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TREASURY DIRECTIVE

28-04
DATE:
December 12, 2007
TDF 80-01.1 (Rev. 05194)
SUBJECT: Procedures for Approval of Significant Guidance Documents
1. Introduction. In January 2007, the President issued new requirements in order to
ensure that "significant guidance documents" (SGDs) of the Executive Branch are
"developed with appropriate review and public participation." He did so by revising
Executive Order (EO) 12866 and by issuing Office of Management and Budget (OMB)
Bulletin 07-02.
2. Overview of New Requirements. Federal agencies now must publish SGDs on
the internet and allow for public review and comment. Furthermore, in the case of
"economically significant guidance documents" (ESGDs), Federal agencies must first
publish the guidance on the internet in draft form before it becomes effective, and
publish a notice in the Federal Register announcing that the draft document is available
and inviting public comments. OMB's Office ofInformation and Regulatory Affairs
(OIRA) is charged with overseeing implementation of the new requirements. OMB has
granted Treasury certain exemptions from these new requirements as discussed below.
3. Definitions
The new requirements apply only to SGDs and ESGDs. See EO 12866, as amended, and
the OMB Bulletin 07-02 ("Final Bulletin for Agency Good Guidance Practices"). The
following definitions apply to these terms:
A "guidance document" is any agency statement of general applicability and future effect
(other than a regulatory action) that sets forth (1) a policy on a statutory, regulatory, or
technical issue or (2) an interpretation of a statutory or regulatory issue. EO 12866,
section 3(g). Some examples are memoranda, manuals, and policies, so long as they are
of general applicability (i.e., not related to a particular dispute or matter) and future effect
(i.e., not a discussion of prior practices). OMB Bulletin 07-02 at p. 6. The definition
covers materials regardless of format, to include video/audio tapes and software. Id. at p.
7.
An "SGD" is a guidance document that is disseminated to regulated entities or to the
general public that may reasonably be anticipated to (1) lead to an annual effect on the
economy of $100 million or more, or adversely affect in a material way the economy, a
sector ofthe economy, productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan
programs, or the rights and obligations or recipients thereof; or (4) raise novel legal or
policy issues arising out oflegal mandates, the President's priorities, or the principles of
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TDF 80-01.3 (Rev_ 05/94)
EO 12866_ See EO 12866, section 3(h). The definition of an SGD does not include such
things as documents that pertain to a military or foreign affairs function ofthe United
States, documents limited to purely internal agency policies, legal opinions, or public
relations materials. OMB Bulletin 07-02 at p. 8.
An "ESGD" is an SGD that may reasonably be anticipated to lead to an annual effect on
the economy of $100 million or more, or adversely affect in a material way the economy
or a sector of the economy, except to the extent the document involves Federal
expenditures or receipts (e.g., the administration or collection of taxes, tax credits, or
duties). OMB Bulletin 07-02 at 9. See SGD definition, paragraph (1), above.
4. General Requirements for Guidance Documents
The amendments to EO 12866 clarify that certain principles related to regulations also
apply to guidance documents. Specifically:
Each agency shall base its decisions on the best reasonably obtainable scientific,
technical, economic, and other information concerning the need for and consequences of
the intended regulation or guidance document. (Sec. (1)(b)(7)).
Each agency shall avoid regulations or guidance documents that are inconsistent,
incompatible, or duplicative with other regulations or guidance documents or those of
other Federal agencies. (Sec. (1)(b)(10)).
Each agency shall tailor its regulations and guidance documents to impose the least
burden on society, including individuals, businesses of differing sizes, and other entities
(including small communities and governmental entities), consistent with obtaining
regulatory objectives, taking into account, among other things, to the extent practicable,
the cumulative cost of regulations. (Sec. (l)(b)(ll)).
Each agency shall draft its regulations and guidance documents to be simple and easy to
understand with the goal of minimizing the potential for uncertainty and litigation arising
from such uncertainty. (Sec. (1)(b)(12)).
5. Treasury Exemptions
Many of the Department's guidance documents, which might otherwise be considered
SGDs or ESGDs under the above definitions, may be exempt from the new requirements.
If the new requirements are not applicable, the Department and the bureaus may use any
appropriate procedure in issuing such documents. Any questions regarding applicability
of the new requirements should be addressed to the Treasury Assistant General Counsel
for General Law, Ethics, and Regulation (AGC-GLER).
