Agency Standards for Guidance Documents

(a)

Definitions

In this section: (1)

Administrator

The term Administrator means the Administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget. (2)

Agency

The term agency has the meaning given the term in section 3502 of title 44, United States Code. (3)

Guidance document

The term guidance document— (A)means an agency statement of general applicability and future effect, other than a regulatory action, that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue; and (B)does not include— (i)a legal advisory opinion for internal executive branch use and not for release (such as Department of Justice Office of Legal Counsel opinions); (ii)a brief or other position taken by an agency in an investigation, pre-litigation, litigation, or other enforcement proceeding; (iii)a speech, editorial, media interview, press material, or congressional correspondence; (iv)a guidance document that relates to a military or foreign affairs function of the United States (other than a guidance document on procurement or the import or export of non-defense articles and services); (v)a grant solicitation, warning letter, or case or investigatory letter responding to a complaint involving a fact-specific determination; (vi)a purely internal agency policy; (vii)a guidance document that relates to the use, operation, or control of a government facility; (viii)an internal guidance document directed solely to other agencies; or (ix)any other category of guidance documents exempted by the head of an agency, in consultation with the Administrator. (4)

Regulation

The term regulation means an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency. (5)

Regulatory action

The term regulatory action means any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final regulation, including notices of inquiry, advance notices of inquiry and notices of proposed rule making. (b)

Approval procedures

(1)

In general

Except as provided in paragraph (2), not later than 210 days after the date of enactment of this Act, the head of each agency shall develop or have written procedures for the approval of guidance documents, which shall ensure that the issuance of guidance documents is approved by each appropriate senior agency official. (2)

Exception

An employee of an agency may not deviate from the requirements of the procedures developed pursuant to paragraph (1) unless— (A)the employee has submitted an appropriate justification to a supervisor who is an appropriate senior agency official described paragraph (1) or the head of the agency; and (B)the supervisor or head of the agency has agreed to the deviation. (c)

Contents of guidance document

(1)

Requirements

Each guidance document issued by an agency shall include the following: (A)The term guidance or a functional equivalent of that term. (B)An identification of each agency and office issuing the document. (C)An identification of the activity to which and the person to whom the guidance document applies. (D)The date of issuance. (E)If the document is a revision to a previously issued guidance document, a notation of such and an identification of the document replaced. (F)The title of the document and any identification number, if applicable. (G)A citation to the statutory provision or regulation to which the document applies or interprets. (2)

Prohibited

A guidance document may not include mandatory language such as shall, must, required, or requirement, unless— (A)the agency is using these words to describe a statutory or regulatory requirement; (B)the language is addressed to agency employees; or (C)the prohibition against that mandatory language prevents agency consideration of a position advanced by any affected private party. (d)

Public access and feedback for guidance documents

(1)

Internet access

(A)

List required

The head of each agency shall maintain on the website of the agency a list of each guidance document in effect, which shall include the following: (i)The name of each guidance document. (ii)Any document identification number. (iii)The dates of issuance and revision. (iv)An identification of which documents have been added, revised, or withdrawn during the previous year. (B)

Link to document required

The head of the agency shall provide a link from the list described in subparagraph (A) to each such guidance document. (C)

Updates to website

Not later than 30 days after the date on which a guidance document is issued, the head of the agency shall update the list of guidance documents and links described in this paragraph accordingly. (2)

Public feedback

(A)

Submission of public comments

(i)

In general

Not later than 60 days after the date of enactment of this Act, the head of each agency shall establish and prominently display on the website of the agency a means for the public— (I)to electronically submit comments on any guidance document; and (II)to electronically submit a request for issuance, reconsideration, modification, or rescission of any guidance document. (ii)

No response required

Any public comment submitted under this paragraph is for the benefit of the agency, and a formal response to any such comment by the agency is not required. (B)

Complaints by the public

The head of each agency shall— (i)designate one or more offices to receive and address complaints submitted by the public that the agency is not following the procedures in this section or is improperly treating a guidance document as a binding requirement; and (ii)provide, on the website of the agency, the name and contact information for any office described in clause (i). (e)

Notice and public comment for guidance documents

(1)

In general

Except as provided in paragraph (2), not later than 60 days after the date on which an agency prepares a draft of a guidance document, the agency shall complete the following requirements: (A)Publish a notice in the Federal Register announcing that the draft document is available. (B)Post the draft document on the website of the agency and make the draft publicly available in hard copy (or notify the public how the guidance document may be reviewed if not in a format that permits electronic posting with reasonable efforts). (C)Invite public comment on the draft document. (D)Prepare and post on the website of the agency a response-to-comments document. (2)

Exemptions

Notwithstanding paragraph (1), the head of an agency, in consultation with the Administrator, may designate a guidance document or group of guidance documents as exempt from the requirements of this section for being not feasible or appropriate. (f)

Exigent circumstances

(1)

In general

In an imminent threat to public health or safety or similar exigent circumstance exists or when an agency is required by law to act more quickly than the procedures described in this section allow, the head of the agency shall certify the circumstance to the Administrator as soon as possible and, to the extent practicable, comply with this section. (2)

Other deadlines

For any guidance document that is governed by a statutory or court-imposed deadline, the agency shall, to the extent practicable, schedule any proceeding for such document to permit sufficient time to comply with this section. (g)

Applicability

This section does not affect the authority of an agency to communicate the views of the agency in court or in any other enforcement proceeding. (h)

Effective date

The requirements of this section shall take effect 180 days after the date of enactment of this Act.