[Federal Register Volume 85, Number 104 (Friday, May 29, 2020)]
[Rules and Regulations]
[Pages 32296-32300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11551]


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

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 339

[Docket ID: DoD-2020-OS-0019]
RIN 0790-AK97


DoD Guidance Documents

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Final rule.

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

SUMMARY: This final rule sets forth the Department of Defense's (DoD) 
policies and processes governing the issuance and use of guidance 
documents. By issuing this final rule, DoD also responds to the 
Executive Order titled: ``Promoting the Rule of Law Through Improved 
Agency Guidance Documents,'' which requires federal agencies to 
finalize regulations, or amend existing regulations as necessary, to 
set forth processes and procedures for issuing guidance documents.

DATES: Effective Date: This final rule is effective May 29, 2020.

FOR FURTHER INFORMATION CONTACT: Patricia Toppings, 571-372-0485.

SUPPLEMENTARY INFORMATION: This final rule codifies the Department's 
policies and procedures regarding guidance documents. The policies and 
procedures in this final rule apply to all non-exempt DoD guidance 
documents, which DoD defines in Sec.  339.1. These procedures require 
all DoD guidance documents to receive appropriate coordination and 
review. Before guidance documents are issued, they must be reviewed to 
ensure they are written in plain language and do not impose any 
substantive legal requirements on the public above and beyond statute 
or regulation. All guidance documents must include a clear and 
prominent statement effectively stating that the contents of the 
guidance document do not have the force and effect of law and are not 
meant to bind the public in any way, and the guidance document is 
intended only to provide clarity to the public regarding existing 
requirements under the law or agency regulations. Recognizing the fact 
that, even though guidance documents are not legally binding, they 
could nevertheless have a substantial economic impact on regulated 
entities that alter their conduct to conform to the guidance, this 
final rule requires a good faith assessment of the cost impact on the 
public of the guidance document.
    This final rule also incorporates other policies and procedures, 
such as

[[Page 32297]]

describing when guidance documents are subject to notice and an 
opportunity for public comment and how they will be made available to 
the public after issuance. These procedures are intended to ensure that 
the public has a fair and sufficient opportunity to comment on guidance 
documents when appropriate and practicable and has access to guidance 
documents issued by the Department. The final rule also provides a 
process for interested parties to petition the Department for the 
withdrawal or modification of 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). Since 
this final rule merely incorporates procedures applicable to the 
Department's administrative procedures into the Code of Federal 
Regulations, notice and comment are not necessary.

Rulemaking Analyses

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

    This rulemaking is not a significant regulatory action under 
Executive Order 12866. The Department does not anticipate that this 
rulemaking will have an economic impact on regulated entities. This is 
a rule of agency procedure and practice. The final rule describes the 
Department's internal policies and procedures for its guidance 
documents. The Department has adopted these internal policies and 
procedures as part of its regulatory reform initiative, and has not 
incurred any additional resource costs in doing so. Regulated entities 
and the public will benefit from these policies and procedures through 
increased agency deliberations and more opportunities to comment on 
guidance documents.

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.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    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.

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, and it has been 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. 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.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that DoD 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 for each collection of information it conducts, 
sponsors, or requires through regulations. It has been determined there 
are no new information collection requirements associated with this 
final rule.

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been determined that this final rule does not contain a 
Federal mandate that may result in expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

List of Subjects in 32 CFR Part 339

    Administrative practice and procedure, Guidance documents.


0
In consideration of the foregoing, the Office of the Secretary of 
Defense adds 32 CFR part 339 to read as follows:

PART 339--DOD GUIDANCE DOCUMENTS

Sec.
339.1 General.
339.2 Initial review process.
339.3 Good faith cost estimates.
339.4 Departmental review and submission to OIRA.
339.5 Designation procedures.
339.6 Non-significant guidance documents.
339.7 Significant guidance document.
339.8 Notice-and-comment procedures.
339.9 Public access to effective guidance documents.
339.10 Petitions for guidance.
339.11 Rescinded guidance.
339.12 Exigent circumstances.
339.13 Reports to Congress and GAO.
339.14 Use of guidance documents.

    Authority: 5 U.S.C. 552a.


Sec.  339.1  General.

