GOOD Act only first step in forcing federal agencies to come clean on guidance documents

Alongside the familiar profusion of notice-and-comment regulations, federal agency guidance can include memoranda, notices, bulletins, directives, news releases, letters; even blog posts and speeches by agency officials.

The “Guidance Out Of Darkness Act” (or “GOOD Act,” H.R. 890/S. 791) would create a single, searchable, indexed database to contain or link to these dispersed sub-regulatory guidance documents. The GOOD Act would restore requirements similar to those of a now-revoked (by President Joe Biden) executive order called “Promoting the Rule of Law Through Improved Agency Guidance Documents” (E.O. 13,891 of October 9, 2019). The GOOD Act was reported 41-0 out of the House Committee on Oversight and Accountability this summer. 

While there are plenty of further legislative steps necessary to wrestle guidance documents into our constitutional order, the GOOD Act takes the first step to, as Galileo allegedly implored, “measure what is measurable, and make measurable what is not so.”

The astronomical reference is appropriate since, as dark matter outweighs the visible universe, regulatory “dark matter” can in some respects outweigh legislation and conventional regulation.

I assembled a partial “Portal” for guidance documents in the wake of Biden’s revocation of the official one. From that, readers can see that the influence of Biden’s “whole-of-government” impulses to enlist agencies across the board in the pursuit of progressive ends like “equity,” ESG, green climate policies, and top-down supervision of artificial intelligence is significant.

I’ve highlighted some of these in what is proving to be an expanding  “Shadow Box” compilation. With so much federal spending supporting the contracting state in the wake of recent legislation like the inflation, infrastructure and CHIPS and Science laws, mere guidance can be highly regulatory right off the bat.

Thus we find dozens of “Equity Action Plans.” We have cross-cutting ESG and environmental justice campaigns. We have agency “inventories” of their deployments of artificial intelligence,

as well as declarations of adherence to “principles.” These latter come in the wake of Donald Trump’s executive order on “Promoting the Use of Trustworthy Artificial Intelligence in the Federal Government” (E.O. 13,960; December 8, 2020), the spirit of which is newly reinforced with Biden’s aggressive securing of “voluntary commitments” from the private sector that will likely involve ample guidance and “blueprints.”

In “competition policy,” (yes, there’s a Biden E.O. on that, too) we were reminded in July that price controls also are a cross-agency, cross-sectoral pursuit beyond the likes of the Federal Trade Commission.

Guidance promises to be so great a factor that I propose that, in supplementation to the GOOD Act, a “genus and species” classification system of sorts needs to be chartered sooner rather than later. Given whole-of-government cartelization, it is most important that this new system be capable of searching by type of pursuit (equity, climate, pricing) not just by agency or department.

Since such an all-encompassing capability does not yet happen even with respect to “ordinary” notice-and-comment regulation. It needs to be applied there, too. The problem can be an opportunity, with newfangled disclosure of heretofore untethered guidance blazing the trail across the rest of the unaccountable Administrative State.

In assessing whole-of-government guidance there are important existing tools to build upon. In the Electronic Code of Federal Regulations portal, one can search by regulatory topic (agriculture, highways). But the capability to conduct centralized or standardized search across all agencies for the cross-cutting whole-of-government progressive pursuits on the ascendancy like ESG or environmental justice is not present. Using regulations.gov or FederalRegister.gov to search across keywords or agency dockets can help, but won’t cover the CFR nor get us the overview needed. And guidance, where the action is headed, is largely omitted from all these tools.

A better tool to build upon is “Regulation Identifier Number” or RIN. With respect to the guidance documents that primarily concern us here, the “GIN,” or “Guidance Identifier Number” needs to be developed.

As described by the Office of Information and Regulatory Affairs (OIRA) within the U.S. Office of Management and Budget (OMB), “RINs” get assigned to rules appearing in the Unified Agenda of federal regulations, and consist of “a 4-digit agency code plus a 4-character alphanumeric code, assigned sequentially when a rulemaking is first entered into the database, which identifies the individual regulation under development.”

The RIN’s origin is E.O. 12866 of 1993: “The description of each regulatory action shall contain, at a minimum, a regulation identifier number, a brief summary of the action, the legal authority for the action, any legal deadline for the action, and the name and telephone number of a knowledgeable agency official.”

OMB explains further that, for example, “[A]ll RINs for the Occupational Safety and Health Administration have agency code 1218. The RIN for OSHA’s rulemaking on hazard communication is 1218-AC20.”

Not all rules appear in the Unified Agenda, so not all have RINs. That could change but would only be incidental to our larger task of Genesis for GINs.

The hyphenated 8-digit RIN is minimal. A unique alphanumeric identifier for the “GIN” (and retrofitted to RIN) needs to do more. That’s because of the imposition of “whole-of-government” policy, though, not because of me. The RINs and GINs now need to be supplemented with topical indexes. The newfangled GIN could include, for example:

Agency Identification: The name or abbreviation of the source agency of the guidance document.

Document Type: This designation would indicate the type of guidance document to differentiate it from others, such as policy statements affecting only agencies (OA), or memoranda (MEM), circulars (CIRC), letters (LTR) and so forth.

Topic or Subject: To grapple with the new whole-of-governent environment, the particular regulatory campaigns in which multiple agencies are simultaneously engaged requires newfound recognition. Examples for the additive designation could include competition policy (COMP), equity (EQ), environmental justice (EJ), artificial intelligence (AI), and the like. “PC” and “INFO” could capture the price control and mandatory information disclosure quests spearheaded by Biden’s “Competition Council” underway not only at FTC and HHS but also USDA and DoT (the latter for new targeting of airlines and the hospitality sector).  

A Date or Version number in the identifier could track updates or revisions to the guidance document.

That’s a taste: GINs could be enlarged still further. However, as an example merely for illustrative purposes, a custom alphanumeric identifier for a memorandum issued by the Environmental Protection Agency (EPA) on environmental justice issued on my birthday might look like this:

GIN: EPA-MEM-EJ-20230901

In this example, “EPA” represents the agency; “MEM” indicates the type of document (the rule- and guidance-type nomenclature as a whole needs streamlining, incidentally); “EJ” refers to environmental justice (the whole-of-government topic); and “20230901” is the fantasy date of issuance (September 1, 2023). Given Administrative State sprawl, RINs should be upgraded to fit this pattern alongside GINs.

A single agency is no longer necessarily the primary party engaged in some big-government pursuit. Searching the new database for any of the aforementioned topic or subject abbreviations could reveal them all.

Granted, we first need to prepare a simple portal for ease of access, as the GOOD Act would at long last do. But we need to recognize this is not your grandma’s Administrative State. Agencies are now colluding to carry out certain top down progressive ends with seeming disregard of statutory authority or swim lanes. You could even abolish an agency, whack-a-mole style, and find its regulatory pursuit continuing elsewhere despite your best efforts.

If we resign ourselves to merely looking at each individual agency in isolation we can wind up obscuring the larger picture of what the federal enterprise as a whole is imposing on state and local governments, businesses, individuals and families in today’s America. A GIN is the tonic for that.