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Guiding Principle: |
State governments should increase transparency into federal guidance documents received by state agencies. The federal government is unlikely to continually require proactive disclosure of such sub-regulatory guidance, so states should take the lead in ensuring openness into what frequently borders on “secret law.” |
The Issue
Federal agencies frequently issue guidance documents, including memoranda, bulletins, and letters that interpret and clarify both statutes and regulations, as well as set both official agency policy on important matters. These documents, colloquially dubbed “regulatory dark matter,” greatly outnumber official regulations published in the Federal Register. And, unlike regulations, guidance documents are not usually subject to the procedural requirements of the Administrative Procedure Act. A guidance document, for example, is not normally subject to a period of public notice-and-comment as with informal rulemaking.
Though guidance documents are ostensibly not legally binding on regulated parties, in practice they often carry the force of law and contribute to the overregulation that defines the modern federal administrative state. Many of these guidance documents are sent to states to express the federal government’s views on the state’s obligations and programs they co-administer. Essentially, arcane federal guidance documents often affect state laws and policies.
The number of guidance documents currently in force (and, for that matter, the total number ever issued) is multitudinous, though the exact number is unknown. In short, there is a complete lack of transparency vital to the functioning of a free society when not even an issuing agency—much less the regulated public—knows where a particular guidance document is housed, or whether it still reflects an agency’s current legal position.
In 2019, the Trump Administration issued Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” The order defined a “guidance document” to include:
[A]ny agency statement of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation.
EO 13891 required, among other things, that agencies establish processes and procedures for issuing guidance documents and, most importantly for the public, proactively disclosing all guidance documents in effect through an online portal. Unfortunately, President Biden rescinded EO 13891 shortly after taking office, thus eliminating any hope that agencies would maintain comprehensive online guidance databases. Several federal agencies continue to publish (or at least have not removed) guidance documents from their websites:
Many other federal agencies, like the Department of Commerce, have deleted their collections of guidance documents.
And some agencies never made the required web portals.
Policy Recommendation
State governments should increase transparency into federal guidance documents, and their effect on state residents and businesses, by proactively publishing all federal guidance that their state agencies received and that are currently in effect. These documents should be housed either in a centralized, state-wide database, or through agency portals that include, at a minimum:
- A single, searchable, indexed database.
- A uniform URL structure.
- For example, Georgia’s Department of Human Services would be: https://dhs.georgia.gov/guidance