Strategic or sincere? Analyzing agency use of guidance documents

Yale Law Journal

Volumn 119, Issue 4, 2010, Pages 782-824

  Raso, Connor N ^a  

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References (172)

1. This Note uses the definition of the term "guidance document" set forth in the Bush Administration's executive order on guidance. See Exec. Order No. 13,422, 3 C.F.R. 191, 192 (2007) (defining a guidance document as "an agency statement of general applicability and future effect, other than a regulatory action, that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue"). The Office of Management and Budget's bulletin accompanying Executive Order No. 13,422 provides examples of documents encompassed by this definition: Guidance documents often come in a variety of formats and names, including interpretive memoranda, policy statements, guidances, manuals, circulars, memoranda, bulletins, advisories, and the like. Guidance documents include, but are not limited to, agency interpretations or policies that relate to: the design, production, manufacturing, control, remediation, testing, analysis or assessment of products and substances, and the processing, content, and evaluation/approval of submissions or applications, as compliance guides. Guidance documents do not include solely scientific research. Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3434 (Jan. 25, 2007). Other studies of guidance documents have used a similar definition. See, e.g., William R. Andersen, Informal Agency Advice-Graphing the Critical Analysis, 54 ADMIN. L. REV. 595, 596 (2002) (noting that agency guidance includes "memos, bulletins, staff manuals, letters").
2. The term "legislative rule" is defined to include all rules adopted under the Administrative Procedure Act's (APA) notice and comment process. See 5 U.S.C. § 553 (2006). The use of this term is not intended to assume a position in the debate over whether Congress may delegate legislative authority to agencies. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001) (considering whether Congress improperly delegated legislative authority to the EPA in the Clean Air Act).
3. Guidance documents are exempt from executive orders and statutes governing the issuance of legislative rules, the most important of which is the APA's notice and comment provisions. See 5 U.S.C. § 553.
4. For a discussion of the compatibility between these goals, see Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987).
5. No systematic analysis of the total volume of guidance documents has been compiled, but case studies strongly suggest that agencies issue significantly more guidance documents RASO_PDF.DOC 1/7/2010 11:26:47 AM than legislative rules. See, e.g., Peter L. Strauss, The Rulemaking Continuum, 41 DUKE L.J. 1463, 1469 (1992) (showing that agencies issue far more guidance than legislative rules).
6. CLYDE WAYNE CREWS, JR., TEN THOUSAND COMMANDMENTS: AN ANNUAL SNAPSHOT OF THE FEDERAL REGULATORY STATE 2 (2007), http://cei.org/pdf/6018.pdf (noting that in 2006, agencies issued 3718 rules and the President signed only 321 bills into law).
7. H.R. REP. NO. 106-1009, at 1 (2000).
8. Exec. Order No. 13,422, 3 C.F.R. 191 (2007).
9. For an example of interest group opposition, see OMB WATCH, E.O. 13,422: UNANSWERED AND UNACCOUNTABLE (2007), http://www.ombwatch.org/files/regs/PDFs/EO13422UnansweredandUnaccountable.pdf. For examples of comments from members of Congress opposed to the order, see Amending Executive Order 12866: Good Governance or Regulatory Usurpation? Part I: Hearing Before the Subcomm. on Investigations and Oversight of the H. Comm. on Science and Technology, 110th Cong. (2007).
10. See, e.g., OMB Watch, Obama Begins Regulatory Reform (Feb. 10, 2009), http://www.ombwatch.org/node/9689.
11. note
12. For the seminal example of such work, see Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them To Bind the Public?, 41 DUKE L.J. 1311 (1992).
13. The APA simply uses the term "rule" for what this Note terms a "legislative rule." See 5 U.S.C. § 553 (2006).
14. See 5 U.S.C. § 551(4) (defining a rule as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances thereof or of valuations, costs, or accounting, or practices bearing on any of the foregoing").
15. 5 U.S.C. § 553.
16. See, e.g., Unfunded Mandates Reform Act, 2 U.S.C. §§ 1532-1535; Small Business Regulatory Enforcement Fairness Act, Pub. L. No. 104-121, 110 Stat. 857 (1996) (codified as amended in scattered sections of 5 U.S.C., 15 U.S.C., and 28 U.S.C.); Regulatory Flexibility Act, 5 U.S.C. §§ 601-612; Congressional Review Act, 5 U.S.C. §§ 801-808; Paperwork Reduction Act, 44 U.S.C. §§ 3501-3520; Small Business Paperwork Relief Act of 2002, 44 U.S.C. § 3504(c).
