[Federal Register Volume 85, Number 178 (Monday, September 14, 2020)]
[Rules and Regulations]
[Pages 56525-56528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18481]


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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

National Endowment for the Humanities

45 CFR Part 1173

RIN 3136-AA42


Processes and Procedures for Issuing Guidance Documents

AGENCY: National Endowment for the Humanities; National Foundation on 
the Arts and the Humanities.

ACTION: Final rule.

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SUMMARY: This final rule sets forth the National Endowment for the 
Humanities' (NEH) internal policies and procedures governing the 
issuance of guidance documents as required by Executive Order 13891, 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents'' (E.O. 13891).

DATES: This final rule is effective on October 14, 2020.

FOR FURTHER INFORMATION CONTACT: Lisette Voyatzis, Deputy General 
Counsel, 400 7th Street SW, Room 4060, Washington, DC 20506; (202) 606-
8322; [email protected].

SUPPLEMENTARY INFORMATION: 

1. Background

    NEH is adopting this final rule pursuant to E.O. 13891,\1\ which 
requires federal agencies to finalize regulations, or amend existing 
regulations as necessary, that set forth processes and procedures for 
issuing guidance documents. In compliance with E.O. 13891, this final 
rule establishes NEH's policy, procedures, and responsibilities for 
issuing guidance documents in order to ensure that the agency performs 
the required review and clearance before issuance and follows all 
stages of the rulemaking process.
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    \1\ 84 FR 55235 (Oct. 9, 2019).
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2. Compliance

Administrative Procedure Act of 1946

    Under the Administrative Procedure Act, an agency may waive the 
normal notice and comment procedures if the action is a rule of agency 
organization, procedure, or practice. See 5 U.S.C. 553(b)(A). This 
final rule merely incorporates the requirements set forth in E.O. 13891 
into NEH's internal policy and procedures for issuing guidance 
documents. Accordingly, NEH has concluded that there is good cause to 
publish this rule without prior public notice and comment.

E.O. 12866, Regulatory Planning and Review, and E.O. 13563, Improving 
Regulation and Regulatory Review

    This action is not significant under E.O. 12866.

E.O. 13771, Reducing Regulation and Controlling Regulatory Costs

    This action is not expected to be an E.O. 13771 regulatory action 
because this action is not significant under E.O. 12866.

E.O. 13132, Federalism

    This rulemaking does not have federalism implications. It will not 
have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government.

E.O. 12988, Civil Justice Reform

    This rulemaking meets the applicable standards set forth in section 
3(a) and 3(b)(2) of E.O. 12988. Specifically, this final rule is 
written in clear language designed to help reduce litigation.

E.O. 13175, Indian Tribal Governments

    Under the criteria in E.O. 13175, NEH evaluated this final rule and 
determined that it will not have any potential effects on Federally 
recognized Indian Tribes.

E.O. 12630, Takings

    Under the criteria in E.O. 12630, this rulemaking does not have 
significant takings implications. Therefore, a takings implication 
assessment is not required.

Regulatory Flexibility Act of 1980

    This rulemaking will not have a significant adverse impact on a 
substantial number of small entities, including small businesses, small 
governmental jurisdictions, or certain small not-for-profit 
organizations.

Paperwork Reduction Act of 1995

    This rulemaking does not impose an information collection burden 
under the Paperwork Reduction Act. This action contains no provisions 
constituting a collection of information pursuant to the Paperwork 
Reduction Act.

Unfunded Mandates Reform Act of 1995

    This rulemaking does not contain a Federal mandate that will result 
in the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any one 
year.

National Environmental Policy Act of 1969

    This final rule will not have a significant effect on the human 
environment.

[[Page 56526]]

Small Business Regulatory Enforcement Fairness Act of 1996

    This action pertains to agency management, personnel, and 
organization and does not substantially affect the rights or 
obligations of nonagency parties. Accordingly, it 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), and the 
reporting requirement of 5 U.S.C. 801 does not apply.

E-Government Act of 2002

    All information about NEH required to be published in the Federal 
Register may be accessed at www.neh.gov. The website https://www.regulations.gov contains electronic dockets for NEH's rulemakings 
under the Administrative Procedure Act of 1946.

Plain Writing Act of 2010

    To ensure this final rule was written in plain and clear language 
so that it can be used and understood by the public, NEH modeled the 
language of this final rule on the Federal Plain Language Guidelines.

List of Subjects in 45 CFR 1173

    Administrative practice and procedure.

