Promoting the Rule of Law Through Improved Agency Guidance Documents

• Published date: 24 September 2020
• Citation: 85 FR 60063
• Record Number: 2020-19546
• Section: Rules and Regulations
• Court: Tennessee Valley Authority

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Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations

National Emergencies Act, 50 U.S.C.

1601 et seq.; Executive Order 13942,

Addressing the Threat Posed by TikTok,

August 6, 2020; Executive Order 13873,

Securing the Information and

Communications Technology and

Services Supply Chain, May 15, 2019.

Dated: September 21, 2020

This document of the Department of

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by Wilbur Ross, Secretary of Commerce.

That document with the original

signature and date is maintained by the

Department of Commerce. For

administrative purposes only, and in

compliance with requirements of the

Office of the Federal Register, the

undersigned Department of Commerce

Federal Register Liaison Officer has

been authorized to sign and submit the

document in electronic format for

publication, as an official document of

the Department of Commerce. This

administrative process in no way alters

the legal effect of this document upon

publication in the Federal Register.

Signed in Washington, DC, on September

22, 2020.

Asha Mathew,

Federal Register Liaison Officer, U.S.

Department of Commerce.

[FR Doc. 2020–21193 Filed 9–22–20; 1:30 pm]

BILLING CODE 3510–20–P

TENNESSEE VALLEY AUTHORITY

18 CFR Part 1301

RIN 3316–AA23

Promoting the Rule of Law Through

Improved Agency Guidance

Documents

AGENCY

: Tennessee Valley Authority.

ACTION

: Direct final rule.

SUMMARY

: The Tennessee Valley

Authority (TVA) issues this final rule to

implement procedures for the issuance

of TVA guidance documents in

accordance with Executive Order 13891.

This final rule would, among other

things, establish internal agency

requirements for guidance documents,

as well as public engagement

procedures surrounding guidance

documents.

DATES

: This final rule is effective

October 26, 2020. The comment period

will conclude on October 26, 2020.

Subject to review of the public

comments received, TVA may delay the

final effective date and, if so, will

publish a document in the Federal

Register to that effect.

FOR FURTHER INFORMATION CONTACT

:

Robin M. Daugherty, 423–751–3207,

Email: rmdaugherty@tva.gov, Mail

address: Tennessee Valley Authority,

400 West Summit Hill Drive, WT 6

Knoxville, TN 37902.

SUPPLEMENTARY INFORMATION

: TVA

issues this final rule to incorporate into

the Code of Federal Regulations a new

18 CFR 130.70 Subpart F, which would

implement the requirements of

Executive Order 13891, ‘‘Promoting the

Rule of Law Through Improved Agency

Guidance Documents.’’ 84 FR 55235

(October 9, 2019) (E.O. 13891). E.O.

13891 requires agencies to provide more

transparency around the issuance and

use of guidance documents, including

by promulgating procedures to increase

public involvement in the TVA

guidance document process. As noted in

E.O. 13891, the Administrative

Procedure Act (APA) generally requires

agencies to provide public notice of

proposed regulations, allow interested

parties an opportunity to comment,

consider and respond to significant

comments, and publish final regulations

in the Federal Register (See 5 U.S.C.

553). Such regulations, also known as

legislative rules, have the force and

effect of law and are legally binding

upon the public. In addition to

legislative rules, agencies may clarify

existing obligations of regulated entities

through nonbinding guidance

documents, which the APA exempts

from notice-and-comment requirements.

(5 U.S.C. 553(b)(A)). E.O. 13891 defines

‘‘guidance document’’ as ‘‘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,’’ with a few

noted exceptions listed in E.O. 13891,

the APA and associated regulation.

Guidance documents do not have the

force and effect of law, and are intended

only to provide clarity to the public of

existing statutory and regulatory

obligations. However, as noted in E.O.

13891, some agency guidance

documents may impose obligations

beyond those required by statute or

regulation, or carry a threat of

enforcement if the guidance is not

followed by regulated parties.

Additionally, the public may not have

sufficient notice of guidance documents,

which are not always published in the

Federal Register or distributed to all

regulated parties. See 84 FR 55235.

