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Deadline Approaching for Agencies to Post Regulatory Guidance

Feb. 24, 2020, 11:15 AM

Anyone looking for all of the guidance, notices, and letters that federal agencies use to explain regulations should be able to find it on searchable websites by the end of this week, if agencies meet their deadline.

President Donald Trump last October signed a pair of executive orders intended to rein in agency guidance documents, defined broadly as all the ways agency officials explain regulations under their jurisdiction. One order required agencies to post all their guidance—including letters, adjudication decisions, or even press releases—on one easily accessible website.

“It could be for some agencies a really, really big task and four months is a very short amount of time, there’s no question,” said Cary Coglianese, law and political science professor at the University of Pennsylvania. Coglianese authored a report for the Administrative Conference of the U.S. released in May 2019 on the public availability of agency guidance documents.

The Defense Department published a notice that it intends to have a new guidance portal available this week, while Labor Department and Environmental Protection Agency spokespersons said the agencies also plan to meet the Feb. 28 deadline. A Health and Human Services Department spokesperson said it was working to implement the order’s requirements.

The nation’s roughly 400 federal agencies have had four months to comb through potentially hundreds of thousands of documents, including emails, speeches, and videos to determine which should be posted publicly and which thrown out. The order exempts violation notices, “advisory or legal opinions directed to particular parties about circumstance-specific questions” and agency correspondence “with individual persons or entities.”

Although sites must be up and running by Feb. 28, there is a grace period through June 27 for agencies to go back and post documents they may have missed the first time.

“One of the challenges that agencies are facing with the executive order is that guidance, even under the definition in the executive order, can sweep in an awful lot of material that sometimes agencies wouldn’t think of as guidance,” Coglianese said.

The Defense Department and Equal Employment Opportunity Commission were the first to publish notices in the Federal Register informing the public that their guidance portals would be available starting Feb. 28. The Food and Drug Administration has long posted its guidance and is likely already in compliance, industry advocates said.

“The Trump Administration continues to pursue transparency while implementing President Trump’s executive order regarding agency guidance documents,” a spokesperson from the White House Office of Management and Budget said in an email to Bloomberg Law.

“This is a major step in the right direction surrounding our overall deregulation agenda—one we believe will get government out of individuals’ lives, propel economic growth, and ensure the rule of law,” the OMB spokesperson said. “Agencies are working hard to meet the February deadline and OMB stands ready to help throughout the process.”

In Pursuit of Transparency

The Office of Information and Regulatory Affairs, a small agency within OMB that reviews federal regulations, let agencies know in a memorandum last October how to go about setting up their sites.

For instance, all guidance documents must be machine readable and able to be indexed and searched by commonly used commercial search engines. OIRA also said agencies must include a clearly visible note expressing that guidance documents lack the force and effect of law, unless expressly authorized by statute or incorporated into a contract.

OIRA didn’t say in the memo what would happen if an agency doesn’t meet the deadline.

“It’s not as if there’s a legally binding set of consequences on an agency if they miss this step,” Coglianese said. “It’s a management challenge for OMB to get them to comply in time.”

Businesses generally like and want guidance so long as it is not a regulation in disguise, said Marc Freedman, vice president in the Employment Policy Division at the U.S. Chamber of Commerce. Trump’s executive order is intended to curb the ability of an agency to do something with guidance that should have been done through a rulemaking, Freedman said.

For example, David Weil, administrator of DOL’s Wage and Hour Division during the Obama administration, issued two guidance documents called administrator’s interpretations: one defining the difference between an employee and an independent contractor, and the other defining when there is a “joint employer” relationship among multiple businesses under the Fair Labor Standards Act.

Those administrator’s interpretations, which were withdrawn by the Trump administration, didn’t interpret regulations but instead interpreted statutes, which is what rulemakings are for, Freedman said. “So that’s where we talk about guidance that went too far,” he said.

“What we did is what guidance is all about,” Weil, now a Brandeis University dean, told Bloomberg Law. “We offered the clearest interpretation of what courts had already decided on the issues.”

Guidance plays a beneficial role in the regulatory process by helping agencies provide direction and clarity to the public or to their own staff, said Paul Noe, vice president of public policy at the American Forest and Paper Association.

“What’s challenging is that there are so many guidance documents and it is often unclear what exactly is in effect,” said Noe, a former counselor at OIRA during the George W. Bush administration who helped draft agency good guidance practices in 2007.

“It’s a good government thing to say we should have transparency as to what guidance there is and how it applies to people,” Noe said. “It’s very fundamental, and in the internet age, this is something that I think is long overdue.”

—Ben Penn, Sara Hansard, and Stephen Lee contributed to this report.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bgov.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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