Darklore Depository 2024: A Halloween Inventory Of Federal Agency Guidance Documents

The U.S. Code archives federal laws. The 186,000-page Code of Federal Regulations is where rules from the daily Federal Register are embalmed. As spirits would have it, the Register today hit 86,712 pages, the third-highest annual count of all time—with two months yet to go.

BOO! There’s more. Federal agency guidance documents include agency statements of policy, memoranda, notices, bulletins, advisory opinions, directives, news releases, letters, blog posts, even speeches by agency officials and an array of other potentially frightful proclamations. (Go here for a shadow box featuring some prominent examples.)

Such regulatory dark matter is not reliably cataloged and archived. Since 2020 I’ve compiled an informal inventory of these cryptic chronicles and shadowy scrolls, with the latest spreadsheet unearthing 108,023.

Donald Trump’s Executive Order 13,891 “Promoting the Rule of Law Through Improved Agency Guidance Documents” required public disclosure on agency website portals. Joe Biden revoked E.O. 13,891 before it was fully operational, along with other streamlining including Trump’s public-protections against guidance abuse. This summer the House passed the “Guidance Out of Darkness (GOOD) Act” to codify similar disclosure portals. This awaits Senate action.

Before Trump, guidance disclosure was abysmal. My 2017 “Mapping Washington’s Lawlessness,” sniffed out a few thousand. The House Oversight Committee’s Shining Light on Regulatory Dark Matter report still yielded only 13,000 documents. After Trump’s order, however, I was able to assemble a September 2020 first-cut inventory of 73,000 documents.

While Trump’s straightforward www.[agencyname].gov/guidance landing page no longer applies, some agencies’ continue to self-disclose guidance better than before on remnant ghost portals or other disclosures. In September 2022, one could point to over 107,000 documents; in 2023, over 103,642. Granted, many agencies’ pages are largely frozen in terms of fresh guidance counts and neglected excavation of the old, but the project is alive, as Dr. Frankenstein might say. Halloween takeaways follow.

Zombie Reporting Post-Trump: While many agencies never complied with Trump’s landing page in the first place, the best department agency and sub-agency compilations continue reporting guidance Trump-style with searchable, indexed tables with dates and classification numbers, including helpful declarations like “This Guidance Portal contains XX documents.” Whether agencies use “/guidance” or some more convoluted URL, some reference not Trump but a Bush-era “Bulletin for Agency Good Guidance Practices” that emphasizes significant guidance (examples include the Interior Department’s Office of Surface Mining Reclamation and Enforcement, the Department of Labor, and Treasury). Hard as it might be to admit, the Departments of Transportation (DoT) and Justice provide the best breakdowns by sub-agencies and offices. The Department of Health and Human Services (HHS) used to dominate, but apart from Centers for Medicare & Medicaid Services (CMMS), guidance counts are largely frozen. Some agencies’ reporting covers only the 2000s, while others, like the Federal Highway Administration and the Consumer Product Safety Commission reach back to the 1970s. Honorable mention goes to those reporting guidance even when not technically required by Either E.O. 13891 or the GGPs; compliant independent agencies get a shoutout, in particular.

Tombstones: There are a number of “tombstone” landing pages that still refer to the now-inoperative Trump E.O. 13,891. Trump’s required framing included “a clearly visible note expressing that …. guidance documents [generally] lack the force and effect of law,” and that “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.” Examples include the U.S. Department of Agriculture’s (USDA) Rural Development office; Interior’s Bureau of Ocean Energy Management (BOEM); the Small Business Administration. Even rigid National Park Service, National Archives and Records Administration and National Endowment for the Arts pages refence the Trump order.

Warm Bodies Even in 2024: Decay notwithstanding, that fact that some agencies prominently reported guidance in 2024, four years out from Trump’s directive, is noteworthy. Examples include Commerce Department divisions like Fisheries Management, Habitat Conservation and Restoration; policy letters and other guidance at several Department of Education sub-agencies; HHS’s CMMS (which makes up more than half the department’s total). Other notables sporting 2024 landing-page guidance include Interior’s Bureau of Land Management, Justice, Labor, the Federal Highway Administration, the Consumer Financial Protection Bureau, the Federal Reserve Board, the National Labor Relations Board and the Securities and Exchange Commission.

Mummification Can be Good: Some agencies prominently archive even rescinded, superseded or inactive guidance, rather than simply deleting or obscuring it. This is important for historical purposes and regulatory reform. Examples include the Education Department’s Rehabilitation Services, Interior’s BOEM and BLM, AbilityOne and the Federal Housing Finance Agency.

Decay: Decomposition is prominent, however. Some obedient agencies that once reported at the default “[agency]/guidance” no longer do so there nor anywhere else, such as Animal and Plant Health Inspection Service, where once-observable guidance is obscure even upon seeking it out with crossed fingers the “Laws and Regulations” page that many agencies feature. The Federal Transit Administration (FTA) boasted a detailed “Guidance Center” through 2023 containing hundreds of documents of a dozen types, now vanished. The Environmental Protection Agency is most disappointing of all, having once reported over 9,000 documents, but now reporting none.

The Void of Indeterminacy: We must qualify everything positive noted herein by recognizing that many agency tallies, even those compliant with numerical reckonings, are ultimately indeterminate in a more cosmic sense. “Indeterminate” tallies prevailed even under Trump. If it were possible to quantify all guidance, that could blast our unofficial portal’s tally skyward into a Lovecraftian abyss of unknown horrors.

