Section 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 provision(s), regulation(s), 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(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 DOE's 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 (c)(1) 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 website through a single web page portal; and(2) State clearly and prominently on its web page portal that guidance documents lack the force and effect of law, except as authorized by law or as incorporated into a contract.(g)Rescinded Guidance Documents. All guidance documents, as defined in this Part, that are not made available through DOE's website portal as described in paragraph (f) of this section shall be deemed rescinded, unless and until DOE subjects such guidance documents to the procedures of this section. Except for the purposes of establishing historical facts, DOE shall not cite, use, or rely upon rescinded guidance documents unless and until DOE subjects such guidance documents to the procedures of this section. 86 FR 456 , 7799, 3/21/2021