[Federal Register Volume 85, Number 223 (Wednesday, November 18, 2020)]
[Rules and Regulations]
[Pages 73418-73421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24915]


=======================================================================
-----------------------------------------------------------------------

PEACE CORPS

22 CFR Part 313

RIN 0420-AA33


Peace Corps Guidance Documents

AGENCY: The Peace Corps.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule sets forth internal Agency policies, processes 
and procedures governing development, review and clearance of guidance 
documents.

DATES: This rule is effective November 18, 2020.

FOR FURTHER INFORMATION CONTACT: David van Hoogstraten, (202) 692-2150, 
[email protected].

SUPPLEMENTARY INFORMATION:

Guidance Document Procedures

    This final rule responds to Executive Order 13891 titled: 
``Promoting the Rule of Law through Improved Agency Guidance 
Documents,'' (October 9, 2019) in which Federal agencies are required 
to set forth policies, processes and procedures for issuing guidance 
documents.
    These policies, processes and procedures apply to all guidance 
documents which are a statement of agency policy or interpretation 
concerning a statute, regulation, or technical matter within the 
jurisdiction of the Agency intended to have general applicability and 
future effect on the behavior of the public, but not intended to have 
the force or effect of law and not otherwise required by statute to 
satisfy the rulemaking procedures of the Administrative Procedure Act.
    This final rule sets forth Agency policies, processes and 
procedures regarding the development, review and clearance of guidance 
documents. Whenever a guidance document is determined to be 
``significant,'' this will include legal review, review by the Agency's 
Senior Policy Committee and, following review and approval by the 
Office of Management and Budget, Office of Information and Regulatory 
Affairs (OMB/OIRA), review and approval by the Director of the Peace 
Corps. Prior to issuance by the Agency, all guidance documents must be 
written in plain English and not impose substantive legal requirements 
above and beyond statute or regulation. If a guidance document purports 
to describe, approve, or recommend specific conduct that goes beyond 
what is required by existing law, it must include a clear and prominent 
statement that the contents of the guidance

[[Page 73419]]

document do not have the force and effect of law and are not meant to 
bind the public. The procedures for the development and review of 
guidance documents can be found at 22 CFR 313.1 and 313.4.
    This final rule also incorporates other policies and procedures, 
such as when guidance documents are subject to notice and an 
opportunity for public comment and how they will be made available to 
the public after issuance. See 22 CFR 313.3. These procedures are 
intended to ensure that the public has access to guidance documents 
issued by the Agency and a fair and sufficient opportunity to comment 
on them when appropriate and practicable.

Administrative Procedure

    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)(3)(A). Since 
this final rule incorporates into the Code of Federal Regulations 
existing internal procedures applicable to the Agency's administrative 
procedures, notice and comment are not necessary.

Rulemaking Analyses and Notices

A. Executive Order 12866 and Agency Regulatory Policies and Procedures

    This rulemaking is not a significant regulatory action under 
Executive Order 12866. The Agency does not anticipate that this 
rulemaking will have an economic impact on regulated entities. This is 
a rule of Agency policy, procedure and practice. The final rule 
describes the manner in which the Agency handles internally the 
promulgation and processing of guidance documents.

B. Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs)

    This rule is not an Executive Order 13771 regulatory action because 
this rule is not significant under Executive Order 12866.

C. Regulatory Flexibility Act

    Since notice and comment rulemaking is not necessary for this rule, 
the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5 
U.S.C. 601-612) do not apply.

D. Executive Order 13132 (Federalism)

    Executive Order 13132 requires agencies to ensure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect 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. This action has been analyzed in 
accordance with the principles and criteria contained in the Executive 
order, and the Agency has determined that this action will not have a 
substantial direct effect or federalism implications on the States and 
would not preempt any State law or regulation or affect the States' 
ability to discharge traditional State governmental functions. 
Therefore, consultation with the States is not necessary.

E. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments.'' Because this rulemaking 
does not significantly or uniquely affect the communities of the Indian 
tribal governments or impose substantial direct compliance costs on 
them, the funding and consultation requirements of Executive Order 
13175 do not apply.

F. Paperwork Reduction Act

    The Agency has determined there are no new information collection 
requirements associated with this final rule.

G. National Environmental Policy Act

    The Agency has analyzed the environmental impacts of this action 
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 
U.S.C. 4321 et seq.), has determined that the purpose of this 
rulemaking is to update the Agency's administrative procedures for 
guidance documents and does not anticipate the action will have any 
environmental impacts.

List of Subjects in 22 CFR Part 313

    Administrative practice and procedure.

0
For the reasons set out in the preamble, the Peace Corps adds 22 CFR 
part 313 to read as follows:

PART 313--GUIDANCE PROCEDURES

Sec.
313.1 General; definition of ``guidance documents'' covered by this 
part.
313.2 Guidance documents; required elements.
313.3 Public access to guidance documents.
313.4 Definition of ``significant guidance document.''
313.5 Procedures for guidance documents identified as 
``significant.''
313.6 Notice-and-comment procedures.
313.7 Petition procedures for withdrawal or modification of a 
guidance document.
313.8 No judicial review or enforceable rights.

    Authority:  22 U.S.C. 2501 et seq.


Sec.  313.1  General; definition of ``guidance documents'' covered by 
this part.

    (a) This part governs Peace Corps (Agency) employees and 
contractors involved with all phases of issuing Agency guidance 
documents.
    (b) For purposes of this part, the term ``guidance document'' means 
a statement of Agency policy or interpretation concerning a statute, 
regulation, or technical matter within the jurisdiction of the Agency 
intended to have general applicability and future effect on the 
behavior of the public, but which is not intended to have the force or 
effect of law and is not otherwise required by statute to satisfy the 
rulemaking procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556. The 
term is not limited to formal written documents and may include, 
without limitation, letters, memoranda, circulars, bulletins, 
advisories, as well as video, audio, and web-based formats. See OMB 
Bulletin 07-02, ``Agency Good Guidance Practices,'' (January 25, 2007) 
(``OMB Good Guidance Bulletin'').
    (c) The following shall not be considered ``guidance documents'' 
for purposes of this part:
    (1) Rules exempt from rulemaking requirements under 5 U.S.C. 
553(a);
    (2) Rules of agency organization, procedure, or practice;
    (3) Decisions of agency adjudications under 5 U.S.C. 554 or similar 
statutory provisions;
    (4) Internal executive branch legal advice or legal advisory 
opinions addressed to executive branch officials;
    (5) 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;
    (6) Legal briefs, other court filings, 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,

[[Page 73420]]

editorials, media interviews, press materials, or congressional 
testimony that do not set forth for the first time a new regulatory 
policy;
    (8) Guidance pertaining to military or foreign affairs functions;
    (9) Grant solicitations and awards;
    (10) Contract solicitations and awards; or
    (11) Purely internal Agency policies or guidance directed solely to 
Agency employees, contractors, volunteers, trainees, or invitees or to 
other Federal agencies that are not intended to have substantial future 
effect on the behavior of regulated parties.
    (d) The Peace Corps will not cite, use, or rely upon a guidance 
document that is rescinded, except for the purpose of establishing 
historical fact. Guidance documents not on an Agency website, as set 
forth in this part, are considered to be rescinded.


Sec.  313.2  Guidance documents; required elements.

    Each guidance document proposed to be issued by the Agency shall:
    (a) Comply with all relevant statutes and regulation;
    (b) Identify or include for each guidance document:
    (1) The term ``guidance'' or its functional equivalent;
    (2) A unique identifier;
    (3) The issuance date, posting date, and the issuing office within 
the Agency;
    (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 summary of the subject matter covered in the guidance 
document at the top of the document.
    (c) Avoid use of mandatory language, such as ``shall,'' ``must,'' 
``required,'' or ``requirement,'' unless the language is describing an 
established statutory or regulatory requirement or is addressed to 
Agency's staff and will not foreclose the Agency's consideration of 
positions advanced by affected private parties;
    (d) Be written in plain, understandable English; and
    (e) Clearly and prominently state that the contents of the document 
do not have the force and effect of law and are not meant to bind the 
public, and the document is intended only to provide clarity to the 
public regarding existing requirements under the law or Agency 
policies.


