Guidance Procedures, 59187-59190 [2020-18411]
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Federal Register / Vol. 85, No. 183 / Monday, September 21, 2020 / Rules and Regulations
§ 39.13
[Amended]
2. The FAA amends § 39.13 by adding
the following new airworthiness
directive (AD):
■
2020–18–12 The Boeing Company:
Amendment 39–21233; Docket No.
FAA–2016–6140; Product Identifier
2015–NM–059–AD.
(a) Effective Date
This AD is effective October 26, 2020.
(b) Affected ADs
None.
(c) Applicability
This AD applies to The Boeing Company
Model 777–200, 777–200LR, and 777–300
series airplanes, certificated in any category,
line numbers 1 through 561 inclusive,
excluding airplanes identified in paragraphs
(c)(1) through (3) of this AD.
(1) Airplanes on which the center tank
consists only of the inboard structural box of
the left and right wings (i.e., the wing center
structural box is a dry bay and is not part of
the fuel tank).
(2) Airplanes equipped with a flammability
reduction means (FRM) approved by the FAA
as compliant with the fuel tank flammability
reduction (FTFR) requirements of 14 CFR
25.981(b) or 26.33(c)(1).
(3) Airplanes equipped with an ignition
mitigation means (IMM) approved by the
FAA as compliant with the FTFR
requirements of 14 CFR 25.981(c) or
26.33(c)(2).
(d) Subject
Air Transport Association (ATA) of
America Code 28, Fuel.
(e) Unsafe Condition
This AD was prompted by the FAA’s
analysis of the Model 777 fuel system
reviews conducted by the manufacturer. The
FAA is issuing this AD to prevent ignition
sources inside the center fuel tank, which, in
combination with flammable fuel vapors,
could result in a fuel tank explosion and
consequent loss of the airplane.
(f) Compliance
Comply with this AD within the
compliance times specified, unless already
done.
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(g) Modification
Within 72 months after the effective date
of this AD, modify the fuel quantity
indicating system (FQIS) to prevent
development of an ignition source inside the
center fuel tank due to electrical fault
conditions, using a method approved in
accordance with the procedures specified in
paragraph (i) of this AD.
(h) Alternative Actions for Cargo Airplanes
For airplanes used exclusively for cargo
operations: As an alternative to the
requirements of paragraph (g) of this AD, do
the actions specified in paragraphs (h)(1) and
(2) of this AD, using methods approved in
accordance with the procedures specified in
paragraph (i) of this AD. To exercise this
alternative, operators must perform the first
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inspection required under paragraph (h)(1) of
this AD within 6 months after the effective
date of this AD. To exercise this alternative
for airplanes returned to service after
conversion of the airplane from a passenger
configuration to an all-cargo configuration
more than 6 months after the effective date
of this AD, operators must perform the first
inspection required under paragraph (h)(1) of
this AD prior to further flight after the
conversion.
(1) Within 6 months after the effective date
of this AD, record the existing fault codes
stored in the FQIS processor and before
further flight thereafter do a BITE check
(check of built-in test equipment) of the
FQIS. If any nondispatchable fault code is
recorded prior to the BITE check or as a
result of the BITE check, before further flight,
do all applicable repairs and repeat the BITE
check until a successful test is performed
with no nondispatchable faults found, using
a method approved in accordance with the
procedures specified in paragraph (i) of this
AD. Repeat these actions thereafter at
intervals not to exceed 750 flight hours.
Modification as specified in paragraph (h)(2)
of this AD does not terminate the repetitive
BITE check requirement of this paragraph.
(2) Within 72 months after the effective
date of this AD, modify the airplane by
separating FQIS wiring that runs between the
FQIS processor and the center tank wing spar
penetrations, including any circuits that
might pass through a main fuel tank, from
other airplane wiring that is not intrinsically
safe, using methods approved in accordance
with the procedures specified in paragraph
(i) of this AD.
(i) Alternative Methods of Compliance
(AMOCs)
(1) The Manager, Seattle ACO Branch,
FAA, has the authority to approve AMOCs
for this AD, if requested using the procedures
found in 14 CFR 39.19. In accordance with
14 CFR 39.19, send your request to your
principal inspector or local Flight Standards
District Office, as appropriate. If sending
information directly to the manager of the
certification office, send it to the attention of
the person identified in paragraph (j) of this
AD. Information may be emailed to: 9-ANMSeattle-ACO-AMOC-Requests@faa.gov.
(2) Before using any approved AMOC,
notify your appropriate principal inspector,
or lacking a principal inspector, the manager
of the local flight standards district office/
certificate holding district office.
(3) An AMOC that provides an acceptable
level of safety may be used for any repair,
modification, or alteration required by this
AD if it is approved by The Boeing Company
Organization Designation Authorization
(ODA) that has been authorized by the
Manager, Seattle ACO Branch, to make those
findings. To be approved, the repair method,
modification deviation, or alteration
deviation must meet the certification basis of
the airplane, and the approval must
specifically refer to this AD.
