Promoting the Rule of Law Through Improved Agency Guidance Documents, 60694-60696 [2020-18604]

Agencies

• DEPARTMENT OF COMMERCE

[Federal Register Volume 85, Number 188 (Monday, September 28, 2020)]
[Rules and Regulations]
[Pages 60694-60696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18604]


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DEPARTMENT OF COMMERCE

15 CFR Part 29

[Docket No. 200819-0223]
RIN 0605-AA57


Promoting the Rule of Law Through Improved Agency Guidance 
Documents

AGENCY: Department of Commerce.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Department of Commerce (Department) issues regulations to 
implement the requirements of an Executive order entitled ``Promoting 
the Rule of Law Through Improved Agency Guidance Documents'' signed 
October 9, 2019. Consistent with the Executive order, these regulations 
require that the Department clearly state that guidance documents 
issued by the Department do not bind the public, except as authorized 
by law or as incorporated into a contract; establish procedures for the 
public to petition for withdrawal or modification of guidance 
documents; and provide, with certain exceptions, that for significant 
guidance documents, the Department will submit those documents for 
review by the Office of Management and Budget's (OMB's) Office of 
Information and Regulatory Affairs (OIRA) and provide for a period of 
public notice and comment of at least 30 days.

DATES: The interim final rule is effective October 28, 2020. Comments 
on the interim final rule must be received by October 28, 2020.

ADDRESSES: You may submit comments by the following method:
    Electronic submissions: Submit all electronic public comments via 
the Federal e-Rulemaking portal: https://www.regulations.gov at docket 
number DOC-2020-0004.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Xenia Kler, Office of the Assistant 
General Counsel for Legislation and Regulation, 202-482-5354, or via 
email [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On October 9, 2019 (84 FR 55235), the President issued Executive 
Order 13891, entitled ``Promoting the Rule of Law Through Improved 
Agency Guidance Documents,'' which seeks to ensure that when Federal 
agencies issue guidance documents, the agencies: Do not treat those 
guidance documents alone as imposing binding obligations both in law 
and in practice, except as incorporated into a contract; take public 
input into account in formulating significant guidance documents; and 
make guidance documents readily available to the public.
    The Executive order, consistent with previous OMB memoranda, 
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.'' 
It further distinguishes guidance documents from, among other things, 
rules promulgated under the Administrative Procedure Act (APA) (5 
U.S.C. 553), which, as authorized by statute, may bind the public, and 
agency adjudications conducted under the APA (5 U.S.C. 554), which may 
bind parties on a case-by-case basis. Guidance documents may help 
clarify existing obligations, but unlike statutes, regulations, and 
adjudications, cannot themselves impose obligations on the public.
    The Department, through its component bureaus, issues a variety of 
guidance documents in an effort to assist businesses and the public in 
understanding their obligations, as well as agency procedures, under 
existing statutes and regulations. For example, when the National 
Oceanic and Atmospheric Administration modified its regulations 
pertaining to fishing quotas for widow rockfish in the Pacific 
Groundfish fishery, it issued a small entity compliance guide intended 
to provide to fishermen in the region a plain-language summary of the 
new regulations and how they would work. The guide includes information 
about why the new rules were issued, how fishermen could expect their 
existing allocations to be affected, relevant deadlines, and the 
opportunity to appeal.\1\ The United States Patent and Trademark 
Office, for its part, publishes and periodically updates a trial 
practice guide for patent bar attorneys practicing before the Patent 
Trial and Appeal Board.\2\ And the Enforcement and Compliance unit of 
the International Trade Administration, through its External User 
Guide, provides guidance to interested parties about how to navigate 
its ACCESS electronic filing system, which is used in trade proceedings 
involving unfair imports.\3\ These guidance documents, and others like 
them throughout the Department, are intended only to be helpful to the 
public, and none are intended to impose new or additional obligations. 
The Department's guidance documents are, furthermore, almost always 
published on the Department's website, or those of its bureaus, in 
order to help ensure they are readily available to the public.
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    \1\ https://archive.fisheries.noaa.gov/wcr/publications/fishery_management/groundfish/catch_shares/rockfish-compliance-guide-2017.pdf.
    \2\ https://www.uspto.gov/patents-application-process/patent-trial-and-appeal-board/ptab-trial-practice-guide-august-2018.
    \3\ https://access.trade.gov/help/ACCESS_User_Guide.pdf.
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    In order to further assist the public, going forward, the 
Department, as explained in an earlier notice (85 FR

[[Page 60695]]

