Administrative Guidance, 21770-21773 [2020-07523]
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21770
Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Rules and Regulations
CFR 1021.5(c)(2). This rule falls within
the categorical exclusion, so no
environmental assessment or
environmental impact statement is
required.
J. Preemption
Section 26(a) of the CPSA provides
that where a consumer product safety
standard is in effect and applies to a
product, no state or political
subdivision of a state may either
establish or continue in effect a
requirement dealing with the same risk
of injury unless the state requirement is
identical to the Federal standard. 15
U.S.C. 2075(a). Section 26(c) of the
CPSA also provides that states or
political subdivisions of states may
apply to CPSC for an exemption from
this preemption under certain
circumstances. Section 104(b) of the
CPSIA deems rules issued under that
provision ‘‘consumer product safety
standards.’’ Therefore, once a rule
issued under section 104 of the CPSIA
takes effect, it will preempt in
accordance with section 26(a) of the
CPSA.
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K. Effective Date
Under the procedure set forth in
section 104(b)(4)(B) of the CPSIA, when
a voluntary standard organization
revises a standard that the Commission
adopted as a mandatory standard, the
revision becomes the CPSC standard
within 180 days of notification to the
Commission, unless the Commission
determines that the revision does not
improve the safety of the product, or the
Commission sets a later date in the
Federal Register. 15 U.S.C.
2056a(b)(4)(B). The Commission is
taking neither of those actions with
respect to the standard for sling carriers.
Therefore, ASTM F2907–19
automatically will take effect as the new
mandatory standard for sling carriers on
July 6, 2020, 180 days after the
Commission received notice of the
revision on January 8, 2020. As a direct
final rule, unless the Commission
receives a significant adverse comment
within 30 days of this notification, the
rule will become effective on July 6,
2020.
L. Congressional Review Act
The Congressional Review Act (CRA;
5 U.S.C. 801–808) states that, before a
rule may take effect, the agency issuing
the rule must submit the rule, and
certain related information, to each
House of Congress and the Comptroller
General. 5 U.S.C. 801(a)(1). The
submission must indicate whether the
rule is a ‘‘major rule.’’ The CRA states
that the Office of Information and
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Regulatory Affairs (OIRA) determines
whether a rule qualifies as a ‘‘major
rule.’’
Pursuant to the CRA, this rule does
not qualify as a ‘‘major rule,’’ as defined
in 5 U.S.C. 804(2). To comply with the
CRA, the Office of the General Counsel
will submit the required information to
each House of Congress and the
Comptroller General.
List of Subjects in 16 CFR Part 1228
(2) [Reserved]
Alberta E. Mills,
Secretary, Consumer Product Safety
Commission.
[FR Doc. 2020–07522 Filed 4–17–20; 8:45 am]
BILLING CODE 6355–01–P
FEDERAL MEDIATION AND
CONCILIATION SERVICE
Consumer protection, Imports,
Incorporation by reference, Infants and
children, Labeling, Law enforcement,
Toys.
For the reasons discussed in the
preamble, the Commission amends 16
CFR chapter II as follows:
29 CFR Part 1473
PART 1228—SAFETY STANDARD FOR
SLING CARRIERS
SUMMARY:
1. Revise the authority citation for part
1228 to read as follows:
■
Authority: Sec. 104, Pub. L. 110–314, 122
Stat. 3016 (15 U.S.C. 2056a).
■
2. Revise § 1228.2 to read as follows:
§ 1228.2
Requirements for sling carriers.
(a) Except as provided in paragraph
(b) of this section, each sling carrier
must comply with all applicable
provisions of ASTM F2907–19,
Standard Consumer Safety
Specification for Sling Carriers,
approved on November 1, 2019. The
Director of the Federal Register
approves this incorporation by reference
in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. You may obtain a copy
of this ASTM standard from ASTM
International, 100 Barr Harbor Drive, PO
Box C700, West Conshohocken, PA
19428–2959; www.astm.org. A read-only
copy of the standard is available for
viewing on the ASTM website at https://
www.astm.org/READINGLIBRARY/. You
may inspect a copy at the Division of
the Secretariat, U.S. Consumer Product
Safety Commission, Room 820, 4330
East West Highway, Bethesda, MD
20814, telephone 301–504–7923, or at
the National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, email fedreg.legal@
nara.gov, or go to: www.archives.gov/
federal-register/cfr/ibr-locations.html.
