Notice & Comment

ACUS and Best Practices for Agency Guidance, by Jeremy Graboyes and Todd Phillips

As Aaron Nielson posted Wednesday, President Trump issued two new executive orders this week that impact the use of guidance by executive agencies.

Taken together, the EOs seek to ensure the “transparent” and “fair” use of guidance documents by requiring agencies to: (a) develop procedures for issuing guidance documents; (b) provide reasonable notice and easy access to guidance, especially by maintaining a “single, searchable, indexed” database of all guidance documents on agency websites; (c) clarify the legal effect of guidance documents; (d) solicit public comments on guidance in certain situations; and (d) provide members of the public the opportunity to petition agencies to withdraw or modify guidance documents.

There’s a lot more in the EOs, of course, and agencies are still waiting on OMB to provide additional details. Aaron, Nick Parillo, and others have already covered many of their specifics and implications in what’s shaping up to be a mini-symposium.

The Administrative Conference of the United States has long focused on how agencies develop, use, and publish guidance documents. In the past two years alone, ACUS’s Assembly has issued four recommendations on guidance documents that encourage agencies to adopt some of the same practices required by the EOs with respect to the use and publication of guidance documents. For each recommendation, ACUS consultants and in-house researchers have issued a report studying how agencies currently use and make available guidance.

Two of the recommendations, Recommendation 2017-5 and Recommendation 2019-1, address agency guidance through policy statements and interpretive rules. Together, they encourage agencies to:

  • Make guidance documents that affect regulated parties, regulatory beneficiaries, and other interested persons “promptly . . . available” in an indexed, electronic format;
  • Avoid creating new standards binding on the public through guidance documents, and instead to use guidance documents only to interpret or explain agencies’ implementation of statutes and regulations;
  • Provide members of the public a fair opportunity to argue for lawful, alternative approaches or analyses to those detailed in guidance documents, or for modification, rescission, or waiver of guidance documents;
  • Consider soliciting public participation when or after they adopt or modify guidance; and
  • Clearly state the “nature of the reliance” that may be placed on guidance documents and the opportunities for modification, rescission, or waiver.

The accompanying reports, Federal Agency Guidance: An Institutional Perspective by Nicholas R. Parrillo and Agency Guidance Through Interpretive Rules: Research and Analysis by Blake Emerson & Ronald M. Levin, explain how agencies and the public use and rely on interpretive rules and policy statements.

A third recommendation, Recommendation 2018-3, Public Availability of Adjudication Rules, encourages agencies to provide easy, comprehensive, online access to “guidance documents and other explanatory materials that help persons appearing before agencies navigate the adjudicative process and guide agency adjudicators and other agency officials.” The project report, Public Availability of Adjudication Rules by Todd Phillips, details the legal requirements for publishing adjudication rules and provides examples of displays of adjudication rules on agency websites that can stand as a model for other agencies.

Building on these three recommendations, Recommendation 2019-3, Public Availability of Agency Guidance Documents, acknowledges that “[g]uidance documents can take many forms” and encourages agencies to “maintain a page on their websites dedicated to informing the public about the availability of guidance documents and facilitating access to those documents.” ACUS recommended agencies use these pages to explain the purpose and legal effects of guidance documents. ACUS also urged agencies to develop written procedures for managing guidance documents, take “affirmative measures” to inform the public of new and revised guidance documents, and “provide opportunities for public feedback” on those efforts. Consultant Cary Coglianese’s report, Public Availability of Agency Guidance Documents, details the legal requirements for making available agency guidance documents and provides many examples from agency websites where specific agencies have done an excellent job and other agencies could learn from their examples.

Although we have yet to see OMB’s guidance on enacting the EOs’ mandates, we believe agencies may find the materials in these recommendations and consultant reports useful in designing and building webpages that enhance the availability of guidance documents to the public.

Todd Phillips is an Attorney Advisor and Counsel for Congressional Affairs with the Administrative Conference of the United States. Jeremy Graboyes is an Attorney Advisor with ACUS. The views expressed in this essay are those of the authors and do not necessarily represent the views of ACUS. ACUS consultant reports are those of the authors and do not necessarily represent the views of ACUS.

Agencies seeking assistance with ACUS’s recommendations may contact the Conference by emailing Todd Phillips.

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