity by any party against the
United States, its agencies or other entities, its officers or
employees, or any other person.
Nanette Smith,
Team Lead for NASA Directives and Regulations.
[FR Doc. 2020-05675 Filed 3-23-20; 8:45 am]
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