[Federal Register Volume 85, Number 183 (Monday, September 21, 2020)]
[Rules and Regulations]
[Pages 59187-59190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18411]


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ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD

36 CFR Part 1155

[Docket No. ATBCB-2020-0003]
RIN 3014-AA43


Guidance Procedures

AGENCY: Architectural and Transportation Barriers Compliance Board.

ACTION: Final rule.

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SUMMARY: The Architectural and Transportation Barriers Compliance Board 
(hereafter, ``Access Board,'' or ``Board'') issues this final rule to 
implement an Executive Order entitled ``Promoting the Rule of Law 
Through Improved Agency Guidance Documents.'' By this rule, the Access 
Board establishes internal, procedural requirements governing the 
issuance, public availability, and modification or withdrawal of Access 
Board guidance documents.

DATES: This final rule is effective on October 21, 2020.

FOR FURTHER INFORMATION CONTACT: Christopher Kuczynski, Deputy General 
Counsel, U.S. Access Board, (202) 272-0042, board.gov">kuczynski@access-board.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    In October 2019, the President signed Executive Order 13891, 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents.'' 84 FR 55235 (Oct. 15, 2019). Section 4 of this Executive 
Order directs Federal agencies to finalize new regulations (or update 
existing regulations) that provide procedures for, among other things, 
issuance of non-binding guidance documents, coordinated review of 
``significant'' guidance documents by the Office of Management and 
Budget (OMB), and agency review of petitions by members of the public 
for modification or withdrawal of existing agency guidance materials.

[[Page 59188]]

    In accordance with E.O. 13891, the Access Board promulgates this 
new rule, which establishes internal agency procedures with regard to 
the issuance, publication, and modification or withdrawal of Access 
Board guidance documents. All current guidance documents already in 
effect are posted on our website's guidance portal, www.access-board.gov/guidance. See Notice of Guidance Documents, 85 FR 11949 (Feb. 
28, 2020). Any guidance document not posted on the Agency's guidance 
portal are considered to be rescinded and neither the Agency nor a 
party may cite, use, or rely on such a guidance except to establish 
historical facts.

II. Regulatory Process Matters

Administrative Procedure Act

    The guidance procedures established by this final rule implement 
E.O. 13891 and solely address internal matters related to agency 
management and practices. As such, this rule is exempt from the notice-
and-comment process pursuant to the Administrative Procedures Act. See 
5 U.S.C. 553(a)(2), 553(b)(3)(A).

Executive Order 12866

    This final rule establishes internal rules of agency procedure 
only. OMB has determined that the rule is not a significant regulatory 
action within the meaning of Executive Order 12866.

Executive Order 13771

    This final rule is not subject to Executive Order 13771 because it 
is a non-significant regulatory action that relates solely to ``agency 
organization, management, or personnel.'' See Executive Order 13771. 82 
FR 9339 (Feb. 3, 2017); OMB, M-17-21, ``Guidance Implementing Executive 
Order 13771, Titled `Reducing Regulation and Controlling Regulatory 
Costs''' (April 5, 2017).

Congressional Review Act

    This final rule is not a major rule within the meaning of the 
Congressional Review Act. See 5 U.S.C. 801 et seq.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires Federal agencies to 
analyze regulatory options that may assist in minimizing any 
significant impact of a rule on small businesses and small governmental 
jurisdictions. See 5 U.S.C. 604, 605(b). Because this final rule 
relates solely to agency internal procedures and, moreover, is not 
subject to notice-and-comment rulemaking, the RFA is inapplicable.

Federalism (Executive Order 13132)

    The Access Board has analyzed this final rule in accordance with 
the principles and criteria set forth in Executive Order 13132. The 
Board has determined that this action will not have a substantial 
direct effect on the States, the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government, and, 
therefore, does not have federalism implications.

Paperwork Reduction Act

    This final rule does not specify any new collections of information 
or recordkeeping requirements that require OMB approval under the 
Paperwork Reduction Act. See 44 U.S.C. 3501 et seq.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (codified at 2 U.S.C. 1531 
et seq.) (``UMRA'') generally requires that Federal agencies assess the 
effects of their discretionary regulatory actions that may result in 
the expenditure of $100 million (adjusted for inflation) or more in any 
one year by the private sector, or by State, local, and tribal 
governments in the aggregate. Because this final rule is not subject to 
notice-and-comment rulemaking, UMRA's analytical requirements do not 
apply. See 2 U.S.C. 1532(a).

List of Subjects in 36 CFR Part 1155

    Administrative practice and procedure.

0
For the reasons stated in the preamble, the Access Board adds 36 CFR 
part 1155 to read as follows:

PART 1155--GUIDANCE PROCEDURES

Sec.
1155.1 Purpose.
1155.2 Definitions.
1155.3 Legal review by Office of General Counsel.
1155.4 Requirements applicable to all guidance documents.
1155.5 Public availability of guidance documents.
1155.6 Significance determinations.
1155.7 Additional requirements applicable to significant guidance 
documents.
1155.8 Notice-and-comment procedures.
1155.9 Petitions for modification or withdrawal.
1155.10 No private right of action.