Accordingly, E.O. 13891 requires

agencies to provide more transparency

for their guidance documents by

creating a searchable online database for

current guidance documents, by

requiring agencies to establish

procedures to allow the public to

comment on significant guidance

documents, and authorizing the public

to petition the agency to withdraw or

modify guidance documents. Moreover,

E.O. 13891 requires agencies to clearly

state in their guidance documents that

such guidance Does not have the force

and effect of law and is not legally

binding, except as authorized by law or

as incorporated into a contract. This

final rule would implement the

requirements of E.O. 13891. This final

rule would apply to all TVA guidance

documents, which TVA proposes to

define in the same manner as that term

is defined in E.O. 13891, the APA and

associated regulations, and OMB memo

M–20–02 Memorandum for Regulatory

Policy Officers at Executive

Departments and Agencies and

Managing and Executive Directors of

Certain Agencies and Commissions,

Dominic J. Mancini, OIRA Acting

Director (Oct. 31, 2019). The final rule

would also adopt the same definition of

‘‘significant guidance document’’ as that

term is defined in E.O. 13891 Section 2.

In accordance with E.O. 13891, TVA

will require that all TVA guidance

documents clearly state that they do not

have the force and effect of law and are

not legally binding on the public, and

that they are only intended to provide

clarity to the public regarding existing

statutory and regulatory requirements.

Moreover, TVA guidance documents

will be required to be written clearly,

and to refrain from using mandatory

language, such as the terms ‘‘shall’’ or

‘‘must.’’ If a guidance document

purports to describe, approve, or

recommend specific conduct that is

beyond what is required by existing

statute, legislative or judicial rule,

TVA’s final regulation would require

that TVA’s guidance document will not

be used as an independent basis for

enforcement. TVA also proposes in this

new rule to require that all TVA

guidance documents be reviewed and

cleared by the Office of the General

Counsel before public availability.

Additionally, the final rule would

require that significant guidance

documents be approved by the TVA

Board of Directors or by delegation to a

TVA Executive. This will ensure that

the requirements and intent of E.O.

13891 are met, and that guidance

documents are issued in accordance

with relevant laws and regulations.

The final rule also provides

procedures for the public to petition the

agency to modify or withdraw guidance

documents. With this final rule, TVA

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would effectuate the requirements of

E.O. 13891 and ensure that TVA’s

process for the issuance of guidance

documents is transparent and accessible

to the public. The final rule also assures

regulated parties that such guidance is

not legally binding and does not affect

the rights and obligations of regulated

parties.

Legal Authority

This final rule is promulgated under

the authority of the TVA Act, as

amended, 16 U.S.C. 831 et seq. and the

Administrative Procedures Act, 5 U.S.C.

553 et seq.

Background

The Tennessee Valley Authority is a

multi-purpose corporate agency of the

United States that provides electricity

for business customers and local power

companies serving 10 million people in

parts of seven southeastern states. TVA

provides flood control, navigation and

land management for the Tennessee

River system and assists local power

companies and state and local

governments with economic

development and job creation.

Public Participation

TVA will accept comments, data, and

information regarding this final rule on

or before the date provided in

DATES

.

Interested parties may submit

comments, data, and other information

using any of the methods described in

the

ADDRESSES

section at the beginning

of this document.

Submitting comments via http://

www.regulations.gov. The http://

www.regulations.gov web page will

require you to provide your name and

contact information. Your contact

information will be viewable to TVA

General Counsel staff only. Your contact

information will not be publicly

viewable except for your first and last

names, organization name (if any), and

submitter representative name (if any).

If your comment is not processed

properly because of technical

difficulties, TVA will use this

information to contact you. If TVA

cannot read your comment due to

technical difficulties and cannot contact

you for clarification, TVA may not be

able to consider your comment.

However, your contact information will

be publicly viewable if you include it in

the comment itself or in any documents

attached to your comment. Any

information that you do not want to be

publicly viewable should not be

included in your comment, nor in any

document attached to your comment.

