Alexander, Lankford open investigation into use of guidance by federal agencies

U.S. Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-TN)  and Sen. James Lankford (R-OK) opened an investigation last week into the general use of guidance by a number of the government’s federal agencies.

Lankford is chairman of Committee on Homeland Security and Governmental Affairs’ Subcommittee on Regulatory Affairs and Federal Management.

At issue is the concern that agencies are bypassing critical notice and comment laws in order to create new requirements for American businesses, educational institutions and individuals. The Senators sent letters to the administrators of several of these federal agencies.

“The Administrative Procedure Act (APA) requires federal agencies to follow certain procedures before issuing a regulation,” they wrote. “In general, the agency must issue a notice of proposed rulemaking, allow a public comment period and respond to the public’s comments. 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. We are concerned, however, that federal agencies are increasingly using guidance that appears to create new requirements without the benefit of notice and comment but with the expectation that the public comply.”

The Senators also cited comments made by Catherine Lhamon, the assistant secretary for the Office for Civil Rights at the Department of Education, while testifying at a HELP Committee hearing last summer. Lhamon indicated that the Department of Education expects institutions of higher education to comply with its guidance.

“Yet, guidance is not intended to be binding,” Lhamon said.

The letters were sent to four of America’s most influential federal agencies, including the U.S. Department of Labor, the U.S. Department of Education, the U.S. Department of Health & Human Services, and the U.S. Equal Employment Opportunity Commission. They asked a number of questions regarding regulations and the procedures under which they are developed and implemented.

The senators requested a response by no later than May 29.