Procedures for the Review and Clearance of USAID's Guidance Documents
| Citation | 86 FR 250 |
| Record Number | 2020-26352 |
| Published date | 05 January 2021 |
| Section | Rules and Regulations |
| Court | Agency For International Development |
Federal Register, Volume 86 Issue 2 (Tuesday, January 5, 2021)
[Federal Register Volume 86, Number 2 (Tuesday, January 5, 2021)]
[Rules and Regulations]
[Pages 250-254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26352]
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AGENCY FOR INTERNATIONAL DEVELOPMENT
22 CFR Part 212
RIN 0412-AB00
Procedures for the Review and Clearance of USAID's Guidance
Documents
AGENCY: U.S. Agency for International Development (USAID).
ACTION: Final rule.
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SUMMARY: This final rule amends USAID's regulations to implement
Executive Order (E.O.) 13891, Promoting the Rule of Law Through
Improved Agency Guidance Documents. This rule sets forth processes and
procedures for USAID to issue guidance documents as defined in the E.O.
in a manner consistent with the requirements of Federal law applicable
to all employees involved in inherently governmental deliberative
decision-making on policy and employees involved in related
administrative processes.
DATES: This final rule is effective January 5, 2021.
FOR FURTHER INFORMATION CONTACT: Tyrone K. Brown, Guidance Mailbox,
(202) 355-7450, [email protected].
SUPPLEMENTARY INFORMATION:
Background
On October 9, 2019 (84 FR 55235), President Trump issued Executive
Order (E.O.) 13891, Promoting the Rule of Law Through Improved Agency
Guidance Documents. The E.O. asserts that, except as mandated by
applicable law or incorporated into a binding contract or agreement,
Federal Departments and Agencies should treat guidance documents as
non-binding on outside entities both in law and practice. To further
the principle that Federal guidance should be transparent and made
readily available to the public, Section 3 of the E.O. requires that
Departments and Agencies make guidance documents available on a single,
searchable, indexed public website. Section 3 also requires that
Departments and Agencies review their guidance documents and,
consistent with applicable law, rescind those that should no longer be
in effect. Lastly, Section 4 requires that each Department and Agency
put in place processes and procedures for issuing guidance documents as
defined by the E.O.
In accordance with that direction, to codify our processes and
procedures for guidance documents, the U.S. Agency for International
Development (USAID) is amending our Automated Directives System (ADS)
to update ADS Chapter 501, which governs the clearance process for
reviewing and issuing Agency policy documents, to include guidance
documents as defined by the E.O. USAID's formal clearance process
ensures that all guidance documents receive legal review and, when
appropriate, review and approval from USAID's Regulatory Reform
Officer, who is the Agency's Deputy Administrator.
Before the Agency issues guidance documents as defined by E.O.
13891, we must review them to ensure they are written in plain language
and do not impose any substantive legal requirements above and beyond
statute or regulation. If a guidance document purports to describe,
approve, or recommend specific conduct not required by existing laws,
statutes, and regulations, then it must include a clear and prominent
statement that the contents of the guidance document do not have the
force and effect of law and are not meant to bind the public in any
way, and that the guidance document is intended only to provide clarity
to the public regarding existing requirements under the law or internal
Agency policies and procedures applicable to our staff.
According to E.O. 13891, guidance documents shall also be subject
to notice-and-comment procedures. The E.O. mandates that Departments
and Agencies shall publish a notice in the Federal Register to announce
that a draft of the proposed guidance document is publicly available;
shall post the draft guidance document on the guidance portal of the
Department or Agency; 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 portal, when the Department or Agency finalizes and issues the
guidance document. Consistent with E.O. 13891, USAID proposes
procedures to allow the public to petition for the modification or
withdrawal of an active guidance document posted on the Agency's
guidance portal. USAID's guidance portal will provide clear and
specific instructions on how to request the modification or withdrawal
of an active guidance document.
The Office of the General Counsel (GC) at USAID has determined that
the Agency has no ``guidance documents'' as defined under E.O. 13891.
