TREASURY DIRECTIVE: 28-04
DATE:
SUBJECT: Procedures for Approval of Significant Guidance Documents
1. Introduction. In January 2007, the President issued new
requirements in order to ensure that “significant guidance documents” (SGDs) of
the Executive Branch are “developed with appropriate review and public
participation.” He did so by revising
Executive Order (EO) 12866 and by issuing Office of Management and Budget (OMB)
Bulletin 07-02.
2. Overview
of New Requirements. Federal
agencies now must publish SGDs on the internet and allow for public review and
comment. Furthermore, in the case of
“economically significant guidance documents” (ESGDs), Federal agencies must
first publish the guidance on the internet in draft form before it becomes
effective, and publish a notice in
the Federal Register announcing that the draft document is available and
inviting public comments. OMB’s Office
of Information and Regulatory Affairs (OIRA) is charged with overseeing
implementation of the new requirements.
OMB has granted Treasury certain exemptions from these new requirements
as discussed below.
3. Definitions
The new requirements apply only to SGDs and ESGDs. See EO 12866, as amended, and the OMB Bulletin 07-02 (“Final Bulletin for Agency Good Guidance Practices”). The following definitions apply to these terms:
A “guidance document” is any agency statement of general
applicability and future effect (other than a regulatory action) that sets
forth (1) a policy on a statutory, regulatory, or technical issue or (2) an
interpretation of a statutory or regulatory issue. EO 12866, section 3(g). Some examples are memoranda, manuals, and
policies, so long as they are of general applicability (i.e., not
related to a particular dispute or matter) and future effect (i.e., not
a discussion of prior practices). OMB
Bulletin 07-02 at p. 6. The definition
covers materials regardless of format, to include video/audio tapes and
software.
An “SGD” is a guidance document that is disseminated to
regulated entities or to the general public 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
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 or recipients thereof; or
(4) raise novel legal or policy issues arising out of legal mandates, the
President’s priorities, or the principles of EO 12866. See EO 12866, section 3(h). The definition of an SGD does not include
such things as documents that pertain to a military or foreign affairs function
of the
An “ESGD” is an SGD that may reasonably be anticipated to lead to an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy or a sector of the economy, except to the extent the document involves Federal expenditures or receipts (e.g., the administration or collection of taxes, tax credits, or duties). OMB Bulletin 07-02 at 9. See SGD definition, paragraph (1), above.
4. General Requirements for Guidance Documents
The amendments to EO 12866 clarify that certain principles related to regulations also apply to guidance documents. Specifically:
Each agency shall base its decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for and consequences of the intended regulation or guidance document. (Sec. (1)(b)(7)).
Each agency shall avoid regulations or guidance documents that are inconsistent, incompatible, or duplicative with other regulations or guidance documents or those of other Federal agencies. (Sec. (1)(b)(10)).
Each agency shall tailor its regulations and guidance documents to impose the least burden on society, including individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), consistent with obtaining regulatory objectives, taking into account, among other things, to the extent practicable, the cumulative cost of regulations. (Sec. (1)(b)(11)).
Each agency shall draft its regulations and guidance documents to be simple and easy to understand with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty. (Sec. (1)(b)(12)).
5. Treasury Exemptions
Many of the Department’s guidance documents, which might otherwise be considered SGDs or ESGDs under the above definitions, may be exempt from the new requirements. If the new requirements are not applicable, the Department and the bureaus may use any appropriate procedure in issuing such documents. Any questions regarding applicability of the new requirements should be addressed to the Treasury Assistant General Counsel for General Law, Ethics, and Regulation (AGC-GLER).
Guidance documents issued by the following Treasury components are covered by the exemptions:
The Internal Revenue Service (
The Alcohol and Tobacco Tax and Trade Bureau (TTB);
The Office of the Assistant Secretary (Tax Policy), either on its own authority or jointly with the Department of Homeland Security, or with another agency, to the extent that a guidance document involves a Customs Revenue Function;
The Bureau of the Public Debt (BPD), to the extent the
guidance document implements, through the exercise of the general borrowing
power, the fiscal policies of the
The Office of Foreign Assets Control (OFAC), or any other
component of the Department, to the extent the guidance document involves a
foreign affairs function of the
Any component of the Department, to the extent the guidance document (i) is issued on behalf of the Committee on Foreign Investment in the United States (CFIUS) concerning the national security review of mergers, acquisitions or takeovers of United States firms by foreign entities; (ii) concerns the periodic reporting of portfolio capital positions and transactions pursuant to the International Investment and Trade in Services Survey Act or the Bretton Woods Agreements Act; or (iii) concerns the reporting of foreign currency positions of large United States business enterprises and their foreign affiliates pursuant to 31 U.S.C. § 5315.