17. The term "guidance document" as defined in this Note encompasses all documents qualifying for the Administration Procedures Act's exemptions for interpretive rules or policy statements. See 5 U.S.C. § 553; see also Anthony, supra note 12, at 1323 (delineating the scope of exceptions to the APA). RASO_PDF.DOC 1/7/2010 11:26:47 AM
18. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them To Bind the Public?, 41 DUKE L.J. (1992), at 1325 (defining an interpretive rule as "an agency statement that was not issued legislatively and that interprets language of a statute (or of an existing legislative rule) that has some tangible meaning" (footnotes omitted)).
19. E.g., 16 C.F.R. § 1.73 (2009) ("The interpretations are not substantive rules and do not have the force or effect of statutory provisions.").
20. See Cent. Tex. Tel. Coop. v. FCC, 402 F.3d 205, 214 (D.C. Cir. 2005) (noting that an interpretive rule may "have the effect of creating new duties" or may turn "a vague statutory duty or right into a sharply delineated duty or right" (internal quotation marks and citations omitted)).
21. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them To Bind the Public?, 41 DUKE L.J. (1992) at 1384.
22. William Funk, A Primer on Nonlegislative Rules, 53 ADMIN. L. REV. 1321, 1326 (2001).
23. See Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993).
24. See, e.g., Erringer v. Thompson, 371 F.3d 625, 630 (9th Cir. 2004); Air Transp. Ass'n of Am. v. FAA, 291 F.3d 49, 56 (D.C. Cir. 2002).
25. E.g., Hemp Indus. Ass'n v. DEA, 333 F.3d 1082, 1087-91 (9th Cir. 2003) (holding that the expansive interpretation of a drug on a listing of controlled substances effectively amended the underlying list adopted via notice and comment); Alaska Prof'l Hunters Ass'n v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999).
26. Hemp Indus., 333 F.3d at 1087-88.
27. Alaska Prof'l Hunters, 177 F.3d at 1034.
28. See, e.g., Warder v. Shalala, 149 F.3d 73 (1st Cir. 1998) (allowing the Department of Health and Human Services to issue an interpretive rule provided that the change was accompanied by an explanation).
29. 995 F.2d 1106 (D.C. Cir. 1993).
30. For a more complete discussion, see Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretive Rules, 52 ADMIN. L. REV. 547, 554-59 (2000).
31. E.g., Consol. Edison Co. of N.Y. v. FERC, 315 F.3d 316, 323 (D.C. Cir. 2003) ("'Policy statements' differ from substantive rules that carry the 'force of law,' because they lack 'present binding effect' on the agency." (quoting Interstate Natural Gas Ass'n v. FERC, 285 F.3d 18, 59 (D.C. Cir. 2002))); Troy Corp. v. Browner, 120 F.3d 277, 287 (D.C. Cir. 1997); Am. Bus. Ass'n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980).
32. See, e.g., William Funk, When Is a "Rule" a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 ADMIN. L. REV. 659 (2002).
33. Appalachian Power Co. v. EPA (Appalachian II), 249 F.3d 1032 (D.C. Cir. 2001); Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987); Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987).
34. See, e.g., Pac. Gas & Elec. Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974).
35. E.g., 16 C.F.R. § 1.5 (2006) ("Failure to comply with the guides may result in corrective action by the Commission under applicable statutory provisions.").
36. For examples of such cases, see Appalachian Power Co. v. EPA (Appalachian I), 208 F.3d 1015 (D.C. Cir. 2000); and Community Nutrition Institute, 818 F.2d 943.
37. 174 F.3d 206 (D.C. Cir. 1999). For a more thorough treatment, see William Funk, A Primer on Nonlegislative Rules, 53 ADMIN. L. REV. (2001), at 1335.
38. 174 F.3d at 212.
39. 5 U.S.C. § 552(a)(1) (2006).
40. 5 U.S.C. § 552(2)(b).
41. 5 U.S.C. § 552(a)(1). Interestingly, this provision would be moot if guidance were always nonbinding because a nonbinding document could not impose adverse consequences. The provision therefore introduces some question as to whether agencies may ever use guidance to bind private parties. See Strauss, supra note 5, at 1467-68 (noting that section 552 of the APA may be construed to allow agencies to issue binding guidance conditional on satisfying the publication requirement).
42. Stephen M. Johnson, Good Guidance, Good Grief!, 72 MO. L. REV. (2007), at 699 ("[N]sonlegislative rules are subject to fewer procedural requirements than legislative rules.... The APA merely requires that agencies publish and make available some, but not all, nonlegislative rules.").