Otherwise, persons viewing comments

will see only first and last names,

organization names, correspondence

containing comments, and any

documents submitted with the

comments. Do not submit to http://

www.regulations.gov information the

disclosure of which is restricted by

statute, such as trade secrets and

commercial or financial information

(hereinafter referred to as Confidential

Business Information (CBI)). Comments

submitted through http://

www.regulations.gov cannot be claimed

as CBI. Comments received through the

website will waive any CBI claims for

the information submitted. For

information on submitting CBI, see the

Confidential Business Information

section below. TVA processes

submissions made through http://

www.regulations.gov before posting.

Normally, comments will be posted

within a few days of being submitted.

However, if large volumes of comments

are being processed simultaneously,

your comment may not be viewable for

up to several weeks. Please keep the

comment tracking number that http://

www.regulations.gov provides after you

have successfully uploaded your

comment. Submitting comments via

email, hand delivery/courier, or postal

mail. Comments and documents

submitted via email, hand delivery/

courier, or postal mail also will be

posted to http://www.regulations.gov. If

you do not want your personal contact

information to be publicly viewable, do

not include it in your comment or any

accompanying documents. Instead,

provide your contact information in a

cover letter. Include your first and last

names, email address, telephone

number, and optional mailing address.

The cover letter will not be publicly

viewable as long as it does not include

any comments. Include contact

information each time you submit

comments, data, documents, and other

information to TVA. If you submit via

postal mail or hand delivery/courier,

please provide all items on a CD, if

feasible, in which case it is not

necessary to submit printed copies. No

telefacsimiles (faxes) will be accepted.

Comments, data, and other information

submitted to TVA electronically should

be provided in PDF (preferred),

Microsoft Word or Excel, WordPerfect,

or text (ASCII) file format. Provide

documents that are written in English,

and that are free of any defects or

viruses. Documents should not contain

special characters or any form of

encryption and, if possible, they should

carry the electronic signature of the

author. Campaign form letters. Please

submit campaign form letters by the

originating organization in batches of

between 50 to 500 form letters per PDF

or as one form letter with a list of

supporters’ names compiled into one or

more PDFs. This reduces comment

processing and posting time.

Confidential Business Information.

Pursuant to 10 CFR 1004.11, any person

submitting information that they believe

to be confidential and exempt by law

from public disclosure should submit

via email, postal mail, or hand delivery/

courier two well-marked copies: One

copy of the document marked

‘‘confidential’’ including all the

information believed to be confidential,

and one copy of the document marked

‘‘non-confidential’’ that deletes the

information believed to be confidential.

Submit these documents via email or

on a CD, if feasible. TVA will make its

own determination about the

confidential status of the information

and will treat it according to its

determination. It is TVA’s policy that all

comments, including any personal

information provided in the comments,

may be included in the public docket,

without change and as received, except

for information deemed to be exempt

from public disclosure.

Regulatory Analysis

A. Review Under Executive Order

12866, ‘‘Regulatory Planning and

Review’’

TVA sought informal review and

support from the Office of Information

and Regulatory Affairs in the Office of

Management and Budget (OMB). TVA

does not anticipate that this rulemaking

will have an economic impact on

regulated entities. This is a proposed

rule of agency procedure and practice.

The proposed rule describes TVA’s

internal procedures for the

promulgation and processing of

guidance documents, to ensure that

guidance documents only clarify

existing statutory and regulatory

obligations and do not impose any new

obligations. TVA proposes to adopt

these internal procedures as part of its

implementation of E.O. 13891, and does

not anticipate incurring significant

additional resource costs in doing so.

Moreover, it is anticipated that the

public will benefit from the resulting

increase in efficiency and transparency

in the issuance of guidance documents,

and more opportunities to comment on

guidance documents.

B. Review Under Executive Order 13771

Executive Order 13771, ‘‘Reducing

Regulation and Controlling Regulatory

Costs,’’ at 82 FR 9339 (January 30,

2017), states that the policy of the

executive branch is to be prudent and

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financially responsible in the

expenditure of funds, from both public

and private sources. E.O. 13771 states

that it is essential to manage the costs

associated with the governmental

imposition of private expenditures

required to comply with Federal

regulations. More specifically, section 2

of E.O. 13771 requires, amongst other

things, that the costs of any new

regulation be offset by the elimination of

existing costs associated with at least 2

prior regulations.

