A White House proposal will hinder federal agency efforts to provide important information to the public by opening guidance documents to politicization and industry influence, according to comments filed by Citizens for Sensible Safeguards.

Citizens for Sensible Safeguards, a coalition of labor, consumer, and other public interest organizations, filed comments Jan. 9 on OMB's Proposed Bulletin on Good Guidance Practices. The bulletin purports to make agency guidance documents "more transparent, consistent, and accountable" by setting new requirements that include high-level review by senior agency staff of any guidance document deemed "significant" and a lengthy review and approval process for any "economically significant" guidance.

A Solution in Search of a Problem

The bulletin does not solve the problem OMB claims it is addressing. While OMB makes the dubious claim that the bulletin is needed because agencies are announcing new requirements in guidance documents instead of regulations, the administration fails to recognize the burdensome analytical requirements that force agencies to seek alternatives to the rulemaking process via the issuance of guidance. OMB should focus its efforts on removing obstacles to the regulatory process instead of making guidance as burdensome and draining on agency resources as the rulemaking process has become. Onerous requirements created by recent legislation and executive orders have led to "paralysis by analysis." For example, the promulgation of a new OSHA regulation now takes on average over five years, whereas in the 1970s the process took roughly six months.

Making Government Less Effective

OMB's proposal also takes a "one-size-fits-all" approach to the vast array of agency documents that address wide ranging public needs. The White House's proposal uses such amorphous definitions that an enormous range of agency information could be at risk. The bulletin could apply to everything from handbooks to advisory opinions to databases of chemical information. National Weather Service heat advisories, Superfund cleanup instructions, Labor Department guidelines for biohazardous shipment labeling and even USDA recommendations about when meat is done and ready to eat could now face new bureaucratic burdens.

White House Power Grab

The proposal's requirement that so-called "economically significant" guidance documents be subject to a lengthy public comment process represents a White House power grab that contradicts Congress's role in delegating discretion to federal agencies. Despite having had 60 years to consider across-the-board, one-size-fits-all policies of the type proposed by OMB, Congress has chosen to avoid such policy proposals. By requiring agencies to seek approval from OMB to avoid these onerous new requirements, OMB's proposal also opens the door for an unprecedented role for the White House in agency's development of guidance.

Though put forth under the auspices of increasing public participation and transparency in the guidance process, OMB's proposal will have the opposite effect; swamping agencies in new requirements that drain agency resources and limit their ability to respond effectively to the needs of the public.

There's a Better Way

If OMB continues to go forward with the proposal, it should consider several revisions that could limit the burdens on agency resources, bolster public participation and agency responsiveness and keep the balance of powers in check. Suggestions for reform include the following:

• "Economically significant" guidance should not be subject to notice-and-comment requirements. Not only is the term "economically significant guidance" misleading and incomprehensible, but the added burden on agencies for guidance documents that fall under this domain would be onerous and draining on agency resources. Guidance documents are specifically exempt from APA notice-and-comment, and subjecting them to such procedures is an overreach of executive power.
• OMB should vastly limit the scope of guidance documents requiring formal notice and comment so as not to grind agency activity to a complete halt.
• In the interest of transparency, any criteria OMB uses to approve or deny the waiver as well as any rationale provided by the agency for waiving the good guidance practice requirements should be made public on the OMB website.