[Federal Register Volume 85, Number 162 (Thursday, August 20, 2020)]
[Rules and Regulations]
[Pages 51301-51304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16474]



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 Rules and Regulations
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  Federal Register / Vol. 85 , No. 162 / Thursday, August 20, 2020 / 
Rules and Regulations  

[[Page 51301]]



OFFICE OF GOVERNMENT ETHICS

5 CFR Parts 2611 and 2638

RIN 3209-AA56


Guidance Documents Issued by the Office of Government Ethics

AGENCY: Office of Government Ethics.

ACTION: Final rule.

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SUMMARY: Pursuant to Executive Order 13891, the U.S. Office of 
Government Ethics (OGE) is issuing a regulation to detail the process 
for the issuance of, modifications to, and petitions regarding guidance 
documents, as they are defined by the Executive Order. Additionally, 
the regulation states that OGE will post all guidance documents in a 
new guidance portal on its website. OGE is also detailing the process 
for the issuance of significant guidance documents and categorical 
exclusions. Finally, OGE is revising its executive branch ethics 
program regulation to ensure the consistency in the description of 
various documents that OGE issues.

DATES: This final rule is effective August 20, 2020.

FOR FURTHER INFORMATION CONTACT: Patrick J. Lightfoot, Assistant 
Counsel, or Margaret Dylus-Yukins, Assistant Counsel, U.S. Office of 
Government Ethics, Telephone: 202-482-9300.

SUPPLEMENTARY INFORMATION:

I. Background

    The U.S. Office of Government Ethics (OGE), following consultation 
with the Office of Management and Budget (OMB), is issuing a new 
regulation at 5 CFR part 2611 and amending pertinent sections of its 
executive branch-wide ethics regulations on the executive branch ethics 
program, as codified at 5 CFR part 2638, in order to establish the 
policies and procedures for OGE guidance documents issued or revised 
after August 20, 2020.

5 CFR Part 2611--Guidance Document Procedures

    OGE is issuing a new 5 CFR part 2611, following consultation with 
OMB, to satisfy the requirements of Executive Order 13891, titled 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents'' (October 9, 2019). Pursuant to Executive Order 13891, 
Federal agencies are required to finalize or amend regulations that set 
forth processes and procedures for issuing guidance documents.
    Subpart A includes general provisions applicable throughout part 
2611, including the purpose of the regulation, applicable definitions, 
and a statement that the regulation does not create any private right 
of action nor right to judicial review. OGE, in consultation with OMB, 
defines ``guidance document'' as any statement of agency policy or 
interpretation concerning a statute, regulation, or technical matter 
within the jurisdiction of the agency that is intended to have general 
applicability and future effect, but which is not intended to have the 
force or effect of law in its own right and is not otherwise required 
by statute to satisfy the rulemaking procedures of the Administrative 
Procedure Act. The vast majority of OGE issuances are excluded from the 
definition of guidance documents because, among other reasons, they are 
directed to other executive branch agencies or executive branch 
officials.
    Subpart B summarizes the procedures for the issuance of new 
guidance documents, posting of guidance documents to OGE's website, the 
process by which a person may submit petitions for the modification or 
withdrawal of existing guidance documents, and the manner in which OGE 
will respond to such petitions. Additionally, this Subpart states that 
OGE will not cite, use, or rely on guidance documents that have been 
rescinded, withdrawn, or removed through modification, except to 
establish historical facts or as a matter of comparison to current 
guidance.
    Subpart C describes the process for the issuance and designation of 
significant guidance documents, as defined in Subpart A, and indicates 
that significant guidance documents are subject to notice and public 
comment, as well as responses to those comments. Finally, this Subpart 
identifies classes of documents that are categorically excluded from 
the definition of ``guidance document'' at Sec.  2611.102, which were 
developed in consultation with OMB.

