Examining the Use of Agency Regulatory Guidance

The Administrative Procedure Act (APA) allows agencies to produce guidance documents to clarify issues in an existing regulation.  Specifically, the APA allows that agencies issue non- economically significant guidance without publication in the Federal Register or notice and comment.  By definition, these guidance documents cannot bind regulated parties.  Unfortunately, this APA exception leaves open the possibility that agencies improperly issue guidance in lieu of rulemaking, in order to take advantage of the APA’s exceptions and relaxed procedures. 

Because the distinction between legislative rules and guidance is in many instances blurred, and because opting to issue guidance when rulemaking would be appropriate circumvents the principles of transparency and accountability built into the APA, this hearing examined if and how the Departments of Labor and Education improperly issue guidance, its effects on regulated parties and the public at large, and ways to ensure guidance is utilized diligently going forward.