Promoting the Rule of Law Through Improved Agency Guidance Documents, 60063-60068 [2020-19546]

Agencies

• Tennessee Valley Authority

[Federal Register Volume 85, Number 186 (Thursday, September 24, 2020)]
[Rules and Regulations]
[Pages 60063-60068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19546]


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TENNESSEE VALLEY AUTHORITY

18 CFR Part 1301

RIN 3316-AA23


Promoting the Rule of Law Through Improved Agency Guidance 
Documents

AGENCY: Tennessee Valley Authority.

ACTION: Direct final rule.

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SUMMARY: The Tennessee Valley Authority (TVA) issues this final rule to 
implement procedures for the issuance of TVA guidance documents in 
accordance with Executive Order 13891. This final rule would, among 
other things, establish internal agency requirements for guidance 
documents, as well as public engagement procedures surrounding guidance 
documents.

DATES: This final rule is effective October 26, 2020. The comment 
period will conclude on October 26, 2020. Subject to review of the 
public comments received, TVA may delay the final effective date and, 
if so, will publish a document in the Federal Register to that effect.

FOR FURTHER INFORMATION CONTACT: Robin M. Daugherty, 423-751-3207, 
Email: [email protected], Mail address: Tennessee Valley Authority, 
400 West Summit Hill Drive, WT 6 Knoxville, TN 37902.

SUPPLEMENTARY INFORMATION: TVA issues this final rule to incorporate 
into the Code of Federal Regulations a new 18 CFR 130.70 Subpart F, 
which would implement the requirements of Executive Order 13891, 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents.'' 84 FR 55235 (October 9, 2019) (E.O. 13891). E.O. 13891 
requires agencies to provide more transparency around the issuance and 
use of guidance documents, including by promulgating procedures to 
increase public involvement in the TVA guidance document process. As 
noted in E.O. 13891, the Administrative Procedure Act (APA) generally 
requires agencies to provide public notice of proposed regulations, 
allow interested parties an opportunity to comment, consider and 
respond to significant comments, and publish final regulations in the 
Federal Register (See 5 U.S.C. 553). Such regulations, also known as 
legislative rules, have the force and effect of law and are legally 
binding upon the public. In addition to legislative rules, agencies may 
clarify existing obligations of regulated entities through nonbinding 
guidance documents, which the APA exempts from notice-and-comment 
requirements. (5 U.S.C. 553(b)(A)). E.O. 13891 defines ``guidance 
document'' as ``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,'' with a few noted 
exceptions listed in E.O. 13891, the APA and associated regulation. 
Guidance documents do not have the force and effect of law, and are 
intended only to provide clarity to the public of existing statutory 
and regulatory obligations. However, as noted in E.O. 13891, some 
agency guidance documents may impose obligations beyond those required 
by statute or regulation, or carry a threat of enforcement if the 
guidance is not followed by regulated parties. Additionally, the public 
may not have sufficient notice of guidance documents, which are not 
always published in the Federal Register or distributed to all 
regulated parties. See 84 FR 55235. Accordingly, E.O. 13891 requires 
agencies to provide more transparency for their guidance documents by 
creating a searchable online database for current guidance documents, 
by requiring agencies to establish procedures to allow the public to 
comment on significant guidance documents, and authorizing the public 
to petition the agency to withdraw or modify guidance documents. 
Moreover, E.O. 13891 requires agencies to clearly state in their 
guidance documents that such guidance Does not have the force and 
effect of law and is not legally binding, except as authorized by law 
or as incorporated into a contract. This final rule would implement the 
requirements of E.O. 13891. This final rule would apply to all TVA 
guidance documents, which TVA proposes to define in the same manner as 
that term is defined in E.O. 13891, the APA and associated regulations, 
and OMB memo M-20-02 Memorandum for Regulatory Policy Officers at 
Executive Departments and Agencies and Managing and Executive Directors 
of Certain Agencies and Commissions, Dominic J. Mancini, OIRA Acting 
Director (Oct. 31, 2019). The final rule would also adopt the same 
definition of ``significant guidance document'' as that term is defined 
in E.O. 13891 Section 2. In accordance with E.O. 13891, TVA will 
require that all TVA guidance documents clearly state that they do not 
have the force and effect of law and are not legally binding on the 
public, and that they are only intended to provide clarity to the 
public regarding existing statutory and regulatory requirements. 
Moreover, TVA guidance documents will be required to be written 
clearly, and to refrain from using mandatory language, such as the 
terms ``shall'' or ``must.'' If a guidance document purports to 
describe, approve, or recommend specific conduct that is beyond what is 
required by existing statute, legislative or judicial rule, TVA's final 
regulation would require that TVA's guidance document will not be used 
as an independent basis for enforcement. TVA also proposes in this new 
rule to require that all TVA guidance documents be reviewed and cleared 
by the Office of the General Counsel before public availability. 
Additionally, the final rule would require that significant guidance 
documents be approved by the TVA Board of Directors or by delegation to 
a TVA Executive. This will ensure that the requirements and intent of 
E.O. 13891 are met, and that guidance documents are issued in 
accordance with relevant laws and regulations.
    The final rule also provides procedures for the public to petition 
the agency to modify or withdraw guidance documents. With this final 
rule, TVA

