    [Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
    [Rules and Regulations]
    [Pages 53160-53162]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2020-18861]

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    RAILROAD RETIREMENT BOARD

    20 CFR Part 200

    RIN 3220-AB 74

    Guidance Documents

    AGENCY: Railroad Retirement Board.

    ACTION: Interim final rule.

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    SUMMARY: To implement the executive order ``Promoting the Rule of Law
    Through Improved Agency Guidance Documents,'' we are amending our
    regulations to set forth procedures for issuing guidance documents. The
    amendment defines ``guidance'' document and explains the procedures
    that the Railroad Retirement Board will follow in issuing a guidance
    document.

    DATES: This Interim Final Rule takes effect August 28, 2020. Comments
    may be submitted until October 27, 2020.

    ADDRESSES: You may submit comments, identified by RIN 3220-AB 74, by
    any of the following three methods: Internet, fax, or mail. Do not
    submit the same comments multiple times or by more than one method.
    Regardless of which method you choose, please state that your comments
    refer to RIN number 3220-AB 74.
        Caution: You should be careful to include in your comments only
    information that you wish to make publicly available as comments are
    posted without change, with any personal information provided. We
    strongly urge you not to include in your comments any personal
    information such as social security numbers or medical information.
        1. Internet: Email comments to the Secretary to the Board at
    SecretarytotheBoard@rrb.gov.
        2. Fax: Fax comments to (312) 751-7102.
        3. Mail: Address your comments to the Secretary to the Board,
    Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois
    60611-1275.

    FOR FURTHER INFORMATION CONTACT: Marguerite P. Dadabo, Assistant
    General Counsel, Railroad Retirement Board, 844 North Rush Street,
    Chicago, Illinois 60611-1275, (312) 751-4945, TTD (312) 751-4701.

    SUPPLEMENTARY INFORMATION: On October 9, 2019, the President issued
    Executive Order 13891, entitled ``Promoting the Rule of Law through
    Improved Agency Guidance Documents.'' Section 4 of the Executive Order
    requires each agency to finalize regulations or amend existing
    regulations to set forth processes and procedures for issuing guidance
    documents within 300 days of the date on which the Office of Management
    and Budget (OMB) issues an implementing memorandum under section 6 of
    the Executive Order. OMB issued its memorandum, M-20-02, on October 31,
    2019. Section 4 of the Executive Order provides that the process set
    forth in each regulation shall be consistent with the Executive Order
    and shall include:
        (i) 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;
        (ii) Procedures for the public to petition for withdrawal or
    modification of a particular guidance document, including a designation
    of the officials to which petitions should be directed; and
        (iii) For a significant guidance document, as determined by the
    Administrator of 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).
        Rulemaking Analysis and Notices: Under the Administrative Procedure
    Act (APA), an agency may waive the normal notice and comment procedures
    if the action is a rule of agency organization, procedure, or practice.
    See 5 U.S.C. 553(b)(3)(A). This rule qualifies for this exemption under
    the APA as it deals exclusively with internal agency procedures.
    Accordingly, the Board is issuing the regulation as an Interim Final
    Rule. If we receive comments that warrant change(s) in the Interim
    Final Rule, we will make the change(s) and will publish the revised
    final rule.

    A. Executive Order 12866

        The Office of Management and Budget (OMB) has determined that this
    is not a significant regulatory action under Executive Order 12866, as
    amended. Therefore, no regulatory impact analysis is required. This is
    a rule of agency procedure and practice. The railroad industry and the
    public will benefit from these enhanced procedures through increased
    agency deliberations and more opportunities to comment on rulemakings
    and guidance documents.

    B. Executive Order 13771 (Reducing Regulation and Controlling Regulator
    Costs)

        This rule is not an Executive Order 13771 regulatory action because
    this rule is not significant under Executive Order 12866.

    C. Regulatory Flexibility Act

        Since notice and comment rulemaking is not necessary for this rule,
    the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5
    U.S.C. 601-612) do not apply.

