[Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
[Rules and Regulations]
[Pages 53186-53189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18459]
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NATIONAL FOUNDATION FOR THE ARTS AND HUMANITIES
National Endowment for the Arts
45 CFR Part 1147
RIN 3135-AA35
Procedures for Arts Endowment Guidance Documents
AGENCY: National Endowment for the Arts, National Foundation for the
Arts and Humanities.
ACTION: Interim final rule.
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SUMMARY: This interim final rule sets procedures for the Arts Endowment
relating to the issuance of guidance documents.
DATES: This rule is effective on August 28, 2020. Written comments must
be received on or before September 27, 2020.
ADDRESSES: You may submit comments, identified by RIN 3135-AA35, by any
of the following methods:
(a) Federal eRulemaking Portal: https://www.regulations.gov. Follow
the instructions for submitting comments.
(b) Email: generalcounsel@arts.gov. Include RIN 3135-AA35 in the
subject line of the message.
(c) Mail: National Endowment for the Arts, Office of the General
Counsel, 400 7th Street SW, Second Floor, Washington, DC 20506.
(d) Hand Delivery/Courier: National Endowment for the Arts, Office
of the General Counsel, 400 7th Street SW, Second Floor, Washington, DC
20506.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (3135-AA35) for this
rulemaking. Arrangements to deliver by courier may be affected by
health and safety procedures related to the coronavirus pandemic;
please reach out to generalcounsel@arts.gov or 202-682-5418 before
attempting delivery in this manner to ensure that you delivery will be
able to be accepted.
Docket: For access to the docket to read background documents or
comments received, go to 400 7th Street SW, Washington, DC.
Arrangements to view the docket in person may be affected by health and
safety procedures related to the coronavirus pandemic; please reach out
to generalcounsel@arts.gov or 202-682-5418 before attempting delivery
in this manner to ensure that you delivery will be able to be accepted.
FOR FURTHER INFORMATION CONTACT: Daniel Fishman, Assistant General
Counsel, National Endowment for the Arts, 400 7th St. SW, Washington,
DC 20506; fishmand@arts.gov; 202-682-5418.
SUPPLEMENTARY INFORMATION:
1. Background
This final rule implements section 4 of Executive Order 13891,
``Promoting the Rule of Law Through Improved Agency Guidance
Documents'' (October 9, 2019). Under the Executive Order, the National
Endowment for the Arts must set forth a process in regulation that
includes:
(1) A requirement that each guidance document clearly state that it
does not bind the public, except as authorized by law or as
incorporated into a contract;
[[Page 53187]]
(2) procedures for the public to petition for withdrawal or
modification of a particular guidance document, including a designation
of the officials to which petitions should be directed; and
(3) for a significant guidance document, as determined by the
Administrator of Office of Management and Budget's (OMB) Office of
Information and Regulatory Affairs (Administrator), unless the agency
and the Administrator agree that exigency, safety, health, or other
compelling cause warrants an exemption from some or all provisions
requiring:
(A) 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 agency to major concerns raised in comments, except when the
agency 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;
(B) approval on a non-delegable basis by the agency head or by an
agency component head appointed by the President, before issuance;
(C) review by the Office of Information and Regulatory Affairs
(OIRA) under Executive Order 12866, before issuance; and
(D) compliance with the applicable requirements for regulations or
rules, including significant regulatory actions, set forth in Executive
Orders 12866, 13563 (Improving Regulation and Regulatory Review), 13609
(Promoting International Regulatory Cooperation), 13771 (Reducing
Regulation and Controlling Regulatory Costs), and 13777 (Enforcing the
Regulatory Reform Agenda).
All agency guidance documents will be made available on the
agency's website, at https://www.arts.gov/guidance.
2. Compliance
Administrative Procedure Act
This final rule incorporates requirements of the Executive Order
and the Arts Endowment's existing internal policy and procedures into
the CFR. Therefore, in accordance with 5 U.S.C. 553, there is good
cause for this rule of Agency organization, procedure, or practice, to
be enacted without notice and comment. See 5 U.S.C. 553(b)(A).