USAID's internal guidance materials do not qualify as ``guidance
documents'' under the E.O., nor do grant and contract solicitations and
awards; Country and Regional Development Cooperation Strategies; Agency
programmatic Policies and Strategies; and purely internal Agency
policies not intended to have substantial effect on the behavior of
regulated parties, such as Chapters of our ADS. The procedures
contained in this final rule apply to all guidance documents, which
USAID defines as any statement of Agency policy or interpretation that
concerns a statute, regulation, or technical matter within the
jurisdiction of the Agency that is intended to have general
applicability and future effect on the behavior of regulated parties,
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 of the Administrative Procedure Act.
Notice and Comment Not Required
This rule relates to internal Agency management. Therefore,
pursuant to Section 553(a)(2) of Title 5 of the United States Code
(U.S.C.), notice of proposed rulemaking and opportunity to comment are
not required.
Procedural Requirements
The Office of Management and Budget (OMB) has determined that this
regulatory action does not meet the criteria for significant regulatory
action
[[Page 251]]
pursuant to E.O. 12866, Regulatory Planning and Review. Additionally,
because this rule does not meet the definition of a significant
regulatory action, it does not trigger the requirements contained in
E.O. 13771.
The regulations added by this rule are intended to improve the
internal management of USAID. As such, it is for the use of USAID
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 Departments and Agencies or
other entities, its officers or employees, or any other person.
Accordingly, we expect the economic impact of this rule, if any, to be
minimal.
Regulatory Flexibility Act
Because notice-and-comment rulemaking is not necessary for this
rule, the provisions of the Regulatory Flexibility Act, Section 604 of
Title 5 of the U.S.C. do not apply.
Paperwork Reduction Act
This final rule imposes no new reporting or recordkeeping
requirements that necessitate clearance by OMB.
List of Subjects in 22 CFR Part 212
Administrative practice, Freedom of Information Act (FOIA),
Procedures.
In consideration of the foregoing, and under the authority of E.O.
13891, the U.S. Agency for International Development (USAID) amends 22
CFR part 212 as follows:
0
1. The authority citation for part 22 continues to read as follows:
Authority: Pub. L. 114-185, 130 Stat. 538
0
2. Add subparts N and O, consisting of Sec. 212.25 through 212.40, to
read as follows:
Sec.
Subpart N--Rulemaking
212.25. Responsibilities.
Subpart O--Procedures for Guidance Documents
212.26. General.
212.27. Review and clearance by the Office of the Bureau for
Management.
212.28. Requirements for clearance.
212.29. Public access to effective guidance documents.
212.30. Good-faith cost estimates.
212.31. Approved procedures for guidance documents identified as
``significant'' or ``otherwise of importance to the Agency's
interests.''
212.32. Definitions of ``significant guidance document'' and
guidance documents that are ``otherwise of importance to the
Agency's interests.''
212.33. Designation procedures.
212.34. Notice-and-comment procedures.
212.35. Petitions for guidance.
212.36. Rescinded guidance.
212.37. Exigent circumstances.
212.38. Reports to Congress and the Government Accountability
Office.
212.39. No judicial review or enforceable rights.
212.40. Use of guidance documents.
Subpart N--Rulemaking
Sec. 212.25 Responsibilities.
(a) The Deputy Administrator serves as USAID's Regulatory Reform
Officer (RRO). The RRO oversees implementation of regulatory-reform
initiatives and policies to ensure USAID effectively manages regulatory
burdens, consistent with applicable law.
(b) The Assistant Administrator for Management serves as USAID's
Regulatory Policy Officer (RPO) and provides oversight for the Agency's
internal rulemaking process. The RPO must be involved in each stage of
the regulatory process to foster the development of effective,
innovative, and least-burdensome regulations.
(c) The Office of Management Policy, Budget, and Performance in the
Bureau for Management (M) coordinates the rulemaking process and
ensures the Agency's rulemaking activities comply with all statutory
and regulatory requirements.
(d) The Initiating Program Office (IPO) at USAID is the Bureau or
Independent Office (B/IO) that provides subject-matter expertise on
regulatory matters that affect the IPO's programs.