    D. Executive Order 13132 (Federalism)

        Executive Order 13132 requires agencies to ensure meaningful and
    timely input by State and local officials in the development of
    regulatory policies that may have a substantial, direct effect on the
    States, on the relationship between the national government and the
    States, or on the distribution of power and responsibilities among the
    various levels of government. This action has been analyzed in
    accordance with the principles and criteria contained in Executive
    Order 13132 (August 4, 1999), and the Board has determined that this
    action will not have a substantial direct effect or federalism
    implications on the States and would not preempt any State law or
    regulation or affect the States' ability to discharge traditional state
    governmental functions. Therefore, consultation with the States is not
    necessary.

    [[Page 53161]]

    E. Executive Order 13175

        This rule has been analyzed in accordance with the principles and
    criteria contained in Executive Order 13175, ``Consultation and
    Coordination with Indian Tribal Governments.'' Because this rulemaking
    does not significantly or uniquely affect the communities of the Indian
    tribal governments or impose substantial direct compliance costs on
    them, the funding and consultation requirements of Executive Order
    13175 do not apply.

    F. Paperwork Reduction Act

        The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
    requires that the Board consider the impact of paperwork and other
    information collection burdens imposed on the public and, under the
    provisions of PRA section 3507(d), obtain approval from OMB for each
    collection of information it conducts, sponsors, or requires through
    regulations. The Board has determined there are no new information
    collection requirements associated with this rule.

    G. Congressional Review Act

        The Congressional Review Act (CRA) (5 U.S.C. 801 et seq.) requires
    that before a ``rule'' can take effect, the Federal agency promulgating
    such rule shall submit to each House of Congress and to the Comptroller
    General a report containing a copy of the rule, a concise general
    statement pertaining to the rule, and the proposed effective date of
    the rule. ``Rule'' is defined by the CRA in 5 U.S.C. 804 to have the
    same meaning as in 5 U.S.C. 551, except that the term does not include
    ``any rule of agency organization, procedure, or practice that does not
    substantially affect the rights or obligations of non-agency parties.''
    Because this rule is a rule of agency procedure and practice that does
    not substantially affect the rights or obligations of non-agency
    parties, no report is required under the CRA.

    H. Unfunded Mandates Reform Act

        This rule does not include a Federal mandate that may result in the
    expenditure by State, local, and tribal governments, in the aggregate,
    or by the private sector, of more than $100,000,000 or more in any one
    year. Therefore, no analysis under the Unfunded Mandates Reform Act (2
    U.S.C. 1501 et seq.) is required.

    I. Executive Order 12988

        One of the stated purposes of Executive Order 12988, ``Civil
    Justice Reform,'' is to improve regulatory drafting to reduce needless
    litigation. Consistent with that purpose, the Board has reviewed this
    regulation to eliminate drafting errors and ambiguity.

    Regulation Identification Number

        A regulation identification number (RIN) is assigned to each
    regulatory action listed in the Unified Agenda of Federal Regulations.
    The Regulatory Information Service Center publicizes the Unified Agenda
    in the spring and fall of each year. The RIN contained in the heading
    of this document can be used to cross reference this action with the
    Unified Agenda.

    List of Subjects in 20 CFR Part 200

        Railroad employees, Railroad retirement, General administration.

        For the reasons set out in the preamble, the Railroad Retirement
    Board amends title 20, chapter II, subchapter A, part 200 of the Code
    of Federal Regulations as follows:

    PART 200--GENERAL ADMINISTRATION

    0
    1. The authority citation for part 200 continues to read as follows:

        Authority:  45 U.S.C. 231f(b)(5) and 45 U.S.C. 362; Sec.  200.4
    also issued under 5 U.S.C. 552; Sec.  200.5 also issued under 5
    U.S.C. 552a; Sec.  200.6 also issued under 5 U.S.C. 552b; and Sec.
    200.7 also issued under 31 U.S.C. 3717.

    0
    2. Add Sec.  200.11 to read as follows:

    Sec.  200.11  Guidance Documents.

        (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;

    [[Page 53162]]

        (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.

        Dated: August 24, 2020.

        By Authority of the Board.
    Stephanie Hillyard,
    Secretary to the Board.
    [FR Doc. 2020-18861 Filed 8-27-20; 8:45 am]
    BILLING CODE 7905-01-P