(j) Related Information
For more information about this AD,
contact Jon Regimbal, Aerospace Engineer,
Propulsion Section, FAA, Seattle ACO
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59187
Branch, 2200 South 216th St., Des Moines,
WA 98198; phone and fax: 206–231–3557;
email: Jon.Regimbal@faa.gov.
(k) Material Incorporated by Reference
None.
Issued on August 26, 2020.
Lance T. Gant,
Director, Compliance & Airworthiness
Division, Aircraft Certification Service.
[FR Doc. 2020–19584 Filed 9–18–20; 8:45 am]
BILLING CODE 4910–13–P
ARCHITECTURAL AND
TRANSPORTATION BARRIERS
COMPLIANCE BOARD
36 CFR Part 1155
[Docket No. ATBCB–2020–0003]
RIN 3014–AA43
Guidance Procedures
Architectural and
Transportation Barriers Compliance
Board.
ACTION: Final rule.
AGENCY:
The Architectural and
Transportation Barriers Compliance
Board (hereafter, ‘‘Access Board,’’ or
‘‘Board’’) issues this final rule to
implement an Executive Order entitled
‘‘Promoting the Rule of Law Through
Improved Agency Guidance
Documents.’’ By this rule, the Access
Board establishes internal, procedural
requirements governing the issuance,
public availability, and modification or
withdrawal of Access Board guidance
documents.
DATES: This final rule is effective on
October 21, 2020.
FOR FURTHER INFORMATION CONTACT:
Christopher Kuczynski, Deputy General
Counsel, U.S. Access Board, (202) 272–
0042, kuczynski@access-board.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
In October 2019, the President signed
Executive Order 13891, ‘‘Promoting the
Rule of Law Through Improved Agency
Guidance Documents.’’ 84 FR 55235
(Oct. 15, 2019). Section 4 of this
Executive Order directs Federal
agencies to finalize new regulations (or
update existing regulations) that provide
procedures for, among other things,
issuance of non-binding guidance
documents, coordinated review of
‘‘significant’’ guidance documents by
the Office of Management and Budget
(OMB), and agency review of petitions
by members of the public for
modification or withdrawal of existing
agency guidance materials.
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In accordance with E.O. 13891, the
Access Board promulgates this new
rule, which establishes internal agency
procedures with regard to the issuance,
publication, and modification or
withdrawal of Access Board guidance
documents. All current guidance
documents already in effect are posted
on our website’s guidance portal,
www.access-board.gov/guidance. See
Notice of Guidance Documents, 85 FR
11949 (Feb. 28, 2020). Any guidance
document not posted on the Agency’s
guidance portal are considered to be
rescinded and neither the Agency nor a
party may cite, use, or rely on such a
guidance except to establish historical
facts.
II. Regulatory Process Matters
Administrative Procedure Act
The guidance procedures established
by this final rule implement E.O. 13891
and solely address internal matters
related to agency management and
practices. As such, this rule is exempt
from the notice-and-comment process
pursuant to the Administrative
Procedures Act. See 5 U.S.C. 553(a)(2),
553(b)(3)(A).
Executive Order 12866
This final rule establishes internal
rules of agency procedure only. OMB
has determined that the rule is not a
significant regulatory action within the
meaning of Executive Order 12866.
Executive Order 13771
This final rule is not subject to
Executive Order 13771 because it is a
non-significant regulatory action that
relates solely to ‘‘agency organization,
management, or personnel.’’ See
Executive Order 13771. 82 FR 9339
(Feb. 3, 2017); OMB, M–17–21,
‘‘Guidance Implementing Executive
Order 13771, Titled ‘Reducing
Regulation and Controlling Regulatory
Costs’’’ (April 5, 2017).
Congressional Review Act
This final rule is not a major rule
within the meaning of the Congressional
Review Act. See 5 U.S.C. 801 et seq.
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Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
requires Federal agencies to analyze
regulatory options that may assist in
minimizing any significant impact of a
rule on small businesses and small
governmental jurisdictions. See 5 U.S.C.
604, 605(b). Because this final rule
relates solely to agency internal
procedures and, moreover, is not subject
to notice-and-comment rulemaking, the
RFA is inapplicable.
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Federalism (Executive Order 13132)
The Access Board has analyzed this
final rule in accordance with the
principles and criteria set forth in
Executive Order 13132. The Board has
determined that this action will not
have a substantial direct effect on the
States, the relationship between the
Federal Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, and, therefore,
does not have federalism implications.
