    [Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
    [Rules and Regulations]
    [Pages 53186-53189]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2020-18459]

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    NATIONAL FOUNDATION FOR THE ARTS AND HUMANITIES

    National Endowment for the Arts

    45 CFR Part 1147

    RIN 3135-AA35

    Procedures for Arts Endowment Guidance Documents

    AGENCY: National Endowment for the Arts, National Foundation for the
    Arts and Humanities.

    ACTION: Interim final rule.

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    SUMMARY: This interim final rule sets procedures for the Arts Endowment
    relating to the issuance of guidance documents.

    DATES: This rule is effective on August 28, 2020. Written comments must
    be received on or before September 27, 2020.

    ADDRESSES: You may submit comments, identified by RIN 3135-AA35, by any
    of the following methods:
        (a) Federal eRulemaking Portal: https://www.regulations.gov. Follow
    the instructions for submitting comments.
        (b) Email: generalcounsel@arts.gov. Include RIN 3135-AA35 in the
    subject line of the message.
        (c) Mail: National Endowment for the Arts, Office of the General
    Counsel, 400 7th Street SW, Second Floor, Washington, DC 20506.
        (d) Hand Delivery/Courier: National Endowment for the Arts, Office
    of the General Counsel, 400 7th Street SW, Second Floor, Washington, DC
    20506.
        Instructions: All submissions received must include the agency name
    and docket number or Regulatory Information Number (3135-AA35) for this
    rulemaking. Arrangements to deliver by courier may be affected by
    health and safety procedures related to the coronavirus pandemic;
    please reach out to generalcounsel@arts.gov or 202-682-5418 before
    attempting delivery in this manner to ensure that you delivery will be
    able to be accepted.
        Docket: For access to the docket to read background documents or
    comments received, go to 400 7th Street SW, Washington, DC.
    Arrangements to view the docket in person may be affected by health and
    safety procedures related to the coronavirus pandemic; please reach out
    to generalcounsel@arts.gov or 202-682-5418 before attempting delivery
    in this manner to ensure that you delivery will be able to be accepted.

    FOR FURTHER INFORMATION CONTACT: Daniel Fishman, Assistant General
    Counsel, National Endowment for the Arts, 400 7th St. SW, Washington,
    DC 20506; fishmand@arts.gov; 202-682-5418.

    SUPPLEMENTARY INFORMATION:

    1. Background

        This final rule implements section 4 of Executive Order 13891,
    ``Promoting the Rule of Law Through Improved Agency Guidance
    Documents'' (October 9, 2019). Under the Executive Order, the National
    Endowment for the Arts must set forth a process in regulation that
    includes:
        (1) A requirement that each guidance document clearly state that it
    does not bind the public, except as authorized by law or as
    incorporated into a contract;

    [[Page 53187]]

        (2) procedures for the public to petition for withdrawal or
    modification of a particular guidance document, including a designation
    of the officials to which petitions should be directed; and
        (3) for a significant guidance document, as determined by the
    Administrator of Office of Management and Budget's (OMB) Office of
    Information and Regulatory Affairs (Administrator), unless the agency
    and the Administrator agree that exigency, safety, health, or other
    compelling cause warrants an exemption from some or all provisions
    requiring:
        (A) A period of public notice and comment of at least 30 days
    before issuance of a final guidance document, and a public response
    from the agency to major concerns raised in comments, except when the
    agency for good cause finds (and incorporates such finding and a brief
    statement of reasons therefor into the guidance document) that notice
    and public comment thereon are impracticable, unnecessary, or contrary
    to the public interest;
        (B) approval on a non-delegable basis by the agency head or by an
    agency component head appointed by the President, before issuance;
        (C) review by the Office of Information and Regulatory Affairs
    (OIRA) under Executive Order 12866, before issuance; and
        (D) compliance with the applicable requirements for regulations or
    rules, including significant regulatory actions, set forth in Executive
    Orders 12866, 13563 (Improving Regulation and Regulatory Review), 13609
    (Promoting International Regulatory Cooperation), 13771 (Reducing
    Regulation and Controlling Regulatory Costs), and 13777 (Enforcing the
    Regulatory Reform Agenda).
        All agency guidance documents will be made available on the
    agency's website, at https://www.arts.gov/guidance.

