OMB claims that agencies are using general policy statements, handbooks, manuals, compliance guides, nonlegislative rules, and other informal matter as a vehicle for policy edicts that should go through the APA’s notice-and-comment rulemaking process. Instead of addressing what could be the underlying causes of resorting to subterfuge rulemaking, OMB throws the baby out with the bathwater by adding new burdens to the production of information that the public needs.

The Proposed Bulletin is blind to the role of government in meeting the public’s needs, and that blindness leaves OMB stumbling in the wrong policy directions. Starting with the questionable empirical claim that agencies are using guidance documents to announce requirements that should instead be legislative rules produced in accordance with the APA, OMB proceeds to an even more questionable response: clamping down on agencies’ ability to develop guidance documents. Even if there is a problem with the impermissible use of guidance documents, the right solution should be to remove obstacles to the use of the regulatory process. Instead of making sure that government programs have the tools they need to serve the public, OMB has opted to make it increasingly difficult for agencies to do anything for the public.

When Guidance is Misused

Sometimes letters, preambles, handbooks, and other informal documents do include assertions and policy changes that threatened public protections while avoiding the APA process. For example, as recently as December 13, 2005, the U.S. EPA issued guidance contravening the Clean Air Act, at industry’s behest, that does not require consideration during the permitting process of whether a new power plant should use clean coal technology (known as integrated gasification combined cycle), instead of conventional coal-burning techniques. Such guidance will have the effect of undermining our clean air and contravenes Congress’s intent under the new energy law to incentivize the use of such technology.

Likewise, we have seen corporate special interests challenge such materials as part of a sequence of efforts to slow agencies down from promulgating and enforcing regulations that cost them money to comply with. We do not have sufficient information — and OMB certainly has not provided it — to know whether there really is a widespread pattern in need of an across-the-board solution of the sort OMB proposes. Moreover, we do know that there are ways to pursue solutions to any such problem, which include advocating better practice from agency staff, litigating impermissible policy making, or asking Congress to legislate a targeted answer.

The Real Problem: Paralysis by Analysis

Even if OMB’s unproven empirical claim were true, a pattern of agency efforts to avoid notice-and-comment rulemaking in favor of less burdensome rulemaking via guidance suggests a need for altogether different solutions than those proffered in the Proposed Bulletin. Instead of preventing agencies from giving the public the information or protective standards it needs, OMB should carefully examine the length of time it takes for an agency to finish a rule and whether the many additional analytical requirements that have accreted to the regulatory process constitute the real problem that needs to be addressed. Although a few analytical requirements call on agencies to stop and ask themselves whether they are doing the best they can for the environment or the most vulnerable members of the public, most proceed from the assumption that agencies must be frozen in their tracks. The Paperwork Reduction Act, the Regulatory Flexibility Act, the Unfunded Mandated Reform Act, Executive Order 12,866, and countless other congressionally mandated requirements and executive orders bury agencies in analysis, hindering their ability to promulgate needed public protections. On top of analytical requirements that all agencies must meet, some statutes also build in yet more analytical requirements specific to a particular area of regulatory activity, such as effluent controls.

These requirements have induced paralysis by analysis. The average time from 1974 to 1992 for FTC final rules to reach finality after their initial proposal was 63 months. Likewise, the Occupational Safety and Health Administration has slowed significantly over the years as new burdens have been added. According to law professor Tom McGarity:

[OSHA] in 1972 spent about six months from inception to publication of the final rule on its first occupational health standard for asbestos. Two of its next three health standards, a generic rule for fourteen carcinogens and a standards for vinyl chloride, took about one year, and nine months, respectively. The next three standards, for cotton dust, acrylonitrile, and arsenic, each took over three-and-one-half years. These last three standards were promulgated during the relatively activist Carter Administration when OSHA was anxious to write new rules to protect workers. Today, OSHA health standards rarely take less than five years to promulgate.

It is a pattern so widespread that it has given rise to an apt characterization of the regulatory process as having “ossified.”

We need government programs to be able to act on behalf of the public. The unparalleled aggregation of resources that we have in our federal government entails a responsibility to use those resources to identify our unmet needs and to continue to act so that long-resolved problems do not erupt into new crises. OMB has already burdened the regulatory process so that agencies cannot quickly respond to the public’s need for protective standards. If there is a problem with agencies failing to use the regulatory process, it is the fruit of OMB’s own aggressive policies that undermine the role of government. OMB should be offering solutions that make government agencies better equipped to address the public’s needs, not less able to provide information to the public.