Preambles as Guidance
`
`Kevin M. Stack*
`
`ABSTRACT
`
`Debates over administrative agencies’ reliance on guidance documents
`have largely neglected the most authoritative source of guidance about the
`meaning of agency regulations: their preambles. This Article examines and
`defends the guidance function of preambles. Preambles were designed not
`only to provide the agency’s official justification for the regulations they intro-
`duce, but also to offer guidance about the regulation’s meaning and applica-
`tion. Today, preambles include extensive guidance ranging from interpretive
`commentary to application examples. Based on the place of preamble gui-
`dance as part of the agency’s formal explanation of the regulation and the
`rigorous internal agency vetting which accompanies that formal role, this Arti-
`cle argues that preamble guidance has greater authority than other forms of
`guidance. That greater authority has important implications. Under current
`judicial doctrine, preamble guidance warrants greater deference than other
`forms of guidance. Preamble guidance’s superiority also grounds the agency’s
`obligation to act consistently with it—and to revise preamble guidance only in
`documents issued by the agency, as opposed to lower-level officials, with the
`same publicity as the original preamble. This obligation should be expressly
`adopted as a form of internal administrative law either by individual agencies
`or central executive branch regulators.
`
`TABLE OF CONTENTS
`
`INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1253
`I. THE GUIDANCE FUNCTION OF PREAMBLES . . . . . . . . . . . . . 1259
`A. The Dual Roles of Justification and Guidance . . . . . . 1259
`B. Sampling of Guidance in Preambles . . . . . . . . . . . . . . . . 1263
`1. Purpose Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1264
`2.
`Interpretive Commentary . . . . . . . . . . . . . . . . . . . . . . . 1265
`
`* Professor of Law, Vanderbilt University Law School. This Article draws in part on a
`May 2014 report that I prepared as an academic consultant to the Administrative Conference of
`the United States (“ACUS”), a federal agency. The ACUS adopted Recommendation 2014–3,
`Guidance in the Rulemaking Process, based on that Report. See Administrative Conference
`Recommendation 2014–3, Guidance in the Rulemaking Process, 79 Fed. Reg. 35,988, 35,992 n.2
`(June 6, 2014). I am especially grateful to Michael Snow (Vanderbilt Law 2014) for his outstand-
`ing research and work on this project and to Jason Sowards for exceptional research. For com-
`ments and discussion, I am grateful to Emily Brenner, Linda Breggin, Lisa Schultz Bressman,
`Gretchen Jacobs, Fumni Olorunnipa, Chris Serkin, Ganesh Sitaraman, Michael Vandenbergh,
`and audiences at presentations organized by ACUS and The George Washington Law Review.
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`3. Detailed Application Examples . . . . . . . . . . . . . . . . . 1267
`C. Explaining the Neglect of the Guidance Function . . . 1268
`II. THE SUPERIORITY OF PREAMBLE GUIDANCE . . . . . . . . . . . 1272
`III. JUDICIAL DEFERENCE TO PREAMBLE GUIDANCE . . . . . . . 1277
`A. The Court’s Standard of Deference for Guidance . . . 1277
`B. Deference to Preamble Guidance. . . . . . . . . . . . . . . . . . . . 1281
`C. Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1284
`IV. PREAMBLE GUIDANCE AND AGENCY PRACTICE . . . . . . . . 1287
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1291
`
`INTRODUCTION
`
`More than a decade of lively debate has focused on how adminis-
`trative agencies use guidance documents—interpretive rules and gen-
`eral statements of policy exempt from the requirements of notice-and-
`comment under the Administrative Procedure Act (“APA”).1 Many
`credit guidance documents as playing a critical role in regulatory pro-
`grams.2 Even though they lack the force of law,3 guidance documents
`can promote consistency and uniformity in agency action.4 Guidance
`documents that convey an agency’s view of the law or its enforcement
`
`1 Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as
`amended in scattered sections of 5 U.S.C.); see also 5 U.S.C. § 553(b)(3)(A) (2012) (exempting
`“interpretative rules” and “general statements of policy” from notice-and-comment rulemaking);
`Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203–04 (2015) (noting this exception). The term
`“guidance documents” refers to those documents exempt from notice-and-comment rulemaking.
