Guidance Development Procedures, 29863-29867 [2020-09152]

Agencies

• Court Services and Offender Supervision Agency for the District of Columbia

[Federal Register Volume 85, Number 97 (Tuesday, May 19, 2020)]
[Rules and Regulations]
[Pages 29863-29867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09152]


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COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR THE DISTRICT OF 
COLUMBIA

28 CFR Part 813

RIN 3225-AA18


Guidance Development Procedures

AGENCY: Court Services and Offender Supervision Agency.

ACTION: Final rule.

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SUMMARY: This final rule responds to an Executive order titled 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents'' (October 9, 2019). The central principle of the E.O. is 
that agency guidance documents should clarify existing obligations. 
Guidance documents are not permitted to impose new, binding 
requirements on the public. Pursuant to the E.O., Federal agencies are 
required to finalize regulations, or amend existing regulations as 
necessary, to set forth processes and procedures for issuing guidance 
documents. This final rule codifies internal procedural requirements 
governing the review and clearance of guidance documents for Court 
Services and Offender Supervision Agency (CSOSA) and Pretrial Services 
Agency (PSA).

DATES: Effective on May 19, 2020.

FOR FURTHER INFORMATION CONTACT: For CSOSA: Hyun-Ju E. Park, 
Supervisory Policy Analyst, Court Services and Offender Supervision 
Agency for the District of Columbia, 633 Indiana Avenue NW, Room 1232B, 
Washington, DC 20004; Tel: 202-220-5635; Email: [email protected]. 
For PSA: Victor Davis, Chief of Staff, Pretrial Services Agency for the 
District of Columbia, 633 Indiana Avenue NW, Washington, DC 20004; Tel: 
202-220-5654; Email: [email protected].

SUPPLEMENTARY INFORMATION: The Court Services and Offender Supervision 
Agency (CSOSA) was established within

[[Page 29864]]

the Executive Branch of the Federal Government by the National Capital 
Revitalization and Self-Government Improvement Act of 1997, Public Law 
105-33, 111 Stat. 251, 712 (D.C. Code sections 24-1232, 24-1233). On 
August 4, 2000, CSOSA was certified by the Attorney General as an 
independent Federal agency.
    CSOSA provides supervisory and treatment services to individuals on 
probation, parole, and supervised release for District of Columbia Code 
violations. CSOSA also provides supervisory and treatment services to 
offenders from other jurisdictions in accordance with the Interstate 
Parole and Probation Compact. The Pretrial Services Agency (PSA) is an 
independent agency within CSOSA. PSA provides a wide range of 
supervision programs to support the DC Superior Court and the U.S. 
District Court.

I. Background

    This final rule responds to Executive Order 13891, Promoting the 
Rule of Law Through Improved Agency Guidance Documents (October 9, 
2019). This final rule codifies the existing procedures regarding the 
review and clearance of guidance documents for CSOSA and PSA 
(collectively ``the Agencies''). The procedures contained in this final 
rule apply to all guidance documents, which the Agencies define as: Any 
statement of agency policy or interpretation concerning a statue, 
regulation, or technical matter within the jurisdiction of the agency 
that is intended to have general applicability and future effect, but 
which is not intended to have the force or effect of law in its own 
right and is not otherwise required by statute to satisfy the 
rulemaking procedures of the Administrative Procedure Act.
    These procedures ensure that all guidance documents receive review 
by the Agencies' counsel, when appropriate, and Directors. Before 
guidance documents are issued, they must be reviewed to ensure they are 
written in plain language and do not impose any substantive legal 
requirements beyond existing requirements of statute or regulation. If 
a guidance document purports to describe, approve, or recommend 
specific conduct that extends beyond requirements of existing law, then 
it must include a clear and prominent statement effectively stating 
that the content of the guidance document does not have the force and 
effect of law and is not meant to bind the public in any way. The final 
rule provides a process for interested parties to petition CSOSA and 
PSA for the withdrawal or modification of guidance documents. Finally, 
this rule describes 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.