    (a) This part provides policies and procedures governing all phases 
of issuing, modifying, or rescinding guidance documents within DoD.
    (b) Subject to the qualifications and exemptions contained in this 
part, these policies and procedures apply to all guidance documents 
intended to have future effect on the behavior of regulated parties 
issued by all components of the Department, including regional and 
district offices.
    (c) For purposes of this part, the term guidance document includes 
any statement of agency policy or interpretation concerning a statute, 
regulation, or technical matter within the jurisdiction of the 
Department that is intended to have general applicability and future 
effect on the behavior of regulated parties, but which is not intended 
to have the force or effect of law in its own right and is not 
otherwise required by statute to satisfy the rulemaking procedures 
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 OMB Memorandum M-20-02, ``Guidance Implementing Executive 
Order 13891, Titled ``Promoting the Rule of Law Through Improved Agency 
Guidance Documents,'' '' dated October 31, 2019.
    (d) This part does not apply to:
    (1) Agency statements of specific applicability, including advisory 
or legal opinions directed to particular parties about circumstance-
specific questions (e.g., case or investigatory

[[Page 32298]]

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;
    (2) 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;
    (3) Rules promulgated pursuant to notice and comment under 5 U.S.C. 
553, or similar statutory provisions;
    (4) Rules exempt from rulemaking requirements under 5 U.S.C. 
553(a);
    (5) Rules of agency organization, procedure, or practice;
    (6) Decisions of agency adjudications under 5 U.S.C. 554, or 
similar statutory provisions;
    (7) Internal guidance directed solely to the issuing agency or 
other agencies (or personnel of such agencies) that is not intended to 
have substantial future effect on the behavior of regulated parties or 
the public;
    (8) Internal guidance that is made public only because release is 
required under the Freedom of Information Act or agency disclosure 
policies;
    (9) Legal briefs, other court filings, or positions taken in 
litigation or enforcement actions;
    (10) Legal opinions by the Office of Legal Counsel at the 
Department of Justice.
    (11) Internal executive branch legal advice or legal advisory 
opinions addressed to executive branch officials;
    (12) Guidance pertaining to military or foreign affairs functions, 
or to a national security or homeland security function of the United 
States (other than guidance documents involving procurement or the 
import or export of non-defense articles and services);
    (13) Grant solicitations and awards; or
    (14) Contract solicitations and awards.


Sec.  339.2  Initial review process.

    (a) Prior to submitting guidance documents for departmental review, 
Components seeking to issue, modify, or rescind a guidance document 
should submit a draft copy of that document, along with the component's 
designation request (see Sec.  339.5 of this part) and good faith cost 
estimate (see Sec.  339.3 of this part), to their Federal Register 
Liaison Officer.
    (b) Before such a guidance document can be cleared for departmental 
review, the appropriate DoD or OSD Federal Register Liaison Officer 
will review it to ensure that it satisfies the following requirements:
    (1) For significant guidance (see Sec.  339.7 of this part), 
Federal Register required formatting.
    (2) The guidance document complies with all relevant statutes and 
regulations (including any statutory deadlines for agency action);
    (3) The guidance document identifies or includes:
    (i) The term ``guidance'' or its functional equivalent;
    (ii) The issuing component of the Department;
    (iii) A unique identifier, including, at a minimum, the date of 
issuance and title of the document and its Z-RIN (a regulation 
identifier number), if applicable;
    (iv) The activity or entities to which the guidance applies;
    (v) Citations to applicable statutes and regulations;
    (vi) 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
    (vii) A short summary of the subject matter covered in the guidance 
document at the top of the document.
    (4) 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 DoD staff and will not foreclose the 
Department's consideration of positions advanced by affected private 
parties or is intended to have a substantial future effect on the 
behavior of regulated parties;
    (5) The guidance document is written in plain and understandable 
English;
    (6) 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 departmental policies.''


Sec.  339.3  Good faith cost estimates.

    Even though not legally binding, some agency guidance may result in 
a substantial economic impact. For example, the issuance of 
departmental 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 component of the 
Department must, 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 the component 
is assessing or explaining whether it believes a guidance document is 
significant, it will, at a minimum, provide the same level of analysis 
that would be required for a major determination under the 
Congressional Review Act (5 U.S.C. chapter 8). When it is determined 
that a guidance document will be economically significant (see Sec.  
339.7(a)(1) of this part), the component must conduct and publish a 
Regulatory Impact Analysis of the sort that would accompany an 
economically significant rulemaking (see requirements in E.O. 12866, 
E.O. 13563, and OMB Circular A-4), to the extent reasonably possible.