12771), will provide access to its guidance documents through a 
centralized web portal, www.commerce.gov/guidance (``Web Portal''), 
dedicated to guidance documents, with links to additional, 
corresponding web pages maintained by individual bureaus of the 
Department. In compliance with Executive Order 13891, the Web Portal 
will note that the guidance documents lack the force and effect of law, 
except as authorized by law or as incorporated into a contract. In 
further compliance with Executive Order 13891, the Department will make 
accessible all documents determined by the Department to qualify as 
guidance documents currently in effect in the Web Portal. The 
Department will not retain in effect any guidance document without 
providing access to it in the Department's Web Portal. The Department's 
guidance documents issued in the future will also be accessible through 
the Web Portal. As appropriate, for each guidance document accessible 
through the Department's Web Portal, including the websites of the 
individual bureaus, the relevant website will provide: A concise name 
for the guidance document; an issuance date; a posting date; a unique 
identifier, the general topic addressed; and a brief summary.
    In addition, the Department has reviewed, and will continue to 
review, documents determined to qualify as guidance documents and, 
consistent with applicable law, will rescind those guidance documents 
that it determines should no longer be in effect. The Department will 
not cite, use, or rely on any rescinded guidance document except to 
establish historical facts.
    In issuing this interim final rule, the Department seeks both to 
codify its existing practices with respect to guidance documents and to 
implement the further requirements set forth in section 4 of Executive 
Order 13891. The interim final rule sets out procedures the Department 
will follow with respect to its guidance documents. These include: For 
all guidance documents, clearly stating that such documents do not bind 
the public, except as authorized by law or as incorporated into a 
contract; for significant guidance documents, providing, with certain 
exceptions, that the Department will submit such documents for OIRA 
review and provide a 30-day period for public notice and comment; and 
establishing procedures for the public to petition for withdrawal or 
modification of guidance documents.
    First, this rule provides that the Department will clearly indicate 
that guidance documents do not bind the public, except as authorized by 
law or as incorporated into a contract. Guidance documents are intended 
only to provide clarity to the public regarding existing requirements 
under the law or with respect to agency policies or practices.
    Second, this rule provides that the Department will submit for 
review by OIRA all significant guidance documents. When appropriate, 
the Department plans to seek from OIRA significance determinations for 
guidance documents in a similar manner as it does for rulemakings. In 
the event that OIRA determines that a guidance document is significant 
or economically significant as defined in section 2 of Executive Order 
13891, the Department will provide OIRA sufficient time to review the 
document prior to publishing the guidance document, unless the 
Department and the OIRA Administrator agree that exigency, safety, 
health, or other compelling cause warrant otherwise. Once OIRA's review 
is complete, the Department will, absent good cause, provide the public 
with a notice and comment period of at least 30 days before issuing a 
final guidance document, and provide a public response addressing major 
concerns that were raised. In the future, if the Department determines 
that a category of guidance documents is generally of limited 
importance to the public or routine, it may, consistent with section 
4(b) of Executive Order 13891, request a categorical exemption from 
OIRA review or a presumptive determination that such guidance documents 
are not significant.
    Finally, this rule provides procedures for the public to petition 
the Department for withdrawal or modification of guidance documents, 
and each of the Department's bureaus will designate one or more 
individuals whom members of the public can contact concerning such 
petitions.

Classification

    This interim final rule is a rule of agency organization, 
procedure, or practice, codifying in the CFR the Department's existing 
procedures and Executive Order 13891's requirements regarding the 
development, review, and clearance of guidance documents. Therefore, 
pursuant to 5 U.S.C. 553(b)(3)(A), notice and public comment are not 
required. Nonetheless, while no proposed rule is being issued, comments 
are solicited from the public on all aspects of this interim final 
rule, and the Department will consider all public comments received in 
the development of a subsequent final rule.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    This rule is not an Executive Order 13771 regulatory action because 
this rule is not significant under Executive Order 12866.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department has certified to the 
Chief Counsel for Advocacy of the Small Business Administration that 
this rule, if adopted, would not have a significant economic impact on 
a substantial number of small entities. This rule is purely an agency 
procedural rule for the use and management of guidance documents by the 
Department and does not burden the public. Therefore, this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule does not have any collection of information requirements 
under the Paperwork Reduction Act.

List of Subjects in 15 CFR Part 29

    Administrative practice and procedure, Categorical exemptions, 
Guidance documents, Procedures, Significance determinations.

    For reasons set forth in the preamble, 15 CFR part 29 is added to 
read as follows:

PART 29--PROCEDURES FOR GUIDANCE DOCUMENTS

Sec.
29.1 Definitions.
29.2 Procedures for issuing guidance documents.
29.3 Public petition for withdrawal or modification.
29.4 General provisions.

    Authority:  15 U.S.C. 1512.


Sec.  29.1   Definitions.

