[Federal Register Volume 85, Number 103 (Thursday, May 28, 2020)]
[Rules and Regulations]
[Pages 31978-31981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09353]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1213

[FDMS No. NARA-20-0009; Agency No. NARA-2020-03f4]
RIN 3095-AC04


Administrative Guidance Procedures

AGENCY: National Archives and Records Administration (NARA).

ACTION: Final rule.

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SUMMARY: This rule codifies our policies and procedures for reviewing 
and clearing administrative guidance documents.

DATES: Effective July 7, 2020, unless we receive adverse comments by 
June 29, 2020 that warrant revising or rescinding this rulemaking.

ADDRESSES: You may submit comments, identified by RIN 3095-AC04, by 
either of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for RIN 3095-AC04 and follow the site's instructions for 
submitting comments.
     Mail (for paper, flash drive, or CD-ROM submissions. 
Include RIN 3095-AC04 on the submission): National Archives and Records 
Administration; Regulation Comments Desk, Suite 4100; 8601 Adelphi 
Road; College Park, MD 20740-6001.
    We may publish any comments we receive without changes, including 
any personal information you include.

FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, Regulatory and 
External Policy Program Manager, by email at 
[email protected], or by telephone at 301.837.3151.

SUPPLEMENTARY INFORMATION: This rule codifies internal policies and 
procedures on developing, reviewing, and clearing guidance documents, 
which ensure that all guidance documents receive appropriate review 
before we issue them. This rule also responds to Executive Order 13891, 
Promoting the Rule of Law Through Improved Agency Guidance Documents 
(October 9, 2019), which requires Federal agencies to issue final 
regulations, or amend existing regulations as necessary, to set forth 
processes and procedures for issuing guidance documents. As a result, 
this rule incorporates requirements from the E.O. that were not 
otherwise in our internal procedures, primarily a requirement for a 
centralized guidance portal on our website and a requirement that the 
comment period for significant guidance documents be at least 30 days, 
except when the agency for good cause finds that notice and public 
comment are impracticable, unnecessary, or contrary to the public 
interest.
    The procedures contained in this rule apply to all guidance 
documents. We define guidance documents as established by OMB and the 
E.O.: Any statement we make of agency policy or interpretation 
concerning a statute, regulation, or technical matter within our 
jurisdiction that we intend to have general applicability and future 
effect on the behavior of regulated parties, but which we do not intend 
to have the force or effect of law in its own right on non-Governmental 
regulated parties, and for which a statute does not otherwise require 
us to follow the rulemaking procedures of the Administrative Procedure 
Act.
    We review guidance documents before we issue them so they are 
written in plain language and do not impose any substantive 
requirements above and

[[Page 31979]]

beyond statute, regulation, or other authority (such as an executive 
order). Although we have in the past complied with the requirements of 
the Administrative Procedure Act with regard to the content of our 
guidance documents and required procedures, we are now incorporating 
additional steps to show this compliance, as required by the E.O. and 
OMB's implementing memorandum (OMB M-20-02). This includes labeling 
each guidance document with a clear and prominent statement that the 
contents of the guidance document do not have the force and effect of 
law on the public and are not meant to bind the public beyond what is 
already required in a law, regulation, or other authority. This 
regulation also addresses significant guidance documents and their 
potential to, in some cases, have an economic impact on the public. We 
conduct a good faith cost assessment to determine economic impact on 
the public where possible, and submit significant guidance to OMB for 
review before providing informal notice-and-comment opportunity for the 
public.

Regulatory Analysis

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). Since 
this rule incorporates internal procedures about our administrative 
procedures into the Code of Federal Regulations, notice and comment are 
not necessary.

Executive Order 12866, Regulatory Planning and Review and Executive 
Order 13563, Improving Regulation and Regulation Review

    The Office of Management and Budget (OMB) has reviewed this 
rulemaking and determined it is not ``significant'' under section 3(f) 
of Executive Order 12866. It is not significant because it is a rule of 
agency procedure and practice, describing our procedures for 
promulgating and processing guidance documents, and we do not 
anticipate it having an economic impact on the public. It will help 
ensure transparency, robust public participation, and the quality and 
fairness of administrative actions.

Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    This requirement does not apply if the agency certifies that the 
rulemaking will not, if promulgated, have a significant economic impact 
on a substantial number of small entities (5 U.S.C. 603). We certify, 
after review and analysis, that this rulemaking will not have a 
significant adverse economic impact on small entities.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.)

