Administrative agencies issue many guidance documents each year in an effort to provide clarity and direction to the public about important programs, policies, and rules. But these guidance documents are only helpful to the public if they can be readily found by those who they will benefit. Unfortunately, too many agency guidance documents are inaccessible, reaching the point where some observers even worry that guidance has become a form of regulatory “dark matter.” This article identifies a series of measures for agencies to take to bring their guidance documents better into the light. It begins by explaining why, unlike the disclosure requirements for binding agency rules, existing legal requirements have failed to make guidance documents more accessible. The basic problem is that the law on guidance disclosure is not self-enforcing. As a result, guidance availability is ultimately a managerial challenge for agencies—dependent on the adoption of internal disclosure practices—as much as it is a problem with a legal or technological fix. To aid agency leaders in meeting their managerial challenge, this article reviews best practices in guidance disclosure across the federal government. It considers these practices in light of four key criteria for assessing guidance management—comprehensiveness, currency, accessibility, and comprehensibility—and provides a series of practical steps that agencies can take to illuminate their guidance. Given the important role that guidance plays in the modern administrative state, meaningful governmental transparency today dictates that agencies take seriously their responsibility to manage the production and release of their guidance documents in a manner that makes them consistently and readily available to the public.
Coglianese, Cary, "Illuminating Regulatory Guidance" (2020). Faculty Scholarship at Penn Law. 2212.
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