Agencies can increase fairness by better maintaining their enforcement manuals.
Administrative agencies engage in a staggering variety of enforcement activities. The Internal Revenue Service audits taxpayer returns. The United States Coast Guard inspects ships for conformity with maritime safety regulations. The Nuclear Regulatory Commission investigates facilities that have potentially falsified records about plant safety.
Existing law provides agencies with enormous discretion about both how they undertake these enforcement activities and the extent to which they make their policies and procedures available to regulated entities and the public. An agency’s own regulations and enabling law—the statute which creates and outlines an agency’s rulemaking authority—create binding standards for enforcement activities. The agency’s office of enforcement and/or general counsel generally issue policies, procedures, and other standards through guidance documents, which are expected to be followed as matters of internal administrative law.
Federal administrative agencies have a diversity of practices about these guidance documents. Some agencies almost exclusively use what I have called periodic guidance documents, such as staff directives, memoranda from agency leadership to enforcement staff, and related guidance. These periodic documents indicate the agency’s position on enforcement matters at a given time and presumably stand until repealed or superseded by new periodic guidance.
Other agencies issue standing enforcement guidance documents, such as an agency enforcement manual which collects the agency’s enforcement-related internal administrative law into a single, authoritative document that is regularly updated to ensure that it remains up to date.
Enforcement manuals contain a wealth of information that is potentially value not only to agency personnel, but also to regulated entities and members of the public. They generally discuss the agency’s overall regulatory mission, its source of statutory authority, and the range of enforcement activities undertaken pursuant to its mission.
Furthermore, enforcement manuals generally contain guidelines for classifying the severity of any discovered violation and the remedial or punitive steps enforcement staff should take, depending on the severity of the violation and the danger it poses to the public. They detail the steps that enforcement proceedings should follow—steps which can be more or less formal depending on the agency and the type of enforcement matter. Agency enforcement manuals may discuss how the agency handles materials obtained during an enforcement proceeding, such as written or oral statements obtained from regulated entities or classified materials submitted in response to agency requests for information.
Some enforcement manuals outline how the agency should communicate information about ongoing or recently completed enforcement activities, either to the regulated entity itself (such as information on when and why the agency would issue a no-action letter) or to the public (such as press releases on the commencement of an enforcement matter).
Late last year, the Administrative Conference of the United States (ACUS) studied enforcement manuals and related guidance documents. My report for the Conference was based on a qualitative review of enforcement manuals and related guidance documents issued by approximately twenty federal agencies, as well as semi-structured interviews with representatives from six agencies about their enforcement processes and agency-issued internal guidance documents.
ACUS wanted to understand when and why agencies decide to issue enforcement manuals as opposed to other forms of guidance documents. They also wanted to know what information agencies found useful to include in their enforcement manuals as well as the standards for determining when enforcement guidance documents (including enforcement manuals) would be made available to the public. My study also looked at agency procedures for ensuring that staff manuals are kept up to date.
My report stressed that the information contained in enforcement manuals was of significant value to several groups outside the agency. Watchdog groups, for example, can find useful an agency’s procedures for processing outside complaints against regulated entities and deciding whether to respond with an enforcement action. Regulated entities also have a great deal of interest in understanding an agency’s procedures for protecting sensitive information that regulated entities may provide to the agency during an enforcement proceeding.
Although agencies have many options for how to make enforcement information available to interested parties, well-organized manuals contain an organizational structure, including chapter and subchapter division of information and a table of contents, which can significantly lower the amount of time needed to locate information.
My report acknowledged that agencies have legitimate interests in protecting certain types of information from disclosure, such as details that regulated entities could potentially use to evade detection or punishment for regulatory violations. Any enhanced public availability must weigh these risks against the benefits of enhanced disclosure.
However, the benefits of enhanced availability can be significant. In my interviews, several officials opined that enhanced public availability could increase public perceptions of agency transparency surrounding enforcement activities. This enhanced transparency could, in turn, increase cooperation between regulated entities and the public, as well as promote public buy-in of the agency’s regulatory mission.
Last December, ACUS adopted Recommendation 2022-5, which contains guidance on when agencies should consider developing enforcement manuals, what they should include in manuals, how the agency should ensure that the information contained in the manual is accurate and up-to-date, and the factors agencies should weigh in deciding whether any portion of their enforcement manuals should be made publicly available.
ACUS’s recommendation recognized that developing and maintaining an enforcement manual can entail a significant investment of time and energy on the part of agency attorneys and other enforcement staff. ACUS thus recommended that, subject to resource availability, agencies should develop enforcement manuals “if doing so would improve the communication of enforcement-related policies to agency personnel and promote the fair and efficient performance of enforcement functions consistent with established policies.” In its recommendation, ACUS listed 16 general types of information which an agency may wish to include in its enforcement manual, a list largely based on the best practices observed in the roughly twenty manuals studied for my report.
Importantly, ACUS’s recommendation recognizes that enforcement manuals can only be valuable, either to agency personnel or outside entities, if their contents match actual agency practices and policies. ACUS thus recommended that agencies with enforcement manuals periodically review them for accuracy, dating each revision and providing a summary of any changes made from version to version.
In addition, ACUS provided advice on the procedures used to update enforcement manuals. The recommendation stated that agencies should develop policies: (1) on how often the manual should be reviewed for accuracy and updated; (2) on which office within the agency is responsible for updating each part of the manual; and (3) on the procedures for drafting, reviewing, approving, and implementing any updates made to the manual. ACUS also recommended that agencies make manuals available in a searchable, electronic format, which allows for easier updating and dissemination than paper format. In its recommendation, ACUS also advised that agencies solicit feedback from relevant agency personnel on the manual’s contents.
ACUS’s recommendation discussed the extent to which manuals should be made available to the public. ACUS suggested that agencies should make enforcement manuals publicly available “when doing so would improve public awareness of relevant policies and compliance with legal requirements or promote transparency more generally, and if they have adequate resources available to ensure publicly available enforcement manuals remain up to date.” ACUS advised that publicly available manuals should be posted to the agency website, in a user-friendly format, with sufficient introductory and explanatory information to allow interested persons—including those with no knowledge of the general purpose or legal effect of enforcement manuals—to easily use and understand them.
ACUS also recommended that agencies take steps to make the public aware when they make changes to the contents of publicly available manuals, such as by posting a notice in the Federal Register. ACUS further recommended that, to the extent the policies and procedures contained in the manual are of interest to the public, the agency should solicit feedback from relevant groups, potentially through direct outreach or holding public forums.
Recommendation 2022-5 follows in the footsteps of at least two types of earlier ACUS recommendation. The first type concerned best practices for the development and availability of agency guidance documents, including policy statements and interpretive rules. The second dealt with agency efforts to leverage public input in agency activities, especially with respect to rulemaking—such as with negotiated rulemaking, petitions for rulemaking, and the use of social media in rulemaking.
Refining agency procedures for the development and public availability of enforcement manuals represents another way that administrative agencies can improve the perception of fairness, efficiency, and transparency of important agency proceedings.
This essay is part of a three-part series on Improving and Disclosing Agency Decisions.