5 CFR Part 2638--Amendments to Written Guidance Descriptions

    OGE's regulation at 5 CFR 2638.208 currently describes various 
forms of written guidance that OGE issues regarding its legal 
interpretations, program requirements, and educational offerings. Last 
amended in 2016, this provision utilized the term ``guidance 
documents'' before it became a specific term of art in Executive Order 
13891. Although no substantive change is intended, OGE is amending 
Sec.  2638.208 to replace the term ``guidance documents'' with the 
phrase ``written guidance'' in order to reduce any potential confusion.

II. Matters of Regulatory Procedure

Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(b)(3)(A), as Director of the Office of 
Government Ethics, the notice and comment procedures are being waived 
because these amendments concern matters of agency organization, 
procedure and practice.

Regulatory Flexibility Act

    As the Director of the Office of Government Ethics, I certify under 
the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this final 
rule would not have a significant economic impact on a substantial 
number of small entities because it primarily affects current Federal 
executive branch employees.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because this regulation does not contain information collection 
requirements that require approval of the Office of Management and 
Budget.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
chapter 5, subchapter II), this final rule would not significantly or 
uniquely affect small governments and will not result in increased 
expenditures by State, local, and tribal governments, in the aggregate, 
or by the private sector, of

[[Page 51302]]

$100 million or more (as adjusted for inflation) in any one year.

Executive Order 13563 and Executive Order 12866

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select the regulatory approaches that 
maximize net benefits (including economic, environmental, public health 
and safety effects, distributive impacts, and equity). Executive Order 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
In promulgating this rulemaking, OGE has adhered to the regulatory 
philosophy and the applicable principles of regulation set forth in 
Executive Orders 12866 and 13563. The rule is not a significant 
regulatory action for the purposes of Executive Order 12866.

Executive Order 12988

    As Director of the Office of Government Ethics, I have reviewed 
this rule in light of section 3 of Executive Order 12988, Civil Justice 
Reform, and certify that it meets the applicable standards provided 
therein.

Executive Order 13771

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

List of Subjects

5 CFR Part 2611

    Administrative practice and procedure, Guidance documents, 
Significant guidance documents.

5 CFR Part 2638

    Administrative practice and procedure, Conflict of interests, 
Government employees, Reporting and recordkeeping requirements.

    Approved: July 24, 2020
Emory Rounds,
Director, U.S. Office of Government Ethics.

    For the reasons stated in the preamble, the U.S. Office of 
Government Ethics amends 5 CFR chapter XVI as set forth below:

0
1. Add part 2611 to subchapter A to read as follows:

PART 2611--GUIDANCE DOCUMENTS ISSUED BY THE OFFICE OF GOVERNMENT 
ETHICS

Subpart A--General Provisions
Sec.
2611.101 Purpose.
2611.102 Definitions.
2611.103 No private right of action or right to judicial review.
Subpart B--Procedures Related to Guidance Documents
2611.201 Designation and marking of guidance documents.
2611.202 Public access to guidance documents.
2611.203 Petitions regarding guidance documents.
2611.204 Use of rescinded, withdrawn, and modified guidance 
documents.
Subpart C--Significant Guidance Documents
2611.301 Designation of significant guidance documents.
2611.302 Public notice and comment on significant guidance 
documents.
2611.303 Classes of documents categorically excluded.

    Authority: 5 U.S.C. App. 101-505; E.O. 13891, 84 FR 55235.

Subpart A--General Provisions


Sec.  2611.101   Purpose.

    This part governs the issuance of guidance documents and 
significant guidance documents by the U.S. Office of Government Ethics 
(OGE) which are issued after August 20, 2020. This part implements 
Executive Order 13891, ``Promoting the Rule of Law through Improved 
Agency Guidance Documents,'' and guidance of the Office of Management 
and Budget.


Sec.  2611.102   Definitions.