C. Review Under the Regulatory

Flexibility Act

The Regulatory Flexibility Act (5

U.S.C. 601 et seq.) requires the

preparation of an initial regulatory

flexibility analysis (IRFA) for any rule

that by law must be proposed for public

comment, unless the agency certifies

that the rule, if promulgated, will not

have a significant economic impact on

a substantial number of small entities.

The final rule would codify internal

agency procedures regarding TVA’s

issuance of guidance documents.

Additionally, as noted previously,

guidance documents do not have the

force and effect of law and are not

legally binding on regulated entities.

This rule would establish procedures to

ensure that TVA guidance only clarifies

existing statutory and regulatory

obligations, rather than imposing any

new obligations. TVA therefore does not

anticipate any significant economic

impacts from this final rule. For these

reasons, TVA certifies that this

rulemaking will not have a significant

economic impact on a substantial

number of small entities. Accordingly,

TVA did not prepare an IRFA for this

rulemaking.

D. Review Under the Paperwork

Reduction Act of 1995

The final rule would impose no new

information or record keeping

requirements. Accordingly, Office of

Management and Budget (OMB)

clearance is not required under the

Paperwork Reduction Act. (44 U.S.C.

3501 et seq.).

E. Review Under the National

Environmental Policy Act of 1969

TVA has determined that the final

rule would be covered under the

Categorical Exclusion found in TVA’s

National Environmental Policy Act

regulations at paragraph 7 of appendix

A to subpart C, 18 CFR part 1318. This

Categorical Exclusion applies to actions

that are administrative actions

consisting solely of paperwork. The

final rule would codify internal agency

procedures for issuing guidance

documents. The action would not have

direct environmental impacts.

Accordingly, TVA does not intend to

prepare an environmental assessment or

an environmental impact statement.

F. Review Under Executive Order 13132,

‘‘Federalism’’

Executive Order 13132, ‘‘Federalism,’’

64 FR 43255 (August 4, 1999), imposes

certain requirements on agencies

formulating and implementing policies

or regulations that preempt State law or

that have federalism implications. E.O.

13132 requires agencies to examine the

constitutional and statutory authority

supporting any action that would limit

the policymaking discretion of the

States and carefully assess the necessity

for such actions. The E.O. also requires

agencies to have an accountable process

to ensure meaningful and timely input

by State and local officials in the

development of regulatory policies that

have federalism implications. TVA

examined this final rule and determined

that it would not preempt State law and

would not 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.

G. Review Under Executive Order 13175

‘‘Consultation and Coordination With

Indian Tribal Governments’’

Executive Order 13175, ‘‘Consultation

and Coordination with Indian Tribal

Governments,’’ 65 FR 67249, November

9, 2000, applies to agency regulations

that have Tribal implications; that is,

regulations that have substantial direct

effects on one or more Indian tribes, on

the relationship between the Federal

Government and Indian Tribes, or on

the distribution of power and

responsibilities between the Federal

Government and Indian Tribes. The

final rule would not significantly or

uniquely affect the communities of the

Indian tribal governments, or impose

substantial direct compliance costs on

them, therefore the funding and

consultation requirements of E.O. 13175

do not apply.

H. Review Under Executive Order

12988, ‘‘Civil Justice Reform’’

With respect to the review of existing

regulations and the promulgation of

new regulations, section 3(a) of

Executive Order 12988, ‘‘Civil Justice

Reform,’’ 61 FR 4729 February 7, 1996),

imposes on Federal agencies the general

duty to adhere to the following

requirements:

(1) Eliminate drafting errors and

ambiguity;

(2) Write regulations to minimize

litigation; and

(3) Provide a clear legal standard for

affected conduct, rather than a general

standard and promote simplification

and burden reduction.

Section 3(b) of E.O. 12988 specifically

requires Executive agencies to make

every reasonable effort to ensure that the

proposed regulation:

(1) Clearly specifies its preemptive

effect, if any;

(2) Clearly specifies any effect on

existing Federal law or regulation;

(3) Provides a clear legal standard for

affected conduct, while promoting

simplification and burden reduction;

(4) Specifies its retroactive effect, if

any;

(5) Adequately defines key terms; and

(6) Addresses other important issues

affecting clarity and general

draftsmanship under any guidelines

issued by the Attorney General.

