1-19.000 – Limitation on Issuance of Guidance Documents

An agency guidance document is any agency statement of general applicability and future effect that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statute or regulation, other than a substantive action by an agency that promulgates or is expected to promulgate a regulation.? See Exec. Order 12,866, Regulatory Planning and Review, §?3(e), 58 Fed. Reg. 51,735 (1993).[1]? Agency guidance documents may not be used as a substitute for regulation and may not be used to impose new requirements on persons outside the Executive Branch except as expressly authorized by law or contract.?

In accordance with this principle, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments).? Likewise, Department components may not issue guidance documents that create binding standards by which the Department will determine compliance with existing regulatory or statutory requirements.

To ensure compliance with this policy, and to ensure that persons and entities outside the Executive Branch are aware that guidance documents are not binding, Department components, when issuing guidance documents, should:

  • Identify the documents as guidance, disclaim any force or effect of law, and avoid language suggesting that the public has obligations that go beyond those set forth in the applicable statutes and regulations;
  • Clearly state that the documents have no legally binding effect on persons or entities outside of the Executive Branch and may be rescinded or modified in the Department’s complete discretion;
  • Avoid using the documents for the purpose of coercing persons or entities outside of the federal government into taking any action or refraining from any action beyond what is required by the terms of the applicable statute or regulation;
  • Avoid using mandatory language such as “shall,” “must,” “required,” or “requirement” to direct parties outside the Executive Branch to take or refrain from taking action except when restating—with citations to statutes, regulations, or binding judicial precedent—clear mandates contained in the statute, regulation, or binding judicial precedent;
  • Clearly state that noncompliance with voluntary standards will not, in itself, result in any enforcement action.

[1] To be clear, the term “guidance document” does not include decisions, orders, or other documents issued in adjudicatory actions that do not purport to or have the effect of binding anyone beyond the parties to the adjudication.? It also does not include documents informing the public of the agency’s enforcement priorities or factors the agency considers in exercising its prosecutorial discretion.? Nor does it include internal directives, memoranda, legal and strategy monographs, or training materials for agency personnel directing them on how to carry out their duties, positions taken by an agency in litigation, or legal advice provided by the Department.

[new December 2018]

Updated December 20, 2018