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.) 
requires that agencies 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 OMB for each 
collection of information we conduct, sponsor, or require through 
regulations. There are no information collection requirements 
associated with this rule.

Executive Order 13132, Federalism

    Executive Order 13132 requires agencies to ensure state and local 
officials have the opportunity for meaningful and timely input when 
developing regulatory policies that may have a substantial, direct 
effect on the states, on the relationship between the Federal 
Government and the states, or on the distribution of power and 
responsibilities among the various levels of government. If the effects 
of the rule on state and local governments are sufficiently 
substantial, the agency must prepare a Federal assessment to assist 
senior policy makers. This rulemaking will not have any effects on 
state and local governments within the meaning of the E.O. Therefore, 
no Federalism assessment is required.

Executive Order 13771, Reducing Regulation and Controlling Regulatory 
Costs

    Review under E.O. 13771 seeks to reduce Federal regulations that 
impose private expenditures in order to comply with them, and to 
control those costs in any such regulations. OMB has reviewed this 
rulemaking and determined that it is exempt from E.O. 13771 
requirements. This rulemaking is exempt because it is not significant 
under E.O. 12866 and because it is a rule of agency procedure and 
practice.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4; 2 U.S.C. 1532)

    The Unfunded Mandates Reform Act requires that agencies determine 
whether any Federal mandate in the rulemaking may result in state, 
local, and tribal governments, in the aggregate, or the private sector, 
expending $100 million in any one year. This rule does not contain a 
Federal mandate that may result in such an expenditure.

List of Subjects in 36 CFR Part 1213

    Administrative procedure, Agency administration, Agency guidance, 
Public notice and comment.

0
For the reasons discussed in the premable, NARA adds part 1213 as 
follows:

PART 1213--AGENCY GUIDANCE PROCEDURES

Sec.
1213.1 Scope.
1213.2 Definitions.
1213.4 Requirements for review and clearance.
1213.6 Public access to guidance documents.
1213.8 Significant guidance.
1213.10 Petitions for guidance.
1213.12 Rescinded guidance.
1213.14 Exigent circumstances.
1213.16 No judicial review or enforceable rights.

    Authority: 44 U.S.C. 2104(a).


Sec.  1213.1  Scope.

    (a) This part prescribes general procedures that apply to guidance 
documents NARA and its components issue after April 30, 2020, and to 
all NARA employees and contractors involved in all phases of developing 
and issuing policy and guidance.
    (b) This part does not apply to:
    (1) Regulations; although some regulations are subject to 
rulemaking requirements under 5 U.S.C. 553(a), they do not constitute 
guidance, so are not covered by this rule. In addition, this rule does 
not apply to regulations exempt from rulemaking requirements under 5 
U.S.C. 553(a) and regulations of agency organization, procedure, or 
practice;
    (2) Decisions of agency adjudications under 5 U.S.C. 554 or similar 
statutory provisions;
    (3) Internal executive branch legal advice or legal advisory 
opinions addressed to executive branch officials;
    (4) 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 using, operating, or 
controlling a Government facility or property), and correspondence with 
individual people or entities (e.g., congressional correspondence), 
except documents ostensibly directed to a particular party but designed 
to guide the conduct of the broader regulated parties;

[[Page 31980]]

    (5) Legal briefs, other court filings, or positions taken in 
litigation or enforcement actions;
    (6) 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 or guidance;
    (7) Guidance pertaining to military or foreign affairs functions;
    (8) Grant solicitations and awards;
    (9) Contract solicitations and awards; or
    (10) Purely internal agency policies or guidance directed solely to 
NARA employees or contractors or to other Federal agencies that we do 
not intend to have substantial future effect on the behavior of 
regulated parties.


Sec.  1213.2  Definitions.

    (a) Guidance or guidance document means any statement of agency 
policy or interpretation concerning a statute, regulation, or technical 
matter within our jurisdiction that we intend to have general 
applicability and future effect on the behavior of regulated parties, 
but which we do not intend to have the force or effect of law in its 
own right on non-Governmental regulated parties, and for which we are 
not otherwise required by statute to satisfy the rulemaking procedures 
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, notices, handbooks and manuals, and may include video, 
audio, and web-based formats. See OMB Bulletin 07-02, Agency Good 
Guidance Practices, 72 FR 3432, 3434, 3439 (January 25, 2007) (``OMB 
Good Guidance Bulletin'').
    (b) Significant guidance document means a guidance document that we 
reasonably anticipate will:
    (1) 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) Create serious inconsistency or otherwise interfere with an 
action another Federal agency takes or plans;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of those who 
receive them; or
    (4) 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.


