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84 Geo. Wash. L. Rev. 1252 (2016)
Preambles as Guidance

handle is hein.journals/gwlr84 and id is 1316 raw text is: 

                  Preambles as Guidance

                              Kevin   M.  Stack*


         Debates over administrative agencies' reliance on guidance documents
     have largely neglected the most authoritative source of guidance about the
     meaning of agency regulations: their preambles. This Article examines and
     defends the guidance function of preambles. Preambles were designed not
     only to provide the agency's official justification for the regulations they intro-
     duce, but also to offer guidance about the regulation's meaning and applica-
     tion. Today, preambles include extensive guidance ranging from interpretive
     commentary  to application examples. Based on the place of preamble gui-
     dance as part of the agency's formal explanation of the regulation and the
     rigorous internal agency vetting which accompanies that formal role, this Arti-
     cle argues that preamble guidance has greater authority than other forms of
     guidance. That greater authority has important implications. Under current
     judicial doctrine, preamble guidance warrants greater deference than other
     forms of guidance. Preamble guidance's superiority also grounds the agency's
     obligation to act consistently with it-and to revise preamble guidance only in
     documents issued by the agency, as opposed to lower-level officials, with the
     same publicity as the original preamble. This obligation should be expressly
     adopted as d form of internal administrative law either by individual agencies
     or central executive branch regulators.

                           TABLE OF CONTENTS

INTRODUCTION ................................................... 1253
     I. THE   GUIDANCE FUNCTION OF PREAMBLES ............. .1259
        A.   The  Dual   Roles  of Justification and  Guidance ...... 1259
        B.   Sampling   of  Guidance   in Preambles   ............. 1263
             1.  Purpose   Statements        ..................... 1264
             2.  Interpretive   Commentary ..........           .......   1265

    *  Professor of Law, Vanderbilt University Law School. This Article draws in part on a
May 2014 report that I prepared as an academic consultant to the Administrative Conference of
the United States (ACUS), a federal agency. The ACUS adopted Recommendation 2014-3,
Guidance in the Rulemaking Process, based on that Report. See Administrative Conference
Recommendation 2014-3, Guidance in the Rulemaking Process, 79 Fed. Reg. 35,988, 35,992 n.2
(June 6, 2014). I am especially grateful to Michael Snow (Vanderbilt Law 2014) for his outstand-
ing research and work on this project and to Jason Sowards for exceptional research. For com-
ments and discussion, I am grateful to Emily Brenner, Linda Breggin, Lisa Schultz Bressman,
Gretchen Jacobs, Fumni Olorunnipa, Chris Serkin, Ganesh Sitaraman, Michael Vandenbergh,
and audiences at presentations organized by ACUS and The George Washington Law Review.

September 2016 Vol. 84 No. 5


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