Types
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To enable the public to better understand the various
types of documents that the Department of Transportation (DOT)
issues that could provide information on our interpretation of, or
policy concerning, our rules, statutes, or technical issues and the
extent to which the public may rely on them, we have prepared the
following descriptions. To the extent that any of the operating
administrations in DOT issue additional types of documents that
contain guidance, they have provided descriptions of them on the websites
(see List of Significant DOT Guidance Documents) where they list their significant guidance documents.
Preambles.
Preambles to final rules may be relied on by the public. They
resemble “legislative history” documents, though they are perhaps
even more authoritative, because they are issued at the time of,
and as part of, the final rule signed by the head of the agency or
another senior official with delegated authority from the agency
head.
Adjudicatory Decisions.
These are binding on the parties to the adjudicatory proceedings and
have precedential effect on future parties in similar situations.
Generally
Applicable Interpretations or Policy Statements Issued or Approved
by the Agency Head (or his or her designee).
These documents have the highest and most reliable level of agency
guidance documents. If they are published in the
Federal
Register or posted on the agency’s website and indexed, they
not only may be relied on by the public, but they “may be relied
on, used, or cited as precedent by an agency against a party,”
pursuant to
5 U.S.C. § 552. Of course, even
these documents may
not be treated as binding against a private party; to be binding,
they must be issued as legislative rules pursuant
5 U.S.C. §553
requirements. DOT agencies, at a minimum, post all significant guidance
documents on the web.
Letters to Specific
Individuals or Entities. Often in response to requests from
individuals or entities, agencies will respond to requests for
interpretation of particular regulatory or statutory provisions,
sometimes in response to particular factual situations, and
generally by letter. If these guidance documents state that they
have been issued or approved by appropriate agency officials in
accordance with procedures approved by the head of the agency,
they may be relied on by the party to whom they are provided. DOT
agencies may post the letters on their websites to provide helpful
information to the general public. Some DOT agencies may also
state on those websites that other, similarly situated parties may
rely on the letters/guidance documents. However, such parties must
ensure that the factual situations are appropriately similar to
justify reliance.
Oral Guidance Statements by
Senior Agency Officials. If there is a record of such
statements, including a record that they have been approved by the
appropriate agency officials, the guidance may be relied upon by
the public. For example, prepared statements from DOT officials
testifying at a Congressional committee hearing should have
appropriate senior-level approval.
Other Guidance. Agency
officials at all levels, such as inspectors in the field, try to
be helpful when responding to the need for guidance. The response
may be to questions over the telephone, during participation in
conferences, visits to manufacturing facilities, etc. Informal
guidance statements of this nature are supposed to incorporate
general statements of well-defined law or be based on
appropriately-approved agency guidance. Such guidance is not
binding on the government and does not alter the obligation of the
public to comply with statutory and regulatory requirements.
However, when a regulated person reasonably relies on the advice
of an agency official, we will consider that fact carefully before
pursuing any enforcement action and as a mitigating factor if
enforcement action is brought. We also will consider the nature
and context of the advice, the role and authority of the official
and the importance of the guidance in ensuring safety and meeting
other critical goals. It is especially important to remember that
there may be differences of opinion over what was actually said
when oral guidance is provided.
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