§ 1301.71 Guidance document definition.  

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  • (a)(1) For purposes of this subpart, the term “guidance document” includes any statement of agency policy or interpretation concerning a statute, regulation, or technical matter within TVA's jurisdiction that is intended to have general applicability and future effect on the public, but which is not intended to have the force or effect of law in its own right and is not otherwise required by statute to satisfy the rulemaking procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556. See OMB Bulletin 07-02, “Agency Good Guidance Practices,” See Office of Management and Budget (OMB) Bulletin 07-02, “Agency Good Guidance Practices,” (January 25, 2007) (“OMB Good Guidance Bulletin”).

    (2) The term “guidance document” Does not include:

    (i) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a);

    (ii) Rules of agency organization, procedure, or practice;

    (iii) Decisions of agency adjudications under 5 U.S.C. 554 or similar statutory provisions;

    (iv) Internal executive branch legal advice or legal advisory opinions addressed to executive branch officials;

    (v) Agency statements of specific applicability, including advisory or legal opinions directed to particular parties about circumstance-specific questions (e.g., case or investigatory letters responding to complaints, warning letters), notices regarding particular locations or facilities (e.g., guidance pertaining to the use, operation, or control of a government facility or property), and correspondence with individual persons or entities (e.g., congressional correspondence), except documents ostensibly directed to a particular party but designed to guide the conduct of the broader regulated public;

    (vi) Legal briefs, other court filings, or positions taken in litigation or enforcement actions;

    (vii) 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 speeches and individual presentations, editorials, media interviews, press materials, or congressional testimony that do not set forth for the first time a new regulatory policy;

    (viii) Guidance pertaining to military or foreign affairs functions;

    (ix) Grant solicitations and awards;

    (x) Contract solicitations and awards;

    (xi) Purely internal agency policies or guidance directed solely to TVA employees or contractors or to other public entities or agencies that are not intended to have substantial future effect on the behavior of regulated parties; or

    (xii) Documents associated with matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.

    (b) The term “TVA” refers to the Tennessee Valley Authority, a corporate agency of the United States, subject to applicable federal and state statutes and regulations and charged with a diverse mission. Congress tasked TVA with, among other things, providing flood control, navigation, and land management for the Tennessee River system; management and stewardship for TVA lands and waterways; producing and distributing electricity; regulating local power companies; and assisting local power companies and state and local governments in the Tennessee Valley with economic development and job creation.

    (c) The term “BU” refers to a Business Unit, the organizational structure into which the various responsibilities associated with TVA's mission is divided.

    (d) The term “OGC” refers to TVA's Office of the General Counsel, a BU within TVA.

    (e)(1) The term “significant guidance document” means a guidance document that will be disseminated to regulated entities or the general public and that may reasonably be anticipated:

    (i) 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;

    (ii) To create serious inconsistency or otherwise interfere with an action taken or planned by another Federal agency;

    (iii) To alter materially the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

    (iv) 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 further amended.

    (2) The term “significant guidance document” does not include the categories of documents excluded by section 2 of Executive Order 12866 or any other category of guidance documents exempted by the Office of Management and Budget. Even if not “significant,” a guidance document will be considered “otherwise of importance to the TVA's interests” within the meaning of this paragraph, if it may reasonably be anticipated:

    (i) To relate to a major program, policy, or activity of TVA or a high profile issue pending for decision before TVA;

    (ii) To involve one of the CEO or Board of Directors' top policy priorities;

    (iii) To garner significant press or congressional attention; or

    (iv) To raise significant questions or concerns from constituencies of importance to the TVA, such as Committees of Congress, States or Indian tribes, the White House or other departments of the Executive Branch, courts, consumer or public interest groups, or leading representatives of industry.