    Authority: 29 U.S.C. 792; E.O. 13891, 84 FR 55235, 3 CFR, 2019 
Comp., p. 371; 36 CFR 1151.3.

PART 1155--GUIDANCE PROCEDURES


Sec.  1155.1  Purpose.

    (a) General. This part implements Section 4 of Executive Order 
13891 by establishing requirements and procedures for issuance, 
publication, and modification or withdrawal of guidance documents of 
the United States Access Board (``Access Board'' or ``agency'').
    (b) Application. Unless otherwise stated, the requirements and 
procedures set forth in this part apply to all guidance documents 
issued or revised by the Access Board on or after October 21, 2020.


Sec.  1155.2  Definitions.

    For the purpose of this part, the following terms have the 
indicated meaning:
    (a) Guidance document. Subject to the exceptions provided in 
paragraph (b) of this section, a written statement of general 
applicability that the Access Board intends to:
    (1)(i) Have future effect on the behavior of regulated parties;
    (ii) Set forth agency policy on a statutory, regulatory, or 
technical issue; or
    (iii) Interpret a statute or regulation.
    (2) Guidance documents are not limited to formal, written 
documents, and may be set forth in other documentary formats, such as 
electronic, digital, audio, or video materials.
    (b) Exceptions. The following types of guidance documents are 
exempt from compliance with the requirements and procedures specified 
in this part:
    (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 internal organization, procedure, or practice within 
the Access Board, provided such rules do not alter substantive 
obligations for parties outside the Access Board;
    (4) Access Board decisions in formal adjudications conducted 
pursuant to 5 U.S.C. 554, or similar statutory provisions;
    (5) Internal guidance directed to Access Board personnel or other 
Federal agencies or officials that is not intended to have substantial 
future effect on the behavior of regulated parties;
    (6) Internal executive branch legal advice or opinions addressed to 
other executive branch officials or Federal agencies;
    (7) Access Board statements of specific applicability, including:

[[Page 59189]]

advisory or legal opinions directed to particular parties about 
circumstance-specific questions, and correspondence with individuals or 
entities;
    (8) Legal briefs, other court filings, or written positions taken 
by the Access Board or its legal counsel in administrative, legal, or 
enforcement proceedings;
    (9) Access Board statements that do not set forth agency policy on 
a statutory, regulatory, or technical issue or interpretation of a 
statute or regulation, such as: speeches and individual presentations, 
editorials, media interviews, press materials, or congressional 
testimony by Access Board officials that does not set forth new agency 
regulatory policy;
    (10) Contract solicitations and awards; and
    (11) Access Board policies or guidance directed solely to agency 
employees, contractors, or other Federal agencies that are not 
anticipated to have substantial future effect on the behavior of 
regulated parties outside of the Federal Government.
    (c) Significant guidance document. A type of guidance document that 
may reasonably be anticipated to:
    (1) Lead to an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Federal agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations or recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles of Executive 
Order 12866.


Sec.  1155.3  Legal review by Office of General Counsel.

    The Office of General Counsel is responsible for ensuring that 
Access Board guidance documents comply with applicable laws, 
regulations, and other Federal authorities, including the procedural 
requirements established in this part. Agency guidance documents must 
be reviewed and cleared before issuance or publication by the General 
Counsel or his or her designee, upon written delegation.


Sec.  1155.4  Requirements applicable to all guidance documents.

    (a) General. Access Board guidance must be issued, published, and 
modified or withdrawn in compliance with this part, as well as other 
applicable Federal statutes, regulations, or executive branch 
authorities.
    (b) Requirements. In addition to its substantive or informational 
content, Access Board guidance must:
    (1) Comply with all relevant statutes or regulations (including any 
statutory deadlines for agency action, absent exigent or unforeseen 
circumstances);
    (2) Be written in plain and understandable English;
    (3) Use the term ``guidance'';
    (4) Include each of the following documentary elements, unless its 
nature or format makes inclusion impracticable (in which case, the 
document should conform to such element to the maximum extent 
feasible):
    (i) Title;
    (ii) Date;
    (iii) Revision number (if applicable);
    (iv) Unique document identification number;
    (v) Identity of issuing agency or component;
    (vi) Citation(s) of Federal laws, regulations, or other authorities 
being interpreted or applied;
    (vii) Description of target audience;
    (viii) Summary of subject matter near the top of the document; and
    (ix) A disclaimer, stating: ``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.''


Sec.  1155.5  Public availability of guidance documents.

