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May's Law Review Article Discusses the Use of Informal Rulings
WASHINGTON, D.C. - In the current edition of the Administrative Law Review, PFF Senior Fellow & Director of Communications Policy Studies Randolph J. May addresses an important legal question: When should the informal guidance of regulatory agencies – opinion letters, enforcement manuals, etc. – be considered binding on the public? In “Ruling Without Rules – Or How to Influence Private Conduct Without Really Binding,” May reminds readers that administrative procedure, and specifically the opportunity for public participation, plays a significant role in determining the legal effect of agency actions.
In an interpretative letter responding to questions from a business about the applicability of workforce safety laws to home-based employees, a mid-level Occupational Safety and Health Administration official told the company and, presumably, all other employers (because the agency posted the letter on the Internet) that employers are responsible for safety hazards to which employees may be exposed while working at home and that these employers must perform home inspections. May uses the OSHA case to argue that the agency letter was not binding on the public, that a court should not defer to the agency and that the government’s handling of the matter was “unwise and inappropriate.”
“Only if an agency acts within the lawmaking authority delegated to it by Congress, and follows the required procedures, can it promulgate a rule with the force of law, or a ‘legislative rule’,” writes May. Moreover, OSHA’s ruling was “a step of such public import as to counsel some form of more formal and participatory process culminating in action by the agency head, rather than the director of a compliance office who issues hundreds of similar advice letters a year.”
May writes a regular column on legal and regulatory affairs for Legal Times. He has published numerous articles and essays in leading national publications and law reviews on a wide variety of topics, ranging from communications and administrative law to constitutional theory.
The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.
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