(b) In addition to complying with
section 5.7.2 of ASTM F2907–19,
comply with the following:
(1) 5.7.3 Warning labels that are
attached to the fabric with seams shall
remain in contact with the fabric around
the entire perimeter of the label, when
the sling is in all manufacturer
recommended use positions.
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RIN 3076–AA15
Administrative Guidance
Federal Mediation and
Conciliation Service.
ACTION: Final rule.
AGENCY:
This final rule sets forth the
Service’s procedures governing the
issuance of guidance documents as
required by the Executive order titled
‘‘Promoting the Rule of Law Through
Improved Agency Guidance
Documents’’.
DATES: Effective on May 20, 2020.
FOR FURTHER INFORMATION CONTACT:
Sarah Cudahy, Office of the General
Counsel, 202–606–8090, scudahy@
fmcs.gov.
SUPPLEMENTARY INFORMATION: This final
rule, which adds to the Code of Federal
Regulations at 49 part 1473, is adopted
pursuant to Executive Order 13891,
titled: ‘‘Promoting the Rule of Law
Through Improved Agency Guidance
Documents’’ (October 9, 2019). In that
Executive order, Federal agencies are
required to finalize regulations, or
amend existing regulations as necessary,
to set forth processes and procedures for
issuing guidance documents.
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). As this final rule merely
codifies procedures applicable to the
Service’s administrative procedures into
the Code of Federal Regulations, notice
and comment are not necessary.
Rulemaking Analyses and Notices
A. Executive Order 12866
The Office of Management and Budget
has determined that this rulemaking is
not a significant regulatory action under
Executive Order 12866. The Service
does not anticipate that this rulemaking
will have an economic impact on
regulated entities. This is a rule of
agency procedure and practice. The
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final rule describes the Service’s
procedures for processing of guidance
documents. The Service has adopted
these internal procedures as required by
Executive Order 13891, and has not
incurred any additional resource costs
in doing so. The adoption of these
practices has been accomplished
through the use of existing agency
resources, and it is anticipated that the
public will benefit from the resulting
increase in efficiency in delivery of
government services.
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
Executive Order 13132 (August 4, 1999),
and the Service 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.
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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.
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F. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501 et seq.) requires
that FMCS consider the impact of
paperwork and other information
collection burdens imposed on the
public and, under the provisions of PRA
section 3507(d), obtain approval from
the Office of Management and Budget
(OMB) for each collection of
information it conducts, sponsors, or
requires through regulations. The
Service 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.) and has determined that it
does not apply. The purpose of this
rulemaking is to formalize the Service’s
administrative procedures for guidance
documents. The agency does not
anticipate any environmental impacts,
and there are no extraordinary
circumstances present in connection
with this rulemaking.
Regulation Identifier Number
A regulation identifier number (RIN)
is assigned to each regulatory action
listed in the Unified Agenda of Federal
Regulations. The Regulatory Information
Service Center publishes the Unified
Agenda in the spring and fall of each
year. The RIN contained in the heading
of this document can be used to cross
reference this action with the Unified
Agenda.
List of Subjects in 29 CFR Part 1473
Administrative practice and
procedure, Guidance documents.
Issued in Washington, DC on April 6, 2020.
Gregory Goldstein,
Acting Director.
In consideration of the foregoing, the
Federal Mediation and Conciliation
Service adds 29 CFR part 1473 to read
as follows:
■
PART 1473—ADMINISTRATIVE
GUIDANCE
Subpart A—Guidance Documents
Sec.
1473.1 Purpose and scope.
1473.2 Definition of guidance document.
1473.3 Review and clearance by the Office
of the General Counsel.
1473.4 Requirements for clearance.
1473.5 Public access to guidance
documents.
1473.6 Waiver of publication of guidance
documents.
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21771
1473.7 Good faith cost estimates.
1473.8 Definition of significant guidance
document.
1473.9 Procedure for guidance documents
identified as ‘‘significant’’.
1473.10 Notice-and-comment procedures.
1473.11 Petitions to withdraw or modify
guidance.
1473.12 Rescinded guidance.
1473.13 Exigent circumstances.
1473.14 Reports to Congress and the
Government Accountability Office
(GAO).
1473.15 No judicial review or enforceable
rights.
Subpart B—[Reserved]
Authority: 29 U.S.C. 172 and 29 U.S.C.