Sec.  1213.4  Requirements for review and clearance.

    (a) NARA's regulatory office must review and clear, according to 
this subpart, all NARA guidance documents before we issue them.
    (b) The regulatory office ensures that each guidance document 
satisfies the following requirements:
    (1) It complies with relevant statutes and regulations, and other 
applicable authorities;
    (2) It identifies or includes:
    (i) The term ``guidance'' or its functional equivalent;
    (ii) The issuing office's name;
    (iii) A unique agency identifier, according to naming conventions 
we establish, and a z-RIN, if applicable;
    (iv) A concise title;
    (iv) The issuing or effective date;
    (v) A notice about the guidance document's force and effect that is 
consistent with OMB M-2020-02, Q20;
    (vi) An indicator of whether the guidance revises or replaces any 
previously issued guidance and, if so, sufficient information to 
identify the previously issued guidance; and
    (vii) Appropriate citations to applicable statutes, regulations, 
and other authorities;
    (3) It is consistent with NARA policies, guidance, strategic 
initiatives, and other authorities, is written in plain and 
understandable English, and meets other guidance and policy analysis 
factors; and
    (4) It avoids using mandatory language, such as ``shall,'' 
``must,'' or ``required,'' unless the language is describing an 
established statutory or regulatory requirement or is addressed to 
agency staff or other Federal employees and will not foreclose our 
ability to consider positions advanced by any affected private parties.
    (c) The guidance document must also either contain or be 
accompanied by an appropriate topic keyword and a short summary of the 
subject matter covered in the guidance document, for use on the 
guidance portal.
    (d) The regulatory office also assesses whether the guidance 
document constitutes significant guidance and works with the submitting 
office to make a good faith cost estimate, as applicable, in accordance 
with Sec.  1213.8(a). If we determine that a guidance document might be 
significant, the regulatory office coordinates with OMB's Office of 
Information and Regulatory Affairs (OIRA), as outlined in Sec.  
1213.8(d).
    (e) We also assess whether the guidance document might be otherwise 
important to the agency's interests, if we reasonably anticipate that 
it might: Relate to a major program, policy, or activity, or a high-
profile issue involving the agency or its interests; involve one of 
NARA's top policy priorities; garner significant press, congressional, 
or other attention; or raise significant questions or concerns from 
constituencies such as committees of Congress, states or Indian tribes, 
the White House or other departments of the executive branch, courts, 
public interest groups, or leading representatives of industry. When 
appropriate, we may determine that a particular guidance document that 
is otherwise of importance to the agency's interests be subject to the 
informal notice-and-comment procedures described in Sec.  1213.8(f).
    (f) The regulatory office submits guidance documents we determine 
may be significant to OIRA for significance determinations, before 
clearing the submitting office to issue them.
    (f) When we issue a guidance document, we post it on our 
centralized guidance portal (see Sec.  1213.6(a)).


Sec.  1213.6  Public access to guidance documents.

    (a) We post the cleared document on our centralized guidance portal 
at www.archives.gov/guidance. The portal contains a searchable, indexed 
database of our various kinds of guidance along with links to each 
document and an agency-unique identifier, title, date issued, z-RIN, if 
applicable, topic keywords, brief summary, date added to the portal, 
and any status information (for example, that it supersedes a previous 
guidance document). All guidance currently in effect (including 
guidance originally issued before April 30, 2020) must appear on the 
portal; if it does not, it is deemed rescinded and without any effect.
    (b) The guidance portal notes that guidance documents lack the 
force and effect of law on the public, except as authorized by law, 
executive order, or regulation or as incorporated into a contract, and 
that the guidance is not legally binding on the public, except as 
established by such law, regulation, or contract. Each guidance 
document and web page that contains a listing of guidance must also 
include an appropriate notice about the force and effect of the 
guidance.
    (c) The guidance portal also includes instructions for how the 
public can comment on guidance documents that

[[Page 31981]]

are subject to the informal notice-and-comment procedures described in 
Sec.  1213.8 and to submit requests that we issue, reconsider, modify, 
or rescind guidance documents, in accordance with Sec.  1213.10. It 
also provides contact information for the public to submit complaints 
that an office is not following the requirements of OMB's Good Guidance 
Bulletin or is improperly treating a guidance document as a requirement 
binding on the public.


