[Federal Register Volume 85, Number 104 (Friday, May 29, 2020)]
[Rules and Regulations]
[Pages 32296-32300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11551]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 339
[Docket ID: DoD-2020-OS-0019]
RIN 0790-AK97
DoD Guidance Documents
AGENCY: Office of the Secretary of Defense, DoD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule sets forth the Department of Defense's (DoD)
policies and processes governing the issuance and use of guidance
documents. By issuing this final rule, DoD also responds to the
Executive Order titled: ``Promoting the Rule of Law Through Improved
Agency Guidance Documents,'' which requires federal agencies to
finalize regulations, or amend existing regulations as necessary, to
set forth processes and procedures for issuing guidance documents.
DATES: Effective Date: This final rule is effective May 29, 2020.
FOR FURTHER INFORMATION CONTACT: Patricia Toppings, 571-372-0485.
SUPPLEMENTARY INFORMATION: This final rule codifies the Department's
policies and procedures regarding guidance documents. The policies and
procedures in this final rule apply to all non-exempt DoD guidance
documents, which DoD defines in Sec. 339.1. These procedures require
all DoD guidance documents to receive appropriate coordination and
review. Before guidance documents are issued, they must be reviewed to
ensure they are written in plain language and do not impose any
substantive legal requirements on the public above and beyond statute
or regulation. All guidance documents must include a clear and
prominent statement effectively stating 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 the guidance document is
intended only to provide clarity to the public regarding existing
requirements under the law or agency regulations. Recognizing the fact
that, even though guidance documents are not legally binding, they
could nevertheless have a substantial economic impact on regulated
entities that alter their conduct to conform to the guidance, this
final rule requires a good faith assessment of the cost impact on the
public of the guidance document.
This final rule also incorporates other policies and procedures,
such as
[[Page 32297]]
describing when guidance documents are subject to notice and an
opportunity for public comment and how they will be made available to
the public after issuance. These procedures are intended to ensure that
the public has a fair and sufficient opportunity to comment on guidance
documents when appropriate and practicable and has access to guidance
documents issued by the Department. The final rule also provides a
process for interested parties to petition the Department for the
withdrawal or modification of guidance documents.
Administrative Procedure
Under the Administrative Procedure Act, an agency may waive the
normal notice and comment procedures if the action is a rule of agency
organization, procedure, or practice. See 5 U.S.C. 553(b)(3)(A). Since
this final rule merely incorporates procedures applicable to the
Department's administrative procedures into the Code of Federal
Regulations, notice and comment are not necessary.
Rulemaking Analyses
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
This rulemaking is not a significant regulatory action under
Executive Order 12866. The Department does not anticipate that this
rulemaking will have an economic impact on regulated entities. This is
a rule of agency procedure and practice. The final rule describes the
Department's internal policies and procedures for its guidance
documents. The Department has adopted these internal policies and
procedures as part of its regulatory reform initiative, and has not
incurred any additional resource costs in doing so. Regulated entities
and the public will benefit from these policies and procedures through
increased agency deliberations and more opportunities to comment on
guidance documents.
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs''
This rule is not an Executive Order 13771 regulatory action because
this rule is not significant under Executive Order 12866.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
Since notice and comment rulemaking is not necessary for this rule,
the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5
U.S.C. 601-612) do not apply.
Executive Order 13132, ``Federalism''
Executive Order 13132 requires agencies to ensure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132, and it has been determined that this action will not have
a substantial direct effect or federalism implications on the States
and would not preempt any State law or regulation or affect the States'
ability to discharge traditional State governmental functions.
Therefore, consultation with the States is not necessary.
Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175. Because this
rulemaking does not significantly or uniquely affect the communities of
the Indian tribal governments or impose substantial direct compliance
costs on them, the funding and consultation requirements of Executive
Order 13175 do not apply.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DoD consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget for each collection of information it conducts,
sponsors, or requires through regulations. It has been determined there
are no new information collection requirements associated with this
final rule.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been determined that this final rule does not contain a
Federal mandate that may result in expenditure by State, local and
tribal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
List of Subjects in 32 CFR Part 339
Administrative practice and procedure, Guidance documents.
0
In consideration of the foregoing, the Office of the Secretary of
Defense adds 32 CFR part 339 to read as follows:
PART 339--DOD GUIDANCE DOCUMENTS
Sec.
