[Federal Register Volume 85, Number 201 (Friday, October 16, 2020)]
[Rules and Regulations]
[Pages 65651-65653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21393]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 85, No. 201 / Friday, October 16, 2020 / 
Rules and Regulations  

[[Page 65651]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 120

RIN 3206-AO01


Guidance Procedures

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: This rule codifies the Office of Personnel Management's 
policies and procedures for reviewing and clearing administrative 
guidance documents.

DATES: Effective October 16, 2020.

FOR FURTHER INFORMATION CONTACT: Alexys Stanley by telephone at (202) 
606-1000 or by email at [email protected].

SUPPLEMENTARY INFORMATION: This final rule, which adds part 120 to 
Title 5 of the Code of Federal Regulations, is adopted pursuant to 
Executive Order 13891, titled: ``Promoting the Rule of Law Through 
Improved Agency Guidance Documents'' (84 FR 55235, October 9, 2019). 
The Executive order requires Federal agencies to finalize regulations, 
or amend existing regulations as necessary, to set forth processes and 
procedures for issuing guidance documents. This final rule also 
incorporates the requirements of Office of Management and Budget 
Memorandum M-20-02 of October 31, 2019, which implements the Executive 
order.

Waiver of Notice of Proposed Rule Making

    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). The Civil Service Reform Act's additional provisions for 
rulemaking by OPM incorporate this exception. See 5 U.S.C. 1105. Since 
this is not a substantive rule but a rule of agency procedure, notice 
and comment are not necessary.

Executive Order 12866

    This rule is not a significant regulatory action under E.O. 12866.

Executive Order 13771

    This rule is not subject to the requirements of E.O. 13771 because 
this rule is not a significant regulatory action under E.O. 12866 and 
imposes only de minimis costs.

Regulatory Flexibility Act

    This regulation will not have a significant economic impact on a 
substantial number of small entities because it will apply only to 
Federal agencies and employees.

Federalism

    OPM has examined this rule in accordance with Executive Order 
13132, Federalism, and has determined that this rule will not have any 
negative impact on the rights, roles and responsibilities of State, 
local, or tribal governments.

Civil Justice Reform

    This regulation meets the applicable standard set forth in 
Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not 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 year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Paperwork Reduction Act Requirements

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act.

List of Subjects in 5 CFR Part 120

    Administrative practice and procedure.

    Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.

    For the reasons stated in the preamble, OPM amends title 5 of the 
Code of Federal Regulations by adding part 120 as follows:

0
1. Add part 120 to read as follows:

PART 120--ADMINISTRATIVE GUIDANCE

Sec.
120.1 Purpose and scope.
120.2 Definitions applicable to this part.
120.3 Requirements for clearance.
120.4 Public access to guidance documents.
120.5 Definition of significant guidance document.
120.6 Procedure for guidance documents identified as 
``significant''.
120.7 Notice-and-comment procedures.
120.8 Petitions to withdraw or modify guidance.
120.9 Rescinded guidance.
120.10 Exceptional circumstances.
120.11 Reports to Congress and GAO.
120.12 No judicial review or enforceable rights.

    Authority:  5 U.S.C. 552(a)(1); E.O. 13891, 84 FR 55235.


Sec.  120.1   Purpose and scope.

    (a) This part prescribes general procedures that apply to OPM 
guidance documents.
    (b) This part governs all OPM employees and contractors involved 
with all phases of issuing guidance documents.
    (c) This part applies to all OPM guidance documents in effect on or 
after April 28, 2020.


Sec.  120.2   Definitions applicable to this part.

