Procedures for Issuing Guidance Documents
| Published date | 23 July 2020 |
| Citation | 85 FR 44475 |
| Record Number | 2020-13940 |
| Section | Rules and Regulations |
| Court | Corporation For National And Community Service |
Federal Register, Volume 85 Issue 142 (Thursday, July 23, 2020)
[Federal Register Volume 85, Number 142 (Thursday, July 23, 2020)]
[Rules and Regulations]
[Pages 44475-44477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13940]
[[Page 44475]]
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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Part 2509
RIN 3045-AA74
Procedures for Issuing Guidance Documents
AGENCY: Corporation for National and Community Service.
ACTION: Final rule.
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SUMMARY: The Corporation for National and Community Service (CNCS) is
publishing its procedures for issuing Guidance Documents. This rule
implements section 4 of Executive Order 13891, ``Promoting the Rule of
Law Through Improved Agency Guidance Documents'' (October 9, 2019).
DATES: This rule is effective July 23, 2020.
FOR FURTHER INFORMATION CONTACT: Amy Borgstrom, Corporation for
National and Community Service, 250 E Street SW, Washington, DC 20525,
by email at [email protected], or by phone: 202-422-2781.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule implements section 4 of Executive Order 13891,
``Promoting the Rule of Law Through Improved Agency Guidance
Documents'' (October 9, 2019). Under the Executive order, CNCS must set
forth a process in regulation that includes:
(1) A requirement that each guidance document clearly state that it
does not bind the public, except as authorized by law or as
incorporated into a contract;
(2) procedures for the public to petition for withdrawal or
modification of a particular guidance document, including a designation
of the officials to whom petitions should be directed; and
(3) for a significant guidance document, as determined by the
Administrator of the Office of Management and Budget's (OMB's) Office
of Information and Regulatory Affairs (Administrator), unless the
agency and the Administrator agree that exigency, safety, health, or
other compelling cause warrants an exemption from some or all
requirements, provisions requiring:
(A) A period of public notice and comment of at least 30 days
before issuance of a final guidance document, and a public response
from the agency to major concerns raised in comments, except when the
agency for good cause finds (and incorporates such finding and a brief
statement of reasons therefor into the guidance document) that notice
and public comment thereon are impracticable, unnecessary, or contrary
to the public interest;
(B) approval on a non-delegable basis by the agency head or by an
agency component head appointed by the President, before issuance;
(C) review by the Office of Information and Regulatory Affairs
(OIRA) under Executive Order 12866, before issuance; and
(D) compliance with the applicable requirements for regulations or
rules, including significant regulatory actions, set forth in Executive
Orders 12866, 13563 (Improving Regulation and Regulatory Review), 13609
(Promoting International Regulatory Cooperation), 13771 (Reducing
Regulation and Controlling Regulatory Costs), and 13777 (Enforcing the
Regulatory Reform Agenda).
II. Regulatory Procedures
Administrative Procedure Act
This final rule incorporates requirements of the Executive order
and CNCS's existing internal policy and procedures into the CFR.
Therefore, in accordance with 5 U.S.C. 553, there is good cause for
this rule of Agency organization, procedure, or practice, to be enacted
without notice and comment. See 5 U.S.C. 553(b)(A).
Executive Order 12866
This rule is an internal rule of agency procedure and is not a
significant regulatory action under Executive Order 12866.
Executive Order 13771
This rule is not an E.O. 13771 regulatory action because this rule
is related to agency organization, management, or personnel.
Regulatory Flexibility Act
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605
(b)), CNCS certifies that this rule, if adopted, will not have a
significant economic impact on a substantial number of small entities.
Unfunded Mandates
For purposes of Title II of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this
regulatory action does not contain any Federal mandate that may result
in increased expenditures in either Federal, state, local, or tribal
governments in the aggregate, or impose an annual burden exceeding $100
million on the private sector.
Paperwork Reduction Act
The rule does not contain any information collection requirement
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
Executive Order 13132, Federalism
Executive Order 13132, Federalism, prohibits an agency from
publishing any rule that has federalism implications if the rule
imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive order. This rule does not have any
federalism implications, as described above.
Congressional Review Act
This action pertains to agency management, personnel, and
organization and does not substantially affect the rights or
obligations of nonagency 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)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 45 CFR Part 2509
Administrative practice and procedure.
0
For the reasons discussed in the preamble, under the authority of 42
U.S.C. 12651c(c), the Corporation for National and Community Service
adds 45 CFR part 2509 to read as follows:
PART 2509--ADMINISTRATIVE PRACTICE AND PROCEDURES
Subpart A--Guidance Documents
Sec.
2509.10 What does this subpart cover?
2509.12 What should I do if a guidance document is covered by this
subpart?
2509.14 What is the purpose of the review and clearance procedure?
2509.16 How will CNCS make guidance documents available to the
public?
2509.18 What procedures apply to guidance documents identified as
``significant''?
2509.20 What is a ``significant'' guidance document?
2509.22 When will guidance be published for public notice-and-
comment?
2509.24 How may the public submit a petition to CNCS for the
withdrawal or modification of a guidance document?
2509.26 What is the effect of rescinded guidance documents?
2509.28 How will significant guidance be issued when there are
exigent circumstances?
2509.30 No judicial review or enforceable rights.
[[Page 44476]]
Subpart B [Reserved]
Authority: 42 U.S.C. 12651c(c); E.O. 13891, 84 FR 55235.
Subpart A--Guidance Documents
Sec. 2509.10 What does this subpart cover?
(a) This subpart sets forth the Corporation for National and
Community Service's (CNCS's) procedures for issuing guidance documents.
It applies to all CNCS employees and contractors involved in issuing
CNCS guidance documents on or after April 28, 2020.
