In a leap forward for governmental disclosure and accountability, federal agencies late last year were directed to scrub their guidance documents and post online those that they retain (E.O. 13,891, “Promoting the Rule of Law through Improved Agency Guidance Documents”)
Not that they’re easy to decipher (that’s what courts are for, one supposes) federal statutes (U.S. Code) and regulations in the Code of Federal Regulations are easy to locate online. This has never been the case, however, for the thousands of guidance documents, notices, bulletins, circulars, memoranda — and the list goes on. Agencies use sub-regulatory guidance to inform the public but sometimes also, according to the Administrative Conference of the United States, inappropriately leverage it to influence policy and behavior.
President Donald Trump’s order and a subsequent directive from White House Office of Management and Budget Director Russell T. Vought together require agencies to create “a single, searchable, indexed database that contains or links to all guidance documents in effect” to be located at www.[agencyname].gov/guidance.
How did they do? Well, compliance extensions issued to some major departments and agencies in 2020 have now lapsed, so we have a bit of an idea. I go into great detail that I won’t repeat here in this “one-stop” roundup post regarding this very worthwhile federal “exercise in utility.”COMPETITIVE ENTERPRISE INSTITUTEExecutive Order 13,891 Sub-Regulatory Guidance Document Portal Tops 70,000 Entries
Over 73,000 documents have been retained by agencies, but there remains a great, vast number of unaccounted-for guidance documents that serve to keep the regulatory dark matter character of guidance operative particularly for independent agencies. The latter should have been more explicitly targeted in several recent executive actions. At first pass, though, whether or not executive agencies’ counts are accurate is less an issue than the fact that if guidance is not listed, it’s null and void (although that can create problems if safe harbors are not provided to members of the public with nothing else to rely on). Going forward, I’ll keep the tallies periodically updated on this (https://bit.ly/2TfWzZ2) Google GOOGL +0.9% Sheet as well as linked atop http://www.tenthousandcommandments.com/. (A jpg image of the table is pasted at bottom, but you’ll need the live links to drill down.)
There exists considerable potential for activists, progressives and resistant agencies to undermine the new guidance portal project. What matters now will be the administration’s response to agencies’ progress or lack of it, and further commandments to them in lieu of but in anticipation of Congress eventually acting on the misuse or abuse of these sub-regulatory policy documents.
During the course of 2020, there was increasingly been less outright non-compliance with E.O. 13,891, visible in a increasing tally. But with today’s administrative state having more in common with “Anonymous” and former Labor Secretary Robert Reich’s “resistance agenda,” agencies may be biding time until there’s a new head of the executive branch. So there needs to be decisive reaffirmation and strengthening of the guidance order by the president.NYTIMESOpinion | I Am Part of the Resistance Inside the Trump Administration
The guidance portal effort and related transparency and fairness and regulatory relief orders have the potential to permanently change the operation of the administrative state and constitute a legacy for Trump whether or not he wins reelection, much like the cost-benefit provisions (such as they are) of E.O. 12,291 can legitimately be deemed a Reagan legacy. That matters because the regulatory state matters at least as much as spending.
To realize that goal, there are important reaffirmation and audit criteria not yet part of the guidance portal project that need to be explicitly incorporated. To that end, some proposed executive actions that Trump should apply to existing and future guidance follow:
(1) A crackdown on independent agencies to bring them into the regulatory oversight regime to which executive agencies are subject at OMB, including the new guidance document portals, is needed. It is the case that some independent agencies have made valiant efforts to adhere to E.O. 13,891 already, as detailed in the one-stop roundup and visible in the table at bottom. The president should salute them and inquire into the others.
(2) All the portals are separate and not compiled in one location (apart from my unofficial one topping out as of September 2020 at 73,000) such that a total for the regulatory enterprise is made available to the public and policymakers. Therefore a new or expanded executive order should also institute a single, one-stop guidance portal compiling all these agency sub-portals. Numbering by agencies remains complicated, erratic, and even non-existent, and needs to be clarified with consistent archive-worthy global numerical unique-identifier classifications and centralization somewhere (perhaps at a location like regulations.gov).
(3) E.O. 13,891’s criteria for agencies’ portal elements consist of a Title, a Number, a Short Description, the Date Posted and a Link to the guidance. These should be expanded upon with fields to indicate (1) whether or not the guidance was submitted to OMB for review, and (2) whether or not the guidance is “significant” or “economically significant.” Significance will also impinge on whether or not public notice and comment come into play as it does for ordinary agency rules and regulations, so agencies may resist the classification.
(4) Relatedly, cost estimates also should be included although there are grave problems with costing-out regulation (which in part explains its appeal as a policy tool compared to spending). Even after E.O. 13,981, an observer cannot readily determine the economic heft of guidance documents, one notable exception being filters on the Department of Labor portal to isolate that costlier strata of rules. Yet, even at Labor, only four documents out of 8,483 were deemed significant, which is implausible.
While OMB does issue an annual assessment report to Congress on benefits and costs of some regulations in a limited respect, there exists no genuine net-benefit pursuit adopting a wider perspective than that of each agency’s self-applied lipstick in isolation. On top of that absence of clarity, regulatory dark matter like agency memoranda, guidance documents, bulletins, circulars, and manuals do not appear in the annual cost reports, nor in the twice yearly Unified Agenda of agencies’ regulatory priorities. All that should change since guidance plays such an outsized, extra-constitutional role in governance today. We need to keep relentless tabs on the inclusion of what had heretofore been off the books as we pursue more fundamental Article I challenges to administrative state rule.
(5) As reiterated in an important April 2019 OMB memo to executive agencies by the aforementioned Russell Vought called “Guidance on Compliance with the Congressional Review Act,” not just regulations but also guidance must be submitted to the Government Accountability Office and to both houses of Congress in order to be considered in effect. While such memoranda and Trump’s executive orders themselves are typically addressed to executive agencies only, the CRA applies to independent agencies, too. A quick fix here is to require a checkbox or field certifying for each guidance document that it has been properly vetted-by-submission. Though a year and a half has elapsed since Vought’s memorandum, we still really have no handle on the level of compliance. That needs to change with a Trump reaffirmation that adherence is expected. Since the CRA gives Congress an opportunity to reject agency actions or (for better or worse) signal its deference, it is one of the more important reaffirmations of Article I in recent generations . The important point here is that, even if guidance documents are listed in the new portals, they are nonetheless invalid (or not “in effect”) if they were not previously submitted to Congress and the Government Accountability Office. Therefore it is vital to determine that guidance being relied upon has been properly filed, and to ensure that all future guidance is as well. Like everything else suggested here, this compliance information can be conveniently contained in the portals. MORE FROM FORBESWhat Works And What Doesn’t In OMB’s New Guidance To Federal Agencies On Regulatory OversightBy Clyde Wayne Crews Jr.
Everyone, presumably, sees disclosure as a good thing, and at least gives bipartisan lip service to it. There has been considerable progress on regulatory liberalization and transparency with recent executive actions, and that can be built upon for the public good and democratic accountability. The foundation for the new guidance portals needs to be rock solid, though, and that requires adding some concrete to them now.