Federal Register / Vol. 85, No. 57 / Tuesday, March 24, 2020 / Rules and Regulations 16541

Semmes, AL (SJI) VORTAC (Lat. 30°43′33.53″ N, long. 088°21′33.46″ W) CATLN, AL FIX (Lat. 31°18′26.03″ N, long. 087°34′47.75″ W) KBLER, AL WP (Lat. 33°43′20.65″ N, long. 083°43′13.71″ W) KELLN, SC WP (Lat. 34°31′33.22″ N, long. 082°10′16.92″ W) KTOWN, NC WP (Lat. 35°11′49.14″ N, long. 081°03′18.27″ W) BYSCO, NC WP (Lat. 35°46′09.25″ N, long. 080°04′33.85″ W) JOOLI, NC WP (Lat. 35°54′55.21″ N, long. 079°49′16.24″ W) NUUMN, NC WP (Lat. 36°09′53.78″ N, long. 079°23′38.70″ W) ORACL, NC WP (Lat. 36°28′01.58″ N, long. 078°52′14.80″ W) KIWII, VA WP (Lat. 36°34′56.91″ N, long. 078°40′03.92″ W)

* * * * * for reasons of exigency, safety, health, or Government and the states, or on the Issued in Washington, DC, on March 18, other compelling cause as determined distribution of power and 2020. by NASA and the Office of Management responsibilities among the various Scott M. Rosenbloom, and Budget, Office of Information and levels of government. This action has Regulatory Affairs (OIRA) Acting Manager, Rules and Regulations been analyzed in accordance with the Group. Administrator, to undergo a 30-day principles and criteria contained in the public notice and comment period; be order, and NASA has determined that [FR Doc. 2020–06052 Filed 3–23–20; 8:45 am] approved on a non-delegable basis by this action will not have a substantial BILLING CODE 4910–13–P the NASA Administrator; be reviewed direct effect or federalism implications by OIRA; and comply with the on the states and would not preempt applicable requirements for guidance any state law or regulation or affect the NATIONAL AERONAUTICS AND documents including significant states’ ability to discharge traditional SPACE ADMINISTRATION regulatory actions. state governmental functions. Therefore, This final rule also incorporates 14 CFR Part 1204 consultation with the states is not NASA’s existing internal policy and necessary. [Document Number NASA–20–035; Docket procedures, NASA Policy Directive Number–NASA–2020–0003] (NPD) 1400.2, Publishing NASA Executive Order 13175—Consultation and Coordination With Indian Tribal RIN 2700–AE55 Documents in the Federal Register and Responding to Regulatory Actions, into Governments NASA Guidance Procedures the Code of Federal Regulation (CFR) in This final rule has been analyzed in response to the order. NPD 1400.2 accordance with the principles and AGENCY: National Aeronautics and establishes the Agency’s policy, Space Administration. criteria contained in Executive Order procedures, and responsibilities for 13175. NASA has determined that ACTION: Final rule. issuing guidance documents to ensure because this rulemaking does not that the required review and clearance SUMMARY: This final rule incorporates significantly or uniquely affect the is obtained before issuance and all communities of the Indian tribal the National Aeronautics and Space stages of the rulemaking process are governments or impose substantial Administration’s (NASA) existing followed. internal policy and procedures relating direct compliance costs on them, the to the issuance of guidance documents II. Regulatory Analysis funding and consultation requirements into the Code of Federal Regulations. Executive Order 12866—Regulatory of Executive Order 13175 does not DATES: Effective: April 23, 2020. Planning and Review and Executive apply. FOR FURTHER INFORMATION CONTACT: Order 13563—Improving Regulation Executive Order 13771—Reducing Nanette Jennings, Directives and and Regulatory Review Regulations and Controlling Regulatory Regulations Management, Mission Executive Orders 12866 and 13563 Costs Support Directorate, (202) 358–0819, direct agencies to assess all costs and This rule is not an E.O. 13771 nanette.jennings@nasa.gov. benefits of available regulatory regulatory action because this rule is not SUPPLEMENTARY INFORMATION: alternatives and, if regulation is significant under E.O. 12866. necessary, to select regulatory I. Background approaches that maximize net benefits Regulatory Flexibility Act Executive Order 13891, Promoting the (including potential economic, Rule of Law Through Improved Agency environmental, public health and safety It has been certified that this rule is Guidance Documents, requires agencies effects, distributive impacts, and not subject to the Regulatory Flexibility to finalize regulations to set forth equity). Executive Order 13563 Act (5 U.S.C. 601) because it would not, processes and procedures for issuing emphasizes the importance of if promulgated, have a significant guidance documents to include: quantifying both costs and benefits, economic impact on a substantial • Requirements for each guidance reducing costs, harmonizing rules, and number of small entities. document to clearly state that it does promoting flexibility. This rule is not a Administrative Procedure Act not bind the public, except as significant regulatory action under authorized by law or as incorporated Executive Order 12866. This final rule merely incorporates into a contract. requirements of the order and NASA’s • Procedures for the public to petition Executive Order 13132—Federalism existing internal policy and procedures for withdrawal or modification of a Executive Order 13132 requires for issuing guidance documents into the particular guidance document, agencies to ensure meaningful and CFR. Therefore, in accordance with 5 including a designation of the officials timely input by state and local officials U.S.C. 553, the Administrator of NASA to which the petition should be in the development of regulatory has concluded that there is good cause directed. policies that may have a substantial, to publish this rule without prior • Provisions requiring significant direct effect on the states, on the opportunity for public comment guidance documents, unless exempted relationship between the National because the action is of Agency

