[Federal Register Volume 85, Number 162 (Thursday, August 20, 2020)]
[Rules and Regulations]
[Pages 51337-51340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17878]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 426

[Docket No. SSA-2020-0002]
RIN 0960-AI47


Improved Agency Guidance Documents

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: This final rule explains our process for issuing guidance 
documents under Executive Order (E.O.) 13891, ``Promoting the Rule of 
Law Through Improved Agency Guidance Documents.'' We will follow this 
process when we issue future guidance documents that meet the criteria 
set forth in the E.O. and the Office of Management and Budget's (OMB) 
guidance on the E.O.

DATES: This final rule will be effective September 21, 2020.

FOR FURTHER INFORMATION CONTACT: Jennifer Dulski, Office of Regulations 
and Reports Clearance, Social Security Administration, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, (410) 966-2341. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: On October 9, 2019, President Trump issued 
E.O. 13891.\1\ E.O. 13891 mandates that agencies, consistent with 
applicable law, finalize regulations, or amend existing regulations as 
necessary, to explain the process for issuing guidance documents as 
defined by the E.O. We are publishing this final rule to fulfill E.O. 
13891's requirements.
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    \1\ 84 FR 55235, available at: https://www.federalregister.gov/documents/2019/10/15/2019-22623/promoting-the-rule-of-law-through-improved-agency-guidance-documents.
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    As defined in E.O. 13891, guidance documents are agency statements 
of general applicability, intended to have future effect on the 
behavior of regulated parties, that set forth a policy on a statutory, 
regulatory, or technical issue, or an interpretation of a statute or 
regulation. Unless the document falls within an enumerated exclusion to 
this definition,\2\ any document that satisfies this definition would 
qualify as a guidance document, regardless of name or format.
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    \2\ E.O. 13891 section 2 (b) lists the following as exclusions 
to the definition of guidance document: (i) Rules promulgated 
pursuant to notice and comment under section 553 of title 5, United 
States Code, or similar statutory provisions; (ii) rules exempt from 
rulemaking requirements under section 553(a) of title 5, United 
States Code; (iii) rules of agency organization, procedure, or 
practice; (iv) decisions of agency adjudications under section 554 
of title 5, United States Code, or similar statutory provisions; (v) 
internal guidance directed to the issuing agency or other agencies 
that is not intended to have substantial future effect on the 
behavior of regulated parties; and (vi) internal executive branch 
legal advice or legal opinions addressed to executive branch 
officials. See 84 FR at 55235-36.
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    The documents that we issue include Program Operations Manual 
System (POMS) instructions; the Hearings, Appeals and Litigation Law 
(HALLEX) manual; Social Security Rulings (SSR); and Acquiescence 
Rulings.\3\ Most of the documents that we issue do not qualify as 
guidance documents under E.O. 13891; however, some may. We will use

[[Page 51338]]

the process in this final rule for the documents we issue, as 
appropriate.
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    \3\ See other written guidelines in 20 CFR 404.1602 and 416.1002 
for more information about POMS and SSRs. See 20 CFR 402.35 for 
information about where we publish SSRs and ARs. See 20 CFR 404.985 
and 416.1485 for more information about ARs. Additionally, our POMS 
instructions are publicly available at https://secure.ssa.gov/poms.nsf/Home?readform, our HALLEX manual is publicly available at 
https://www.ssa.gov/OP_Home/hallex/hallex.html, and our SSRs and ARs 
are publicly available at https://www.ssa.gov/OP_Home/rulings/rulings.html.
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    As required by E.O. 13891, this final rule includes:
     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.
     Procedures for the public to petition for withdrawal or 
modification of a particular guidance document, including a designation 
of the official to whom the public should direct petitions.
     Specific requirements for a guidance document that 
qualifies as ``significant,'' unless an exemption applies.\4\
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    \4\ A significant guidance document is a guidance document that 
may reasonably be anticipated to: (i) Lead to an annual effect on 
the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or 
State, local, or tribal governments or communities; (ii) create a 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency; (iii) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (iv) raise novel 
legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles of Executive Order 12866. 
E.O. 13891, section 2(c), 84 FR at 55236. The Administrator of the 
Office of Management and Budget's Office of Information and 
Regulatory Affairs determines if a guidance document is significant. 
An exemption applies when the agency and the Administrator agree 
that exigency, safety, health, or other compelling cause warrants an 
exemption from some or all requirements. E.O. 13891, section 
4(a)(iii), 84 FR at 55237.
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    For significant guidance documents, absent an exemption from some 
or all requirements, this final rule sets forth the following 
requirements, as prescribed by E.O. 13891:
     A period of public notice and comment of at least 30 days 
before issuance, and a public response to major concerns raised in 
comments, except when we find, for good cause, that notice and public 
comment are impracticable, unnecessary, or contrary to the public 
interest.
     Approval on a non-delegable basis by our agency head or by 
the head of one of our components whom the President appoints, before 
issuance.
     Review by the Office of Information and Regulatory Affairs 
under Executive Order 12866, before issuance.
     Compliance with the applicable requirements for 
regulations or rules, including significant regulatory actions, set 
forth in Executive Orders 12866 (Regulatory Planning and Review), 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).
    On October 31, 2019, OMB issued a memorandum, M-20-02 ``Guidance 
Implementing Executive Order 13891, Titled `Promoting the Rule of Law 
Through Improved Agency Guidance Documents''' (Memorandum M-20-02).\5\ 
Memorandum M-20-02 directs that an agency's regulations should require 
guidance documents to, at minimum:
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    \5\ Available at https://www.whitehouse.gov/wp-content/uploads/2019/10/M-20-02-Guidance-Memo.pdf.
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     Include the term ``guidance.''
     Identify the agency or office issuing the document.
     Identify the activities to which and the persons to whom 
the document applies.
     Include the date of issuance.
     Note if it is a revision to a previously issued guidance 
document and, if so, identify the guidance document that it replaces.
     Provide the title of the guidance and the document 
identification number.
     Include the citation to the statutory provision or 
regulation to which it applies or which it interprets.
     Include the disclaimer that the guidance document does not 
have the force and effect of law and is not meant to bind the public, 
except as authorized by law or incorporated into a contract.
     Include a short summary of the subject matter covered in 
the guidance document at the top of the document.
    Based on the requirements of E.O. 13891 and consistent with the 
guidance in Memorandum M-20-02, we are adding a new part to our 
regulations--20 CFR chapter III part 426.
    For more information about the documents that we issue, please see 
www.socialsecurity.gov/guidance.

