Procedures for the Review and Clearance of USAID's Guidance Documents, 250-254 [2020-26352]
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250
Federal Register / Vol. 86, No. 2 / Tuesday, January 5, 2021 / Rules and Regulations
requirements. Comments in response to the
proposed rule noted the difficulties that
would be associated with creating numerous
separately managed accounts solely to evade
the comparatively low $50,000 MTA for
separately managed accounts. The MTA
Final Rule also defines separately managed
account so that the swaps of such account are
not subject to a netting of initial or variation
margin obligations. This potentially provides
further disincentive to create separately
managed accounts solely for the purpose of
evading the $50,000 MTA level for such
accounts.
IV. Conclusion
Mitigating systemic risk to the U.S.
financial system was a primary objective of
the Dodd-Frank Act in 2010, and of
subsequent Commission rulemakings to
implement Dodd-Frank, including the
Margin Rule adopted in 2016. The
Commission must remain committed to the
Margin Rule and vigilant for any large pool
of uncollateralized, uncleared swaps
exposure. Today’s targeted final rules, which
codify existing practices, include embedded
backstops, and provide tailored operational
enhancements to the Margin Rule, are
unlikely to present systemic risks.
I thank staff of the Market Participants
Division for their work on these final rules.
[FR Doc. 2020–27736 Filed 1–4–21; 8:45 am]
BILLING CODE 6351–01–P
AGENCY FOR INTERNATIONAL
DEVELOPMENT
22 CFR Part 212
RIN 0412–AB00
Procedures for the Review and
Clearance of USAID’s Guidance
Documents
U.S. Agency for International
Development (USAID).
ACTION: Final rule.
AGENCY:
This final rule amends
USAID’s regulations to implement
Executive Order (E.O.) 13891,
Promoting the Rule of Law Through
Improved Agency Guidance Documents.
This rule sets forth processes and
procedures for USAID to issue guidance
documents as defined in the E.O. in a
manner consistent with the
requirements of Federal law applicable
to all employees involved in inherently
governmental deliberative decisionmaking on policy and employees
involved in related administrative
processes.
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SUMMARY:
This final rule is effective
January 5, 2021.
DATES:
FOR FURTHER INFORMATION CONTACT:
Tyrone K. Brown, Guidance Mailbox,
(202) 355–7450, tybrown@usaid.gov.
SUPPLEMENTARY INFORMATION:
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Background
On October 9, 2019 (84 FR 55235),
President Trump issued Executive
Order (E.O.) 13891, Promoting the Rule
of Law Through Improved Agency
Guidance Documents. The E.O. asserts
that, except as mandated by applicable
law or incorporated into a binding
contract or agreement, Federal
Departments and Agencies should treat
guidance documents as non-binding on
outside entities both in law and
practice. To further the principle that
Federal guidance should be transparent
and made readily available to the
public, Section 3 of the E.O. requires
that Departments and Agencies make
guidance documents available on a
single, searchable, indexed public
website. Section 3 also requires that
Departments and Agencies review their
guidance documents and, consistent
with applicable law, rescind those that
should no longer be in effect. Lastly,
Section 4 requires that each Department
and Agency put in place processes and
procedures for issuing guidance
documents as defined by the E.O.
In accordance with that direction, to
codify our processes and procedures for
guidance documents, the U.S. Agency
for International Development (USAID)
is amending our Automated Directives
System (ADS) to update ADS Chapter
501, which governs the clearance
process for reviewing and issuing
Agency policy documents, to include
guidance documents as defined by the
E.O. USAID’s formal clearance process
ensures that all guidance documents
receive legal review and, when
appropriate, review and approval from
USAID’s Regulatory Reform Officer,
who is the Agency’s Deputy
Administrator.
Before the Agency issues guidance
documents as defined by E.O. 13891, we
must review them to ensure they are
written in plain language and do not
impose any substantive legal
requirements above and beyond statute
or regulation. If a guidance document
purports to describe, approve, or
recommend specific conduct not
required by existing laws, statutes, and
regulations, then it must include a clear
and prominent statement that the
contents of the guidance document do
not have the force and effect of law and
are not meant to bind the public in any
way, and that the guidance document is
intended only to provide clarity to the
public regarding existing requirements
under the law or internal Agency
policies and procedures applicable to
our staff.
According to E.O. 13891, guidance
documents shall also be subject to
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notice-and-comment procedures. The
E.O. mandates that Departments and
Agencies shall publish a notice in the
Federal Register to announce that a
draft of the proposed guidance
document is publicly available; shall
post the draft guidance document on the
guidance portal of the Department or
Agency; shall invite public comment on
the draft document for a minimum of 30
days; and shall prepare and post a
public response to major concerns
raised in the comments, as appropriate,
on its guidance portal, when the
Department or Agency finalizes and
issues the guidance document.
Consistent with E.O. 13891, USAID
proposes procedures to allow the public
to petition for the modification or
withdrawal of an active guidance
document posted on the Agency’s
guidance portal. USAID’s guidance
portal will provide clear and specific
instructions on how to request the
modification or withdrawal of an active
guidance document.
The Office of the General Counsel
(GC) at USAID has determined that the
Agency has no ‘‘guidance documents’’
as defined under E.O. 13891. USAID’s
internal guidance materials do not
qualify as ‘‘guidance documents’’ under
the E.O., nor do grant and contract
solicitations and awards; Country and
Regional Development Cooperation
Strategies; Agency programmatic
Policies and Strategies; and purely
internal Agency policies not intended to
have substantial effect on the behavior
of regulated parties, such as Chapters of
our ADS. The procedures contained in
this final rule apply to all guidance
documents, which USAID defines as
any statement of Agency policy or
interpretation that concerns a statute,
regulation, or technical matter within
the jurisdiction of the Agency that is
intended to have general applicability
and future effect on the behavior of
regulated parties, but which is not
intended to have the force or effect of
law in its own right and is not otherwise
required by statute to satisfy the
rulemaking procedures of the
Administrative Procedure Act.
Notice and Comment Not Required
This rule relates to internal Agency
management. Therefore, pursuant to
Section 553(a)(2) of Title 5 of the United
States Code (U.S.C.), notice of proposed
rulemaking and opportunity to
comment are not required.
Procedural Requirements
The Office of Management and Budget
(OMB) has determined that this
regulatory action does not meet the
criteria for significant regulatory action
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pursuant to E.O. 12866, Regulatory
Planning and Review. Additionally,
because this rule does not meet the
definition of a significant regulatory
action, it does not trigger the
requirements contained in E.O. 13771.