Paperwork Reduction Act
This final rule does not specify any
new collections of information or
recordkeeping requirements that require
OMB approval under the Paperwork
Reduction Act. See 44 U.S.C. 3501 et
seq.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (codified at 2 U.S.C. 1531 et
seq.) (‘‘UMRA’’) generally requires that
Federal agencies assess the effects of
their discretionary regulatory actions
that may result in the expenditure of
$100 million (adjusted for inflation) or
more in any one year by the private
sector, or by State, local, and tribal
governments in the aggregate. Because
this final rule is not subject to noticeand-comment rulemaking, UMRA’s
analytical requirements do not apply.
See 2 U.S.C. 1532(a).
List of Subjects in 36 CFR Part 1155
Administrative practice and
procedure.
For the reasons stated in the preamble,
the Access Board adds 36 CFR part 1155
to read as follows:
■
PART 1155—GUIDANCE
PROCEDURES
Sec.
1155.1 Purpose.
1155.2 Definitions.
1155.3 Legal review by Office of General
Counsel.
1155.4 Requirements applicable to all
guidance documents.
1155.5 Public availability of guidance
documents.
1155.6 Significance determinations.
1155.7 Additional requirements applicable
to significant guidance documents.
1155.8 Notice-and-comment procedures.
1155.9 Petitions for modification or
withdrawal.
1155.10 No private right of action.
Authority: 29 U.S.C. 792; E.O. 13891, 84
FR 55235, 3 CFR, 2019 Comp., p. 371; 36 CFR
1151.3.
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PART 1155—GUIDANCE
PROCEDURES
§ 1155.1
Purpose.
(a) General. This part implements
Section 4 of Executive Order 13891 by
establishing requirements and
procedures for issuance, publication,
and modification or withdrawal of
guidance documents of the United
States Access Board (‘‘Access Board’’ or
‘‘agency’’).
(b) Application. Unless otherwise
stated, the requirements and procedures
set forth in this part apply to all
guidance documents issued or revised
by the Access Board on or after October
21, 2020.
§ 1155.2
Definitions.
For the purpose of this part, the
following terms have the indicated
meaning:
(a) Guidance document. Subject to the
exceptions provided in paragraph (b) of
this section, a written statement of
general applicability that the Access
Board intends to:
(1)(i) Have future effect on the
behavior of regulated parties;
(ii) Set forth agency policy on a
statutory, regulatory, or technical issue;
or
(iii) Interpret a statute or regulation.
(2) Guidance documents are not
limited to formal, written documents,
and may be set forth in other
documentary formats, such as
electronic, digital, audio, or video
materials.
(b) Exceptions. The following types of
guidance documents are exempt from
compliance with the requirements and
procedures specified in this part:
(1) Rules promulgated pursuant to
notice and comment under 5 U.S.C. 553,
or similar statutory provisions;
(2) Rules exempt from rulemaking
requirements under 5 U.S.C. 553(a);
(3) Rules of internal organization,
procedure, or practice within the Access
Board, provided such rules do not alter
substantive obligations for parties
outside the Access Board;
(4) Access Board decisions in formal
adjudications conducted pursuant to 5
U.S.C. 554, or similar statutory
provisions;
(5) Internal guidance directed to
Access Board personnel or other Federal
agencies or officials that is not intended
to have substantial future effect on the
behavior of regulated parties;
(6) Internal executive branch legal
advice or opinions addressed to other
executive branch officials or Federal
agencies;
(7) Access Board statements of
specific applicability, including:
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advisory or legal opinions directed to
particular parties about circumstancespecific questions, and correspondence
with individuals or entities;
(8) Legal briefs, other court filings, or
written positions taken by the Access
Board or its legal counsel in
administrative, legal, or enforcement
proceedings;
(9) Access Board statements that do
not set forth agency policy on a
statutory, regulatory, or technical issue
or interpretation of a statute or
regulation, such as: speeches and
individual presentations, editorials,
media interviews, press materials, or
congressional testimony by Access
Board officials that does not set forth
new agency regulatory policy;
(10) Contract solicitations and awards;
and
(11) Access Board policies or
guidance directed solely to agency
employees, contractors, or other Federal
agencies that are not anticipated to have
substantial future effect on the behavior
of regulated parties outside of the
Federal Government.
(c) Significant guidance document. A
type of guidance document that may
reasonably be anticipated to:
(1) Lead to an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another Federal agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations or recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
of Executive Order 12866.
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§ 1155.3 Legal review by Office of General
Counsel.
The Office of General Counsel is
responsible for ensuring that Access
Board guidance documents comply with
applicable laws, regulations, and other
Federal authorities, including the
procedural requirements established in
this part. Agency guidance documents
must be reviewed and cleared before
issuance or publication by the General
Counsel or his or her designee, upon
written delegation.
§ 1155.4 Requirements applicable to all
guidance documents.
(a) General. Access Board guidance
must be issued, published, and
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modified or withdrawn in compliance
with this part, as well as other
applicable Federal statutes, regulations,
or executive branch authorities.
(b) Requirements. In addition to its
substantive or informational content,
Access Board guidance must:
(1) Comply with all relevant statutes
or regulations (including any statutory
deadlines for agency action, absent
exigent or unforeseen circumstances);
(2) Be written in plain and
understandable English;
(3) Use the term ‘‘guidance’’;
(4) Include each of the following
documentary elements, unless its nature
or format makes inclusion impracticable
(in which case, the document should
conform to such element to the
maximum extent feasible):
(i) Title;
(ii) Date;
(iii) Revision number (if applicable);
(iv) Unique document identification
number;
(v) Identity of issuing agency or
component;
(vi) Citation(s) of Federal laws,
regulations, or other authorities being
interpreted or applied;
(vii) Description of target audience;
(viii) Summary of subject matter near
the top of the document; and
(ix) A disclaimer, stating: ‘‘The
contents of this document do not have
the force and effect of law and are not
meant to bind the public in any way.
This document is intended only to
provide clarity to the public regarding
existing requirements under the law or
agency policies.’’
§ 1155.5 Public availability of guidance
documents.
(a) General. Subject to the exceptions
provided in § 1155.2(b), all current, inforce guidance documents, including
significant guidance documents, shall
be made publicly available on a single,
searchable web-based ‘‘guidance portal’’
on the Access Board website. Guidance
documents posted on this portal should,
to the maximum extent feasible, comply
with the identification requirements
specified in § 1155.4(b). The Access
Board shall only cite, use, or rely on
guidance documents that are listed on
its guidance portal except to establish
historical facts or similar archival
information.
(b) Portal requirements. The Access
Board guidance portal must include the
following elements or features:
(1) A statement that guidance
documents lack the force and effect of
law, except as authorized by law or as
incorporated into a contract;
(2) When proposed significant
guidance is open for public comment in
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59189
conformance with § 1155.8, a notice
informing members of the public how to
submit comments or link to the
appropriate electronic docket;
(3) The citation for, or link to, the
procedural regulations concerning
guidance documents set forth in this
part; and
(4) A notice informing individuals
how to submit requests for issuance,
modification, or withdrawal of guidance
documents, in accordance with
§ 1155.9.
§ 1155.6
Significance determinations.
(a) Agency requests. The Access Board
should make an initial, informal
assessment concerning the
‘‘significance’’ of each proposed
guidance document. The Office of
General Counsel shall submit the
proposed guidance to the Office of
Management and Budget’s Office of
Information and Regulatory Affairs
(OIRA) for a significance determination.
The agency’s request shall include, at
minimum, a copy of the proposed
guidance document, the agency’s
designation recommendation, and the
bases for this recommendation.
(b) OIRA significance determinations.
If OIRA determines that a guidance
document is significant, the Access
Board shall comply with the enhanced
procedural requirements specified in
§§ 1155.7 and 1155.8 prior to issuance.
Otherwise, the Access Board may
proceed to issue the guidance document
after the Office of General Counsel has
determined it complies with the
requirements of § 1155.4.
(c) Emergency situations. When an
emergency, statutory deadline, judicial
order, or other conditions, require the
Access Board issue significant guidance
more quickly than otherwise possible
under the procedures established in this
part, the Office of General Counsel will
notify OIRA, as soon as possible, and
comply with applicable clearance
requirements to the maximum extent
feasible.
§ 1155.7 Additional requirements
applicable to significant guidance
documents.
(a) General. Guidance documents
deemed ‘‘significant’’ by OIRA must
comply with the additional
requirements specified in this section.
(b) Additional requirements.
Significant guidance documents must:
(1) Satisfy the requirements in
§ 1155.4, which are applicable to all
guidance documents;
(2) Be approved by the Chair of the
Board, on a non-delegable basis;
(3) Be accompanied by a regulatory
impact analysis for proposed guidance
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that OIRA has determined to be
economically significant;
(4) Be submitted to OIRA for
coordinated review, along with, at
minimum, a summary of the proposed
guidance and documentation
demonstrating compliance with
applicable rulemaking requirements set
forth in Executive Orders 12866, 13563,
13609, 13771, and 13777; and
(5) Comply with the notice-andcomment procedures prescribed in
§ 1155.8, unless the General Counsel or
his or her delegee issues a written
determination that these informal
rulemaking procedures would be
impracticable, unnecessary, or contrary
to the public interest.
§ 1155.8
Notice-and-comment procedures.
The Access Board shall publish a
notice of availability in the Federal
Register with a public comment period
of not less than 30 days, absent written
determination by the General Counsel
that a public comment period would be
impracticable, unnecessary, or contrary
to the public interest. After the close of
the public comment period, the Access
Board will also prepare a written
response to any major concerns raised
by commenters and make this response
document publicly available on the
Access Board website and/or electronic
rulemaking docket (such as
regulations.gov), either before the
guidance is finalized or upon
publication.
§ 1155.9 Petitions for modification or
withdrawal.
Any person may petition the Access
Board, in writing, for issuance,
modification, or withdrawal of an
agency guidance document. Requests
should be addressed to the Office of
General Counsel, describe the action(s)
the requester wishes the agency to take
with regard to existing or new guidance,
and explain the bases for this request.
Requests may be submitted by email
(OGC@access-board.gov) or regular mail
(Office of General Counsel, 1331 F
Street NW, Suite 1000, Washington, DC
20004). The Office of General Counsel
will review the request and respond in
a timely manner, which, typically, is
within 90 days of receipt.
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§ 1155.10
No private right of action.
This part is solely intended to
improve the internal management of the
Access Board. Nothing in this part is
intended to, or does, create a private
right of action against the United States,
its agencies or other entities, its officers
or employees, or any other person.
Authority to enforce compliance with
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this part is vested exclusively with the
Board.
Dated: August 18, 2020.
Gretchen Jacobs,
Interim Executive Director.
[FR Doc. 2020–18411 Filed 9–18–20; 8:45 am]
BILLING CODE 8150–01–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 21
RIN 2900–AQ61
Elimination of On-the-Job Training and
Apprenticeship Trainee Certification
Department of Veterans Affairs.
Final rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) is amending its regulations
that contain the requirements for
certification of attendance at on-the-job
training and apprenticeship programs.
This final rule adopts without change a
proposed rule implementing a section of
the ‘‘Veterans Apprenticeship and Labor
Opportunity Reform Act’’ (VALOR Act),
which eliminated the requirement that
veterans and other eligible persons
certify attendance at an on-the-job or
apprentice training program prior to
disbursement of a training assistance
allowance. This final rule also
eliminates the certification requirement
for trainees in a program of
apprenticeship or on-the-job training
under chapter 30 of title 38, United
States Code.
DATES: This rule is effective on October
21, 2020.
FOR FURTHER INFORMATION CONTACT:
Cheryl Amitay, Chief, Policy and
Regulation Development Staff (225C),
Education Service, Department of
Veterans Affairs, 810 Vermont Ave. NW,
Washington, DC 20420, (202) 461–9700.
(This is not a toll-free telephone
number.)
SUPPLEMENTARY INFORMATION: On
February 28, 2020, VA published a
proposed rule in the Federal Register
(85 FR 11906), which would amend its
regulations that contain the
requirements for certification of
attendance at on-the-job training and
apprenticeship programs. VA provided
a 60-day comment period, which ended
on April 28, 2020. We received 2
comments on the proposed rule. This
rule adopts as a final rule, without
changes, the proposed rule published in
the Federal Register on February 28,
2020.
Section 3 of the ‘‘Veterans
Apprenticeship and Labor Opportunity
SUMMARY:
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Reform Act’’ (VALOR Act), Public Law
115–89, amended 38 U.S.C. 3680(c) to
eliminate the requirement that veterans
and other eligible persons who receive
on-the-job training or apprenticeship
training (‘‘trainees’’) certify attendance
at on-the-job or apprenticeship training
prior to disbursement of a training
assistance allowance, thereby placing
the responsibility solely on employers
to certify attendance in on-the-job and
apprenticeship programs. VA proposed
to implement the VALOR Act by
amending 38 CFR 21.4138(e)(2)(ii),
21.5133(b)(2), and 21.7640(a)(3)(ii) to
remove references to the trainee
certification requirement, revising the
authority citation for §§ 21.4138(e) and
21.5133, and revising the information
collection approval parenthetical at the
end of §§ 21.4138, 21.5133, and 21.7640.
VA also proposed to revise 38 CFR
21.7140(c)(2)(ii) to eliminate the trainee
certification requirement for trainees in
a program of apprenticeship or on-thejob training under 38 U.S.C. chapter 30,
add an authority citation for paragraph
(c)(2), and revise the information
collection approval parenthetical at the
end of the section.
Both comments on the notice of
proposed rulemaking that VA received
were supportive in part or in whole and
lauded VA for reducing the
administrative burden on veterans
pursuing apprenticeship or on-the job
training programs eligible for GI Bill
benefits. One commenter pointed out
that the rule codifies Congressional
intent in enacting the VALOR Act and
eliminates an obstacle to obtaining
training. VA agrees with the commenter.
The other commenter stated that,
because a trainee would no longer be
required to sign a certification under the
proposed rule, a disagreement could
arise if the trainee does not agree with
the training establishment or trainer’s
calculation of hours. However, VA finds
that there should rarely, if ever, be a
discrepancy as to the number of hours
earned by a trainee because the total
amount of program hours is already
prescribed in the established,
documented training plan for the
program. The periodic certification
merely indicates to VA that the correct
apportioned amount has been
completed, i.e., that the trainee remains
in the program and has not terminated
training. Indeed, Congress eliminated
the dual certification requirement
because experience had shown it to be
unnecessary. H.R. Rep. 115–398, at 3–4
(2017). In the unlikely event a
discrepancy does arise, VA would, of
course, take appropriate steps to resolve
the discrepancy with the trainee and the
training establishment or trainer, and
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]]>Agencies
[Federal Register Volume 85, Number 183 (Monday, September 21, 2020)]
[Rules and Regulations]
[Pages 59187-59190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18411]
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ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
36 CFR Part 1155
[Docket No. ATBCB-2020-0003]
RIN 3014-AA43
Guidance Procedures
AGENCY: Architectural and Transportation Barriers Compliance Board.
