A 2024 CEI HALLOWEEN SPECIAL: A new inventory unmasking federal agency guidance documents
In my new Halloween-themed article at Forbes, I explore the eerie expanse of federal agency guidance documents. We have to try to have a little fun with this stuff, even on a day (today) when the 2024 Federal Register hit its third-highest page count of all time (86,712 pp.), with two months yet to go.
We often note how the U.S. Code captures federal laws, while the Code of Federal Regulations archives daily rules from the Federal Register.
Federal agency guidance documents, however—the proliferation we’ve taken to calling regulatory dark matter—include a range of decrees including policy statements, memoranda, notices, letters and much more.
These remain a poorly cataloged component of the regulatory landscape. Since 2020, I’ve been compiling an informal inventory of guidance documents, which currently totals 108,023 entries. (a jpeg of the new inventory, also showing prior years, is pasted at the end).
Former President Trump’s Executive Order 13,891 (Promoting the Rule of Law Through Improved Agency Guidance Documents) for a few brief months mandated disclosure of guidance documents on agency portals. As we often have noted, Joe Biden revoked that order along with most other regulatory streamlining measures. A more positive development was this summer’s House passage of the “Guidance Out of Darkness (GOOD) Act,” seeking to codify guidance portals.
As I unearthed in my new compilation, some agencies continue to provide better access to guidance in 2024 than ever seen before E.O. 13,891, despite our being three years out from Biden’s revocation spree as the Edward Scissorhands of regulatory disclosure.
While the Trump-era landing pages are no longer operational (some “tombstone” pages continue to invoke the Trump order, however, and it is fun to see whether or not agencies retain them), bodies like the Departments of Transportation and Justice still maintain, as much as it pains me to say, some of the best indexed and numbered tables of guidance documents in the federal government.
The volume of most guidance, however, even from departments and agencies with the fanciest database and search features, remains indeterminate. And as detailed in the Forbes column and in prior years’ roundups, other agencies have done a very poor job of disclosing guidance, with some never having been complaint even under Trump. Even the classification of what gets counted as guidance remains problematic. The tally of guidance documents managed to top 100,000, but is stagnating.
While compiling guidance documents is crucial, I stress the importance of not seeing reporting of guidance as an end it itself, which risks merely legitimizing an expansive regulatory state.
We must prioritize the elimination of departments, agencies, commissions, programs as well as regulations and guidance documents. On Halloween, advocates of limited government can renew resolutions to bury much of the federal regulatory state.
Go six-feet deeper:
2024: “Darklore Depository 2024: A Halloween Inventory Of Federal Agency Guidance Documents,” Forbes
2023: “Once-Promising Guidance Document Disclosures Are Stagnating Under Biden: Inventory and Observations,” Forbes
2022: “Federal Agency Guidance Document Inventory Tops 107,000 Entries,” Competitive Enterprise Institute.