Rulemaking Analyses and Notices

Regulatory Procedures

    We follow the Administrative Procedure Act (APA) rulemaking 
procedures in 5 U.S.C. 553 when we develop regulations. Generally, the 
APA requires that an agency provide prior notice and opportunity for 
public comment before issuing a final rule. Under 5 U.S.C. 553 
(b)(3)(A), agencies are not required to provide prior notice and 
opportunity for the public to comment for a rule that is an 
interpretative rule, a general statement of policy, or a rule of agency 
organization, procedure, or practice. We find this rule is exempt from 
the requirement to provide prior notice and opportunity for public 
comment because it is a rule of ``agency organization, procedure, or 
practice.'' It merely explains the process we will follow when issuing 
guidance documents as defined by the E.O., and how we will comply with 
the requirements of the E.O. Accordingly, we are issuing this final 
rule without prior public comment.

Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with OMB and determined that this final rule does not 
meet the requirements for a significant regulatory action under 
Executive Order 12866, as supplemented by Executive Order 13563. 
Therefore, OMB did not review it.

Executive Order 13771

    This final rule is not an Executive Order 13771 regulatory action 
because it results in costs that are de minimis.

Regulatory Flexibility Act

    We certify that this final rule will not have a significant 
economic impact on a substantial number of small entities, because it 
affects individuals only. Therefore, a regulatory flexibility analysis 
is not required under the Regulatory Flexibility Act, as amended.

Executive Order 13132

    We analyzed this final rule in accordance with the principles and 
criteria established by Executive Order 13132, and determined that the 
rule will not have sufficient Federalism implications to warrant the 
preparation of a Federalism assessment. We also determined that this 
final rule would not preempt any State law or State regulation or 
affect the States' abilities to discharge traditional State 
governmental functions.

Paperwork Reduction Act

    This final rule does not impose any new requirements under the 
Paperwork Reduction Act (PRA), nor does it require modification to any 
of SSA's existing OMB PRA-approved information collections. If in the 
future SSA publishes individual guidance documents that involve public 
information collection, we will seek PRA approval for them in advance 
of collecting the information.

(Catalog of Federal Domestic Assistance Program Nos. 9601, Social 
Security--Disability Insurance; 96.006 Supplemental Security Income)

List of Subjects for 20 CFR Part 426

    Social security, Guidance.


[[Page 51339]]


    The Commissioner of the Social Security Administration, Andrew 
Saul, having reviewed and approved this document, is delegating the 
authority to electronically sign this document to Faye I. Lipsky, who 
is the primary Federal Register Liaison for SSA, for purposes of 
publication in the Federal Register.

Faye I. Lipsky,
Federal Register Liaison, Office of Legislation and Congressional 
Affairs, Social Security Administration.

0
For the reasons set out in the preamble, we amend 20 CFR chapter III by 
adding part 426 to read as follows:

PART 426--GUIDANCE DOCUMENTS

Sec.
426.5 Purpose.
426.10 Explanation of agency guidance documents.
426.15 When guidance documents are nonbinding.
426.20 Procedures for the public to request withdrawal or 
modification of a guidance document.
426.25 Significant guidance documents.

    Authority:  Secs. 205(a)-(b) and (d)-(h), and 702(a)(5) of the 
Social Security Act (42 U.S.C., 405(a)-(b) and (d)-(h) and 
902(a)(5)); and E.O. 13891, 84 FR 55235.


Sec.  426.5  Purpose.

    We established this part to comply with the requirements of 
Executive Order 13891 of October 9, 2019, Promoting the Rule of Law 
Through Improved Agency Guidance Documents. The rules in this part 
relate to agency guidance documents. They explain what constitutes 
guidance documents, describe the non-binding nature of guidance 
documents, the procedures to request withdrawal or modification of 
guidance documents, and the additional requirements and procedures for 
significant guidance documents.