[[Page 60064]]

would effectuate the requirements of E.O. 13891 and ensure that TVA's 
process for the issuance of guidance documents is transparent and 
accessible to the public. The final rule also assures regulated parties 
that such guidance is not legally binding and does not affect the 
rights and obligations of regulated parties.

Legal Authority

    This final rule is promulgated under the authority of the TVA Act, 
as amended, 16 U.S.C. 831 et seq. and the Administrative Procedures 
Act, 5 U.S.C. 553 et seq.

Background

    The Tennessee Valley Authority is a multi-purpose corporate agency 
of the United States that provides electricity for business customers 
and local power companies serving 10 million people in parts of seven 
southeastern states. TVA provides flood control, navigation and land 
management for the Tennessee River system and assists local power 
companies and state and local governments with economic development and 
job creation.

Public Participation

    TVA will accept comments, data, and information regarding this 
final rule on or before the date provided in DATES. Interested parties 
may submit comments, data, and other information using any of the 
methods described in the ADDRESSES section at the beginning of this 
document.
    Submitting comments via https://www.regulations.gov. The https://www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will be viewable to TVA 
General Counsel staff only. Your contact information will not be 
publicly viewable except for your first and last names, organization 
name (if any), and submitter representative name (if any). If your 
comment is not processed properly because of technical difficulties, 
TVA will use this information to contact you. If TVA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, TVA may not be able to consider your comment. However, 
your contact information will be publicly viewable if you include it in 
the comment itself or in any documents attached to your comment. Any 
information that you do not want to be publicly viewable should not be 
included in your comment, nor in any document attached to your comment. 
Otherwise, persons viewing comments will see only first and last names, 
organization names, correspondence containing comments, and any 
documents submitted with the comments. Do not submit to https://www.regulations.gov information the disclosure of which is restricted 
by statute, such as trade secrets and commercial or financial 
information (hereinafter referred to as Confidential Business 
Information (CBI)). Comments submitted through https://www.regulations.gov cannot be claimed as CBI. Comments received through 
the website will waive any CBI claims for the information submitted. 
For information on submitting CBI, see the Confidential Business 
Information section below. TVA processes submissions made through 
https://www.regulations.gov before posting. Normally, comments will be 
posted within a few days of being submitted. However, if large volumes 
of comments are being processed simultaneously, your comment may not be 
viewable for up to several weeks. Please keep the comment tracking 
number that https://www.regulations.gov provides after you have 
successfully uploaded your comment. Submitting comments via email, hand 
delivery/courier, or postal mail. Comments and documents submitted via 
email, hand delivery/courier, or postal mail also will be posted to 
https://www.regulations.gov. If you do not want your personal contact 
information to be publicly viewable, do not include it in your comment 
or any accompanying documents. Instead, provide your contact 
information in a cover letter. Include your first and last names, email 
address, telephone number, and optional mailing address. The cover 
letter will not be publicly viewable as long as it does not include any 
comments. Include contact information each time you submit comments, 
data, documents, and other information to TVA. If you submit via postal 
mail or hand delivery/courier, please provide all items on a CD, if 
feasible, in which case it is not necessary to submit printed copies. 
No telefacsimiles (faxes) will be accepted. Comments, data, and other 
information submitted to TVA electronically should be provided in PDF 
(preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file 
format. Provide documents that are written in English, and that are 
free of any defects or viruses. Documents should not contain special 
characters or any form of encryption and, if possible, they should 
carry the electronic signature of the author. Campaign form letters. 
Please submit campaign form letters by the originating organization in 
batches of between 50 to 500 form letters per PDF or as one form letter 
with a list of supporters' names compiled into one or more PDFs. This 
reduces comment processing and posting time.
    Confidential Business Information. Pursuant to 10 CFR 1004.11, any 
person submitting information that they believe to be confidential and 
exempt by law from public disclosure should submit via email, postal 
mail, or hand delivery/courier two well-marked copies: One copy of the 
document marked ``confidential'' including all the information believed 
to be confidential, and one copy of the document marked ``non-
confidential'' that deletes the information believed to be 
confidential.
    Submit these documents via email or on a CD, if feasible. TVA will 
make its own determination about the confidential status of the 
information and will treat it according to its determination. It is 
TVA's policy that all comments, including any personal information 
provided in the comments, may be included in the public docket, without 
change and as received, except for information deemed to be exempt from 
public disclosure.

