Guidance Documents in the States: Toward a Safe Harbor

Every agency produces "guidance documents" such as interpretive rules and policy statements. These documents are very important to the public and to the agency and its staff. It should be possible to issue them with no prior notice and comment procedure. Section 553 of the federal APA provides an exception from rulemaking procedure for guidance documents but this provision has proved to be extremely difficult to apply and is problematic in many respects. Most states adopted the 1961 Model State APA which provided no guidance document exception. Surprisingly, the states have moved strongly in the direction of federal law. Either through legislative amendments to the state APA or through creative court decisions, a majority of the states and almost all of the most populous states now permit at least some guidance documents to be issued without prior procedures. California is the primary exception; by statute, California explicitly requires prior notice and comment for the issuance of virtually all guidance documents and the courts have enforced this provision rigorously. The result is disastrous - agencies employ all sorts of suboptimal avoidance devices and many agencies flout the law. The legislature recently passed a statute to partially correct the problem but unfortunately Governor Gray Davis vetoed it. The article concludes with a proposal for a safe harbor provision similar to that in the vetoed California legislation. The safe harbor would improve the law both in jurisdictions with guidance document exceptions (like the federal government) and in jurisdictions providing no such exceptions. The safe harbor provides that clearly identified guidance documents can be issued without prior procedure, but the agency must provide an opportunity for post-adoption comment. Private parties are not bound by the documents but would be entitled to rely on them and courts are prohibited from paying them any deference until the post-adoption process is complete and the document is adopted in final form.