    For purposes of this part,
    Director means the Director of OGE, or his or her delegate.
    Government ethics laws and regulations include, among other 
applicable authorities, the provisions related to government ethics or 
financial disclosure set forth in the following authorities:
    (1) Chapter 11 of title 18 of the United States Code;
    (2) The Ethics in Government Act of 1978 (Pub. L. 95-521, as 
amended);
    (3) The Representative Louise McIntosh Slaughter Stop Trading on 
Congressional Knowledge Act (STOCK Act) (Pub. L. 112-105, as amended);
    (4) Executive Order 12674 (Apr. 12, 1989) as amended by Executive 
Order 12731 (Oct. 17, 1990); and
    (5) Subchapter B of Chapter 16 of title 5 of the United States 
Code.
    Guidance document refers to any statement of agency policy or 
interpretation concerning a statute, regulation, or technical matter 
within the jurisdiction of the agency that is intended to have general 
applicability and future effect, but which is not intended to have the 
force or effect of law in its own right and is not otherwise required 
by statute to satisfy the rulemaking procedures specified in 5 U.S.C. 
553 or 5 U.S.C. 556. The term is not confined to 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. The term guidance document does 
not include:
    (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., informal advisory opinions, case or 
investigatory letters responding to complaints, warning letters), 
notices regarding particular locations or facilities (e.g., guidance 
pertaining to the use, operation, or control of a government facility 
or property), and correspondence with individual persons or entities 
(e.g., congressional correspondence), except documents ostensibly 
directed to a particular party but designed to guide the conduct of the 
broader regulated public;
    (6) Legal briefs, other court filings, or positions taken in 
litigation or enforcement actions;
    (7) Agency statements that do not set forth a policy on a 
statutory, regulatory, or technical issue or an interpretation of a 
statute or regulation, including speeches and individual presentations, 
editorials, media interviews, press materials, or congressional 
testimony that do not set forth for the first time a new regulatory 
policy;
    (8) Guidance pertaining to military or foreign affairs functions;
    (9) Grant solicitations and awards;
    (10) Contract solicitations and awards; or
    (11) Purely internal agency policies or guidance directed solely to 
OGE employees or contractors or to other Federal agencies that are not 
intended to have substantial future effect on the behavior of regulated 
parties.

    Note 1 to the definition of ``guidance document'': As described 
in 5 CFR part 2638, OGE issues a number of documents to agency 
ethics officials and officers and employees of the executive branch 
concerning the government ethics laws and regulations and ethics 
program management. These

[[Page 51303]]

documents are generally exempted from the definition of guidance 
document pursuant to this definition. In the rare case that a 
document does constitute a guidance document not otherwise excluded 
from the definition, the procedures set forth in this part will 
apply.

    OGE means the U.S. Office of Government Ethics, or the 
organizational unit within the office responsible for conducting the 
relevant provisions of this part.
    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.


Sec.  2611.103   No private right of action or right to judicial 
review.

    This part is intended to improve the internal management of OGE. As 
such, it is for the use of OGE 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--Procedures Related to Guidance Documents


Sec.  2611.201   Designation and marking of guidance documents.

    (a) Designation of guidance documents. OGE will determine whether a 
document constitutes a guidance document prior to issuance.
    (b) Marking of guidance documents. All guidance documents will:
    (1) Identify the activity and entities to which the guidance 
applies;
    (2) Note if the guidance document revises a previously issued 
guidance document and the guidance document which it revises or 
replaces;
    (3) Include a summary of the subject matter covered by the guidance 
document;
    (4) Include a citation to the statutes and regulations to which the 
guidance applies;
    (5) Include a unique identifier;
    (6) Include a title;
    (7) Identify the date of issuance or revision;
    (8) Include the term ``guidance''; and
    (9) 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. To the extent to which a 
guidance document provides an interpretation of the government ethics 
laws and regulations or concerns aspects of ethics program management, 
the statement will note that such provisions are controlling within the 
executive branch.
    (c) Avoidance of mandatory language. Guidance documents will avoid 
using mandatory language, such as ``shall,'' ``must,'' ``required,'' or 
``requirement,'' unless the language is describing an established 
statutory or regulatory requirement and will not foreclose OGE's 
consideration of positions advanced by affected private parties.


