[Federal Register Volume 85, Number 76 (Monday, April 20, 2020)]
[Rules and Regulations]
[Pages 21770-21773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07523]


=======================================================================
-----------------------------------------------------------------------

FEDERAL MEDIATION AND CONCILIATION SERVICE

29 CFR Part 1473

RIN 3076-AA15


Administrative Guidance

AGENCY: Federal Mediation and Conciliation Service.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule sets forth the Service's procedures governing 
the issuance of guidance documents as required by the Executive order 
titled ``Promoting the Rule of Law Through Improved Agency Guidance 
Documents''.

DATES: Effective on May 20, 2020.

FOR FURTHER INFORMATION CONTACT: Sarah Cudahy, Office of the General 
Counsel, 202-606-8090, [email protected].

SUPPLEMENTARY INFORMATION: This final rule, which adds to the Code of 
Federal Regulations at 49 part 1473, is adopted pursuant to Executive 
Order 13891, titled: ``Promoting the Rule of Law Through Improved 
Agency Guidance Documents'' (October 9, 2019). In that Executive order, 
Federal agencies are required to finalize regulations, or amend 
existing regulations as necessary, to set forth processes and 
procedures for issuing guidance documents.

Administrative Procedure

    Under the Administrative Procedure Act, an agency may waive the 
normal notice and comment procedures if the action is a rule of agency 
organization, procedure, or practice. See 5 U.S.C. 553(b)(3)(A). As 
this final rule merely codifies procedures applicable to the Service's 
administrative procedures into the Code of Federal Regulations, notice 
and comment are not necessary.

Rulemaking Analyses and Notices

A. Executive Order 12866

    The Office of Management and Budget has determined that this 
rulemaking is not a significant regulatory action under Executive Order 
12866. The Service does not anticipate that this rulemaking will have 
an economic impact on regulated entities. This is a rule of agency 
procedure and practice. The

[[Page 21771]]

final rule describes the Service's procedures for processing of 
guidance documents. The Service has adopted these internal procedures 
as required by Executive Order 13891, and has not incurred any 
additional resource costs in doing so. The adoption of these practices 
has been accomplished through the use of existing agency resources, and 
it is anticipated that the public will benefit from the resulting 
increase in efficiency in delivery of government services.

B. Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs)

    This rule is not an Executive Order 13771 regulatory action because 
this rule is not significant under Executive Order 12866.

C. Regulatory Flexibility Act

    Since notice and comment rulemaking is not necessary for this rule, 
the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5 
U.S.C. 601-612) do not apply.

D. 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 Executive 
Order 13132 (August 4, 1999), and the Service 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.

E. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments.'' 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 do not apply.

F. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that FMCS consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA section 3507(d), obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. The Service has 
determined there are no new information collection requirements 
associated with this final rule.

G. National Environmental Policy Act

    The agency has analyzed the environmental impacts of this action 
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 
U.S.C. 4321 et seq.) and has determined that it does not apply. The 
purpose of this rulemaking is to formalize the Service's administrative 
procedures for guidance documents. The agency does not anticipate any 
environmental impacts, and there are no extraordinary circumstances 
present in connection with this rulemaking.

Regulation Identifier Number

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
the spring and fall of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 29 CFR Part 1473

    Administrative practice and procedure, Guidance documents.

    Issued in Washington, DC on April 6, 2020.
Gregory Goldstein,
Acting Director.


0
In consideration of the foregoing, the Federal Mediation and 
Conciliation Service adds 29 CFR part 1473 to read as follows:

PART 1473--ADMINISTRATIVE GUIDANCE

Subpart A--Guidance Documents
Sec.
1473.1 Purpose and scope.
1473.2 Definition of guidance document.
1473.3 Review and clearance by the Office of the General Counsel.
1473.4 Requirements for clearance.
1473.5 Public access to guidance documents.
1473.6 Waiver of publication of guidance documents.
1473.7 Good faith cost estimates.
1473.8 Definition of significant guidance document.
1473.9 Procedure for guidance documents identified as 
``significant''.
1473.10 Notice-and-comment procedures.
1473.11 Petitions to withdraw or modify guidance.
1473.12 Rescinded guidance.
1473.13 Exigent circumstances.
1473.14 Reports to Congress and the Government Accountability Office 
(GAO).
1473.15 No judicial review or enforceable rights.
Subpart B--[Reserved]

    Authority:  29 U.S.C. 172 and 29 U.S.C. 173, et seq.

