On February 28, the Environmental Protection Agency (EPA) and other federal agencies posted all their guidance documents on searchable websites, complying with an Office of Management and Budget (OMB) deadline to implement Executive Order 13891 (which I wrote about here), signed by President Trump on October 9, 2019.
The EPA has posted over 9,000 documents. As of this writing, the Department of the Interior’s website was not yet accessible, but when it is, it should be here. It will take a few days to figure out whether any federal agencies have failed to meet OMB’s deadline. The EO states that any guidance documents not in the database by February 28 will no longer be in effect, although there is a four-month grace period to make corrections. It will take a few days to figure out whether any federal agencies have failed to meet OMB’s deadline.
My CEI colleague Wayne Crews has almost singlehandedly made guidance documents—which he brilliantly dubbed “regulatory dark matter”—an issue of interest to Republicans in Congress and to the Trump administration. Here is a good summary of the first years of his monumental efforts, here is his policy analysis from October 2018 that makes the case for an Executive Order to rein in guidance documents, and here is a short op-ed by Wayne and Ryan Young. In March 2018, the House Oversight and Government Reform Committee released a report, “Shining Light on Regulatory Dark Matter.”
Wayne is already busy analyzing the 9184 guidance documents posted by the EPA today (a number that astonished even him) and tells me that more needs to be done to determine how many of these are major guidance documents as defined by the EO and the OMB memo and will therefore be subject to greater scrutiny. He also thinks the agencies should identify which guidance documents are still open to challenge by the Congressional Review Act.
Unlike federal regulations, guidance documents do not have to go through Administrative Procedure Act processes such as public notice and comment before being adopted. Moreover, many guidance documents are not known or available to those being regulated. And yet, guidance documents are often enforced as if they were laws.
Posting all guidance documents on searchable websites is a huge advance in government transparency. I hope shining light on the staggering extent of regulatory dark matter will lead to serious efforts to withdraw obnoxious ones.