Sec.  2611.202   Public access to guidance documents.

    (a) Posting of guidance documents on OGE website. Guidance 
documents issued by OGE and in effect will be maintained on, and 
retrievable from, OGE's website, www.oge.gov/guidance.
    (b) Guidance document portal. The guidance document portal will 
include a clearly visible disclaimer stating the following:
    (1) Guidance documents lack the force and effect of law, unless 
expressly authorized by statute or incorporated into a contract;
    (2) To the extent that a guidance document provides an 
interpretation of the government ethics laws and regulations or 
concerns aspects of ethics program management, such provisions are 
controlling within the executive branch; and
    (3) OGE may not cite, use, or rely on any guidance document that is 
not posted on OGE's website except to establish historical facts.
    (c) Rescinded guidance documents. Guidance documents that are not 
maintained on OGE's website are considered rescinded and may not be 
cited, used, or relied upon except to establish historical facts.


Sec.  2611.203   Petitions regarding guidance documents.

    (a) Petition regarding modification or withdrawal of previously 
issued guidance. Any person may petition OGE to modify or withdraw a 
particular OGE guidance document. Petitions filed under this section 
must meet the criteria set forth in paragraph (b) of this section. OGE 
will respond to petitions in a timely manner, no later than 90 days 
after receipt of the petition.
    (b) Required information for petition. A petition filed under this 
section must:
    (1) Be submitted to OGE through one of the below two methods:
    (i) By paper submission addressed to ``General Counsel, U.S. Office 
of Government Ethics, Suite 500, Washington, DC 20005-3917,'' with the 
words ``Petition for Withdrawal or Modification of Guidance Document'' 
at the top of the submission; or
    (ii) By electronic submission to [email protected] and addressed to 
``General Counsel, U.S. Office of Government Ethics,'' with the words 
``Petition for Withdrawal or Modification of Guidance Document'' in the 
subject line of the message.
    (2) Describe the nature of the request and set forth the text or 
substance of the guidance document or specify the guidance document, or 
portion of the guidance document, that the petitioner seeks to have 
modified or withdrawn, as the case may be;
    (3) Explain the interest of the petitioner in the action requested;
    (4) Contain any information and arguments available to the 
petitioner to support the action sought, including any alternative text 
or alternative interpretations and the legal basis for such text or 
interpretation; and
    (5) Provide contact information for the petitioner.
    (c) Review of petition. Each petition received under this section 
will be referred to the head of the division responsible for the 
subject matter of that petition. No hearing, argument, or other 
proceeding is required to be held on a petition before its disposition 
under this section.
    (d) Grant of petition. The Director may grant a petition upon a 
determination that the petition contains adequate justification to 
warrant modification or withdrawal of the guidance document or portions 
of the guidance document. The Director, in his or her sole discretion, 
may determine that only a partial grant of the petition is appropriate. 
Modifications to guidance documents will comply with Sec.  2611.201. 
Modifications to significant guidance documents will comply with 
subpart C of this part.

[[Page 51304]]

    (e) Denial of petition. The Director may deny a petition or parts 
of a petition when the petition lacks adequate justification to warrant 
modification or withdrawal of a guidance document, calls for action 
that is inconsistent with law or regulation or is beyond OGE's 
statutory jurisdiction, seeks modification or withdrawal of a document 
that is not a guidance document, or lacks the required information set 
forth in paragraph (b) of this section.
    (f) Notification to petitioner. Following a determination that a 
petition will be granted or denied, OGE will issue notification of the 
grant or denial to the petitioner at the address provided by the 
petitioner in paragraph (b) of this section explaining the reason for 
the determination. In the event that a petition is received by 
electronic mail, OGE will send notification to the electronic mail 
address from which the petition was received.
    (g) Publication of petitions. In the event that OGE grants a 
petition under this section, OGE may publish the petition, including 
attachments and other supporting materials, on OGE's website, 
www.oge.gov. Sensitive personal information, such as account numbers or 
Social Security numbers, should not be included. Petitions generally 
will not be edited to remove any identifying or contact information.