The regulations added by this rule are
intended to improve the internal
management of USAID. As such, it is for
the use of USAID personnel only and is
not intended to, and does not, create
any right or benefit, substantive or
procedural, enforceable at law or in
equity by any party against the United
States, its Departments and Agencies or
other entities, its officers or employees,
or any other person. Accordingly, we
expect the economic impact of this rule,
if any, to be minimal.
Regulatory Flexibility Act
Because notice-and-comment
rulemaking is not necessary for this
rule, the provisions of the Regulatory
Flexibility Act, Section 604 of Title 5 of
the U.S.C. do not apply.
Paperwork Reduction Act
This final rule imposes no new
reporting or recordkeeping requirements
that necessitate clearance by OMB.
List of Subjects in 22 CFR Part 212
Administrative practice, Freedom of
Information Act (FOIA), Procedures.
In consideration of the foregoing, and
under the authority of E.O. 13891, the
U.S. Agency for International
Development (USAID) amends 22 CFR
part 212 as follows:
■ 1. The authority citation for part 22
continues to read as follows:
Authority: Pub. L. 114–185, 130 Stat. 538
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Subpart N—Rulemaking
212.25. Responsibilities.
Subpart O—Procedures for Guidance
Documents
212.26. General.
212.27. Review and clearance by the Office
of the Bureau for Management.
212.28. Requirements for clearance.
212.29. Public access to effective guidance
documents.
212.30. Good-faith cost estimates.
212.31. Approved procedures for guidance
documents identified as ‘‘significant’’ or
‘‘otherwise of importance to the
Agency’s interests.’’
212.32. Definitions of ‘‘significant guidance
document’’ and guidance documents that
are ‘‘otherwise of importance to the
Agency’s interests.’’
212.33. Designation procedures.
212.34. Notice-and-comment procedures.
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§ 212.25
Responsibilities.
(a) The Deputy Administrator serves
as USAID’s Regulatory Reform Officer
(RRO). The RRO oversees
implementation of regulatory-reform
initiatives and policies to ensure USAID
effectively manages regulatory burdens,
consistent with applicable law.
(b) The Assistant Administrator for
Management serves as USAID’s
Regulatory Policy Officer (RPO) and
provides oversight for the Agency’s
internal rulemaking process. The RPO
must be involved in each stage of the
regulatory process to foster the
development of effective, innovative,
and least-burdensome regulations.
(c) The Office of Management Policy,
Budget, and Performance in the Bureau
for Management (M) coordinates the
rulemaking process and ensures the
Agency’s rulemaking activities comply
with all statutory and regulatory
requirements.
(d) The Initiating Program Office (IPO)
at USAID is the Bureau or Independent
Office (B/IO) that provides subjectmatter expertise on regulatory matters
that affect the IPO’s programs.
(e) The Office of the General Counsel
at USAID provides guidance on legal
and procedural requirements during the
Agency’s rulemaking process.
§ 212.26
Sec.
16:32 Jan 04, 2021
Subpart N—Rulemaking
Subpart O—Guidance Procedures
2. Add subparts N and O, consisting
of § 212.25 through 212.40, to read as
follows:
■
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212.35. Petitions for guidance.
212.36. Rescinded guidance.
212.37. Exigent circumstances.
212.38. Reports to Congress and the
Government Accountability Office.
212.39. No judicial review or enforceable
rights.
212.40. Use of guidance documents.
General.
(a) This subpart governs all employees
of the United States Agency for
International Development (USAID)
involved in any phase of issuing Agency
guidance documents as defined by
under E.O. 13891.
(b) This subpart applies to all
guidance documents issued by all
components of the Agency after January
5, 2021.
(c) For purposes of this subpart, the
term ‘‘guidance document’’ includes
any statement of Agency policy or
interpretation that concerns a statute,
regulation, or technical matter within
the jurisdiction of the Agency that is
intended to have general applicability
and future effect, but is not intended to
have the force or effect of law in its own
right and is not otherwise required by
statute to be implemented through the
rulemaking procedures specified in 5
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U.S.C. 553. The term is not confined to
formal written documents; guidance
may come in a variety of forms,
including (but not limited to) letters,
memoranda, circulars, bulletins, and
advisories, and may include video,
audio, and web-based formats. See OMB
Bulletin 07–02, Agency Good Guidance
Practices.
(d) This subpart does not apply to the
following:
(1) Rules exempt from rulemaking
requirements under 5 U.S.C. 553(a);
(2) Rules of Agency organization,
procedure, or practice;
(3) Decisions of Agency adjudications
under 5 U.S.C. 554 or similar statutory
provisions;
(4) Internal executive management
legal advice or legal advisory opinions
addressed to executive officials;
(5) Agency statements of specific
applicability, including advisory or
legal opinions directed to particular
parties about circumstance-specific
questions (e.g., case or investigatory
letters responding to complaints,
warning letters), notices regarding
particular locations or facilities (e.g.,
guidance that pertains to the use,
operation, or control of a U.S.
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;
(6) Legal briefs, other court filings, or
positions taken in litigation or
enforcement actions;
(7) Agency statements that do not set
forth a policy on a statutory, regulatory,
or technical issue or an interpretation of
a statute or regulation, including
speeches and individual presentations,
editorials, media interviews, press
materials, or Congressional testimony
that do not set forth for the first time a
new regulatory policy;
(8) Guidance pertaining to military or
foreign-affairs functions;
(9) Grant solicitations and awards;
(10) Contract solicitations and awards;
or
(11) Purely internal Agency guidance
policies, such as Chapters of the ADS
directed solely to USAID’s employees,
or to other Federal Departments and
Agencies not intended to have
substantial future effect on the behavior
of regulated parties; USAID’s Country/
Regional Development Cooperation
Strategies; the Agency’s programmatic
Policies and Strategies; Acquisition and
Assistance Policy Directives (AAPDs);
Application Guidelines; COVID–19
Guidance; Food for Peace Information
Bulletins (FFPIBs); Guidance and Tools
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for Global Food-Security Programs;
Procurement Executive Bulletins (PEBs);
Standard Provisions for the Protecting
Life in Global Health Assistance
(PLGHA) Policy; and documents in the
USAID Policy Registry.
212.40.
§ 212.27 Review and clearance by the
Office of Management Policy, Budget, and
Performance in the Bureau for
Management.
All USAID guidance documents, as
defined by E.O. 13891 and § 212.26,
require review and clearance in
accordance with this subpart. The
Bureau for Management (M Bureau)
must review and clear any guidance a
Bureau or Independent Office within
USAID proposes to issue.
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§ 212.28
Requirements for clearance.
