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Guidance Documents of the Week

Guidance documents are statements of policy issued by your favorite alphabet soup of agencies, which more often than not translate into law, despite rarely going through the notice-and-public comment period required of most regulations. Agencies are also supposed to submit many of these documents to Congress and the Government Accountability Office, as well as the White House’s Office of Information and Regulatory Affairs.

The House Committee on Oversight and Regulatory Reform helped illuminate the dark matter issue with their March 2018 report “Shining Light on Regulatory Dark Matter.” The document cites Competitive Enterprise Institute Vice President for Policy Wayne Crews, who coined the term “regulatory dark matter” in reference to the cosmological term “dark matter,” which, though undetectable, comprises the majority of the universe’s known mass.

Similarly, guidance documents and other forms of regulatory dark matter make up an unknown but significant size of our legal structure. An average year sees a little more than 100 bills pass Congress, and more than 3,000 final regulations passing through the notice-and-comment rulemaking process. Wayne’s October 2018 study “A Partial Eclipse of the Administrative State” puts the number of guidance documents—just one form of dark matter—at more than 13,000 over the period 2008-2017. The number comes for the House report on the study of guidance documents linked above, but even they say that there are some agencies that have not gotten back in touch with them, and that this number can be even larger.

Of these, 189 have been submitted to Government Accountability Office and 328 have been submitted to Office of Information and Regulatory Affairs. We at CEI would love to increase this ratio. But it is also worth taking a look at some of the more unusual pieces of guidance that have been issued along the way, to get a look at what our government was doing in the past, and what they are working on at the moment. So here is a look at how granular such guidance documents can be. Each one might be small, but when there are 13,000 of them per decade, mostly without outside review or accountability, they add up:

  • The Food and Drug Administration has issued a guide on how to make sure your puppy has the social skills of a golden retriever, whatever his or her breed. 
  • The U.S. Department of Agriculture issued a guidance document on caring for giraffes in cold weather.
  • The next time you want to create genetically modified petunias, think of the consequences.
  • The Department of Agriculture is also advising school lunch programs to provide “share tables” for kids to share the healthy foods they don’t want to eat.
  • Be ready to impress your date when he/she asks the waiter if the food is fresh. Here are the guidelines for when meat and poultry is officially considered “fresh” vs. merely “not-frozen.”
  • One Housing and Urban Development document from 2015 states that the agency is “using Department of Education’s definition for tuition,” then goes on to spend five pages redefining the word “tuition.”
  • The Department of Housing and Urban Development is collaborating with the Environmental Protection Agency for help with a guidance document dealing with bed bug control.
  • Converting an efficiency unit to a one-bedroom apartment is a simple procedure under new Housing and Urban Development guidance. Just make sure you bring two years’ worth of your marketing efforts for the conversion request. 
  • In the event of a zombie apocalypse or similar outbreak, federal managers will be prepared with pandemic information.