Notice & Comment

Thoughts on GAO’s New Report on Guidance Documents

Agency use of guidance documents (defined here as agency rules issued as either interpretive rules or policy statements) has been hot topic in administrative law lately. The Supreme Court recently rejected a D.C. Circuit doctrine that was intended at least in part to deter agency abuse of guidance. Several justices have expressed an interest in reducing or eliminating deference to agency guidance, invoking concern over agency abuse.

The GAO recently contributed to the debate over agency use of guidance, issuing a report examining use of guidance by four agencies: USDA, Education, HHS, and DOL. The report has a number of interesting nuggets, including:

A categorization of reasons that agencies use guidance

Aggregate statistics on how frequently agencies use guidance, including “significant” guidance

Details on internal agency processes for issuing and then publicizing guidance

The report does not seek to address the most contentious question: are agencies actually using guidance to subvert the notice-and-comment rulemaking process? This is a hard issue.

My take is that that any abuse is relatively small compared to the volume of notice-and-comment rulemaking. But, addressing this question is difficult as there are many agencies, each of which probably uses guidance in a somewhat unique way. For instance, I suspect that agencies with “gatekeeping authority,” or the power to grant something that private parties want such as a license or a permit, may feel greater latitude to use guidance without being challenged.

The potential for significant variation between agencies is one reason why the GAO report’s close evaluation of USDA, Education, HHS, and DOL is so valuable. Hopefully it will spur further work in this important area.

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