USAID’s review and clearance of
guidance documents shall ensure that
each one that a B/IO within the Agency
proposes to issue satisfies the following
requirements:
(a) The guidance document complies
with all relevant statutes and
regulations (including any statutory
deadlines for the Agency’s action);
(b) The guidance document identifies
or includes the following:
(1) The term ‘‘guidance’’ or its
functional equivalent;
(2) The issuing B/IO within the
Agency;
(3) A unique identifier, including, at
a minimum, the date of issuance and
title of the document and a Regulation
Identifier Number (RIN), if applicable;
(4) The activity or entities to which
the guidance applies;
(5) Citations to applicable statutes and
regulations;
(6) A statement that notes 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
(7) A short summary at the top of the
document of the subject matter covered
in the guidance document.
(c) The guidance document avoids
using mandatory language, such as
‘‘shall,’’ ‘‘must,’’ ‘‘required,’’ or
‘‘requirement,’’ unless the language is
describing an established statutory or
regulatory requirement, or is addressed
to USAID’s staff and will not foreclose
the Agency’s consideration of positions
advanced by affected private parties;
and
(d) The guidance document is written
in plain and understandable English.
All guidance documents should include
a clear and prominent statement to
declare that the contents of the
document do not have the force and
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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 USAID’s
policies.
§ 212.29 Public access to effective
guidance documents.
Each B/IO within USAID responsible
for issuing guidance documents shall do
the following:
(a) Ensure all effective guidance
documents, identified by a unique
identifier that includes, at a minimum,
the document’s title and date of
issuance or revision and its RIN, if
applicable, are on USAID’s guidance
portal in a single, searchable, indexed
database and are available to the public
in accordance with 5 U.S.C. 552(a)(2);
(b) Note on USAID’s guidance portal
that guidance documents lack the force
and effect of law, except as authorized
by law and are not meant to bind the
public in anyway;
(c) Maintain and advertise USAID’s
guidance portal as a means for the
public to comment electronically on any
guidance documents that are subject to
the notice-and-comment procedures
described in § 212.34 and to submit
requests electronically for the issuance,
reconsideration, modification, or
rescission of guidance documents in
accordance with § 212.26; and
(d) The Bureau for Management is the
office designated to receive and address
complaints from the public that USAID
is not following the requirements of
OMB’s Good Guidance Bulletin, or is
improperly treating a guidance
document as a binding requirement.
§ 212.30
Good-faith cost estimates.
Even though not legally binding, some
Agency guidance could result in a
substantial economic impact. For
example, the issuance of Agency
guidance could induce private parties to
alter their conduct to conform to
recommended standards or practices,
such that they could incur costs beyond
the costs of complying with existing
statutes and regulations. While it might
be difficult to predict with precision the
economic impact of voluntary guidance,
to the extent practicable the proposing
B/IO within USAID shall make a goodfaith effort to estimate the likely
economic cost impact of the guidance
document to determine whether it might
qualify as ‘‘significant.’’ When a B/IO is
assessing or explaining whether it
believes a guidance document is
significant, it should, at a minimum,
provide the same level of analysis that
would be required for a determination
under the Congressional Review Act
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(M–19–14), Guidance on Compliance
with the Congressional Review Act, that
the guidance document is major. When
USAID determines that a guidance
document will be ‘‘economically
significant,’’ the proposing B/IO should
conduct and publish a regulatoryimpact analysis of the sort that would
accompany an economically significant
rulemaking, to the extent reasonably
possible (in conformance with E.O.
12866).
§ 212.31 Approval procedures for
guidance documents identified as
‘‘significant’’ or ‘‘otherwise of importance to
the Agency’s interests.’’
(a) For guidance a USAID B/IO
proposes to issue, if there is a
reasonable possibility a guidance
document could be as ‘‘significant’’ or
‘‘otherwise of importance to the
Agency’s interests’’ within the meaning
of § 212.31, or if the B/IO is uncertain
whether the guidance could qualify as
such, the B/IO should email a copy of
the proposed guidance document (or a
summary of it) to the M Bureau for
review and further direction before
issuance.
(b) As with significant regulations,
after appropriate internal consultation
and review, the M Bureau will submit
significant guidance documents that are
otherwise of importance to the Agency’s
interests to the Office of Information
and Regulatory Affairs (OIRA) within
OMB for review and designation.
(c) If OMB/OIRA determines a
guidance document from a USAID B/IO
not to be either significant or otherwise
of importance to the Agency’s interests
within the meaning of § 212.31, the
Bureau for Management may proceed
with issuance. For each guidance
document coordinated through the
Office of the Administrator, the issuing
B/IO should include a statement in the
Action Memorandum to indicate that
the OMB/OIRA has reviewed and
cleared the guidance document in
accordance with this process.
§ 212.32 Definitions of ‘‘significant
guidance document’’ and guidance
documents that are ‘‘otherwise of
importance to the Agency’s interests.’’
(a) The term ‘‘significant guidance
document’’ means a guidance document
USAID will disseminate to regulated
entities or the general public and that
might reasonably be anticipated:
(1) To lead to an annual effect on the
U.S. 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;
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(2) To create serious inconsistency or
otherwise interfere with an action taken
or planned by another Federal
Department or Agency;
(3) To alter materially the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) To raise novel legal or policy
issues that arise out of legal mandates,
the President’s priorities, or the
principles set forth in E.O. 12866, as
further amended.
(b) The term ‘‘significant guidance
document’’ does not include the
categories of documents excluded by
§ 212.26 or any other category of
guidance documents exempted in
writing by OMB/OIRA.
(c) OMB/OIRA must review
significant and economically significant
guidance documents under E.O. 12866
before issuance, and they must
demonstrate compliance with the
applicable requirements for regulations
or rules, including significant regulatory
actions, set forth in E.O. 12866, E.O.
13563, E.O. 13609, E.O. 13771, and E.O.
13777.
(d) Even if not ‘‘significant,’’ USAID
will consider a guidance document of
regulatory impact as ‘‘otherwise of
importance to the Agency’s interests’’
within the meaning of this paragraph if
it might reasonably be anticipated:
(1) To relate to a major program,
policy, or activity of the Agency or a
high-profile issue that is pending for
decision before the Agency;
(2) To involve one of the
Administrator’s top policy priorities;
(3) To garner significant press or
Congressional attention; or
(4) To raise significant questions or
concerns from constituencies of
importance to the Agency, such as
Committees of Congress, States or
Indian tribes, the White House or other
Departments and Agencies of the
Executive Branch, courts, consumer or
public-interest groups, or leading
representatives of industry.
(e) As noted in paragraphs (a) through
(d) of this section, ‘‘guidance
documents’’ for the purposes of this
rule, including this subpart, do not
include those documents identified in
this subpart O.
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§ 212.33
Designation procedures.