    2. Compliance

    Administrative Procedure Act

        This final rule incorporates requirements of the Executive Order
    and the Arts Endowment's existing internal policy and procedures into
    the CFR. Therefore, in accordance with 5 U.S.C. 553, there is good
    cause for this rule of Agency organization, procedure, or practice, to
    be enacted without notice and comment. See 5 U.S.C. 553(b)(A).

    Executive Order 12866

        This rule is an internal rule of agency procedure and is not a
    significant regulatory action under Executive Order 12866.

    Executive Order 13771

        This rule is not an E.O. 13771 regulatory action because this rule
    is related to agency organization, management, or personnel.

    Regulatory Flexibility Act

        As required by the Regulatory Flexibility Act of 1980 (5 U.S.C.
    605(b)), the Arts Endowment certifies that this rule, if adopted, will
    not have a significant economic impact on a substantial number of small
    entities.

    Unfunded Mandates

        For purposes of Title II of the Unfunded Mandates Reform Act of
    1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this
    regulatory action does not contain any Federal mandate that may result
    in increased expenditures in either Federal, state, local, or tribal
    governments in the aggregate, or impose an annual burden exceeding $100
    million on the private sector.

    Paperwork Reduction Act

        The rule does not contain any information collection requirement
    subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
    seq.).

    Executive Order 13132, Federalism

        Executive Order 13132, Federalism, prohibits an agency from
    publishing any rule that has federalism implications if the rule
    imposes substantial direct compliance costs on state and local
    governments and is not required by statute, or the rule preempts state
    law, unless the agency meets the consultation and funding requirements
    of section 6 of the Executive order. This rule does not have any
    federalism implications, as described above.

    Congressional Review Act

        This action pertains to agency management, personnel, and
    organization and does not substantially affect the rights or
    obligations of nonagency parties and, accordingly, is not a ``rule'' as
    that term is used by the Congressional Review Act (Subtitle E of the
    Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
    Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
    However, for each final guidance document issued pursuant to these
    regulations and adopted by the Arts Endowment, it will submit
    appropriate reports to Congress and Government Accountability Office
    (GAO) and comply with the procedures specified by 5 U.S.C. 801.

    List of Subjects in 45 CFR Part 1157

        Administrative practice and procedure.

    0
    For reasons set forth in the preamble, the Arts Endowment amends 45 CFR
    chapter XI, subchapter B, by adding part 1157 to read as follows:

    PART 1157--ARTS ENDOWMENT GUIDANCE DOCUMENTS

    Sec.
    1157.1 General.
    1157.2 Review and clearance.
    1157.3 Requirements for clearance.
    1157.4 Public access to effective guidance documents.
    1157.5 Definitions of ``significant guidance document'' and guidance
    documents that are ``otherwise of importance to the Arts Endowment's
    interests.''
    1157.6 Notice-and-comment procedures.
    1157.7 Petitions for guidance.
    1157.8 Rescinded guidance.
    1157.9 Exigent circumstances.
    1157.10 No judicial review or enforceable rights.
    1157.11 Reports to Congress and Government Accountability Office
    (GAO).

        Authority: 20 U.S.C. 959.

    Sec.  1157.1  General.

        (a) This part governs all National Endowment for the Arts (``Arts
    Endowment'' or ``NEA'') employees and contractors involved with all
    phases of issuing Arts Endowment guidance documents.
        (b) Subject to the qualifications and exemptions contained in this
    part, the procedures in this part apply to all guidance documents
    issued by the Arts Endowment after August 28, 2020.
        (c) For purposes of this part, the term ``guidance document'' means
    an agency statement of general applicability, intended to have future
    effect on the behavior of regulated parties, that sets forth a policy
    on a statutory, regulatory, or technical issue, or an interpretation of
    a statute or regulation. 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, and advisories,
    and may include video, audio, and web-based formats. See Office of
    Management and Budget (OMB) Bulletin 07-02, ``Agency Good Guidance
    Practices,'' (January 25, 2007) (``OMB Good Guidance Bulletin'').
        (d) This part does not apply to:
        (1) Rules promulgated pursuant to notice and comment under section
    553 of title 5, United States Code, or similar statutory provisions;
        (2) Rules exempt from rulemaking requirements under 5 U.S.C.
    553(a);

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        (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 advisory
    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, determinations related to historic
    preservation), 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) Legal briefs, other court filings, or positions taken in
    litigation or enforcement actions;
        (9) 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;
        (10) Guidance pertaining to military or foreign affairs functions;
        (11) Grant solicitations, guidelines and awards;
        (12) Contract solicitations and awards; and
        (13) Purely internal Agency policies or guidance directed solely to
    Arts Endowment employees or contractors or to other Federal agencies
    that are not intended to have substantial future effect on the behavior
    of regulated parties.

    Sec.  1157.2  Review and clearance.

        All Arts Endowment guidance documents, as defined in Sec.
    1157.1(c), require review and clearance in accordance with this part.

    Sec.  1157.3  Requirements for clearance.

        The Arts Endowment's review and clearance of guidance shall ensure
    that each guidance document proposed by the Arts Endowment satisfies
    the following requirements:
        (a) The guidance document complies with all relevant statutes and
    regulation (including any statutory deadlines for Agency action);
        (b) The guidance document identifies or includes:
        (1) The term ``guidance'' or its functional equivalent;
        (2) If applicable, the issuing Arts Endowment responsible office
    name;
        (3) A unique identifier, including, at a minimum, the date of
    issuance and title of the document and its regulatory identification
    number (RIN), if applicable;
        (4) The activity or entities to which the guidance applies;
        (5) Citations to applicable statutes and regulations;
        (6) 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
        (7) A short summary of the subject matter covered in the guidance
    document at the top of the document;
        (c) The guidance document avoids using mandatory language, such as
    ``shall,'' ``must,'' ``required,'' or ``requirement,'' unless the
    language is describing an established statutory or regulatory
    requirement or is addressed to Arts Endowment employees and will not
    foreclose the Arts Endowment's consideration of positions advanced by
    affected private parties;
        (d) The guidance document is written in plain and understandable
    English; and
        (e) All guidance documents should include the following disclaimer
    prominently in each guidance document: ``The contents of this document
    do not have the force and effect of law and are not meant to bind the
    public in any way. This document is intended only to provide clarity to
    the public regarding existing requirements under the law or agency
    policies.'' When an Arts Endowment guidance document is binding because
    binding guidance is authorized by law or because the guidance is
    incorporated into a contract, the Arts Endowment will modify the
    disclaimer in the preceding sentence to reflect either of those facts.

    Sec.  1157.4  Public access to effective guidance documents.

        The Arts Endowment shall:
        (a) Ensure all effective guidance documents, identified by a unique
    identifier which includes, at a minimum, the document's title and date
    of issuance or revision and its RIN, if applicable, are on its website
    in a single, searchable, indexed database, and available to the public
    in accordance with Sec.  1157.7;
        (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) Advertise on its website where the public can comment
    electronically on any guidance documents that are subject to the
    notice-and-comment procedures described in Sec.  1157.6 and to submit
    requests electronically for issuance, reconsideration, modification, or
    rescission of guidance documents. Guidance documents that do not appear
    on the Agency's single, searchable, indexed database are rescinded; and
        (d) Designate an office to receive and address complaints from the
    public that the Arts Endowment is not following the requirements of
    OMB's Good Guidance Bulletin or is improperly treating a guidance
    document as a binding requirement.

    Sec.  1157.5  Definitions of ``significant guidance document'' and
    guidance documents that are ``otherwise of importance to the Arts
    Endowment's interests.''

        (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. Historically, the Arts Endowment has not issued any
    significant guidance documents with these implications;
        (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 this part or any other category of
    guidance documents exempted in writing by the Arts Endowment in
    consultation with the Office of Information and Regulatory Affairs
    (OIRA).
        (c) Significant and economically significant guidance documents
    must be

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    reviewed by OIRA under E.O. 12866 before issuance and must demonstrate
    compliance with the applicable requirements for regulations, including
    significant regulatory actions, set forth in applicable Executive
    orders. NEA will seek significance determinations from OIRA for
    guidance documents, as appropriate, in the same manner as for
    rulemakings. Prior to publishing these guidance documents, and with
    sufficient time to allow OIRA to review the document in the event that
    a significance determination is made. NEA will 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'' or ``economically significant'' under Executive Order
    13891.
        (d) Even if not ``significant,'' a guidance document will be
    considered ``otherwise of importance to the Arts Endowment's
    interests'' within the meaning of this paragraph (d) if it may
    reasonably be anticipated:
        (1) To relate to a major program, policy, or activity of the Arts
    Endowment or a high-profile issue pending decision before the Arts
    Endowment;
        (2) To involve one of the Chairman's top policy priorities;
        (3) To garner significant press or congressional attention; or
        (4) To raise significant questions or concerns from constituencies
    of importance to the Arts Endowment, such as Committees of Congress,
    states, Indian tribes, the White House or other departments of the
    executive branch, courts, consumer or public interest groups, or
    leading representatives of industry.

    Sec.  1157.6  Notice-and-comment procedures.

        (a) Except as provided in paragraph (b) of this section, all
    proposed Arts Endowment guidance documents determined to be a
    ``significant guidance document'' within the meaning of Sec.  1157.5
    are subject to notice-and-comment procedures. The Arts Endowment shall
    publish an advance notice in the Federal Register of the proposed
    guidance document and invite public comments for a minimum of 30 days,
    then publish a response to major concerns raised in the comments when
    the final guidance document is published.
        (b) All significant guidance documents must have approval and
    signature on a non-delegable basis by the Chairman or Senior Deputy
    Chairman, before issuance.
        (c) The requirements of paragraph (a) of this section will not
    apply to any significant guidance document unless the Arts Endowment
    finds, in consultation with OIRA, good cause that notice-and-comment
    procedures thereon are impracticable, unnecessary, or contrary to the
    public interest (and incorporates the finding of good cause and a brief
    statement of reasons in the guidance issued). The Arts Endowment and
    OIRA may establish an agreement on presumptively exempted categories of
    guidance; such documents will be presumptively exempt from the
    requirements of paragraph (a) of this section.
        (d) Where appropriate, the Arts Endowment may determine a
    particular guidance document that is otherwise of importance to the
    Arts Endowment's interests shall also be subject to the notice-and-
    comment procedures described in paragraph (a) of this section.

    Sec.  1157.7  Petitions for guidance.

        (a) Interested parties may submit petitions to the Arts Endowment
    requesting withdrawal or modification of any effective guidance
    document by emailing generalcounsel@arts.gov, or sending the petition
    by mail to National Endowment for the Arts, Attn: Office of General
    Counsel, 400 7th St. SW, Washington DC 20506. Please include ``Guidance
    Petition'' in the subject line of any correspondence to ensure the
    letter is routed properly.
        (b) Interested parties should include the guidance document's title
    and a summarized justification describing why the document should be
    withdrawn, how it should be modified, or the nature of the complaint in
    the petition in order to receive an expedited response.
        (c) The appropriate Arts Endowment official will review the
    petition and determine if withdrawal or modification is necessary or
    the best way to resolve the complaint, and respond to the petitioner
    with a decision no later than 90 days after receipt of the request.

    Sec.  1157.8  Rescinded guidance.

        The Arts Endowment may not cite, use, or rely on guidance documents
    that are rescinded, except to establish historical facts.

    Sec.  1157.9  Exigent circumstances.

        In emergency situations or when the Arts Endowment is required by
    statutory deadline or court order to act more quickly than normal
    review procedures allow, the Arts Endowment shall notify OIRA as soon
    as possible and, to the extent practicable, comply with the
    requirements of this part at the earliest opportunity. Wherever
    practicable, the Arts Endowment will alter its proceedings to permit
    sufficient time to comply with the procedures set forth in this part.

    Sec.  1157.10  No judicial review or enforceable rights.

        This part is intended to improve the internal management of the
    Arts Endowment. As such, it is for the use of Arts Endowment personnel
    only and is not intended to, and does not create any right or benefit,
    substantive or procedural, enforceable by law or in equity by any party
    against the United States, its agencies or other entities, its officers
    or employees, or any other person.

    Sec.  1157.11  Reports to Congress and Government Accountability Office
    (GAO).

        Unless otherwise determined in writing by the Arts Endowment, it is
    the policy of the Agency that upon issuing a guidance document the Arts
    Endowment will submit a report to Congress and GAO in accordance with
    the procedures described in 5 U.S.C. 801 (the ``Congressional Review
    Act'').

        Dated: August 18, 2020.
    Jillian Miller,
    Director of Guidelines and Panel Operations, Administrative Services,
    National Endowment for the Arts.

    [FR Doc. 2020-18459 Filed 8-27-20; 8:45 am]
    BILLING CODE 7537-01-P