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Guidance is a term inadministrative law used to describe a variety of documents created by government agencies to explain, interpret, or advise interested parties aboutrules, laws, and procedures. Guidance documents clarify and affect how agencies administer regulations and programs. However, they are not legally binding in the same way as rules issued through one of therulemaking processes of theAdministrative Procedure Act (APA).^[1][2][3]

Because they are not rules, guidance documents are not typically subject to theCongressional Review Act (CRA). However, theGovernment Accountability Office determined in 2017 that some guidance documents qualify as rules under the CRA and APA. Seethis section of the article for more information.^[4]

Types of guidance includeinterpretive rules,policy statements, andcontemporaneous guidance. Guidance comes in many forms, including memoranda, notices, bulletins, directives, news releases, letters, and blog posts.^[2][5]

Background

TheAdministrative Procedure Act (APA) of 1946 established two standardizedrulemaking procedures for legally binding regulations:formal andinformal. Both processes require agencies to seek public input on proposed rules and to publish proposed and final regulations in theFederal Register. Agency guidance documents are exempt from APA rulemaking requirements and as such are not legally binding. However, guidance documents clarify and affect how agencies administer regulations, laws, and programs. Because guidance documents are exempt from the procedural requirements of the APA, they can be issued at any time and without an opportunity for public comment.^[1][2][3]

The Regulatory Group, a private consulting firm that advises government officials and businesses on the federal regulatory process, claims that, "In most agencies, the volume of guidance material usually far exceeds the volume of legally enforceable regulations."^[1] Guidance comes in many forms, including memoranda, notices, bulletins, directives, news releases, letters, and blog posts.^[5] Guidance documents are not typically collected in federal publications such as theFederal Register or theCode of Federal Regulations.^[6]

Types of guidance

TheAdministrative Conference of the United States (ACUS), anindependent federal agency that develops recommendations to improve administrative processes, has described the following types of guidance:^[1][2][3]

• Guidance in the form of documents explaining an agency regulation or an agency's interpretation of a statute (also known by the term interpretive rule)
• Guidance in the form of guidelines, manuals, staff instructions, opinion letters, and press releases (also referred to as a policy statement)
• Guidance issued at the same time as an administrative rule in the form of official summaries offinal rules and notes, examples, and appendices contained within the language of rules (also known as contemporaneous guidance)

Sample guidance document

Below is a sample guidance document:

Congressional actions related to guidance

Guidance Clarity Act

U.S. SenatorJames Lankford (R-Okla.) in March 2021 introduced a bill in the Senate called the Guidance Clarity Act. The legislation, which did not pass the 117th Congress, would have required “federal agencies to state on the first page of guidance documents that such guidance (1) does not have the force and effect of law, and (2) is intended only to provide clarity to the public about existing legal requirements or agency policies.”^[7]

During the 118th Congress, Sen. Lankford reintroduced the bill in the U.S. Senate on January 26, 2023. Rep.Blaine Luetkemeyer (R) introduced the bill in the U.S. House of Representatives on June 30, 2023.^[8][9]

Guidance documents classified as rules by the Government Accountability Office

See also:Congress votes to repeal an agency guidance document for the first time

TheGovernment Accountability Office (GAO), an independent agency contracted and supervised byCongress, has issued various reports and determinations related to federal agency guidance documents.

Based on study requests from Senator Pat Toomey (R-Penn.), the GAO determined in 2017 that two agency guidance documents were rules subject to theCongressional Review Act (CRA). The CRA requires agencies to submit rules to Congress and the GAO for review. Once a rule is submitted, Congress and the president have 60 legislative days (days that Congress is actually in session) to pass a resolution repealing the rule and barring the agency from creating a similar rule in the future. Guidance documents are not typically part of this process. However, the GAO determined that the following guidance documents were rules on October 19 and December 5, 2017, respectively:^[4][10][11]

• Interagency Guidance on Leveraged Lending (March 21, 2013), issued jointly by the Board of Governors of theFederal Reserve System, theFederal Deposit Insurance Corporation, and theOffice of the Comptroller of the Currency^[12]