Subpart A--Guidance Documents


Sec.  1473.1  Purpose and scope.

    (a) This subpart prescribes general procedures that apply to 
guidance documents of the Federal Mediation and Conciliation Service.
    (b) This subpart governs all Federal Mediation and Conciliation 
Service employees and contractors involved with all phases of issuing 
Service guidance documents.
    (c) This subpart applies to all guidance documents by the Service 
in effect on or after February 28, 2020.


Sec.  1473.2  Definition of guidance document.

    (a) For purposes of this subpart, the term guidance document means 
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 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.
    (b) 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

[[Page 21772]]

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 
Service employees or contractors or to other Federal agencies that are 
not intended to have substantial future effect on the behavior of 
regulated parties.


Sec.  1473.3  Review and clearance by the Office of the General 
Counsel.

    All Federal Mediation and Conciliation Service guidance documents, 
as defined in Sec.  1473.2, require review and clearance in accordance 
with this subpart. All guidance proposed to be issued by the Service 
must be reviewed and cleared by the Office of General Counsel.


Sec.  1473.4  Requirements for clearance.

    The Service's review and clearance of guidance shall ensure that 
each guidance document proposed to be issued by the Federal Mediation 
and Conciliation Service 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) A concise name for the guidance document;
    (3) The issuing department;
    (4) A unique identifier, including, at a minimum, the date of 
issuance, title of the document, and a number assigned by the Office of 
General Counsel (or, in the case of a significant guidance document, 
the Z-RIN (regulation identifier number));
    (5) The general topic addressed by the guidance document;
    (6) Citations to applicable statutes and regulations;
    (7) 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
    (8) A concise summary of the guidance document's content;
    (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 Service staff and will not foreclose the 
Service'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 the following disclaimer 
prominently: ``The contents of this document do not have the force and 
effect of law and are not meant to bind the public in any way. This 
document is intended only to provide clarity to the public regarding 
existing requirements under the law or agency policies.'' When an 
agency's guidance document is binding because guidance is authorized by 
law or because the guidance is incorporated into a contract, the agency 
should modify this disclaimer to reflect either of those facts.


Sec.  1473.5  Public access to guidance documents.

    The Office of General Counsel shall:
    (a) Oversee the creation of a guidance portal on the agency's 
website;
    (b) Ensure all effective guidance documents, identified by a unique 
identifier as described in Sec.  1473.4(b)(4), are on the guidance 
portal in a single, searchable, indexed database, and available to the 
public;
    (c) Note on the agency's guidance portal that guidance documents 
lack the force and effect of law, except as authorized by law or as 
incorporated into a contract;
    (d) Maintain and publish on the Service's guidance portal a means 
for the public to comment electronically on any guidance documents that 
are subject to the notice-and-comment procedures, and to submit 
requests electronically for issuance, reconsideration, modification, or 
rescission of guidance documents in accordance with Sec.  1473.11;
    (e) Include on the agency's guidance portal the date on which all 
guidance documents were posted to the website, and a hyperlink to all 
the guidance documents;
    (f) Receive and address complaints from the public that the Service 
is not following the requirements of the Office of Management and 
Budget's (OMB) Good Guidance Bulletin, or that the Service is 
improperly treating a guidance document as a binding requirement;
    (g) Note on the agency's guidance portal that any guidance document 
not posted on the guidance portal is rescinded, and that neither the 
agency nor a party may cite, use, or rely on any guidance document that 
is not posted on the guidance portal, except to establish historical 
facts; and
    (h) Include on the agency's guidance portal a link to this subpart.


Sec.  1473.6  Waiver of publication of guidance documents.

    (a) Section 1473.5(b) and (e) does not apply to guidance documents 
for which a waiver has been applied from the OMB Director pursuant to 
Subsection 3(c) of E.O. 13891.
    (b) Requests for waivers must be written and signed by a senior 
policy official at the agency.


Sec.  1473.7  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 Federal Mediation and Conciliation Service 
(FMCS) 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 FMCS is 
assessing or explaining whether it believes a guidance document is 
significant, it shall, at a minimum, provide the same level of analysis 
that is required for a major determination under the Congressional 
Review Act.\1\ When FMCS, in consultation with OMB's Office of 
Information and Regulatory Affairs (OIRA), determines that a guidance 
document will be economically significant, FMCS will conduct and 
publish a Regulatory Impact Analysis of the sort that would accompany 
an economically significant rulemaking, to the extent reasonably 
possible.
---------------------------------------------------------------------------

    \1\ See OMB Memorandum M-19-14, Guidance on Compliance with the 
Congressional Review Act (April 11, 2019).