E.O. 12988 Section 3(c) requires

Executive agencies to review regulations

to determine whether the E.O.

requirements are met, or the agency

determines that it is unreasonable to

meet one or more of them. TVA has

completed the required review and

determined that, to the extent permitted

by law, the final rule would meet the

E.O. 12988 relevant standards.

I. Review Under the Unfunded

Mandates Reform Act of 1995

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA) (Pub. L.

104–4) requires each Federal agency to

assess the effects of Federal regulatory

actions on State, local, and tribal

governments and the private sector. For

a proposed regulatory action likely to

result in a rule that may cause the

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector of $100 million or more

in any one year (adjusted annually for

inflation), section 202 of UMRA requires

a Federal agency to publish a written

statement that estimates the resulting

costs, benefits, and other effects on the

national economy (2 U.S.C. 1532(a) and

(b)). The UMRA also requires a Federal

agency to develop an effective process

to permit timely input by elected

officers of State, local, and tribal

governments on a proposed ‘‘significant

intergovernmental mandate’’ and

requires an agency plan for giving notice

and opportunity for timely input to

potentially affected small governments

before establishing any requirements

that might significantly or uniquely

affect small governments. This final rule

contains neither an intergovernmental

mandate nor a mandate that may result

in the expenditure of $100 million or

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more in any year by State, local, and

tribal governments, in the aggregate, or

by the private sector, so UMRA

requirements do not apply.

J. Review Under Executive Order 13211,

‘‘Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use’’

Executive Order 13211, ‘‘Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use,’’ 66 FR 28355 (May

22, 2001), requires Federal agencies to

prepare and submit to the Office of

Information and Regulatory Affairs

(OIRA) within the Office of Management

and Budget, a Statement of Energy

Effects for any proposed significant

energy action. A ‘‘significant energy

action’’ is defined as any action by an

agency that promulgated or is expected

to lead to promulgation of a final rule,

and that:

(1) Is a significant regulatory action

under E.O. 12866, or any successor

order; and

(2) Is likely to have a significant

adverse effect on the supply,

distribution, or use of energy, or

(3) Is designated by the Administrator

of OIRA as a significant energy action.

For any proposed significant energy

action, the agency must give a detailed

statement of any adverse effects on

energy supply, distribution, or use

should the proposal be implemented,

and of reasonable alternatives to the

action and their expected benefits on

energy supply, distribution, and use.

The final rule would codify internal

agency procedures and does not meet

any of the three criteria listed above.

Accordingly, the requirements of E.O.

13211 do not apply.

Approval of the Agency Head

The Tennessee Valley Authority’s

Chief Executive Officer approved the

publication of this final rule, via

delegation to the General Counsel.

Signing Authority

This document of the Tennessee

Valley Authority was approved on

August 28, 2020, by Sherry A. Quirk,

General Counsel, pursuant to delegated

authority from the Chief Executive

Officer. For administrative purposes

only, and in compliance with

requirements of the Office of the Federal

Register, the undersigned TVA Federal

Register Liaison Officer has been

authorized to sign and submit the

document for publication, as an official

document of the Tennessee Valley

Authority. This administrative process

in no way alters the legal effect of this

document upon publication in the

Federal Register.

Signed in Knoxville, Tennessee, on August

28, 2020.

Dillis D. Freeman, Jr.

Federal Register Liaison Officer, Tennessee

Valley Authority.

List of Subjects in 18 CFR Part 1301

Freedom of information, Privacy,

Sunshine Act.

For the reasons stated previously,

TVA is amending part 1301 of title 18

of the Code of Federal Regulations as set

forth below:

PART 1301—PROCEDURES

■1. The authority citation for part 1301

continues to read as follows:

Authority: 5 U.S.C. 552 and 552a; 16

U.S.C. 831–831dd.

■2. Add subpart F, consisting of

§ 1301.70 through 1301.80, to read as

follows:

Subpart F—General

Sec.

1301.70 Purpose and scope.

1301.71 Guidance document definition.

1301.72 Review and clearance by TVA’s

Office of the General Counsel.

1301.73 Public access to effective guidance

documents.