Sec.  313.3  Public access to guidance documents.

    The Agency, whenever it issues a guidance document as defined in 
this part, shall:
    (a) Ensure it is identified by the document's title and date of 
issuance or revision and is placed on its website within a single, 
searchable, indexed database, and available to the public;
    (b) Note on an Agency website that guidance documents lack the 
force and effect of law, except as authorized by law or as incorporated 
into a contract;
    (c) Maintain and advertise on an Agency website a means for the 
public to comment electronically on guidance documents that are subject 
to the notice-and-comment procedures and to submit requests 
electronically for issuance, reconsideration, modification, or 
rescission of guidance documents in accordance with Sec.  313.6; and
    (d) Designate the Office of the General Counsel to receive and 
address any complaints from the public that the Agency is not following 
the requirements of E.O 13891, entitled ``Promoting the Rule of Law 
through Improved Agency Guidance Documents'' (October 9, 2019), or is 
improperly treating a guidance document as a binding requirement.


Sec.  313.4  Definition of ``significant guidance document.''

    (a) A ``significant guidance document'' is a guidance document that 
will be disseminated to 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;
    (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 Sec.  313.1(c) or any other 
category of guidance documents exempted by the Agency in consultation 
with the Office of Management and Budget, Office of Information and 
Regulatory Affairs (OMB/OIRA).
    (c) Significant guidance documents must be reviewed by OMB/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.


Sec.  313.5   Procedures for guidance documents identified as 
``significant.''

    (a) Whenever a guidance document is proposed to be issued by the 
Agency, a copy of the proposed guidance document will be reviewed by 
the Office of the General Counsel and provided to OMB/OIRA for a 
``significance'' determination pursuant to Executive Order 12866.
    (b) Following review and an affirmative ``significance'' 
determination by OMB/OIRA pursuant to Executive Order 12866, the 
guidance document will be reviewed by the Senior Policy Committee which 
may recommend that it be approved by the Director for issuance as a 
``significant'' guidance document and the Agency may issue the guidance 
following approval by the Director.
    (c) If the guidance document is determined by OMB/OIRA not to be 
``significant'' within the meaning of Sec.  313.4, the Agency or office 
within the Agency may proceed to issue the guidance.


Sec.  313.6  Notice-and-comment procedures.

    (a) Except as provided in paragraph (b) of this section, any 
proposed Peace Corps guidance document determined to be ``significant'' 
within the meaning of Sec.  313.4 shall be subject to the following 
notice-and-comment procedures. The Agency shall publish a notification 
in the Federal Register announcing that a draft of the proposed 
guidance document is publicly available, shall post the draft guidance 
document on its website, 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 website, 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 the Agency finds, in consultation with 
OMB/OIRA, that notice and public comment thereon are impracticable, 
unnecessary, or contrary to the public interest.

[[Page 73421]]

Sec.  313.7  Petition procedures for withdrawal or modification of a 
guidance document.

    Any member of the public may submit a petition to the Peace Corps 
requesting the Agency to consider withdrawing or modifying any guidance 
document. Such requests shall be sent by email to [email protected] 
or mailed to the Peace Corps, Office of the General Counsel, 1275 First 
St. NW, Washington, DC 20526. The Peace Corps will respond to a 
petition within 90 days of receipt by the Agency.


Sec.  313.8   No judicial review or enforceable rights.

    This part is intended to improve the internal management of the 
Peace Corps. As such, it is for the use of Agency 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: November 5, 2020.
Timothy Noelker,
General Counsel.
[FR Doc. 2020-24915 Filed 11-17-20; 8:45 am]
BILLING CODE 6051-01-P