Executive Order 12866
This rule is an internal rule of agency procedure and is not a
significant regulatory action under Executive Order 12866.
Executive Order 13771
This rule is not an E.O. 13771 regulatory action because this rule
is related to agency organization, management, or personnel.
Regulatory Flexibility Act
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C.
605(b)), the Arts Endowment certifies that this rule, if adopted, will
not have a significant economic impact on a substantial number of small
entities.
Unfunded Mandates
For purposes of Title II of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this
regulatory action does not contain any Federal mandate that may result
in increased expenditures in either Federal, state, local, or tribal
governments in the aggregate, or impose an annual burden exceeding $100
million on the private sector.
Paperwork Reduction Act
The rule does not contain any information collection requirement
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
Executive Order 13132, Federalism
Executive Order 13132, Federalism, prohibits an agency from
publishing any rule that has federalism implications if the rule
imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive order. This rule does not have any
federalism implications, as described above.
Congressional Review Act
This action pertains to agency management, personnel, and
organization and does not substantially affect the rights or
obligations of nonagency parties and, accordingly, is not a ``rule'' as
that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
However, for each final guidance document issued pursuant to these
regulations and adopted by the Arts Endowment, it will submit
appropriate reports to Congress and Government Accountability Office
(GAO) and comply with the procedures specified by 5 U.S.C. 801.
List of Subjects in 45 CFR Part 1157
Administrative practice and procedure.
0
For reasons set forth in the preamble, the Arts Endowment amends 45 CFR
chapter XI, subchapter B, by adding part 1157 to read as follows:
PART 1157--ARTS ENDOWMENT GUIDANCE DOCUMENTS
Sec.
1157.1 General.
1157.2 Review and clearance.
1157.3 Requirements for clearance.
1157.4 Public access to effective guidance documents.
1157.5 Definitions of ``significant guidance document'' and guidance
documents that are ``otherwise of importance to the Arts Endowment's
interests.''
1157.6 Notice-and-comment procedures.
1157.7 Petitions for guidance.
1157.8 Rescinded guidance.
1157.9 Exigent circumstances.
1157.10 No judicial review or enforceable rights.
1157.11 Reports to Congress and Government Accountability Office
(GAO).
Authority: 20 U.S.C. 959.
Sec. 1157.1 General.
(a) This part governs all National Endowment for the Arts (``Arts
Endowment'' or ``NEA'') employees and contractors involved with all
phases of issuing Arts Endowment guidance documents.
(b) Subject to the qualifications and exemptions contained in this
part, the procedures in this part apply to all guidance documents
issued by the Arts Endowment after August 28, 2020.
(c) For purposes of this part, the term ``guidance document'' means
an agency statement of general applicability, intended to have future
effect on the behavior of regulated parties, that sets forth a policy
on a statutory, regulatory, or technical issue, or an interpretation of
a statute or regulation. 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 Office of
Management and Budget (OMB) Bulletin 07-02, ``Agency Good Guidance
Practices,'' (January 25, 2007) (``OMB Good Guidance Bulletin'').
(d) This part does not apply to:
(1) Rules promulgated pursuant to notice and comment under section
553 of title 5, United States Code, or similar statutory provisions;
(2) Rules exempt from rulemaking requirements under 5 U.S.C.
553(a);
[[Page 53188]]
(3) Rules of Agency organization, procedure, or practice;
(4) Decisions of Agency adjudications under 5 U.S.C. 554 or similar
statutory provisions;
(5) Internal guidance directed to the issuing agency or other
agencies that is not intended to have substantial future effect on the
behavior of regulated parties;
(6) Internal executive branch legal advice or legal advisory
opinions addressed to executive branch officials;
(7) 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, determinations related to historic
preservation), 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;
(8) Legal briefs, other court filings, or positions taken in
litigation or enforcement actions;
(9) 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;
(10) Guidance pertaining to military or foreign affairs functions;
(11) Grant solicitations, guidelines and awards;
(12) Contract solicitations and awards; and
(13) Purely internal Agency policies or guidance directed solely to
Arts Endowment employees or contractors or to other Federal agencies
that are not intended to have substantial future effect on the behavior
of regulated parties.