II. Procedural Issues and Regulatory Review

    Administrative Procedure Act (APA): Under the APA, 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 merely incorporates existing 
internal procedures applicable to the Agency's administrative 
procedures into the Code of Federal Regulations (CFR), notice and 
comment are not necessary.
    Executive Order 12866 and 13563 (Regulatory Planning and Review): 
The Agencies do not anticipate that this final rule will have 
significant economic impact, raise novel issues, and/or have any other 
significant impacts because it simply incorporates existing internal 
procedures into the CFR. Thus, this final rule is not a significant 
regulatory action under 3(f) of Executive Order 12866 and does not 
require an assessment of potential costs and benefits under 6(a)(3) of 
the order.
    Regulatory Flexibility Act (RFA): The Regulatory Flexibility Act 
does not apply. This final rule will not directly regulate small 
entities. The Agencies, therefore, do not need to perform a regulatory 
flexibility analysis of small entity impacts.
    Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA): The Agencies have determined that this final rule does not 
impose a significant impact on a substantial number of small entities 
under the RFA; therefore, The Agencies are not required to produce any 
Compliance Guides for Small Entities as mandated by the SBREFA.
    Congressional Review Act: The Agencies have determined that this 
final rule is not a major rule under the Congressional Review Act, as 
it is unlikely to result in an annual effect on the economy of $100 
million or more; is unlikely to result in a major increase in costs or 
prices for consumers, individual industries, Federal, state, or local 
government agencies or geographic regions; and is unlikely to have a 
significant adverse effect on competition, employment, investment, 
productivity, or innovation, or on the ability of U.S.-based 
enterprises to compete in domestic and export markets.
    Unfunded Mandates Reform Act (UMRA): This revision does not impose 
any Federal mandates on state, local, or tribal governments, or on the 
private sector within the meaning of the UMRA.
    National Environmental Policy Act (NEPA): This final rule will have 
no physical impact upon the environment and, therefore, will not 
require any further review under NEPA.
    Paperwork Reduction Act (PRA): The Paperwork Reduction Act does not 
apply because the rule does not impose information collection 
requirements that require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501, et seq.
    Executive Order 13132 (Federalism): This final rule does not have 
new federalism implications under Executive Order 13132.
    Executive Order 12988 (Civil Justice Reform): This final rule meets 
applicable standards of 3(a) and 3(b)(2) of Executive Order 12988 and 
the Agencies have determined that the final rule will not unduly burden 
the Federal court system.
    Plain Language: E.O. 12866 and E.O. 13563 require regulations to be 
written in a manner that is easy to understand. The Agencies have 
concluded that it has drafted this final rule in plain language.
    Assessment of Federal Regulations and Policies on Families: Section 
654 of the Treasury and General Government Appropriations Act, enacted 
as part of the Omnibus Consolidated and Emergency Supplemental 
Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681) requires 
the assessment of the impact of this rule on family well-being. The 
Agencies have assessed this final rule and determined that the rule 
will not have a negative effect on families.
    Executive Order 13175 (Indian Tribal Governments): The Agencies 
reviewed this final rule under the terms of E.O. 13175 and has 
determined that the rule will not have tribal implications.
    Executive Order 12630 (Government Actions and Interference With 
Constitutionally Protected Property Rights): The Agencies have 
determined that this final rule is not subject to E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, because it does not involve implementation of a policy 
with takings implications.
    Executive Order 13211 (Energy Supply): This final rule was drafted 
and reviewed in accordance with E.O. 13211, Energy Supply. The Agencies 
have determined that this final rule will not have a significant 
adverse effect on the supply, distribution, or use of energy and is not 
subject to E.O. 13211.

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List of Subjects in 28 CFR Part 813

    Administrative practice and procedure, Guidance documents.

