25 Yale J. on Reg. 103 (2008)
Due Process and Management for Guidance Documents: Good Governance Long Overdue

handle is hein.journals/yjor25 and id is 107 raw text is: Due Process and Management for Guidance
Documents: Good Governance Long Overdue
Paul R. Noe
John D. Grahamt
On January 18, 2007, President Bush signed amendments to clarify and
strengthen Executive Order (E.O.) 12,866, which President Clinton had issued
to update principles for inter-agency planning and review of regulations. The
most important provisions of President Bush's E.O. 13,422 clearly extend inter-
agency review to guidance documents. E.O. 13,422 was reinforced by a Bulle-
tin for Agency Good Guidance Practices issued by the Office of Management
and Budget (OMB). 1 Together, E.O. 13,422 and the OMB Bulletin establish
the first government-wide rules of the road to manage the development and
use of guidance documents.
OMB now has clear authority to review significant agency guidance doc-
uments, just as OMB reviews significant agency regulations. The agencies, in
turn, are required to give OMB advance notice of their upcoming significant
guidance documents. OMB will be responsible for ensuring that other inter-
ested agencies occasionally have notice and an opportunity to provide input
into the most important guidance documents.
In the view of the authors, the outcry that followed the issuance of the Or-
der and Bulletin was remarkable and unwarranted.2 On one hand, the two most
controversial provisions in E.O. 13,422 (which are irrelevant to guidance doc-
uments) were edits to authorities already provided by the Clinton Order--edits
that were unnecessary and unlikely to practically affect regulatory policy de-
t Paul R. Noe, J.D., is the Vice President of Regulatory Affairs for the Grocery Manufacturers Associa-
tion. From 2001-2006, he served as Counselor to Administrator John Graham in the Office of Informa-
tion and Regulatory Affairs (OIRA), Office of Management and Budget. During that time, he drafted the
OMB Bulletin for Agency Good Guidance Practices and the good guidance provisions in E.O. 13,422.
John D. Graham, Ph.D, is the Dean of the Pardee RAND Graduate School. From 2001-2006, he served
as the Administrator of OIRA.
I   Under the OMB Bulletin, agencies first must implement procedures for the approval and use
of significant guidance documents by appropriate senior officials. Second, significant guidance docu-
ments must have standard elements. Agencies are directed to avoid inappropriate mandatory language
in guidance documents. Finally, the Bulletin establishes public access and feedback procedures. See
Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007). For the Order,
see Exec. Order No. 13,422, 72 Fed. Reg. 2763, 2765 (Jan. 23, 2007).
2   See, e.g., Paul Krugman, The Green-Zoning of America, N.Y TIMES, Feb. 5, 2007, at A21;
Robert Pear, Bush Directive Increases Sway on Regulation, N.Y. TIMES, Jan. 30, 2007, at Al; Cindy
Skryzcki, Bush Order Limits Agencies' Guidance, WASH. POST, Jan. 30, 2007, at D1.

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