Notice & Comment

New OIRA Guidance on Guidance

Our blog exploded a couple of weeks ago when the president issued two new Executive Orders related to guidance. In about 24 hours we had four fine contributions, a testament to the blog’s deep bench:

I’m writing to follow-up on a development related to one of these orders: EO 13891. Among other things, that EO (1) directs agencies to publicly catalog any existing guidance, with anything not in the catalog deemed rescinded, and (2) creates new processes for issuing certain categories of new guidance, including OIRA review, public comment, and impact analyses. It also tasks OIRA with writing guidance (yes…on guidance) for agencies.

On October 31, 2019 (selected perhaps for maximum spookiness?) OMB posted the first of its follow-up guidance to agencies. Some thoughts:

  • OIRA did the math on the EO deadlines (many of which were written in terms of X days from when OIRA issues guidance). Agencies are on the hook to round up all guidance documents by February 28, 2020 and place them on their own “single, searchable, indexed website” or else they are considered withdrawn (p.1).
  • OIRA also created a grace period for guidance documents that the agency doesn’t catalog by February 28, 2020 but which existed before October 31, 2019 (i.e., the date of OIRA’s guidance). Agencies will have until June 27, 2020 to reinstate any guidance documents in this manner, otherwise they have to go through the process for a new guidance document (p.2). I think this is good because it gives the agencies a chance to round their guidance up, gives stakeholders an opportunity to notice what’s missing, and then provides time for agencies to correct any omissions. At the same time, it places a limit on this catch-up behavior to encourage agencies to disclose their guidance promptly.
  • The EO set a brisk pace for agencies to write new procedural rules on their processes for issuing guidance. Very few agencies already have something like this in place. OIRA directs agencies to submit proposed rules to OIRA by January 29, 2020 (p.2).
  • OIRA notes that the concept of “guidance” is broad but “not boundless” (p.2). The list on page 2 gives insight into which types of non-rulemaking agency materials that OIRA is going to focus on under this EO. For example, it explains that press releases and speeches are generally not covered, unless they “set[] forth for the first time a new regulatory policy.” Sometimes OIRA links the standard for “guidance” to an agency’s intent (e.g., is the document “designed to guide the conduct of the broader regulated public”?) (emphasis added), sometimes it is subjective (e.g., the document has “the predictable result of dissuading regulated parties from pursuing permits not consistent with the statute as thus construed”), and sometimes it is objective (e.g., agency adjudication decisions are not “guidance”). The variation and nuance in this list offers a glimpse into how hard it is to nail down policy-relevant “guidance” as opposed to run-of-the-mill “guidance” that doesn’t contain new policy.
  • OIRA offers some guidance on how to think about estimated effects of guidance on behavior change (p.4). Since guidance is non-binding, by definition, it is tricky to think about how to assess its effects as required by EO 13891. OIRA offers some analytical guidance and encourages agencies to show their work to the public, which will leave agencies uncertain but with experience perhaps OIRA will refine its guidance.
  • Another transparency provision is that OIRA directs agencies to prepare a document that shows responses to public comments (p.10). This is new for most guidance documents.
  • OIRA uses the term “senior policy official” three times when discussing various exceptions and waivers from the EO. To me, this signals that OIRA doesn’t want to hear from the rank-and-file when it comes to bigger carve-outs.
  • OIRA also clarifies that it will use its regular rulemaking review system, called ROCIS, to review guidance documents (p.12). This is great news for OIRA-watchers and transparency fans because I think it means that you will be able to see when guidance documents come to OIRA for review on Previously, guidance was handled informally, and it was hard to track.
  • Lastly, OIRA makes a link between EO 13891 and FOIA (p.1). That’s interesting because the EO doesn’t reference FOIA except as a carve-out (§ 7(d)(iv)). FOIA aficionados might have more to say about that than I. I see this mostly as a sign that the “I” in OIRA is plugged in to the implementation of this EO.

Overall, this memo shows that OIRA was well-positioned to implement this EO when it was signed, that it takes its responsibility to implement the EO seriously, that the public will have much greater visibility into agency guidance going forward, and that this is going to be a lot of work for the agencies that are unaccustomed to issuing guidance this way. Although OIRA’s guidance is unlikely to answer all of the agencies’ questions, it gets the ball rolling and sets up a series of next steps for us to see.

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