173, et seq.
Subpart A—Guidance Documents
§ 1473.1
Purpose and scope.
(a) This subpart prescribes general
procedures that apply to guidance
documents of the Federal Mediation and
Conciliation Service.
(b) This subpart governs all Federal
Mediation and Conciliation Service
employees and contractors involved
with all phases of issuing Service
guidance documents.
(c) This subpart applies to all
guidance documents by the Service in
effect on or after February 28, 2020.
§ 1473.2
Definition of guidance document.
(a) For purposes of this subpart, 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 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.
(b) This subpart does not apply to:
(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
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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,
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 Service
employees or contractors or to other
Federal agencies that are not intended to
have substantial future effect on the
behavior of regulated parties.
§ 1473.3 Review and clearance by the
Office of the General Counsel.
All Federal Mediation and
Conciliation Service guidance
documents, as defined in § 1473.2,
require review and clearance in
accordance with this subpart. All
guidance proposed to be issued by the
Service must be reviewed and cleared
by the Office of General Counsel.
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§ 1473.4
Requirements for clearance.
The Service’s review and clearance of
guidance shall ensure that each
guidance document proposed to be
issued by the Federal Mediation and
Conciliation Service 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) A concise name for the guidance
document;
(3) The issuing department;
(4) A unique identifier, including, at
a minimum, the date of issuance, title of
the document, and a number assigned
by the Office of General Counsel (or, in
the case of a significant guidance
document, the Z–RIN (regulation
identifier number));
(5) The general topic addressed by the
guidance document;
(6) Citations to applicable statutes and
regulations;
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(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 Service staff and will not foreclose
the Service’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
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 an agency’s
guidance document is binding because
guidance is authorized by law or
because the guidance is incorporated
into a contract, the agency should
modify this disclaimer to reflect either
of those facts.
§ 1473.5 Public access to guidance
documents.
The Office of General Counsel shall:
(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 § 1473.4(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 the
Service’s guidance portal a means for
the public to comment electronically on
any 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 § 1473.11;
(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 the guidance
documents;
(f) Receive and address complaints
from the public that the Service is not
following the requirements of the Office
of Management and Budget’s (OMB)
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Good Guidance Bulletin, or that the
Service 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 on the agency’s guidance
portal a link to this subpart.
§ 1473.6 Waiver of publication of guidance
documents.
(a) Section 1473.5(b) and (e) does not
apply to guidance documents for which
a waiver has been applied from the
OMB Director pursuant to Subsection
3(c) of E.O. 13891.
(b) Requests for waivers must be
written and signed by a senior policy
official at the agency.
§ 1473.7
Good faith cost estimates.
Even though not legally binding, some
agency guidance may result in a
substantial economic impact. For
example, the issuance of agency
guidance may induce private parties to
alter their conduct to conform to
recommended standards or practices,
thereby incurring costs beyond the costs
of complying with existing statutes and
regulations. While it may be difficult to
predict with precision the economic
impact of voluntary guidance, the
Federal Mediation and Conciliation
Service (FMCS) shall, 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. When FMCS is assessing
or explaining whether it believes a
guidance document is significant, it
shall, at a minimum, provide the same
level of analysis that is required for a
major determination under the
Congressional Review Act.1 When
FMCS, in consultation with OMB’s
Office of Information and Regulatory
Affairs (OIRA), determines that a
guidance document will be
economically significant, FMCS will
conduct and publish a Regulatory
Impact Analysis of the sort that would
accompany an economically significant
rulemaking, to the extent reasonably
possible.
1 See OMB Memorandum M–19–14, Guidance on
Compliance with the Congressional Review Act
(April 11, 2019).
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§ 1473.8 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
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
§ 1473.2 or any other category of
guidance documents exempted in
writing by the Office of General Counsel
in consultation with OIRA.
§ 1473.9 Procedure for guidance
documents identified as ‘‘significant’’.
(a) FMCS will make an initial,
preliminary determination about a
guidance document’s significance.
Thereafter, FMCS must consult with
OIRA to determine 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.
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§ 1473.10 Notice-and-comment
procedures.
(a) Except as provided in paragraph
(b) of this section, all proposed Federal
Mediation and Conciliation Service
guidance documents determined to be a
‘‘significant guidance document’’ within
the meaning of § 1473.8 shall be subject
to the following informal notice-andcomment procedures. The Office of
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General Counsel shall publish a notice
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 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 document or
categories of significant guidance
documents for which the Office of
General Counsel finds, in consultation
with OIRA, the proposing department,
and the Director, 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
guidance issued).
