Once-Promising Guidance Document Disclosures Are Stagnating Under Biden: Inventory and Observations

Photo Credit: Getty

Laws passed by Congress are archived by subject matter in the U.S. Code. The rules and regulations that incubate in the daily Federal Register are ultimately cataloged in a Code of Federal Regulations now exceeding 186,000 pages.

The numbers of “sub-regulatory” guidance documents, however, swamp both laws and regulations. Guidance documents can include agency memoranda, notices, bulletins, directives, news releases, letters, blog posts, no-action letters, and even speeches by agency officials. The “Guidance Out of Darkness Act” (GOOD Act), which would require agencies to disclose such proclamations on website portals, was recently reported out of the House Committee on Oversight and Accountability on a unanimous 41-0 vote.

A Donald Trump executive order had already required pruning of and a portal-style disclosure of guidance documents. Unfortunately, that was one among several commonsense regulatory streamlining and accountability projects that Joe Biden revoked. Biden even took the extreme step of directing agencies write new rules to repeal the guidance disclosure and accountability citizen-protection rules they had written under Trump.

Before Trump, little existed in the way of consolidated guidance document archives. Prior to his E.O., the House Oversight Committee had managed to persuade reluctant agencies to cough up 13,000 documents in a report called Shining Light on Regulatory Dark Matter.

The Trump portals (kicked off in late 2019) enabled a semi-“countable” corpus of 73,000 documents by September 2020. That was a few months before he left office and the dismantling ensued.

Surprisingly, though (shhh, don’t tell the White House) the “remnant” portals still accessible vastly surpass the volumes of disclosure available before Trump. One could point to over 107,000 in summer 2022 (a year ago; and one year into the Biden term).

While deterioration has occurred since last year, today over 103,642 documents remain accessible via a compilation of links maintained by your humble correspondent. Highlights among this informal Portal’s 100,000-plus were noted earlier elsewhere; and going forward, we plan to maintain a “Shadow Box” showcasing prominent examples of what we affectionately refer to as regulatory dark matter.

The bad news is that locating guidance is a more contorted process now that Trump’s straightforward www.[agencyname].gov/guidance locale is often abandoned. Apart from some seemingly healthy exceptions, few agencies’ self-disclosed inventories can be regarded as confidently updated.

Therefore, until codified requirements to the contrary emerge from the likes of the GOOD Act and other reforms, the presumption must be that agency disclosures intact now are precarious ones and prone to vanish at any moment.

We herein renew our call upon Congress to bring order to a regulatory and guidance document chaos and replace the unofficial Portal we discuss here. This task is made more urgent given the ambitious “whole-of-government” regulatory agenda Biden is inclined to pursue even without the approval of Congress.

With Biden, we find agencies that ought not exist in the first place not merely swimming in their own suspect lanes, but colluding across the executive branch on progressive-wing campaigns like “equity action,” competition policy, “climate crisis,” a costly and compulsory green energy transition, and environmental justice, all facilitated in large part by the now-extraordinary procurement and contracting heft of the federal government. Even artificial intelligence is getting the top-down, unified-front treatment in the wake of Biden’s “bill of rights” and “risk management framework” (among other responses see Treasury’s “Consistency Plan”) and the pressuring of government contractors to adopt “blueprints” cartelizing the sector.

Such hierarchical ambitions readily lend themselves to rule by guidance document rather than public notice-and-comment rulemaking. As such, guidance documents need to be cross-referenceable by topic, not just by agency as the GOOD Act specifies.

Notably, amid the precarious grappling with guidance documents, Biden is spearheading a malignant revamp of so-called “Circular A-4” regulatory review procedures. Despite its overarching and comprehensive character, the draft directive largely ignores ascendant rule-by-guidance altogether.

Given the foregoing, some observations on remnant portals follow, with the aim of informing policymakers who may choose to address the rule-by-guidance phenomenon. Presented in no particular order, the observations reflect the disarray and uncertainty that characterize the realm of guidance. In future writeups, we may drill down into a few departments and agencies as well as present recommendations going beyond proposals already offered, such as the institution of a “Code”-style one-stop portal for all departments and agencies, and “species/genus” classifications that enable restraint rather than expansion of the administrative state. Bullets follow:

  • The straightforward Trump-specified www.[agencyname].gov/guidance is sometimes still relevatory, but increasingly opens to unadorned “404 page-not-found” dead links. That doesn’t mean these agencies don’t have guidance; they may have a lot. One simply may need to unnecessarily poke around for it.
  • Just because an agency eliminated a Trump-era “final rule on guidance procedures” at Biden’s command (go here for detail) does not necessarily mean the agency has eliminated or obscured its guidance altogether (yet).
  • Many agencies’ pages are largely frozen in 2023 at where they were in 2022 or even 2020 in terms of guidance counts. Some though, have disclosed additional guidance under Biden, and this should be recognized and encouraged whether or not it happens owing to “consumer friendliness.”
  • The best compilations provide helpful tables, dates, classification numbers and search boxes that should inform future legislated disclosure requirements.
  • Valuable also is the unexplored the fact that some agencies solicit public comments on guidance in the Federal Register, effectively rendering such guidance a normal rule.
  • Recognizing the aborted character of the Trump portals it remains the case that many disclosed documents open to still-other documents containing links like sub-guidance, directories, catalogs, manuals, pdfs and more. While such presentations constitute a non-optimal disarray, they should be encouraged in lieu of the abandonment of disclosure altogether that poses a threat now. If nothing else, artificial intelligence may be able to increasingly make sense of and summarize the disorder if harmonizing legislation fails to materialize in time.
  • Including guidance tallies that remain “indeterminate” (a frequent designation on the unofficial Portal) would vastly increase the total beyond our 103,000 snapshot. Indeterminacy prevailed even under Trump, such as agencies providing a compliant landing page whose contents nonetheless defied tabulation. After all, some agencies stubbornly remained non-compliant altogether with no guidance page provided at all.
  • Just because some agencies’ guidance tallies are categorized “indeterminate” doesn’t mean that others, even with numerical reckonings, are not themselves ultimately indeterminate in a more cosmic sense. There is no reason to believe that all guidance a given agency has may have made its way to websites.
  • “Indeterminate” does not necessarily mean that it is impossible for someone to dig more deeply and present a cardinal number, or that a tentative figure of “at least X” 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). In fact, the safest presumption is that for all agencies, the actual quantity of guidance is indeterminate. There can be arbitrariness in what is deemed guidance where agencies provide no portal; and that which does get included in a portal may also be in part arbitrary. Call it the Incompleteness Theorem of Guidance. 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.
  • It is not always apparent when guidance applies to the agency itself or to the regulated, and the lines can blur. Some agencies do not include “internal” guidance in their portals, others do. The Interior Department’s Bureau of Reclamation (whose guidance tally is indeterminate) affirms that: “Reclamation has an extensive library of internal guidance that details Reclamation’s internal procedures, including staff and office responsibilities. While these internal guidance documents are not applicable to the definition of guidance provided in [Trump’s order], they are available and transparent to the public.”
  • To expand upon “Incompleteness,” some agencies depict guidance going back (only) to the 1990s; some go back further. The bottom line, though, is that the administrative state is a century old with early guidance misty, ephemeral, unclassified and untabulated. A similar phenomenon exists with executive orders and even agency rules un-numbered in their early decades.
  • There are a number of “Tombstone” landing pages that still refer to the revoked Trump guidance directive (E.O. 13,891) as if it were still operative. As one example (and reflecting the debated status of some documents), the tombstone page remaining at Council of the Inspectors General on Integrity and Efficiency proclaims that “Inclusion of a document on this page does not necessarily mean that the document is a ‘Guidance document’ as defined in Executive Order 13891.”
  • Agencies altogether non-compliant with the Trump executive order and designated in the Portal with an “x” tended to remain such under Biden.
  • From the beginning, some agencies with a “Trump-compliant” landing page nonetheless failed to list any guidance; conversely, some agencies that failed to reference the Trump framing as his order required them to do still linked some guidance. For the record (and future codification) 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.” The latter restraint on guidance pre-dates Trump (and is even recognized to some extent in the Garland Department of Justice). At the moment, a significant number of landing pages make reference to the technically non-binding nature of guidance, although the concern remains that intimidated members of the public wouldn’t dare cross an agency with enforcement or permitting powers, and as such, guidance may still be abused. Helpfully, the clarification that guidance lacks the “force and effect” of law is central to the 118th Congress’s proposed Guidance Clarity Act.