• CFPB Bulletin 2013-02: Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act (March 21, 2013), issued by theConsumer Financial Protection Bureau^[13]

According to an article from the law firm White & Case LLP, these determinations from GAO leave agencies with several options: "submitting the [guidance] to Congress, issuing similar new guidance as a rule that would be submitted to Congress for CRA review, or abandoning the [guidance] altogether in favor of an alternative approach."^[14]

Guidance Out of Darkness Act (GOOD Act)

U.S. SenatorRon Johnson (R-Wis.) and RepresentativeMark Walker (R-N.C.) in January 2018 introduced companion bills in Congress called the Guidance Out of Darkness Act or GOOD Act in the 115th Congress. The legislation would have required the following: "On the date on which an agency issues a guidance document, the agency shall publish the guidance document on the Internet website of the agency." Agencies would have been required to have a single, public website location for all their guidance documents and to maintain online copies of any canceled documents.^[5][15][16]

During the 117th Congress, Sen. Johnson reintroduced the GOOD Act in the U.S. Senate on March 9, 2021. Rep.James Comer (R-Ky.) reintroduced the GOOD Act in the U.S. House of Representatives on March 8, 2021. The bills did not pass the 117th Congress.^[17][18]

During the 118th Congress, Sen. Johnson reintroduced the GOOD Act in the U.S. Senate on March 14, 2023. Rep. Comer reintroduced the GOOD Act in the U.S. House of Representatives on February 9, 2023.^[19][20]

Presidential administrations on guidance

George W. Bush and Barack Obama (2001-2017)

Executive Order 13422: OIRA review of guidance documents

In 2007, PresidentGeorge W. Bush (R) issuedExecutive Order 13422. It required agencies to send significant guidance documents (guidance associated with aneconomically significant rule) to theOffice of Information and Regulatory Affairs (OIRA) for review. Bush's order also taskedregulatory policy officers with ensuring that their agencies comply with that provision.^[21][22][23] This order was withdrawn by Bush's successor, PresidentBarack Obama (D), on January 30, 2009, underExecutive Order 13497. Obama's order did not state a reason for revoking Bush's policies.^[24]

The progressive think tank and regulatory advocacy group OMB Watch (later the Center for Effective Government) said in a press release supporting Obama's revocation that Bush's E.O. 13422 "further politicized the regulatory process and threatened to prevent regulatory agencies from setting new standards that protect the public."^[25][26] TheCompetitive Enterprise Institute, a free-market think tank, later characterized Bush's E.O. 13422 as "a modest effort to restore some of E.O. 12291’s rigor."E.O. 12291 instituted President Reagan'sregulatory review regime, later revoked and replaced by President Clinton'sE.O. 12866.^[27]

Donald Trump

November 2017: DOJ issues memo prohibiting guidance with regulatory effects

Under PresidentDonald Trump (R), theU.S. Department of Justice (DOJ) changed some of its policies on agency guidance documents and regulatory enforcement. According to a press release from the DOJ, on November 17, 2017, Attorney GeneralJeff Sessions "issued a memo prohibiting the Department of Justice from issuing guidance documents that have the effect of adopting new regulatory requirements or amending the law. The memo prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. ... Under the Attorney General’s memo, the Department may no longer issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch."^[28][29]

The press release went on to note that Associate Attorney General Rachel Brand would lead the department's regulatory reform task force in reviewing existing guidance documents and recommending changes and repeals.^[28] The following month, the DOJ announced that it would rescind 25 guidance documents it had found to be outdated or contrary to the new policy.^[30]

On January 25, 2018, Associate Attorney General Brand issued another policy memo implementing and further specifying Sessions' 2017 memo. Brand's memo, titled "Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases," ordered DOJ officials involved in civil enforcement to avoid giving agency guidance the same authority as legally binding rules. The memo read in part:^[31]

