Background
The term “guidance” is often used to refer to non-legislative rules –
that is, interpretations and policy statements. Guidance documents can be
generally applicable – that is, they are intended to provide interpretations or
policy statements that are applicable to the general public. They can also apply
only to a particular party or parties. For example, they may respond to a
request from a regulated entity who seeks guidance on how to act under a
specific set of facts that the entity provides. Whether generally applicable or
only applicable to a particular party, guidance documents are not legally
binding on the public. Under the
Administrative Procedure Act's broad definition of “rule” in 5 U.S.C. § 551 (4), guidance would also be a “rule.” For ease of
reference, and to be consistent with the breakdown in
Executive Order 12866 and
the Office of Management and Budget (OMB) Bulletin referred to on this webpage, unless otherwise indicated,
further references to “rule” will be to a "legislative" rule.
The following
documents contain requirements or information on agency use of
guidance documents:
-
Guidance Bulletin.
On January 18, 2007, the OMB
issued a
Bulletin (M-07-07) establishing requirements for the
development, issuance, and use of significant guidance documents
by Executive Branch departments and agencies. It “is intended to
increase the quality and transparency of agency guidance practices
and the significant guidance documents produced through them.”
-
Executive
Order (E.O.) 13422.
The President also signed E.O. 13422 on January 18; it amended
E.O.
12866 (“Regulatory Planning and Review”) to, among other things,
add requirements concerning guidance documents to complement the
OMB Bulletin.
|