Sec.  426.10  Explanation of agency guidance documents.

    (a) Guidance documents. Guidance documents are agency statements of 
general applicability, intended to have future effect on the behavior 
of regulated parties, that set forth a policy on a statutory, 
regulatory, or technical issue, or an interpretation of a statute or 
regulation.
    (b) Documents not classified as guidance. Guidance documents do not 
include:
    (1) Agency statements of specific, rather than general, 
applicability.
    (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.
    (3) 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).
    (4) Rules of agency organization, procedure, or practice.
    (5) Decisions of agency adjudication.
    (6) Documents or agency statements that are directed solely to the 
issuing agency or other agencies (or personnel of such agencies) that 
are not anticipated to have substantial future effect on the behavior 
of regulated parties or the public.
    (7) Legal briefs and other court filings.
    (8) Legal opinions by the Office of Legal Counsel at the Department 
of Justice.
    (9) Legal advice or opinions from our Office of the General 
Counsel.
    (c) Elements of guidance documents. In general, each published 
guidance document should, at a minimum:
    (1) Include the term ``guidance.''
    (2) Identify the agency or office issuing the document.
    (3) Identify the activities to which and the persons to whom the 
document applies.
    (4) Include the date of issuance.
    (5) Note if it is a revision to a previously issued guidance 
document and, if so, identify the guidance document that it replaces.
    (6) Provide the title of the guidance and the unique document 
identification number.
    (7) Include the citation to the statutory provision or regulation 
to which it applies or which it interprets.
    (8) Include the disclaimer in 20 CFR 426.15(b).
    (9) Include a short summary of the subject matter covered in the 
guidance document at the top of the document.
    (d) Our guidance documents. Any document that satisfies the 
definition in paragraph (a) of this section and that does not meet an 
exclusion in paragraph (b) of this section qualifies as a guidance 
document, regardless of name or format. On our internet site, we 
maintain an indexed, searchable web page, which contains links to all 
of our guidance documents in effect.
    (e) Rescinded guidance documents. We will not cite, use, or rely on 
guidance documents that are rescinded, except to establish historical 
facts. Any guidance documents that do not appear on our internet site 
as described in paragraph (d) of this section, will be considered 
rescinded.


Sec.  426.15  When guidance documents are nonbinding.

    (a) Guidance documents lack the force and effect of law, unless 
expressly authorized by law or incorporated into a contract.
    (b) We will include a disclaimer on guidance documents clarifying 
that they do not have the force and effect of law and are not meant to 
bind the public in any way, and are intended only to provide clarity to 
the public regarding existing requirements under the law or agency 
policies. When a guidance document is binding because the law 
authorizes binding guidance or because a contract incorporates the 
guidance, we will modify the disclaimer to reflect either of those 
facts.


Sec.  426.20  Procedures for the public to request withdrawal or 
modification of a guidance document.

    The public may ask us to consider withdrawing or modifying an 
existing guidance document. The public may direct these requests to the 
Commissioner of the Social Security Administration by sending an email 
to [email protected] or mail to 3100 West High Rise, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401. We will respond within 90 
days of receipt.


Sec.  426.25  Significant guidance documents.

    (a) Significant guidance documents. Significant guidance documents 
are guidance documents that may be reasonably anticipated to do one or 
more of the following:
    (1) Lead to an annual effect on the economy of $100 million or 
more, or adversely and materially affect the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    (2) Create a serious inconsistency or otherwise interfere with an 
action another agency has taken or planned.
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof.
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles of Executive 
Order 12866.
    (b) Significance determination. We will refer to the Administrator 
of the Office of Information and Regulatory Affairs within the Office 
of Management and Budget, or the Administrator's designee, the question 
of whether a guidance document is significant.
    (c) Actions we will take before issuing significant guidance 
documents. For significant guidance documents, unless we and the 
Administrator of the Office of Information and Regulatory Affairs agree 
that exigency, safety, health, or other compelling cause warrants an 
exemption from some or all requirements, we will do the following:

[[Page 51340]]

    (1) Submit the guidance document for review by the Office of 
Information and Regulatory Affairs under Executive Order 12866.
    (2) Publish a document in the Federal Register announcing the 
availability of a significant guidance document and make the draft 
guidance document available on our website.
    (3) Provide a public notice and comment period of at least 30 days 
before issuance of a final guidance document, and a public response to 
major concerns raised in comments, except when we for good cause find 
(and incorporate 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.
    (4) Obtain approval on a non-delegable basis from the Commissioner 
of Social Security, or from a component head the President appoints 
(with or without confirmation by the Senate), or from an official who 
is serving in an acting capacity as either of the foregoing.
    (5) Comply with the applicable requirements for regulations or 
rules, including significant regulatory actions, set forth in Executive 
Orders 12866 (Regulatory Planning and Review), 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).

[FR Doc. 2020-17878 Filed 8-19-20; 8:45 am]
BILLING CODE 4191-02-P