43. See Exec. Order No. 13,422, 3 C.F.R. 191 (2007) (requiring agencies to submit all guidance documents with an estimated annual impact exceeding one hundred million dollars and all documents with significant policy implications to Office of Information and Regulatory Affairs (OIRA) review); see also Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3439 (Jan. 25, 2007) (requiring agencies to develop internal processes to approve and publicize guidance documents).
44. See, e.g., Unfunded Mandates Reform Act, 2 U.S.C. §§ 1532-1535; Small Business Regulatory Enforcement Fairness Act, Pub. L. No. 104-121, 110 Stat. 857 (1996) (codified as amended in scattered sections of 5 U.S.C., 15 U.S.C., and 28 U.S.C.); Regulatory Flexibility Act, 5 U.S.C. §§ 601-612; Congressional Review Act, 5 U.S.C. §§ 801-808; Paperwork Reduction Act, 44 U.S.C. §§ 3501-3520; Small Business Paperwork Relief Act of 2002, 44 U.S.C. § 3504(c).
45. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them To Bind the Public?, 41 DUKE L.J. (1992), at 1313-14.
46. See, e.g., Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987).
47. 21 U.S.C. § 371(h) (2006).
48. See Small Business Regulatory Enforcement Fairness Act of 2006 § 213, 5 U.S.C. § 601 note ("In any civil or administrative action against a small entity, guidance given by an agency applying the law to facts provided by the small entity may be considered as evidence of the reasonableness or appropriateness of any proposed fines, penalties or damages sought against such small entity.").
49. See, e.g., Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. 397, 410 (2007). But see Strauss, supra note 5 (arguing that section 552 of the APA strongly suggests that agencies are bound by their unpublicized guidance material).
50. William Funk, Legislating for Nonlegislative Rules, 56 ADMIN. L. REV. 1023, 1038 (2004) (noting that an agency's failure to explain a change "would likely lead to the change being held arbitrary and capricious").
51. FDA Modernization Act of 1997 § 701, 21 U.S.C. § 371(h).
52. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
53. Skidmore v. Swift & Co., 323 U.S. 134 (1944) (holding that courts should defer to an agency interpretation to the extent that it is persuasive).
54. The focus on deference standards should not obscure the fact that both guidance documents and legislative rules are subject to court review under the APA's "arbitrary and capricious" standard. See 5 U.S.C. § 706(2).
55. 533 U.S. 218, 226-27 (2001).
56. 533 U.S. 218 at 227.
57. Barnhart v. Walton, 535 U.S. 212, 222 (2002).
58. E.g., Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443, 1445 (2005).
59. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).
60. Bowles v. Seminole Rock & Sand Co., 325 U.S. at 414.
61. See William N. Eskridge, Jr. &Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1103-04 (2008) (noting that the Supreme Court has applied Seminole Rock quite sparingly since 1984).
62. 5 U.S.C. § 704 (2006).
63. Kevin M. McDonald, Are Agency Advisory Opinions Worth Anything More than the Government Paper They're Printed on?, 37 TEX. TECH L. REV. 99, 101 (2004).
64. Bennett v. Spear, 520 U.S. 154, 177-78 (1997).
65. See, e.g., W. Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659, 663 (7th Cir. 1998).
66. 387 U.S. 136, 148-49 (1967).
67. 387 U.S. 136, 148-49 (1967)
68. The D.C. Circuit's independent evaluation of finality and ripeness in Atlantic States Legal Foundation v. EPA, 325 F.3d 281 (D.C. Cir. 2003), illustrates this point, though the court ultimately concluded that the finality requirement was also not satisfied.
69. Randolph J. May, Ruling Without Real Rules-Or How To Influence Private Conduct Without Really Binding, 53 ADMIN. L. REV. 1303 (2001).
70. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them To Bind the Public?, 41 DUKE L.J. (1992), at 1332-55.
71. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them To Bind the Public?, 41 DUKE L.J. (1992)at 1314.
72. Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. (2005), at 1445.
73. William Funk, When Is a "Rule" a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 ADMIN. L. REV. 659 (2002)
74. Michael P. Healy, Spurious Interpretation Redux: Mead and the Shrinking Domain of Statutory Ambiguity, 54 ADMIN. L. REV 673 (2002).
75. Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. (2007), at 438.
76. For analysis of the ossification problem, see JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY 9-5 (1990) (analyzing ossification in the context of the National Highway Traffic Safety Administration)
77. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385 (1992)
78. Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59 (1995).
79. Agencies have significant latitude to choose between adjudication and rulemaking when authorized to use both forms of policymaking. See SEC v. Chenery, 332 U.S. 194, 202-03 (1947).