Sec. 1157.2 Review and clearance.
All Arts Endowment guidance documents, as defined in Sec.
1157.1(c), require review and clearance in accordance with this part.
Sec. 1157.3 Requirements for clearance.
The Arts Endowment's review and clearance of guidance shall ensure
that each guidance document proposed by the Arts Endowment satisfies
the following requirements:
(a) The guidance document complies with all relevant statutes and
regulation (including any statutory deadlines for Agency action);
(b) The guidance document identifies or includes:
(1) The term ``guidance'' or its functional equivalent;
(2) If applicable, the issuing Arts Endowment responsible office
name;
(3) A unique identifier, including, at a minimum, the date of
issuance and title of the document and its regulatory identification
number (RIN), if applicable;
(4) The activity or entities to which the guidance applies;
(5) Citations to applicable statutes and regulations;
(6) 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
(7) A short summary of the subject matter covered in the guidance
document at the top of the 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 Arts Endowment employees and will not
foreclose the Arts Endowment's consideration of positions advanced by
affected private parties;
(d) The guidance document is written in plain and understandable
English; and
(e) All guidance documents should include the following disclaimer
prominently in each guidance document: ``The contents of this document
do not have the force and effect of law and are not meant to bind the
public in any way. This document is intended only to provide clarity to
the public regarding existing requirements under the law or agency
policies.'' When an Arts Endowment guidance document is binding because
binding guidance is authorized by law or because the guidance is
incorporated into a contract, the Arts Endowment will modify the
disclaimer in the preceding sentence to reflect either of those facts.
Sec. 1157.4 Public access to effective guidance documents.
The Arts Endowment shall:
(a) Ensure all effective guidance documents, identified by a unique
identifier which includes, at a minimum, the document's title and date
of issuance or revision and its RIN, if applicable, are on its website
in a single, searchable, indexed database, and available to the public
in accordance with Sec. 1157.7;
(b) Note on its website that guidance documents lack the force and
effect of law, except as authorized by law or as incorporated into a
contract;
(c) Advertise on its website where the public can comment
electronically on any guidance documents that are subject to the
notice-and-comment procedures described in Sec. 1157.6 and to submit
requests electronically for issuance, reconsideration, modification, or
rescission of guidance documents. Guidance documents that do not appear
on the Agency's single, searchable, indexed database are rescinded; and
(d) Designate an office to receive and address complaints from the
public that the Arts Endowment is not following the requirements of
OMB's Good Guidance Bulletin or is improperly treating a guidance
document as a binding requirement.
Sec. 1157.5 Definitions of ``significant guidance document'' and
guidance documents that are ``otherwise of importance to the Arts
Endowment's interests.''
(a) 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:
(1) 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. Historically, the Arts Endowment has not issued any
significant guidance documents with these implications;
(2) To create serious inconsistency or otherwise interfere with an
action taken or planned by another Federal 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 arising 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 this part or any other category of
guidance documents exempted in writing by the Arts Endowment in
consultation with the Office of Information and Regulatory Affairs
(OIRA).
(c) Significant and economically significant guidance documents
must be
[[Page 53189]]
reviewed by OIRA under E.O. 12866 before issuance and must demonstrate
compliance with the applicable requirements for regulations, including
significant regulatory actions, set forth in applicable Executive
orders. NEA will 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. NEA will 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.