    As used in this part:
    Administrator means the Administrator of the Office of Management 
and Budget's Office of Information and Regulatory Affairs (OIRA).
    Department means the Department of Commerce including any of its 
component bureaus and agencies.
    Guidance document means a Department 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, 
but does not include the following:
    (1) Rules promulgated pursuant to notice and comment under 5 U.S.C. 
553, or similar statutory provisions;

[[Page 60696]]

    (2) Rules exempt from rulemaking requirements under 5 U.S.C. 
553(a);
    (3) Rules of Department organization, procedure, or practice;
    (4) Decisions of Department adjudications under 5 U.S.C. 554, or 
similar statutory provisions;
    (5) Internal guidance directed to the Department that is not 
intended to have substantial future effect on the behavior of regulated 
parties; or
    (6) Internal executive legal advice or legal opinions addressed to 
executive branch officials.
    Pre-enforcement ruling means a formal written communication by the 
Department in response to an inquiry from a person concerning 
compliance with legal requirements that interprets the law or applies 
the law to a specific set of facts supplied by the person. The term 
includes informal guidance under section 213 of the Small Business 
Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (Title 
II), as amended, letter rulings, advisory opinions, and no-action 
letters.
    Secretary means the Secretary of Commerce.
    Significant guidance document means a guidance document deemed to 
be significant by OIRA because it 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 serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, loan programs, or the rights and obligations of 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.  29.2   Procedures for issuing guidance documents.

    (a) The Department will indicate prominently that each guidance 
document does not bind the public, except as authorized by law or as 
incorporated into a contract.
    (b) The Department will comply with Executive Orders 12866, 13563, 
13609, 13771 and 13777 in issuing guidance documents.
    (c)(1) For a significant guidance document, as determined by the 
Administrator unless the Department and the Administrator agree that 
exigency, safety, health, or other compelling cause warrants an 
exception from some or all requirements, the Department will:
    (i) Provide a period of public notice and comment of at least 30 
days before issuance of a final guidance document, and a public 
response from the Department to major concerns raised in comments, 
except when the Department for good cause finds (and incorporates such 
finding and a brief statement of reasons therefor into the guidance 
document) that notice and public comment thereon are impracticable, 
unnecessary, or contrary to the public interest;
    (ii) Seek approval on a non-delegable basis by the Secretary or by 
a Department component head appointed by the President, before 
issuance; and
    (iii) Submit the significant guidance document for review by OIRA 
under Executive Order 12866 before issuance.
    (2) This section does not apply to pre-enforcement rulings.
    (3) This section does not apply to any document that falls within a 
class which the Administrator or the Administrator's designee has 
determined is exempt from consideration as significant guidance 
documents.


Sec.  29.3   Public petition for withdrawal or modification.

    (a) The public may petition for withdrawal or modification of a 
particular guidance document by submitting such petition through the 
designated website: Department of Commerce: www.commerce.gov/guidance; 
Bureau of Economic Analysis (BEA): www.bea.gov/guidance; Bureau of 
Industry and Security (BIS): www.bis.doc.gov/guidance; U.S. Census 
Bureau: www.census.gov/guidance; Economic Development Administration: 
www.eda.gov/guidance; International Trade Administration (ITA): 
www.trade.gov/guidance; Minority Business Development Agency (MBDA): 
www.mbda.gov/guidance; National Institute of Standards and Technology 
(NIST): www.nist.gov/guidance; National Oceanic and Atmospheric 
Administration (NOAA): www.noaa.gov/guidance; National Technical 
Information Service (NTIS): www.ntis.gov/guidance; National 
Telecommunications and Information Administration (NTIA): 
www.ntia.doc.gov/guidance; and U.S. Patent and Trademark Office 
(USPTO): www.uspto.gov/guidance.
    (b) The Department or the relevant individual bureau will provide a 
response to such petition within 90 days of receipt of the petition.


Sec.  29.4   General provisions.

    Notwithstanding any other provision in this part, nothing in this 
part shall apply:
    (a) To any action that pertains to foreign or military affairs, or 
to a national security or homeland security function of the United 
States (other than guidance documents involving procurement or the 
import or export of articles and services subject to the Department's 
jurisdiction);
    (b) To any action related to a criminal investigation or 
prosecution, including undercover operations, or any civil enforcement 
action or related to a criminal investigation or prosecution, including 
undercover operations, or any civil enforcement action or related 
investigation by the Department of Justice, including any action 
related to a civil investigative demand under 18 U.S.C. 1968;
    (c) To any investigation of misconduct by a Department employee or 
any disciplinary, corrective, or employment action taken against a 
Department employee;
    (d) To any document or information that is exempt from disclosure 
under the Freedom of Information Act (FOIA), 5 U.S.C. 552(b); or
    (e) In any other circumstance or proceeding to which application of 
this section, or any part of this part, would, in the judgment of the 
Secretary, undermine the national security.

    Dated: August 19, 2020.
Robert Blair,
Director of Policy and Strategic Planning.
[FR Doc. 2020-18604 Filed 9-25-20; 8:45 am]
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