The New York Times reported on February 10, 2018, that a variety of agencies could be affected by these policy changes. TheCenters for Medicare and Medicaid Services, theEnvironmental Protection Agency, theFood and Drug Administration, and theDepartment of Health and Human Services were given as examples of agencies that frequently use guidance to establish violations of the law and justify enforcement actions.^[33]

July 2018: Trump administration rescinds 24 guidance documents, affecting race as a consideration in higher ed admissions

The Trump administration rescinded 24guidance documents in July 2018 that had been issued under the Obama administration. The documents included guidance from the U.S. Department of Education (DOE) encouraging institutions of higher education to consider race as a factor in the admissions process as a means to achieve student diversity. The DOE guidance provided legal recommendations and contextual examples for schools considering race as a component of the admissions process.^[34][35][36]

The decision to rescind the DOEguidance documents occurred in light of an investigation launched by theU.S. Department of Justice in the summer of 2017 regarding allegations that Harvard University discriminated against Asian-American applicants by holding them to a higher standard than other applicants.^[35][37]

Attorney GeneralJeff Sessions announced the decision to rescind the guidance documents on July 3, 2018. In his announcement, Sessions stated that the DOE and other agencies are required to adopt new regulations through therulemaking process, which provides members of the public with the opportunity to offer feedback onproposed rules duringpublic comment periods. He discouraged the agency from implementing regulations throughguidance documents, which are issued by agencies in order to explain, interpret, or advise interested parties about rules, laws, and procedures:^[34]

Click"show" to the right on the table below to view the complete list of rescinded guidance documents:^[36][38]

Theory and practice

Why and how agencies use guidance

Quoted in March 2018 by theGovernment Executive news site, law professor Nicholas Parrillo argued that the use of guidance documents benefits both agencies and regulated parties:^[39]

The Regulatory Group has argued that agencies tend to use guidance documents because they are easier to issue than regulations and allow agencies to respond more quickly than therulemaking process typically allows:^[1]

When agencies treat guidance as legally binding

According to theAdministrative Conference of the United States (ACUS), agency officials sometimes use guidance documents in ways that give those documents the same authority as legally binding rules. In a 1992 recommendation, the ACUS explained how it believed this practice could affect the rights of regulated parties:^[3]

The Regulatory Group has claimed that although agencies often give their guidance documents the same effect as enforceable regulations, most guidance is not issued or enforced with the intent of avoiding theAPArulemaking process:^[1]

William Funk, a law professor and the author of several books onadministrative and environmental law, claimed in a 2011 book review that he and 10 other legal scholars agreed that agencies should be able to issue guidance documents but that they sometimes abuse that ability. Funk wrote:^[40]

The list of law professors that Funk was referring to included Robert Anthony, Peter Strauss, Elizabeth Magill, Nina Mendelson, Donald Elliott, Jacob Gersen, Ronald Levin, John Manning, David L. Franklin, and Mark Seidenfeld.^[40]

Regulatory dark matter

Regulatory dark matter is a term coined by policy analyst Clyde Wayne Crews Jr. to describe, in his words, "executive branch and federal agency proclamations and issuances such as memoranda, guidance documents, bulletins, circulars, announcements and the like with practical if not always technically legally binding regulatory effect."^[41][42] Crews is critical of what he callsregulatory dark matter because he believes agencies sometimes use these proclamations and issuances to impose practical requirements, set policy- and decision-making priorities, and take other actions that exceed the intent of Congress or avoid federal rulemaking procedures.^[43]

See also

• Administrative Procedure Act
• Administrative Conference of the United States
• Congressional Review Act
• Rulemaking
  • Informal rulemaking
  • Formal rulemaking
• Regulatory dark matter

External links

• GOOD Act (Congress.gov)
• "Guidance in the Rulemaking Process" (Administrative Conference of the United States)
• "Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases" (U.S. Department of Justice)
• Search Google News for this topic

