[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: [email protected]. 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 [email protected] 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 [email protected] 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; [email protected]; 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 [email protected], 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