Many agencies labeled “indeterminate” in fact have a large number of documents without a way to fully isolate and comprehend them (AI may make sense out of the chaos, but allowing its use in our non-limited-government setting presents a host of other problems). An example here is the USDA’s National Institute of Food and Agriculture (NIFA), which had been Trump-compliant in 2020. Many agencies disclosing documents present rabbit holes of links opening to still-other documents containing links like sub-guidance, directories, catalogs, manuals, pdfsand more. At the Department of Housing and Urban Development, “legal guidance and opinions” allow assembling a blob of some 300 documents, but far more is present in the form of indeterminate numbers of Handbook, Letters, Guidebooks, Notices and Bulletins. Conversely, USDA’s Risk Management Agency lists “Handbooks” and Policies” “crop policies,” and “Bulletins and Memos” that seem highly regulatory but get no guidance nod and remain untallied. The DoT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) lists a few hundred guidance documents but has a great deal more such as letters of interpretation numbering over 5,000.

While independent agencies unsurprisingly remain saturated with the “x’s” initially marking non-disclosure, they comprise some of the most consequential regulatory bodies, governing the likes of financial and competition policies. Although of course not bound by guidance executive orders, the aforementioned SEC and FTC (the latter infamous for its recent merger and competition guidelines) are nearly frozen but have ample guidance in play.

Some agencies present no tractable guidance but are unambiguous regulatory players such as Commerce’s National Telecommunications and Information Administration (NTIA) with its rollout of broadband and its “Fact Sheets” on the likes of artificial intelligence and equity. Under NTIA “Publications”—not compiled in our inventory here—one finds 570 items broken down by “FCC Filing,” “Federal Register Notice,” “Other Publication,” and “Report.” As another example, at Commerce’s National Institute of Standards and Technology (NIST), searching the term “Guidance” within “Publications” captures dozens of documents but no ready way to classify them. The Centers for Disease Control and Prevention (CDC) boasts prolific guidance, but bypasses the main HHS portal. The Cybersecurity and Infrastructure Security Agency (CISA) at the Department of Homeland fixates on fully 16 critical infrastructures, “severe and extreme” weather, and “disinformation,” but omits any means of tallying pertinent guidance. The Federal Energy Regulatory Commission surely issues guidance concerning horizontal directional drilling, dam safety and pumped storage and more; the Nuclear Regulatory Commission must have guidance addressing (from its ambit per the NRC website) operability, enforcement, technical matters, decommissioning and more. The implausibility of bodies with regulatory heft such as the Export Import bank, Federal Acquisition Regulations or the Council on Environmental Quality listing no guidance amplifies the void of indeterminacy. All these should provide easy portals.

Indeterminate” can also mean ambiguity in classifying what is and is not guidance. The Office of Government Ethics and the Office of Personnel Management serve as examples here. The latter maintained a tombstone page that disappeared in 2024, but issues directives on the likes of accessibility and diversity, equity and inclusion. Sometimes an inventory can be confounded by an agency’s mixing documents with the aforementioned archival but inactive material. In other cases (such as NIFA) “official documents and guidelines” contain non-regulatory materials such as conference announcements that frustrate taking stock.

“Indeterminate” does not necessarily mean that it is impossible for someone to dig more deeply and present some defensible cardinal number, or that a tentative agency figure of “at least X” far above what I present here could not be derived. Some of a given agency’s guidance documents might be otherwise countable (as I’ve done in earlier settings to jump-start guidance inventories). But a guidance document cannot simply mean “any agency publication,” and it is easy to disagree as to whether one document (such as a manual or set of FAQs) is a single guidance document or instead a plethora of them. Furthermore, there is no reason to believe that all guidance issued by a given agency has made its way to websites at all. In fact, the safest presumption is that for all agencies, the actual quantity of guidance is indeterminate.

Grants’ Tomb: The dispensation of federal dollars is an increasingly powerful regulatory mechanism, both domestically and internationally. In today’s America, the hundreds of billions allocated for contracting and procurement outlays, grants-in-aid, subsidies and public/private “partnerships” that comprise the federal “whole-of-government” Borg are inherently regulatory. The stipulations embedded within the myriad taxpayer-funded grant programs and Notices of Funding Opportunity (such as USDA’s Food and Nutrition Service and Commerce’s Minority Business Development Administration) increasingly belong in any compilation of regulatory dark matter. While the diverse kinds of grants from the Institute of Museum and Library Services or Energy Department loan programs may not immediately seem representative of the sub-regulatory decrees that irk industry, increasingly the malignant materiality and significance of grants deserve more attention. This issue has been exacerbated recently by the Inflation Reduction Act, Infrastructure Investment and Jobs Act, and CHIPS and Science Act as the federal government increasingly steers research agendas, pursues energy transformations and promotes certain moralities and worldviews.

Monster Mash: The cross-agency institutionalization of certain policies, as opposed to standalone agency guidelines, needs to be incorporated into guidance inventories. While not strictly indeterminate, many agencies across the board are issuing policies on artificial intelligence (which is getting the top-down treatment through Biden’s bill of rights and risk management framework), equity action plans, price controls and other questionable competition policies, and more. These have not yet been fully compiled into this inventory but belong there.

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