A Quick and Dirty Inventory of Federal Agencies’ Significant Guidance Documents

Much is written by many on federal agency regulations’ expansion and costs. Beyond those, guidance documents, memoranda, notices, and other regulatory dark matter proclamations are getting attention. Such edicts are not supposed to be legally binding on the public, wink-wink.

When a federal regulation is considered “significant,” that generally but not always means a cost of $100 million annually.

Guidance sometimes gets characterized the same way, but even less formally than what happens with rulemaking. With respect to “significant” guidance, some executive (not independent) agencies comply with a 2007 Office of Management and Budget memo from then-Director Rob Portman on “Good Guidance Principles.”

Guidance for guidance, so to speak.

A George W. Bush executive order of that era (E.O. 13422) had even subjected significant guidance to OMB review. There appeared an explicit revocation of that directive in President Obama’s 2009 E.O. 13497, but then a re-instatement of sorts by a then-OMB Director Peter Orszag memo to “clarify” that “documents remain subject to [the Office of Information and Regulatory Affairs’] review under [longstanding Clinton] Executive Order 12866.”

With conspicuous exceptions such as the Energy Department, Housing and Urban Development, the Department of Health and Human Services (HHS), some federal departments and agencies not only continue to invoke the 2007 Portman memo, but follow its directive of maintaining web pages devoted more or less to “significant” guidance, even though it is a suggestion rather than a command. Others confesses no “significant guidance” at all but confess to guidance nonetheless; the FDA acknowledged no significant guidance, however there are (at least) 1,184 pieces of acknowledged final guidance from FDA.

The table below, “Significant Guidance Documents In Effect: A Partial Inventory,” depicts a work-in-progress inventory of significant guidance documents based largely upon these scattered executive department and agency websites (a live version of this chart with ongoing updates is maintained here, along with the links to the specific agency websites containing the guidance). There are 580 significant guidances in total in this compilation, based upon agencies’ compliance with OMB’s 2007 directive to the extent they maintain public web pages for it at this time. The EPA’s 206 significant guidance documents dominate the tally.

Significant Guidance Documents in Effect: A Partial Inventory

Executive Departments and Agencies

(As of August 2015)

(Full chart and updates at www.tenthousandcommandments.com under link called

“Regulatory Dark Matter: Significant Guidance Documents, By Agency”)

It should be pointed out here that the Equal Employment Opportunity Commission, an independent agency, nonetheless explicitly invokes the OMB memo and devotes a web page to guidance (23 entries as of this writing) that it maintains meets the significance criteria of the OMB memo.

I’m very interested in hearing from others who are aware of locales where agencies post guidance that I’ve not been able to locate. Along with holding Congress accountable for all these directives and their effects, the lack of coherence and clarity is one of the recommendations we’ve made for reforming so-called non-binding guidance.

In an upcoming column, I’ll say a bit about the quality of the presentation of the agency guidance summarized here in this partial inventory.