Sec.  339.4  Departmental review and submission to OIRA.

    (a) After the appropriate FRLO completes his or her initial review, 
a guidance document will be internally coordinated within the proposing 
component and formally coordinated throughout the Department with other 
components who have equities. Mandatory coordinators on all guidance 
documents are the Chief Management Officer, Department of Defense and 
the component's General Counsel.
    (b) The proposing component will adjudicate DoD and OSD Component 
comments and return a final guidance document package to the 
appropriate DoD or OSD Federal Register Liaison Officer for submission 
to the Office of Management and Budget (OMB), Office of Information and 
Regulations Affairs (OIRA) for a significance determination.
    (c) Guidance documents deemed by OIRA to be ``significant'' (see 
Sec.  339.7 of this part) must be reviewed and approved by the 
Department's Regulatory Policy Officer before OIRA formally reviews 
them.


Sec.  339.5  Designation procedures.

    (a) The proposing component will prepare a designation request for 
guidance documents. Designation requests must include the following 
information:
    (1) A summary of the guidance document; and
    (2) The component's recommended designation of ``not significant,''

[[Page 32299]]

``significant,'' or ``economically significant,'' as well as a 
justification for that designation.
    (b) The appropriate DoD or OSD Federal Register Liaison Officer 
will seek a significance determination from OIRA for guidance documents 
in the same manner as for rulemakings. OIRA review will occur prior to 
the publishing of guidance documents, and with sufficient time to allow 
OIRA to review the designation request and the guidance document to 
determine if it meets the definition of ``significant'' or 
``economically significant'' under Executive Order 13891.
    (c) Prior to being published, guidance documents determined to be 
``significant'' or ``economically significant'' are subject to formal 
review and interagency coordination by OIRA. The OIRA review, to 
include interagency coordination, is to be consistent with Executive 
Order 12866.
    (d) Significant guidance documents (see Sec.  339.7 of this part) 
must be reviewed and approved by the Department's Regulatory Policy 
Officer before OIRA formally reviews them.
    (e) Once the OMB/OIRA has cleared a guidance document for 
publication, the appropriate DoD or OSD Federal Register Liaison 
Officer will coordinate the guidance document with the Defense Office 
of Prepublication and Security Review (DOPSR). The FRLO will notify the 
component of DOPSR's approval and that the guidance document can be 
approved for Federal Register publication or signed for placement on 
the central website.


Sec.  339.6  Non-significant guidance documents.

    (a) If the guidance document is determined to be non-significant 
within the meaning of Sec.  339.7 of this part, the appropriate DoD or 
OSD Federal Register Liaison Officer will advise the proposing 
component to proceed with issuance of the guidance.
    (b) For each such guidance document, the proposing component should 
forward it to the appropriate authority for approval. OSD PSAs or 
equivalents can delegate in writing the authority to approve non-
significant guidance documents to subordinate officials at or above the 
level of a General/Flag Officer, Senior Executive Service member, or 
equivalent. The proposing component should include a statement in the 
action memorandum to the approving authority that the guidance document 
has been reviewed and cleared as non-significant by OIRA.
    (c) After the approving authority signs the non-significant 
guidance document, it should be forwarded to the DoD Regulatory Program 
staff for publication on the department's guidance document website 
located at https://open.defense.gov/Regulatory-Program/Guidance-Documents/.


Sec.  339.7  Significant guidance documents.

    (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 (a guidance document is economically significant if it 
meets the criteria in this paragraph);
    (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.  339.1(d) or any other 
category of guidance documents exempted in writing in consultation with 
OIRA.
    (c) Significant guidance documents, to include 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) Each proposed DoD guidance document determined by OIRA to be 
significant must be approved by an OSD Principal Staff Assistant or 
equivalent appointed by the President.
    (e) Significant guidance documents have to be published for notice 
and comment in accordance with Sec.  339.8 of this part before they can 
be issued.


Sec.  339.8  Notice-and-comment procedures.

