Justice Manual § 1-19.100

An agency guidance document is any agency statement of general applicability and future effect that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statute or regulation, other than a substantive action by an agency that promulgates or is expected to promulgate a regulation. See Exec. Order 12,866, Regulatory Planning and Review, § 3(e), 58 Fed. Reg. 51,735 (1993). [Footnote 1] Agency guidance documents may not be used as a substitute for regulation and may not be used to impose new requirements on persons outside the Executive Branch except as expressly authorized by law or contract.

In accordance with this principle, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments). Likewise, Department components may not issue guidance documents that create binding standards by which the Department will determine compliance with existing regulatory or statutory requirements.

To ensure compliance with this policy, and to ensure that persons and entities outside the Executive Branch are aware that guidance documents are not binding, Department components, when issuing guidance documents, will:

Identify the documents as guidance, disclaim any force or effect of law, and avoid language suggesting that the public has obligations that go beyond those set forth in the applicable statutes and regulations;

Clearly state that the documents have no legally binding effect on persons or entities outside of the Executive Branch and may be rescinded or modified in the Department’s complete discretion;

Avoid using the documents for the purpose of coercing persons or entities outside of the federal government into taking any action or refraining from any action beyond what is required by the terms of the applicable statute or regulation;

Avoid using mandatory language such as “shall,” “must,” “required,” or “requirement” to direct parties outside the Executive Branch to take or refrain from taking action except when restating—with citations to statutes, regulations, or binding judicial precedent—clear mandates contained in the statute, regulation, or binding judicial precedent; and

Clearly state that noncompliance with voluntary standards will not, in itself, result in any enforcement action.

Department components should continue posting any new or revised guidance documents to the Department’s Online Guidance Portal, https://www.justice.gov/guidance; guidance documents posted there should contain unique numbers and include issuance and revision dates. While the Guidance Portal is intended for guidance documents, Department components may submit to the portal other public-facing materials that are published elsewhere when the publication of those materials on the Guidance Portal would benefit the public.