339.1 General.
339.2 Initial review process.
339.3 Good faith cost estimates.
339.4 Departmental review and submission to OIRA.
339.5 Designation procedures.
339.6 Non-significant guidance documents.
339.7 Significant guidance document.
339.8 Notice-and-comment procedures.
339.9 Public access to effective guidance documents.
339.10 Petitions for guidance.
339.11 Rescinded guidance.
339.12 Exigent circumstances.
339.13 Reports to Congress and GAO.
339.14 Use of guidance documents.
Authority: 5 U.S.C. 552a.
Sec. 339.1 General.
(a) This part provides policies and procedures governing all phases
of issuing, modifying, or rescinding guidance documents within DoD.
(b) Subject to the qualifications and exemptions contained in this
part, these policies and procedures apply to all guidance documents
intended to have future effect on the behavior of regulated parties
issued by all components of the Department, including regional and
district offices.
(c) For purposes of this part, the term guidance document includes
any statement of agency policy or interpretation concerning a statute,
regulation, or technical matter within the jurisdiction of the
Department 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
specified in 5 U.S.C. 553 or 5 U.S.C. 556. 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, advisories, and may include video, audio, and Web-based
formats. See OMB Memorandum M-20-02, ``Guidance Implementing Executive
Order 13891, Titled ``Promoting the Rule of Law Through Improved Agency
Guidance Documents,'' '' dated October 31, 2019.
(d) This part does not apply to:
(1) Agency statements of specific applicability, including advisory
or legal opinions directed to particular parties about circumstance-
specific questions (e.g., case or investigatory
[[Page 32298]]
letters responding to complaints, warning letters), notices regarding
particular locations or facilities (e.g., guidance pertaining to the
use, operation, or control of a government facility or property), and
correspondence with individual persons or entities (e.g., congressional
correspondence), except documents ostensibly directed to a particular
party but designed to guide the conduct of the broader regulated
public;
(2) 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;
(3) Rules promulgated pursuant to notice and comment under 5 U.S.C.
553, or similar statutory provisions;
(4) Rules exempt from rulemaking requirements under 5 U.S.C.
553(a);
(5) Rules of agency organization, procedure, or practice;
(6) Decisions of agency adjudications under 5 U.S.C. 554, or
similar statutory provisions;
(7) Internal guidance directed solely to the issuing agency or
other agencies (or personnel of such agencies) that is not intended to
have substantial future effect on the behavior of regulated parties or
the public;
(8) Internal guidance that is made public only because release is
required under the Freedom of Information Act or agency disclosure
policies;
(9) Legal briefs, other court filings, or positions taken in
litigation or enforcement actions;
(10) Legal opinions by the Office of Legal Counsel at the
Department of Justice.
(11) Internal executive branch legal advice or legal advisory
opinions addressed to executive branch officials;
(12) Guidance pertaining to military or foreign affairs functions,
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 non-defense articles and services);
(13) Grant solicitations and awards; or
(14) Contract solicitations and awards.
Sec. 339.2 Initial review process.
(a) Prior to submitting guidance documents for departmental review,
Components seeking to issue, modify, or rescind a guidance document
should submit a draft copy of that document, along with the component's
designation request (see Sec. 339.5 of this part) and good faith cost
estimate (see Sec. 339.3 of this part), to their Federal Register
Liaison Officer.
(b) Before such a guidance document can be cleared for departmental
review, the appropriate DoD or OSD Federal Register Liaison Officer
will review it to ensure that it satisfies the following requirements:
(1) For significant guidance (see Sec. 339.7 of this part),
Federal Register required formatting.
(2) The guidance document complies with all relevant statutes and
regulations (including any statutory deadlines for agency action);
(3) The guidance document identifies or includes:
(i) The term ``guidance'' or its functional equivalent;
(ii) The issuing component of the Department;
(iii) A unique identifier, including, at a minimum, the date of
issuance and title of the document and its Z-RIN (a regulation
identifier number), if applicable;
(iv) The activity or entities to which the guidance applies;
(v) Citations to applicable statutes and regulations;
(vi) 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
(vii) A short summary of the subject matter covered in the guidance
document at the top of the document.
(4) 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 DoD staff and will not foreclose the
Department's consideration of positions advanced by affected private
parties or is intended to have a substantial future effect on the
behavior of regulated parties;
(5) The guidance document is written in plain and understandable
English;
(6) All guidance documents include the following disclaimer
prominently: ``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 departmental policies.''
Sec. 339.3 Good faith cost estimates.
Even though not legally binding, some agency guidance may result in
a substantial economic impact. For example, the issuance of
departmental guidance may induce private parties to alter their conduct
to conform to recommended standards or practices, thereby incurring
costs beyond the costs of complying with existing statutes and
regulations. While it may be difficult to predict with precision the
economic impact of voluntary guidance, the proposing component of the
Department must, to the extent practicable, make a good faith effort to
estimate the likely economic cost impact of the guidance document to
determine whether the document might be significant. When the component
is assessing or explaining whether it believes a guidance document is
significant, it will, at a minimum, provide the same level of analysis
that would be required for a major determination under the
Congressional Review Act (5 U.S.C. chapter 8). When it is determined
that a guidance document will be economically significant (see Sec.