(c) Where appropriate, the Office of
General Counsel or the proposing
department may recommend to the
Director that a particular guidance
document that is otherwise of
importance to the Service’s interests
shall also be subject to the informal
notice-and-comment procedures
described in paragraph (a) of this
section.
§ 1473.11 Petitions to withdraw or modify
guidance.
(a) Any person may petition the Office
of General Counsel to withdraw or
modify a particular guidance document
as specified by § 1473.5(d).
(b) The Office of General Counsel
should respond to all requests in a
timely manner, but no later than 90 days
after receipt of the request.
§ 1473.12
Rescinded guidance.
(a) The Office of General Counsel, in
consultation with the Director and the
issuing department, shall determine
whether to rescind a guidance
document.
(b) Once rescinded, 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 party or employee of the
Federal Mediation and Conciliation
Service may cite, use, or rely on
rescinded guidance documents, except
to establish historical facts.
§ 1473.13
Exigent circumstances.
In emergency situations or when the
Federal Mediation and Conciliation
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21773
Service is required by statutory deadline
or court order to act more quickly than
normal review procedures allow, the
issuing department shall coordinate
with the Office of General Counsel to
notify OIRA as soon as possible and, to
the extent practicable, shall comply
with the requirements of this subpart at
the earliest opportunity. Wherever
practicable, the Office of General
Counsel should schedule its
proceedings to permit sufficient time to
comply with the procedures set forth in
this subpart.
§ 1473.14 Reports to Congress and the
Government Accountability Office (GAO).
Unless otherwise determined in
writing by the Office of General
Counsel, it is the policy of the Service
that upon issuing a guidance document
determined to be ‘‘significant’’ within
the meaning of § 1473.8, the Director
will submit a report to Congress and
GAO in accordance with the procedures
described in 5 U.S.C. 801 (the
‘‘Congressional Review Act’’).
§ 1473.15
rights.
No judicial review or enforceable
This subpart is intended to improve
the internal management of the Federal
Mediation and Conciliation Service. As
such, it is for the use of Federal
Mediation and Conciliation Service
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.
Subpart B—[Reserved]
[FR Doc. 2020–07523 Filed 4–17–20; 8:45 am]
BILLING CODE 6732–01–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 110
[Docket Number USCG–2016–0989]
RIN 1625–AA01
Anchorage Regulations;
Passagassawakeag River, Belfast, ME;
Corrections
Coast Guard, DHS.
Correcting amendments.
AGENCY:
ACTION:
On July 8, 2019, the Coast
Guard published a final rule that
established two special anchorage areas
in the Passagassawakeag River in the
SUMMARY:
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]]>Agencies
[Federal Register Volume 85, Number 76 (Monday, April 20, 2020)]
[Rules and Regulations]
[Pages 21770-21773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07523]
=======================================================================
-----------------------------------------------------------------------
FEDERAL MEDIATION AND CONCILIATION SERVICE
29 CFR Part 1473
RIN 3076-AA15
Administrative Guidance
AGENCY: Federal Mediation and Conciliation Service.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule sets forth the Service's procedures governing
the issuance of guidance documents as required by the Executive order
titled ``Promoting the Rule of Law Through Improved Agency Guidance
Documents''.
DATES: Effective on May 20, 2020.
FOR FURTHER INFORMATION CONTACT: Sarah Cudahy, Office of the General
Counsel, 202-606-8090, [email protected].
SUPPLEMENTARY INFORMATION: This final rule, which adds to the Code of
Federal Regulations at 49 part 1473, is adopted pursuant to Executive
Order 13891, titled: ``Promoting the Rule of Law Through Improved
Agency Guidance Documents'' (October 9, 2019). In that Executive order,
Federal agencies are required to finalize regulations, or amend
existing regulations as necessary, to set forth processes and
procedures for issuing guidance documents.
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). As
this final rule merely codifies procedures applicable to the Service's
administrative procedures into the Code of Federal Regulations, notice
and comment are not necessary.
