Title 5

SECTION 120.2

120.2 Definitions applicable to this part.

§ 120.2 Definitions applicable to this part.

(a) Except as provided in paragraph (b) of this section, the term 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.

(b) The term guidance document does not include:

(1) Rules promulgated under 5 U.S.C. 553 (or similar statutory provisions);

(2) Rules of agency organization, procedure, or practice that are not anticipated to have substantial future effect on the behavior of regulated parties or the public;

(3) Decisions of agency adjudications;

(4) Internal executive branch legal advice or legal opinions addressed to executive branch officials;

(5) Agency statements of specific applicability, including advisory or legal opinions directed to particular parties about circumstance-specific questions (e.g., case or investigatory letters responding to complaints, warning letters), notices regarding particular locations or facilities (e.g., guidance pertaining to the use, operation, or control of a Government facility or property), and correspondence with individual persons or entities (e.g., congressional correspondence), except documents ostensibly directed to a particular party but designed to guide the conduct of the broader regulated public;

(6) Legal briefs, other filings with a court or administrative tribunal, records or communications produced in a legal proceeding, or positions taken in litigation or enforcement actions;

(7) Agency statements that do not set forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statute or regulation, including speeches and individual presentations, editorials, media interviews, press materials, or congressional testimony that do not set forth a new regulatory policy;

(8) Guidance pertaining to military or foreign affairs functions, or to a national security or homeland security function of the United States (other than guidance documents involving procurement or the import or export of non-defense articles and services), and any other guidance when application of this order, or any part of this order, would, in the judgment of the Director of OPM, undermine the national security;

(9) Any action related to a criminal investigation or prosecution, including undercover operations, or any civil enforcement action or related investigation by the Department of Justice, including any action related to a civil investigative demand under 18 U.S.C. 1968;

(10) Any investigation of misconduct by an agency employee or any disciplinary, corrective, or employment action taken against an agency employee;

(11) Grant solicitations and awards;

(12) Contract solicitations and awards;

(13) Agency documents that are not publicly disseminated, including classified information, information subject to a statutory or regulatory redisclosure restriction, privileged information, and information exempt from disclosure under the Freedom of Information Act;

(14) Purely internal agency policies or guidance directed solely to OPM employees or contractors that are not anticipated to have substantial future effect on the behavior of regulated parties or the public; and

(15) Documents that are directed solely to other agencies (or personnel of such agencies) and that are not anticipated to have substantial future effect on the behavior of regulated parties or the public, including the typical documents issued for government-wide use by OPM.

(d) OIRA means the Office of Information and Regulatory Affairs of OMB.