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Guidance Documents of the Week

Guidance documents are statements of policy issued by your favorite cabinet departments and alphabet soup 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 this 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 they say that this number could be even larger.

Of these, agencies have submitted 189 to the Government Accountability Office, and 328 to the Office of Information and Regulatory Affairs. We at Competitive Enterprise Institute would love to increase this ratio. But it is also worth taking a look at some of the more interesting pieces of guidance that have come about along the way. Looking at what our government was doing in the past can offer some idea on what they might be doing in the future. Each one might be small, but when there are 13,000 of them per decade, mostly without outside review or accountability, they add up.

This week we look at documents from the National Archives and Records Administration (NARA) and National Aeronautics and Space Administration (NASA).