§ 89.5 - Public Access to guidance.

§ 89.5 Public Access to guidance.

(a) The Department must maintain a single, searchable, indexed website that contains, or links to, each agency's guidance documents in effect. Each agency must ensure that all its guidance is available through this website; any guidance posted will be deemed final unless it is a proposed significant guidance document under § 89.6.

(b) The website described in paragraph (a) of this section must clearly note that guidance documents lack the force and effect of law, except as authorized by law or as incorporated into a contract, cooperative agreement, or grant and that an agency may not cite, use, or rely on any guidance that is not posted on the website, except to establish historical facts.

(c) All guidance documents that are not posted on the Department's website described in paragraph (a) of this section shall be deemed no longer in effect. Such guidance must not be cited, used, or relied upon by any agency as indicative of an agency's policies or views except to establish historical facts, including the agency's position at the time and the regulated party's knowledge, or (where the legal standard so permits) constructive knowledge or reckless disregard, of legal requirements at the time an enforcement action was initiated.

(d) The Department must maintain and advertise on its website a means for the public to comment electronically on any guidance documents that are the subject of the notice-and-comment procedures described in § 89.6.

(e) The Department must provide clear instructions on its website regarding how to submit petitions for withdrawal or modification of any guidance document, consistent with § 89.7. These instructions must include an email address or web portal, a physical mailing address for hard-copy petitions, and the office responsible for coordinating responses to petitions. This website should clearly identify the relevant agency official(s) to whom petitions should be directed.

(f) Within 14 calendar days after the end of each fiscal quarter, the Department must publish a list of each agency's guidance documents issued, modified, or withdrawn in that immediately preceding quarter, including links to those guidance documents when feasible.