80. Rulemaking generally provides greater policy certainty, costs less, and uses a more inclusive notice and comment process. See sources cited infra note 176.
81. Exec. Order No. 13,422, 3 C.F.R. 191 (2007) (requiring agencies to accept comments only on significant guidance documents).
82. William Funk, Legislating for Nonlegislative Rules, 56 ADMIN. L. REV. (2004), at 1035-36.
83. Peter L. Strauss, The Rulemaking Continuum, 41 DUKE L.J. (1992), at 1486.
84. Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. (2007), at 447-50.
85. Stephen M. Johnson, Good Guidance, Good Grief!, 72 MO. L. REV. (2007), at 740-42 (arguing that courts should allow agencies to choose a form of policymaking with the knowledge that less formal forms will be subject to lesser judicial deference)
86. E. Donald Elliott, Re-Inventing Rulemaking, 41 DUKE L.J. 1490, 1490-91 (1992) (advocating that courts permit agencies to issue guidance subject to vigorous review of the application to individual cases).
87. E. Donald Elliott, Re-Inventing Rulemaking, 41 DUKE L.J. (1992), at 1491.
88. Michael Asimow, Nonlegislative Rulemaking and Regulatory Reform, 1985 DUKE L.J. 381, 404-08.
89. James T. Hamilton & Christopher H. Schroeder, Strategic Regulators and the Choice of Rulemaking Procedures: The Selection of Formal vs. Informal Rules in Regulating Hazardous Waste, LAW & CONTEMP. PROBS., Spring 1994, at 111. Their theory predicts that agencies are more likely to use guidance documents when the following conditions are met: legislative rules are complicated and therefore costly to issue; disagreement exists over the policy area; the regulation imposes significant costs on regulated parties; enforcement is difficult; Congress monitors the agency closely and imposes constraints on the agency's ability to write legislative rules; and the courts monitor the issue area actively.
90. James T. Hamilton & Christopher H. Schroeder, Strategic Regulators and the Choice of Rulemaking Procedures: The Selection of Formal vs. Informal Rules in Regulating Hazardous Waste, LAW & CONTEMP. PROBS., Spring 1994, at 130-32.
91. James T. Hamilton & Christopher H. Schroeder, Strategic Regulators and the Choice of Rulemaking Procedures: The Selection of Formal vs. Informal Rules in Regulating Hazardous Waste, LAW & CONTEMP. PROBS., Spring 1994, at 141, 157.
92. Some contemporary positive political theory considers agencies as passive vessels controlled by Congress, the White House, and the courts. Recent work in this tradition has considered agencies as strategic actors in their own right, however. See, e.g., GREGORY A. HUBER, THE CRAFT OF BUREAUCRATIC NEUTRALITY (2007)
93. LAWRENCE S. ROTHENBERG, REGULATION, ORGANIZATIONS, AND POLITICS (1994).
94. Policy goals are clearly important, but agency leaders have other goals as well. See, e.g., ANTHONY DOWNS, INSIDE BUREAUCRACY 84-85 (1967) (noting the desire for convenience, security, personal loyalty, and pride in proficient performance of one's work).
95. For an analysis of the interaction between these principal-agency relationships, see GREGORY A. HUBER, THE CRAFT OF BUREAUCRATIC NEUTRALITY (2007)
96. Jerry L. Mashaw, Improving the Environment of Agency Rulemaking: An Essay on Management, Games, and Accountability, LAW & CONTEMP. PROBS., Spring 1994, at 185.
97. No systematic analysis has documented this phenomenon, but ample anecdotal evidence exists. See, e.g., STEVEN P. CROLEY, REGULATION AND PUBLIC INTERESTS 163-213 (2008) (describing four highly politicized rulemakings).
98. DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 13 (1974).
99. GREGORY A. HUBER, THE CRAFT OF BUREAUCRATIC NEUTRALITY (2007), at 20.
100. Studies in the public choice tradition have long assumed that elected officials skew public policy to interest groups with the greatest ability to support their reelection bids. See, e.g., George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. 3, 17-18 (1971).
101. The interest group environment may differ substantially between agencies. For a typology, see JAMES Q. WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 79-83 (1989) (noting that agencies with only one major interest group are likely to have a clear political mandate).
102. Barry R. Weingast & Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J. POL. ECON. 765 (1983).
103. For a description of this process in the Clinton Administration, see Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001).
104. Depending on the official in whom the statute vests power, this tactic may arguably be illegal. For an overview of this issue with an application to recent controversy, see Peter L. Strauss, Foreword: Overseer, or 'The Decider'? The President in Administrative Law, 75 GEO. WASH. L. REV. 696 (2007).