---------------------------------------------------------------------------

[[Page 21773]]

Sec.  1473.8  Definition of significant guidance document.

    (a) The term significant guidance document means a guidance 
document that will be disseminated to regulated entities or the general 
public and that may reasonably be anticipated:
    (1) To lead to an annual effect on the economy of $100 million or 
more or adversely affect in a material way the U.S. economy, a sector 
of the U.S. economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities;
    (2) To create serious inconsistency or otherwise interfere with an 
action taken or planned by another Federal agency;
    (3) To alter materially the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (4) To raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
E.O. 12866, as further amended.
    (b) The term significant guidance document does not include the 
categories of documents excluded by Sec.  1473.2 or any other category 
of guidance documents exempted in writing by the Office of General 
Counsel in consultation with OIRA.


Sec.  1473.9  Procedure for guidance documents identified as 
``significant''.

    (a) FMCS will make an initial, preliminary determination about a 
guidance document's significance. Thereafter, FMCS must consult with 
OIRA to determine whether guidance is significant guidance, unless the 
guidance is otherwise exempted from such a determination by the 
Administrator of OIRA.
    (b) Significant guidance documents, as determined by the 
Administrator of OIRA, 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.
    (c) Significant guidance documents must be signed by the Director.


Sec.  1473.10  Notice-and-comment procedures.

    (a) Except as provided in paragraph (b) of this section, all 
proposed Federal Mediation and Conciliation Service guidance documents 
determined to be a ``significant guidance document'' within the meaning 
of Sec.  1473.8 shall be subject to the following informal notice-and-
comment procedures. The Office of General Counsel shall publish a 
notice in the Federal Register announcing that a draft of the proposed 
guidance document is publicly available, shall post the draft guidance 
document on its website, 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, 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 the Office of General Counsel finds, in 
consultation with OIRA, the proposing department, and the Director, 
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, the Office of General Counsel or the 
proposing department may recommend to the Director that a particular 
guidance document that is otherwise of importance to the Service's 
interests shall also be subject to the informal notice-and-comment 
procedures described in paragraph (a) of this section.


Sec.  1473.11  Petitions to withdraw or modify guidance.

    (a) Any person may petition the Office of General Counsel to 
withdraw or modify a particular guidance document as specified by Sec.  
1473.5(d).
    (b) The Office of General Counsel should respond to all requests in 
a timely manner, but no later than 90 days after receipt of the 
request.


Sec.  1473.12  Rescinded guidance.

    (a) The Office of General Counsel, in consultation with the 
Director and the issuing department, shall determine whether to rescind 
a guidance document.
    (b) Once rescinded, the hyperlink to the guidance document will be 
removed. The name, title, unique identifier, and date of rescission 
will be listed on the guidance portal for at least one year after 
rescission.
    (c) No party or employee of the Federal Mediation and Conciliation 
Service may cite, use, or rely on rescinded guidance documents, except 
to establish historical facts.


Sec.  1473.13  Exigent circumstances.

    In emergency situations or when the Federal Mediation and 
Conciliation Service is required by statutory deadline or court order 
to act more quickly than normal review procedures allow, the issuing 
department shall coordinate with the Office of General Counsel to 
notify 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 Office of General Counsel should 
schedule its proceedings to permit sufficient time to comply with the 
procedures set forth in this subpart.


Sec.  1473.14  Reports to Congress and the Government Accountability 
Office (GAO).

    Unless otherwise determined in writing by the Office of General 
Counsel, it is the policy of the Service that upon issuing a guidance 
document determined to be ``significant'' within the meaning of Sec.  
1473.8, the Director 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.  1473.15  No judicial review or enforceable rights.

    This subpart is intended to improve the internal management of the 
Federal Mediation and Conciliation Service. As such, it is for the use 
of Federal Mediation and Conciliation Service 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 agencies or other entities, its officers or 
employees, or any other person.

Subpart B--[Reserved]

[FR Doc. 2020-07523 Filed 4-17-20; 8:45 am]
BILLING CODE 6732-01-P