Regulatory Analysis

A. Review Under Executive Order 12866, ``Regulatory Planning and 
Review''

    TVA sought informal review and support from the Office of 
Information and Regulatory Affairs in the Office of Management and 
Budget (OMB). TVA does not anticipate that this rulemaking will have an 
economic impact on regulated entities. This is a proposed rule of 
agency procedure and practice. The proposed rule describes TVA's 
internal procedures for the promulgation and processing of guidance 
documents, to ensure that guidance documents only clarify existing 
statutory and regulatory obligations and do not impose any new 
obligations. TVA proposes to adopt these internal procedures as part of 
its implementation of E.O. 13891, and does not anticipate incurring 
significant additional resource costs in doing so. Moreover, it is 
anticipated that the public will benefit from the resulting increase in 
efficiency and transparency in the issuance of guidance documents, and 
more opportunities to comment on guidance documents.

B. Review Under Executive Order 13771

    Executive Order 13771, ``Reducing Regulation and Controlling 
Regulatory Costs,'' at 82 FR 9339 (January 30, 2017), states that the 
policy of the executive branch is to be prudent and

[[Page 60065]]

financially responsible in the expenditure of funds, from both public 
and private sources. E.O. 13771 states that it is essential to manage 
the costs associated with the governmental imposition of private 
expenditures required to comply with Federal regulations. More 
specifically, section 2 of E.O. 13771 requires, amongst other things, 
that the costs of any new regulation be offset by the elimination of 
existing costs associated with at least 2 prior regulations.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
preparation of an initial regulatory flexibility analysis (IRFA) for 
any rule that by law must be proposed for public comment, unless the 
agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
The final rule would codify internal agency procedures regarding TVA's 
issuance of guidance documents. Additionally, as noted previously, 
guidance documents do not have the force and effect of law and are not 
legally binding on regulated entities. This rule would establish 
procedures to ensure that TVA guidance only clarifies existing 
statutory and regulatory obligations, rather than imposing any new 
obligations. TVA therefore does not anticipate any significant economic 
impacts from this final rule. For these reasons, TVA certifies that 
this rulemaking will not have a significant economic impact on a 
substantial number of small entities. Accordingly, TVA did not prepare 
an IRFA for this rulemaking.

D. Review Under the Paperwork Reduction Act of 1995

    The final rule would impose no new information or record keeping 
requirements. Accordingly, Office of Management and Budget (OMB) 
clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 
3501 et seq.).

