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1 1 (April 19, 2021)

handle is hein.crs/govedap0001 and id is 1 raw text is: a Congressional ______ SResearch Service Agency Use of Guidance Documents April 19, 2021 Agencies often issue statements that, unlike legislative rules, do not carry the force of law. These statements include interpretative rules, which advise the public of an agency's interpretation of the statutes and regulations it administers; and general statements of policy, which advise the public about an agency's intended use of its discretionary authority. Interpretive rules and policy statements are collectively known as guidance documents. Although guidance is a common tool for agencies to advise the public, critics have argued that it allows agencies to bind the regulated public without adequate accountability. Additionally, courts have struggled with maintaining a consistent framework to apply in reviewing guidance. This Sidebar provides a brief overview of guidance documents, and discusses recent efforts by presidential administrations and Congress to reform how agencies issue guidance. What Is a Guidance Document? Guidance comprises two categories of documents identified in the Administrative Procedure Act (APA): interpretative (or interpretive) rules and general statements of policy. Interpretive rules are statements of general applicability and future effect that set forth an agency's interpretation of a statute or regulation. General statements of policy set forth an agency's policy on a statutory, regulatory, or technical issue- for example, the agency's intended posture on enforcement priorities. (For further information on policy statements, see CRS Report R44468, General Policy Statements: Legal Overview, by Jared P. Cole and Todd Garvey.) Within these two general categories, guidance takes a variety of forms, such as explanations of how an agency intends to regulate or use its enforcement discretion; interpretations of legislative rules, including clarifications of technical details; compliance guides; statements that are applicable to a single or small group of regulated entities; and internal training materials. Guidance differs in two key ways from legislative rules. First, legislative rules have legal effect and are promulgated pursuant to authority delegated by Congress. Guidance documents generally are not considered binding on agencies or regulated parties, though the two different types of guidance might be treated differently in this respect. While there is widespread agreement that policy statements are nonbinding, there is less uniformity as to whether interpretive rules may be binding or must preserve an agency's discretion to act on a case-by-case basis. Second, guidance is subject to fewer procedural requirements than legislative rules. Legislative rules typically must undergo the informal rulemaking process set forth in the APA, which generally requires that agencies publish a notice of proposed rulemaking in the Federal Register and allow members of the Congressional Research Service https://crsreports.congress.gov LSB10591 CRS Legal Sidebar Prepared for Members and Committees of Congress

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