[Federal Register Volume 85, Number 107 (Wednesday, June 3, 2020)]
[Rules and Regulations]
[Pages 34085-34087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09886]



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 Rules and Regulations
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  Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Rules 
and Regulations  

[[Page 34085]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 1

[Docket No. USDA-2020-0006]
RIN 0503-AA64


Review and Issuance of Agency Guidance Documents

AGENCY: Office of the Secretary, USDA.

ACTION: Final rule.

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

SUMMARY: This final rule amends the U.S. Department of Agriculture's 
administrative regulations by adding procedural regulations for the 
review and issuance of agency guidance documents.

DATES: July 6, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen O'Neill, Office of Budget 
and Program Analysis, USDA, 1400 Independence Avenue SW, Washington, DC 
20250-1400, (202) 720-0038.

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 9, 2019, the President signed Executive Order 13891, 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents.'' Section 4 of the order directs that, ``[w]ithin 300 days 
of the date on which [the Office of Management and Budget] issues an 
implementing memorandum under section 6 of this order, each agency 
shall, consistent with applicable law, finalize regulations, or amend 
existing regulations as necessary, to set forth processes and 
procedures for issuing guidance documents.''
    In accordance with that direction, the United States Department of 
Agriculture (USDA) is amending its administrative regulations in 7 CFR 
part 1 to add a new Subpart Q, ``Review and Issuance of Agency Guidance 
Documents.'' These new regulations codify the process, review, and 
other requirements set forth in section 4 of the executive order.

II. Notice and Comment Not Required

    This rule relates to internal agency management. Therefore, 
pursuant to 5 U.S.C. 553(a)(2), notice of proposed rulemaking and 
opportunity to comment are not required.

III. Procedural Requirements

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
regulatory action does not meet the criteria for significant regulatory 
action pursuant to Executive Order 12866, Regulatory Planning and 
Review. Additionally, because this rule does not meet the definition of 
a significant regulatory action, it does not trigger the requirements 
contained in Executive Order 13771.
    The regulations added by this rule are intended to improve the 
internal management of USDA. As such, it is for the use of USDA 
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. Accordingly, we expect 
the economic impact of this rule, if any, to be minimal.

Regulatory Flexibility Act

    The provisions of the Regulatory Flexibility Act relating to an 
initial and final regulatory flexibility analysis (5 U.S.C. 603, 604) 
are not applicable to this final rule because USDA was not required to 
publish notice of proposed rulemaking under 5 U.S.C. 553 or any other 
law. Accordingly, a regulatory flexibility analysis is not required.

Paperwork Reduction Act

    This final rule imposes no new reporting or recordkeeping 
requirements necessitating clearance by OMB.

List of Subjects in 7 CFR Part 1

    Administrative practice and procedure, Antitrust, Claims, 
Cooperatives, Courts, Equal access to justice, Fraud, Freedom of 
information, Government employees, Indemnity payments, Lawyers, Motion 
pictures, Penalties, Privacy.

    Accordingly, we are amending 7 CFR part 1 as follows:

PART 1--ADMINISTRATIVE REGULATIONS

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 5 U.S.C. 301, unless otherwise noted.


0
2. Add Subpart Q, consisting of Sec. Sec.  1.900 through 1.911, to read 
as follows:
Subpart Q--REVIEW AND ISSUANCE OF AGENCY GUIDANCE DOCUMENTS
Sec.
1.900 General.
1.901 Requirements for clearance.
1.902 Public access to effective guidance documents.
1.903 Good faith cost estimates.
1.904 Procedures for guidance documents identified as 
``significant'' or ``otherwise of importance to the Department's 
interests.''
1.905 Designation procedures.
1.906 Notice-and-comment procedures.
1.907 Petitions for guidance.
1.908 Rescinded guidance.
1.909 Exigent circumstances.
1.910 Reports to Congress and GAO.
1.911 No judicial review or enforceable rights.


Sec.  1.900   General.