(e) The Office of the General Counsel at USAID provides guidance on
legal and procedural requirements during the Agency's rulemaking
process.
Subpart O--Guidance Procedures
Sec. 212.26 General.
(a) This subpart governs all employees of the United States Agency
for International Development (USAID) involved in any phase of issuing
Agency guidance documents as defined by under E.O. 13891.
(b) This subpart applies to all guidance documents issued by all
components of the Agency after January 5, 2021.
(c) For purposes of this subpart, the term ``guidance document''
includes any statement of Agency policy or interpretation that concerns
a statute, regulation, or technical matter within the jurisdiction of
the Agency that is intended to have general applicability and future
effect, but is not intended to have the force or effect of law in its
own right and is not otherwise required by statute to be implemented
through the rulemaking procedures specified in 5 U.S.C. 553. 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, and advisories, and may include video, audio, and
web-based formats. See OMB Bulletin 07-02, Agency Good Guidance
Practices.
(d) This subpart does not apply to the following:
(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 management legal advice or legal advisory
opinions addressed to executive 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 that pertains to the use, operation, or
control of a U.S. 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 guidance policies, such as Chapters of
the ADS directed solely to USAID's employees, or to other Federal
Departments and Agencies not intended to have substantial future effect
on the behavior of regulated parties; USAID's Country/Regional
Development Cooperation Strategies; the Agency's programmatic Policies
and Strategies; Acquisition and Assistance Policy Directives (AAPDs);
Application Guidelines; COVID-19 Guidance; Food for Peace Information
Bulletins (FFPIBs); Guidance and Tools
[[Page 252]]
for Global Food-Security Programs; Procurement Executive Bulletins
(PEBs); Standard Provisions for the Protecting Life in Global Health
Assistance (PLGHA) Policy; and documents in the USAID Policy Registry.
212.40.
Sec. 212.27 Review and clearance by the Office of Management Policy,
Budget, and Performance in the Bureau for Management.
All USAID guidance documents, as defined by E.O. 13891 and Sec.
212.26, require review and clearance in accordance with this subpart.
The Bureau for Management (M Bureau) must review and clear any guidance
a Bureau or Independent Office within USAID proposes to issue.
Sec. 212.28 Requirements for clearance.
USAID's review and clearance of guidance documents shall ensure
that each one that a B/IO within the Agency proposes to issue satisfies
the following requirements:
(a) The guidance document complies with all relevant statutes and
regulations (including any statutory deadlines for the Agency's
action);
(b) The guidance document identifies or includes the following:
(1) The term ``guidance'' or its functional equivalent;
(2) The issuing B/IO within the Agency;
(3) A unique identifier, including, at a minimum, the date of
issuance and title of the document and a Regulation Identifier Number
(RIN), if applicable;
(4) The activity or entities to which the guidance applies;
(5) Citations to applicable statutes and regulations;
(6) A statement that notes 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 at the top of the document of the subject
matter covered in the guidance 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 USAID's staff and will not foreclose
the Agency's consideration of positions advanced by affected private
parties; and
(d) The guidance document is written in plain and understandable
English. All guidance documents should include a clear and prominent
statement to declare that the contents of the document do not have the
force and effect of law and 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 USAID's policies.
Sec. 212.29 Public access to effective guidance documents.
Each B/IO within USAID responsible for issuing guidance documents
shall do the following:
(a) Ensure all effective guidance documents, identified by a unique
identifier that includes, at a minimum, the document's title and date
of issuance or revision and its RIN, if applicable, are on USAID's
guidance portal in a single, searchable, indexed database and are
available to the public in accordance with 5 U.S.C. 552(a)(2);
(b) Note on USAID's guidance portal that guidance documents lack
the force and effect of law, except as authorized by law and are not
meant to bind the public in anyway;
(c) Maintain and advertise USAID's guidance portal as a means for
the public to comment electronically on any guidance documents that are
subject to the notice-and-comment procedures described in Sec. 212.34
and to submit requests electronically for the issuance,
reconsideration, modification, or rescission of guidance documents in
accordance with Sec. 212.26; and
(d) The Bureau for Management is the office designated to receive
and address complaints from the public that USAID is not following the
requirements of OMB's Good Guidance Bulletin, or is improperly treating
a guidance document as a binding requirement.
