Even when agencies change or rescind guidance documents, they should be clearly labeled and readily available to the public.
Administrative agencies routinely issue important legal documents. Many of these are binding rules. Many more are guidance documents which, while not technically binding, can still hold major implications for businesses and members of the public alike by explaining legal obligations or articulating important policies.
Given the obvious importance of binding rules, agencies must publish these rules in the Federal Register and make them available online to the public. With respect to guidance documents, agencies are also required to make many of these documents available online. Agencies will often share guidance documents directly with those who are likely interested in knowing about them, but it is also best practice for agencies to post their guidance documents online, just as they do for rules.
But what happens when agencies abandon or change the positions reflected in these legal documents? And once agencies have posted new guidance materials online, how will the public know that the agency has changed its position?
For agency rules, the law requires that any changes—including wholesale repeals—be published in the Federal Register. At the same time, the National Archives and Records Administration must update agency rules in the Code of Federal Regulations (CFR). By looking in the Federal Register or the latest edition of the CFR, businesses and others can readily come up to speed on agency rules. And by following the paper trail in the Federal Register, anyone who needs to see the history behind current agency rules can trace their lineage.
But the same cannot be said of all guidance documents when agencies decide to amend or revoke them. For some guidance documents, no law requires agencies to alert the public when they change positions taken in guidance. And until recently, no clear standard of best practice existed for agency transparency with respect to inoperative guidance documents—that is, those earlier documents that no longer fully reflect an agency’s current position.
In December 2021, the Administrative Conference of the United States (ACUS) adopted a best practice recommendation on the public availability of inoperative guidance documents. ACUS recommended that agencies post online certain kinds of inoperative guidance documents, organizing them on their websites so members of the public can easily find them. It also urged agencies to label such documents as inoperative so the public can understand their legal effect.
Too few agencies currently provide sufficient clarity or consistent transparency about their inoperative guidance documents. Many agencies make at least some inoperative documents available online, but not all agencies do—and few agencies provide comprehensive transparency about these documents. Unfortunately, it is also possible to find guidance documents on agency websites that have been changed or abandoned—without seeing any indication that these documents have been changed or abandoned. If these publicly posted inoperative guidance documents are not labeled as inoperative, their public availability can lead to more harm than good if a regulated firm or member of the public relies on an outmoded set of instructions.
Furthermore, according to a variety of experts from academia, industry, and the public interest interviewed as part of the research underlying the ACUS recommendation, inoperative guidance documents can sometimes give the public important clues about agencies’ current positions on legal or policy matters. By understanding better what position the agency has abandoned or changed, it sometimes can make it possible for the public to see more clearly what the agency currently expects.
We designed a small research study to help inform ACUS’s decision-making about whether to make a recommendation on inoperative guidance. The research started with a sample of 19 important guidance documents issued by 10 agencies for which we could independently verify the inoperative status of each document. Slightly more than 20 percent of these inoperative guidance documents could not be found online at all. More troubling still, of the approximately 80 percent that could be found, about 40 percent of these documents were not labeled as inoperative.
Even among this small sample, we observed a good number of instances of agencies providing access to properly labeled inoperative guidance documents. Some agencies inserted watermarks across each page of an inoperative guidance document, while others provided prominent labels at the top of these documents. In at least one instance, an agency built a specific webpage dedicated to withdrawn guidance documents.
Building on these agency best practices, ACUS recommended that all agencies undertake the following:
- Establish written procedures that, among other things, articulate the kinds of inoperative guidance documents that agencies will publish online and how long they will stay online.
- Publish online or otherwise make publicly available especially important inoperative guidance documents that meet criteria outlined by ACUS, including documents that would be useful for understanding changes in law or policy, that generated reliance interests while operative, or that received extensive media attention.
- Organize and label inoperative guidance documents online using techniques such as search functions, pull-down menus, and watermarks.
- Use means apart from websites to notify the public when a guidance document has become inoperative, such as publishing notifications in the Federal Register.
These recommendations on the public availability of inoperative guidance documents follow a long line of ACUS recommendations calling on agencies to be more transparent. Taken together, all of these recommendations indicate how important it is for agencies not only to make certain legal materials available on request, but also to use their websites as vehicles to promote meaningful, ready public access. Such access necessitates that agencies take steps to provide clear indices, up-to-date labels, and effective search engines.
Overall, the recent ACUS recommendation on inoperative guidance documents reflects just one of many ways that agencies can serve the public well by making important legal documents more easily accessible to all.
The views expressed in this essay are those of the authors and do not necessarily represent the views of ACUS or the federal government.
This essay is part of a six-part series on the Administrative Conference of the United States, entitled Improving Transparency and Administrative Accountability.