Make ineffective guidance accessible to all

Even when agencies change or revoke guidance documents, they should be clearly labeled and easily accessible to the public.

Administrative agencies regularly publish important legal documents. Many of them are binding rules. Many others are guidance documents which, although not technically binding, may nevertheless hold major implications for businesses and members of the public in explaining legal obligations or articulating important policies.

Given the obvious importance of binding rules, agencies need to publish these rules in the Federal Register and make them publicly available online. With regard to guidance documents, organizations are also mandatory to make many of these documents available online. Agencies often go share guidance documents directly with those who are likely to be interested in knowing about them, but it is It is also best practice for agencies to publish their guidance documents online, just as they do for rules.

But what happens when agencies drop or change the positions reflected in these legal documents? And once the agencies put new guidance documents online, how will the public know that the agency has changed its position?

For agency rules, law requires that any changes, including general repeals, be published in the Federal Register. At the same time, the National Archives and Records Administration must update agency rules in the Code of Federal Regulations (CFR). Looking in the Federal Register or the latest edition of the CFR, businesses and others can easily get up to speed with the agency’s rules. And following the written trace in the Federal Registeranyone who needs to know the history of the agency’s current rules can trace its lineage.

But the same cannot be said of all guidance documents when agencies decide to modify or revoke them. For some guidance documents, no law requires agencies to alert the public when they change guidance positions. And until recently, there was no clear best practice standard for agency transparency with respect to inoperative guidance documents, i.e. earlier documents that no longer fully reflect the current position. of an agency.

In December 2021, the Administrative Conference of the United States (ACUS) adopted a recommendation of good practice on the public availability of ineffective guidance documents. ACUS advised that agencies publish certain types of inoperative guidance documents online, organizing them on their websites so that the public can find them easily. This too urged agencies to label these documents as inoperative so that the public can understand their legal effect.

Too few agencies currently provide sufficient clarity or ongoing transparency about their ineffective guidance documents. many agencies Craft at least some inoperative documents are available online, but not all agencies – and few agencies provide complete transparency on these documents. Unfortunately, it is also possible to to find guidance documents on agency websites that have been changed or discontinued, without seeing any indication that these documents have been changed or discontinued. If these publicly released inoperative guidance documents are not labeled as inoperative, their public availability may carry out do more harm than good if a regulated company or member of the public relies on an outdated set of guidelines.

Moreover, according to various experts from academia, industry and the public interest interviewed as part of to research underlying the ACUS recommendation, ineffective guidance documents can sometimes to give the public important clues about agencies’ current positions on legal or policy issues. By better understanding what position the agency has dropped or changed, it can sometimes allow the public to see more clearly what the agency is currently expecting.

We designed a small research study to help inform ACUS’s decision-making on whether to make a recommendation on inoperative advice. The research started with a sample of 19 important guidance documents issued by 10 organizations for which we were able to independently verify the inoperative status of each document. Just over 20% of these ineffective guidance documents could not be found online at all. More troubling still, of the roughly 80% that could be foundapproximately 40% of these documents were not labeled as inoperative.

Even among this small sample, we observed a good number of examples of agencies providing access to properly labeled inoperative guidance documents. Some agencies inserted watermarks on every page of an inoperative guidance document, while others provided prominent labels at the top of these documents. In at least one case, an agency built a specific webpage dedicated to withdrawn guidance documents.

Building on these agency best practices, ACUS advised that all agencies commit to:

  • Establish written procedures that, among other things, specify the types of inoperative guidance documents that agencies will post online and how long they will remain online.
  • Posting online or making available to the public particularly important and inoperative guidance documents that meet the criteria defined by CAUS, including documents that would be useful in understanding changes in law or policy, which have generated trusted interests during their operation or that have received widespread media attention.
  • Organize and tag inoperative guidance documents online using techniques such as search functions, drop-down menus and watermarks.
  • Use means other than websites to notify the public when a guidance document has become inoperative, such as posting notices in the Federal Register.

These recommendations on the public availability of ineffective guidance documents to follow a long series of ACUS recommendations calling on agencies to be more transparent. Taken together, all of these recommendations indicate how important it is for organizations not only to make certain legal documents available upon request, but also to use their websites as vehicles to promote meaningful and easy public access. Such access requires agencies to take steps to provide clear indexes, up-to-date tags, and efficient search engines.

Overall, CAUS’s recent recommendation on inoperative guidance documents reflects just one of the many ways agencies can serve the public well by making important legal documents more readily available to everyone.

Cary Coglianese is the Edward B. Shils Professor of Law and Political Science at the University of Pennsylvania, where he is an advisor to the faculty of Regulatory Review. He served as a consultant to ACUS on its project leading to the recommendation discussed in this essay.

Todd Rubin

Todd Rubin is legal counsel to the United States Administrative Conference. He authored the research report underlying the ACUS recommendation discussed in this essay.

The opinions expressed in this essay are those of the authors and do not necessarily represent the opinions of ACUS or the federal government.

This essay is part of a six-part series on the United States Administrative Conference, titled Improving transparency and administrative accountability.

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