339.7(a)(1) of this part), the component must conduct and publish a
Regulatory Impact Analysis of the sort that would accompany an
economically significant rulemaking (see requirements in E.O. 12866,
E.O. 13563, and OMB Circular A-4), to the extent reasonably possible.
Sec. 339.4 Departmental review and submission to OIRA.
(a) After the appropriate FRLO completes his or her initial review,
a guidance document will be internally coordinated within the proposing
component and formally coordinated throughout the Department with other
components who have equities. Mandatory coordinators on all guidance
documents are the Chief Management Officer, Department of Defense and
the component's General Counsel.
(b) The proposing component will adjudicate DoD and OSD Component
comments and return a final guidance document package to the
appropriate DoD or OSD Federal Register Liaison Officer for submission
to the Office of Management and Budget (OMB), Office of Information and
Regulations Affairs (OIRA) for a significance determination.
(c) Guidance documents deemed by OIRA to be ``significant'' (see
Sec. 339.7 of this part) must be reviewed and approved by the
Department's Regulatory Policy Officer before OIRA formally reviews
them.
Sec. 339.5 Designation procedures.
(a) The proposing component will prepare a designation request for
guidance documents. Designation requests must include the following
information:
(1) A summary of the guidance document; and
(2) The component's recommended designation of ``not significant,''
[[Page 32299]]
``significant,'' or ``economically significant,'' as well as a
justification for that designation.
(b) The appropriate DoD or OSD Federal Register Liaison Officer
will seek a significance determination from OIRA for guidance documents
in the same manner as for rulemakings. OIRA review will occur prior to
the publishing of guidance documents, and with sufficient time to allow
OIRA to review the designation request and the guidance document to
determine if it meets the definition of ``significant'' or
``economically significant'' under Executive Order 13891.
(c) Prior to being published, guidance documents determined to be
``significant'' or ``economically significant'' are subject to formal
review and interagency coordination by OIRA. The OIRA review, to
include interagency coordination, is to be consistent with Executive
Order 12866.
(d) Significant guidance documents (see Sec. 339.7 of this part)
must be reviewed and approved by the Department's Regulatory Policy
Officer before OIRA formally reviews them.
(e) Once the OMB/OIRA has cleared a guidance document for
publication, the appropriate DoD or OSD Federal Register Liaison
Officer will coordinate the guidance document with the Defense Office
of Prepublication and Security Review (DOPSR). The FRLO will notify the
component of DOPSR's approval and that the guidance document can be
approved for Federal Register publication or signed for placement on
the central website.
Sec. 339.6 Non-significant guidance documents.
(a) If the guidance document is determined to be non-significant
within the meaning of Sec. 339.7 of this part, the appropriate DoD or
OSD Federal Register Liaison Officer will advise the proposing
component to proceed with issuance of the guidance.
(b) For each such guidance document, the proposing component should
forward it to the appropriate authority for approval. OSD PSAs or
equivalents can delegate in writing the authority to approve non-
significant guidance documents to subordinate officials at or above the
level of a General/Flag Officer, Senior Executive Service member, or
equivalent. The proposing component should include a statement in the
action memorandum to the approving authority that the guidance document
has been reviewed and cleared as non-significant by OIRA.
(c) After the approving authority signs the non-significant
guidance document, it should be forwarded to the DoD Regulatory Program
staff for publication on the department's guidance document website
located at https://open.defense.gov/Regulatory-Program/Guidance-Documents/.
Sec. 339.7 Significant guidance documents.
(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 (a guidance document is economically significant if it
meets the criteria in this paragraph);
(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 Sec. 339.1(d) or any other
category of guidance documents exempted in writing in consultation with
OIRA.
(c) Significant guidance documents, to include economically
significant guidance documents, must be reviewed by OIRA under E.O.
12866 before issuance; and 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) Each proposed DoD guidance document determined by OIRA to be
significant must be approved by an OSD Principal Staff Assistant or
equivalent appointed by the President.
(e) Significant guidance documents have to be published for notice
and comment in accordance with Sec. 339.8 of this part before they can
be issued.
Sec. 339.8 Notice-and-comment procedures.
