Guidance Is Unkillable, by David Zaring

by Guest Blogger — Thursday, Oct. 10, 2019

The two anti-guidance executive orders reflect a promise kept to industry, which has vociferously complained about enforcement on the basis of guidance. The campaign against guidance made some progress at DOJ with a 2017 memo issued by the Attorney General designed to “end,” at least as a press release put it, the “practice of regulation by guidance.” Now, the entire executive branch has been instructed to cut back that practice. But I think the orders show that it is extremely difficult to end the importance of guidance in regulation.

Guidance is, one of the EOs tells us, “an agency statement of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy,” but that isn’t a binding rule. For example, the OCC might let industry know that financial technology firms that hope to take deposits will not be eligible for a fintech charters. Or the SEC might issue a list of frequently asked questions on, say, how it would measure the revenue of a company that hope to qualify as an Emerging Growth Company subject to a streamlined set of securities regulations.

One of the executive orders claims that agencies have issued guidance “inappropriately in attempts to regulate the public without following the rulemaking procedures of the APA. Even when accompanied by a disclaimer that it is non-binding, a guidance document issued by an agency may carry the implicit threat of enforcement action if the regulated public does not comply.”

But the EO’s solutions to these problems—OIRA approval of significant guidance and a requirement that agencies collect their guidance on everything and put it in a single place on the internet—obviously embrace the continued use of the practice.

The White House says the other EO “instructs agencies to offer opinion letters to businesses and individuals who request them, so that people who want to comply with the law can learn how.” That’s also guidance! Opinion letters are statements intended to have future effect, setting forth the agency’s interpretation of a policy, and so meet the executive order’s own definition of the practice.

I accordingly do not think this is the war on guidance corporate America has been promised, but more of an effort to, if anything, use guidance to check guidance. To me, this is not surprising. No regulated industry is going to want to assess how a regulatory scheme will be implemented in the face of total pre-enforcement silence by the agency charged with implementing it. Industry may complain about guidance, but it also depends upon it. The executive orders may reflect a mood, but I suspect they will not change much in practice.

 

David Zaring is a Professor of Legal Studies & Business Ethics at the Wharton School.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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