Authority and Issuance

0
In consideration of the foregoing, CSOSA adds 28 CFR part 813 to read 
as follows:

PART 813--GUIDANCE DEVELOPMENT PROCEDURES

Sec.
813.1 Overview of guidance development process.
813.2 Guidance management process for CSOSA.
813.3 Requirements for clearance of CSOSA guidance documents.
813.4 Guidance development process for Pretrial Services Agency 
(PSA).
813.5 Required elements of guidance documents.
813.6 Public access to and notification of effective guidance 
documents.
813.7 Definition of ``significant guidance documents''.
813.8 Significant guidance documents.
813.9 Petitions for withdrawal or modification of guidance.

    Authority:  5 U.S.C. 301; E.O. 13891, 84 FR 55235.


Sec.  813.1  Overview of guidance development process.

    (a) This part governs all Court Services and Offender Supervision 
Agency for the District of Columbia (CSOSA) and Pretrial Services 
Agency (PSA) employees and contractors involved with all phases of 
implementing CSOSA guidance documents.
    (b) The procedures set forth in this part apply to all guidance 
documents, issued by all components of CSOSA and PSA.
    (c) For purposes of this part, ``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 
statute or regulation. Guidance documents do not have the force and 
effect of law and are not meant to bind the public in any way. A 
guidance document is intended only to provide clarity to the public 
regarding existing requirements under the law or agency policies.
    (d) CSOSA may not cite, use, or rely on guidance documents that are 
rescinded, except to establish historical facts.
    (e) Guidance documents not posted on the Agencies' web portal are 
considered rescinded, and not in effect.
    (f) This part does not apply to:
    (1) Rules promulgated pursuant to notice and comment under section 
553 of title 5, United States Code, or similar statutory provisions;
    (2) Rules exempt from rulemaking requirements under 5 U.S.C. 
553(a);
    (3) Rules of agency organization, procedure, or practice;
    (4) Decisions of agency adjudications under 5 U.S.C. 554 or similar 
statutory provisions;
    (5) Internal executive branch legal advice or legal advisory 
opinions addressed to executive branch officials;
    (6) 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;
    (7) Legal briefs, other court filings, or positions taken in 
litigation or enforcement actions;
    (8) 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;
    (9) Guidance pertaining to military or foreign affairs functions;
    (10) Grant solicitations and awards;
    (11) Contract solicitations and awards; or
    (12) Purely internal agency policies or guidance directed solely to 
the Agencies' employees or contractors or to other Federal agencies 
that are not intended to have substantial future effect on the behavior 
of regulated parties.


Sec.  813.2  Guidance management process for CSOSA.

    All CSOSA guidance documents, as defined in Sec.  813.1, require 
review and clearance in accordance with this section. CSOSA's guidance 
documents are created through the Office of Policy Analysis (OPA), and 
come in two primary forms, policy statements and procedures (also known 
as operating instructions). This section sets forth the process for 
review and clearance for each.
    (a) Policy statements are:
    (1) Prepared by CSOSA components and issued under the Director's 
signature;
    (2) Remain in effect and active until rescinded, amended, or 
superseded;
    (3) Are reviewed by all CSOSA Associate Directors or their 
designees;
    (4) Are prepared using a standard format provided by the Office of 
Policy Analysis (OPA);
    (5) Are developed and maintained using a four-stage process that 
includes planning, development, review, and maintenance, each stage 
taking place within specified timeframes; and
    (6) Are reviewed and re-certified biennially.
    (b) Procedures are:
    (1) Coordinated through OPA;
    (2) Evaluated to prevent the issuance of duplicative or conflicting 
procedures;
    (3) Tied to a policy statement;
    (4) Developed in a collaborative process that addresses all 
relevant stakeholders' input;
    (5) Organized so that critical information is readily accessible 
and staff know how and where to find any related information; and
    (6) Maintained in an archive system to ensure future decision-
makers have adequate information regarding the basis for previous 
procedure determinations.
    (c) The CSOSA Director, or his/her designee, may waive or truncate 
the internal policy development process where good cause exists, for 
example where Congress or the executive branch mandates changes.
    (d) CSOSA will notify OMB's Office of Information and Regulatory 
Affairs (OIRA) regularly of upcoming guidance documents. Notification 
will include a list of planned guidance documents, including summaries 
of each guidance document and the agency's recommended designation of 
``not significant'' or ``significant'' as defined in Sec.  813.7.
    (e) CSOSA will seek significance determinations for guidance 
documents from OIRA. Where CSOSA preliminarily finds the guidance 
document to be significant, prior to publishing, CSOSA will provide the 
document to OIRA for review to determine if it meets the definition of 
``significant'' under E.O. 13891.