1301.74 Good faith cost estimates.

1301.75 Designation procedures.

1301.76 Notice-and-comment procedures.

1301.77 Petitions.

1301.78 Rescinded guidance.

1301.79 Emergency situations, exigent

circumstances, and legal requirement.

1301.80 No judicial review or enforceable

rights.

Subpart F—General

§ 1301.70 Purpose and scope.

(a) This subpart governs all Tennessee

Valley Authority (TVA) employees and

contractors involved with all phases of

developing, drafting and issuing TVA

guidance documents.

(b) Subject to the qualifications and

exemptions contained in this subpart,

these procedures apply to all TVA

guidance documents, as defined by the

Administrative Procedures Act,

Executive Order 13891 and the Office of

Management and Budget memo M–20–

02, Memorandum for Regulatory Policy

Officers at Executive Departments and

Agencies and Managing and Executive

Directors of Certain Agencies and

Commissions, Dominic J. Mancini,

OIRA Acting Director (Oct. 31, 2019).

§ 1301.71 Guidance document definition.

(a)(1) 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

TVA’s jurisdiction that is intended to

have general applicability and future

effect on the public, 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. See OMB

Bulletin 07–02, ‘‘Agency Good

Guidance Practices,’’ See Office of

Management and Budget (OMB)

Bulletin 07–02, ‘‘Agency Good

Guidance Practices,’’ (January 25, 2007)

(‘‘OMB Good Guidance Bulletin’’).

(2) The term ‘‘guidance document’’

Does not include:

(i) Rules exempt from rulemaking

requirements under 5 U.S.C. 553(a);

(ii) Rules of agency organization,

procedure, or practice;

(iii) Decisions of agency adjudications

under 5 U.S.C. 554 or similar statutory

provisions;

(iv) Internal executive branch legal

advice or legal advisory opinions

addressed to executive branch officials;

(v) 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;

(vi) Legal briefs, other court filings, or

positions taken in litigation or

enforcement actions;

(vii) 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;

(viii) Guidance pertaining to military

or foreign affairs functions;

(ix) Grant solicitations and awards;

(x) Contract solicitations and awards;

(xi) Purely internal agency policies or

guidance directed solely to TVA

employees or contractors or to other

public entities or agencies that are not

intended to have substantial future

effect on the behavior of regulated

parties; or

(xii) Documents associated with

matters relating to agency management

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or personnel or to public property,

loans, grants, benefits, or contracts.

(b) The term ‘‘TVA’’ refers to the

Tennessee Valley Authority, a corporate

agency of the United States, subject to

applicable federal and state statutes and

regulations and charged with a diverse

mission. Congress tasked TVA with,

among other things, providing flood

control, navigation, and land

management for the Tennessee River

system; management and stewardship

for TVA lands and waterways;

producing and distributing electricity;

regulating local power companies; and

assisting local power companies and

state and local governments in the

Tennessee Valley with economic

development and job creation.

(c) The term ‘‘BU’’ refers to a Business

Unit, the organizational structure into

which the various responsibilities

associated with TVA’s mission is

divided.

(d) The term ‘‘OGC’’ refers to TVA’s

Office of the General Counsel, a BU

within TVA.

(e)(1) 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:

(i) 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;

(ii) To create serious inconsistency or

otherwise interfere with an action taken

or planned by another Federal agency;

(iii) To alter materially the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(iv) To raise novel legal or policy

issues arising out of legal mandates, the

President’s priorities, or the principles

set forth in Executive Order 12866, as

further amended.

(2) The term ‘‘significant guidance

document’’ does not include the

categories of documents excluded by

section 2 of Executive Order 12866 or

any other category of guidance

documents exempted by the Office of

Management and Budget. Even if not

‘‘significant,’’ a guidance document will

be considered ‘‘otherwise of importance

to the TVA’s interests’’ within the

meaning of this paragraph, if it may

reasonably be anticipated:

(i) To relate to a major program,

policy, or activity of TVA or a high

profile issue pending for decision before

TVA;

(ii) To involve one of the CEO or

Board of Directors’ top policy priorities;

(iii) To garner significant press or

congressional attention; or

(iv) To raise significant questions or

concerns from constituencies of

importance to the TVA, such as

Committees of Congress, States or

Indian tribes, the White House or other

departments of the Executive Branch,

courts, consumer or public interest

groups, or leading representatives of

industry.

