Guidance for Guidances
Walling, Alastair, Regulation
Status: OMB has proposed guidelines for guidance practices
In 1946, following the explosive growth of the federal government and its regulatory power during the New Deal and World War II eras, Congress passed the Administrative Procedure Act (APA) to calm fears over the number, scope, and power of federal agencies. The APA formally introduced public notice and comment requirements into the federal regulatory process and also made federal regulations subject to judicial review.
Of course, public criticism of the federal bureaucracy's interventionism did not end with the APA's passage. Though the law required public information about, and public input into, the rulemaking process, critics claim regulators have found ways around the obstructions. One oft-criticized method is the issuance of "interpretive rules," sometimes referred to as guidances.
Guidances are intended to explain the gaps left in laws or regulations that inevitably arise as the rubber of the rule of law meets the road of real-life situations. Guidances are legally non-binding and can include policy statements, clarifications, directives, enforcement guidelines, inspection plans, opinion letters, question-and-answer bulletins, etc. They seem to include everything from rules of conduct for the Environmental Protection Agency's own break room to responses to public inquiries about gray areas involving the application of a statute or regulation. Concerning the latter, guidances can be quite helpful to persons or businesses struggling to understand complex or overly technical laws and regulations.
Critics charge that some regulators have improperly used guidances to continue regulatory activity free of the APA's procedural and judicial restraints. Guidances may be legally non-binding, the critics say, but they have on many occasions been either dressed up to look like legally binding regulations or considered by members of the public as carrying the force of law.
These criticisms may have crystallized following the Occupational Safety and Health Administration's infamous 1999 guidance on employees working from home. Two years earlier, a Houston firm had written the agency, inquiring whether OSHA rules in any way affected such employees. …