Understanding and Addressing Controversies About Agency Guidance

From: The Regulatory Review



The new ACUS recommendation—which covers policy statements and may also be helpful for interpretive rules—sets forth a series of measures to foster flexibility in the face of these challenges. Some of the measures are low-cost and should be adopted universally, like making sure that policy statements include a disclaimer of binding status on the public, and ensuring that, if some agency employees are bound to follow a policy statement, other higher-level employees are authorized to depart from it.

But other measures are not low cost. They will take up resources and managerial initiative that might be spent elsewhere. These measures include: publishing reasons for departures from a policy statement; training and monitoring frontline personnel to ensure they treat departure requests appropriately; fostering dialogue about departures through intermediaries like ombudspersons and associations; assigning departure authority to agency offices that have give-and-take relationships with regulated parties; and assigning appeals of departure denials to officials who do not regularly work with the people whose decisions might be overridden. As result, priorities about which measures to use will have to be set.

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