(d) Even if not ``significant,'' a guidance document will be
considered ``otherwise of importance to the Arts Endowment's
interests'' within the meaning of this paragraph (d) if it may
reasonably be anticipated:
(1) To relate to a major program, policy, or activity of the Arts
Endowment or a high-profile issue pending decision before the Arts
Endowment;
(2) To involve one of the Chairman'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 Arts Endowment, such as Committees of Congress,
states, Indian tribes, the White House or other departments of the
executive branch, courts, consumer or public interest groups, or
leading representatives of industry.
Sec. 1157.6 Notice-and-comment procedures.
(a) Except as provided in paragraph (b) of this section, all
proposed Arts Endowment guidance documents determined to be a
``significant guidance document'' within the meaning of Sec. 1157.5
are subject to notice-and-comment procedures. The Arts Endowment shall
publish an advance notice in the Federal Register of the proposed
guidance document and invite public comments for a minimum of 30 days,
then publish a response to major concerns raised in the comments when
the final guidance document is published.
(b) All significant guidance documents must have approval and
signature on a non-delegable basis by the Chairman or Senior Deputy
Chairman, before issuance.
(c) The requirements of paragraph (a) of this section will not
apply to any significant guidance document unless the Arts Endowment
finds, in consultation with OIRA, good cause that notice-and-comment
procedures thereon are impracticable, unnecessary, or contrary to the
public interest (and incorporates the finding of good cause and a brief
statement of reasons in the guidance issued). The Arts Endowment and
OIRA may establish an agreement on presumptively exempted categories of
guidance; such documents will be presumptively exempt from the
requirements of paragraph (a) of this section.
(d) Where appropriate, the Arts Endowment may determine a
particular guidance document that is otherwise of importance to the
Arts Endowment's interests shall also be subject to the notice-and-
comment procedures described in paragraph (a) of this section.
Sec. 1157.7 Petitions for guidance.
(a) Interested parties may submit petitions to the Arts Endowment
requesting withdrawal or modification of any effective guidance
document by emailing generalcounsel@arts.gov, or sending the petition
by mail to National Endowment for the Arts, Attn: Office of General
Counsel, 400 7th St. SW, Washington DC 20506. Please include ``Guidance
Petition'' in the subject line of any correspondence to ensure the
letter is routed properly.
(b) Interested parties should include the guidance document's title
and a summarized justification describing why the document should be
withdrawn, how it should be modified, or the nature of the complaint in
the petition in order to receive an expedited response.
(c) The appropriate Arts Endowment official will review the
petition and determine if withdrawal or modification is necessary or
the best way to resolve the complaint, and respond to the petitioner
with a decision no later than 90 days after receipt of the request.
Sec. 1157.8 Rescinded guidance.
The Arts Endowment may not cite, use, or rely on guidance documents
that are rescinded, except to establish historical facts.
Sec. 1157.9 Exigent circumstances.
In emergency situations or when the Arts Endowment is required by
statutory deadline or court order to act more quickly than normal
review procedures allow, the Arts Endowment shall notify OIRA as soon
as possible and, to the extent practicable, comply with the
requirements of this part at the earliest opportunity. Wherever
practicable, the Arts Endowment will alter its proceedings to permit
sufficient time to comply with the procedures set forth in this part.
Sec. 1157.10 No judicial review or enforceable rights.
This part is intended to improve the internal management of the
Arts Endowment. As such, it is for the use of Arts Endowment personnel
only and is not intended to, and does not create any right or benefit,
substantive or procedural, enforceable by law or in equity by any party
against the United States, its agencies or other entities, its officers
or employees, or any other person.
Sec. 1157.11 Reports to Congress and Government Accountability Office
(GAO).
Unless otherwise determined in writing by the Arts Endowment, it is
the policy of the Agency that upon issuing a guidance document the Arts
Endowment will submit a report to Congress and GAO in accordance with
the procedures described in 5 U.S.C. 801 (the ``Congressional Review
Act'').
Dated: August 18, 2020.
Jillian Miller,
Director of Guidelines and Panel Operations, Administrative Services,
National Endowment for the Arts.
[FR Doc. 2020-18459 Filed 8-27-20; 8:45 am]
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