(a) The Bureau for Management may
request a B/IO within USAID to prepare
a designation request for certain
guidance documents. Designation
requests must include the following
information:
(1) A summary of the guidance
document; and
(2) The B/IO’s recommended
designation of ‘‘not significant,’’
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‘‘significant,’’ or ‘‘economically
significant,’’ as well as a justification for
that designation.
(b) Except as otherwise provided in
paragraph (c) of this section, the Agency
will seek significance determinations
from OMB/OIRA for certain guidance
documents, as appropriate, in the same
manner as for rulemakings. Prior to
publishing these guidance documents,
after internal consultation and review,
the Bureau for Management shall submit
the document to OMB/OIRA for review
under the provisions in Section 6 of
E.O. 12866 to determine if it meets the
definition of ‘‘significant’’ or
‘‘economically significant.’’
(c) All ‘‘guidance documents’’ as with
rulemakings, receive a significance
determination from OMB/OIRA, unless
explicitly exempt from E.O. 12866. Note
that the only documents that do not
receive designations are those that fall
outside the definition of ‘‘guidance’’ or
within a group categorically considered
nonsignificant as agreed upon by OMB/
OIRA in Memorandum M–20–02).
§ 212.34
Notice-and-comment procedures.
(a) Except as provided in paragraph
(b) of this section, all proposed USAID
guidance documents determined to be a
‘‘significant guidance document’’ within
the meaning of § 212.31 shall be subject
to the following notice-and-comment
procedures:
(1) The issuing B/IO within USAID
shall publish a notice in the Federal
Register to announce that a draft of the
proposed guidance document is
publicly available; post the draft
guidance document on the Agency’s
guidance portal; invite public comment
on the draft document for a minimum
of 30 days; and
(2) Prepare and post a public response
to major concerns raised in the
comments, as appropriate, on USAID’s
guidance portal, when the Agency
finalizes and issues the guidance
document.
(b) The requirements of paragraph (a)
of this section will not apply to any
significant guidance document or
categories of significant guidance
documents for which the Bureau for
Management finds, in consultation with
GC, the proposing B/IO, and USAID’s
RRO, 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 therefore in the guidance
issued).
(c) Where appropriate, the Bureau for
Management and the proposing B/IO
may recommend to the RRO that a
particular guidance document that is
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253
otherwise of importance to the Agency’s
interests shall also be subject to the
notice-and-comment procedures
described in paragraph (a) of this
section.
§ 212.35
Petitions for guidance.
Any person may petition the Agency
to withdraw or modify a particular
guidance document by using the
procedures found in § 212.26(c). USAID
should respond to all requests in a
timely manner, but no later than 90 days
after receipt of the request.
§ 212.36
Rescinded guidance.
No B/IO within USAID may cite, use,
or rely on guidance documents that are
rescinded, except to establish historical
facts.
§ 212.37
Exigent circumstances.
In emergency situations, or when a
statutory deadline or court order
requires the issuing B/IO within USAID
to act more quickly than normal review
procedures allow, the issuing B/IO shall
coordinate with the Bureau for
Management to notify OMB/OIRA as
soon as possible and, to the extent
practicable, shall comply with the
requirements of this subpart at the
earliest opportunity. Wherever
practicable, the issuing B/IO should
schedule its proceedings to permit
sufficient time to comply with the
procedures set forth in this subpart.
§ 212.38 Reports to Congress and the
Government Accountability Office.
Unless otherwise determined in
writing, it is the policy of USAID that
upon issuing a guidance document
determined to be ‘‘significant’’ within
the meaning of § 212.31 the issuing B/
IO shall submit a report to Congress and
the Government Accountability Office
in accordance with the procedures
described in 5 U.S.C. 801 (the
Congressional Review Act [CRA]).
Under the CRA, USAID must coordinate
with OMB/OIRA regarding a major
determination for all guidance
documents, irrespective of whether the
Agency otherwise would submit a rule
for regulatory review (Memorandum19–14).
§ 212.39
rights.
No judicial review or enforceable
This subpart is intended to improve
the internal management of USAID. As
such, it is for USAID personnel only and
is not intended to, and does not, create
any right or benefit, substantive or
procedural, enforceable at law or in
equity by any party against the United
States, its Departments and Agencies or
other entities, its officers or employees,
or any other person.
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254
§ 212.40
Federal Register / Vol. 86, No. 2 / Tuesday, January 5, 2021 / Rules and Regulations
Use of guidance documents.
Guidance documents cannot create
binding requirements that do not
already exist by statute or regulation.
Accordingly, non-compliance with
guidance documents cannot be used as
a basis for proving violations of
applicable law. Guidance documents
can do no more, with respect to
prohibition of conduct, than articulate
USAID’s understanding of how a statute
or regulation applies to particular
circumstances.
Ruth Buckley,
Acting Performance Improvement Officer/
Acting Office Director, Bureau for
Management Office of Management Policy,
Budget and Operational Performance.
[FR Doc. 2020–26352 Filed 1–4–21; 8:45 am]
BILLING CODE P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9942]
RIN 1545–BP53
Small Business Taxpayer Exceptions
Under Sections 263A, 448, 460 and 471
Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulations.
AGENCY:
This document contains final
regulations to implement legislative
changes to sections 263A, 448, 460, and
471 of the Internal Revenue Code (Code)
that simplify the application of those tax
accounting provisions for certain
businesses having average annual gross
receipts that do not exceed $25,000,000,
adjusted for inflation. This document
also contains final regulations regarding
certain special accounting rules for
long-term contracts under section 460 to
implement legislative changes
applicable to corporate taxpayers. The
final regulations generally affect
taxpayers with average annual gross
receipts of not more than $25 million,
as adjusted for inflation.
DATES:
Effective date: The regulations are
effective on January 5, 2021.
Applicability dates: For dates of
applicability, see §§ 1.263A–1(a)(2)(i),
1.263A–1(m)(6), 1.263A–2(g)(4),
1.263A–3(f)(2), 1.263A–4(g)(2), 1.263A–
7(a)(4)(ii), 1.381(c)(5)–1(f), 1.446–1(c)(3),
1.448–2(h), 1.448–3(h), 1.460–1(h)(3),
1.460–3(d), 1.460–4(i), 1.460–6(k), and
1.471–1(c).
FOR FURTHER INFORMATION CONTACT:
Concerning §§ 1.460–1 through 1.460–6,
jbell on DSKJLSW7X2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:32 Jan 04, 2021
Jkt 253001
Innessa Glazman, (202) 317–7006;
concerning all other regulations in this
document, Anna Gleysteen, (202) 317–
7007.
