Federal statutes appear in the U.S. Code. Regulations, pass through the Federal Register, and come to rest in the Code of Federal Regulations. But no official portal exists for the entirety of the administrative state’s vast inventory of sub-regulatory guidance documents. These directives have gained notoriety with the rise of the “pen and phone” in U.S. policy making over the past decade.
These issuances include memoranda, notices, directives, interpretative bulletins, circulars, and many others. (Here’s a Word Cloud of them I compiled.)
Just as the costs of regulation covering economic, health and safety, environmental, social engineering and other matters remain un-tabulated, classification of guidance documents and their heft tends to get ignored.
There’s an exception to that. Guidance documents didn’t get ignored under Trump. Trump’s Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents” expanded upon earlier moves by President Bush on Good Guidance Practices. A supplemental Trump White House directive required federal agencies to link guidance at www.[agencyname].gov/guidance. The Trump administration also reaffirmed the Administrative Procedure Act-based “rule” status of guidance, meaning that the Congressional Review Act (CRA) applied to independent agency rules. That important detail continues to place most guidance on suspect terrain since little is ever reported to Congress and to the Government Accountability Office as the CRA requires.
But immediately upon taking office, Biden revoked Trump’s requirement for portals and public disclosure. We recently detailed which of 32 departments and agencies issued Final Rules on Guidance in fulfillment of the Trump order, as well as the 22 of those that have now issued a revocation. As agencies have begun to dismantle the portals, it is important to capture what the Trump initiative made available that could be lost.
As the pandemic well underscored, Congress often abuses crisis and makes laws it shouldn’t. Agencies make rules they shouldn’t. The unknown quantity of guidance documents compounds the damage. So legislation is needed. This is made all the more apparent given the transitory nature of executive orders and the profusion of guidance likely to flow from legislation like the Inflation Reduction Act and the CHIPS Act.
To set the stage for inventorying guidance, we acknowledge that it is unknown how many federal agencies exist. My guidance document tallies since 2015 have incorporated the 60 or so reflected in the twice-yearly Unified Agenda of Regulatory and Deregulatory Actions. But there are actually hundreds more agencies and offices. (I compiled a partial Word Cloud of those as well.)
There are now well over 100,000 documents that can be pinpointed in some fashion, which would not have happened without the Trump executive order. In the initial “Mapping Washington’s Lawlessness” inventories on regulatory dark matter, I had noted several hundred guidance documents in the “significant” category, dozens of independent agency guidance documents, and pointed to hundreds of thousands of “Notices” accumulated the Federal Register over the years (I’m not counting those here). During Trump’s tenure, a 2018 Shining Light on Regulatory Dark Matter report issued by the House Committee on Oversight and Reform compiled 13,000 pieces of guidance from 46 departments and agencies between 2008 and 2018.
This mid-August 2022 compilation of regulatory dark matter stands at 107,399. As with regulatory costs, one must not read too much into a cardinal number that is a gross undercount. The operative phrase would need to be, “at least 107,399.” In fact, the presumption should be that all agencies’ quantity of guidance is indeterminate. But this is real progress, in that we can see vastly more than before in the wake of Trump’s Executive Order 13891, despite its repeal. My March 2, 2020 compilation based on surveying agencies websites and portals stood at 22,936. The July 7, 2020 count was 54,010 and the September 10, 2020 roundup, four months before Trump left office, stood at 73,424. And yes, some agencies continued to add them under Biden.
An image of the table appears at the end of this article, comparing the new and prior (September 2020) roundup. The table is maintained online on this (https://bit.ly/2TfWzZ2) Google Sheet as well as on http://www.tenthousandcommandments.com/. Use the more detailed linked version to drill down; the online version also notes the manner in which some agencies either designated or revoked their portals.
There is no uniformity in what agencies present. Some retain what are now unofficial portals. For some, one must count entries on a website. Sometimes material is presented by sub-agency. Some agencies present by type of document, some by date. Many defy attempts to tally, such as by containing a significant amount of unindexed guidance or multiple pages of multiple poorly classified links. Nor can one readily determine the economic significance of most guidance. Some agencies present only recent guidance, while others reach back to the 1990s and even Franklin D. Roosevelt’s administration. Some agencies have search boxes (the best sort by date and have numerical document classification). There were agencies with noncompliant portals under Trump that nonetheless issued a guidance rule in compliance with the order. There was also the reverse—agencies that stomped their guidance rule but that maintain a portal today.
Regardless, neither my compilations nor non-curated searches on regulations.gov or agency websites can impose the necessary supervision. Again, corrective legislation is needed. In the meantime, since material is likely to be removed, screenshots by outside observers will necessary for preservating the historical record. For example, the Environmental Protection Agency removed ease of access to its guidance. Incidentally, any guidance omitted from Trump-era portals by agencies was to become void, so an inquiry into the status of voided and non-voided guidance is something that needs exploring.
So, as Biden likes to say, “Congress must act.” Legislation called the Guidance Out of Darkness (GOOD Act) still awaits. Future posts will drill a bit more into what agencies are presenting and propose additional detailed steps for Congress.