Sec. 212.30 Good-faith cost estimates.
Even though not legally binding, some Agency guidance could result
in a substantial economic impact. For example, the issuance of Agency
guidance could induce private parties to alter their conduct to conform
to recommended standards or practices, such that they could incur costs
beyond the costs of complying with existing statutes and regulations.
While it might be difficult to predict with precision the economic
impact of voluntary guidance, to the extent practicable the proposing
B/IO within USAID shall make a good-faith effort to estimate the likely
economic cost impact of the guidance document to determine whether it
might qualify as ``significant.'' When a B/IO 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 determination under the Congressional Review Act (M-19-
14), Guidance on Compliance with the Congressional Review Act, that the
guidance document is major. When USAID determines that a guidance
document will be ``economically significant,'' the proposing B/IO
should conduct and publish a regulatory-impact analysis of the sort
that would accompany an economically significant rulemaking, to the
extent reasonably possible (in conformance with E.O. 12866).
Sec. 212.31 Approval procedures for guidance documents identified as
``significant'' or ``otherwise of importance to the Agency's
interests.''
(a) For guidance a USAID B/IO proposes to issue, if there is a
reasonable possibility a guidance document could be as ``significant''
or ``otherwise of importance to the Agency's interests'' within the
meaning of Sec. 212.31, or if the B/IO is uncertain whether the
guidance could qualify as such, the B/IO should email a copy of the
proposed guidance document (or a summary of it) to the M Bureau for
review and further direction before issuance.
(b) As with significant regulations, after appropriate internal
consultation and review, the M Bureau will submit significant guidance
documents that are otherwise of importance to the Agency's interests to
the Office of Information and Regulatory Affairs (OIRA) within OMB for
review and designation.
(c) If OMB/OIRA determines a guidance document from a USAID B/IO
not to be either significant or otherwise of importance to the Agency's
interests within the meaning of Sec. 212.31, the Bureau for Management
may proceed with issuance. For each guidance document coordinated
through the Office of the Administrator, the issuing B/IO should
include a statement in the Action Memorandum to indicate that the OMB/
OIRA has reviewed and cleared the guidance document in accordance with
this process.
Sec. 212.32 Definitions of ``significant guidance document'' and
guidance documents that are ``otherwise of importance to the Agency's
interests.''
(a) The term ``significant guidance document'' means a guidance
document USAID will disseminate to regulated entities or the general
public and that might reasonably be anticipated:
(1) To lead to an annual effect on the U.S. 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 253]]
(2) To create serious inconsistency or otherwise interfere with an
action taken or planned by another Federal Department or 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 that arise 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. 212.26 or any other category
of guidance documents exempted in writing by OMB/OIRA.
(c) OMB/OIRA must review significant and economically significant
guidance documents under E.O. 12866 before issuance, and they 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.
(d) Even if not ``significant,'' USAID will consider a guidance
document of regulatory impact as ``otherwise of importance to the
Agency's interests'' within the meaning of this paragraph if it might
reasonably be anticipated:
(1) To relate to a major program, policy, or activity of the Agency
or a high-profile issue that is pending for decision before the Agency;
(2) To involve one of the 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 the Agency, such as Committees of Congress, States or
Indian tribes, the White House or other Departments and Agencies of the
Executive Branch, courts, consumer or public-interest groups, or
leading representatives of industry.
(e) As noted in paragraphs (a) through (d) of this section,
``guidance documents'' for the purposes of this rule, including this
subpart, do not include those documents identified in this subpart O.
Sec. 212.33 Designation procedures.
(a) The Bureau for Management may request a B/IO within USAID to
prepare a designation request for certain guidance documents.