105. A large literature in political science has argued that the President and Congress inevitably struggle to oversee agencies. For an overview of this literature, see GREGORY A. HUBER, THE CRAFT OF BUREAUCRATIC NEUTRALITY (2007), at 15-18.
106. DAVID EPSTEIN &SHARYN O'HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATE POWERS 126-27 (1999).
107. Jeffrey A. Segal & Harold J. Spaeth, The Influence of Stare Decisis on the Votes of United States Supreme Court Justices, 40 AM. J. POL. SCI. 971 (1996).
108. William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Original Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON. & ORG. 165, 187 (1992) (suggesting that courts can help to prevent agencies from straying from the original bargain reached by Congress and the President).
109. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000) ("Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.").
110. Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretive Rules, 52 ADMIN. L. REV., (2000), at 84 (noting that courts invalidate legislative rules in more than fifty percent of challenged cases).
111. For an overview of the effect of such procedures, see Steven J. Balla, Administrative Procedures and Political Control of the Bureaucracy, 92 AM. POL. SCI. REV. 663 (1998). RASO_PDF.DOC 1/7/2010 11:26:47 AM
112. See Magnuson-Moss Act, 15 U.S.C. § 57a (2006).
113. Pub. L. No. 104-121, 110 Stat. 857 (codified as amended in scattered sections of 5 U.S.C.).
114. Paul C. Light, Our Tottering Confirmation Process, BROOKINGS, Spring 2002, http://www.brookings.edu/articles/2002/spring_governance_light.aspx.
115. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983) (requiring agencies to provide a "reasoned analysis" for changing a rule).
116. See, e.g., 47 U.S.C. § 308 (granting the FCC licensing power).
117. See, e.g., 21 U.S.C. § 360e (granting the FDA premarket approval over medical devices).
118. For an example of an agency facing such constraints, see Richard J. Pierce, The Unintended Effects of Judicial Review of Agency Rules: How Federal Courts Have Contributed to the Electricity Crisis of the 1990s, 43 ADMIN. L. REV. 7 (1991).
119. For a complete list of the 109 requirements that may apply to a rulemaking, see Mark Seidenfeld, A Table of Requirements for Federal Administrative Rulemaking, 27 FLA. ST. U. L. REV. 533 (2000).
120. Stephen M. Johnson, Good Guidance, Good Grief!, 72 MO. L. REV. (2007), at 701.
121. THOMAS O. MCGARITY, REINVENTING RATIONALITY: THE ROLE OF REGULATORY ANALYSIS IN THE FEDERAL BUREAUCRACY 191-263 (1991) (describing significant differences in agency rulemaking systems and noting the potential effect on substantive outcomes).
122. THOMAS O. MCGARITY, REINVENTING RATIONALITY: THE ROLE OF REGULATORY ANALYSIS IN THE FEDERAL BUREAUCRACY, at 700.
123. Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).
124. Paul C. Light, Our Tottering Confirmation Process, BROOKINGS, Spring 2002
125. The number of legislative rules was collected from the GAO Federal Rules Database. U.S. Gov't Accountability Office, GAO Federal Rules Database Search, http://www.gao.gov/fedrules.html (last visited Nov. 19, 2009). RASO_PDF.DOC 1/7/2010 11:26:47 AM
126. Data were collected from LexisNexis Congressional by searching for all congressional hearings with the agency's name in the hearing title. See LexisNexis Congressional, https://web.lexis-nexis.com/congcomp (last visited Dec. 9, 2009).
127. Because this variable is measured as the ratio of guidance to legislative rules, it is not skewed by changes in overall agency output. For instance, the ratio will not change in the case of an agency that reduces total activity because of congressional dissatisfaction.
128. CFTC Regulation and Oversight of Derivatives: Hearing Before the S. Comm. on Agriculture, Nutrition, and Forestry, 107th Cong. (2002).
129. See, e.g., Asleep at the Switch-Vol. I: FERC's Oversight of Enron Corporation: Hearing Before the S. Comm. on Governmental Affairs, 107th Cong. (2002). RASO_PDF.DOC 1/7/2010 11:26:47 AM
130. Presidential preferences are difficult to measure. One potential measure entails evaluating statements of administration policy on important legislative issues in an agency's jurisdiction. Agencies with broad jurisdictions will have many such statements, however, raising questions about the proper weight to assign to each. Measuring the change in administration budget proposals for an agency is a more objective measure, but historical data at the subagency level are difficult to collect. Because PART scores are subjective, they are often viewed as a reflection of the administration's approval toward an agency. See, e.g., ADAM HUGHES & J. ROBERT SHULL, OMB WATCH, PART BACKGROUNDER 3 (2005), http://www.ombwatch.org/files/regs/2005/performance/PARTbackgrounder.pdf (arguing that the "element of subjectivity in the PART evaluation process is very distressing").
