Deep Dive Episode 21 – Shining a Light on Regulatory Dark Matter: Regulating Through Guidance

For many years, concerns have been raised that the development and use of guidance documents by agencies should be better managed and more transparent and accountable. There also has been growing concern that, in some cases, guidance documents are being used in lieu of regulations to practically bind regulated parties, without observing the procedural safeguards required of regulations. Paul Noe will discuss how, ten years ago, these concerns had led the White House Office of Management and Budget to issue a government-wide “Bulletin for Agency Good Guidance Practices” during the Administration of President George W. Bush. He also will discuss past shortcomings in the implementation of the OMB Bulletin and offer suggestions on how more could be done to promote good guidance practices across the government.  In addition, Stephen Cox will discuss how these concerns are being addressed by the current Department of Justice.  For example, in November, the Attorney General issued a department-wide memorandum entitled, “Prohibition on Improper Guidance Documents,” and, in December, announced the rescission of twenty-five guidance documents that were unnecessary, inconsistent with existing law, or otherwise improper.

Related Links:

• Office of Management and Budget: Final Bulletin for Agency Good Guidance Practices
• Yale Journal on Regulation: Due Process and Management for Guidance Documents: Good Governance Long Overdue
• Administrative Conference Recommendation 2017-5: Agency Guidance Through Policy Statements
• Statement of Paul R. Noe, Vice President, Public Policy American Forest & Paper Association American Wood Council