`See, e.g., Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92
`CORNELL L. REV. 397, 398–400 (2007) (providing concise account of “guidance documents” and
`noting that some commentators refer to these as “nonlegislative rules”); Mark Seidenfeld, Sub-
`stituting Substantive for Procedural Review of Guidance Documents, 90 TEX. L. REV. 331, 334
`(2011). A more technical definition of guidance documents is “an agency statement of general
`applicability . . . that is not intended to have the force and effect of law but that sets forth a
`policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regula-
`tory issue.” Regulatory Accountability Act of 2013, S. 1029, 113th Cong. § 2(3) (2013). The
`Office of Management and Budget’s (“OMB”) definition of “guidance documents” makes only
`one change to the definition in the Regulatory Accountability Act of 2013: “an agency statement
`of general applicability and future effect, other than a regulatory action . . . that sets forth a
`policy on a statutory, regulatory or technical issue or an interpretation of a statutory or regula-
`tory issue.” OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, OMB BULL. NO.
`07-02, FINAL BULLETIN FOR AGENCY GOOD GUIDANCE PRACTICES 19 (2007) [hereinafter
`OMB’s Good Guidance Bulletin], https://www.whitehouse.gov/sites/default/files/omb/assets/
`omb/memoranda/fy2007/m07-07.pdf.
`2 See, e.g., Paul R. Noe & John D. Graham, Due Process and Management for Guidance
`Documents: Good Governance Long Overdue, 25 YALE J. ON REG. 103, 108 (2008) (noting that
`guidance documents are “key component[s] of regulatory programs”).
`3 Perez, 135 S. Ct. at 1204 (noting that nonlegislative rules lack the force of law).
`4 See Seidenfeld, supra note 1, at 341 (noting how guidance can enhance consistency). See
`generally Jerry L. Mashaw, Federal Administration and Administrative Law in the Gilded Age,
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`priorities can also promote values of fair notice; the public and regu-
`lated entities generally prefer knowing an agency’s positions prior to
`facing them in an enforcement proceeding.5
`While acknowledging that guidance documents serve useful func-
`tions, policymakers and commentators have sought greater trans-
`parency and participation rights in the development of agency
`guidance.6 More pointedly, critics contend that agencies rely on gui-
`dance documents in ways that circumvent the notice-and-comment
`rulemaking process.7 Their concern is that agencies are turning in-
`creasingly to guidance to establish norms that have significant de facto
`weight without the participation and accountability virtues of a notice-
`and-comment process.8 Far from remaining solely a matter of insider
`
`119 YALE L.J. 1362, 1466–67 (2010) (noting the connections between internally generated law
`and consistency).
`5 See Seidenfeld, supra note 1, at 341 (noting that because guidance applies prospectively,
`regulated entities gain information about the agency’s plans and understandings as opposed to
`having to guess); Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring
`Proper Respect for an Essential Element, 53 ADMIN. L. REV. 803, 808 (2001) (noting that citizens
`are better off if they know how agencies understand and intend to apply the law); cf. Jacob E.
`Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 STAN. L. REV. 573,
`579, 601 (2008) (noting that soft law provides information that helps the public adjust its
`behavior).
`6 See, e.g., Mendelson, supra note 1, at 438–44 (arguing for an amendment to the Admin-
`istrative Procedure Act (“APA”) to allow stakeholders to petition agencies to amend or repeal
`guidance).
`7 See, e.g., John F. Manning, Constitutional Structure and Judicial Deference to Agency
`Interpretations of Agency Rules, 96 COLUM. L. REV. 612, 660–69 (1996).
