Lankford Subcommittee Examines the Proper Use of Regulatory Guidance by Federal Agencies

WASHINGTON, DC – The Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management, under the chairmanship of Senator James Lankford (R-OK), today held a hearing to examine whether federal agencies use regulatory guidance appropriately. Representatives from the Government Accountability Office, Department of Labor and Department of Education testified at the hearing.

“Today’s hearing provided dialogue about the use of regulatory guidance by federal agencies,” said Lankford. “It is apparent that some agencies aren’t following the spirit of the law in regards to its use. Agencies can issue guidance documents to clear up confusion or to provide timely information. But when a small business or farmer receives a complex guidance document that creates new mandates or obligations, that is clearly inconsistent with the law. When agencies do a quick guidance instead of thorough regulations, the American people are left out of the process. Agency guidance should never be a substitute for regulation or law.”

The Administrative Procedure Act (APA) allows agencies to produce guidance documents to clarify issues in an existing regulation. Specifically, the APA allows agencies to issue the majority of guidance without publication in the Federal Register and without the public notice and comment process. Unfortunately, this leaves open the possibility that agencies improperly issue guidance documents instead of regulations, in order to take advantage of the APA’s exceptions and relaxed procedures.

A GAO report from earlier this year confirmed that legal scholars and federal courts grapple with these guidance determinations on a regular basis. The distinction between legislative rules and guidance is in many instances blurred. The hearing focused on how the Departments of Labor and Education may improperly issue guidance, its effects on the American people, and ways to ensure guidance is utilized diligently going forward.

In her written testimony, Michelle Sager, Director of Strategic Issues for GAO, said, “Mr. Chairman, agencies must exercise diligence when using guidance. Although guidance documents are not legally binding, they can affect the actions of stakeholders and other interested parties, as well as agencies’ staffs, because guidance articulates agencies’ interpretations and policy choices. The potential effects of these documents—and the risks of legal challenges to agencies—underscore the need for consistent and well-understood processes for the development, review, dissemination, and evaluation of guidance.”

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To view video of the hearing and read hearing documents, click here. For the C-SPAN video, click here.