E. Review Under the National Environmental Policy Act of 1969

    TVA has determined that the final rule would be covered under the 
Categorical Exclusion found in TVA's National Environmental Policy Act 
regulations at paragraph 7 of appendix A to subpart C, 18 CFR part 
1318. This Categorical Exclusion applies to actions that are 
administrative actions consisting solely of paperwork. The final rule 
would codify internal agency procedures for issuing guidance documents. 
The action would not have direct environmental impacts. Accordingly, 
TVA does not intend to prepare an environmental assessment or an 
environmental impact statement.

F. Review Under Executive Order 13132, ``Federalism''

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. E.O. 13132 requires agencies to examine 
the constitutional and statutory authority supporting any action that 
would limit the policymaking discretion of the States and carefully 
assess the necessity for such actions. The E.O. also requires agencies 
to have an accountable process to ensure meaningful and timely input by 
State and local officials in the development of regulatory policies 
that have federalism implications. TVA examined this final rule and 
determined that it would not preempt State law and would not 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.

G. Review Under Executive Order 13175 ``Consultation and Coordination 
With Indian Tribal Governments''

    Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments,'' 65 FR 67249, November 9, 2000, applies to agency 
regulations that have Tribal implications; that is, regulations that 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. The final rule would not significantly or 
uniquely affect the communities of the Indian tribal governments, or 
impose substantial direct compliance costs on them, therefore the 
funding and consultation requirements of E.O. 13175 do not apply.

H. Review Under Executive Order 12988, ``Civil Justice Reform''

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements:
    (1) Eliminate drafting errors and ambiguity;
    (2) Write regulations to minimize litigation; and
    (3) Provide a clear legal standard for affected conduct, rather 
than a general standard and promote simplification and burden 
reduction.
    Section 3(b) of E.O. 12988 specifically requires Executive agencies 
to make every reasonable effort to ensure that the proposed regulation:
    (1) Clearly specifies its preemptive effect, if any;
    (2) Clearly specifies any effect on existing Federal law or 
regulation;
    (3) Provides a clear legal standard for affected conduct, while 
promoting simplification and burden reduction;
    (4) Specifies its retroactive effect, if any;
    (5) Adequately defines key terms; and
    (6) Addresses other important issues affecting clarity and general 
draftsmanship under any guidelines issued by the Attorney General.
    E.O. 12988 Section 3(c) requires Executive agencies to review 
regulations to determine whether the E.O. requirements are met, or the 
agency determines that it is unreasonable to meet one or more of them. 
TVA has completed the required review and determined that, to the 
extent permitted by law, the final rule would meet the E.O. 12988 
relevant standards.

I. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and tribal governments and the 
private sector. For a proposed regulatory action likely to result in a 
rule that may cause the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish a written statement that 
estimates the resulting costs, benefits, and other effects on the 
national economy (2 U.S.C. 1532(a) and (b)). The UMRA also requires a 
Federal agency to develop an effective process to permit timely input 
by elected officers of State, local, and tribal governments on a 
proposed ``significant intergovernmental mandate'' and requires an 
agency plan for giving notice and opportunity for timely input to 
potentially affected small governments before establishing any 
requirements that might significantly or uniquely affect small 
governments. This final rule contains neither an intergovernmental 
mandate nor a mandate that may result in the expenditure of $100 
million or

[[Page 60066]]

more in any year by State, local, and tribal governments, in the 
aggregate, or by the private sector, so UMRA requirements do not apply.

J. Review Under Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use''

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA) within the Office 
of Management and Budget, a Statement of Energy Effects for any 
proposed significant energy action. A ``significant energy action'' is 
defined as any action by an agency that promulgated or is expected to 
lead to promulgation of a final rule, and that:
    (1) Is a significant regulatory action under E.O. 12866, or any 
successor order; and
    (2) Is likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or
    (3) Is designated by the Administrator of OIRA as a significant 
energy action.
    For any proposed significant energy action, the agency must give a 
detailed statement of any adverse effects on energy supply, 
distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use. The final rule would codify 
internal agency procedures and does not meet any of the three criteria 
listed above. Accordingly, the requirements of E.O. 13211 do not apply.