  • A guidance document cannot simply mean “any agency publication,” but what ultimately counts will need further contemplation by Congress. The Bureau of Economic Analysis (BEA) includes “PowerPoint slides,” and the Federal Transit Administration “Recorded presentations.” There are documents that should arguably be added to the portals that have not been, and documents incorporated that perhaps ought not to have been. Even those bodies with compliant pages and impressive databases may still have classes of documents that do not appear but should. It is easy to inflate or deflate the amount of guidance, and easy to disagree as to whether one document (such as a manual or set of FAQs) is a single guidance document or instead a set of them.
  • The stipulations contained within myriad taxpayer-funded grant programs increasingly belong in a guidance document compilation as the federal government dominates research, science funding, pursues energy transformations and engages in the promotion of certain moralities and worldviews. In today’s America, the hundreds of billions in contracting and procurement outlays, grants-in-aid, subsidies and public/private “partnerships” are inherently hyper-regulatory. Some agencies do already list grant programs in their guidance compilations, which in a limited government setting would be incongruous. But in our big-government setting it is necessary for policymakers to to appreciate the “whole-of-government” pressures brought to bear on grant recipients. USDA grant programs, the dozen-plus kinds of grants from the Institute of Museum and Library Services, or Energy Department loan programs are not obviously representative of the kind of sub-regulatory decrees that irk industry, but they nonetheless are sometimes contained guidance compilations. In any event, the non-benign materiality and import of grants deserve more scrutiny.
  • An observer cannot readily determine the “economic significance” of guidance documents, a phrase generally referring to economic effects of at least $100 million annually. This category is in brand-new turmoil thanks to the aforementioned Circular A-4 (and Biden’s E.O. 14,094 on “Modernizing Regulatory Review” that triggered the re-write). Amid today’s indeterminacy, some agencies in our compilation claim to adhere to a Bush-era directive that emphasizes significant guidance alone, while some ostensibly report all of their guidance. This is another key area in need of clarity.
  • Guidance documents that agencies omitted from their “Trump” portals was to become void, but given the project’s formal termination by Biden, an inquiry into the status of effective and non-effective guidance is needed. Some agencies have maintained lists of what they rescinded (for example, AbilityOne thus far maintains “policy archives’ allowing one to see guidance that is “superceded”), but the status of guidance voided by having not met the Trump executive order’s deadline before Biden arrived on the scene is not entirely clear.
  • While Trump’s E.O. 13,891 did not encompass independent agencies, a prior OMB directive on compliance with the Congressional Review Act did so. While independent agencies unsurprisingly remain saturated with the “x’s” marking non-disclosure, they comprise some of the most consequential regulatory bodies, governing the likes of financial and competition policies. Despite their “independence,” bodies like the Federal Trade Commission and Securities and Exchange Commission are on board with Biden’s epic “whole-of-government” campaigns imposing progressive social and economic policy.
  • On the stagnation referenced in the title, many guidance document counts have barely budged. For example, the Department of Defense tally is unchanged and the Departments of Energy and Homeland Security nearly so. Slight fluctuations between this year and last are what we generally see along with stasis and dormancy. Even the Department of Health and Human Services, the “king” of disclosure with its documents comprising nearly half our Portal’s total seems flaccid apart from additions from the FDA and from CMMS seemingly filling in some back inventory. 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.
  • Some agencies deleted what they had formerly disclosed, such as the Food and Nutrition Service at USDA; others obscured material, such as EPA’s rendering of its detailed counts from many sub-offices indeterminate. The Postal Regulatory Commission did likewise.
  • “Praiseworthy” for our purposes are the few examples of the once-indeterminate rendered somewhat easier to grasp, such as the Education Department’s presentation. At the Housing and Urban Development one can finally pick out more guidance documents this year; ditto the independent Consumer Product Safety Commission, AbilityOne, the Federal Deposit Insurance Corporation, the Federal Labor Relations Authority, and the Railroad Retirement Board. The Department of Justice disclosed some fresh guidance, particularly from the Bureau of Alcohol, Tobacco, Firearms and Explosives, Civil Rights and the Drug Enforcement Administration. The Department of Labor added 500 documents, while simultaneously noting the rescission of Trump’s executive order 13891. The Department of Transportation tally has increased over the year from 19,220 to 22,509. So, while some appear to be disclosing more, we must remain cognizant of the precarious nature of all of this without legislative action.

In conclusion, let us not lose sight of the big picture takeaway that many guidance portals are still there, despite Biden’s renunciation of the Trump project and the deterioration in disclosure. The lesson is that improvements in disclosure can happen head spinningly fast, but so can decay.

The optimistic take is that Trump set something set in motion that cannot be entirely repealed. Much of the disclosure we’re getting now is not that of a Trump-compliant page, yet it comprises revelations unavailable before his tenure. Reformers should build upon what is clearly progress and a profound lesson in the feasibility of transparency and disclosure, however resisted by a bureaucracy unlikely to embrace it with love.

Read the full article on Forbes.