0
For the reasons stated in the preamble, the National Endowment for the 
Humanities adds 45 CFR part 1173 to read as follows:

PART 1173--PROCESSES AND PROCEDURES FOR ISSUING GUIDANCE DOCUMENTS

Sec.
1173.1 Purpose and scope.
1173.2 Definition of guidance document.
1173.3 Review and clearance.
1173.4 Requirements for clearance.
1173.5 Public access to guidance documents.
1173.6 Waiver of publication of guidance documents.
1173.7 Good faith cost estimates.
1173.8 Definition of significant guidance document.
1173.9 Procedures for significant guidance documents.
1173.10 Notice-and-comment procedures.
1173.11 Petitions to withdraw or modify guidance.
1173.12 Rescinded guidance.
1173.13 Exigent circumstances.
1173.14 Reports to Congress and the Government Accountability Office 
(GAO).
1173.15 No judicial review or enforceable rights.

    Authority:  5 U.S.C. 301; 20 U.S.C. 956.


Sec.  1173.1  Purpose and scope.

    (a) This part prescribes general procedures that apply to guidance 
documents issued by the National Endowment for the Humanities (NEH).
    (b) This part governs all NEH employees and contractors 
(collectively, NEH staff) involved with all phases of issuing NEH 
guidance documents.
    (c) This part applies to all NEH guidance documents in effect on or 
after October 14, 2020.


Sec.  1173.2  Definition of guidance document.

    (a) For purposes of this part, the term guidance document means any 
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, but 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) 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 and awards;
    (12) Contract solicitations and awards; or
    (13) Purely internal agency policies or guidance directed solely to 
NEH staff or other federal agencies that are not intended to have 
substantial future effect on the behavior of regulated parties.


Sec.  1173.3  Review and clearance.

    All NEH guidance documents, as defined in Sec.  1173.2, require 
review and clearance in accordance with this part. All agency guidance 
documents must be reviewed and cleared by NEH's Office of the General 
Counsel (OGC).


Sec.  1173.4  Requirements for clearance.

    The NEH OGC's review and clearance of guidance documents shall 
ensure that each guidance document the agency proposes to issue 
satisfies the following requirements:
    (a) The guidance document complies with all relevant statutes and 
regulations (including any statutory deadlines for agency action);
    (b) The guidance document identifies or includes:
    (1) The term ``guidance'' or its functional equivalent;
    (2) A concise name for the guidance document;
    (3) The NEH office or division issuing the guidance document;
    (4) A unique identifier, including, at a minimum, the date of 
issuance, title of the document, and a number assigned by NEH's OGC 
(or, in the case of a significant guidance document, the Z-RIN 
(regulatory identification number));
    (5) The general topic that the guidance document addresses;
    (6) Citations to applicable statutes and regulations;
    (7) 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
    (8) A concise summary of the guidance document's content.
    (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 NEH staff and will not foreclose NEH'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 include a clear and prominent statement 
declaring that the contents of the document do not have the force and 
effect of law, are not

[[Page 56527]]

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 NEH's policies.


Sec.  1173.5  Public access to guidance documents.

    NEH will:
    (a) Oversee the creation of a guidance portal on the agency's 
website;
    (b) Ensure all effective guidance documents, identified by a unique 
identifier as described in Sec.  1173.4(b)(4), are on the guidance 
portal in a single, searchable, indexed database, and available to the 
public;
    (c) Note on the agency's guidance portal that guidance documents 
lack the force and effect of law, except as authorized by law or as 
incorporated into a contract;
    (d) Maintain and publish on NEH's guidance portal a means for the 
public to comment electronically on any guidance documents that are 
subject to notice-and-comment procedures, and to submit requests 
electronically for issuance, reconsideration, modification, or 
rescission of guidance documents in accordance with Sec.  1173.11;
    (e) Include on the agency's guidance portal the date on which all 
guidance documents were posted to the website and a hyperlink to all 
guidance documents;
    (f) Receive and address complaints from the public that NEH is not 
following the requirements of OMB's Good Guidance Bulletin or that NEH 
is improperly treating a guidance document as a binding requirement;
    (g) Note on the agency's guidance portal that any guidance document 
not posted on the guidance portal is rescinded, and that neither the 
agency nor a party may cite, use, or rely on any guidance document that 
is not posted on the guidance portal, except to establish historical 
facts; and
    (h) Include a link to this part on the agency's guidance portal.


Sec.  1173.6  Waiver of publication of guidance documents.

    (a) Sections 1173.5(b) and (e) do not apply to guidance documents 
for which a waiver has been applied from the OMB Director pursuant to 
Subsection 3(c) of Executive Order (E.O.) 13891.
    (b) Requests for waivers must be written and signed by a senior 
policy official at the agency.


Sec.  1173.7  Good faith cost estimates.

