28 CFR § 50.26 - Limitation on issuance of guidance documents.

§ 50.26 Limitation on issuance of guidance documents.

(a) General principles.

(1) 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

(i) A policy on a statutory, regulatory, or technical issue, or

(ii) An interpretation of a statute or regulation.

(2) The term “guidance document” does not include the following:

(i) Rules promulgated pursuant to notice and comment under section 553 of title 5, United States Code, or similar statutory provisions;

(ii) Rules exempt from rulemaking requirements under section 553(a) of title 5, United States Code;

(iii) Rules of agency organization, procedure, or practice;

(iv) Decisions of agency adjudications under section 554 of title 5, United States Code, or similar statutory provisions;

(v) Internal guidance directed to the issuing agency or other agencies that is not intended to have substantial future effect on the behavior of regulated parties;

(vi) Internal Executive Branch legal advice or legal opinions addressed to Executive Branch officials, see E.O. 13891 of October 9, 2019, sec. 2(b); or

(vii) Documents informing the public of the agency's enforcement priorities or factors the agency considers in exercising its prosecutorial discretion.

(3) An agency guidance document may not be used as a substitute for regulation and may not be used to impose new standards of conduct on persons outside the Executive Branch except as expressly authorized by law or as expressly incorporated into a contract.

(4) In accordance with the principles set forth in paragraphs (a)(1) through (3) of this section, except where expressly authorized by law or as expressly incorporated into a contract, 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, except where expressly authorized by law or as expressly incorporated into a contract, Department components may not issue guidance documents that create binding standards by which the Department will determine compliance with existing regulatory or statutory requirements.

(b) Compliance procedures. To ensure compliance with this section, when issuing guidance documents, Department components must, except where expressly authorized by law or as expressly incorporated into a contract:

(1) 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;

(2) Clearly state that the documents do not bind the public, except as authorized by law or as incorporated into a contract;

(3) Avoid using the documents for the purpose of coercing persons or entities outside of the Executive Branch into taking any action or refraining from any action beyond what is required by the terms of the applicable statute or regulation;

(4) 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; and

(5) Clearly state that noncompliance with voluntary standards will not, in itself, result in any enforcement action.

[AG Order No. 4769-2020, 85 FR 50953, Aug. 19, 2020]