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Tuesday, December 20, 2005

Law - The Office of Management and Budget wants to give agencies guidance on their guidance.

The Washington Post column, The Regulators, by Cindy Skrzycki, has an interesting story today headlined "The Office of Management and Budget wants to give agencies guidance on their guidance." Some quotes:

The OMB's Office of Information and Regulatory Affairs is trying to address an accepted practice in which many agencies issue policy statements and other documents as "guidance" to interpret their rules and set out expectations for compliance.

Unlike traditional rulemaking, guidance is not subject to notice and comment procedures or judicial review. It's faster to issue and, normally, not reviewed by the OIRA. Though not legally binding, guidance is sometimes considered practically binding by regulated industries, a sort of "backdoor" rulemaking. * * *

"Guidance is a good thing," said Jeffrey Lubbers , fellow in law and government at the American University Washington College of Law . "The problem comes in when agencies treat them as binding on the public without notice and comment." He added that there is a natural tension between agencies using the practice for good reasons and them abusing it by avoiding the real rulemaking process.

To clear up the ambiguity, the OMB proposes that agencies get approval from their top officials before issuing "significant" guidance, which it defines as dealing with issues that would cost the economy more than $100 million annually or are "highly controversial" or technically "novel or complex." Guidance documents should be available to the public on agency Web sites.

Agency comments on the proposed "good guidance practices" or GGP, are due Dec. 23.

"The new guidance will enhance the opportunity for the public to participate in the most important regulatory guidance notices issued by federal agencies," John D. Graham , OIRA administrator, said in an e-mail.

Here, from the OMBA site, is the "Proposed Bulletin for Good Guidance Practices." Note that:
The Office of Management and Budget (OMB) is extending the comment period regarding its draft Bulletin for Good Guidance Practices from December 23, 2005, to January 9, 2006. This Bulletin is intended to increase the quality and transparency of agency guidance practices and the guidance documents produced through them.

Posted by Marcia Oddi on December 20, 2005 08:28 AM
Posted to Administrative Law | Environment | General Law Related