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Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 5 Internal executive branch legal advice or legal opinions addressed to executive branch officials;
6 Agency statements of specific, rather than general, applicability, including 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 notices of violation and warning letters;
7 Briefs and other positions taken in litigation, enforcement actions, and financial assistance or contract bid protests, appeals or any other contract or financial assistance litigation;
8 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, but not limited to, speeches, presentations, editorials, media interviews, press materials, congressional testimony, and congressional correspondence;
9 Guidance pertaining to military or foreign affairs functions;
10 Guidance or policies pertaining to financial assistance formation, funding opportunity announcements, awards and administration of financial assistance;
11 Guidance or policies pertaining to contract formation, solicitations, awards and administration of contracts;
12 Guidance or policies pertaining to the administration or oversight of capital asset projects or projects treated as capital asset projects by the Department;
13 Guidance pertaining to execution of the Departments small business programs and achievement, including compliance with the Small Business Regulatory Enforcement Fairness Act;
14 Grant solicitations and awards;
15 Contract solicitations and awards;
16 Internal agency policies or guidance directed solely at DOE
personnel or to other Federal agencies that is not intended to have substantial future effect on the behavior of regulated parties; or 17 Guidance pertaining to the use, operation, or control of a government facility or property; or 18 Policies or guidance when the release or disclosure of the document is legally prohibited.
Significant guidance document means a guidance document that may reasonably be anticipated to:
1 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
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State, local, or tribal governments or communities;
2 Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
3 Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or 4 Raise novel legal or policy issues arising out of legal mandates, the Presidents priorities, or the principles of Executive Order 12866.
1061.3 Procedures for issuing guidance documents.

a Contents of Guidance Documents.
All new or revised DOE guidance documents:
1 Must comply with all relevant statutes and regulations;
2 Must include a clear and prominent statement declaring that:
i 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;
ii The document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies, except as authorized by law or as incorporated into a contract;
and iii DOE will not rely upon the document as an independent basis for an enforcement action or other administrative penalty.
3 Must avoid using mandatory language such as shall, must, required, or requirement, unless the language is describing an established statutory or regulatory requirement, or is directed solely to DOE personnel and is not intended to have a substantial future effect on the behavior of regulated parties;
4 Must be written in plain and understandable language; and 5 Must include the following attributes: The term guidance; a title;
identification of the issuing agency or office; identification of activities to which and the persons to whom the document applies; the date of issuance;
the relation to previous guidance if applicable; a citation to the statutory provisions, regulations, or both to which the document applies; and a short summary of the subject matter.
b Review and Clearance by Counsel.
All new or revised DOE guidance documents must be reviewed by the Office of the General Counsel prior to issuance to:
1 Ensure compliance with this part and Executive Order 13891;
2 Obtain a determination from the Administrator as to whether the guidance document is significant, as defined in this part; and
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3 If the guidance document is determined to be significant, coordinate with the Office of Information and Regulatory Affairs within the Office of Management and Budget as prescribed in paragraph c of this section.
c Procedures for Significant Guidance Documents. For any guidance document deemed to be a significant guidance document by the Administrator, DOE shall:
1 Publish notice of the guidance document in the Federal Register and on DOEs guidance website, and provide a public notice and comment period of not less than 30 days prior to the issuance of the final significant guidance document;
2 Provide publicly available responses to major and relevant concerns raised in comments;
3 Obtain signature of the significant guidance document by the Secretary of Energy or DOE component head appointed by the President prior to issuance of the final significant guidance document;
4 In accordance with the procedures of Executive Order 12866, obtain review of the significant guidance document by the Administrator prior to issuance of the final significant guidance document;
5 Comply with applicable requirements of Executive Orders 12866, 13563, 13609, 13771, and 13777.
and any revisions thereto or superseding Executive Orders.
d Exception to notice and comment procedures. DOE may dispense with the requirements of paragraphs c1 and 2 of this section where DOE finds for good cause that notice and public comment for a significant guidance document are impracticable, unnecessary, or contrary to the public interest. DOE shall incorporate such finding and a brief statement of the reasons for such finding into the significant guidance document.
e Other Exceptions. The procedural requirements of paragraph c of this section shall not apply, in whole or in part, when:
1 DOE and the Administrator agree that exigency, safety, health, or other compelling cause warrants an exemption from the relevant requirement or requirements; or 2 The significant guidance document is of a kind for which DOE
and the Administrator have developed a categorical exception from the relevant requirement or requirements, as approved by the Administrator.
f Electronic Availability of Guidance. DOE shall:
1 Ensure that all guidance documents, as defined in this part, are available to the public on the DOE

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