Sec.  813.3   Requirements for clearance of CSOSA guidance documents.

    CSOSA's review and clearance of guidance documents, including 
policy and procedures, occurs according to the stages set forth in 
paragraphs (a) and (b) of this section.
    (a) Policy management--(1) Stage 1--planning. The CSOSA component

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coordinates with OPA to initiate the process.
    (2) Stage 2--development. The CSOSA component provides the 
operational details and OPA will conduct the analysis and coordination 
and then prepare the initial document.
    (3) Stage 3--review. The multi-layered review involves the 
Associate Directors, other CSOSA components and Employee Labor 
Relations (ELR), if appropriate. Upon completion, the Director reviews 
and signs the document for implementation.
    (4) Stage 4--maintenance. The Office of Information Technology 
(OIT) posts the signed policies to CSOSA's intranet and/or public-
facing web portal, and OPA maintains the central repository of all 
signed policies and associated working files and initiates the biennial 
review.
    (b) Procedure (also known as operating instruction--OI) 
management--(1) Stage 1--planning. The CSOSA component submits a 
request to OPA for a new OI or an update to an existing OI;
    (2) Stage 2--development. The CSOSA component prepares the content 
for the initial draft, which OPA reviews and affects any necessary 
coordination across CSOSA.
    (3) Stage 3--review. The initial draft OI is submitted 
simultaneously to CSOSA Associate Directors, the Supervisory Policy 
Analyst, and Office of the Director for review. If applicable, notice 
is provided to union representatives; and upon clearance and approvals 
it is submitted to the Director for review, signature, and 
implementation.
    (4) Stage 4--maintenance. The Office of Information Technology 
(OIT) posts the signed OI to CSOSA's intranet and/or public-facing web 
portal; OPA maintains the central repository of all signed OI and 
associated working files and initiates the biennial review.


Sec.  813.4  Guidance development process for Pretrial Services Agency 
(PSA).

    Pretrial Services Agency (PSA), an independent agency within CSOSA, 
has its own guidance or policy development process, coordinated through 
PSA's Office of Planning, Policy, and Analysis (OPPA). PSA's guidance 
development process occurs as detailed in paragraphs (a) through (d) of 
this section:
    (a) PSA's guidance documents are:
    (1) Prepared by the responsible PSA Office and issued with the PSA 
Director's signature;
    (2) Remain in effect and active until rescinded, amended, or 
superseded;
    (3) Reviewed by all PSA Deputy Assistant Directors and/or 
designees;
    (4) Prepared using a standard format provided by OPPA; and
    (5) Developed using a process that includes planning, development, 
review, and maintenance in accordance with specified timeframes.
    (b) PSA process and procedure documents are:
    (1) Coordinated with assistance from OPPA, as appropriate, to avoid 
duplicative or conflicting procedures;
    (2) Tied to a policy, when appropriate;
    (3) Developed in collaboration with all stakeholders including the 
bargaining unit;
    (4) Organized in a manner that is readily accessible by those who 
need it; and
    (5) Maintained according to records management standards.
    (c) The PSA Director, or his/her designee, may waive or truncate 
the internal development process where good cause exists, for example 
where Congress or the executive branch mandates changes within a 
specified period or allow changes that need to be implemented 
immediately.
    (d) The process set forth in Sec.  813.2(d) and (e) also applies to 
PSA guidance documents.


Sec.  813.5  Required elements of guidance documents.