§ 1301.72 Review and clearance by TVA’s

Office of the General Counsel.

The Office of the General Counsel

(OGC)’s review and clearance of all TVA

guidance documents shall ensure that

each guidance document proposed to be

issued by TVA satisfies the following

requirements:

(a) The guidance document complies

with all relevant statutes and

regulations;

(b) The guidance document identifies

or includes:

(1) The term ‘‘guidance’’ or its

functional equivalent in the title of the

document;

(2) A unique identifier, including, at

a minimum, the date of issuance and

title of the document, if applicable;

(3) The activity or entities to which

the guidance applies;

(4) Citations to applicable statutes and

regulations;

(5) 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

(6) A short summary of the subject

matter covered at the beginning of the

guidance document.

(c) The guidance document generally

avoids using mandatory language, such

as ‘‘shall,’’ ‘‘must,’’ ‘‘required,’’ or

‘‘requirement,’’ unless the language of

the document is describing an

established statutory or regulatory

requirement or is addressed to TVA

staff, and will not foreclose

consideration of positions advanced by

affected private parties;

(d) The guidance document is written

in plain and understandable English;

and

(e) The guidance document includes a

clear and prominent statement declaring

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

TVA policies.

§ 1301.73 Public access to effective

guidance documents.

(a) TVA shall ensure that:

(1) All effective guidance documents

are loaded onto TVA’s guidance portal

website, available at https://

www.tva.com/about-tva/guidelines-and-

reports/tva-guidance-documents, in a

single, searchable, indexed database,

and available to the public in

accordance with the Freedom of

Information Act and associated

regulations;

(2) All effective guidance documents

are identified by a unique identifier

which includes, at a minimum, the

document’s title and date of issuance or

revision.

(b) The TVA guidance document

website will identify a TVA BU to

receive and address complaints from the

public that TVA is not following the

requirements of the Administrative

Procedures Act or Executive Order

13891, or is improperly treating a

guidance document as a binding

requirement.

§ 1301.74 Good faith cost estimates.

Even though not legally binding, some

TVA guidance documents could result

in significant economic impact. For

example, guidance documents could

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

guidance documents, the proposing

TVA BU 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 meet the

definition of a significant guidance

document. When the proposing TVA BU

is assessing or explaining whether it

believes a guidance document is a

significant guidance document, it shall

comply with the analytic requirements

that would otherwise be required for a

major determination under the

Congressional Review Act.

§ 1301.75 Designation procedures.

(a) TVA may prepare a designation

request to OMB’s OIRA for certain

guidance documents. Designation

requests must include at least the

following information:

(1) A summary of the guidance

document; and

(2) The TVA recommended

designation of ‘‘not significant’’ or

‘‘significant,’’ as well as a justification

for that designation.

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60068

Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations

(b) Except as otherwise provided in

paragraph (c) of this section, TVA may

seek significance determinations from

OIRA for guidance documents, as

appropriate, in the same manner as for

rulemakings. 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,

TVA will generally 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 13891.

(c) Guidance documents that do not

otherwise present novel issues,

significant risks, interagency

considerations, unusual circumstances,

or other unique issues that could

reasonably be considered as significant

or economically significant, within the

meanings of Executive Order 13891,

will not typically require a designation

by OIRA.

§ 1301.76 Notice-and-comment

procedures.

(a) Except as provided in paragraph

(b) of this section, all proposed TVA

guidance documents determined to be a

‘‘significant guidance document’’ shall

be subject to the following informal

notice-and-comment procedures. TVA

shall publish a document in the Federal

Register announcing that a draft of the

proposed significant guidance

document is publicly available, shall

post the draft significant guidance

document on the TVA guidance portal

site, shall invite public comment on the

draft document for at least 30 days, and

shall prepare and post a public response

to significant concerns raised in the

comments, as appropriate, on the TVA

guidance portal site, 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 OGC finds, in

consultation with OIRA, and the vice

president of the proposing TVA BU,

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 therefor in the guidance issued).

