OMB claims that it seeks to make agency guidance practices “more transparent, consistent, and accountable,” but the Proposed Bulletin fails to serve those goals and is, instead, a roadmap for government that is less responsive to the public’s needs:

• OMB would gain new power to intervene in day-to-day agency functions out of the public eye, while the public would also be left in the dark about agency policy.
• The Proposed Bulletin would force an unmanageably vast universe of distinct types of materials into a one-size-fits-all policy that, in the name of consistency, will threaten the consistency with which agency field offices implement government programs.
• The requirement that agencies subject guidance documents in high-profile issues to political review will result in the kind of inefficient bottleneck that is the hallmark of government mismanagement.

OMB’s One-Size-Fits-All Approach to Government

Consistency alone cannot justify a wide-ranging government process change unless it will create a needed consistency that improves the government’s ability to protect the public. The problem with the Proposed Bulletin is that it does not justify the kind of consistency it intends to impose while robbing the public of a kind of consistency it has come to expect with guidance documents.

The Proposed Bulletin’s definition of affected guidance documents notionally limits the scope of the Proposed Bulletin while actually applying new burdens to an immense universe of agency materials. OMB’s Proposed Bulletin defines the materials subject to the new “good guidance practices” requirements as

(1) a document produced by an agency other than an independent agency

(2) that is public or subject to the Freedom of Information Act

(3) and is neither a rulemaking or an adjudication,

(4) that describes an agency's

(5) interpretation of or policy on

(6) a regulatory or technical issue

(7) and may

(a) raise "highly controversial issues,"

(b) implicate "important" Bush administration priorities,

(c) provide initial interpretations of statutory or regulatory requirements,

(d) announce changes in previous interpretations or policies,

(e) address "novel or complex scientific . . . issues,"

(f) address "novel or complex . . . technical issues," or

(g) be "economically significant" by being reasonably anticipated to

(i) "lead to an annual effect of $100 million or more" or

(ii) "adversely affect in a material way the economy or a sector of the economy."

The term “guidance documents” would suggest a focus on materials like compliance guides, but this definition is incredibly capacious, sweeping in an immense universe of diverse materials, the sheer volume of which alone would overwhelm agencies forced to apply these new requirements. The definitions of “significant guidance documents” and “economically significant guidance documents” are so broad that they could apply to everything from guidelines interpreting workplace safety requirements to information on new pollution control technology.

The distinct kinds of materials and heterogeneous subject matters that could come within the Proposed Bulletin’s reach serve a wide range of public needs and are so diverse that a one-size-fits-all policy like the Proposed Bulletin poses a serious risk of causing more problems than it solves.

Limiting Information for the Sake of “Consistency”

Even assuming that OMB means for the Proposed Bulletin only to apply to compliance guides and other such explanatory materials traditionally referred to as “guidance documents,” the Proposed Bulletin threatens to burden the production of valuable information. Agencies often explain how they intend to administer a statute or regulation through interpretive rules and general policy statements that state an agency’s tentative but not binding intentions for the future.

Even as priorities change from administration to administration, guidance documents can ensure that each incoming administration’s approach to technical and policy issues is consistently applied on a fair basis nationwide, so that no member of the public is prejudiced by living in a jurisdiction covered by a field or regional office with either more stringent or less protective inclinations.

By creating this new one-size-fits-all approach to “guidance documents” across the entirety of the federal government, OMB’s Proposed Bulletin threatens to create disincentives to the production of the guidance materials that ensure this kind of valuable consistency.