    (a) Except as provided in paragraph (b) of this section, 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.
    (b) The term guidance document does not include:
    (1) Rules promulgated under 5 U.S.C. 553 (or similar statutory 
provisions);
    (2) Rules of agency organization, procedure, or practice that are 
not anticipated to have substantial future effect on the behavior of 
regulated parties or the public;
    (3) Decisions of agency adjudications;
    (4) Internal executive branch legal advice or legal opinions 
addressed to executive branch officials;
    (5) Agency statements of specific applicability, including advisory 
or legal opinions directed to particular

[[Page 65652]]

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;
    (6) Legal briefs, other filings with a court or administrative 
tribunal, records or communications produced in a legal proceeding, 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 a new regulatory policy;
    (8) Guidance pertaining to military or foreign affairs functions, 
or to a national security or homeland security function of the United 
States (other than guidance documents involving procurement or the 
import or export of non-defense articles and services), and any other 
guidance when application of this order, or any part of this order, 
would, in the judgment of the Director of OPM, undermine the national 
security;
    (9) Any action related to a criminal investigation or prosecution, 
including undercover operations, or any civil enforcement action or 
related investigation by the Department of Justice, including any 
action related to a civil investigative demand under 18 U.S.C. 1968;
    (10) Any investigation of misconduct by an agency employee or any 
disciplinary, corrective, or employment action taken against an agency 
employee;
    (11) Grant solicitations and awards;
    (12) Contract solicitations and awards;
    (13) Agency documents that are not publicly disseminated, including 
classified information, information subject to a statutory or 
regulatory redisclosure restriction, privileged information, and 
information exempt from disclosure under the Freedom of Information 
Act;
    (14) Purely internal agency policies or guidance directed solely to 
OPM employees or contractors that are not anticipated to have 
substantial future effect on the behavior of regulated parties or the 
public; and
    (15) Documents that are directed solely to other agencies (or 
personnel of such agencies) and that are not anticipated to have 
substantial future effect on the behavior of regulated parties or the 
public, including the typical documents issued for government-wide use 
by OPM.
    (c) OMB means the Office of Management and Budget.
    (d) OIRA means the Office of Information and Regulatory Affairs of 
OMB.


Sec.  120.3   Requirements for clearance.

    Except as described in Sec.  120.6(c), the Director of OPM may 
delegate any function related to the review and clearance of guidance. 
OPM's review and clearance of guidance shall ensure that each guidance 
document proposed to be issued by OPM 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) The issuing office name;
    (3) A unique identifier, including, at a minimum, the date of 
issuance, title of the document, and its regulatory identification 
number (Z-RIN) in the case of a significant guidance document;
    (4) The general topic, activity, persons, and/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 concise summary of the guidance document's content;
    (c) The guidance document avoids using mandatory language, such as 
``shall,'' ``must,'' ``required,'' or ``requirement,'' unless it is 
binding guidance by law or as incorporated in a contract, the language 
is describing an established statutory or regulatory requirement, or 
the language is addressed to agency staff or other Federal employees 
and will not foreclose OPM's ability to consider positions advanced by 
any affected private parties;
    (d) The guidance document is written in plain and understandable 
English; and
    (e) The guidance document includes the following disclaimer 
prominently: ``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 a 
guidance document is binding because binding guidance is authorized by 
law or because the guidance is incorporated into a contract, the 
originating office should modify this disclaimer to reflect either of 
those facts.


Sec.  120.4   Public access to guidance documents.

    (a) OPM shall ensure all guidance documents in effect are on OPM's 
Web portal in a single, searchable, indexed database, available to the 
public.
    (b) The Web portal will:
    (1) Include an index with each guidance document's name, date of 
issuance, date of posting, and unique agency identifier; if the 
guidance document is a significant guidance document, its Z-RIN; the 
general topic and a brief (1-2 sentence) summary of the guidance 
document; and a hypertext link to the guidance document;
    (2) Note that guidance documents lack the force and effect of law, 
except as authorized by law or as incorporated into a contract;
    (3) Note that OPM may not cite, use, or rely on any guidance that 
is not posted except to establish historical facts unless OMB makes an 
exception for particular guidance documents or categories of guidance 
documents;
    (4) Include a link to this part and to any Federal Register notice 
referencing the Web portal;
    (5) Explain how the public can request the withdrawal or 
modification of an existing guidance document, including an email 
address where electronic requests can be submitted, a mailing address 
where hard copy requests can be submitted, and an office at the agency 
responsible for coordinating such requests; and
    (6) Include the information about proposed significant guidance 
documents described in Sec.  120.7.


Sec.  120.5   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 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;

[[Page 65653]]

    (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.
    (b) The term significant guidance document does not include the 
categories of documents excluded by Sec.  120.2 or any other category 
of guidance documents exempted in writing by OPM in consultation with 
OIRA.


