[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. 13777.
    (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-

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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 
13891.
    (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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