§ 89.3 - General requirements.

§ 89.3 General requirements.

(a) Unless law otherwise permits, all legislative rules must comply with all applicable notice and comment requirements set out in 5 U.S.C. 553 or other appropriate process under applicable law.

(b) All guidance documents issued after September 28, 2020 must be issued in accordance with this part. For each guidance document an agency issues jointly with other federal agencies (outside the Department), an agency may, subsequent to consultation with those outside agencies about that document, modify its approach from the requirements of this part as necessary.

(c) In any enforcement action commenced after September 28, 2020:

(1) An agencies may not treat a party's noncompliance with a guidance document as itself a violation of applicable statutes or regulations.

(2) However, among other permissible uses of guidance -

(i) If guidance explains or paraphrases existing legal requirements, an agency may use the guidance as evidence that a person had the requisite scienter, notice, or knowledge of the law;

(ii) An agency may cite guidance as evidence of its past positions or to establish the consistency of the agency's current view(s) with those positions; and

(iii) An agency may use a guidance document as probative evidence that a party has satisfied, or failed to satisfy, professional or industry standards or practices relating to applicable statutory or regulatory requirements.

(d) Guidance must not be used to attempt to regulate the public unless the guidance is binding because binding guidance is authorized by law or because the guidance is incorporated into a contract, cooperative agreement, or grant. Guidance should not, for instance, suggest that a standard for behavior in a guidance document is the only acceptable means of complying with statutory requirements where the relevant statute and any relevant legislative rule permits other means of complying. Guidance also should not threaten enforcement action against persons that do not follow the guidance itself.

(e) In issuing or modifying guidance, an agency must comply with any applicable requirements of the Congressional Review Act (5 U.S.C. 801-808).