ACTION: Final rule.
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SUMMARY: The Architectural and Transportation Barriers Compliance Board
(hereafter, ``Access Board,'' or ``Board'') issues this final rule to
implement an Executive Order entitled ``Promoting the Rule of Law
Through Improved Agency Guidance Documents.'' By this rule, the Access
Board establishes internal, procedural requirements governing the
issuance, public availability, and modification or withdrawal of Access
Board guidance documents.
DATES: This final rule is effective on October 21, 2020.
FOR FURTHER INFORMATION CONTACT: Christopher Kuczynski, Deputy General
Counsel, U.S. Access Board, (202) 272-0042, board.gov">[email protected]board.gov.
SUPPLEMENTARY INFORMATION:
I. Background
In October 2019, the President signed Executive Order 13891,
``Promoting the Rule of Law Through Improved Agency Guidance
Documents.'' 84 FR 55235 (Oct. 15, 2019). Section 4 of this Executive
Order directs Federal agencies to finalize new regulations (or update
existing regulations) that provide procedures for, among other things,
issuance of non-binding guidance documents, coordinated review of
``significant'' guidance documents by the Office of Management and
Budget (OMB), and agency review of petitions by members of the public
for modification or withdrawal of existing agency guidance materials.
[[Page 59188]]
In accordance with E.O. 13891, the Access Board promulgates this
new rule, which establishes internal agency procedures with regard to
the issuance, publication, and modification or withdrawal of Access
Board guidance documents. All current guidance documents already in
effect are posted on our website's guidance portal, www.access-board.gov/guidance. See Notice of Guidance Documents, 85 FR 11949 (Feb.
28, 2020). Any guidance document not posted on the Agency's guidance
portal are considered to be rescinded and neither the Agency nor a
party may cite, use, or rely on such a guidance except to establish
historical facts.
II. Regulatory Process Matters
Administrative Procedure Act
The guidance procedures established by this final rule implement
E.O. 13891 and solely address internal matters related to agency
management and practices. As such, this rule is exempt from the notice-
and-comment process pursuant to the Administrative Procedures Act. See
5 U.S.C. 553(a)(2), 553(b)(3)(A).
Executive Order 12866
This final rule establishes internal rules of agency procedure
only. OMB has determined that the rule is not a significant regulatory
action within the meaning of Executive Order 12866.
Executive Order 13771
This final rule is not subject to Executive Order 13771 because it
is a non-significant regulatory action that relates solely to ``agency
organization, management, or personnel.'' See Executive Order 13771. 82
FR 9339 (Feb. 3, 2017); OMB, M-17-21, ``Guidance Implementing Executive
Order 13771, Titled `Reducing Regulation and Controlling Regulatory
Costs''' (April 5, 2017).
Congressional Review Act
This final rule is not a major rule within the meaning of the
Congressional Review Act. See 5 U.S.C. 801 et seq.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires Federal agencies to
analyze regulatory options that may assist in minimizing any
significant impact of a rule on small businesses and small governmental
jurisdictions. See 5 U.S.C. 604, 605(b). Because this final rule
relates solely to agency internal procedures and, moreover, is not
subject to notice-and-comment rulemaking, the RFA is inapplicable.
Federalism (Executive Order 13132)
The Access Board has analyzed this final rule in accordance with
the principles and criteria set forth in Executive Order 13132. The
Board has determined that this action will not have a substantial
direct effect on the States, the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government, and,
therefore, does not have federalism implications.
Paperwork Reduction Act
This final rule does not specify any new collections of information
or recordkeeping requirements that require OMB approval under the
Paperwork Reduction Act. See 44 U.S.C. 3501 et seq.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (codified at 2 U.S.C. 1531
et seq.) (``UMRA'') generally requires that Federal agencies assess the
effects of their discretionary regulatory actions that may result in
the expenditure of $100 million (adjusted for inflation) or more in any
one year by the private sector, or by State, local, and tribal
governments in the aggregate. Because this final rule is not subject to
notice-and-comment rulemaking, UMRA's analytical requirements do not
apply. See 2 U.S.C. 1532(a).
List of Subjects in 36 CFR Part 1155
Administrative practice and procedure.
0
For the reasons stated in the preamble, the Access Board adds 36 CFR
part 1155 to read as follows:
PART 1155--GUIDANCE PROCEDURES
Sec.
