Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / Rules and Regulations 44475 

CORPORATION FOR NATIONAL AND 

COMMUNITY SERVICE 

45 CFR Part 2509 

RIN 3045–AA74 

Procedures for Issuing Guidance 

Documents 

AGENCY: Corporation for National and 

Community Service. 

ACTION: Final rule. 

SUMMARY: The Corporation for National 

and Community Service (CNCS) is 

publishing its procedures for issuing 

Guidance Documents. This rule 

implements section 4 of Executive 

Order 13891, ‘‘Promoting the Rule of 

Law Through Improved Agency 

Guidance Documents’’ (October 9, 

2019). 

DATES: This rule is effective July 23, 

2020. 

FOR FURTHER INFORMATION CONTACT: 

Amy Borgstrom, Corporation for 

National and Community Service, 250 E 

Street SW, Washington, DC 20525, by 

email at aborgstrom@cns.gov, or by 

phone: 202–422–2781. 

SUPPLEMENTARY INFORMATION: 

I. 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, 

CNCS 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; 

(2) procedures for the public to 

petition for withdrawal or modification 

of a particular guidance document, 

including a designation of the officials 

to whom petitions should be directed; 

and 

(3) for a significant guidance 

document, as determined by the 

Administrator of the Office of 

Management and Budget’s (OMB’s) 

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 

requirements, 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). 

II. Regulatory Procedures 

Administrative Procedure Act 

This final rule incorporates 

requirements of the Executive order and 

CNCS’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)), CNCS 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. 

List of Subjects in 45 CFR Part 2509 

Administrative practice and 

procedure. 

■ For the reasons discussed in the 

preamble, under the authority of 42 

U.S.C. 12651c(c), the Corporation for 

National and Community Service adds 

45 CFR part 2509 to read as follows: 

PART 2509—ADMINISTRATIVE 

PRACTICE AND PROCEDURES 

Subpart A—Guidance Documents 

Sec. 

2509.10 What does this subpart cover? 

2509.12 What should I do if a guidance 

document is covered by this subpart? 

2509.14 What is the purpose of the review 

and clearance procedure? 

2509.16 How will CNCS make guidance 

documents available to the public? 

2509.18 What procedures apply to guidance 

documents identified as ‘‘significant’’? 

2509.20 What is a ‘‘significant’’ guidance 

document? 

2509.22 When will guidance be published 

for public notice-and-comment? 

2509.24 How may the public submit a 

petition to CNCS for the withdrawal or 

modification of a guidance document? 

2509.26 What is the effect of rescinded 

guidance documents? 

2509.28 How will significant guidance be 

issued when there are exigent 

circumstances? 

2509.30 No judicial review or enforceable 

rights. 


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44476 Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / Rules and Regulations 

Subpart B [Reserved] 

Authority: 42 U.S.C. 12651c(c); E.O. 

13891, 84 FR 55235. 

Subpart A—Guidance Documents 

§ 2509.10 What does this subpart cover? 

(a) This subpart sets forth the 

Corporation for National and 

Community Service’s (CNCS’s) 

procedures for issuing guidance 

documents. It applies to all CNCS 

employees and contractors involved in 

issuing CNCS guidance documents on 

or after April 28, 2020. 

(b) For the purposes of this subpart, 

‘‘guidance document’’ means any 

statement of general applicability, 

intended to have future effect on the 

behavior of regulated parties, that sets 

forth a policy on a statute, regulatory, or 

technical issue, or an interpretation of a 

statute or regulation, but does not 

include: 

(1) Legislative rules promulgated 

under 5 U.S.C. 553 (or similar statutory 

provisions), or 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 branch legal 

advice or legal advisory opinions 

addressed to executive branch officials; 

(5) Agency statements of specific 

applicability, including advisory or 

legal opinions directed to particular 

parties about circumstance-specific 

questions, notices regarding particular 

locations or facilities, and 

correspondence with individual persons 

or entities, except documents directed 

to a particular party and 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 for the first time a new regulatory 

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; 

(8) Grant solicitations and awards; 

(9) Contract solicitations and awards; 

or 

(10) Purely internal agency policies or 

guidance directed solely to CNCS 

employees or contractors or to other 

Federal agencies that are not intended to 

have substantial future effect on the 

behavior of regulated parties. 

§ 2509.12 What should I do if a guidance 

document is covered by this subpart? 

(a) All CNCS guidance documents 

require review and clearance in 

accordance with this subpart. 

(b) Guidance proposed by CNCS must 

be reviewed by the Office of General 

Counsel (OGC) and cleared by the 

General Counsel or his/her designee. 

(c) Additional reviews by other CNCS 

officials are also conducted as described 

in CNCS Policy 100—Preparing Policies 

and Procedures and Policy 103— 

Clearing Controlled Correspondence 

and Other Documents with the Board, 

Chief Executive Officer, and Chief of 

Staff, or subsequent updates or revisions 

to those policies. 

§ 2509.14 What is the purpose of the 

review and clearance procedure? 

CNCS’s guidance issuance process 

shall ensure that each proposed 

guidance document satisfies the 

following requirements: 

(a) The guidance document complies 

with all relevant statutes and 

regulations (including any statutory 

deadlines for Agency action); 

(b) The guidance document identifies 

or includes: 

(1) The term ‘‘guidance’’ or its 

functional equivalent; 

(2) The issuing CNCS 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 CNCS employees and will not 

foreclose CNCS’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 CNCS’s guidance document is 

binding because binding guidance is 

authorized by law or because the 

guidance is incorporated into a contract, 

CNCS will modify the disclaimer above 

to reflect either of those facts. 

