Regulatory guidance documents are often issued by federal agencies in addition to their rules, but the former are not subject to the same public process as rules, which are required to be shared with the public for comments and input prior to finalization. As regulatory guidance documents include vital information for businesses to know for compliance reasons, and Americans to know for transparency purposes, they should at least be posted in a central and accessible location.
Agencies often use regulatory guidance documents to circumvent, outside of the watchful eye of the public, the restrictions put on the bureaucracy by Congress. Not only this is not a transparent practice, but it is also an intentionally deceptive practice by agencies to exceed their afforded power and impose additional regulations without facing backlash or being held accountable. It is unfair to businesses and to the American public to be kept in the dark on what bureaucrats are doing behind closed doors.
The GOOD Act would require that all new agency guidance documents be published on the agency website the day of their issuance, that all existing guidance documents be published on the agency website within 180 days of enactment, and that all rescinded guidance documents remain on the agency website with an indication of and date of rescission.
President Biden’s decision to rescind several of former President Trump’s Executive Orders that promoted transparency in the regulatory and guidance document process, like EO 13891, makes passage of the GOOD Act by Congress all the more important.
As Sen. Johnson said recently following President Biden’s recent revocation of Executive Order 13891, which was modeled after the GOOD Act, “The purpose of the executive order and the GOOD Act is to promote transparency and ensure that Americans affected by Federal agency guidance know what those guidance documents are so they can more easily comply with them. This policy addresses real problems with the growing administrative state that affect both everyday Americans and other regulated entities, like states and local governments. It is only fair that people, businesses and local governments know what is required of them.”
Since it is clear that the Biden administration is fighting against transparency measures while simultaneously ramping up its regulatory activity, it is more necessary than ever for Congress to exercise oversight of the executive branch to ensure that its policies do not run counter to law.
For these reasons, I urge you to contact your representative and senators and ask them to cosponsor the Guidance Out Of Darkness (GOOD) Act, H.R. 1605 and S. 628.