Sec.  1213.8  Significant guidance.

    (a) Good faith cost estimates. Even though not legally binding on 
the public, some agency guidance may result in a substantial economic 
impact on the public. For example, the guidance's existence 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, regulations, and other authorities. 
While it may be difficult to predict with precision the economic impact 
of voluntary guidance on the public, we, to the extent practicable, 
make a good faith effort to estimate the likely economic cost impact on 
the public, to determine whether the document might be significant.
    (b) Regulatory impact analyses. When we, or OIRA, determine that a 
guidance document will have an economically significant impact on the 
public, we conduct and publish a regulatory impact analysis of the sort 
that would accompany an economically significant rulemaking, to the 
extent reasonably possible.
    (c) Excluded guidance. Significant guidance documents do not 
include the categories of documents excluded by Sec.  1213.1(b) or any 
other category of guidance documents the regulatory office exempts in 
writing in consultation with OIRA.
    (d) OIRA review of significant guidance. If OIRA designates a 
guidance document as significant or economically significant, we submit 
it to OIRA for review under E.O. 12866 before we issue it, as with 
regulations; and we process significant guidance in 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.
    (e) Signature or approval. The Archivist of the United States or a 
senior executive designee signs or approves significant guidance.
    (f) Informal notice-and-comment procedures. Except as outlined in 
paragraph (g) of this section, we subject all proposed guidance 
documents OIRA determines to be significant to the following informal 
notice-and-comment procedures. We publish a notice in the Federal 
Register announcing that a draft of the proposed guidance document is 
publicly available and where, either post the draft guidance document 
on our guidance portal or on regulations.gov in a docket with the 
notice (depending on the nature, size, and scope of the guidance), 
invite public comment on the draft document for a minimum of 30 days, 
and prepare and post a public response to major concerns raised in the 
comments, as appropriate, on our guidance portal or in the docket on 
regulations.gov (whichever location we used to post the draft 
guidance), either before or when we issue the guidance document.
    (g) Exceptions to notice-and-comment procedures. The requirements 
of paragraph (f) of this section do not apply to any significant 
guidance document or categories of significant guidance documents for 
which we find, in consultation with OIRA, good cause that notice and 
public comments are impracticable, unnecessary, or contrary to the 
public interest (and we will incorporate the finding of good cause and 
a brief statement of reasons in the guidance).


Sec.  1213.10  Petitions for guidance.

    (a) Any person may petition that we issue, reconsider, modify, or 
rescind a particular guidance document by using the procedures 
described here and on our guidance portal at www.archives.gov/guidance.
    (b) Submit your petition using the contact information and method 
noted on the guidance portal, which includes an email address or web 
portal for submitting electronic petitions, a mailing address for 
submitting hard copy petitions, and the office responsible for 
coordinating the request. You must submit your petition through one of 
these means, and the petition must:
    (1) Describe the nature of the request and set out the text or 
substance of the guidance you are requesting or that you wish us to 
reconsider, modify, or rescind;
    (2) Explain your interest in the action you are requesting; and
    (3) Contain any information and arguments you have to support the 
action you are seeking.
    (c) We will review your request and make a decision whether to 
grant the request or deny it in whole or in part. We will provide you 
with a response to your request and a status update or our decision 
within 90 days after we receive the petition, if you provide email or 
mail contact information.


Sec.  1213.14  Rescinded guidance.

    We may not cite, use, or rely on guidance documents that we have 
rescinded, except to establish historical facts.


Sec.  1213.16  Exigent circumstances.

    In emergency situations or when we are required by statutory 
deadline, court order, or other exigent circumstances to act more 
quickly than normal review procedures allow, we notify OIRA as soon as 
possible and, to the extent practicable, comply with the requirements 
of this subpart at the earliest opportunity. Whenever practicable, we 
permit sufficient time to comply with the procedures in this subpart.


Sec.  1213.18  No judicial review or enforceable rights.

    We intend this part to improve our internal management. As a 
result, it is for the use of NARA personnel only and we do not intend 
it to, nor does it, 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.

David S. Ferriero,
Archivist of the United States.
[FR Doc. 2020-09353 Filed 5-27-20; 8:45 am]
BILLING CODE 7515-01-P