Title 38

SECTION 5.15

5.15 Procedures for issuing guidance documents.

§ 5.15 Procedures for issuing guidance documents.

(a) General. (1) Each guidance document must clearly and prominently state that it does not bind the public, except as authorized by law or as incorporated into a contract. Guidance documents may include the following or similar disclaimer language: The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

(2) Each guidance document must include the following information in the published guidance document:

(i) The term guidance;

(ii) The agency or office issuing the document;

(iii) To what and to whom the document applies;

(iv) The date of issuance;

(v) The title and unique identification number of the document;

(vi) Citation to statutory or regulatory authority that the guidance document interprets or applies;

(vii) A short summary of the subject matter covered at the beginning of the guidance document;

(viii) The statement required under paragraph (a)(1) of this section; and

(ix) As applicable, the guidance document being revised or replaced.

(b) Significant guidance documents. We will refer to the Administrator of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget, or the Administrator's designee, the question of whether a guidance document is significant. Significant guidance documents must follow the requirements provided in paragraph 5.15(a). Additionally, unless the Administrator of OIRA, pursuant to review under E.O. 12866, and VA agree that exigency, safety, health, or other compelling cause warrants an exemption, the following additional procedures apply:

(1) VA will provide for a period of public notice and comment of at least 30 days before issuance of such significant guidance document and will provide a public response to major concerns raised in comments, except when VA for good cause finds (and incorporates such finding and a brief statement of reasons therefor into the guidance document) that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest.

(2) The Secretary or a VA component head appointed by the President (with or without confirmation by the Senate), or by an official who is serving in an acting capacity as either of the foregoing, must approve any significant guidance document prior to issuance; pursuant to section 4(a)(iii)(B) of Executive Order 13891, this approval authority is not delegable.

(3) Significant guidance documents must be submitted to OIRA for review under Executive Order 12866 prior to issuance.

(4) Significant guidance documents must comply with the applicable requirements for regulations or rules set forth in Executive Orders 12866, 13563, 13609, 13771, and 13777.

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