`8 See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000) (“One
`guidance document may yield another and then another . . . . Law is made, without notice and
`comment, without public participation, and without publication in the Federal Register or the
`Code of Federal Regulations.”); H.R. REP. NO. 106-1009, at 9 (2000) (“[A]gencies have some-
`times improperly used guidance documents as a backdoor way to bypass the statutory notice-
`and-comment requirements for agency rulemaking . . . .”); 1 C.F.R. § 305.92-2 (1993) (“The
`Conference is concerned . . . about situations where agencies issue policy statements which they
`treat or which are reasonably regarded by the public as binding . . . . [But these pronouncements
`do] not offer the opportunity for public comment . . . .”); Transcript of Oral Argument at 13–14,
`Perez, 135 S. Ct. 1199 (No. 13-1041), 2014 WL 6749784, at *13–14 (“[B]ut part of what’s motivat-
`ing it is a sense that agencies more and more are using interpretive rules and are using guidance
`documents to make law and that there is—it’s essentially an end run around the notice and
`comment provisions.” (question of Justice Kagan)); Richard J. Lazarus, Meeting the Demands of
`Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83
`GEO. L.J. 2407, 2437 (1995) (arguing that the EPA relies on guidance to avoid oversight by
`courts, Congress, and the OMB); Todd D. Rakoff, The Choice Between Formal and Informal
`Modes of Administrative Regulation, 52 ADMIN. L. REV. 159, 166–67 (2000) (arguing that agen-
`cies avoid ossified rulemaking processes by use of nonbinding guidance). As noted below, re-
`cent empirical research calls into question the theory of strategic substitution by agencies of
`guidance documents for rules. See infra Section I.C.
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`debate, these issues have sparked congressional hearings and bills,9 as
`well as executive orders from Presidents George W. Bush and Barack
`Obama.10 The Supreme Court, too, has expressed concerns about gui-
`dance documents. In 2001, for instance, the Court decided that no-
`tice-and-comment rules, but not guidance documents, presumptively
`qualify for greater judicial deference.11
`This extended debate over agency guidance and its relationship to
`notice-and-comment rulemaking has largely overlooked what is often
`the most important form of guidance about the meaning and applica-
`tion of regulations—namely, the guidance content appearing in the
`preambles to final rules. The preamble is a well-established feature of
`the regulatory process.12 In notice-and-comment rulemaking, the
`APA requires agencies to publish a “concise general statement of
`their basis and purpose” when it issues a final rule.13 That statement,
`along with some other material, constitutes what is known as the pre-
`amble to final rules or the regulatory preamble.14 These extensive ex-
`planatory documents typically run many more pages than the text of
`the rules themselves.
`
`9 See generally Regulatory Accountability Act of 2013, S. 1029, 113th Cong. (2013) (pro-
`viding a definition of guidance as “other than a rule”); Non-Codified Documents Is the Depart-
`ment of Labor Regulating the Public Through the Backdoor?: Hearing Before the Subcomm. on
`Nat’l Econ. Growth, Nat. Res. & Regulatory Affairs of the H. Comm. on Gov’t Reform, 106th
`Cong. (2000) (examining agency guidance with regard to the Department of Labor); H.R. REP.
`NO. 106-1009 (examining agency guidance practices).
`10 In 2007, President Bush issued an executive order, which subjected significant guidance
`documents to centralized review by the OMB. See Exec. Order No. 13,422, 3 C.F.R. 191, 193
`(2008). The OMB subsequently issued general guidelines governing agency guidance practices.
`See OMB’s Good Guidance Bulletin, supra note 1, at 20. In 2010, President Obama revoked
`President Bush’s executive order. See Exec. Order No. 13,497, 3 C.F.R. 218, 218 (2010), re-
`printed as amended in 5 U.S.C. § 601 app. at 816 (2012). However, the OMB continues to review
`significant guidance documents, and the OMB’s guidelines on good guidance practices remain in
`effect. See Memorandum from Peter R. Orszag, Dir., Office of Mgmt. & Budget, to Heads and
`Acting Heads of Exec. Dep’ts & Agencies (Mar. 4, 2009) [hereinafter Orszag Memorandum],
`https://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_fy2009/m09-13.pdf.
`11 See United States v. Mead Corp., 533 U.S. 218, 230–31 (2001) (providing that notice-
`and-comment rules presumptively qualify for Chevron deference so long as they are issued pur-
`suant to a statutory authorization to bind with the force of law).
`12 The preamble to federal rules typically appears under the Supplemental Information
`heading in the Federal Register. See NAT’L ARCHIVES & RECORDS ADMIN., FEDERAL REGISTER
`DOCUMENT DRAFTING HANDBOOK 12 (1991) (directing that extended discussion of the rule be-
`longs in the Supplementary Information section).
`13 5 U.S.C. § 553(c) (2012).
`14 See 1 C.F.R. § 18.12 (2012) (setting forth requirements for “preambles” to final rules).
`This Article’s references to preambles and regulatory preambles are to those statements for final
`rules, and not the preambles to notices of proposed rulemaking.
