(a) For purposes of this section, the term “guidance” document includes any statement of agency policy or interpretation concerning a statute, regulation, or technical matter within the jurisdiction of the Railroad Retirement Board that is intended to have general applicability and future effect, but which is not intended to have the force and effect of law in its own right. The term “guidance” document 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. As used in this section, “Railroad Retirement Board” or “RRB” refers to the agency, and “Board” refers to the three Presidential appointees who together serve as the head of the agency.

(b) “Guidance” document does not include the following:

(1) 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, including congressional correspondence or notices of violation;

(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. This exclusion excludes from the definition of “guidance” documents that merely communicate news updates about the agency;

(3) Regulations promulgated pursuant to notice and comment under 5 U.S.C. 553;

(4) Rules exempt from rulemaking requirements under 5 U.S.C. 553.

(5) Rules of agency organization, procedure, or practice;

(6) Decisions of agency adjudication;

(7) Legal briefs and other court filings;

(8) Contract solicitations and awards; and

(9) Purely internal agency policies or guidance directed solely to Railroad Retirement Board (RRB) employees or contractors or to other Federal agencies that are not intended to have substantial future effect on the behavior of regulated parties or the public.

(c) “Significant guidance document” means a guidance document that will be disseminated to 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 Executive Order 12866, as amended.

(d) All guidance documents require review and clearance in accord with this section. Guidance proposed to be issued by an office or bureau within the RRB must be reviewed and cleared by the Office of General Counsel (OGC). OGC's review and clearance shall ensure that each guidance document proposed to be issued satisfies the following requirements:

(1) The guidance document complies with all relevant statutes and regulations, including any statutory deadlines for agency action.

(2) The guidance document identifies or includes:

(i) The term “guidance” or its functional equivalent;

(ii) The issuing office or bureau of the RRB;

(iii) A unique identifier, including, at a minimum, the date of issuance and title of the document;

(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.

(3) 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 RRB staff and will not foreclose the RRB's consideration of positions advanced by affected private parties;

(4) The guidance document is written in plain and understandable English;

(5) All guidance documents include a clear and prominent statement declaring that the contents of the document do not have the force and effect of law and are not meant to bind the public in any way, and the document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

(e) In addition to the procedures governing the review and clearance of guidance documents, issuance of significant guidance documents must also be preceded by the requirements enumerated in this section unless the Board and OMB's Office of Information and Regulatory Affairs (OIRA) agree that exigency, safety, health, or other compelling cause warrants an exemption from some or all of the following requirements:

(1) Public notice of and a request for comment on the proposed issuance of a significant guidance document must be given at least 30 days before its issuance. The RRB will provide a public response to major concerns raised in comments, except when the RRB 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.

(2) A majority of the three-member Board (Board) that heads the RRB must approve the significant guidance document.

(3) OIRA makes the final significance determination for a significant guidance document. A significant guidance document must be reviewed by OIRA under Executive Order (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.

(4) The Board may request a categorical determination that a class of guidance documents presumptively does not qualify as significant under Executive Order 13891 by submitting to OIRA a written request that is signed by the General Counsel and that explains why the proposed category of guidance document generally is only routine or ministerial, or is otherwise of limited importance to the public. Examples of documents in the category should be provided to OIRA with the written request for a categorical exemption.

(f) A member of the public may file a petition for withdrawal or modification of a particular guidance document by filing a written request with the Secretary to the Board at 844 N Rush Street, Chicago, Illinois 60611-1275. The Board will respond to each petition in a timely manner, but no later than 90 days after receipt of the petition with a decision and rationale for the decision.

(g) The Board will not cite, use, or rely on a guidance document that is rescinded, except to establish historical facts.

(h) The Board maintains on its website a guidance portal from which all guidance documents may be accessed. Unless a guidance document is on the website, it is not considered to be in effect.

[85 FR 53161, Aug. 28, 2020]