    (a) General. Subject to the exceptions provided in Sec.  1155.2(b), 
all current, in-force guidance documents, including significant 
guidance documents, shall be made publicly available on a single, 
searchable web-based ``guidance portal'' on the Access Board website. 
Guidance documents posted on this portal should, to the maximum extent 
feasible, comply with the identification requirements specified in 
Sec.  1155.4(b). The Access Board shall only cite, use, or rely on 
guidance documents that are listed on its guidance portal except to 
establish historical facts or similar archival information.
    (b) Portal requirements. The Access Board guidance portal must 
include the following elements or features:
    (1) A statement that guidance documents lack the force and effect 
of law, except as authorized by law or as incorporated into a contract;
    (2) When proposed significant guidance is open for public comment 
in conformance with Sec.  1155.8, a notice informing members of the 
public how to submit comments or link to the appropriate electronic 
docket;
    (3) The citation for, or link to, the procedural regulations 
concerning guidance documents set forth in this part; and
    (4) A notice informing individuals how to submit requests for 
issuance, modification, or withdrawal of guidance documents, in 
accordance with Sec.  1155.9.


Sec.  1155.6  Significance determinations.

    (a) Agency requests. The Access Board should make an initial, 
informal assessment concerning the ``significance'' of each proposed 
guidance document. The Office of General Counsel shall submit the 
proposed guidance to the Office of Management and Budget's Office of 
Information and Regulatory Affairs (OIRA) for a significance 
determination. The agency's request shall include, at minimum, a copy 
of the proposed guidance document, the agency's designation 
recommendation, and the bases for this recommendation.
    (b) OIRA significance determinations. If OIRA determines that a 
guidance document is significant, the Access Board shall comply with 
the enhanced procedural requirements specified in Sec. Sec.  1155.7 and 
1155.8 prior to issuance. Otherwise, the Access Board may proceed to 
issue the guidance document after the Office of General Counsel has 
determined it complies with the requirements of Sec.  1155.4.
    (c) Emergency situations. When an emergency, statutory deadline, 
judicial order, or other conditions, require the Access Board issue 
significant guidance more quickly than otherwise possible under the 
procedures established in this part, the Office of General Counsel will 
notify OIRA, as soon as possible, and comply with applicable clearance 
requirements to the maximum extent feasible.


Sec.  1155.7  Additional requirements applicable to significant 
guidance documents.

    (a) General. Guidance documents deemed ``significant'' by OIRA must 
comply with the additional requirements specified in this section.
    (b) Additional requirements. Significant guidance documents must:
    (1) Satisfy the requirements in Sec.  1155.4, which are applicable 
to all guidance documents;
    (2) Be approved by the Chair of the Board, on a non-delegable 
basis;
    (3) Be accompanied by a regulatory impact analysis for proposed 
guidance

[[Page 59190]]

that OIRA has determined to be economically significant;
    (4) Be submitted to OIRA for coordinated review, along with, at 
minimum, a summary of the proposed guidance and documentation 
demonstrating compliance with applicable rulemaking requirements set 
forth in Executive Orders 12866, 13563, 13609, 13771, and 13777; and
    (5) Comply with the notice-and-comment procedures prescribed in 
Sec.  1155.8, unless the General Counsel or his or her delegee issues a 
written determination that these informal rulemaking procedures would 
be impracticable, unnecessary, or contrary to the public interest.


Sec.  1155.8  Notice-and-comment procedures.

    The Access Board shall publish a notice of availability in the 
Federal Register with a public comment period of not less than 30 days, 
absent written determination by the General Counsel that a public 
comment period would be impracticable, unnecessary, or contrary to the 
public interest. After the close of the public comment period, the 
Access Board will also prepare a written response to any major concerns 
raised by commenters and make this response document publicly available 
on the Access Board website and/or electronic rulemaking docket (such 
as regulations.gov), either before the guidance is finalized or upon 
publication.


Sec.  1155.9  Petitions for modification or withdrawal.

    Any person may petition the Access Board, in writing, for issuance, 
modification, or withdrawal of an agency guidance document. Requests 
should be addressed to the Office of General Counsel, describe the 
action(s) the requester wishes the agency to take with regard to 
existing or new guidance, and explain the bases for this request. 
Requests may be submitted by email (board.gov">OGC@access-board.gov) or regular 
mail (Office of General Counsel, 1331 F Street NW, Suite 1000, 
Washington, DC 20004). The Office of General Counsel will review the 
request and respond in a timely manner, which, typically, is within 90 
days of receipt.


Sec.  1155.10  No private right of action.

    This part is solely intended to improve the internal management of 
the Access Board. Nothing in this part is intended to, or does, create 
a private right of action against the United States, its agencies or 
other entities, its officers or employees, or any other person. 
Authority to enforce compliance with this part is vested exclusively 
with the Board.

    Dated: August 18, 2020.
Gretchen Jacobs,
Interim Executive Director.
[FR Doc. 2020-18411 Filed 9-18-20; 8:45 am]
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