Sec.  120.6   Procedure for guidance documents identified as 
``significant.''

    (a) OPM will make an initial, preliminary determination about a 
guidance document's significance. Thereafter, OPM must submit the 
guidance document to OIRA for its determination whether guidance is 
significant guidance, unless the guidance is otherwise exempted from 
such a determination by the Administrator of OIRA.
    (b) Significant guidance documents, as determined by the 
Administrator of OIRA, must be reviewed by OIRA under E.O. 12866 before 
issuance; and must demonstrate compliance with the applicable 
requirements for regulations or rules, including significant regulatory 
actions, set forth in E.O. 12866, E.O. 13563, E.O. 13609, E.O. 13771, 
and E.O. 13777.
    (c) Significant guidance documents must be signed by the Director 
of OPM.


Sec.  120.7   Notice-and-comment procedures.

    (a) Except as provided in paragraph (b) of this section, all 
proposed OPM guidance documents determined to be a ``significant 
guidance document'' within the meaning of Sec.  120.5 shall be subject 
to the following informal notice-and-comment procedures. OPM shall 
publish notification in the Federal Register announcing that a draft of 
the proposed guidance document is publicly available, shall post a link 
to the Federal Register notice and the draft guidance document on its 
guidance portal, shall invite public comment on the draft document for 
a minimum of 30 days, and shall prepare and post a public response to 
major concerns raised in the comments, as appropriate, on its guidance 
Web 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 document or categories of significant 
guidance documents for which OPM finds 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 therefore in the guidance issued).
    (c) Where appropriate, the originating office may recommend to the 
Director of OPM that a particular guidance document that is otherwise 
of importance to OPM's interests shall also be subject to the informal 
notice-and-comment procedures described in paragraph (a) of this 
section.


Sec.  120.8   Petitions to withdraw or modify guidance.

    (a) Any person may petition OPM to withdraw or modify a particular 
guidance document as specified by Sec.  120.4(b)(5).
    (b) Any person may submit a petition to OPM requesting withdrawal 
or modification of any effective guidance document by writing to OPM 
Office of the Executive Secretariat at: [email protected], or U.S. 
Office of Personnel Management Attn: Executive Secretariat 1900 E 
Street NW, Washington, DC 20415.
    (c) OPM will respond to all requests in a timely manner, but no 
later than 90 days after receipt of the request.


Sec.  120.9   Rescinded guidance.

    (a) In the absence of a petition, OPM may rescind a guidance 
document on grounds that it is no longer accurate or necessary.
    (b) If OPM rescinds a guidance document, the hyperlink to the 
guidance document will be removed. The name, title, unique identifier, 
and date of rescission will be listed on the guidance portal for at 
least one year after rescission.
    (c) No employee of OPM may cite, use, or rely on rescinded guidance 
documents, except to establish historical facts, unless OMB makes an 
exception for particular guidance documents or categories of guidance 
documents.


Sec.  120.10   Exceptional circumstances.

    (a) A guidance document may be exempted from the requirements of 
section 120.6(b) or 120.7(a) by agreement of OPM and OIRA for reasons 
of exigency, safety, health, or other compelling cause.
    (b) In emergency situations or when OPM is required by statutory 
deadline or court order to act more quickly than normal review 
procedures allow, OPM will notify OIRA as soon as possible and, to the 
extent practicable, shall comply with the requirements of this part at 
the earliest opportunity. Wherever practicable, OPM should schedule its 
proceedings to permit sufficient time to comply with the procedures set 
forth in this part.


Sec.  120.11   Reports to Congress and GAO.

    When OPM adopts final guidance constituting a ``rule'' under 5 
U.S.C. 804, OPM will submit the reports to Congress and GAO and comply 
with the procedures specified by 5 U.S.C. 801 (commonly known as the 
Congressional Review Act).


Sec.  120.12   No judicial review or enforceable rights.

    This part is intended to improve the internal management of OPM. As 
such, it is for the use of OPM 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.

[FR Doc. 2020-21393 Filed 10-15-20; 8:45 am]
BILLING CODE 6325-38-P