SUPPLEMENTARY INFORMATION:
Background
This document contains amendments
to the Income Tax Regulations (26 CFR
part 1) to implement statutory
amendments to sections 263A, 448, 460,
and 471 of the Code made by section
13102 of Public Law 115–97 (131 Stat.
2054), commonly referred to as the Tax
Cuts and Jobs Act (TCJA). These
statutory amendments generally
simplify the application of the method
of accounting rules under those
provisions to certain businesses (other
than tax shelters) with average annual
gross receipts that do not exceed
$25,000,000, adjusted for inflation.
The uniform capitalization (UNICAP)
rules of section 263A provide that, in
general, the direct costs and the
properly allocable share of the indirect
costs of real or tangible personal
property produced, or real or personal
property described in section 1221(a)(1)
acquired for resale, cannot be deducted
but must either be capitalized into the
basis of the property or included in
inventory costs, as applicable. Before
the enactment of the TCJA, certain types
of taxpayers and certain types of
property were exempt from UNICAP,
but there was no generally applicable
exemption based on gross receipts.
Section 448(a) generally prohibits C
corporations, partnerships with a C
corporation as a partner, and tax
shelters from using the cash receipts
and disbursements method of
accounting (cash method). However,
section 448(b)(3) provides that section
448(a) does not apply to C corporations
and partnerships with a C corporation
as a partner that meet the gross receipts
test of section 448(c). Prior to the TCJA’s
enactment, a taxpayer met the gross
receipts test of section 448(c) if, for all
taxable years preceding the current
taxable year, the average annual gross
receipts of the taxpayer (or any
predecessor) for any 3-taxable-year
period did not exceed $5 million.
Section 460(a) provides that income
from a long-term contract must be
determined using the percentage-ofcompletion method (PCM). A long-term
contract is defined in section 460(f) as
generally any contract for the
manufacture, building, installation, or
construction of property if such contract
is not completed within the taxable year
in which such contract is entered into.
Subject to special rules in section
460(b)(3), section 460(b)(1)(A) generally
provides that the percentage of
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
completion of a long-term contract is
determined by comparing costs
allocated to the contract under section
460(c) and incurred before the close of
the taxable year with the estimated total
contract costs. Prior to the TCJA, section
460(e)(1)(B) provided an exemption
from the PCM for a long-term
construction contract of a taxpayer who
estimated that the contract would be
completed within the 2-year period
from the commencement of the contract
(two-year rule), and whose average
annual gross receipts for the 3-taxableyear period ending with the year
preceding the year the contract was
entered into did not exceed $10 million
(Section 460(e) gross receipts test).
Section 471(a) requires inventories to
be taken by a taxpayer when, in the
opinion of the Secretary of the Treasury
or his delegate (Secretary), taking an
inventory is necessary to determine the
income of the taxpayer. Section 1.471–
1 requires the taking of an inventory at
the beginning and end of each taxable
year in which the production, purchase,
or sale of merchandise is an incomeproducing factor. Additionally, when an
inventory is required to be taken,
§ 1.446–1(c)(1)(iv) and (c)(2) require that
an accrual method be used for
purchases and sales. Prior to the
enactment of the TCJA, there were no
regulatory exceptions from the
requirement to take an inventory under
§ 1.471–1.
The statutory amendments of the
TCJA increase the gross receipts test
amount under section 448(c) to
$25,000,000, adjusted for inflation, for
eligibility to use the cash method and
also exempt taxpayers, other than a tax
shelter under section 448(a)(3), meeting
the gross receipts test (Section 448(c)
Gross Receipts Test) from: (1) The
UNICAP rules under section 263A; (2)
the requirement to use the percentageof-completion method under section
460 provided other requirements of
section 460(e) are satisfied; and (3) the
requirement to take inventories under
section 471(a) if their inventory is
treated as non-incidental materials and
supplies, or if the method of accounting
for their inventory conforms with the
method reflected on their applicable
financial statement (AFS), or if they do
not have an AFS, their books and
records prepared in accordance with
their accounting procedures. These
amendments generally apply to taxable
years beginning after December 31,
2017. The amendments to section 460
apply to contracts entered into after
December 31, 2017, in taxable years
ending after December 31, 2017.
On August 20, 2018, the Department
of the Treasury (Treasury Department)
E:\FR\FM\05JAR1.SGM
05JAR1
]]>Agencies
[Federal Register Volume 86, Number 2 (Tuesday, January 5, 2021)]
[Rules and Regulations]
[Pages 250-254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26352]
=======================================================================
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AGENCY FOR INTERNATIONAL DEVELOPMENT
22 CFR Part 212
RIN 0412-AB00
Procedures for the Review and Clearance of USAID's Guidance
Documents
AGENCY: U.S. Agency for International Development (USAID).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends USAID's regulations to implement
Executive Order (E.O.) 13891, Promoting the Rule of Law Through
Improved Agency Guidance Documents. This rule sets forth processes and
procedures for USAID to issue guidance documents as defined in the E.O.
in a manner consistent with the requirements of Federal law applicable
to all employees involved in inherently governmental deliberative
decision-making on policy and employees involved in related
administrative processes.
DATES: This final rule is effective January 5, 2021.
FOR FURTHER INFORMATION CONTACT: Tyrone K. Brown, Guidance Mailbox,
(202) 355-7450, [email protected].
SUPPLEMENTARY INFORMATION:
Background
On October 9, 2019 (84 FR 55235), President Trump issued Executive
Order (E.O.) 13891, Promoting the Rule of Law Through Improved Agency
Guidance Documents. The E.O. asserts that, except as mandated by
applicable law or incorporated into a binding contract or agreement,
Federal Departments and Agencies should treat guidance documents as
non-binding on outside entities both in law and practice. To further
the principle that Federal guidance should be transparent and made
readily available to the public, Section 3 of the E.O. requires that
Departments and Agencies make guidance documents available on a single,
searchable, indexed public website. Section 3 also requires that
Departments and Agencies review their guidance documents and,
consistent with applicable law, rescind those that should no longer be
in effect. Lastly, Section 4 requires that each Department and Agency
put in place processes and procedures for issuing guidance documents as
defined by the E.O.
In accordance with that direction, to codify our processes and
procedures for guidance documents, the U.S. Agency for International
Development (USAID) is amending our Automated Directives System (ADS)
to update ADS Chapter 501, which governs the clearance process for
reviewing and issuing Agency policy documents, to include guidance
documents as defined by the E.O. USAID's formal clearance process
ensures that all guidance documents receive legal review and, when
appropriate, review and approval from USAID's Regulatory Reform
Officer, who is the Agency's Deputy Administrator.
Before the Agency issues guidance documents as defined by E.O.