Rulemaking Analyses and Notices
A. Executive Order 12866
The Office of Management and Budget has determined that this
rulemaking is not a significant regulatory action under Executive Order
12866. The Service does not anticipate that this rulemaking will have
an economic impact on regulated entities. This is a rule of agency
procedure and practice. The
[[Page 21771]]
final rule describes the Service's procedures for processing of
guidance documents. The Service has adopted these internal procedures
as required by Executive Order 13891, and has not incurred any
additional resource costs in doing so. The adoption of these practices
has been accomplished through the use of existing agency resources, and
it is anticipated that the public will benefit from the resulting
increase in efficiency in delivery of government services.
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 Executive
Order 13132 (August 4, 1999), and the Service 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 Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that FMCS consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. The Service 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.) and has determined that it does not apply. The
purpose of this rulemaking is to formalize the Service's administrative
procedures for guidance documents. The agency does not anticipate any
environmental impacts, and there are no extraordinary circumstances
present in connection with this rulemaking.
Regulation Identifier Number
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
the spring and fall of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 29 CFR Part 1473
Administrative practice and procedure, Guidance documents.
Issued in Washington, DC on April 6, 2020.
Gregory Goldstein,
Acting Director.
0
In consideration of the foregoing, the Federal Mediation and
Conciliation Service adds 29 CFR part 1473 to read as follows:
PART 1473--ADMINISTRATIVE GUIDANCE
Subpart A--Guidance Documents
Sec.
1473.1 Purpose and scope.
1473.2 Definition of guidance document.
1473.3 Review and clearance by the Office of the General Counsel.
1473.4 Requirements for clearance.
1473.5 Public access to guidance documents.
1473.6 Waiver of publication of guidance documents.
1473.7 Good faith cost estimates.
1473.8 Definition of significant guidance document.
1473.9 Procedure for guidance documents identified as
``significant''.
1473.10 Notice-and-comment procedures.
1473.11 Petitions to withdraw or modify guidance.
1473.12 Rescinded guidance.
1473.13 Exigent circumstances.
1473.14 Reports to Congress and the Government Accountability Office
(GAO).
1473.15 No judicial review or enforceable rights.
Subpart B--[Reserved]
Authority: 29 U.S.C. 172 and 29 U.S.C. 173, et seq.
Subpart A--Guidance Documents
Sec. 1473.1 Purpose and scope.
(a) This subpart prescribes general procedures that apply to
guidance documents of the Federal Mediation and Conciliation Service.
(b) This subpart governs all Federal Mediation and Conciliation
Service employees and contractors involved with all phases of issuing
Service guidance documents.
(c) This subpart applies to all guidance documents by the Service
in effect on or after February 28, 2020.
Sec. 1473.2 Definition of guidance document.
(a) For purposes of this subpart, 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 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.
(b) This subpart does not apply to:
(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
[[Page 21772]]
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,
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
Service employees or contractors or to other Federal agencies that are
not intended to have substantial future effect on the behavior of
regulated parties.
Sec. 1473.3 Review and clearance by the Office of the General
Counsel.
All Federal Mediation and Conciliation Service guidance documents,
as defined in Sec. 1473.2, require review and clearance in accordance
with this subpart. All guidance proposed to be issued by the Service
must be reviewed and cleared by the Office of General Counsel.
Sec. 1473.4 Requirements for clearance.
The Service's review and clearance of guidance shall ensure that
each guidance document proposed to be issued by the Federal Mediation
and Conciliation Service 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) A concise name for the guidance document;
(3) The issuing department;
(4) A unique identifier, including, at a minimum, the date of
issuance, title of the document, and a number assigned by the Office of
General Counsel (or, in the case of a significant guidance document,
the Z-RIN (regulation identifier number));
(5) The general topic addressed by the guidance document;
(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 Service staff and will not foreclose the
Service'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 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 an
agency's guidance document is binding because guidance is authorized by
law or because the guidance is incorporated into a contract, the agency
should modify this disclaimer to reflect either of those facts.
Sec. 1473.5 Public access to guidance documents.
The Office of General Counsel shall:
(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. 1473.4(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 the Service's guidance portal a means
for the public to comment electronically on any 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. 1473.11;
(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
the guidance documents;
(f) Receive and address complaints from the public that the Service
is not following the requirements of the Office of Management and
Budget's (OMB) Good Guidance Bulletin, or that the Service 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 on the agency's guidance portal a link to this subpart.
Sec. 1473.6 Waiver of publication of guidance documents.
