[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 
[email protected].
    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