Footnotes

v • e The Administrative State Main The Administrative State Project main page •Administrative State Project Index •Glossary of administrative state terms •Quotes about the administrative state •Administrative state •Rulemaking •Deference •Adjudication •Nondelegation doctrine •Ballotpedia's administrative state legislation tracker Pillars Agency control •Executive control •Judicial control •Legislative control •Public control Reporting Changes to the Federal Register •Completed OIRA review of federal administrative agency rules •Federal agency rules repealed under the Congressional Review Act •Historical additions to the Federal Register, 1936-2016 Laws Administrative Procedure Act •Antiquities Act •Civil Service Reform Act •Clayton Antitrust Act •Communications Act of 1934 •Congressional Review Act •Electronic Freedom of Information Act •Federal Food, Drug, and Cosmetic Act of 1938 •Federal Housekeeping Statute •Federal Reserve Act •Federal Trade Commission Act of 1914 •Freedom of Information Act •Government in the Sunshine Act •Independent Offices Appropriations Act of 1952 •Information Quality Act •Interstate Commerce Act •National Labor Relations Act •Paperwork Reduction Act •Pendleton Act •Privacy Act of 1974 •Regulatory Flexibility Act •REINS Act •REINS Act (Wisconsin) •Securities Act of 1933 •Securities Exchange Act of 1934 •Sherman Antitrust Act •Small Business Regulatory Enforcement Fairness Act •Truth in Regulating Act •Unfunded Mandates Reform Act Cases Abbott Laboratories v. Gardner •A.L.A. Schechter Poultry Corp. v. United States •Association of Data Processing Service Organizations v. Camp •Auer v. Robbins •Chevron v. Natural Resources Defense Council •Citizens to Preserve Overton Park v. Volpe •Federal Trade Commission (FTC) v. Standard Oil Company of California •Field v. Clark •Food and Drug Administration v. Brown and Williamson Tobacco Corporation •Humphrey's Executor v. United States •Immigration and Naturalization Service (INS) v. Chadha •J.W. Hampton Jr. & Company v. United States •Lucia v. SEC •Marshall v. Barlow's •Massachusetts v. Environmental Protection Agency •Mistretta v. United States •National Federation of Independent Business (NFIB) v. Sebelius •National Labor Relations Board v. Noel Canning Company •National Labor Relations Board v. Sears, Roebuck & Co. •Panama Refining Co. v. Ryan •Securities and Exchange Commission v. Chenery Corporation •Skidmore v. Swift & Co. •United States v. Lopez •United States v. Western Pacific Railroad Co. •Universal Camera Corporation v. National Labor Relations Board •Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council •Wayman v. Southard •Weyerhaeuser Company v. United States Fish and Wildlife Service •Whitman v. American Trucking Associations •Wickard v. Filburn •Wiener v. United States Terms Adjudication (administrative state) •Administrative judge •Administrative law •Administrative law judge •Administrative state •Arbitrary-or-capricious test •Auer deference •Barrier to entry •Bootleggers and Baptists •Chevron deference (doctrine) •Civil servant •Civil service •Code of Federal Regulations •Codify (administrative state) •Comment period •Compliance costs •Congressional Record •Coordination (administrative state) •Deference (administrative state) •Direct and indirect costs (administrative state) •Enabling statute •Ex parte communication (administrative state) •Executive agency •Federal law •Federal Register •Federalism •Final rule •Formal rulemaking •Formalism (law) •Functionalism (law) •Guidance (administrative state) •Hybrid rulemaking •Incorporation by reference •Independent federal agency •Informal rulemaking •Joint resolution of disapproval (administrative state) •Major rule •Negotiated rulemaking •Nondelegation doctrine •OIRA prompt letter •Organic statute •Pragmatism (law) •Precautionary principle •Promulgate •Proposed rule •Publication rulemaking •Regulatory budget •Regulatory capture •Regulatory dark matter •Regulatory impact analysis •Regulatory policy officer •Regulatory reform officer •Regulatory review •Rent seeking •Retrospective regulatory review •Risk assessment (administrative state) •Rulemaking •Separation of powers •Significant regulatory action •Skidmore deference •Statutory authority •Substantive law and procedural law •Sue and settle •Sunset provision •Unified Agenda of Federal Regulatory and Deregulatory Actions •United States Code •United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget