If agencies are required to compile and list all their sub-regulatory guidance documents and post, link and consistently index them on a portal, can we still call it “regulatory dark matter”?
So far, yes. Despite the long-awaited (by a handful) new guidance document portals required to be housed at agencies, disclosure for guidance documents still has a ways to go in Washington.
A deadline of sorts happened February 28. Agencies, while given a grace period until June 27 to list what they missed, were required (by Executive Order 13891 and a subsequent White House directive) to create "a single, searchable, indexed database that contains or links to all guidance documents in effect." Each guidance document portal is to be located at www.[agencyname].gov/guidance.
Something similar is needed for guidance in a sprawling administrative state, so a follow-up executive order could require centralization at a location like regulations.gov.
So for the time being, I made the substitute pasted below that I’ll maintain and update here, and on the http://www.tenthousandcommandments.com/ page. To follow the agencies’ links, see the web-linked version.
So far, the count of guidance documents retained by agencies (agencies not posting prior documents moots them according to E.O. 13891), is 22,936. This count is on the low side, since it does not include the great number that are “indeterminate,” nor the outstanding guidance from departments, agencies, commissions and bureaus that are non-compliant with the executive order. It’s also the case that some guidance that can be counted otherwise is not included here, as I’ve done in earlier settings and will again if needed. Here I’m taking the benefit of the doubt stance that agencies chose not to retain it.
By noncompliant, I loosely mean that the agency either (1) has no guidance page at www.[agencyname].gov/guidance at all; (2) fails to list any guidance if it does have a landing page; (3) has an indeterminate amount of largely or totally non-indexed guidance, or that consist of multiple pages of multiple links; or (4) fails to include the framing mandated by E.O. 13,891, which instructs as follows:
"In addition to the information associated with each guidance document, agencies
should also include a clearly visible note expressing that (a) guidance documents lack the
force and effect of law, unless expressly authorized by statute or incorporated into a
contract; and (b) the agency may not cite, use, or rely on any guidance that is not posted
on the website existing under the EO, except to establish historical facts."
Non-compliant agencies are marked with an “x.”
Something that jumps out in looking at how agencies performed on their new duties under E.O. 13,891 is that a new EO commanding the participation of independent agencies in regulatory and guidance review is inevitable. They are saturated with x’s.
While Trump’s E.O. 13,891 didn’t mention independent agencies, a prior OMB directive on compliance with the Congressional Review Act on which it builds most certainly did. Still, in “deep state” terms that makes it easy for anyone that doesn't want to participate to shrug and say the new policies do not apply to them.
As the tally above shows, a great number of entities are non-compliant rather than in line. Some of the independent agencies, such as those governing financial matters, are among the most consequential in economic life, yet most have no portal and are likely to continue to give the finger to administrative oversight until addressed by a more formal and pointed executive order. These disappointments include the Securities and Exchange Commission and the Consumer Financial Protection Bureau.
Granted, there are executive departments not in line, too, such as Education and Defense.
The agencies’ portals are preliminary until the June 27 hard deadline, so this report will make some observations, in no particular order on the new portals’ contribution to the governability or non-governability of the administrative state and on what should come next:
- In contrast to this current inventory (so far) of 22,936, the also incomplete 2018 Shining Light report compiled 13,000 pieces of guidance from 46 departments and agencies between 2008 and 2018.
- An “x” of non-compliance does not necessarily mean that a department, agency or sub-bureau has no guidance documents. For example the U.S. Department of Agriculture is non-compliant, hosting an outdated legacy significant guidance page but not an E.O. 13891 indexed one. However, digging through the appendix of the House Oversight Committee’s 2018 report Shining Light on Regulatory Dark Matter, we found that USDA owned up to some 2,388 guidance documents, 496 of them “significant.” While I have its count at zero now, it will have until June to reinstate.
- There are other such aberrations, like the non-compliant Office of Personnel Management, which has no guidance page and thus registering zero here, having affirmed 4,782 guidance documents in our examination of the appendices of the House Shining Light report.
- Over a third of the guidances in my portal, 9,182, are from the Environmental Protection Agency. By contrast, when House issued the 2018 Shining Light report, EPA only owned up to a handful, 16 rules. I'd found more than that in my earlier reports on regulatory dark matter simply by rooting around blindly for them.