13891, we must review them to ensure they are written in plain language
and do not impose any substantive legal requirements above and beyond
statute or regulation. If a guidance document purports to describe,
approve, or recommend specific conduct not required by existing laws,
statutes, and regulations, then it must include a clear and prominent
statement that the contents of the guidance document do not have the
force and effect of law and are not meant to bind the public in any
way, and that the guidance document is intended only to provide clarity
to the public regarding existing requirements under the law or internal
Agency policies and procedures applicable to our staff.
According to E.O. 13891, guidance documents shall also be subject
to notice-and-comment procedures. The E.O. mandates that Departments
and Agencies shall publish a notice in the Federal Register to announce
that a draft of the proposed guidance document is publicly available;
shall post the draft guidance document on the guidance portal of the
Department or Agency; shall invite public comment on the draft document
for a minimum of 30 days; and shall prepare and post a public response
to major concerns raised in the comments, as appropriate, on its
guidance portal, when the Department or Agency finalizes and issues the
guidance document. Consistent with E.O. 13891, USAID proposes
procedures to allow the public to petition for the modification or
withdrawal of an active guidance document posted on the Agency's
guidance portal. USAID's guidance portal will provide clear and
specific instructions on how to request the modification or withdrawal
of an active guidance document.
The Office of the General Counsel (GC) at USAID has determined that
the Agency has no ``guidance documents'' as defined under E.O. 13891.
USAID's internal guidance materials do not qualify as ``guidance
documents'' under the E.O., nor do grant and contract solicitations and
awards; Country and Regional Development Cooperation Strategies; Agency
programmatic Policies and Strategies; and purely internal Agency
policies not intended to have substantial effect on the behavior of
regulated parties, such as Chapters of our ADS. The procedures
contained in this final rule apply to all guidance documents, which
USAID defines as any statement of Agency policy or interpretation that
concerns a statute, regulation, or technical matter within the
jurisdiction of the Agency that is intended to have general
applicability and future effect on the behavior of regulated parties,
but which is not intended to have the force or effect of law in its own
right and is not otherwise required by statute to satisfy the
rulemaking procedures of the Administrative Procedure Act.
Notice and Comment Not Required
This rule relates to internal Agency management. Therefore,
pursuant to Section 553(a)(2) of Title 5 of the United States Code
(U.S.C.), notice of proposed rulemaking and opportunity to comment are
not required.
Procedural Requirements
The Office of Management and Budget (OMB) has determined that this
regulatory action does not meet the criteria for significant regulatory
action
[[Page 251]]
pursuant to E.O. 12866, Regulatory Planning and Review. Additionally,
because this rule does not meet the definition of a significant
regulatory action, it does not trigger the requirements contained in
E.O. 13771.
The regulations added by this rule are intended to improve the
internal management of USAID. As such, it is for the use of USAID
personnel only and is not intended to, and does not, create any right
or benefit, substantive or procedural, enforceable at law or in equity
by any party against the United States, its Departments and Agencies or
other entities, its officers or employees, or any other person.
Accordingly, we expect the economic impact of this rule, if any, to be
minimal.
Regulatory Flexibility Act
Because notice-and-comment rulemaking is not necessary for this
rule, the provisions of the Regulatory Flexibility Act, Section 604 of
Title 5 of the U.S.C. do not apply.
Paperwork Reduction Act
This final rule imposes no new reporting or recordkeeping
requirements that necessitate clearance by OMB.
List of Subjects in 22 CFR Part 212
Administrative practice, Freedom of Information Act (FOIA),
Procedures.
In consideration of the foregoing, and under the authority of E.O.
13891, the U.S. Agency for International Development (USAID) amends 22
CFR part 212 as follows:
0
1. The authority citation for part 22 continues to read as follows:
Authority: Pub. L. 114-185, 130 Stat. 538
0
2. Add subparts N and O, consisting of Sec. 212.25 through 212.40, to
read as follows:
Sec.
Subpart N--Rulemaking
212.25. Responsibilities.
Subpart O--Procedures for Guidance Documents
212.26. General.
212.27. Review and clearance by the Office of the Bureau for
Management.
212.28. Requirements for clearance.
212.29. Public access to effective guidance documents.
212.30. Good-faith cost estimates.
212.31. Approved procedures for guidance documents identified as
``significant'' or ``otherwise of importance to the Agency's
interests.''
212.32. Definitions of ``significant guidance document'' and
guidance documents that are ``otherwise of importance to the
Agency's interests.''
212.33. Designation procedures.
212.34. Notice-and-comment procedures.
212.35. Petitions for guidance.
212.36. Rescinded guidance.
212.37. Exigent circumstances.
212.38. Reports to Congress and the Government Accountability
Office.
212.39. No judicial review or enforceable rights.
212.40. Use of guidance documents.
Subpart N--Rulemaking
Sec. 212.25 Responsibilities.
(a) The Deputy Administrator serves as USAID's Regulatory Reform
Officer (RRO). The RRO oversees implementation of regulatory-reform
initiatives and policies to ensure USAID effectively manages regulatory
burdens, consistent with applicable law.
(b) The Assistant Administrator for Management serves as USAID's
Regulatory Policy Officer (RPO) and provides oversight for the Agency's
internal rulemaking process. The RPO must be involved in each stage of
the regulatory process to foster the development of effective,
innovative, and least-burdensome regulations.
(c) The Office of Management Policy, Budget, and Performance in the
Bureau for Management (M) coordinates the rulemaking process and
ensures the Agency's rulemaking activities comply with all statutory
and regulatory requirements.
(d) The Initiating Program Office (IPO) at USAID is the Bureau or
Independent Office (B/IO) that provides subject-matter expertise on
regulatory matters that affect the IPO's programs.
(e) The Office of the General Counsel at USAID provides guidance on
legal and procedural requirements during the Agency's rulemaking
process.
Subpart O--Guidance Procedures
Sec. 212.26 General.
(a) This subpart governs all employees of the United States Agency
for International Development (USAID) involved in any phase of issuing
Agency guidance documents as defined by under E.O. 13891.
(b) This subpart applies to all guidance documents issued by all
components of the Agency after January 5, 2021.
(c) For purposes of this subpart, the term ``guidance document''
includes any statement of Agency policy or interpretation that concerns
a statute, regulation, or technical matter within the jurisdiction of
the Agency that is intended to have general applicability and future
effect, but is not intended to have the force or effect of law in its
own right and is not otherwise required by statute to be implemented
through the rulemaking procedures specified in 5 U.S.C. 553. The term
is not confined to formal written documents; guidance may come in a
variety of forms, including (but not limited to) letters, memoranda,
circulars, bulletins, and advisories, and may include video, audio, and
web-based formats. See OMB Bulletin 07-02, Agency Good Guidance
Practices.
(d) This subpart does not apply to the following:
(1) Rules exempt from rulemaking requirements under 5 U.S.C.
553(a);
(2) Rules of Agency organization, procedure, or practice;
(3) Decisions of Agency adjudications under 5 U.S.C. 554 or similar
statutory provisions;
(4) Internal executive management legal advice or legal advisory
opinions addressed to executive officials;
(5) Agency statements of specific applicability, including advisory
or legal opinions directed to particular parties about circumstance-
specific questions (e.g., case or investigatory letters responding to
complaints, warning letters), notices regarding particular locations or
facilities (e.g., guidance that pertains to the use, operation, or
control of a U.S. 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;
(6) Legal briefs, other court filings, or positions taken in
litigation or enforcement actions;
(7) Agency statements that do not set forth a policy on a
statutory, regulatory, or technical issue or an interpretation of a
statute or regulation, including speeches and individual presentations,
editorials, media interviews, press materials, or Congressional
testimony that do not set forth for the first time a new regulatory
policy;
(8) Guidance pertaining to military or foreign-affairs functions;
(9) Grant solicitations and awards;
(10) Contract solicitations and awards; or
(11) Purely internal Agency guidance policies, such as Chapters of
the ADS directed solely to USAID's employees, or to other Federal
Departments and Agencies not intended to have substantial future effect
on the behavior of regulated parties; USAID's Country/Regional
Development Cooperation Strategies; the Agency's programmatic Policies
and Strategies; Acquisition and Assistance Policy Directives (AAPDs);
Application Guidelines; COVID-19 Guidance; Food for Peace Information
Bulletins (FFPIBs); Guidance and Tools
[[Page 252]]
for Global Food-Security Programs; Procurement Executive Bulletins
(PEBs); Standard Provisions for the Protecting Life in Global Health
Assistance (PLGHA) Policy; and documents in the USAID Policy Registry.
212.40.
Sec. 212.27 Review and clearance by the Office of Management Policy,
Budget, and Performance in the Bureau for Management.
All USAID guidance documents, as defined by E.O. 13891 and Sec.
212.26, require review and clearance in accordance with this subpart.
The Bureau for Management (M Bureau) must review and clear any guidance
a Bureau or Independent Office within USAID proposes to issue.
Sec. 212.28 Requirements for clearance.
USAID's review and clearance of guidance documents shall ensure
that each one that a B/IO within the Agency proposes to issue satisfies
the following requirements:
(a) The guidance document complies with all relevant statutes and
regulations (including any statutory deadlines for the Agency's
action);
(b) The guidance document identifies or includes the following:
(1) The term ``guidance'' or its functional equivalent;
(2) The issuing B/IO within the Agency;
(3) A unique identifier, including, at a minimum, the date of
issuance and title of the document and a Regulation Identifier Number
(RIN), if applicable;
(4) The activity or entities to which the guidance applies;
(5) Citations to applicable statutes and regulations;
(6) A statement that notes 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
(7) A short summary at the top of the document of the subject
matter covered in the guidance document.
(c) The guidance document avoids using mandatory language, such as
``shall,'' ``must,'' ``required,'' or ``requirement,'' unless the
language is describing an established statutory or regulatory
requirement, or is addressed to USAID's staff and will not foreclose
the Agency's consideration of positions advanced by affected private
parties; and
(d) The guidance document is written in plain and understandable
English. All guidance documents should include a clear and prominent
statement to declare 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 USAID's policies.
Sec. 212.29 Public access to effective guidance documents.
Each B/IO within USAID responsible for issuing guidance documents
shall do the following:
(a) Ensure all effective guidance documents, identified by a unique
identifier that includes, at a minimum, the document's title and date
of issuance or revision and its RIN, if applicable, are on USAID's
guidance portal in a single, searchable, indexed database and are
available to the public in accordance with 5 U.S.C. 552(a)(2);
(b) Note on USAID's guidance portal that guidance documents lack
the force and effect of law, except as authorized by law and are not
meant to bind the public in anyway;
(c) Maintain and advertise USAID's guidance portal as a means for
the public to comment electronically on any guidance documents that are
subject to the notice-and-comment procedures described in Sec. 212.34
and to submit requests electronically for the issuance,
reconsideration, modification, or rescission of guidance documents in
accordance with Sec. 212.26; and
(d) The Bureau for Management is the office designated to receive
and address complaints from the public that USAID is not following the
requirements of OMB's Good Guidance Bulletin, or is improperly treating
a guidance document as a binding requirement.
Sec. 212.30 Good-faith cost estimates.
Even though not legally binding, some Agency guidance could result
in a substantial economic impact. For example, the issuance of Agency
guidance could induce private parties to alter their conduct to conform
to recommended standards or practices, such that they could incur costs
beyond the costs of complying with existing statutes and regulations.
While it might be difficult to predict with precision the economic
impact of voluntary guidance, to the extent practicable the proposing
B/IO within USAID shall make a good-faith effort to estimate the likely
economic cost impact of the guidance document to determine whether it
might qualify as ``significant.'' When a B/IO is assessing or
explaining whether it believes a guidance document is significant, it
should, at a minimum, provide the same level of analysis that would be
required for a determination under the Congressional Review Act (M-19-
14), Guidance on Compliance with the Congressional Review Act, that the
guidance document is major. When USAID determines that a guidance
document will be ``economically significant,'' the proposing B/IO
should conduct and publish a regulatory-impact analysis of the sort
that would accompany an economically significant rulemaking, to the
extent reasonably possible (in conformance with E.O. 12866).
Sec. 212.31 Approval procedures for guidance documents identified as
``significant'' or ``otherwise of importance to the Agency's
interests.''
(a) For guidance a USAID B/IO proposes to issue, if there is a
reasonable possibility a guidance document could be as ``significant''
or ``otherwise of importance to the Agency's interests'' within the
meaning of Sec. 212.31, or if the B/IO is uncertain whether the
guidance could qualify as such, the B/IO should email a copy of the
proposed guidance document (or a summary of it) to the M Bureau for
review and further direction before issuance.
(b) As with significant regulations, after appropriate internal
consultation and review, the M Bureau will submit significant guidance
documents that are otherwise of importance to the Agency's interests to
the Office of Information and Regulatory Affairs (OIRA) within OMB for
review and designation.
(c) If OMB/OIRA determines a guidance document from a USAID B/IO
not to be either significant or otherwise of importance to the Agency's
interests within the meaning of Sec. 212.31, the Bureau for Management
may proceed with issuance. For each guidance document coordinated
through the Office of the Administrator, the issuing B/IO should
include a statement in the Action Memorandum to indicate that the OMB/
OIRA has reviewed and cleared the guidance document in accordance with
this process.
