Senators Investigate Agencies’ Use of Guidance Documents

On May 7, U.S. Senators Lamar Alexander (R-Tenn.) and James Lankford (R-Okla.) commenced an investigation into the use of guidance documents to create new obligations for businesses while avoiding notice-and-comment periods required by law. “The Administrative Procedure Act (APA) requires federal agencies to follow certain procedures before issuing a regulation,” the Senators wrote in letters to the U.S. Department of Labor and the Equal Employment Opportunity Commission, among other agencies. “Interpretive rules, commonly known as guidance or non-legislative rules, are exempt from the APA’s notice and comment requirements because they do not have the force of law.”

Alexander and Lankford expressed concern that agencies expect the public to comply with these guidance documents, an example of which is here, even though they lack the force of law.

Alexander is chairman of the Senate Health, Education, Labor and Pensions Committee. Lankford is chairman of the Committee on Homeland Security and Governmental Affairs’ Subcommittee on Regulatory Affairs and Federal Management.