Approval of the Agency Head

    The Tennessee Valley Authority's Chief Executive Officer approved 
the publication of this final rule, via delegation to the General 
Counsel.

Signing Authority

    This document of the Tennessee Valley Authority was approved on 
August 28, 2020, by Sherry A. Quirk, General Counsel, pursuant to 
delegated authority from the Chief Executive Officer. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned TVA Federal 
Register Liaison Officer has been authorized to sign and submit the 
document for publication, as an official document of the Tennessee 
Valley Authority. This administrative process in no way alters the 
legal effect of this document upon publication in the Federal Register.

    Signed in Knoxville, Tennessee, on August 28, 2020.
Dillis D. Freeman, Jr.
Federal Register Liaison Officer, Tennessee Valley Authority.

List of Subjects in 18 CFR Part 1301

    Freedom of information, Privacy, Sunshine Act.

    For the reasons stated previously, TVA is amending part 1301 of 
title 18 of the Code of Federal Regulations as set forth below:

PART 1301--PROCEDURES

0
1. The authority citation for part 1301 continues to read as follows:

    Authority: 5 U.S.C. 552 and 552a; 16 U.S.C. 831-831dd.


0
2. Add subpart F, consisting of Sec.  1301.70 through 1301.80, to read 
as follows:
Subpart F--General
Sec.
1301.70 Purpose and scope.
1301.71 Guidance document definition.
1301.72 Review and clearance by TVA's Office of the General Counsel.
1301.73 Public access to effective guidance documents.
1301.74 Good faith cost estimates.
1301.75 Designation procedures.
1301.76 Notice-and-comment procedures.
1301.77 Petitions.
1301.78 Rescinded guidance.
1301.79 Emergency situations, exigent circumstances, and legal 
requirement.
1301.80 No judicial review or enforceable rights.

Subpart F--General


Sec.  1301.70  Purpose and scope.

    (a) This subpart governs all Tennessee Valley Authority (TVA) 
employees and contractors involved with all phases of developing, 
drafting and issuing TVA guidance documents.
    (b) Subject to the qualifications and exemptions contained in this 
subpart, these procedures apply to all TVA guidance documents, as 
defined by the Administrative Procedures Act, Executive Order 13891 and 
the Office of Management and Budget memo M-20-02, Memorandum for 
Regulatory Policy Officers at Executive Departments and Agencies and 
Managing and Executive Directors of Certain Agencies and Commissions, 
Dominic J. Mancini, OIRA Acting Director (Oct. 31, 2019).


Sec.  1301.71  Guidance document definition.

    (a)(1) For purposes of this subpart, the term ``guidance document'' 
includes any statement of agency policy or interpretation concerning a 
statute, regulation, or technical matter within TVA's jurisdiction that 
is intended to have general applicability and future effect on the 
public, 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 specified in 5 U.S.C. 553 or 5 U.S.C. 556. See 
OMB Bulletin 07-02, ``Agency Good Guidance Practices,'' See Office of 
Management and Budget (OMB) Bulletin 07-02, ``Agency Good Guidance 
Practices,'' (January 25, 2007) (``OMB Good Guidance Bulletin'').
    (2) The term ``guidance document'' Does not include:
    (i) Rules exempt from rulemaking requirements under 5 U.S.C. 
553(a);
    (ii) Rules of agency organization, procedure, or practice;
    (iii) Decisions of agency adjudications under 5 U.S.C. 554 or 
similar statutory provisions;
    (iv) Internal executive branch legal advice or legal advisory 
opinions addressed to executive branch officials;
    (v) 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;
    (vi) Legal briefs, other court filings, or positions taken in 
litigation or enforcement actions;
    (vii) 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;
    (viii) Guidance pertaining to military or foreign affairs 
functions;
    (ix) Grant solicitations and awards;
    (x) Contract solicitations and awards;
    (xi) Purely internal agency policies or guidance directed solely to 
TVA employees or contractors or to other public entities or agencies 
that are not intended to have substantial future effect on the behavior 
of regulated parties; or
    (xii) Documents associated with matters relating to agency 
management