(a) Except as provided in paragraph (b) of this section, all
proposed DoD guidance documents determined to be a ``significant
guidance document'' within the meaning of Sec. 339.7 shall be subject
to the following notice and comment procedures. After receiving
clearance from OIRA to publish a proposed significant guidance
document, the proposing component shall publish a notice in the Federal
Register announcing that a draft of the proposed guidance document is
publicly available on Regulations.gov, shall invite public comment on
the draft document for a minimum of 30 days. After the comment period
ends, the proposing component shall prepare and post a public response
to major concerns raised in the comments, as appropriate, in the docket
on Regulations.gov. Then the component will prepare a final notice that
will be coordinated within the department and submitted to OIRA for
review, interagency coordination, and clearance for publishing in the
Federal Register. Both the proposed and final notices shall be approved
by the DoD RPO before OIRA review, and by an OSD Principal Staff
Assistant or equivalent appointed by the President after OIRA clearance
and DOPSR approval.
(b) The notice and comment requirements of paragraph (a) of this
section will not apply to any significant guidance document or
categories of significant guidance documents for which the proposing
component finds, in consultation with their component OGC and OIRA,
good cause that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest (and incorporates the
finding of good cause and a brief statement of reasons therefor in the
guidance issued).
Sec. 339.9 Public access to effective guidance documents.
(a) The DoD Regulatory Policy Team shall:
(1) Ensure all final guidance documents in effect are identified by
a unique identifier which includes, at a minimum, the document's title
and date of issuance or revision and its Z-RIN, if applicable, are
published and maintained on a central website located at https://open.defense.gov/Regulatory-Program/Guidance-Documents/ in a single,
searchable, indexed database, and available to the public;
(2) Note on its website that guidance documents do not bind the
public, except as authorized by law or as incorporated into a contract;
(3) Announce on its website a means for the public to comment
electronically on any guidance documents that are subject to the notice
and comment procedures; and
(4) Receive complaints from the public that a component of the
Department is not following the requirements of OMB's Memorandum
[[Page 32300]]
M-20-02, ``Guidance Implementing Executive Order 13891, Titled
``Promoting the Rule of Law Through Improved Agency Guidance
Documents'','' dated October 31, 2019, or is improperly treating a
guidance document as a binding requirement.
(b) Each component responsible for issuing guidance documents
shall:
(1) Submit final guidance documents to the DoD Regulatory Policy
Team at the email address [email protected] for posting to the Department's central website.
(2) Address complaints from the public that they are not following
the requirements of OMB's Memorandum M-20-02, ``Guidance Implementing
Executive Order 13891, Titled ``Promoting the Rule of Law Through
Improved Agency Guidance Documents'','' dated October 31, 2019, or are
improperly treating a guidance document as a binding requirement.
Sec. 339.10 Petitions for guidance.
(a) Any person may petition the Department to withdraw or modify a
particular guidance document by sending a written request to the DoD
Regulatory Program staff at email address [email protected]. Please use the words
``GUIDANCE: [Insert the title of the guidance document]'' in the
subject line of the email message. The DoD Regulatory Program staff
will provide the request to the issuing component of the guidance
document for response.
(b) The issuing component should respond to all requests within 90
days after receipt of the request, or as timely as possible given any
constraints of the request. For recordkeeping purposes, the issuing
component will provide a copy of their response to the DoD Regulatory
Program staff at email address [email protected].
Sec. 339.11 Rescinded guidance.
(a) All effective guidance documents must appear on the central
website. If the guidance document does not appear on the central
website, the guidance is rescinded and without effect.
(b) No component may cite, use, or rely on guidance documents that
are rescinded, except to establish historical facts.
Sec. 339.12 Exigent circumstances.
In emergency situations or when the proposing component is required
by statutory deadline, court order, or executive order to act more
quickly than normal review procedures allow, the proposing component
shall coordinate with OGC and the appropriate DoD or OSD Federal
Register Liaison Officer to notify OIRA as soon as possible and, to the
extent practicable, shall comply with the requirements of this part at
the earliest opportunity.
Sec. 339.13 Reports to Congress and GAO.
Upon the issuance of a final guidance document, the appropriate
Federal Register Liaison Officer will submit a report to Congress and
GAO in accordance with the procedures described in 5 U.S.C. 801 (the
``Congressional Review Act''). If the CRA procedures are not followed,
the guidance document can be nullified.
Sec. 339.14 Use of guidance documents.
Guidance documents cannot create binding requirements that do not
already exist by statute or regulation. Accordingly, noncompliance 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 the Department's understanding
of how a statute or regulation applies to particular circumstances.
Dated: May 26, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-11551 Filed 5-28-20; 8:45 am]
BILLING CODE 5001-06-P