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organization, procedure, or practice. See Authority: 51 U.S.C. 20113. or technical issue or an interpretation of 5 U.S.C 553(b)(3)(A). a statute or regulation, including § 1204.300 General. speeches and individual presentations, Statutory Authority (a) This subpart governs all National editorials, media interviews, press Part 1204 is established under the Aeronautics and Space Administration materials, or congressional testimony National Aeronautics and Space Act (NASA or Agency) employees and that do not set forth for the first time a (Space Act). In accordance with 51 contractors involved with all phases of new regulatory policy; U.S.C. 20113(a), ‘‘In the performance of issuing NASA guidance documents. (8) Guidance pertaining to military or its functions, the Administration is (b) Subject to the qualifications and foreign affairs functions; exemptions contained in this subpart, authorized to make, promulgate, issue, (9) Grant solicitations and awards; the procedures in this subpart apply to rescind, and amend rules and (10) Contract solicitations and awards; all guidance documents issued by regulations governing the manner of its or NASA after April 23, 2020. operations and the exercise of the (11) Purely internal Agency policies powers vested in it by law.’’ (c) For purposes of this subpart, the term guidance document includes any or guidance directed solely to NASA Paperwork Reduction Act statement of Agency policy or employees or contractors or to other Federal agencies that are not intended to This rule does not contain an interpretation concerning a statute, regulation, or technical matter within have substantial future effect on the information collection requirement behavior of regulated parties. subject to the Paperwork Reduction Act the jurisdiction of the Agency that is of 1995 (44 U.S.C. 3501 et seq.). intended to have general applicability § 1204.301 Review and clearance. and future effect, but which is not All NASA guidance documents, as Unfunded Mandates Reform Act of intended to have the force or effect of defined in § 1204.300(c), require review 1995 law in its own right and is not otherwise and clearance in accordance with this required by statute to satisfy the This rule will not result in the subpart. rulemaking procedures specified in 5 expenditure by state, local, and tribal (a) Guidance proposed by a NASA U.S.C. 553 or 5 U.S.C. 556. The term is governments, in the aggregate, or by the responsible office must be reviewed by not confined to formal written private sector, of $100,000,000 or more the head of the relevant legal practice documents; guidance may come in a in any one year, and it will not group within NASA’s Office of General variety of forms, including (but not significantly or uniquely affect small Counsel (OGC) and cleared by the limited to) letters, memoranda, governments. General Counsel. circulars, bulletins, advisories, and may (b) Additional reviews by other NASA List of Subjects in 14 CFR Part 1204 include video, audio, and web-based offices are also conducted and are Administrative practice and formats. See Office of Management and described in NPD 1400.2, Publishing procedure. Budget (OMB) Bulletin 07–02, ‘‘Agency NASA Documents in the Federal For reasons set forth in the preamble, Good Guidance Practices,’’ (‘‘OMB Good Register and Responding to Regulatory and under the authority of 51 U.S.C. Guidance Bulletin’’). Actions, https://nodis3.gsfc.nasa.gov/ 20113, NASA is amending 14 CFR part (d) This subpart does not apply to: displayDir.cfm?t=NPD&c=1400&s=2E. 1204 as follows: (1) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a); § 1204.302 Requirements for clearance. PART 1204—ADMINISTRATIVE (2) Rules of Agency organization, NASA’s review and clearance of AUTHORITY AND POLICY procedure, or practice; (3) Decisions of Agency adjudications guidance shall ensure that each ■ 1. Add subpart 3 to read as follows: under 5 U.S.C. 554 or similar statutory guidance document proposed by a provisions; NASA responsible office satisfies the Subpart 3—NASA Guidance (4) Internal executive branch legal following requirements: Documents advice or legal advisory opinions (a) The guidance document complies with all relevant statutes and regulation Sec. addressed to executive branch officials; (5) Agency statements of specific (including any statutory deadlines for 1204.300 General. Agency action); 1204.301 Review and clearance. applicability, including advisory or 1204.302 Requirements for clearance. legal opinions directed to particular (b) The guidance document identifies 1204.303 Public access to effective parties about circumstance-specific or includes: guidance documents. questions (e.g., case or investigatory (1) The term ‘‘guidance’’ or its 1204.304 Good faith cost estimates. letters responding to complaints, functional equivalent; 1204.305 Approved procedures for warning letters), notices regarding (2) The issuing NASA responsible guidance documents identified as particular locations or facilities (e.g., office name; ‘‘significant’’ or ‘‘otherwise of (3) A unique identifier, including, at importance to the NASA’s interests.’’ guidance pertaining to the use, 1204.306 Definitions of ‘‘significant operation, or control of a government a minimum, the date of issuance and guidance document’’ and guidance facility or property), and title of the document and its regulatory documents that are ‘‘otherwise of correspondence with individual persons identification number (RIN), if importance to NASA’s interests.’’ or entities (e.g., congressional applicable; 1204.307 Designation procedures. correspondence), except documents (4) The activity or entities to which 1204.308 Notice-and-comment procedures. ostensibly directed to a particular party the guidance applies; 1204.309 Petitions for guidance. but designed to guide the conduct of the (5) Citations to applicable statutes and 1204.310 Rescinded guidance. regulations; 1204.311 Exigent circumstances. broader regulated public; 1204.312 Reports to Congress and the (6) Legal briefs, other court filings, or (6) A statement noting whether the Government Accountability Office positions taken in litigation or guidance is intended to revise or replace (GAO). enforcement actions; any previously issued guidance and, if 204.313 No judicial review or enforceable (7) Agency statements that do not set so, sufficient information to identify the rights. forth a policy on a statutory, regulatory, previously issued guidance; and

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(7) A short summary of the subject recommended standards or practices, § 1204.306, OGC will advise the NASA matter covered in the guidance thereby incurring costs beyond the costs responsible office to proceed with document at the top of the document; of complying with existing statutes and issuance of the guidance through the (c) The guidance document avoids regulations. While it may be difficult to NASA MSD for publication in the using mandatory language, such as predict with precision the economic Federal Register. For each guidance ‘‘shall,’’ ‘‘must,’’ ‘‘required,’’ or impact of voluntary guidance, the document coordinated through the ‘‘requirement,’’ unless the language is proposing NASA responsible office NASA MSD, the issuing NASA describing an established statutory or shall, to the extent practicable, make a responsible office should include a regulatory requirement or is addressed good faith effort to estimate the likely statement in the action memorandum to NASA employees and will not economic cost impact of the guidance indicating that the guidance document foreclose NASA’s consideration of document to determine whether the has been reviewed and cleared in positions advanced by affected private document might be significant. When a accordance with this process. parties; NASA responsible office is assessing or (d) The guidance document is written explaining whether it believes a § 1204.306 Definitions of ‘‘significant in plain and understandable English; guidance document’’ and guidance guidance document is significant, it documents that are ‘‘otherwise of and should, at a minimum, provide the same importance to NASA’s interests.’’ (e) All guidance documents include a level of analysis that would be required (a) The term ‘‘significant guidance clear and prominent statement declaring for a major determination under the document’’ means a guidance document that the contents of the document do not Congressional Review Act. When NASA that will be disseminated to regulated have the force and effect of law, are not determines that a guidance document entities or the general public and that meant to bind the public in any way, will be economically significant, the and the document is intended only to may reasonably be anticipated: NASA responsible office should (1) To lead to an annual effect on the provide clarity to the public regarding conduct and publish a Regulatory economy of $100 million or more or existing requirements under the law or Impact Analysis of the sort that would adversely affect in a material way the NASA’s policies. accompany an economically significant U.S. economy, a sector of the U.S. rulemaking, to the extent reasonably § 1204.303 Public access to effective economy, productivity, competition, guidance documents. possible. jobs, the environment, public health or The NASA responsible office issuing § 1204.305 Approved procedures for safety, or state, local, or tribal guidance documents shall: guidance documents identified as governments or communities. (a) Ensure all effective guidance ‘‘significant’’ or ‘‘otherwise of importance to Historically, NASA has not issued any documents, identified by a unique the NASA’s interests.’’ significant guidance documents with identifier which includes, at a (a) For guidance proposed by a NASA these implications; minimum, the document’s title and date responsible office, if there is a (2) To create serious inconsistency or of issuance or revision and its RIN, if reasonable possibility the guidance may otherwise interfere with an action taken applicable, are on its website in a single, be considered ‘‘significant’’ or or planned by another Federal agency; searchable, indexed database, and ‘‘otherwise of importance to NASA’s (3) To alter materially the budgetary available to the public in accordance interests’’ within the meaning of impact of entitlements, grants, user fees, with § 1204.309; § 1204.306 or if the NASA responsible or loan programs or the rights and (b) Note on its website that guidance office is uncertain whether the guidance obligations of recipients thereof; or documents lack the force and effect of may qualify as such, the NASA (4) To raise novel legal or policy law, except as authorized by law or as responsible office should email a copy issues arising out of legal mandates, the incorporated into a contract; of the proposed guidance document (or President’s priorities, or the principles (c) Advertise on its website where the a summary of it) to OGC for review and set forth in E.O. 12866, as further public can comment electronically on further direction before issuance. Unless amended. any guidance documents that are subject exempt, each proposed NASA guidance (b) The term ‘‘significant guidance to the notice-and-comment procedures document determined to be significant document’’ does not include the described in § 1204.308 and to submit or otherwise of importance to NASA’s categories of documents excluded by requests electronically for issuance, interests must be approved by the § 1204.306 or any other category of reconsideration, modification, or NASA Administrator before issuance. In guidance documents exempted in rescission of guidance documents. such instances, the NASA Mission writing by NASA in consultation with Guidance documents subject to the Support Directorate (MSD) will: OIRA. notice-and-comment procedures, but (1) Request that the proposing NASA (c) Significant and economically not published on the Agency’s website, responsible office obtain a RIN to report significant guidance documents must be will be rescinded; and what NASA is planning to issue; reviewed by OIRA under E.O. 12866 (d) Designate an office to receive and (2) Coordinate the guidance document before issuance and must demonstrate address complaints from the public that with OMB’s Office of Information and compliance with the applicable NASA is not following the requirements Regulatory Affairs (OIRA) for the requirements for regulations or rules, of OMB’s Good Guidance Bulletin or is interagency review, final significance including significant regulatory actions, improperly treating a guidance determination, and clearance; and set forth in E.O. 12866, E.O. 13563, E.O. document as a binding requirement. (3) Advise the NASA responsible 13609, E.O. 13771, and E.O. 13777. office on coordinating the guidance (d) Even if not ‘‘significant,’’ a § 1204.304 Good faith cost estimates. document for an internal NASA review guidance document will be considered Even though not legally binding, some before submitting it to the NASA ‘‘otherwise of importance to NASA’s Agency guidance may result in a Administrator for approval. interests’’ within the meaning of this substantial economic impact. For (b) If the guidance document is paragraph (d) if it may reasonably be example, the issuance of Agency determined not to be either significant anticipated: guidance may induce private parties to or otherwise of importance to NASA’s (1) To relate to a major program, alter their conduct to conform to interests within the meaning of policy, or activity of NASA or a high-

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profile issue pending for decision before the final guidance document is or court order to act more quickly than NASA; published. normal review procedures allow, the (2) To involve one of the NASA (b) The requirements of paragraph (a) issuing NASA responsible office shall Administrator’s top policy priorities; of this section will not apply to any coordinate with NASA’s MSD to notify (3) To garner significant press or significant guidance document or OIRA as soon as possible and, to the congressional attention; or categories of significant guidance extent practicable, comply with the (4) To raise significant questions or documents for which OGC finds, in requirements of this subpart at the concerns from constituencies of consultation with OIRA, the proposing earliest opportunity. Wherever importance to NASA, such as NASA responsible office, and the NASA practicable, the issuing NASA Committees of Congress, states, Indian Administrator, good cause that notice- responsible office should schedule its tribes, the White House or other and-comment procedure thereon are proceedings to permit sufficient time to departments of the Executive Branch, impracticable, unnecessary, or contrary comply with the procedures set forth in courts, consumer or public interest to the