    (a) Except as provided in paragraph (b) of this section, all 
proposed DoD guidance documents determined to be a ``significant 
guidance document'' within the meaning of Sec.  339.7 shall be subject 
to the following notice and comment procedures. After receiving 
clearance from OIRA to publish a proposed significant guidance 
document, the proposing component shall publish a notice in the Federal 
Register announcing that a draft of the proposed guidance document is 
publicly available on Regulations.gov, shall invite public comment on 
the draft document for a minimum of 30 days. After the comment period 
ends, the proposing component shall prepare and post a public response 
to major concerns raised in the comments, as appropriate, in the docket 
on Regulations.gov. Then the component will prepare a final notice that 
will be coordinated within the department and submitted to OIRA for 
review, interagency coordination, and clearance for publishing in the 
Federal Register. Both the proposed and final notices shall be approved 
by the DoD RPO before OIRA review, and by an OSD Principal Staff 
Assistant or equivalent appointed by the President after OIRA clearance 
and DOPSR approval.
    (b) The notice and comment requirements of paragraph (a) of this 
section will not apply to any significant guidance document or 
categories of significant guidance documents for which the proposing 
component finds, in consultation with their component OGC and OIRA, 
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).


Sec.  339.9  Public access to effective guidance documents.

    (a) The DoD Regulatory Policy Team shall:
    (1) Ensure all final guidance documents in effect are identified by 
a unique identifier which includes, at a minimum, the document's title 
and date of issuance or revision and its Z-RIN, if applicable, are 
published and maintained on a central website located at https://open.defense.gov/Regulatory-Program/Guidance-Documents/ in a single, 
searchable, indexed database, and available to the public;
    (2) Note on its website that guidance documents do not bind the 
public, except as authorized by law or as incorporated into a contract;
    (3) Announce on its website a means for the public to comment 
electronically on any guidance documents that are subject to the notice 
and comment procedures; and
    (4) Receive complaints from the public that a component of the 
Department is not following the requirements of OMB's Memorandum

[[Page 32300]]

M-20-02, ``Guidance Implementing Executive Order 13891, Titled 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents'','' dated October 31, 2019, or is improperly treating a 
guidance document as a binding requirement.
    (b) Each component responsible for issuing guidance documents 
shall:
    (1) Submit final guidance documents to the DoD Regulatory Policy 
Team at the email address [email protected] for posting to the Department's central website.
    (2) Address complaints from the public that they are not following 
the requirements of OMB's Memorandum M-20-02, ``Guidance Implementing 
Executive Order 13891, Titled ``Promoting the Rule of Law Through 
Improved Agency Guidance Documents'','' dated October 31, 2019, or are 
improperly treating a guidance document as a binding requirement.


Sec.  339.10  Petitions for guidance.

    (a) Any person may petition the Department to withdraw or modify a 
particular guidance document by sending a written request to the DoD 
Regulatory Program staff at email address [email protected]. Please use the words 
``GUIDANCE: [Insert the title of the guidance document]'' in the 
subject line of the email message. The DoD Regulatory Program staff 
will provide the request to the issuing component of the guidance 
document for response.
    (b) The issuing component should respond to all requests within 90 
days after receipt of the request, or as timely as possible given any 
constraints of the request. For recordkeeping purposes, the issuing 
component will provide a copy of their response to the DoD Regulatory 
Program staff at email address [email protected].


Sec.  339.11  Rescinded guidance.

    (a) All effective guidance documents must appear on the central 
website. If the guidance document does not appear on the central 
website, the guidance is rescinded and without effect.
    (b) No component may cite, use, or rely on guidance documents that 
are rescinded, except to establish historical facts.


Sec.  339.12  Exigent circumstances.

    In emergency situations or when the proposing component is required 
by statutory deadline, court order, or executive order to act more 
quickly than normal review procedures allow, the proposing component 
shall coordinate with OGC and the appropriate DoD or OSD Federal 
Register Liaison Officer to notify OIRA as soon as possible and, to the 
extent practicable, shall comply with the requirements of this part at 
the earliest opportunity.


Sec.  339.13  Reports to Congress and GAO.

    Upon the issuance of a final guidance document, the appropriate 
Federal Register Liaison Officer will submit a report to Congress and 
GAO in accordance with the procedures described in 5 U.S.C. 801 (the 
``Congressional Review Act''). If the CRA procedures are not followed, 
the guidance document can be nullified.


Sec.  339.14  Use of guidance documents.

    Guidance documents cannot create binding requirements that do not 
already exist by statute or regulation. Accordingly, noncompliance with 
guidance documents cannot be used as a basis for proving violations of 
applicable law. Guidance documents can do no more, with respect to 
prohibition of conduct, than articulate the Department's understanding 
of how a statute or regulation applies to particular circumstances.

    Dated: May 26, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-11551 Filed 5-28-20; 8:45 am]
BILLING CODE 5001-06-P