Any component of the Department that, through agreement with OMB, has been determined to be exempt.
6. Procedures for non-exempt SGDs
It is the responsibility of each Treasury component promulgating an SGD or ESGD to ensure its compliance with the new requirements.
Assuming the new requirements are applicable, Treasury components must follow the following procedures.
Approval Procedures -- To the extent that an office or bureau plans to issue an SGD that is not exempt from the provisions of the EO and OMB Bulletin, the office or bureau shall comply with the notice procedures in section 6 of this policy, and in addition shall submit the item for clearance to the General Counsel or his designee prior to publication or posting.
Standard Elements of an SGD – Each SGD shall be in the form specified in and conform to the requirements of section II.2 of OMB Bulletin 07-02.
Internet Access – The Department and each bureau will
maintain on their internet websites a current list of all SGDs that are in
effect, together with a link to each document.
New SGDs must be added to the list within 30 days of issuance. The list must also identify SGDs that have
been issued, revised, or withdrawn during the past year. In addition, the Department’s internet
website will provide links to the SGD website of each bureau.
Public Feedback – The Department and each bureau will establish on their internet website a means for the public to submit electronic comments on SGDs and electronic requests for issuance, reconsideration, modification, or rescission of SGDs. The Department or bureau is not required to take action on, or respond to, such comments. However, the Department or bureau should establish a mechanism to convey any public comments to the office responsible for the SGD for consideration. In addition, each Department policy office or Treasury bureau responsible for the issuance of an SGD must designate one or more offices to receive and address comments that the agency is not adhering to the new requirements in OMB Bulletin 07-02 or is treating an SGD as a binding requirement. The name and contact information for the appropriate office must be posted on the Department’s and each bureau’s website.
ESGDs – In addition to the requirements for SGDs, the Department and each bureau must make drafts of ESGDs available to the public on the internet. In addition, the Department or bureau must publish a notice in the Federal Register indicating that the draft document is available, inviting public comments on the draft, and stating the guidance documents does not have the force and effect of law. The Department or bureau must post on its website, and make available in hard copy, a document responding to any public comments received. Public comments on an ESGD must be processed through Regulations.gov.
Notice to OMB – At least 20 days prior to promulgating an SGD (including an ESGD) in draft or final form, the Department policy office or the bureau responsible for the SGD shall prepare a notice and furnish such notice to the Senior Counsel for Regulatory Affairs located in the office of the Assistant General Counsel (General Law, Ethics, and Regulation). The notice shall be in the following format:
NOTICE OF PLANNED SGD
Department of the
Treasury: [Insert Name of Office or Bureau]
Title of the SGD:
[Insert Title]
Planned Date of
Issuance: [Insert Date]
Contact: [Insert name
and phone of a person who can answer detailed questions about the SGD]
Description: [Insert a brief description of what the
document is intended to do and why; the issues associated with the document;
any urgency associated with its issuance; and why the document is considered to
be an SGD. If public comments were
received on a draft of the document, include a brief statement of the nature
and extent of public comment and the nature and extent of changes made in
response to the public comment.]
The Senior Counsel for Regulatory Affairs will forward the notice to OIRA. Within 10 days of receiving the Notice, OIRA may request a draft of the SGD for review. If this occurs, the policy office or bureau shall forward such a draft to the Senior Counsel for Regulatory Affairs for transmission to OMB. In such a case, the policy office or bureau shall not release the SGD in draft or final form until notified by the Senior Counsel for Regulatory Affairs that OIRA’s review is complete.
If an emergency occurs that may require promulgation of an SGD prior to initiation or completion of the OIRA review process, the policy office or bureau shall consult with the Senior Counsel for Regulatory Affairs prior to proceeding. The Senior Counsel for Regulatory Affairs will notify OIRA of the situation and consult with OIRA over procedures for review after the emergency is addressed.
/S/
Robert F. Hoyt
General Counsel