§ 339.1 - General.

§ 339.1 General.

(a) This part provides policies and procedures governing all phases of issuing, modifying, or rescinding guidance documents within DoD.

(b) Subject to the qualifications and exemptions contained in this part, these policies and procedures apply to all guidance documents intended to have future effect on the behavior of regulated parties issued by all components of the Department, including regional and district offices.

(c) For purposes of this part, the term guidance document includes any statement of agency policy or interpretation concerning a statute, regulation, or technical matter within the jurisdiction of the Department that is intended to have general applicability and future effect on the behavior of regulated parties, but which is not intended to have the force or effect of law in its own right and is not otherwise required by statute to satisfy the rulemaking procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556. The term is not confined to formal written documents; guidance may come in a variety of forms, including, but not limited to, letters, memoranda, circulars, bulletins, advisories, and may include video, audio, and Web-based formats. See OMB Memorandum M-20-02, “Guidance Implementing Executive Order 13891, Titled “Promoting the Rule of Law Through Improved Agency Guidance Documents,” ” dated October 31, 2019.

(d) This part does not apply to:

(1) Agency statements of specific applicability, including advisory or legal opinions directed to particular parties about circumstance-specific questions (e.g., case or investigatory letters responding to complaints, warning letters), notices regarding particular locations or facilities (e.g., guidance pertaining to the use, operation, or control of a government facility or property), and correspondence with individual persons or entities (e.g., congressional correspondence), except documents ostensibly directed to a particular party but designed to guide the conduct of the broader regulated public;

(2) Agency statements that do not set forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statute or regulation, including speeches and individual presentations, editorials, media interviews, press materials, or congressional testimony that do not set forth for the first time a new regulatory policy;

(3) Rules promulgated pursuant to notice and comment under 5 U.S.C. 553, or similar statutory provisions;

(4) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a);

(5) Rules of agency organization, procedure, or practice;

(6) Decisions of agency adjudications under 5 U.S.C. 554, or similar statutory provisions;

(7) Internal guidance directed solely to the issuing agency or other agencies (or personnel of such agencies) that is not intended to have substantial future effect on the behavior of regulated parties or the public;

(8) Internal guidance that is made public only because release is required under the Freedom of Information Act or agency disclosure policies;

(9) Legal briefs, other court filings, or positions taken in litigation or enforcement actions;

(10) Legal opinions by the Office of Legal Counsel at the Department of Justice.

(11) Internal executive branch legal advice or legal advisory opinions addressed to executive branch officials;

(12) Guidance pertaining to military or foreign affairs functions, or to a national security or homeland security function of the United States (other than guidance documents involving procurement or the import or export of non-defense articles and services);

(13) Grant solicitations and awards; or

(14) Contract solicitations and awards.