Federal agencies often communicate with the public through guidance documents. Agencies issue guidance to explain their programs and policies; announce interpretations of laws and regulations; describe how they will exercise their discretion; and communicate other important information to regulated entities, regulatory beneficiaries, and the broader public. The Administrative Conference of the United States (ACUS) has developed many recommendations and other resources to help agencies use guidance, develop guidance documents, and make guidance publicly available. This article highlights two recent ACUS projects on this topic.
Agencies regularly issue guidance addressed to the public. But agencies also issue written guidance when individuals ask how the law applies to their specific circumstances. Such “individualized guidance” goes by a variety of names. The Federal Election Commission issues advisory opinions about the application of federal campaign finance laws to specific factual circumstances. The Internal Revenue Service issues private letter rulings and other determinations applying tax law to a taxpayer’s specific facts. The Commodity Futures Trading Commission issues different types of written guidance to individuals, including no-action letters explaining the circumstances under which agency staff will not recommend commencing enforcement actions.
Individualized guidance programs vary in several key respects. In some cases, statutes require agencies to issue such guidance in response to requests; in others, agencies provide guidance on their own initiative as a public service. Individualized guidance also varies in formality. Some agencies issue individualized guidance via formal letters while others respond via relatively informal emails. Sometimes lower-level agency officials prepare and send guidance, but in other cases agency heads or other senior officials may issue it. Individualized guidance also varies in its legal effect. Some individualized guidance does not bind the agency or requester, while other guidance may, for example, provide the requester with a defense to an agency enforcement action.
Individualized guidance offers many benefits. It facilitates communication between an agency and requesters, reduces uncertainty, promotes compliance, spurs useful transactions, and can be faster and less costly than other agency actions. At the same time, individualized guidance poses potential risks. The public may feel compelled to follow non-binding guidance, or agencies may lack necessary procedures to ensure guidance is accurate and consistent.
ACUS has undertaken a project to study how and when federal agencies provide individualized guidance and to recommend best practices for issuing such guidance. A proposed ACUS Recommendation, informed by a draft report authored by Professor Shalini Ray, identifies several best practices that agencies should consider implementing. The proposed Recommendation encourages agencies to establish procedures for issuing individualized guidance and making it publicly available. It also recommends that agencies not treat individualized guidance as creating binding standards on the public. But it also identifies circumstances in which agencies should consider allowing the public to rely on such guidance.
ACUS’s Committee on Rulemaking approved the proposed Recommendation in May 2024. The ACUS Assembly will consider the proposed Recommendation at its 81st Plenary Session in June 2024.
ACUS’s Office of the Chair prepares Statements of Principles to concisely describe best practices identified in ACUS recommendations. The Office of the Chair has previously issued two such Statements, one on the disclosure of federal administrative materials and another on public engagement in agency rulemaking. ACUS is currently finalizing a third Statement of Principles, which will focus on guidance documents.
As noted above, ACUS has developed numerous agency guidance recommendations. These recommendations cover many different types of agency documents. Some examples include formal agency interpretations and policy statements, answers to frequently asked questions and other information on agency websites, various types of agency manuals and instructions, and guidance issued in conjunction with notice-and-comment rulemakings.
Although agency guidance varies widely, ACUS recommendations on this topic share many common principles. One key point is that agencies should not use guidance to create standards that are binding on the public—that is, standards with which noncompliance may form an independent basis for action in matters that determine the rights and obligations of any member of the public. Because guidance documents are non-binding, agencies should afford the public a fair opportunity to argue for the modification, recission, or waiver of the guidance.
Other important considerations pertain to agency management and the public availability of guidance documents. Although many agencies post guidance online, it is critical that agencies ensure such guidance is well organized, up to date, and easily accessible to the public. Agencies can achieve these objectives by, for example, developing written procedures for the development and publication of guidance and maintaining a webpage dedicated to informing the public about the availability of guidance and facilitating access to it.
ACUS expects to publish its new Statement of Principles this summer. As with prior Statements of Principles, ACUS will update this publication as appropriate to reflect ACUS’s adoption of future recommendations.