1155.1 Purpose.
1155.2 Definitions.
1155.3 Legal review by Office of General Counsel.
1155.4 Requirements applicable to all guidance documents.
1155.5 Public availability of guidance documents.
1155.6 Significance determinations.
1155.7 Additional requirements applicable to significant guidance
documents.
1155.8 Notice-and-comment procedures.
1155.9 Petitions for modification or withdrawal.
1155.10 No private right of action.
Authority: 29 U.S.C. 792; E.O. 13891, 84 FR 55235, 3 CFR, 2019
Comp., p. 371; 36 CFR 1151.3.
PART 1155--GUIDANCE PROCEDURES
Sec. 1155.1 Purpose.
(a) General. This part implements Section 4 of Executive Order
13891 by establishing requirements and procedures for issuance,
publication, and modification or withdrawal of guidance documents of
the United States Access Board (``Access Board'' or ``agency'').
(b) Application. Unless otherwise stated, the requirements and
procedures set forth in this part apply to all guidance documents
issued or revised by the Access Board on or after October 21, 2020.
Sec. 1155.2 Definitions.
For the purpose of this part, the following terms have the
indicated meaning:
(a) Guidance document. Subject to the exceptions provided in
paragraph (b) of this section, a written statement of general
applicability that the Access Board intends to:
(1)(i) Have future effect on the behavior of regulated parties;
(ii) Set forth agency policy on a statutory, regulatory, or
technical issue; or
(iii) Interpret a statute or regulation.
(2) Guidance documents are not limited to formal, written
documents, and may be set forth in other documentary formats, such as
electronic, digital, audio, or video materials.
(b) Exceptions. The following types of guidance documents are
exempt from compliance with the requirements and procedures specified
in this part:
(1) Rules promulgated pursuant to notice and comment under 5 U.S.C.
553, or similar statutory provisions;
(2) Rules exempt from rulemaking requirements under 5 U.S.C.
553(a);
(3) Rules of internal organization, procedure, or practice within
the Access Board, provided such rules do not alter substantive
obligations for parties outside the Access Board;
(4) Access Board decisions in formal adjudications conducted
pursuant to 5 U.S.C. 554, or similar statutory provisions;
(5) Internal guidance directed to Access Board personnel or other
Federal agencies or officials that is not intended to have substantial
future effect on the behavior of regulated parties;
(6) Internal executive branch legal advice or opinions addressed to
other executive branch officials or Federal agencies;
(7) Access Board statements of specific applicability, including:
[[Page 59189]]
advisory or legal opinions directed to particular parties about
circumstance-specific questions, and correspondence with individuals or
entities;
(8) Legal briefs, other court filings, or written positions taken
by the Access Board or its legal counsel in administrative, legal, or
enforcement proceedings;
(9) Access Board statements that do not set forth agency policy on
a statutory, regulatory, or technical issue or interpretation of a
statute or regulation, such as: speeches and individual presentations,
editorials, media interviews, press materials, or congressional
testimony by Access Board officials that does not set forth new agency
regulatory policy;
(10) Contract solicitations and awards; and
(11) Access Board policies or guidance directed solely to agency
employees, contractors, or other Federal agencies that are not
anticipated to have substantial future effect on the behavior of
regulated parties outside of the Federal Government.
(c) Significant guidance document. A type of guidance document that
may reasonably be anticipated to:
(1) Lead to an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Federal agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations or recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles of Executive
Order 12866.
Sec. 1155.3 Legal review by Office of General Counsel.
The Office of General Counsel is responsible for ensuring that
Access Board guidance documents comply with applicable laws,
regulations, and other Federal authorities, including the procedural
requirements established in this part. Agency guidance documents must
be reviewed and cleared before issuance or publication by the General
Counsel or his or her designee, upon written delegation.
Sec. 1155.4 Requirements applicable to all guidance documents.
(a) General. Access Board guidance must be issued, published, and
modified or withdrawn in compliance with this part, as well as other
applicable Federal statutes, regulations, or executive branch
authorities.
(b) Requirements. In addition to its substantive or informational
content, Access Board guidance must:
(1) Comply with all relevant statutes or regulations (including any
statutory deadlines for agency action, absent exigent or unforeseen
circumstances);
(2) Be written in plain and understandable English;
(3) Use the term ``guidance'';
(4) Include each of the following documentary elements, unless its
nature or format makes inclusion impracticable (in which case, the
document should conform to such element to the maximum extent
feasible):
(i) Title;
(ii) Date;
(iii) Revision number (if applicable);
(iv) Unique document identification number;
(v) Identity of issuing agency or component;
(vi) Citation(s) of Federal laws, regulations, or other authorities
being interpreted or applied;
(vii) Description of target audience;
(viii) Summary of subject matter near the top of the document; and
(ix) A disclaimer, stating: ``The contents of this document do not
have the force and effect of law and are not meant to bind the public
in any way. This document is intended only to provide clarity to the
public regarding existing requirements under the law or agency
policies.''
