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TREASURY DIRECTIVE: 28-04

 
DATE:  July 10, 2015
 
SUBJECT:  Procedures for Approval of Significant Guidance Documents
 
1.  PURPOSE.  Pursuant to OMB Bulletin No. 07-02, “Agency Good Guidance Practices,” each federal agency shall have written procedures for the approval of “significant guidance documents” (SGDs) to ensure SGDs are approved by appropriate senior agency officials. 
 
2.  SCOPE.  This directive applies to all bureaus, offices, and organizations in the Department of the Treasury, including the offices of inspectors general within the Department, with the exception of the Office of the Comptroller of the Currency and the Office of Financial Research.  The provisions of this directive shall not be construed to interfere with or impede the authorities or independence of the Department’s inspectors general.
 
3.  POLICY.  All Treasury SGDs shall be approved by the General Counsel or his or her designee.
 
4.  DEFINITIONS.  The requirements apply only to significant guidance documents, including economically significant guidance documents (ESGDs).  The following definitions apply:
 
a.       Guidance document:  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.  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).  The definition covers all materials regardless of format, to include video/audio recordings and software. 
 
b.      Significant guidance document:  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 of the 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 of legal mandates, the President’s priorities, or the principles of Executive Order 12866.  The definition of an SGD does not include such things as documents that pertain to a military or foreign affairs function of the United States, documents limited to purely internal agency policies, legal opinions, or public relations materials. 
 
c.       Economically Significant Guidance Document:  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).  See SGD definition, paragraph 4b, above.
 
5.  RESPONSIBILITIES.
 
a.       Bureaus/Offices shall be responsible for:
 
1)      Drafting the SGD;
 
2)      Ensuring the SGD follows the form specified in and conforms to the requirements of
section II.2 of OMB Bulletin 07-02;
 
3)      Ensuring public notice requirements are satisfied;
 
4)      Ensuring proper clearance procedures are followed; and
 
5)      Posting a list of current SGDs to the public website with a link to the documents.
 
b.      The General Counsel or his or her designee shall be responsible for reviewing and clearing all SGDs.
 
c.   The Senior Counsel for Regulatory Affairs shall be responsible for:
 
1)      Reviewing all SGDs for compliance with law, regulation, and policy;
 
2)      Serving as the sole liaison with OMB on all matters pertaining to SGDs; and
 
3)      Reviewing and approving Federal Register notices for ESGDs, and ensuring such documents are sent to the Federal Register for publishing.
 
6.  IMPLEMENTATION.
 
a.       First, each bureau or office shall determine whether an SGD is required (see Treasury exceptions below). 
 
b.      The bureau or office shall draft the document, ensuring it is in the form specified and conforms to the requirements of section II.2 of OMB Bulletin 07-02.
 
c.       After approval by the head of the office or bureau, the office or bureau issuing an SGD shall submit the document, along with an action memorandum (addressed to the General Counsel), for clearance through the Senior Counsel for Regulatory Affairs (in the office of the Assistant General Counsel for General Law, Ethics, and Regulation).  The SGD shall be reviewed by the Senior Counsel for Regulatory Affairs and the General Counsel or his or her designee.  The General Counsel or his or her designee may request review by additional parties as necessary.
 
d.      At least 20 days prior to promulgating the SGD, the issuing bureau or office also shall prepare and forward to the Senior Counsel for Regulatory Affairs a notice for submission to OMB’s Office of Information and Regulatory Affairs (OIRA).  The notice shall be in the following format:
 
      Department of the Treasury: [Insert Name of Office or Bureau]
 
      Title of the SGD: [Insert Title]
 
      Planned Date of Issuance: [Insert Date]
 
Contact: [Insert name and phone number of an individual who can answer detailed questions about the document]
 
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/ESGD.  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 comments.]
 
Within 10 days of receiving the notice, OIRA may request a draft of the SGD for review.  If this occurs, the office or bureau shall forward the draft to the Senior Counsel for Regulatory Affairs for transmission to OMB.  The office or bureau shall not publicly 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 requires promulgation of an SGD prior to initiation or completion of OIRA review, the office or bureau shall consult with the Senior Counsel for Regulatory Affairs prior to proceeding.  The Senior Counsel for Regulatory Affairs shall notify OIRA of the situation and consult with OIRA regarding procedures for review after the emergency is addressed.
 
e.       The Department’s internet website (Treasury.gov) and each bureau internet website shall contain a current list of SGDs that are in effect, with a link to each document.  New SGDs shall be added to the relevant internet website within 30 days of issuance.  The internet website list shall also identify SGDs that have been issued, revised, or withdrawn during the past year.  The Department’s internet website shall provide links to the SGD website of each bureau.
 
f.       The Department and each bureau shall maintain on their websites a means for the public to submit electronic comments on SGDs and electronic requests for issuance, reconsideration, modification, or rescission of SGDs.  Neither the Department nor its bureaus are required to take action on, or respond to, such comments.  However, the Department and bureaus should ensure that public comments are conveyed to the offices responsible for particular SGDs. 
 
g.      Offices or bureaus issuing SGDs shall identify on the Department’s and bureau’s internet website one or more offices or individuals to receive and address comments that the agency is not adhering to the requirements in OMB Bulletin 07-02 or is treating an SGD as a binding requirement.
 
h.      ESGDs shall be made available to the public on the Department’s or bureau’s website, in draft form.  In addition, a Federal Register notice shall be published indicating that the draft document is available, inviting public comments on the draft, and stating the guidance document does not have the force and effect of law.  The Department or bureau shall post on its internet website, and make available in hard copy, a document responding to any public comments received.  Public comments on an ESGD shall be processed through Regulations.gov.
 
i.        Treasury Exemptions.  Many of the Department’s guidance documents, which might otherwise be considered SGDs under the above definitions, may be exempt from these procedures.  Guidance documents issued by the following Treasury components are exempt: 
 
1)      The Internal Revenue Service (IRS);
 
2)      The Alcohol and Tobacco Tax and Trade Bureau (TTB);
 
3)      The Office of the Assistant Secretary (Tax Policy), acting 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;
 
4)      The Bureau of the Fiscal Service, to the extent the guidance document implements, through the exercise of the general borrowing power, the fiscal policies of the United States;
 
5)      The Office of Foreign Assets Control (OFAC), or any other component of the Department, to the extent the guidance document involves a foreign affairs function of the United States; and
 
6)      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; (iii) concerns the reporting of foreign currency positions of large United States business enterprises and their foreign affiliates pursuant to 31 U.S.C. § 5315; or (iv) that through agreement with OMB, has been determined to be exempt.
 
If these procedures are not applicable, the Department and the bureaus may use any appropriate procedure in issuing such documents.  Any questions regarding applicability of an exemption should be addressed to the Assistant General Counsel for General Law, Ethics, and Regulation.
 
7.  AUTHORITY.  OMB Bulletin 07-02, “Agency Good Guidance Practices,” 72 Fed. Reg. 3432 (Jan. 25, 2007).
 
8.  CANCELLATION.  This document supercedes the prior version of Treasury Directive 28-04, “Procedures for Approval of Significant Guidance Documents,” dated December 12, 2007.
 
9.  OFFICE OF PRIMARY INTEREST.  Office of the Assistant General Counsel for General Law, Ethics & Regulation.
 
 
                                                                                      /S/
 
Christopher J. Meade
General Counsel
 
 
 
Last Updated: 7/14/2015 2:39 PM

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