(b) For the purposes of this subpart, ``guidance document'' means
any statement of general applicability, intended to have future effect
on the behavior of regulated parties, that sets forth a policy on a
statute, regulatory, or technical issue, or an interpretation of a
statute or regulation, but does not include:
(1) Legislative rules promulgated under 5 U.S.C. 553 (or similar
statutory provisions), or 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, notices regarding particular locations or
facilities, and correspondence with individual persons or entities,
except documents directed to a particular party and 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 for the first time a
new regulatory 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;
(8) Grant solicitations and awards;
(9) Contract solicitations and awards; or
(10) Purely internal agency policies or guidance directed solely to
CNCS employees or contractors or to other Federal agencies that are not
intended to have substantial future effect on the behavior of regulated
parties.
Sec. 2509.12 What should I do if a guidance document is covered by
this subpart?
(a) All CNCS guidance documents require review and clearance in
accordance with this subpart.
(b) Guidance proposed by CNCS must be reviewed by the Office of
General Counsel (OGC) and cleared by the General Counsel or his/her
designee.
(c) Additional reviews by other CNCS officials are also conducted
as described in CNCS Policy 100--Preparing Policies and Procedures and
Policy 103--Clearing Controlled Correspondence and Other Documents with
the Board, Chief Executive Officer, and Chief of Staff, or subsequent
updates or revisions to those policies.
Sec. 2509.14 What is the purpose of the review and clearance
procedure?
CNCS's guidance issuance process shall ensure that each proposed
guidance document satisfies the following requirements:
(a) The guidance document complies with all relevant statutes and
regulations (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 CNCS 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
(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 CNCS employees and will not foreclose
CNCS'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 should include the following disclaimer
prominently in each guidance document: ``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 CNCS's guidance document is binding because binding
guidance is authorized by law or because the guidance is incorporated
into a contract, CNCS will modify the disclaimer above to reflect
either of those facts.
Sec. 2509.16 How will CNCS make guidance documents available to the
public?
CNCS 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. 2905.16;
(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; and
(c) Publish 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. 2509.22 and to submit
requests electronically for issuance, reconsideration, modification, or
rescission of guidance documents.
(d) Guidance documents that do not appear on the Agency's single,
searchable, indexed database are rescinded.
Sec. 2509.18 What procedures apply to guidance documents identified
as ``significant''?
(a) OGC review of proposed guidance documents will include a
preliminary determination as to whether the proposed guidance document
is significant within the meaning of Sec. 2509.20. Unless exempt, each
proposed guidance document determined to be significant must be
approved by the Chief Executive Officer before issuance. In such
instances, CNCS will:
(1) Obtain a RIN to report what CNCS is planning to issue;
(2) Coordinate the guidance document with the Office of Management
and Budget's (OMB's) Office of Information and Regulatory Affairs
(OIRA) for the interagency review, final significance determination,
and clearance; and
(3) Coordinate internal review and clearance of the guidance
document before submitting it to the Chief Executive Officer for
approval, consistent with CNCS Policy 103.
[[Page 44477]]
(b) If the guidance document is determined to be significant under
Sec. 2509.20, CNCS may proceed with publication in the Federal
Register. For each significant guidance document, the originating CNCS
office should include a statement in the clearance memorandum
indicating that the guidance document has been reviewed and cleared in
accordance with this section.
Sec. 2509.20 What is a ``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;
(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. 2509.12 or any other category
of guidance documents exempted in writing by CNCS 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. 13777.
Sec. 2509.22 When will guidance be published for public notice-and-
comment?
(a) Except as provided in paragraph (b) of this section, all
proposed CNCS guidance documents determined to be significant within
the meaning of Sec. 2509.20 are subject to public notice-and-comment.
CNCS shall publish notification in the Federal Register of the proposed
significant 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 for which CNCS finds, in
consultation with OIRA, good cause that notice-and-comment procedures
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).
(c) CNCS and OIRA may establish an agreement on presumptively
exempted categories of guidance; such documents will be presumptively
exempt from the requirements of paragraph (a) of this section.
Sec. 2509.24 How may the public submit a petition to CNCS for the
withdrawal or modification of a guidance document?
(a) Interested parties may submit petitions to CNCS requesting
withdrawal or modification of any effective guidance document by
sending an email to [email protected] or by sending the request to
Corporation for National and Community Service ATT: Associate Director
of Policy, 250 E Street SW, Washington, DC 20525.
(b) Interested parties should include the guidance document's title
and a summary justification describing why the document should be
withdrawn, how it should be modified, or the nature of the concern with
the guidance.
(c) The responsible CNCS department, in consultation with OGC, will
review the petition, determine if withdrawal or modification is
necessary or the best way to resolve the concern, and respond to the
petitioner no later than 90 days after receipt of the request.
Sec. 2509.26 What is the effect of rescinded guidance documents?
CNCS may not cite, use, or rely on rescinded guidance documents,
except to establish historical facts.
Sec. 2509.28 How will significant guidance be issued when there are
exigent circumstances?
Under exigent circumstances, such as safety, health, or when
statutory deadlines or court order or other compelling cause require
CNCS to act more quickly than normal review procedures allow, CNCS will
notify OIRA as soon as possible and, to the extent practicable, comply
with the requirements of this subpart at the earliest opportunity.
Sec. 2509.30 No judicial review or enforceable rights.
This subpart is intended to improve the internal management of
CNCS. As such, it is for the use of CNCS employees 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.
Subpart B [Reserved]
Dated: June 24, 2020.
Helen Serassio,
Acting General Counsel.
[FR Doc. 2020-13940 Filed 7-22-20; 8:45 am]
BILLING CODE 6050-28-P