Sec. 1155.5 Public availability of guidance documents.
(a) General. Subject to the exceptions provided in Sec. 1155.2(b),
all current, in-force guidance documents, including significant
guidance documents, shall be made publicly available on a single,
searchable web-based ``guidance portal'' on the Access Board website.
Guidance documents posted on this portal should, to the maximum extent
feasible, comply with the identification requirements specified in
Sec. 1155.4(b). The Access Board shall only cite, use, or rely on
guidance documents that are listed on its guidance portal except to
establish historical facts or similar archival information.
(b) Portal requirements. The Access Board guidance portal must
include the following elements or features:
(1) A statement that guidance documents lack the force and effect
of law, except as authorized by law or as incorporated into a contract;
(2) When proposed significant guidance is open for public comment
in conformance with Sec. 1155.8, a notice informing members of the
public how to submit comments or link to the appropriate electronic
docket;
(3) The citation for, or link to, the procedural regulations
concerning guidance documents set forth in this part; and
(4) A notice informing individuals how to submit requests for
issuance, modification, or withdrawal of guidance documents, in
accordance with Sec. 1155.9.
Sec. 1155.6 Significance determinations.
(a) Agency requests. The Access Board should make an initial,
informal assessment concerning the ``significance'' of each proposed
guidance document. The Office of General Counsel shall submit the
proposed guidance to the Office of Management and Budget's Office of
Information and Regulatory Affairs (OIRA) for a significance
determination. The agency's request shall include, at minimum, a copy
of the proposed guidance document, the agency's designation
recommendation, and the bases for this recommendation.
(b) OIRA significance determinations. If OIRA determines that a
guidance document is significant, the Access Board shall comply with
the enhanced procedural requirements specified in Sec. Sec. 1155.7 and
1155.8 prior to issuance. Otherwise, the Access Board may proceed to
issue the guidance document after the Office of General Counsel has
determined it complies with the requirements of Sec. 1155.4.
(c) Emergency situations. When an emergency, statutory deadline,
judicial order, or other conditions, require the Access Board issue
significant guidance more quickly than otherwise possible under the
procedures established in this part, the Office of General Counsel will
notify OIRA, as soon as possible, and comply with applicable clearance
requirements to the maximum extent feasible.
Sec. 1155.7 Additional requirements applicable to significant
guidance documents.
(a) General. Guidance documents deemed ``significant'' by OIRA must
comply with the additional requirements specified in this section.
(b) Additional requirements. Significant guidance documents must:
(1) Satisfy the requirements in Sec. 1155.4, which are applicable
to all guidance documents;
(2) Be approved by the Chair of the Board, on a non-delegable
basis;
(3) Be accompanied by a regulatory impact analysis for proposed
guidance
[[Page 59190]]
that OIRA has determined to be economically significant;
(4) Be submitted to OIRA for coordinated review, along with, at
minimum, a summary of the proposed guidance and documentation
demonstrating compliance with applicable rulemaking requirements set
forth in Executive Orders 12866, 13563, 13609, 13771, and 13777; and
(5) Comply with the notice-and-comment procedures prescribed in
Sec. 1155.8, unless the General Counsel or his or her delegee issues a
written determination that these informal rulemaking procedures would
be impracticable, unnecessary, or contrary to the public interest.
Sec. 1155.8 Notice-and-comment procedures.
The Access Board shall publish a notice of availability in the
Federal Register with a public comment period of not less than 30 days,
absent written determination by the General Counsel that a public
comment period would be impracticable, unnecessary, or contrary to the
public interest. After the close of the public comment period, the
Access Board will also prepare a written response to any major concerns
raised by commenters and make this response document publicly available
on the Access Board website and/or electronic rulemaking docket (such
as regulations.gov), either before the guidance is finalized or upon
publication.
Sec. 1155.9 Petitions for modification or withdrawal.
Any person may petition the Access Board, in writing, for issuance,
modification, or withdrawal of an agency guidance document. Requests
should be addressed to the Office of General Counsel, describe the
action(s) the requester wishes the agency to take with regard to
existing or new guidance, and explain the bases for this request.
Requests may be submitted by email (board.gov">[email protected]board.gov) or regular
mail (Office of General Counsel, 1331 F Street NW, Suite 1000,
Washington, DC 20004). The Office of General Counsel will review the
request and respond in a timely manner, which, typically, is within 90
days of receipt.
Sec. 1155.10 No private right of action.
This part is solely intended to improve the internal management of
the Access Board. Nothing in this part is intended to, or does, create
a private right of action against the United States, its agencies or
other entities, its officers or employees, or any other person.
Authority to enforce compliance with this part is vested exclusively
with the Board.
Dated: August 18, 2020.
Gretchen Jacobs,
Interim Executive Director.
[FR Doc. 2020-18411 Filed 9-18-20; 8:45 am]
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