131. Some agencies have subcomponents that received different PART scores. For such agencies, a simple average of subcomponent scores was used to calculate the overall PART score.
132. For a description of the different areas of the White House and Executive Office of the President that monitor agencies, see Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV 47, 65-76 (2006). RASO_PDF.DOC 1/7/2010 11:26:47 AM
133. Data were collected from the LexisNexis All Federal Cases Database by counting all cases for each year from 1996 to 2006 in which an agency was a named appellant or appellee. LexisNexis, http://www.lexisnexis.com/ (last visited Dec. 9, 2009).
134. Exec. Order No. 13,422, 3 C.F.R. 191 (2007) (defining and creating a review process for "significant" guidance documents).
135. Independent agencies are not directly accountable to the President, but instead function independently within the executive branch. See Paperwork Reduction Act, 44 U.S.C. § 3502(5) (2006) (defining the set of independent agencies as "the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing Finance Board, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Regulatory Commission, the Securities and Exchange Commission, and any other similar agency designated by statute as a Federal independent regulatory agency or commission"). RASO_PDF.DOC 1/7/2010 11:26:47 AM
136. Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3439 (Jan. 25, 2007). 138. This definition is very similar to the definition of significant rules, which the Order terms "significant regulatory action." See Exec. Order No. 12,866, 3 C.F.R. 638, 641-42 (1993), reprinted in 5 U.S.C. § 601 note.
137. For a sense of controversy engendered by the Order, see Peter L. Strauss, Foreword: Overseer, or 'The Decider'? The President in Administrative Law, 75 GEO. WASH. L. REV. (2007), at 696-700. See also OMB WATCH, E.O. 13422: UNANSWERED AND UNACCOUNTABLE (2007), http://www.ombwatch.org/files/regs/PDFs/EO13422UnansweredandUnaccountable.pdf.
138. Counts were compiled from agency websites on August 2, 2008. OMB required each agency to post a list of all significant guidance documents in effect. See Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. at 3440. Data were unavailable for the following agencies: the Department of Commerce, the Food and Drug Administration, and the Federal Motor Carrier Safety Administration. In addition, data were unavailable for all independent agencies, which are exempted from OMB review. See Exec. Order No. 12,866, 3 RASO_PDF.DOC 1/7/2010 11:26:47 AM C.F.R. 638, 641 (1993), reprinted in 5 U.S.C. § 601 note (defining agencies as "any authority of the United States that is an 'agency' under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10)").
139. Compare Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. at 3439 (defining "significant guidance document"), with Exec. Order No. 12,866, 3 C.F.R. 638 (1993), reprinted in 5 U.S.C. § 601 note (detailing when a rule constitutes a "significant regulatory action"). RASO_PDF.DOC 1/7/2010 11:26:47 AM
140. This data was gathered from the General Services Administration. See General Services Administration, RegInfo.gov, http://www.reginfo.gov/public/do/eoHistoricReport (last visited Dec. 9, 2009). RASO_PDF.DOC 1/7/2010 11:26:47 AM
141. No existing study has systematically analyzed the proportion of agency rules mandated by Congress. However, a recent study analyzing agency deadlines imposed by Congress shows that some agencies devote a high proportion of their rulemaking docket to nondiscretionary rules. See Jacob E. Gersen & Anne Joseph O'Connell, Deadlines in Administrative Law, 156 U. PA. L. REV. 923, 977 (2008).
142. Those concerned by the use of guidance documents often neglect the fact that Congress sometimes requires agencies to issue guidance documents to ensure that agencies help regulated entities comply with legislative rules. As the House Committee on Government Reform noted, "[a]gencies sometimes claim they are just trying to be 'customer friendly' and serve the regulated public when they issue advisory opinions and guidance documents. This may, in fact, be true in many cases." H.R. REP. NO. 106-1009, at 1 (2000). The Small Business Regulatory Enforcement Fairness Act of 1996 § 212, 5 U.S.C. § 601 note (2006), directs agencies to issue guidance on regulations affecting small businesses. In 2007, Congress amended the act to require agencies to provide compliance guides for most new rules. See 5 U.S.C. § 601 (Supp. 2008).