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`Regulatory preambles have an undeniable importance to law and
`governance in the United States. We live in an era of regulation in
`which the number and length of administrative rules issued through
`notice-and-comment rulemaking far exceed comparable measures for
`statutes produced by Congress.15 Under established administrative
`law, the validity of these agency rules is largely determined by evalua-
`tion of the rules’ preambles.16 As a result, regulatory preambles con-
`vey the legal justification for large swaths of federal law in the United
`States. But they do more than that. These statements were conceived
`as serving—and continue to serve—a guidance function, providing ad-
`vice about the meaning, application, and implementation of the
`agency’s regulations. Although they are a ubiquitous, authoritative,
`and important source of guidance, preambles have been largely un-
`mentioned in the debates over agency reliance on guidance.17
`This Article provides an assessment of preambles as guidance and
`situates this form of guidance within principles of administrative law.
`Because the guidance function of preambles has fallen so far from
`view, Part I of the Article is devoted to establishing that preambles
`have a guidance function. Not only did the APA conceive of the regu-
`lation’s statement of “basis and purpose” as serving a guidance role,
`
`15 See CORNELIUS M. KERWIN & SCOTT R. FURLONG, RULEMAKING: HOW GOVERNMENT
`AGENCIES WRITE LAW AND MAKE POLICY 13–21 (4th ed. 2011) (documenting, in terms of the
`number of rules and pages in the Federal Register devoted to federal regulations, a level of
`production of regulations beginning in the 1970s that far exceeds comparable measures for stat-
`utes). Compare MAEVE P. CAREY, CONG. RESEARCH SERV., R43056, COUNTING REGULATIONS:
`AN OVERVIEW OF RULEMAKING, TYPES OF FEDERAL REGULATIONS, AND PAGES IN THE Federal
`Register 5 (2013) (reporting the number of final rules published annually from 1997 to 2012
`ranged from “a low of 2,482 regulations in 2012 to a high of 4,388 regulations in 1998”), with
`Legislation of the U.S. Congress: All Legislation Since 1973, CONGRESS.GOV (reporting 3992 total
`statutes enacted by Congress from 1997–2016) https://www.congress.gov/legislation?q=%7B%22
`congress%22%3A%5B%22112%22%2C%22110%22%2C%22111%22%2C%22109%22%2C
`%22108%22%2C%22107%22%2C%22106%22%2C%22105%22%2C%22113%22%2C%2211
`4%22%5D%2C%22bill-status%22%3A%22law%22%7D [https://perma.cc/GD96-MZDT] (last
`visited July 10, 2016).
`16 See infra text accompanying notes 39–45.
`17 A few scholars have observed that agencies include statements of basis and purpose to
`explain their rules and their implementation, and questioned aspects of this practice. See, e.g.,
`JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 337 (5th ed. 2012) (“Agen-
`cies often use the statement [of basis and purpose] to advise interested persons how the rule will
`be applied, to respond to questions raised by comments received during the rulemaking, and as a
`‘legislative history’ that can be referred to in future applications of the rule.”); Lazarus, supra
`note 8, at 2437 (noting that the EPA creates “underground environmental law” in the form of
`extensive guidance documents and lengthy, detailed preambles). See generally Catherine M.
`Sharkey, Preemption by Preamble: Federal Agencies and the Federalization of Tort Law, 56
`DEPAUL L. REV. 227, 227–29 (2007) (revealing and criticizing agencies’ inclusion of preemption
`statements in preambles to their rules).
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`but it did so on sound principles. Under well-established principles of
`administrative law, the preamble is the public justification for the
`rules in judicial review; as a result, that justification has an authorita-
`tive status for guiding the courts and the public about the rule’s appli-
`cation.18 What is more, as a brief survey of agency rulemaking reveals,
`agencies provide a tremendous amount of guidance in their pream-
`bles—and guidance of widely varying types, from specific application
`examples to interpretive comments on the interaction of their rules
`with the common law.19 Indeed, guidance is such a pervasive feature
`of regulatory preambles that its neglect in debates over guidance doc-
`uments is curious. The increased focus on the justificatory and analy-
`sis role of the preamble appears to have distracted from evaluation of
`its guidance function.20
`In Part II, the Article argues that the guidance agencies provide
`in preambles (or preamble guidance) has greater authority than other
`forms of agency guidance. Unlike most other guidance, preambles are
`issued contemporaneously with agencies’ rules, and by the same au-
`thority that issues the rule—the agency itself, not individual officers or
`subordinate entities within the agency.21 Because the preambles are
`the primary source of justification for agency rules, they are subject to
`higher levels of internal vetting, deliberation, and approval within the
`agency than the vast majority of guidance documents.22 Moreover,
`preambles for rules issued by executive agencies are subject to the
`accountability checks of centralized executive review by the White
`House, as exercised through the Office of Management and Budget
`(“OMB”) by its Office of Information and Regulatory Affairs
`(“OIRA”).23 They are also published as part of the rulemaking pack-
`age in the most accessible, searchable, and highly visible forum for
`agency documents, the Federal Register—where only a subset of
`agency guidance documents is published. Along these dimensions in-
`dividually and collectively, preambles—and the guidance in them—
`
`18 See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).