Sec. 212.32 Definitions of ``significant guidance document'' and
guidance documents that are ``otherwise of importance to the Agency's
interests.''
(a) The term ``significant guidance document'' means a guidance
document USAID will disseminate to regulated entities or the general
public and that might reasonably be anticipated:
(1) To lead to an annual effect on the U.S. 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;
[[Page 253]]
(2) To create serious inconsistency or otherwise interfere with an
action taken or planned by another Federal Department or Agency;
(3) To alter materially the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(4) To raise novel legal or policy issues that arise out of legal
mandates, the President's priorities, or the principles set forth in
E.O. 12866, as further amended.
(b) The term ``significant guidance document'' does not include the
categories of documents excluded by Sec. 212.26 or any other category
of guidance documents exempted in writing by OMB/OIRA.
(c) OMB/OIRA must review significant and economically significant
guidance documents under E.O. 12866 before issuance, and they must
demonstrate compliance with the applicable requirements for regulations
or rules, including significant regulatory actions, set forth in E.O.
12866, E.O. 13563, E.O. 13609, E.O. 13771, and E.O. 13777.
(d) Even if not ``significant,'' USAID will consider a guidance
document of regulatory impact as ``otherwise of importance to the
Agency's interests'' within the meaning of this paragraph if it might
reasonably be anticipated:
(1) To relate to a major program, policy, or activity of the Agency
or a high-profile issue that is pending for decision before the Agency;
(2) To involve one of the Administrator's top policy priorities;
(3) To garner significant press or Congressional attention; or
(4) To raise significant questions or concerns from constituencies
of importance to the Agency, such as Committees of Congress, States or
Indian tribes, the White House or other Departments and Agencies of the
Executive Branch, courts, consumer or public-interest groups, or
leading representatives of industry.
(e) As noted in paragraphs (a) through (d) of this section,
``guidance documents'' for the purposes of this rule, including this
subpart, do not include those documents identified in this subpart O.
Sec. 212.33 Designation procedures.
(a) The Bureau for Management may request a B/IO within USAID to
prepare a designation request for certain guidance documents.
Designation requests must include the following information:
(1) A summary of the guidance document; and
(2) The B/IO's recommended designation of ``not significant,''
``significant,'' or ``economically significant,'' as well as a
justification for that designation.
(b) Except as otherwise provided in paragraph (c) of this section,
the Agency will seek significance determinations from OMB/OIRA for
certain guidance documents, as appropriate, in the same manner as for
rulemakings. Prior to publishing these guidance documents, after
internal consultation and review, the Bureau for Management shall
submit the document to OMB/OIRA for review under the provisions in
Section 6 of E.O. 12866 to determine if it meets the definition of
``significant'' or ``economically significant.''
(c) All ``guidance documents'' as with rulemakings, receive a
significance determination from OMB/OIRA, unless explicitly exempt from
E.O. 12866. Note that the only documents that do not receive
designations are those that fall outside the definition of ``guidance''
or within a group categorically considered nonsignificant as agreed
upon by OMB/OIRA in Memorandum M-20-02).
Sec. 212.34 Notice-and-comment procedures.
(a) Except as provided in paragraph (b) of this section, all
proposed USAID guidance documents determined to be a ``significant
guidance document'' within the meaning of Sec. 212.31 shall be subject
to the following notice-and-comment procedures:
(1) The issuing B/IO within USAID shall publish a notice in the
Federal Register to announce that a draft of the proposed guidance
document is publicly available; post the draft guidance document on the
Agency's guidance portal; invite public comment on the draft document
for a minimum of 30 days; and
(2) Prepare and post a public response to major concerns raised in
the comments, as appropriate, on USAID's guidance portal, when the
Agency finalizes and issues the guidance document.
(b) The requirements of paragraph (a) of this section will not
apply to any significant guidance document or categories of significant
guidance documents for which the Bureau for Management finds, in
consultation with GC, the proposing B/IO, and USAID's RRO, 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 therefore in the
guidance issued).
(c) Where appropriate, the Bureau for Management and the proposing
B/IO may recommend to the RRO that a particular guidance document that
is otherwise of importance to the Agency's interests shall also be
subject to the notice-and-comment procedures described in paragraph (a)
of this section.
Sec. 212.35 Petitions for guidance.
Any person may petition the Agency to withdraw or modify a
particular guidance document by using the procedures found in Sec.
212.26(c). USAID should respond to all requests in a timely manner, but
no later than 90 days after receipt of the request.
Sec. 212.36 Rescinded guidance.
No B/IO within USAID may cite, use, or rely on guidance documents
that are rescinded, except to establish historical facts.
Sec. 212.37 Exigent circumstances.
In emergency situations, or when a statutory deadline or court
order requires the issuing B/IO within USAID to act more quickly than
normal review procedures allow, the issuing B/IO shall coordinate with
the Bureau for Management to notify OMB/OIRA as soon as possible and,
to the extent practicable, shall comply with the requirements of this
subpart at the earliest opportunity. Wherever practicable, the issuing
B/IO should schedule its proceedings to permit sufficient time to
comply with the procedures set forth in this subpart.
Sec. 212.38 Reports to Congress and the Government Accountability
Office.
Unless otherwise determined in writing, it is the policy of USAID
that upon issuing a guidance document determined to be ``significant''
within the meaning of Sec. 212.31 the issuing B/IO shall submit a
report to Congress and the Government Accountability Office in
accordance with the procedures described in 5 U.S.C. 801 (the
Congressional Review Act [CRA]). Under the CRA, USAID must coordinate
with OMB/OIRA regarding a major determination for all guidance
documents, irrespective of whether the Agency otherwise would submit a
rule for regulatory review (Memorandum-19-14).
Sec. 212.39 No judicial review or enforceable rights.
This subpart is intended to improve the internal management of
USAID. As such, it is for USAID personnel only and is not intended to,
and does not, create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the United States,
its Departments and Agencies or other entities, its officers or
employees, or any other person.
[[Page 254]]
Sec. 212.40 Use of guidance documents.
Guidance documents cannot create binding requirements that do not
already exist by statute or regulation. Accordingly, non-compliance
with guidance documents cannot be used as a basis for proving
violations of applicable law. Guidance documents can do no more, with
respect to prohibition of conduct, than articulate USAID's
understanding of how a statute or regulation applies to particular
circumstances.
Ruth Buckley,
Acting Performance Improvement Officer/Acting Office Director, Bureau
for Management Office of Management Policy, Budget and Operational
Performance.
[FR Doc. 2020-26352 Filed 1-4-21; 8:45 am]
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