    CSOSA and PSA will ensure each guidance document:
    (a) Complies with all relevant statutes and regulations;
    (b) Identifies or includes:
    (1) The term ``guidance'' or its functional equivalent;
    (2) The component or division issuing the document;
    (3) The activities to which or the person to whom the document 
applies;
    (4) The date of issuance;
    (5) If it is a revision, the name/number of the guidance document 
it replaces;
    (6) The title of the guidance and the document identification 
number;
    (7) Citation(s) to the statutory provision or regulation to which 
it applies or interprets;
    (8) 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.''; and
    (9) A short summary of the subject matter covered in the guidance 
document, at the top of the document.


Sec.  813.6   Public access to and notification of effective guidance 
documents.

    CSOSA and PSA will:
    (a) Ensure that all effective guidance documents are:
    (1) Identified by a unique identifier which includes, at a minimum, 
the document's title and date of issuance or revision;
    (2) Located on its web portal in a single, searchable, indexed 
database; and
    (3) Available to the public.
    (b) Note on the agency web portal 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 its web 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.  813.9.


Sec.  813.7  Definition of ``significant guidance document''.

    For purposes of this part, ``significant guidance document'' means 
a guidance document that will be disseminated to regulated entities or 
the general public and that may reasonably be anticipated:
    (a) 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;
    (b) To create serious inconsistency or otherwise interfere with an 
action taken or planned by another Federal agency;
    (c) To alter materially the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (d) 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.


Sec.  813.8  Significant guidance documents.

    (a) 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 or conform 
to recommended standards of practices, thereby incurring costs beyond 
the costs of complying with existing statutes and regulations.
    (b) If there is a reasonable possibility the guidance may be 
considered ``significant'' within the meaning of Sec.  813.7 or if the 
Agencies are uncertain whether the guidance may qualify as such, the 
Agencies must receive OMB's

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Office of Information and Regulatory Affairs (OIRA) approval before 
issuance, unless the Agencies and OIRA agree that exigency, safety, 
health, or other compelling cause warrants an exemption from some or 
all requirements.
    (c) When an agency is assessing or explaining whether it believes a 
guidance document is significant, it should, at a minimum, provide the 
same level of analysis that would be required for a major determination 
under the Congressional Review Act.\1\
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    \1\ See OMB Memorandum M-19-14, Guidance on Compliance with the 
Congressional Review Act (April 11, 2019).
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    (d) The following will apply to significant guidance documents:
    (1) A period of public notice and comment of at least 30 days 
before the issuance of a final guidance document, and a public response 
from the Agencies to major concerns raised in comments. If the 
Agencies, for good cause, find that the notice and public comment are 
impracticable, unnecessary, or contrary to the public interest, then no 
period of public comment will be provided, with notification and 
consultation with OIRA;
    (2) Approval by the respective Agency Director;
    (3) Review by OIRA under Executive Order 12866 before issuance;
    (4) Compliance with the applicable requirements for regulations or 
rules, including significant regulatory actions, set forth in E.O. 
12866 (Regulatory Planning and Review), E.O. 13563 (Improving 
Regulation and Regulatory Review), E.O. 13609 (Promoting International 
Regulatory Cooperation), E.O. 13771 (Reducing Regulation and 
Controlling Regulatory Costs), and E.O. 13777 (Enforcing the Regulatory 
Reform Agenda).


Sec.  813.9  Petitions for withdrawal or modification of guidance.

    Any person may petition CSOSA or PSA to withdraw or modify a 
particular guidance document. A person may make a request by accessing 
the respective agency guidance web portal or by writing a letter to the 
respective Agencies. The Agencies' portals allow an individual to 
provide his or her contact information and guidance-related requests. 
The Agencies will respond in a timely manner, but no later than 90 days 
after receipt of the request.

    Dated: April 24, 2020.
Richard S. Tischner,
Director,Court Services and Offender Supervision Agency for the 
District of Columbia.
[FR Doc. 2020-09152 Filed 5-18-20; 8:45 am]
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