Designation requests must include the following information:
(1) A summary of the guidance document; and
(2) The B/IO'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 Agency will seek significance determinations from OMB/OIRA for
certain guidance documents, as appropriate, in the same manner as for
rulemakings. Prior to publishing these guidance documents, after
internal consultation and review, the Bureau for Management shall
submit the document to OMB/OIRA for review under the provisions in
Section 6 of E.O. 12866 to determine if it meets the definition of
``significant'' or ``economically significant.''
(c) All ``guidance documents'' as with rulemakings, receive a
significance determination from OMB/OIRA, unless explicitly exempt from
E.O. 12866. Note that the only documents that do not receive
designations are those that fall outside the definition of ``guidance''
or within a group categorically considered nonsignificant as agreed
upon by OMB/OIRA in Memorandum M-20-02).
Sec. 212.34 Notice-and-comment procedures.
(a) Except as provided in paragraph (b) of this section, all
proposed USAID guidance documents determined to be a ``significant
guidance document'' within the meaning of Sec. 212.31 shall be subject
to the following notice-and-comment procedures:
(1) The issuing B/IO within USAID shall publish a notice in the
Federal Register to announce that a draft of the proposed guidance
document is publicly available; post the draft guidance document on the
Agency's guidance portal; invite public comment on the draft document
for a minimum of 30 days; and
(2) Prepare and post a public response to major concerns raised in
the comments, as appropriate, on USAID's guidance portal, when the
Agency finalizes and issues the guidance document.
(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 the Bureau for Management finds, in
consultation with GC, the proposing B/IO, and USAID's RRO, 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 Bureau for Management and the proposing
B/IO may recommend to the RRO that a particular guidance document that
is otherwise of importance to the Agency's interests shall also be
subject to the notice-and-comment procedures described in paragraph (a)
of this section.
Sec. 212.35 Petitions for guidance.
Any person may petition the Agency to withdraw or modify a
particular guidance document by using the procedures found in Sec.
212.26(c). USAID should respond to all requests in a timely manner, but
no later than 90 days after receipt of the request.
Sec. 212.36 Rescinded guidance.
No B/IO within USAID may cite, use, or rely on guidance documents
that are rescinded, except to establish historical facts.
Sec. 212.37 Exigent circumstances.
In emergency situations, or when a statutory deadline or court
order requires the issuing B/IO within USAID to act more quickly than
normal review procedures allow, the issuing B/IO shall coordinate with
the Bureau for Management to notify OMB/OIRA as soon as possible and,
to the extent practicable, shall comply with the requirements of this
subpart at the earliest opportunity. Wherever practicable, the issuing
B/IO should schedule its proceedings to permit sufficient time to
comply with the procedures set forth in this subpart.
Sec. 212.38 Reports to Congress and the Government Accountability
Office.
Unless otherwise determined in writing, it is the policy of USAID
that upon issuing a guidance document determined to be ``significant''
within the meaning of Sec. 212.31 the issuing B/IO shall submit a
report to Congress and the Government Accountability Office in
accordance with the procedures described in 5 U.S.C. 801 (the
Congressional Review Act [CRA]). Under the CRA, USAID must coordinate
with OMB/OIRA regarding a major determination for all guidance
documents, irrespective of whether the Agency otherwise would submit a
rule for regulatory review (Memorandum-19-14).
Sec. 212.39 No judicial review or enforceable rights.
This subpart is intended to improve the internal management of
USAID. As such, it is for USAID 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 Departments and Agencies or other entities, its officers or
employees, or any other person.
[[Page 254]]
Sec. 212.40 Use of guidance documents.
Guidance documents cannot create binding requirements that do not
already exist by statute or regulation. Accordingly, non-compliance
with guidance documents cannot be used as a basis for proving
violations of applicable law. Guidance documents can do no more, with
respect to prohibition of conduct, than articulate USAID's
understanding of how a statute or regulation applies to particular
circumstances.
Ruth Buckley,
Acting Performance Improvement Officer/Acting Office Director, Bureau
for Management Office of Management Policy, Budget and Operational
Performance.
[FR Doc. 2020-26352 Filed 1-4-21; 8:45 am]
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