`19 See infra Section I.B.
`20 For a general treatment of the legal regime that applies to preambles, see KEVIN M.
`STACK, ADMIN. CONFERENCE OF THE U.S., GUIDANCE IN THE RULEMAKING PROCESS: EVALU-
`ATING PREAMBLES, REGULATORY TEXT, AND FREESTANDING DOCUMENTS AS VEHICLES FOR
`REGULATORY GUIDANCE 13–30 (2014) [hereinafter STACK, GUIDANCE IN THE RULEMAKING
`PROCESS] (arguing that integrating preamble guidance into other guidance may help overcome
`perceptions that preambles pertain only to legal sufficiency).
`21 See infra notes 104–06 and accompanying text.
`22 See infra notes 109–10 and accompanying text.
`23 Jennifer Nou, Regulatory Textualism, 65 DUKE L.J. 81, 111–12 (2015) (providing ac-
`count of Office of Information and Regulatory Affairs (“OIRA”) vetting process).
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`have a greater claim to represent the authoritative interpretation of
`the agency than other forms of guidance.
`In Part III, the Article addresses implications of the superiority of
`preambles for judicial review. It argues that preambles warrant
`greater weight in judicial review than other forms of guidance docu-
`ments. The once arcane topic of the standard of judicial review for
`agencies’ interpretations of their own regulations is today one of the
`most hotly contested and watched issues in administrative law. The
`Supreme Court is currently debating whether to further limit or aban-
`don the long-established doctrine of Bowles v. Seminole Rock & Sand
`Co.24 and Auer v. Robbins,25 which requires reviewing courts to accept
`the agency’s interpretation of their own regulations unless plainly er-
`roneous or inconsistent with the regulation.26 Regardless of how the
`Court resolves that issue, the Article identifies an underlying principle
`in the Court’s current deference doctrines: the agency’s own most con-
`sidered and deliberate interpretations warrant greatest deference.
`Under that principle, preamble guidance presents a special case for
`deference for the very reasons that make it more authoritative than
`other forms of guidance. Accordingly, for agencies, preambles pro-
`vide a critical opportunity to obtain deference for their guidance con-
`tent, an opportunity that will be all the more valuable if the Supreme
`Court abandons Seminole Rock/Auer deference.
`The superiority of preamble guidance also imposes constraints on
`the agency, as addressed in Part IV. First, preamble guidance pre-
`sumptively supersedes previously-issued guidance documents. Sec-
`ond, the superiority of preamble guidance imposes constraints on the
`agency’s power to revise it. While an agency is not prohibited proce-
`durally from revising its guidance so long as it has a good justification,
`the superiority of preamble guidance creates an obligation to revise it
`
`24 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).
`25 Auer v. Robbins, 519 U.S. 452 (1997). While this doctrine was traditionally associated
`with Seminole Rock, since 1997, the Supreme Court and other courts have frequently attributed
`it to Auer. See, e.g., Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 67 (2011) (Scalia, J.,
`concurring) (noting that the Seminole Rock doctrine has recently been attributed to Auer).
`Chief Justice Roberts, the late Justice Scalia, as well as Justices Thomas and Alito expressed an
`interest in revisiting or overruling Seminole Rock/Auer. See Perez v. Mortg. Bankers Ass’n, 135
`S. Ct. 1199, 1212 (2015) (Scalia, J., concurring in the judgment) (calling for the Court to overrule
`Auer); id. at 1213, 1224 (Thomas, J., concurring in the judgment) (arguing Auer should be over-
`ruled); Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1338 (2013) (Roberts, C.J., concurring)
`(joining with Justice Alito in noting that “[i]t may be appropriate to reconsider” Seminole Rock/
`Auer in another case); id. at 1339, 1342 (Scalia, J., concurring in part and dissenting in part)
`(urging the Court to overturn Seminole Rock/Auer).
