Finding a Way to Better Guidance

Despite its complaints, business has a love-hate relationship with guidance.

Randy Johnson , vice president for labor and immigration at the U.S. Chamber of Commerce, said business values guidance when it clarifies compliance or technical issues. It is less enthusiastic when courts pay attention to it or it is used for enforcement purposes.

"Many employers want a hint of how a rule will be enforced . . . but then guidance is the official word of the agency and the courts defer to it," Johnson said. Business wants guidance to have disclaimers as to its enforceability.

Public-interest groups come to a different conclusion. They are concerned that the new procedures would further add to the burdens of agencies trying to do rulemakings.

Graham said groups worried about the new requirements should weigh that concern against the time consumed on court cases addressing "confusion about what is a rule and what is guidance."

The Natural Resources Defense Council said it supports the idea of accountability by the agencies but is concerned that the new approach might allow too much interference by executive reviewers.

"We are concerned that this will subordinate agency decision-making to industry at the public's expense," said Chris Murray , consulting NRDC attorney on the issue. "It has the potential to burden agencies with a lot more work . . . and create a role for business to exert a lot more influence." The OMB proposal gives industry a chance to oppose guidance as being too costly but doesn't require that the benefits of the guidance be included in weighing the issue.

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Out for comment: David Sparkman , spokesman for the American Moving and Storage Association, dropped a helpful online acronym finder in some of his friends' virtual stockings. He assumes that most professionals in Washington dealing with regulatory issues run into TLAs all the time -- Three Letter Acronyms such as DOT, MMS, FCC, FDA, FCA, BXA and on and on. He advises dashing over to http://www.acronymfinder.com to find out just what those letters stand for.