Federal Agency “Guidance Document” Disclosure Gaps Show Congress Is in the Dark on Regulatory Overreach
In “A Quick and Dirty Inventory of Federal Agencies' Significant Guidance Documents,” I provided, well, a quick and dirty table depicting “significant” (usually, not always, $100 million annually) guidance documents in effect across some agencies that report per the mild directive of a non-binding 2007 Office of Management and Budget’s Good Guidance Practices GGP Bulletin.”
Guidance is not supposed to formally regulate the public the way each year’s 3,000-plus rules and regulations do, but if you don’t do what they say, well, you take your chances on that application or permit. Often, there’s a lot more guidance than regulations coming from Washington’s agencies.
Reporting quality from executive agencies varies, as of course does length of documents and numbers of mandates contained within them. I promised I’d say a bit on the quality of presentation of the 580 pieces of agency guidance summarized in that partial inventory.
Here’s what I found:
- Some sub-agencies maintain a landing page dedicated to significant guidance, but claim none to report. These include several U.S. Department of Agriculture (USDA) and HHS sub-units (these all appear in “Quick and Dirty” with zeros beside them (and can be seen on the full chart at www.tenthousandcommandments.com). That is useful in its own way if regulated parties question the implied claim of non-significance. Gives them something to point to.
- Sometimes an agency or department will present guidance from a sub office, like the non-obvious Office of Diversion Control in the Department of Justice, with its own set of guidance documents not noted by the parent department. Similarly, the Federal Emergency Management Agency within the Department of Homeland Security lists guidance under several sub-agencies.
- Some, like FDA’s Office of the Inspector General, report no guidance that rises to the level of significance, yet host other web pages presenting certain public guidance.
- Some sub-agencies feature sophisticated search engines (FDA), while failing to flag significance)
- Some agencies and departments present web page itemizations that may be quite detailed (EPA, Interior), but may leave out a great deal of allegedly non-significant guidance.
- Oddly, some host descriptive web pages that then list guidance documents on a separate Word or pdf file (Education).
- Other times, guidance may rise to the level of significance, but it remains up to the reader to find out: For example, at the Centers for Medicare and Medicaid (CMS) services, we are told of thousands of pieces of guidance.
CMS issues thousands of new or revised guidance documents annually and cannot make individual decisions on each as to whether it is “significant” as defined under the Executive Order (e.g., annual effect of $100 million or more on the economy). At present, there are approximately 37,000 documents on the CMS Web site and many, perhaps most of these, include guidance.
Of course, while a federal agency may choose not trouble itself determining significance, those affected lack that luxury.
Our chart understates significant guidance counts since some agencies don’t report at all, and those that do, self-report it. So our roundup in “Quick and Dirty” serves as an inventory of some of what we know, and as an exercise in showing policymakers and interested parties what we don’t know.
For example, while CMS acknowledges thousands of directives whose impacts are indeterminate, other impacts are also indeterminate. GAO noted in 2015 that four agencies issue between ten and 100 guidance documents per year.
The Department of the Interior, which issued 94 rules in 2014, boasts that the Fish and Wildlife Service, one of its several agencies, usually publishes more than 500 Federal Register documents annually.”
Given all the agency disclaimers and qualifications, no representations of comprehensiveness are possible. Indeed, even the notorious EPA offers no warranties of completeness: “Please be aware that the lists do not include every guidance document issued by EPA. They only encompass those documents that are ‘significant’ as defined by the GGP Bulletin.”
For some perspective, over the 10-year stretch between 2005 and 2014, the OMB reported that "Federal agencies published 36,457 final rules in the Federal Register.” OMB reviewed 2,851 of these, among which 549 were considered major.
While guidance in effect that happens to be specifically deemed “significant” seems comparable to this number of major rules, agencies like Interior and CMS maintain document flows that rival or outpace rulemaking, so Congress needs to pay more attention to guidance, whether or not deemed significant. Indeed even a small number of guidance documents can be weighty. The Department of Justice’s Antitrust Division has only two documents classified as significant guidance documents, but other important DoJ policy statements, guidance documents, and notices exist also on matters such as cybersecurity, joint ventures, intellectual property, health care, and mergers. It is not plausible that many of these are not also economically and socially significant in effect for those affected.
Until Congress requires some uniformity in guidance reporting, the haphazard nature of what agencies publicly disclose as guidance in response to the 2007 OMB memo will remain striking. Later this week, I’ll note some of what Congress needs to do.
For present purposes the concern is guidance affecting the private sector, but as one would suspect, guidance directed at agency procedures gets lumped in by those complying with the 2007 OMB memo as well, such as the National Archives compilation of guidance pertaining to the release of classified information. Other guidance affecting agencies can be noteworthy, such as numerous OMB privacy guidance documents to federal agencies over the years. Sound future reporting will need to make distinctions.