§ 2509.16 How will CNCS make guidance 

documents available to the public? 

CNCS 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 § 2905.16; 

(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; and 

(c) Publish on its website where the 

public can comment electronically on 

any guidance documents that are subject 

to the notice-and-comment procedures 

described in § 2509.22 and to submit 

requests electronically for issuance, 

reconsideration, modification, or 

rescission of guidance documents. 

(d) Guidance documents that do not 

appear on the Agency’s single, 

searchable, indexed database are 

rescinded. 

§ 2509.18 What procedures apply to 

guidance documents identified as 

‘‘significant’’? 

(a) OGC review of proposed guidance 

documents will include a preliminary 

determination as to whether the 

proposed guidance document is 

significant within the meaning of 

§ 2509.20. Unless exempt, each 

proposed guidance document 

determined to be significant must be 

approved by the Chief Executive Officer 

before issuance. In such instances, 

CNCS will: 

(1) Obtain a RIN to report what CNCS 

is planning to issue; 

(2) Coordinate the guidance document 

with the Office of Management and 

Budget’s (OMB’s) Office of Information 

and Regulatory Affairs (OIRA) for the 

interagency review, final significance 

determination, and clearance; and 

(3) Coordinate internal review and 

clearance of the guidance document 

before submitting it to the Chief 

Executive Officer for approval, 

consistent with CNCS Policy 103. 


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Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / Rules and Regulations 44477 

(b) If the guidance document is 

determined to be significant under 

§ 2509.20, CNCS may proceed with 

publication in the Federal Register. For 

each significant guidance document, the 

originating CNCS office should include 

a statement in the clearance 

memorandum indicating that the 

guidance document has been reviewed 

and cleared in accordance with this 

section. 

§ 2509.20 What is a ‘‘significant’’ guidance 

document? 

(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; 

(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 

§ 2509.12 or any other category of 

guidance documents exempted in 

writing by CNCS in consultation with 

OIRA. 

(c) Significant and 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. 

§ 2509.22 When will guidance be 

published for public notice-and-comment? 

(a) Except as provided in paragraph 

(b) of this section, all proposed CNCS 

guidance documents determined to be 

significant within the meaning of 

§ 2509.20 are subject to public noticeand-comment. CNCS shall publish 

notification in the Federal Register of 

the proposed significant 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) The requirements of paragraph (a) 

of this section will not apply to any 

significant guidance document for 

which CNCS finds, in consultation with 

OIRA, good cause that notice-andcomment procedures 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). 

(c) CNCS 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. 

§ 2509.24 How may the public submit a 

petition to CNCS for the withdrawal or 

modification of a guidance document? 

(a) Interested parties may submit 

petitions to CNCS requesting 

withdrawal or modification of any 

effective guidance document by sending 

an email to Guidance@cns.gov or by 

sending the request to Corporation for 

National and Community Service ATT: 

Associate Director of Policy, 250 E 

Street SW, Washington, DC 20525. 

(b) Interested parties should include 

the guidance document’s title and a 

summary justification describing why 

the document should be withdrawn, 

how it should be modified, or the nature 

of the concern with the guidance. 

(c) The responsible CNCS department, 

in consultation with OGC, will review 

the petition, determine if withdrawal or 

modification is necessary or the best 

way to resolve the concern, and respond 

to the petitioner no later than 90 days 

after receipt of the request. 

§ 2509.26 What is the effect of rescinded 

guidance documents? 

CNCS may not cite, use, or rely on 

rescinded guidance documents, except 

to establish historical facts. 

§ 2509.28 How will significant guidance be 

issued when there are exigent 

circumstances? 

Under exigent circumstances, such as 

safety, health, or when statutory 

deadlines or court order or other 

compelling cause require CNCS to act 

more quickly than normal review 

procedures allow, CNCS will notify 

OIRA as soon as possible and, to the 

extent practicable, comply with the 

requirements of this subpart at the 

earliest opportunity. 

§ 2509.30 No judicial review or enforceable 

rights. 

This subpart is intended to improve 

the internal management of CNCS. As 

such, it is for the use of CNCS 

employees 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. 

Subpart B [Reserved] 

Dated: June 24, 2020. 

Helen Serassio, 

Acting General Counsel. 

[FR Doc. 2020–13940 Filed 7–22–20; 8:45 am] 

BILLING CODE 6050–28–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Part 191 

[Docket No. PHMSA–2016–0016; Amdt. No. 

191–28] 

RIN 2137–AF22 

Pipeline Safety: Safety of Underground 

Natural Gas Storage Facilities; 

Correction 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Correcting amendments. 

SUMMARY: The Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA) published a final rule in the 

Federal Register on February 12, 2020, 

amending PHMSA’s regulations 

establishing minimum safety standards 

for underground natural gas storage 

facilities. That document inadvertently 

removed certain reporting requirements 

for natural gas pipeline operators. This 

document corrects the final regulations. 

DATES: Effective on July 23, 2020. 

FOR FURTHER INFORMATION CONTACT: 

Ashlin Bollacker, Technical Writer, 

Office of Pipeline Safety, at 202–366– 

4203. 

SUPPLEMENTARY INFORMATION: On 

February 12, 2020, PHMSA published a 

final rule titled: ‘‘Safety of Underground 

Natural Gas Storage Facilities.’’ (85 FR 

8104). The final rule contained an error 

that inadvertently removed two 

paragraphs from the current regulations. 

This document corrects the unintended 

deletion. 

The final rule revised § 191.22 to add 

new reporting requirements for 

underground natural gas storage 

facilities (UNGSF). However, in adding 

those new reporting requirements for 

UNGSF facilities, a pair of reporting 


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