Documents Covered by the Bulletin

Guidance Documents…

• Non-rulemaking agency document
• Available to the public (actually public or FOIAble)
• To describe the agency’s interpretation of or policy on
• A regulatory or technical issue

…That are Significant

• Highly controversial interagency concerns or administration priorities
• Initial interpretations of statutory or regulatory requirements, or changes in previously announced interpretations
• Novel or complex scientific or technical issues
• Economically significant: reasonably anticipated to have annual effect of $100 million or more, or adversely affect in a material way the economy or a sector of the economy
  • Excluding information on federal expenditures or receipts

Exceptions

• contractor instructions
• legal advisory opinions for internal executive branch deliberation
• briefs and litigation documents
• speeches
• journal articles
• editorials, media interviews, press materials
• memoranda of understanding
• warning letters

New Requirements

All significant guidance documents:

Review and Approval: must be approved by senior agency staff.

Content: No words that suggest mandatory duties; include basic information (date, agency, docket number, etc.).

Transparency: all to be publicly available on the Internet, as well as yearly list of all significant guidance documents.

Public Participation: Agencies are also required to develop a means for receiving public comment on guidance documents, including requests for review or modification of existing guidance documents or proposals for new guidance documents. Agencies do not have to respond to public requests, as the comments would be strictly “for the benefit of the agency.”

For economically significant guidance documents:

• Notice must be published in the Federal Register.
• Agency must formally respond to the comments when it publishes final guidance.
• Agencies may exempt specific guidance docs or classes of guidance “in consultation with” OIRA if formal notice and comment “not feasible and appropriate.”