(a) Section 1473.5(b) and (e) does not apply to guidance documents
for which a waiver has been applied from the OMB Director pursuant to
Subsection 3(c) of E.O. 13891.
(b) Requests for waivers must be written and signed by a senior
policy official at the agency.
Sec. 1473.7 Good faith cost estimates.
Even though not legally binding, some agency guidance may result in
a substantial economic impact. For example, the issuance of agency
guidance may induce private parties to alter their conduct to conform
to recommended standards or practices, thereby incurring costs beyond
the costs of complying with existing statutes and regulations. While it
may be difficult to predict with precision the economic impact of
voluntary guidance, the Federal Mediation and Conciliation Service
(FMCS) shall, 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. When FMCS is
assessing or explaining whether it believes a guidance document is
significant, it shall, at a minimum, provide the same level of analysis
that is required for a major determination under the Congressional
Review Act.\1\ When FMCS, in consultation with OMB's Office of
Information and Regulatory Affairs (OIRA), determines that a guidance
document will be economically significant, FMCS will conduct and
publish a Regulatory Impact Analysis of the sort that would accompany
an economically significant rulemaking, to the extent reasonably
possible.
---------------------------------------------------------------------------
\1\ See OMB Memorandum M-19-14, Guidance on Compliance with the
Congressional Review Act (April 11, 2019).
---------------------------------------------------------------------------
[[Page 21773]]
Sec. 1473.8 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 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. 1473.2 or any other category
of guidance documents exempted in writing by the Office of General
Counsel in consultation with OIRA.
Sec. 1473.9 Procedure for guidance documents identified as
``significant''.
(a) FMCS will make an initial, preliminary determination about a
guidance document's significance. Thereafter, FMCS must consult with
OIRA to determine 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.
Sec. 1473.10 Notice-and-comment procedures.
(a) Except as provided in paragraph (b) of this section, all
proposed Federal Mediation and Conciliation Service guidance documents
determined to be a ``significant guidance document'' within the meaning
of Sec. 1473.8 shall be subject to the following informal notice-and-
comment procedures. The Office of General Counsel shall publish a
notice 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 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 document or categories of significant
guidance documents for which the Office of General Counsel finds, in
consultation with OIRA, the proposing department, and the Director,
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
guidance issued).
(c) Where appropriate, the Office of General Counsel or the
proposing department may recommend to the Director that a particular
guidance document that is otherwise of importance to the Service's
interests shall also be subject to the informal notice-and-comment
procedures described in paragraph (a) of this section.
Sec. 1473.11 Petitions to withdraw or modify guidance.
(a) Any person may petition the Office of General Counsel to
withdraw or modify a particular guidance document as specified by Sec.
1473.5(d).
(b) The Office of General Counsel should respond to all requests in
a timely manner, but no later than 90 days after receipt of the
request.
Sec. 1473.12 Rescinded guidance.
(a) The Office of General Counsel, in consultation with the
Director and the issuing department, shall determine whether to rescind
a guidance document.
(b) Once rescinded, 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 party or employee of the Federal Mediation and Conciliation
Service may cite, use, or rely on rescinded guidance documents, except
to establish historical facts.
Sec. 1473.13 Exigent circumstances.
In emergency situations or when the Federal Mediation and
Conciliation Service is required by statutory deadline or court order
to act more quickly than normal review procedures allow, the issuing
department shall coordinate with the Office of General Counsel to
notify OIRA as soon as possible and, to the extent practicable, shall
comply with the requirements of this subpart at the earliest
opportunity. Wherever practicable, the Office of General Counsel should
schedule its proceedings to permit sufficient time to comply with the
procedures set forth in this subpart.
Sec. 1473.14 Reports to Congress and the Government Accountability
Office (GAO).
Unless otherwise determined in writing by the Office of General
Counsel, it is the policy of the Service that upon issuing a guidance
document determined to be ``significant'' within the meaning of Sec.
1473.8, the Director will submit a report to Congress and GAO in
accordance with the procedures described in 5 U.S.C. 801 (the
``Congressional Review Act'').
Sec. 1473.15 No judicial review or enforceable rights.
This subpart is intended to improve the internal management of the
Federal Mediation and Conciliation Service. As such, it is for the use
of Federal Mediation and Conciliation Service 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.
Subpart B--[Reserved]
[FR Doc. 2020-07523 Filed 4-17-20; 8:45 am]
BILLING CODE 6732-01-P
