Title 34
SECTION 9.13
9.13 Guidance documents.
§ 9.13 Guidance documents.(a) Guidance document means an agency statement of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation. The term is not confined to formal written documents, as guidance may come in a variety of written formats, including letters, memoranda, circulars, bulletins, advisories, electronic announcements, “Dear Colleague” letters, and handbooks. Guidance documents do not include the following:
(1) Rules promulgated pursuant to notice and comment under 5 U.S.C. 553 or similar statutory provisions.
(2) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a).
(3) Rules of Department organization, procedure, or practice, provided such rules do not alter substantive obligations for parties outside the Department.
(4) Decisions of Department adjudications under 5 U.S.C. 554 or similar statutory provisions.
(5) Internal guidance directed to the Department or other agencies that is not intended to have substantial future effect on the behavior of regulated parties.
(6) Internal executive branch legal advice or legal opinions addressed to executive branch officials.
(7) Legal briefs, other court filings, or positions taken in litigation or determinations in enforcement actions.
(8) Agency statements that do not set forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statute or regulation, such as those speeches, editorials, media interviews, press materials, or congressional testimonies that do not set forth for the first time a new policy.
(9) Agency statements of specific, rather than general, applicability. This includes responses or information provided by a POC designed to answer specific questions from a grant recipient or other stakeholder; advisory opinions directed to particular parties about circumstance-specific questions; notices regarding particular locations or facilities; and correspondence with individual persons or entities, including congressional correspondence or notices of violation. A document, including correspondence, directed to a particular party that provides an agency interpretation of statutes, regulations, or guidance or that is designed to guide the conduct of the broader regulated public is guidance.
(10) Grant solicitations and awards, including instructions related to the submission of applications or State Plans for formula and discretionary grant programs and award amendments.
(11) Contract solicitations and awards, contracts, and memoranda of understanding.
(12) Categories of documents that the OMB Administrator (Administrator) identifies as excepted from the requirements of Executive Order 13891.
(13) Documents prepared in connection with or responding to audits or other engagements conducted by the Office of Inspector General (OIG) or the Government Accountability Office (GAO) and to oversight by congressional committees.
(b) Each guidance document will, at a minimum -
(1) Include the term “guidance”;
(2) Identify that it is issued by the Department or a component of the Department;
(3) Identify the activities and entities to which, and the persons to whom, the document applies;
(4) Include the date of issuance;
(5) Note if it is a revision to a previously issued guidance document and, if so, identify the guidance document that it revises;
(6) Provide the title of the guidance;
(7) Have a unique document identification number;
(8) Include the citation to the statutory provision or regulation to which it applies or that it interprets;
(9) Include a short summary of the subject matter covered in the guidance document at the top of the document as appropriate; and
(10) Include the following disclaimer, prominently displayed: Other than statutory and regulatory requirements included in the document, the contents of this guidance do not have the force and effect of law and are not meant to bind the public. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
(c) All guidance documents require review, clearance, and written authorization by the General Counsel of the Department or his or her designee. To obtain such authorization, the POC must demonstrate the following:
(1) A compelling operational need to issue the guidance document; and
(2) The guidance document complies with OMB's “Final Bulletin on Agency Good Guidance” (Jan. 25, 2007) and Executive Order 13891.
(d) The General Counsel will consult with the RRO prior to clearing significant guidance documents.
(e) All active guidance documents will be accessible through the Department's guidance portal. Documents that are not available through this portal are not considered to be in effect (and may only be used for historical purposes).