PART 1213—AGENCY GUIDANCE PROCEDURES Authority: 44 U.S.C. 2104(a). Source: 85 FR 31979, May 28, 2020, unless otherwise noted. § 1213.1 Scope. (a) This part prescribes general procedures that apply to guidance documents NARA and its components issue after April 30, 2020, and to all NARA employees and contractors involved in all phases of developing and issuing policy and guidance. (b) This part does not apply to: (1) Regulations; although some regulations are subject to rulemaking requirements under 5 U.S.C. 553(a), they do not constitute guidance, so are not covered by this rule. In addition, this rule does not apply to regulations exempt from rulemaking requirements under 5 U.S.C. 553(a) and regulations of agency organization, procedure, or practice; (2) Decisions of agency adjudications under 5 U.S.C. 554 or similar statutory provisions; (3) Internal executive branch legal advice or legal advisory opinions addressed to executive branch officials; (4) Agency statements of specific applicability, including advisory or legal opinions directed to particular parties about circumstance-specific questions ( e.g., e.g., e.g., (5) Legal briefs, other court filings, or positions taken in litigation or enforcement actions; (6) 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 or guidance; (7) Guidance pertaining to military or foreign affairs functions; (8) Grant solicitations and awards; (9) Contract solicitations and awards; or (10) Purely internal agency policies or guidance directed solely to NARA employees or contractors or to other Federal agencies that we do not intend to have substantial future effect on the behavior of regulated parties. § 1213.2 Definitions. (a) Guidance guidance document See (b) Significant guidance document (1) 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) Create serious inconsistency or otherwise interfere with an action another Federal agency takes or plans; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of those who receive them; or (4) 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. § 1213.4 Requirements for review and clearance. (a) NARA's regulatory office must review and clear, according to this subpart, all NARA guidance documents before we issue them. (b) The regulatory office ensures that each guidance document satisfies the following requirements: (1) It complies with relevant statutes and regulations, and other applicable authorities; (2) It identifies or includes: (i) The term “guidance” or its functional equivalent; (ii) The issuing office's name; (iii) A unique agency identifier, according to naming conventions we establish, and a z-RIN, if applicable; (iv) A concise title; (iv) The issuing or effective date; (v) An indicator of whether the guidance revises or replaces any previously issued guidance and, if so, sufficient information to identify the previously issued guidance; and (vi) Appropriate citations to applicable statutes, regulations, and other authorities; and (3) It is consistent with NARA policies, guidance, strategic initiatives, and other authorities, is written in plain and understandable English, and meets other guidance and policy analysis factors . (c) The guidance document must also either contain or be accompanied by an appropriate topic keyword and a short summary of the subject matter covered in the guidance document, for use on the guidance portal. (d) The regulatory office also assesses whether the guidance document constitutes significant guidance and works with the submitting office to make a good faith cost estimate, as applicable, in accordance with § 1213.8(a). If we determine that a guidance document might be significant, the regulatory office coordinates with OMB's Office of Information and Regulatory Affairs (OIRA), as outlined in § 1213.8(d). (e) We also assess whether the guidance document might be otherwise important to the agency's interests, if we reasonably anticipate that it might: Relate to a major program, policy, or activity, or a high-profile issue involving the agency or its interests; involve one of NARA's top policy priorities; garner significant press, congressional, or other attention; or raise significant questions or concerns from constituencies such as committees of Congress, states or Indian tribes, the White House or other departments of the executive branch, courts, public interest groups, or leading representatives of industry. When appropriate, we may determine that a particular guidance document that is otherwise of importance to the agency's interests be subject to the informal notice-and-comment procedures described in § 1213.8(f). (f) The regulatory office submits guidance documents we determine may be significant to OIRA for significance determinations, before clearing the submitting office to issue them. (f) When we issue a guidance document, we post it on our centralized guidance portal (see § 1213.6(a)). [85 FR 31979, May 28, 2020, as amended at 87 FR 21024, Apr. 11, 2022] Editorial Note: At 87 FR 21024, Apr. 11, 2022, § 1213.4 was amended; however, a portion of the amendment could not be completed because the section contains two paragraphs designated (f). § 1213.6 Public access to guidance documents. We post the cleared document on our centralized guidance portal at www.archives.gov/guidance. [85 FR 31979, May 28, 2020, as amended at 87 FR 21024, Apr. 11, 2022] § 1213.8 Significant guidance. (a) Good faith cost estimates. (b) Regulatory impact analyses. (c) Excluded guidance. (d) OIRA review of significant guidance. (e) Signature or approval. (f) Informal notice-and-comment procedures. Federal Register regulations.gov regulations.gov (g) Exceptions to notice-and-comment procedures. [85 FR 31979, May 28, 2020, as amended at 87 FR 21024, Apr. 11, 2022] § 1213.10 Petitions for guidance. (a) Any person may petition that we issue, reconsider, modify, or rescind a particular guidance document by using the procedures described here and on our guidance portal at www.archives.gov/guidance. (b) Submit your petition using the contact information and method noted on the guidance portal, which includes an email address or web portal for submitting electronic petitions, a mailing address for submitting hard copy petitions, and the office responsible for coordinating the request. You must submit your petition through one of these means, and the petition must: (1) Describe the nature of the request and set out the text or substance of the guidance you are requesting or that you wish us to reconsider, modify, or rescind; (2) Explain your interest in the action you are requesting; and (3) Contain any information and arguments you have to support the action you are seeking. (c) We will review your request and make a decision whether to grant the request or deny it in whole or in part. We will provide you with a response to your request and a status update or our decision within 90 days after we receive the petition, if you provide email or mail contact information. § 1213.16 Exigent circumstances. In emergency situations or when we are required by statutory deadline, court order, or other exigent circumstances to act more quickly than normal review procedures allow, we notify OIRA as soon as possible and, to the extent practicable, comply with the requirements of this subpart at the earliest opportunity. Whenever practicable, we permit sufficient time to comply with the procedures in this subpart. § 1213.18 No judicial review or enforceable rights. We intend this part to improve our internal management. As a result, it is for the use of NARA personnel only and we do not intend it to, nor does it, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies or other entities, its officers or employees, or any other person.