Sec.  2611.204   Use of rescinded, withdrawn, and modified guidance 
documents.

    OGE will not cite, use, or rely on guidance documents or portions 
of guidance documents that are rescinded, withdrawn, or removed through 
modification, except to establish historical facts or as a matter of 
comparison to current guidance. Upon petition or its own initiative, 
OGE may reinstate guidance documents or portions of guidance documents 
previously rescinded, withdrawn, or modified, in conformity with the 
procedures in this part.

Subpart C--Significant Guidance Documents


Sec.  2611.301   Designation of significant guidance documents.

    (a) Designation of significant guidance documents. The Director 
will submit proposed guidance documents to the Office of Information 
and Regulatory Affairs, Office of Management and Budget to determine 
whether the guidance document is a significant guidance document, as 
defined in Sec.  2611.102, in the same fashion used to determine 
whether a rulemaking undertaken pursuant to 5 U.S.C. 553 is significant 
for purposes of Executive Order 12866.
    (b) Compliance with applicable Executive Orders. Significant 
guidance documents will demonstrate compliance with the applicable 
requirements for regulations or rules, including significant regulatory 
actions, set forth in Executive Order 12866, Executive Order 13563, 
Executive Order 13609, Executive Order 13771, and Executive Order 
13777.
    (c) Issuance of significant guidance documents. Significant 
guidance documents will be approved by the Director, or by an official 
who is serving as Director in an acting capacity, on a non-delegable 
basis.


Sec.  2611.302   Public notice and comment on significant guidance 
documents.

    (a) Public notice and comment. Except as provided in paragraph (c) 
of this section, proposed OGE guidance documents that have been deemed 
significant guidance documents will be published in the Federal 
Register and interested persons will be invited to provide public 
comment in the form of written data, views, or arguments for or against 
the proposed significant guidance document. The comment period on 
guidance documents will be open for a minimum of 30 days. OGE will also 
post draft significant guidance documents on its website.
    (b) Responses to comments. OGE will respond to major concerns 
raised in public comments received. Responses and comments will be 
posted to OGE's website, either before or at the time that the final 
significant guidance documents is issued.
    (c) Exemption for good cause shown. The requirements of paragraph 
(a) of this section will not apply to any significant guidance document 
or categories of significant guidance documents for which OGE finds, in 
coordination with the Office of Management and Budget, good cause that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest. Significant guidance documents that 
are issued without public notice and comment under this paragraph shall 
include the finding of good cause and a brief statement or reasons 
thereof.


Sec.  2611.303   Classes of documents categorically excluded.

    OGE has generally determined that the following classes of 
documents are not guidance documents defined in Sec.  2611.102:
    (a) Legal advisories;
    (b) Informal advisory opinions and letters;
    (c) Formal advisory opinions; and
    (d) Guides only directed to agency ethics officials and current 
Federal employees.

PART 2638--EXECUTIVE BRANCH ETHICS PROGRAM

0
2. The authority citation for part 2638 continues to read as follows:

    Authority: 5 U.S.C. App. 101-505; E.O. 12674, 54 FR 15159, 3 
CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 
CFR, 1990 Comp., p. 306.


0
3. Revise Sec.  2638.208 to read as follows:


Sec.  2638.208   Written guidance on the executive branch ethics 
program.

    This section describes several means by which the Office of 
Government Ethics provides agencies, employees, and the public with 
written guidance regarding its legal interpretations, program 
requirements, and educational offerings. Normally, written guidance is 
published on the official website of the Office of Government Ethics, 
www.oge.gov.

[FR Doc. 2020-16474 Filed 8-19-20; 8:45 am]
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