[[Page 60067]]

or personnel or to public property, loans, grants, benefits, or 
contracts.
    (b) The term ``TVA'' refers to the Tennessee Valley Authority, a 
corporate agency of the United States, subject to applicable federal 
and state statutes and regulations and charged with a diverse mission. 
Congress tasked TVA with, among other things, providing flood control, 
navigation, and land management for the Tennessee River system; 
management and stewardship for TVA lands and waterways; producing and 
distributing electricity; regulating local power companies; and 
assisting local power companies and state and local governments in the 
Tennessee Valley with economic development and job creation.
    (c) The term ``BU'' refers to a Business Unit, the organizational 
structure into which the various responsibilities associated with TVA's 
mission is divided.
    (d) The term ``OGC'' refers to TVA's Office of the General Counsel, 
a BU within TVA.
    (e)(1) 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:
    (i) 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;
    (ii) To create serious inconsistency or otherwise interfere with an 
action taken or planned by another Federal agency;
    (iii) To alter materially the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (iv) To raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866, as further amended.
    (2) The term ``significant guidance document'' does not include the 
categories of documents excluded by section 2 of Executive Order 12866 
or any other category of guidance documents exempted by the Office of 
Management and Budget. Even if not ``significant,'' a guidance document 
will be considered ``otherwise of importance to the TVA's interests'' 
within the meaning of this paragraph, if it may reasonably be 
anticipated:
    (i) To relate to a major program, policy, or activity of TVA or a 
high profile issue pending for decision before TVA;
    (ii) To involve one of the CEO or Board of Directors' top policy 
priorities;
    (iii) To garner significant press or congressional attention; or
    (iv) To raise significant questions or concerns from constituencies 
of importance to the TVA, such as Committees of Congress, States or 
Indian tribes, the White House or other departments of the Executive 
Branch, courts, consumer or public interest groups, or leading 
representatives of industry.


Sec.  1301.72  Review and clearance by TVA's Office of the General 
Counsel.

    The Office of the General Counsel (OGC)'s review and clearance of 
all TVA guidance documents shall ensure that each guidance document 
proposed to be issued by TVA satisfies the following requirements:
    (a) The guidance document complies with all relevant statutes and 
regulations;
    (b) The guidance document identifies or includes:
    (1) The term ``guidance'' or its functional equivalent in the title 
of the document;
    (2) A unique identifier, including, at a minimum, the date of 
issuance and title of the document, if applicable;
    (3) The activity or entities to which the guidance applies;
    (4) Citations to applicable statutes and regulations;
    (5) 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
    (6) A short summary of the subject matter covered at the beginning 
of the guidance document.
    (c) The guidance document generally avoids using mandatory 
language, such as ``shall,'' ``must,'' ``required,'' or 
``requirement,'' unless the language of the document is describing an 
established statutory or regulatory requirement or is addressed to TVA 
staff, and will not foreclose consideration of positions advanced by 
affected private parties;
    (d) The guidance document is written in plain and understandable 
English; and
    (e) The guidance document includes a clear and prominent statement 
declaring that the contents of the document do not have the force and 
effect of law and are not meant to bind the public in any way, and the 
document is intended only to provide clarity to the public regarding 
existing requirements under the law or TVA policies.


Sec.  1301.73  Public access to effective guidance documents.

    (a) TVA shall ensure that:
    (1) All effective guidance documents are loaded onto TVA's guidance 
portal website, available at https://www.tva.com/about-tva/guidelines-and-reports/tva-guidance-documents, in a single, searchable, indexed 
database, and available to the public in accordance with the Freedom of 
Information Act and associated regulations;
    (2) All effective guidance documents are identified by a unique 
identifier which includes, at a minimum, the document's title and date 
of issuance or revision.
    (b) The TVA guidance document website will identify a TVA BU to 
receive and address complaints from the public that TVA is not 
following the requirements of the Administrative Procedures Act or 
Executive Order 13891, or is improperly treating a guidance document as 
a binding requirement.


Sec.  1301.74  Good faith cost estimates.