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TDF 80-01.3 (Rev 05194)
Guidance documents issued by the following Treasury components are covered by the
exemptions:
The Internal Revenue Service (IRS);
The Alcohol and Tobacco Tax and Trade Bureau (TTB);
The Office of the Assistant Secretary (Tax Policy), either on its own authority or jointly
with the Department of Homeland Security, or with another agency, to the extent that a
guidance document involves a Customs Revenue Function;
The Bureau of the Public Debt (BPD), to the extent the guidance document implements,
through the exercise ofthe general borrowing power, the fiscal policies of the United
States;
The Office of Foreign Assets Control (OFAC), or any other component ofthe
Department, to the extent the guidance document involves a foreign affairs function of
the United States; and
Any component of the Department, to the extent the guidance document (i) is issued on
behalf of the Committee on Foreign Investment in the United States (CFIUS) concerning
the national security review of mergers, acquisitions or takeovers of United States firms
by foreign entities; (ii) concerns the periodic reporting of portfolio capital positions and
transactions pursuant to the International Investment and Trade in Services Survey Act or
the Bretton Woods Agreements Act; or (iii) concerns the reporting of foreign currency
positions oflarge United States business enterprises and their foreign affiliates pursuant
to 31 US.c. § 5315.
Any component ofthe Department that, through agreement with OMB, has been
determined to be exempt.
6. Procedures for non-exempt SGDs
It is the responsibility of each Treasury component promulgating an SGD or ESGD to
ensure its compliance with the new requirements.
Assuming the new requirements are applicable, Treasury components must follow the
following procedures.
Approval Procedures -- To the extent that an office or bureau plans to issue an SGD that
is not exempt from the provisions of the EO and OMB Bulletin, the office or bureau shall
comply with the notice procedures in section 6 of this policy, and in addition shall submit
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TDF 80-01.3 (Rev. 05194)
the item for clearance to the General Counselor his designee prior to publication or
posting.
Standard Elements of an SGD - Each SGD shall be in the form specified in and conform
to the requirements of section 11.2 ofOMB Bulletin 07-02.
Internet Access - The Department and each bureau will maintain on their internet
websites a current list of all SGDs that are in effect, together with a link to each
document. New SGDs must be added to the list within 30 days of issuance. The list
must also identify SGDs that have been issued, revised, or withdrawn during the past
year. In addition, the Department's internet website will provide links to the SGD
website of each bureau.
Public Feedback - The Department and each bureau will establish on their internet
website a means for the public to submit electronic comments on SGDs and electronic
requests for issuance, reconsideration, modification, or rescission of SGDs. The
Department or bureau is not required to take action on, or respond to, such comments.
However, the Department or bureau should establish a mechanism to convey any public
comments to the office responsible for the SGD for consideration. In addition, each
Department policy office or Treasury bureau responsible for the issuance of an SGD must
designate one or more offices to receive and address comments that the agency is not
adhering to the new requirements in OMB Bulletin 07-02 or is treating an SGD as a
binding requirement. The name and contact information for the appropriate office must
be posted on the Department's and each bureau's website.
ESGDs - In addition to the requirements for SGDs, the Department and each bureau
must make drafts of ESGDs available to the public on the internet. In addition, the
Department or bureau must publish a notice in the Federal Register indicating that the
draft document is available, inviting public comments on the draft, and stating the
guidance documents does not have the force and effect oflaw. The Department or
bureau must post on its website, and make available in hard copy, a document responding
to any public comments received. Public comments on an ESGD must be processed
through Regulations.gov.
Notice to OMB - At least 20 days prior to promulgating an SGD (including an ESGD) in
draft or final form, the Department policy office or the bureau responsible for the SGD
shall prepare a notice and furnish such notice to the Senior Counsel for Regulatory
Affairs located in the office of the Assistant General Counsel (General Law, Ethics, and
Regulation). The notice shall be in the following format:
NOTICE OF PLANNED SGD
Department of the Treasury: [Insert Name of Office or Bureau]
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Title of the SGD: [Insert Title]
TD 28-04
TDF 80-01.3 (Rev. 05194)
Planned Date of Issuance: [Insert Date]
Contact: [Insert name and phone of a person who can answer detailed questions
about the SGD]
Description: [Insert a brief description of what the document is intended to do and
why; the issues associated with the document; any urgency associated with its
issuance; and why the document is considered to be an SGD. If public comments
were received on a draft of the document, include a brief statement of the nature
and extent of public comment and the nature and extent of changes made in
response to the public comment.]
The Senior Counsel for Regulatory Affairs will forward the notice to OIRA. Within 10
days of receiving the Notice, OIRA may request a draft of the SGD for review. Ifthis
occurs, the policy office or bureau shall forward such a draft to the Senior Counsel for
Regulatory Affairs for transmission to OMB. In such a case, the policy office or bureau
shall not release the SGD in draft or final form until notified by the Senior Counsel for
Regulatory Affairs that OIRA's review is complete.
If an emergency occurs that may require promulgation of an SGD prior to initiation or
completion of the OIRA review process, the policy office or bureau shall consult with the
Senior Counsel for Regulatory Affairs prior to proceeding. The Senior Counsel for
Regulatory Affairs will notify OIRA ofthe situation and consult with OIRA over
procedures for review after the emergency is addressed.
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F. Hoyt
General Counsel
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