New OMB Policy Will Likely Reduce Informal Agency Guidance

On April 11, 2019, acting director of the Office of Management and Budget (OMB) Russell Vought announced a policy for review of federal agency rules and guidance that represents a significant change of process for issuance of informal guidance materials and can be expected to decrease informal agency guidance. The directive, in the form of a memorandum to all heads of executive departments and agencies, requires agencies to submit to OMB’s Office of Information and Regulatory Affairs (OIRA) a summary of any proposed guidance document or rule and, in most cases, a detailed analysis of the expected impact of the proposed guidance or rule. Following OIRA’s review, Congress will have the option of review pursuant to the Congressional Review Act. While Congress typically does not exercise the option, it may invalidate any rule through a joint resolution of disapproval, which is subject to presidential veto.