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An Inventory of Federal Agency Guidance Documents

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Is that an exciting click-bait title or what? It gets even better though.

Federal regulations’ hundreds of billions in costs and burdens are a familiar topic. They remain a major component of the White House economic agenda.

But beyond ordinary red tape, federal agency proclamations like guidance documents, memoranda, notices and other allegedly sub-regulatory decrees have been getting more attention. Such federal agency "clarifications" and edicts are not supposed to be legally binding on the public, so feel free to ignore them. Wait, you didn't hear that from me.

Congress has taken note, for example with prominent hearings on disclosure in the federal regulatory process. Most concretely, the House Oversight and Government Reform Committee, chaired by Rep. Trey Gowdy (R-S.C.) released a March 2018 report, Shining Light on Regulatory Dark Matter.

This survey presents the results of a query directed at 46 executive and independent agencies for "a list of all guidance documents issued" since January 2008, with detail on whether they were "signficant" (that is, costly); in compliance with certain formal disclosure and review requirements that apply to ordinary notice-and-comment regulation; and other criteria (p. 8).

Twenty-seven agencies gave full responses (including two claiming no guidance documents; eleven gave partial responses, eight blew off the Committee.

Capturing a work-in-process as far as agencies' disclosure of their guidance, agencies on the whole have issued over 13,000 guidance documents since 2008, with 536 of these acknowledged as "significant guidance documents."

When a federal regulation is considered “significant,” that generally but not always means a cost of $100 million annually. Guidance sometimes gets similarly characterized.

Some executive (not independent) agencies comply with a 2007 Office of Management and Budget memo from then-Director Rob Portman on “Good Guidance Principles,” and were it not for that, the committee may have received very little. A George W. Bush executive order of that era (E.O. 13422) had even subjected significant guidance to Office of Management and Budget review, which persists under Trump. Review had even persisted to some extent under Obama, whose OMB Director Peter Orszag issued a memo to “clarify” that “documents remain subject to OIRA’s [the Office of Information and Regulatory Affairs] review under [longstanding Clinton] Executive Order 12866.”

Despite a gargantuan 3,574-page appendix, we still don’t even know what we don’t know about regulatory guidance. For example, of the 536 "significant guidance documents" in Shining Light of Regulatory Dark Matter, just 328 were submitted for OIRA review. The Shining Light report also found that only 189 of over 13,000 guidance documents were submitted to Congress and the Government Accountability Office, as required by the Congressional Review Act .

This results signify a legitimate crisis of governance that will require a more foundational overhaul of the "administrative state."

The best short-term fix? U.S. Sen. Ron Johnson (R-Wisconsin), chairman of the Senate Homeland Security and Governmental Affairs Committee, introduced the GOOD Act (S. 2296), which stands for "Guidance Out of Darkness," to require agencies to prominently post their guidance documents online (see Johnson's statement). Rep. Mark Walker (R-N.C.) introduced the House companion version (H.R. 4809; see Walker's statement).

Plainly enough, "On the date on which an agency issues a guidance document, the agency shall publish the guidance document on the Internet website of the agency" in a centralized location.

Both versions of GOOD, in the definition of guidance, encompass:

(i) a memorandum;
(ii) a notice;
(iii) a bulletin;
(iv) a directive;
(v) a news release;
(vi) a letter; and
(vii) a blog post.

Both versions have been approved in committee, and are ready for floor action.

The nearby chart “Significant Guidance Documents In Effect: A Partial Inventory,” is derived from my report "Mapping Washington's Lawlessness: An Inventory of Regulatory Dark Matter." It depicts a work-in-progress tally of significant guidance documents based largely upon scattered executive department and agency websites, that legislation like the GOOD Act would make less scattered. (I maintain a live version of this chart with updates, along with the links to the specific agency websites containing the guidance that do not appear in the chart here).

This compilation's findings are in the same ballpark as the Government Oversight committee's tally of "significant" guidance (among differences are that mine leaves out independent agencies, and isn't necessarily restricted to a 2008 starting gun). There are 608 significant guidances in total in this compilation as of March 2018, based upon the extent they maintain public web pages per the OMB directive. The Environmental Protection Agency's 185 significant guidance documents dominate the tally. Many agencies haven't updated guidance in quite a while.

Note also the "zeros" for some agencies;  it is worth giving props to agencies that, even when they do not have guidance to report, nonetheless maintain a landing-page for it, just in case. They're being GOOD-hearted.

Significant Guidance Documents In Effect: A Partial Inventory of Regulatory Dark Matter

Executive Departments and Agencies, March 2018

(Full chart and updates, with links to agency sites, available at www.tenthousandcommandments.com under link called Regulatory Dark Matter: Significant Guidance Documents, By Agency”)

Beyond this roundup, the reporting of independent agency guidance, as well as of sub-significant guidances numbering in the thousands, could inform several Ph.D. dissertations. However it is worth noting that the Equal Employment Opportunity Commission, an independent agency, explicitly invokes the 2007 OMB memo and devotes a web page to guidance that it maintains meets the "significance" criteria of the OMB. This behavior too is an example of what the GOOD Act can promote and spotlight. The massive guidance document trove of the Internal Revenue Service, despite a purported lack of "economic significance," is another example that makes the case for the GOOD Act's reining in of regulatory complexity

With or without the passage of the GOOD Act, President Trump should issue an executive order exclusively addressing guidance. This is needed to tie together the threads of his disparate regulatory reform executive actions, as well as to elevate guidance to the level of rules in terms of scrutiny.

After that, both rules and guidance need to be elevated by comprehensive congressional regulatory reform to the level of scrutiny afforded legislation itself. The administrative state has over-administered, as the House Oversight Committee's Shining Light report makes clear.

Originally published at Forbes.