`26 See Auer, 519 U.S. at 461; Seminole Rock, 325 U.S. at 413–14.
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`in a document of roughly equivalent formality—that is, in guidance
`issued at the same level in the agency’s hierarchy and published at the
`same level of visibility—namely, in the Federal Register. This obliga-
`tion, though not judicially enforceable under the APA,27 should be
`adopted as part of executive branch internal administrative law, either
`by individual agencies or by a centralized executive branch policy.
`The Article thus has two overriding aims. At a practical level, it
`seeks to draw attention to preamble guidance as a critical part of the
`conversation about regulatory guidance, and to provide a framework
`for how courts, as well as agencies and executive branch regulators,
`treat this form of guidance. More generally, the Article’s effort to
`identify a hierarchical structure within the vast domain of regulatory
`soft law seeks to advance the larger goal of articulating a jurispru-
`dence that fits the actual practices of lawmaking and administration of
`the current state.28
`
`I. THE GUIDANCE FUNCTION OF PREAMBLES
`
`This Part provides an overview of the guidance function of pre-
`ambles—that is, as a source of advice about the meaning, application,
`and implementation of the regulations they accompany. It first argues
`that these explanatory documents were conceived as serving a gui-
`dance function—and on sound theoretical grounds. It then provides a
`sampling of the ways in which agencies provide guidance in their pre-
`ambles today. Finally, it offers an explanation of why this guidance
`function has faded from view and evaluation.
`
`A. The Dual Roles of Justification and Guidance
`
`The APA provides a simple structure for notice-and-comment
`rulemaking.29 Section 553 of the APA sets out three basic elements of
`notice-and-comment rulemaking.30 First, § 553 requires publication of
`
`27 See Perez, 135 S. Ct. at 1209–10.
`28 It could be viewed as articulating a normative structure for production of guidance,
`which has been referred to as being part of current unorthodox rulemaking. See Abbe R. Gluck
`et al., Unorthodox Lawmaking, Unorthodox Rulemaking, 115 COLUM. L. REV. 1789, 1803 (2015)
`(identifying agency guidance as a form of unorthodox rulemaking).
`29 See STACK, GUIDANCE IN THE RULEMAKING PROCESS, supra note 20, at 7–8.
`30 Id. (citing 5 U.S.C. § 553 (2012)). Section 553 provides a default process for rulemaking
`except in the rare case that a statute requires rulemaking be conducted through the APA’s for-
`mal rulemaking procedure, see 5 U.S.C. § 553(c) (noting that APA § 556 and § 557 apply when
`the rules are required by statute “to be made on the record after opportunity for an agency
`hearing”), or when an agency’s statute specifies its own rulemaking procedure.
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`a “notice of proposed rulemaking” in the Federal Register,31 com-
`monly referred to as an “NPRM.” Second, after publication of that
`required notice, the agency “shall give interested persons an opportu-
`nity to participate in the rule making through submission of written
`data, views, or arguments.”32 Third, after consideration of these com-
`ments, “the agency shall incorporate in the rules adopted a concise
`general statement of their basis and purpose.”33
`Early understandings of the APA suggested that these statements
`of “basis and purpose,” comprising much of what is commonly re-
`ferred to as a regulation’s preamble, were intended to have a dual
`role. They were conceived as not only identifying the legal and factual
`basis for the rule, but also providing guidance on its meaning for the
`public and the courts.34 This point comes through clearly in the Attor-
`ney General’s Manual on the Administrative Procedure Act.35 Of the
`statement of basis and purpose, the Manual states, “[t]he required
`statement will be important in that the courts and the public may be
`expected to use such statements in the interpretation of the agency’s
`rules.”36 The Manual further anticipates that, “the statement is in-
`tended to advise the public of the general basis and purpose of the
`rules.”37 The APA’s legislative history also supports this understand-
`ing. “The required statement of the basis and purpose of rules is-
`
`31 STACK GUIDANCE IN THE RULEMAKING PROCESS, supra note 20, at 7–8 (citing 5 U.S.C.