public interest (and incorporates this subpart. groups, or leading representatives of the finding of good cause and a brief industry. statement of reasons in the guidance § 1204.312 Reports to Congress and the Government Accountability Office (GAO). issued). Unless the NASA responsible § 1204.307 Designation procedures. office, in consultation with OGC, Unless otherwise determined in (a) OGC may request a NASA advises otherwise in writing, the writing by NASA, it is the policy of the responsible office to prepare a categories of guidance exempted Agency that upon issuing a guidance designation request for their respective pursuant to an agreement between document determined to be guidance document. Designation NASA and OIRA will be exempt from ‘‘significant’’ within the meaning of requests must include the following the requirements of paragraph (a) of this § 1204.306, the issuing NASA information: section. responsible office will submit a report to (1) A summary of the guidance (c) Where appropriate, the NASA Congress and GAO in accordance with document; and responsible office, in consultation with the procedures described in 5 U.S.C. (2) The NASA responsible office’s OGC, may recommend to the NASA 801 (the ‘‘Congressional Review Act’’). recommended designation of ‘‘not Administrator that a particular guidance § 1204.313 No judicial review or significant,’’ ‘‘significant,’’ or document that is otherwise of enforceable rights. ‘‘economically significant,’’ as well as a importance to NASA’s interests shall This subpart is intended to improve justification for that designation. also be subject to the informal notice- (b) Except as otherwise provided in the internal management of NASA. As and-comment procedures described in such, it is for the use of NASA paragraph (c) of this section, the NASA paragraph (a) of this section. MSD will seek significance personnel only and is not intended to, determinations from OIRA. Prior to § 1204.309 Petitions for guidance. and does not create any right or benefit, substantive or procedural, enforceable publishing these guidance documents, (a) Interested parties may submit and with sufficient time to allow OIRA by law or in equity by any party against petitions to NASA requesting the United States, its agencies or other to review the document in the event that withdrawal or modification of any a significance determination is made, entities, its officers or employees, or any effective guidance document by other person. the NASA MSD should provide OIRA selecting the ‘‘petition’’ link for the with an opportunity to review the respective guidance document located Nanette Smith, designation request or the guidance on the NASA Regulations website at: Team Lead for NASA Directives and document, if requested, to determine if https://nodis3.gsfc.nasa.gov/CFR_rep/ Regulations. it meets the definition of ‘‘significant’’ CFR_list.cfm. [FR Doc. 2020–05675 Filed 3–23–20; 8:45 am] or ‘‘economically significant’’ under (b) Interested parties should include BILLING CODE 7510–13–P Executive Order 13891. the guidance document’s title and a (c) Unless they present novel issues, summarized justification describing significant risks, interagency why the document should be NATIONAL AERONAUTICS AND considerations, unusual circumstances, withdrawn, how it should be modified, SPACE ADMINISTRATION or other unique issues, the categories of or the nature of the complaint in the guidance documents exempted pursuant petition in order to receive an expedited 14 CFR Parts 1264 and 1271 to an agreement between NASA and response. [Document Number NASA–2020–032: OIRA do not require designation by (c) The responsible office, in Docket Number–NASA–2020–0002] OIRA. consultation with OGC, will review the RIN 2700–AE52 petition, determine if withdrawal or § 1204.308 Notice-and-comment procedures. modification is necessary or the best Implementation of the Federal Civil way to resolve the complaint, and (a) Except as provided in paragraph Penalties Inflation Adjustment Act and respond to the petitioner with a Adjustment of Amounts for 2020 (b) of this section, all proposed NASA decision no later than 90 days after guidance documents determined to be a receipt of the request. AGENCY: National Aeronautics and ‘‘significant guidance document’’ within Space Administration. the meaning of § 1204.306 are subject to § 1204.310 Rescinded guidance. ACTION: Final rule. notice-and-comment procedures. The No NASA office or NASA Center may issuing NASA responsible office shall cite, use, or rely on guidance documents SUMMARY: The National Aeronautics and publish an advance notice in the that are rescinded, except to establish Space Administration (NASA) has Federal Register of the proposed historical facts. adopted a final rule making inflation guidance document and invite public adjustments to civil monetary penalties comments for a minimum of 30 days, § 1204.311 Exigent circumstances. within its jurisdiction. This final rule then publish a response to major In emergency situations or when represents the annual 2020 inflation concerns raised in the comments when NASA is required by statutory deadline adjustments of monetary penalties.

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