§339.7. Significant guidance documents. — Inbound Citations

(1) For significant guidance (see § 339.7 of this part), Federal Register required formatting.

(c) Guidance documents deemed by OIRA to be “significant” (see § 339.7 of this part) must be reviewed and approved by the Department's Regulatory Policy Officer before OIRA formally reviews them.

(d) Significant guidance documents (see § 339.7 of this part) must be reviewed and approved by the Department's Regulatory Policy Officer before OIRA formally reviews them.

(a) If the guidance document is determined to be non-significant within the meaning of § 339.7 of this part, the appropriate DoD or OSD Federal Register Liaison Officer will advise the proposing component to proceed with issuance of the guidance.

(a) Except as provided in paragraph (b) of this section, all proposed DoD guidance documents determined to be a “significant guidance document” within the meaning of § 339.7 shall be subject to the following notice and comment procedures. After receiving clearance from OIRA to publish a proposed significant guidance document, the proposing component shall publish a notice in the Federal Register announcing that a draft of the proposed guidance document is publicly available on Regulations.gov, shall invite public comment on the draft document for a minimum of 30 days. After the comment period ends, the proposing component shall prepare and post a public response to major concerns raised in the comments, as appropriate, in the docket on Regulations.gov. Then the component will prepare a final notice that will be coordinated within the department and submitted to OIRA for review, interagency coordination, and clearance for publishing in the Federal Register. Both the proposed and final notices shall be approved by the DoD RPO before OIRA review, and by an OSD Principal Staff Assistant or equivalent appointed by the President after OIRA clearance and DOPSR approval.

Even though not legally binding, some agency guidance may result in a substantial economic impact. For example, the issuance of departmental guidance may induce private parties to alter their conduct to conform to recommended standards or practices, thereby incurring costs beyond the costs of complying with existing statutes and regulations. While it may be difficult to predict with precision the economic impact of voluntary guidance, the proposing component of the Department must, to the extent practicable, make a good faith effort to estimate the likely economic cost impact of the guidance document to determine whether the document might be significant. When the component is assessing or explaining whether it believes a guidance document is significant, it will, at a minimum, provide the same level of analysis that would be required for a major determination under the Congressional Review Act (5 U.S.C. chapter 8). When it is determined that a guidance document will be economically significant (see § 339.7(a)(1) of this part), the component must conduct and publish a Regulatory Impact Analysis of the sort that would accompany an economically significant rulemaking (see requirements in E.O. 12866, E.O. 13563, and OMB Circular A-4), to the extent reasonably possible.