143. For an account detailing the challenges faced by DHS, see Donald F. Kettl, Overview, in THE DEPARTMENT OF HOMELAND SECURITY'S FIRST YEAR: A REPORT CARD 1-24 (Donald F. Kettl ed., 2004). RASO_PDF.DOC 1/7/2010 11:26:47 AM
144. See, e.g., TRANSP. SEC. ADMIN., DEP'T OF HOMELAND SEC., SECURITY GUIDELINES FOR GENERAL AVIATION AIRPORTS (2004).
145. See, e.g., U.S. DEP'T OF EDUC., PEER REVIEW GUIDANCE FOR THE NCLB GROWTH MODEL PILOT APPLICATIONS (2006).
146. Joshua D. Clinton & David E. Lewis, Expert Opinion, Agency Characteristics, and Agency Preferences, 16 POL. ANALYSIS 3, 6 (2008).
147. Ron Hutcheson, Bush Fills Last Cabinet Shelf; Democrat Gets Transportation Post; Energy, Labor Nominees Also Named, SAN DIEGO UNION-TRIB., Jan. 3, 2001, at A1; Lahood Is Transportation Pick, NEWSDAY, Dec. 18, 2008, at A36.
148. See, e.g., FED. AVIATION ADMIN., U.S. DEP'T OF TRANSP., AIRFRAME GUIDE FOR CERTIFICATION OF PART 23 AIRPLANES (2007).
149. See, e.g., U.S. ENVTL. PROT. AGENCY, AVERAGING TIMES FOR COMPLIANCE WITH VOC EMISSION LIMITS-SIP REVISION POLICY (1984).
150. See, e.g., OCCUPATIONAL SAFETY & HEALTH ADMIN., U.S. DEP'T OF LABOR, SAFETY AND HEALTH GUIDE FOR THE MEATPACKING INDUSTRY (1988).
151. See, e.g., Appalachian Power Co. v. EPA (Appalachian I), 208 F.3d 1015, 1020 (D.C. Cir. 2000).
152. 155. For an empirical analysis of the importance of each of these factors, see David C. Nixon, Separation of Powers and Appointee Ideology, 20 J.L. ECON. & ORG. 438, 450-51 (2004).
153. Data on modifications to guidance documents were gathered from agency websites on August 9, 2008. OMB required each agency to post on its website a list of all significant guidance documents in effect. See Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3440 (Jan. 25, 2007). Documents were coded as either "modified" or "not modified" using agency-provided modification dates. In many cases, agency websites listed the last date of modification for each document. In other cases, this information was embedded within the document. Any update was coded as a modification regardless of importance. Data were unavailable for the following agencies: the Department of Commerce, the Food and Drug Administration, and the Federal Motor Carrier Safety Administration. In addition, data were unavailable for all independent agencies, which are exempted from OMB review. See Exec. Order No. 12,866, 3 C.F.R. 638 (1993), reprinted in 5 U.S.C. § 601 note (2006). RASO_PDF.DOC 1/7/2010 11:26:47 AM
154. See, e.g., Guidelines for Ecological Risk Assessment, 63 Fed. Reg. 26,846 (May 14, 1998).
155. See, e.g., FED. AVIATION ADMIN., U.S. DEP'T OF TRANSP., ADVISORY CIRCULAR: ELECTRONIC FLIGHT DECK DISPLAYS (2007).
156. For the data used in this analysis, see U.S. GOV'T ACCOUNTABILITY OFFICE, REEXAMINING REGULATIONS: OPPORTUNITIES EXIST TO IMPROVE EFFECTIVENESS AND TRANSPARENCY OF RETROSPECTIVE REVIEWS (2007).
157. This comparison is inexact because the rule revisions compiled by the GAO include revisions to all existing agency rules, and not only those issued from 1995 to 2007. This simplification is necessary because no existing count of the total number of agency rules outstanding exists. RASO_PDF.DOC 1/7/2010 11:26:47 AM
158. See OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, 2006 REPORT TO CONGRESS ON THE COSTS AND BENEFITS OF FEDERAL REGULATIONS AND UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL ENTITIES 110-12 (2006). RASO_PDF.DOC 1/7/2010 11:26:47 AM
159. OFFICE OF INFO. & REGULATORY AFFAIRS, OFFICE OF MGMT. & BUDGET, STIMULATING SMARTER REGULATION: SUMMARIES OF PUBLIC SUGGESTIONS FOR REFORM OF REGULATIONS AND GUIDANCE DOCUMENTS 288-338 (2002) (showing that the following groups submitted reform suggestions: American Ambulance Association, American Chemistry Council, American Farm Bureau Federation, American Meat Institute, American Osteopathic Association, American Petroleum Institute, American Road and Transportation Builders Association, Association Connecting Electronic Industries, Cement Kiln Recycling Coalition, Center for Progressive Regulation, CNF Inc., Council on Governmental Relations, Credit Union National Association, Equal Employment Advisory Council, Gill Studios, Guidant Corporation, The Heritage Foundation, Institute of Makers of Explosives, International Bottled Water Association, Mercatus Center, National Association of Chain Drugstores, National Association of Home Builders, National Environmental Development Association, National Rural Water Association, Ogletree and Deakins, OMB Watch, Organization Resources Counselors Inc., Small Business Administration, Society of Nuclear Medicine, and the U.S. Chamber of Commerce, as well as several individual citizens).
160. OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, 2006 REPORT TO CONGRESS ON THE COSTS AND BENEFITS OF FEDERAL REGULATIONS AND UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL ENTITIES 110-12 (2006). RASO_PDF.DOC 1/7/2010 11:26:47 AM, at 110-12.
161. OFFICE OF INFO. & REGULATORY AFFAIRS, OFFICE OF MGMT. & BUDGET, STIMULATING SMARTER REGULATION: SUMMARIES OF PUBLIC SUGGESTIONS FOR REFORM OF REGULATIONS AND GUIDANCE DOCUMENTS (2002), at 320.
162. OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, 2006 REPORT TO CONGRESS ON THE COSTS AND BENEFITS OF FEDERAL REGULATIONS AND UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL ENTITIES (2006), at 111. RASO_PDF.DOC 1/7/2010 11:26:47 AM
163. William Funk, Legislating for Nonlegislative Rules, 56 ADMIN. L. REV. (2004), at 1028.
164. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them To Bind the Public?, 41 DUKE L.J. 1311 (1992).
165. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them To Bind the Public?, 41 DUKE L.J. (1992)1332-55; see also Letter from Anthony H. Gamboa, Gen. Counsel, U.S. Gen. Accounting Office, to the Honorable Ted Strickland, U.S. Representative (Feb. 28, 2003), available at http://www.gao.gov/decisions/other/291906.pdf (declaring a memorandum from the Department of Veterans Affairs to be a rule); Letter from Robert P. Murphy, Gen. Counsel, U.S. Gen. Accounting Office, to the Honorable David M. McIntosh, Chairman, Subcomm. on Nat'l Econ. Growth, Natural Res., and Regulatory Affairs, U.S. House of Representatives Comm. on Gov't Reform (Jan. 20, 1999), available at http://www.gao.gov/decisions/other/281575.pdf (declaring an EPA guidance document to be a rule). RASO_PDF.DOC 1/7/2010 11:26:47 AM
166. The FDA's heavy use of guidance prompted Congress to pass legislation governing the practice. See FDA Modernization Act of 1997 § 701, 21 U.S.C. § 371(h) (2006).
167. The IRS frequently issues interpretive rules. For an analysis of this practice, see Kristin E. Hickman, Coloring Outside the Lines: Examining Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements, 82 NOTRE DAME L. REV. 1727 (2007).
168. For example, the Department of Housing and Urban Development proposed, but ultimately did not adopt, changes to its policy development process that were spurred by the cost of the notice and comment process. See Rulemaking Policies and Procedures-Expediting Rulemaking and Policy Implementation, 57 Fed. Reg. 47,166 (Oct. 14, 1992) ("[S]ubjecting virtually all of the Department's programs and functions to notice and comment rulemaking before effectiveness... threatens to result in regulatory gridlock.").
169. See SEC v. Chenery Corp., 332 U.S. 194, 202-03 (1947).
170. For an overview of the costs and benefits of rulemaking, see Michael Asimow, Nonlegislative Rulemaking and Regulatory Reform, 1985 DUKE L.J. 381, at 402-09.
171. JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 139-46 (4th ed. 2006) (analyzing the advantages and drawbacks of rulemaking relative to adjudication); Richard K. Berg, Re-examining Policy Procedures: The Choice Between Rulemaking and Adjudication, 38 ADMIN. L. REV. 149, 163-64 (1986) (discussing the merits of rulemaking). For the seminal argument in favor of rulemaking, see KENNETH CULP DAVIS, RASO_PDF.DOC 1/7/2010 11:26:47 AM ADMINISTRATIVE LAW TREATISE § 6.15, at 283 (Supp. 1970), which asserts that "[t]he procedure of administrative rule making is one of the greatest inventions of modern government." RASO_PDF.DOC 1/7/2010 11:26:47 AM
172. All variables are measured annually. For all variables except Presidential Approval, N=55. For Presidential Approval, N=44.