On January 18, the Office of Management and Budget issued final government-wide guidance on the issuance of guidance in lieu of rulemaking. OMB’s Bulletin for Agency Good Guidance Practices is rich with content. Today we begin a series intended to educate the public about this Bulletin and its implications for regulatory policy and process.
Portions of Executive order 13422 are integral elements of the Bulletin:
- The definition of “guidance document,” and the criteria that make a guidance document “significant”
- The encouragement of formal (as opposed to informal) rulemaking procedures and the exclusion from the definition guidance documents issued in accordance with formal rulemaking procedures
- The extension of OMB review to significant guidance documents
We previously discussed the extension of OMB review to guidance documents in our three-part series on Executive order 13422. (Part 2 dealt with changes made to the evaluative criteria OMB will use in its reviews. Part 3 concerned revised regulatory planning provisions.)
Today we address the definition of “guidance document,” what new requirements apply to them, and how the regulatory review process has been amended to include them.
Table 1 below allows readers to compare definitions. Any statement of general applicability that is not a regulatory action is within the definition of guidance document. Thus, the two terms in combination are both mutually exclusive and exhaustive. (Agency statements of specific applicability and effect — that is, actions that apply to a specific entity and have no general effect — are exempt. That has always been the rule for regulations, and it applies also to guidance documents.)
“REGULATORY ACTION” AND “GUIDANCE DOCUMENT”
EO 12866, as amended by EO 13422
|Definition of “Regulatory Action”||Definition of “Guidance Document”|
|[A]ny substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.||[A]n agency statement of general applicability and future effect, other than a regulatory action (as defined in Executive Order 12866, as further amended, § 3(g)), that sets forth a policy on a statutory, regulatory or technical issue or an interpretation of a statutory or regulatory issue.|
All agency actions that apply generally to a class of entities are covered and potentially subject to OMB review. OMB now has the same discretion to call guidance documents in for review that it has had since 1981 to review regulatory actions. Because the new regulatory planning provisions apply to both regulatory actions and guidance documents, the scenario should not occur in which a significant guidance is issued without OMB’s prior knowledge and assent.
Table 2 below summarizes the new requirements for guidance documents and shows how they compare with existing requirements for regulatory actions. Most of the “basic” Good Guidance Practice (GGP) requirements already apply to regulatory actions.
REQUIREMENTS FOR REGULATORY ACTIONS AND GUIDANCE DOCUMENTS
|Threshold||Regulatory Actions||Guidance Documents|
“May reasonably be anticipated to”
|“Likely to result in a regulation that may”|
The GGP will have two practical effects. The first effect is that agencies will be required agencies to make their policies and practiced for issuing guidance documents similar to and more consistent with their rulemaking practices. The same kind of information that routinely accompanies proposed and final regulations now will accompany guidance documents.
The second effect, both related to and probably more significant than the first, is that agencies will be required to be highly transparent with respect to guidance documents. All guidance documents for an agency (or a broad component of one) will have to be listed on a common web page, with hyperlinks to their text, public comments, and a mechanism for public feedback.
One very practical result of this added transparency is that, for the first time, the public will learn the breadth and depth of each agency’s applicable guidance documents.