Shining the Light on Regulatory Dark Matter: Due Process and Management for Agency Guidance Documents
By Paul Noe, Vice President for Public Policy
When I served as Counselor to the Administrator in the Office of Information and Regulatory Affairs at the White House Office of Management and Budget (OMB) during the George W. Bush Administration, we issued a Bulletin for Agency Good Guidance Practices3 that required, among other things, agency procedures for the approval and use of guidance, standard elements in guidance, including avoiding inappropriate mandatory language, and public access and feedback procedures. Unfortunately, oversight by Congress and the Government Accountability Office has shown the agencies too often have failed to comply with the OMB Bulletin.4 Thus, much work remains to be done.
Yet, more can and should be done to improve the development and use of guidance on a government-wide basis. For example, OMB should have clear procedures for interagency review of significant guidance documents. OMB also should require agencies to follow the longstanding recommendations of the Administrative Conference of the United States and the American Bar Association by providing streamlined pre-adoption notice and comment for significant guidance.7
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