Recently we looked at some prominent recent examples of federal agency guidance—costly to-dos for the private sector. Today I wanted to say just a quick a word about the proliferation of guidance overall.
Rather than bothering with the burdensome rule-making process, they use faster and more flexible means of imposing mandates. To avoid running afoul of the letter of the Administrative Procedure Act, these mandates are often couched in tentative, temporary or voluntary terms. Regardless of the language and the format, the effect is the same for regulated entities. The agency suggests that you do something—even if it says that it might suggest something different later—and you do it.
Guidance is growing and duplicitous. Executive branch agencies sometimes highlight “significant guidance,” a nod toward compliance with a 2007 OMB memo on “Good Guidance Principles,” but usually not (here’s my “quick and dirty” inventory of what exists). Otherwise, guidance documents, memos, bulletins, circulars, and more can take up considerable space in the Federal Register and on agency websites.
Agencies caveat their guidance to deflect punishment for abuse. The “contains nonbinding recommendations” disclaimer permeating Food and Drug Administration (FDA) guidance on “Distributing Scientific and Medical Publications on Unapproved New Uses—Recommended Practices” is typical.
No complete survey exists apart from my preliminary one as far as I can tell, but the proposition that “the body of guidance documents (or nonlegislative rules) is growing, both in volume and in importance” seems ironclad. The volume may even dwarf that of rulemaking (something noted long ago, in places like Peter L. Strauss, “The Rulemaking Continuum,” Duke Law Journal, 1463, 1469. 1992).
Where acknowledged “significant” guidance documents in effect number in the hundreds, agency “public notices” reach thousands annually (at least 24,000 annually, in fact). Most are trivial, granted; but finding what’s not is a major task.
Given the flow of guidance, an important but ignored fact is that the Congressional Review Act’s “resolution of disapproval” process by which Congress can reject agency rules also applies to guidance, as made plain in the legislative history. While most material submitted to the Comptroller General per the CRA’s requirement for reporting rules to both Congress and the Government Accountability Office has been ordinary notice-and-comment regulation, the story doesn’t end there. As Morton Rosenberg described even back in 1999:
It is likely that virtually all the 15,000-plus non-major rules thus far reported to the [Comptroller General] have been either notice-and-comment rules or agency documents required to be published in the Federal Register. This would mean that perhaps thousands of covered rules have not been submitted for review. Pinning down a concrete number is difficult since such covered documents are rarely, if ever, published in the Federal Register, and thus will come to the attention of committees or members only serendipitously.
Before the 2016 task forces that collectively address executive branch overreach and the role of Congress, Sens. Lamar Alexander and James Lankford queried agencies "about skirting notice and comment laws to create new requirements for American businesses, colleges and universities, and individuals."
But agencies possess and abuse power such as the guidance document process because Congress relinquished lawmaking power to them in the first place. So next time, we’ll cover what Congress should do about regulatory dark matter.