    (a) This subpart governs all United States Department of 
Agriculture (USDA) employees and contractors involved with all phases 
of issuing USDA guidance documents.
    (b) These procedures apply to all newly issued guidance documents 
and, in certain respects, guidance documents already in effect.
    (c)(1) For purposes of this subpart, the term ``guidance document'' 
is defined as in Executive Order 13891 and 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.
    (2) The term is not confined to formal written documents; guidance 
documents 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's (OMB) Bulletin 07-02, ``Agency Good Guidance Practices,'' 
72 FR 3432, 3434,

[[Page 34086]]

3439 (January 25, 2007) (``OMB Good Guidance Bulletin'')
    (d) ``Guidance document'' does not include the following:
    (1) Rules promulgated pursuant to notice and comment under 5 U.S.C. 
553 or similar statutory provisions;
    (2) Rules exempt from rulemaking requirements under 5 U.S.C. 
553(a);
    (3) Rules of agency organization, procedure, or practice;
    (4) Decisions of agency adjudications under 5 U.S.C. 554 or similar 
statutory provisions;
    (5) Internal guidance directed to the issuing agency or other 
agencies that is not intended to have substantial future effect on the 
behavior of regulated parties;
    (6) Internal executive branch legal advice or legal opinions 
addressed to executive branch officials;
    (7) 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;
    (8) 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 presentations, 
editorials, media interviews, press materials, or congressional 
testimony that do not set forth for the first time a new policy or 
interpretation;
    (9) Grant solicitations and awards; or
    (10) Contract solicitations and awards.
    (e) The term ``significant guidance document'' means a guidance 
document that may reasonably be anticipated to:
    (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 a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles of E.O. 12866.
    (f) The term ``significant guidance document'' does not include the 
categories of documents excluded in writing by OMB's Office of 
Information and Regulatory Affairs (OIRA).
    (g) Significant guidance documents must be reviewed by OIRA before 
issuance and must demonstrate compliance with the applicable 
requirements for regulations or rules, including significant regulatory 
actions, set forth in Executive Orders 12866, 13563, 13609, 13771, and 
13777.


Sec.  1.901  Requirements for clearance.

    Each USDA agency that issues a guidance document shall ensure that 
the guidance document satisfies the following requirements:
    (a) The guidance document complies with all applicable statutes and 
regulations;
    (b) The guidance document identifies or includes:
    (1) The term ``guidance'' or its functional equivalent;
    (2) The issuing agency and agency component, as applicable;
    (3) A unique identifier, including, at a minimum, the date of 
issuance and title of the document and its Z-RIN, if applicable;
    (4) The activity or entities to which the guidance document 
applies;
    (5) Citations to applicable statutes and regulations;
    (6) A statement noting whether the guidance document is intended to 
revise or replace any previously issued guidance and, if so, sufficient 
information to identify the previously issued guidance; and
    (7) A short summary of the subject matter covered in the guidance 
document at the top of the document.
    (c) The guidance document does not use mandatory language, such as 
``shall,'' ``must,'' ``required,'' or ``requirement,'' unless the 
language is describing an established statutory or regulatory 
requirement or is addressed to USDA employees or contractors and does 
not foreclose the Department's consideration of positions advanced by 
non-Federal entities.
    (d) The guidance document is written in plain and understandable 
English;
    (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 and are not meant to bind the public in any way, and the 
document is intended only to provide clarity to the public regarding 
existing requirements under the law or agency policies.


Sec.  1.902   Public access to effective guidance documents.

    Each USDA agency that issues guidance documents shall:
    (a) Ensure all guidance documents in effect are on its website in a 
single, searchable, indexed database, and available to the public. 
Guidance documents that do not appear on the website are considered 
rescinded.
    (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) Maintain and advertise on its website a means for the public to 
comment electronically on any guidance documents that are subject to 
the notice-and comment procedures of this subpart and to submit 
requests electronically for issuance, reconsideration, modification, or 
rescission of guidance documents in accordance with this subpart.
    (d) Designate an office to receive and address complaints from the 
public that a USDA agency is not following the requirements of OMB's 
Good Guidance Bulletin or is improperly treating a guidance document as 
a binding requirement.


Sec.  1.903   Good faith cost estimates.

    (a) Each USDA agency that issues a guidance document shall, to the 
extent practicable, make a good faith effort to estimate the likely 
economic impact of the guidance document to determine whether the 
document might be significant.
    (b) When a USDA agency is assessing or explaining whether it 
believes a guidance document is a ``significant guidance document,'' it 
shall, at a minimum, provide the same level of analysis that would be 
required for a determination of major/not major under the Congressional 
Review Act. When an agency determines that a guidance document will be 
significant, the agency shall conduct and publish an assessment of the 
potential costs and benefits of the regulatory action (which may entail 
a regulatory impact analysis) of the sort that would accompany a 
significant rulemaking, to the extent reasonably possible.


Sec.  1.904   Procedures for guidance documents identified as 
``significant'' or ``otherwise of importance to the Department's 
interests.''