(c) Where appropriate, OGC and the

vice president of the proposing TVA BU

may recommend to the TVA Chief

Executive Officer (CEO) that a particular

guidance document that is otherwise of

importance to TVA’s interests shall also

be subject to the informal notice-and-

comment procedures described in

paragraph (a) of this section.

§ 1301.77 Petitions.

Any person may petition the TVA

Board of Directors to withdraw or

modify a particular guidance document

by submitting a written petition,

addressed to the TVA Board of

Directors, to OGC. TVA will endeavor to

respond to all requests in a timely

manner, and no later than 90 days after

receipt of the request.

§ 1301.78 Rescinded guidance.

No TVA BU may cite, use, or rely on

guidance documents that are rescinded,

except to establish historical facts.

§ 1301.79 Emergency situations, exigent

circumstances, and legal requirement.

In emergency situations or exigent

circumstances, or when TVA is required

by statutory deadline or court order to

act more quickly than normal review

procedures allow, TVA shall notify

OIRA of the circumstances that

foreclose compliance with these

procedures, and shall comply with the

requirements of this subpart, to the

extent practicable, at the earliest

opportunity after the exigent

circumstances have ceased. Wherever

practicable, TVA should schedule its

guidance document review proceedings

to permit sufficient time to comply with

the procedures set forth in this subpart,

given the nature and extent of the

exigent circumstances.

§ 1301.80 No judicial review or enforceable

rights.

The regulations in this subpart are

intended to improve TVA’s issuance of

guidance documents and processes and

procedures that govern TVA’s guidance

documents. As such, this subpart is for

the use of TVA personnel and

contractors 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, TVA, its agencies, agents,

contractors, or other entities, officers,

employees, or any other person.

[FR Doc. 2020–19546 Filed 9–23–20; 8:45 am]

BILLING CODE 8120–08–P

DEPARTMENT OF THE TREASURY

Office of Foreign Assets Control

31 CFR Part 515

Cuban Assets Control Regulations

AGENCY

: Office of Foreign Assets

Control, Treasury.

ACTION

: Final rule.

SUMMARY

: The Department of the

Treasury’s Office of Foreign Assets

Control (OFAC) is amending the Cuban

Assets Control Regulations to further

implement portions of the President’s

foreign policy toward Cuba to deny the

Cuban regime sources of revenue.

Specifically, this rule: Adds a new

prohibition for persons subject to U.S.

jurisdiction regarding lodging and

related transactions at certain properties

in Cuba identified on a new list

maintained by the State Department,

and amends an interpretive provision

and several general licenses to

incorporate this new prohibition;

amends four general licenses to restrict

the importation into the United States of

Cuban-origin alcohol and tobacco

products; amends a general license to

remove the authorization for persons

subject to U.S. jurisdiction to attend or

organize professional meetings or

conferences in Cuba; and removes a

general license that authorizes persons

subject to U.S. jurisdiction to participate

in or organize certain public

performances, clinics, workshops, other

athletic or non-athletic competitions,

and exhibitions, and replaces it with a

specific licensing policy. OFAC is also

making a number of technical and

conforming changes.

DATES

: This rule is effective September

24, 2020.

FOR FURTHER INFORMATION CONTACT

:

OFAC: Assistant Director for Licensing,

202–622–2480, Assistant Director for

Regulatory Affairs, 202–622–4855, or

Assistant Director for Sanctions

Compliance & Evaluation, 202–622–

2490.

SUPPLEMENTARY INFORMATION

:

Electronic Availability

This document and additional

information concerning OFAC are

available on OFAC’s website

(www.treasury.gov/ofac).

Background

The Department of the Treasury

issued the Cuban Assets Control

Regulations, 31 CFR part 515 (the

‘‘Regulations’’), on July 8, 1963, under

various authorities, including the

Trading With the Enemy Act (50 U.S.C.

4301–41). OFAC has amended the

Regulations on numerous occasions,

including to implement National

Security Presidential Memorandum–5,

‘‘Strengthening the Policy of the United

States Toward Cuba,’’ signed by the

President on June 16, 2017, and the

President’s foreign policy toward Cuba.

Today, OFAC, in consultation with

the State Department, is taking

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