Nonlegislative rules: "statements of policy" and guidance[edit]
"Nonlegislative rules" such as guidance, guidelines, agency staff manuals, staff instructions, opinion letters, and press releases are called "statements of policy" or "guidance."[4] (The two terms are not synonyms, only closely correlated: statements of policy are almost issued in documents classified as guidance, and guidance documents to the public often include statements of policy.) Guidance and statements of policy are not legally binding on the public because they have not gone through the required procedures to become "legislative" regulations binding on the public (depending on the rule, hearing, notice, comment, publication). However, when stated in mandatory language, they can bind the agency itself. They have only hortatory effect on the public, and those affected can challenge the agency's right to enforce the policy statement or guidance.[5]
In the late 1990s and early 2000s, many agencies were bypassing the APA’s requirements for rulemaking by tucking rules into informal documents like agency staff manuals and the like.[6] This is simply illegal. The Executive Office of the President stepped in to stop bootleg rulemaking, and forbade this practice.[7] Some agencies, for example, the U.S. Patent and Trademark Office, have nonetheless continued to defy the law, and state their formal refusal to implement the President's directive.
The distinction between these types of rules has been called "one of the most confusing in administrative law".[8]