    (a) For guidance documents proposed to be issued by an agency, if 
there is a reasonable possibility the guidance document may be 
considered ``significant'' or ``otherwise of importance to the 
Department's interests,'' or if the agency is uncertain whether the 
guidance document may

[[Page 34087]]

qualify as such, the agency shall email a copy of the proposed guidance 
document (or a summary of it) to the Office of Budget and Program 
Analysis (OBPA) for review and further direction before issuance. Each 
proposed guidance document determined to be significant or otherwise of 
importance to the Department's interests must be approved by the 
Mission Area Under Secretary before issuance. In such instances, OBPA 
shall obtain a Z-RIN and coordinate submission of the proposed guidance 
document to departmental reviewers as deemed necessary. For purposes of 
this rule, even if not ``significant,'' a guidance document shall be 
considered ``otherwise of importance to the Department's interests'' if 
it may reasonably be anticipated to:
    (1) Relate to a major program, policy, or activity of the 
Department or a high-profile issue pending for decision before the 
Department;
    (2) Involve one of the Secretary's top policy priorities;
    (3) Garner significant press or congressional attention; or
    (4) Raise significant questions or concerns from constituencies of 
importance to the Department, such as Committees of Congress, States or 
Indian tribes, the White House or other departments of the Executive 
Branch, courts, consumer or public interest groups, or leading 
representatives of industry.
    (b) USDA shall submit significant guidance documents to OMB for 
coordinated review. In addition, USDA may determine that it is 
appropriate to coordinate with OMB in the review of guidance documents 
that are otherwise of importance to the Department's interests.
    (c) If the guidance document is determined by the proposing agency 
or OBPA to be not significant, the proposing agency shall issue the 
guidance document through its standard process.


Sec.  1.905  Designation procedures.

    (a) To obtain a designation from OIRA, USDA agencies shall prepare 
and submit to OBPA a designation request for guidance documents. 
Designation requests must include the following information:
    (1) A summary of the guidance document; and
    (2) The agency's recommended designation of ``not significant,'' or 
``significant,'' as well as a justification for that designation.
    (b) OBPA shall seek a significance determination from OIRA for 
guidance documents, as appropriate, in the same manner as for 
rulemakings. Prior to publishing a guidance document, and with 
sufficient time to allow OIRA to review the document in the event that 
it is designated ``significant,'' USDA shall 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'' under Executive Order 13891.


Sec.  1.906  Notice-and-comment procedures.

    (a) Except as provided in paragraph (b) of this section, a proposed 
USDA guidance document determined to be a ``significant guidance 
document'' shall be subject to the following informal notice-and-
comment procedures. The issuing agency 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, make the public comments available for public 
review on its website, and shall prepare and post a public response to 
major concerns raised in the comments, as appropriate, on its website, 
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 OBPA finds, in consultation with OIRA, the 
proposing agency, and the Office of the Secretary, good cause that 
notice and public comment 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 
document issued).
    (c) Where appropriate, the proposing agency may recommend to OBPA 
that a particular guidance document that is otherwise of importance to 
the Department's interests shall also be subject to the informal 
notice-and-comment procedures described in paragraph (a) of this 
section.


Sec.  1.907  Petitions for guidance.

    Any person may petition a USDA agency to withdraw or modify a 
particular guidance document. Petitions may be submitted by postal mail 
to: Guidance Officer, Office of Budget and Program Analysis, USDA, 1400 
Independence Avenue SW, Washington, DC 20250-1400. Email petitions may 
be sent to [email protected]. The agency shall respond to all 
requests in a timely manner, but no later than 90 days after receipt of 
the request.


Sec.  1.908  Rescinded guidance.

    No USDA agency may cite, use, or rely on guidance documents that 
are rescinded, except to establish historical facts.


Sec.  1.909   Exigent circumstances.

    In emergency situations or when the issuing agency is required by 
statutory deadline or court order to issue guidance documents more 
quickly than this subpart's review procedures allow, the issuing agency 
shall coordinate with OBPA 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 issuing 
agency shall schedule its proceedings to permit sufficient time to 
comply with the procedures set forth in this subpart.


Sec.  1.910   Reports to Congress and GAO.

    Unless otherwise determined in writing, it is the policy of USDA 
that upon issuing a guidance document determined to be ``significant,'' 
the issuing agency shall submit a report to Congress and the Government 
Accountability Office in accordance with the procedures described in 5 
U.S.C. 801 (the Congressional Review Act).


Sec.  1.911   No judicial review or enforceable rights.

    This subpart is intended to improve the internal management of 
USDA. As such, it is for the use of USDA 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.

Stephen L. Censky,
Deputy Secretary, U.S. Department of Agriculture.
[FR Doc. 2020-09886 Filed 6-2-20; 8:45 am]
 BILLING CODE 3410-90-P