Regulatory dark matter is a serious problem. Agencies are supposed to run new regulations through a formal process which includes publishing a draft version of the rule, a public comment period, and in many cases, cost-benefit analysis. Only after that may a new regulation come into effect. Agencies have learned to dodge this oversight by instead issuing new regulations inside of guidance documents, memoranda, notices, and even press releases. My colleague Wayne Crews coined the term “regulatory dark matter” for these invisible regulations.
It would establish a centralized website, run by the Office of Management and Budget, which would collect all agency guidance documents and other forms of dark matter in one place. Currently, these regulations are scattered across dozens of agency websites. Many are not publicly available at all. Agencies badly need oversight, and the existing rulemaking process is not enough.
Congress is supposed to legislate, yet today most lawmaking is done in executive branch agencies. Congress will pass a little more than 100 bills in an average year, while agencies will issue more than 3,000 regulations through the proper rulemaking process. Dark matter rules add an additional burden on top of this.
The GOOD Act is based on an Executive Order signed early in the Trump administration that required agencies to establish their own guidance document portals to make their dark matter rules easier to see. Most agencies complied, but President Biden rescinded the Executive Order when he took office. Now many of the guidance portals are gone, and agencies are less accountable than ever. The GOOD Act would restore that needed oversight.
For CEI commentary on previous versions of the GOOD Act, see here, here, and here. Wayne Crews’ paper on regulatory dark matter is here.This post is part of an occasional series looking at regulatory reform bills in Congress. See here for a previous post on the REINS Act.