`§ 553(b)).
`32 Id. (citing 5 U.S.C. § 553(c)).
`33 Id. The APA exempts from these notice-and-consideration requirements, among other
`exceptions, “interpretative rules, general statements of policy, [and] rules of agency organization,
`procedure, or practice,” which are often referred to as “guidance documents.” Id. (citing
`§ 553(b)(3)(A)); see Mendelson, supra note 1, at 406 (describing process applicable to guidance
`documents).
`34 STACK, GUIDANCE IN THE RULEMAKING PROCESS, supra note 20, at 8 (citing U.S. DEP’T
`OF JUSTICE, ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 32,
`128 (1947)).
`35 See id. As Lars Noah notes, this Manual has been treated as authoritative guidance on
`the APA. See Lars Noah, Divining Regulatory Intent: The Place for a “Legislative History” of
`Agency Rules, 51 HASTINGS L.J. 255, 309 n.201 (2000) (noting several examples); see also Bowen
`v. Georgetown Univ. Hosp., 488 U.S. 204, 218 (1988) (Scalia, J., concurring) (referring to “the
`Government’s own most authoritative interpretation of the APA . . . which we have repeatedly
`given great weight”); Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S.
`519, 546 (1978) (noting that it represents “a contemporaneous interpretation previously given
`some deference by this Court because of the role played by the Department of Justice in drafting
`the legislation”). Some have criticized the Manual because it was prepared post-enactment by
`the Attorney General with some stake in the issues. See, e.g., John F. Duffy, Administrative
`Common Law in Judicial Review, 77 TEX. L. REV. 113, 131–34 (1998). That criticism, however,
`has little bearing on the particular commentary on rulemaking relied upon here.
`36 U.S. DEP’T OF JUSTICE, supra note 34, at 32.
`37 Id.
`
`Smart Mobile Technologies LLC, Exhibit 2005
`Page 9 of 41
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`2016]
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`PREAMBLES AS GUIDANCE
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`1261
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`sued,” as both the House and Senate Judiciary Committee Reports
`commented, “should not only relate to the data so presented but with
`reasonable fullness explain the actual basis and objectives of the
`rule.”38
`This basic idea that a regulation’s statement of basis and purpose
`is meant to apprise the public of the effect and application of the
`rule—to serve a guidance function—makes intuitive sense. The
`agency itself, not a lower-level official, issues the statement, and does
`so as an explanation of the rule at the time the rule is issued. These
`features, which make the statement part and parcel of the agency’s act
`of rulemaking, also give the statement an inherent authority. Basic
`principles of administrative law further augment the statement’s au-
`thority. Under the longstanding doctrine associated with SEC v. Che-
`nery Corp.,39 a reviewing court will judge the validity of an agency rule
`only upon the grounds that the agency offered to justify it.40 This doc-
`trine, called the Chenery (or Chenery I) doctrine, means that the
`agency’s statement of basis and purpose is authoritative in the sense
`that courts will uphold an agency rule based on grounds relied upon
`by the agency in the statement of basis and purpose.41 Evidence, argu-
`ments, or interpretive positions that do not appear in the statement
`generally will not save the rule on review.42 Accordingly, when an
`
`38 H.R. REP. NO. 79-1980, at 25 (1946); S. REP. NO. 79-752, at 15 (1945). The Senate
`Report also contains as an appendix the Attorney General’s 1945 report on Senate Bill 7. S.
`REP. NO. 79-752, at 37–38. The Attorney General’s report stated the following in regards to the
`statement of basis and purpose:
`Section 4 (b), in requiring the publication of a concise general statement of the
`basis and purpose of rules made without formal hearing, is not intended to require
`an elaborate analysis of rules or of the detailed considerations upon which they are
`based but is designed to enable the public to obtain a general idea of the purpose
`of, and a statement of the basic justification for, the rules. The requirement would
`also serve much the same function as the whereas clauses which are now customa-
`rily found in the preambles of Executive orders.
`Id. at 39.
`39 SEC v. Chenery Corp., 318 U.S. 80 (1943).
`40 See id. at 87.
`41 See, e.g., Michigan v. EPA, 135 S. Ct. 2699, 2710 (2015) (using the agency’s stateme