Strategic or Sincere? Analyzing Agency Use of Guidance Documents
43 Pages Posted: 31 Jul 2009 Last revised: 21 Jul 2013
Date Written: January 1, 2010
This Note uses newly available data to analyze the extent to which U.S. regulatory agencies use guidance documents to improperly avoid the Administrative Procedure Act notice and comment rulemaking process. Legal scholars, courts, and recent presidential administrations have all debated this issue. This paper investigates whether agencies leaders: 1) issue guidance strategically; 2) use guidance to implement ideological policies; or 3) promulgate guidance on a large scale. The paper reports negative answers to these questions, suggesting that agencies do not frequently use guidance documents to avoid the notice and comment rulemaking process.
Keywords: Administrative law, Courts, guidance documents, administrative agencies
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