OMB has issued instructions for agencies on complying with the recent executive order stating that enforceable policies should be set only through formal rule-making procedures, saying that guidance documents “should only clarify existing obligations; they should not be a vehicle for implementing new, binding requirements on the public.”
“Even guidance documents that do not create binding requirements, however, can significantly affect the public, and EO 13891 recognizes that these documents warrant a thorough review prior to issuance,” says memo M-20-02.
The OMB memo says guidance documents “can provide a valuable means” for agencies to interpret existing law through an interpretive rule or to clarify how it intends to enforce a legal requirement. “However, a guidance document should never be used to establish new positions that the agency treats as binding; any such requirements must be issued pursuant to applicable notice-and-comment requirements of the Administrative Procedure Act or other applicable law,” it says.
“Nor should agencies use guidance documents-including those that describe themselves as non-binding effectively to coerce private-party conduct, for instance by suggesting that a standard in a guidance document is the only acceptable means of complying with statutory requirements, or by threatening enforcement action against all parties that decline to follow the guidance,” it says.
The memo addresses what qualifies as a guidance document for purposes of the order, requirements to publicly post existing guidance documents on agency websites, and requirements to set new internal policies for issuing guidance under the order’s standards, and more.