    (a) NEH will, to the extent practicable, make a good faith effort 
to estimate the likely economic cost impact of the guidance document to 
determine whether the document might be significant.
    (b) When assessing or explaining whether it believes a guidance 
document is significant, NEH will, at a minimum, provide the same level 
of analysis that would be required for a major determination under the 
Congressional Review Act.\2\
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    \2\ See OMB Memorandum M-19-14, Guidance on Compliance with the 
Congressional Review Act (April 11, 2019).
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    (c) When OMB's Office of Information and Regulatory Affairs (OIRA) 
determines that a guidance document will be economically significant, 
NEH will 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 an economically significant 
rulemaking, to the extent reasonably possible.


Sec.  1173.8  Definition of significant guidance document.

    (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 United States economy, a 
sector of the United States 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 that another federal agency has taken or planned;
    (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 that NEH's OGC, in consultation with OIRA, has 
exempted in writing.


Sec.  1173.9  Procedures for significant guidance documents.

    (a) NEH will make an initial, preliminary determination about a 
guidance document's significance. Thereafter, NEH will submit the 
document to OIRA to determine whether a guidance document is 
significant, unless the guidance is otherwise exempted from such a 
determination by the Administrator of OIRA.
    (b) If OIRA designates a guidance document as significant, NEH will 
submit the guidance document to OIRA for review under E.O. 12866 prior 
to issuing it; and NEH will process significant guidance in compliance 
with the applicable requirements for regulations or rules, including 
significant regulatory actions, as set forth in E.O. 12866, E.O. 13563, 
E.O. 13609, E.O. 13771, and E.O. 13777.
    (c) The NEH Chairperson signs or approves significant guidance 
documents.


Sec.  1173.10  Notice-and-comment procedures.

    Except as provided in paragraph (b) of this section, all proposed 
NEH guidance documents determined to be significant guidance documents 
within the meaning of Sec.  1173.8 will be subject to the following 
informal notice-and-comment procedures.
    (a) NEH's OGC will:
    (1) Publish a notice in the Federal Register announcing that a 
draft of the proposed guidance document is publicly available;
    (2) Post the draft guidance document on its website, at 
www.neh.gov/guidance;
    (3) Invite public comment on the draft document for a minimum of 
thirty (30) days; and
    (4) Prepare and post a public response to major concerns raised in 
the comments, as appropriate, on its guidance portal, 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 documents or categories of 
significant guidance documents for which NEH's OGC finds--in 
consultation with OIRA, the proposing NEH office/division, and the NEH 
Chairperson--good cause that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest (and 
incorporates the finding of good cause and a brief statement of reasons 
therefor in the issued guidance).
    (c) Where appropriate, NEH's OGC may recommend to the NEH 
Chairperson that a particular guidance document that is otherwise of 
importance to the agency's interests should also be subject to the 
informal notice-and-comment procedures described in paragraph (a) of 
this section.

[[Page 56528]]

Sec.  1173.11  Petitions to withdraw or modify guidance.

    (a) Any person may submit a petition to NEH requesting withdrawal 
or modification of any effective guidance document by writing to the 
NEH Office of the General Counsel at: [email protected], or National 
Endowment for the Humanities, Attn: Office of the General Counsel, 400 
Seventh Street SW, Washington, DC 20506.
    (b) The petition must:
    (1) Describe the nature of the request and provide the title or 
substance of the guidance you are requesting that NEH withdraw or 
modify; and
    (2) Explain, with justification, how the document should be 
modified or why the document should be withdrawn.
    (c) NEH will review each request and determine whether to grant the 
request or deny it in whole or in part. NEH will respond to all 
requests in a timely manner, but no later than ninety (90) days after 
receipt of the request.


Sec.  1173.12  Rescinded guidance.

    (a) NEH's OGC, in consultation with the NEH office/division that 
issued the guidance document, shall determine whether to rescind a 
guidance document.
    (b) Once rescinded, NEH will remove the hyperlink to the guidance 
document from the guidance portal. The agency will list on the guidance 
portal, for at least one year after rescission, the guidance document's 
name, title, unique identifier, and date of rescission.
    (c) No NEH office/division or NEH staff may cite, use, or rely on 
guidance documents that are rescinded, except to establish historical 
facts.


Sec.  1173.13  Exigent circumstances.

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


Sec.  1173.14  Reports to Congress and the Government Accountability 
Office (GAO).

    Unless otherwise determined in writing, NEH will, upon issuing a 
guidance document, submit a report to Congress and GAO in accordance 
with the procedures described in the Congressional Review Act.


Sec.  1173.15  No judicial review or enforceable rights.

    This part is intended to improve the internal management of the 
National Endowment for the Humanities. As such, it is for the use of 
NEH 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.

    Dated: August 18, 2020.
Caitlin Cater,
Attorney-Advisor, National Endowment for the Humanities.
[FR Doc. 2020-18481 Filed 9-11-20; 8:45 am]
BILLING CODE 7536-01-P