    Even though not legally binding, some TVA guidance documents could 
result in significant economic impact. For example, guidance documents 
could 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 guidance 
documents, the proposing TVA BU 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 meet the 
definition of a significant guidance document. When the proposing TVA 
BU is assessing or explaining whether it believes a guidance document 
is a significant guidance document, it shall comply with the analytic 
requirements that would otherwise be required for a major determination 
under the Congressional Review Act.


Sec.  1301.75  Designation procedures.

    (a) TVA may prepare a designation request to OMB's OIRA for certain 
guidance documents. Designation requests must include at least the 
following information:
    (1) A summary of the guidance document; and
    (2) The TVA recommended designation of ``not significant'' or 
``significant,'' as well as a justification for that designation.

[[Page 60068]]

    (b) Except as otherwise provided in paragraph (c) of this section, 
TVA may seek significance determinations from OIRA for guidance 
documents, as appropriate, in the same manner as for rulemakings. Prior 
to publishing these guidance documents, and with sufficient time to 
allow OIRA to review the document in the event that a significance 
determination is made, TVA will generally provide OIRA with an 
opportunity to review the designation request or the guidance document, 
if requested, to determine if it meets the definition of 
``significant'' or ``economically significant'' under Executive Order 
13891.
    (c) Guidance documents that do not otherwise present novel issues, 
significant risks, interagency considerations, unusual circumstances, 
or other unique issues that could reasonably be considered as 
significant or economically significant, within the meanings of 
Executive Order 13891, will not typically require a designation by 
OIRA.


Sec.  1301.76  Notice-and-comment procedures.

    (a) Except as provided in paragraph (b) of this section, all 
proposed TVA guidance documents determined to be a ``significant 
guidance document'' shall be subject to the following informal notice-
and-comment procedures. TVA shall publish a document in the Federal 
Register announcing that a draft of the proposed significant guidance 
document is publicly available, shall post the draft significant 
guidance document on the TVA guidance portal site, shall invite public 
comment on the draft document for at least 30 days, and shall prepare 
and post a public response to significant concerns raised in the 
comments, as appropriate, on the TVA guidance portal site, 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 OGC finds, in consultation with OIRA, and 
the vice president of the proposing TVA BU, 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, OGC and the vice president of the proposing 
TVA BU may recommend to the TVA Chief Executive Officer (CEO) that a 
particular guidance document that is otherwise of importance to TVA's 
interests shall also be subject to the informal notice-and-comment 
procedures described in paragraph (a) of this section.


Sec.  1301.77  Petitions.

    Any person may petition the TVA Board of Directors to withdraw or 
modify a particular guidance document by submitting a written petition, 
addressed to the TVA Board of Directors, to OGC. TVA will endeavor to 
respond to all requests in a timely manner, and no later than 90 days 
after receipt of the request.


Sec.  1301.78  Rescinded guidance.

    No TVA BU may cite, use, or rely on guidance documents that are 
rescinded, except to establish historical facts.


Sec.  1301.79  Emergency situations, exigent circumstances, and legal 
requirement.

    In emergency situations or exigent circumstances, or when TVA is 
required by statutory deadline or court order to act more quickly than 
normal review procedures allow, TVA shall notify OIRA of the 
circumstances that foreclose compliance with these procedures, and 
shall comply with the requirements of this subpart, to the extent 
practicable, at the earliest opportunity after the exigent 
circumstances have ceased. Wherever practicable, TVA should schedule 
its guidance document review proceedings to permit sufficient time to 
comply with the procedures set forth in this subpart, given the nature 
and extent of the exigent circumstances.


Sec.  1301.80  No judicial review or enforceable rights.

    The regulations in this subpart are intended to improve TVA's 
issuance of guidance documents and processes and procedures that govern 
TVA's guidance documents. As such, this subpart is for the use of TVA 
personnel and contractors 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, TVA, its 
agencies, agents, contractors, or other entities, officers, employees, 
or any other person.

[FR Doc. 2020-19546 Filed 9-23-20; 8:45 am]
BILLING CODE 8120-08-P