Background on Guidance
The term “guidance” is often used to refer to nonlegislative rules – that is, interpretations and policy statements. Guidance documents can be generally applicable – that is, they are intended to provide interpretations or policy statements that are applicable to the general public. They can also apply only to a particular party or parties. For example, they may respond to a request from a regulated entity who seeks guidance on how to act under a specific set of facts that the entity provides. Whether generally applicable or only applicable to a particular party, guidance documents are not legally binding on the public. Under the Administrative Procedure Act's broad definition of “rule” in 5 U.S.C. § 551(4), guidance would also be a “rule.” For ease of reference, and to be consistent with the breakdown in the Office of Management and Budget (OMB) Bulletin referred to on this webpage, unless otherwise indicated, further references to “rule” will be to a "legislative" rule.
The following documents contain requirements or information on agency use of guidance documents:
Guidance Bulletin. On January 18, 2007, OMB issued a Bulletin (M-07-07) establishing requirements for the development, issuance, and use of significant guidance documents by Executive Branch departments and agencies. It “is intended to increase the quality and transparency of agency guidance practices and the significant guidance documents produced through them.”
Executive Order (E.O.) 13422. The President also signed E.O. 13422 on January 18; it amended E.O. 12866 (“Regulatory Planning and Review”) to, among other things, add requirements concerning guidance documents to complement the OMB Bulletin. E.O. 13422 was rescinded by E.O. 13497 (2009).
Implementation Memorandum. On April 25, 2007, OMB issued a memorandum providing additional guidance on both the bulletin (M-07-13, “Implementation of Executive Order 13422 (amending Executive Order 12866) and the OMB Bulletin on Good Guidance Practices”), which included an April 25 memorandum from the Administrator of the Office of Information and Regulatory Affairs (OIRA) on the same subject. Although Executive Order 13422 has been rescinded, the OMB Bulletin still provides useful information on other guidance matters.