- While there will always be inexactness, “indeterminate” doesn't necessarily mean impossible to present or count; for example the Department of Transportation’s Federal Highways Administration (FHWA) guidance presentation appears thorough, but combines unindexed links to guidance with those for legislation and regulations. Likewise the Department of Housing and Urban Development presents various unindexed categories (Forms Library, Policies and Regulations, Housing Information, Legal Library) that lead to pages of links to links of other links. Enumerated contents and automatic grand totals by which agencies stand are needed, not third-party hand tallies.
- Related to the observation that a new executive order (encompassing independent agencies) creating a single guidance portal out of all the agencies’ doings is necessary, there is highly inconsistent numbering, where there is numbering at all, among agencies. A consistent guidance classification system is needed that encompasses more than just what agencies themselves deem “significant.
- My “portal” does not list every agency and bureau; while it is unknown how many agencies there are, there are at least 400. I've primarily incorporated the roughly 60 that are contained in the twice yearly Unified Agenda, with certain differences and with certain breakdowns of bureaus within departments, as may be seen in the shaded portions of the table nearby.
- The Social Security Administration, while in compliance by hosting a landing page, disavows that any of what it produces is guidance under the order, despite the overwhelming importance of the federal government controlling much of retirement and the fate of one’s funds and returns on them before they are collected. This is one example of administrative state regulatory takeovers of economic and social matters that cease to be considered regulation as generations pass that better reporting on guidance can help recapture.
- The Department of State has a reluctant portal page, but does not provide a compendium, merely a blank search field. So it remains technically out of compliance. Here it gets benefit of the doubt with a blank search yielding 169 documents.
- There exist the occasional humorous aspects, such as the OMB itself not being in compliance with its own landing page directive, although much of its material may be found elsewhere. The Bureau of Industry and Security at Commerce has a "Don't Let this Happen to You" guidance that a lot of agencies would no doubt like to emulate.
- Salute and prize for the best flip-off page goes to NASA, with its "404 The cosmic object you are looking for has disappeared beyond the event horizon." Runner up is the Peace Corps’ "Not all who wander are lost …but we can’t find the page you were looking for." Granted, what the Peace Corps does may not be what is regarded as regulation, but if the National Endowment for the Arts and the National Endowment for the Humanities can each supply an official guidance portal, and incredibly, they do, then anyone can.
- Just as regulations need better classification among economic, health/safety, environmental , social, social engineering, and more, there is a need better classification of guidance documents, and instruction on what is allowable. Not every agency here classifies press releases as guidance, but some (Railroad Retirement Board) do. Congress has much grappling to do with the administrative state that is beyond our scope here, yet such considerations affect everything about an executive branch-driven portal.
- Important criteria not a part of the portals that need to be made strenuously so in a new executive order include a declaration of economic/cost significance, an indication of whether or not OMB/OIRA review of each guidance occurred, and provisions for guidance intended to streamline. An observer cannot readily determine economic significance of guidance documents despite the instructions in the current iteration, an exception being filters on the Department of Labor portal to isolate that costlier strata of rules. Yet even at Labor, only one document out of 7,494 was deemed significant. By reference, however imperfect, among the Shining Light report’s 13,000 documents we learned that: 536 overall were deemed significant; 328 underwent OIRA review, and 189 were compliant with the Congressional Review Act (technically rendering all the noncompliant rest invalid). This deep level of detail and more needs to be implemented, via coordination with the April 2019 Russell Vought OMB memo on guidance compliance with CRA and other steps. Even now, if guidance documents were not submitted to Congress and GAO, they are arguably invalid even if they are listed in the new "portal."
- There will always be ambiguity. The DoT’s compliant Pipelines (PHMSA) page nonetheless includes separate links to other relevant guidance for whatever reason not included in the portal. Conversely, the Council of the Inspectors General on Integrity and Efficiency proclaim "Inclusion of a document on this page does not necessarily mean that the document is a ‘Guidance document’ as defined in Executive Order 13891."
With those somewhat random observations, the next phase will be the administration’s response to what agencies have done, or not done, so far. My own hope is that the interval between now and the final summertime inventory brings strengthening measures to crack down on independent agencies, to insist upon CRA compliance and present data regarding that, and to better categorize guidance by type and by significance. All this should be done in anticipation of Congress acting on guidance via measures such as the Guidance Out of Darkness Act, since the proper aim is not mere administrative state reform but restoration of Article I of the Constitution.