Stomping FROGs: An updated inventory of Biden’s elimination of Trump-era final rules on guidance document procedures
Ever since President Obama unleashed the pen and the phone, federal agency guidance documents and the confusion and abuse surrounding them have been widely covered. Executive appeals and urgent legislative fixes have been detailed in recent years and months.
Like federal spending, regulatory dark matter has intensified following the pandemic-spurred expansion of federal laws and regulations, as well as executive measures such as rent moratoriums and vaccination mandates. Now, just when the passion for the crisis should die down and steps taken to prevent future crisis overreactions, President Biden has embarked on a “whole-of-government campaign of regulation and threat of emergency declarations on the climate crisis.” .
Much of the deployment of societal micromanagement will not work through laws or even regulations, but through directives, executive orders, administrative interpretations, bulletins, letters and the like.
It shouldn’t have happened like this. The moderate set of disclosures and principles in place since 2007 under President George W. Bush were reinforced by Donald Trump’s 2019 Executive Order 13891, “Promoting the Rule of Law through Improved agency orientation.
The Trump order directed agencies to establish one-stop portals for their guidance documents, as well as construct formal notice-and-comment regulations establishing internal guidance policies and practices on which the public could rely on – a final rule on orientation (FROG). By September 2020, I had reviewed agency efforts and compiled a portal of portals with links to over 73,000 documents.
But Biden’s regulatory “modernization” has shredded that and more. Biden’s Executive Order 13992 of January 20, 2021 on the “Revocation of Certain Executive Orders Concerning Federal Regulations, revoked Trump’s EO 13891 and” directed federal agencies to take action to rescind any rules or regulations implementing or applying EO 13891″.
Remnants of guidance document portals remain, however, with tens of thousands of documents still accessible. My new ongoing inventory, which will be detailed in a future post, is over 100,000. Roundups and ongoing snapshots like these are needed as the Biden White House has eliminated the “deregulation” designation for rules and regulations that were implemented under Trump.
The Environmental Protection Agency (EPA), for example, made 9,811 of its guidance documents relatively easy to find, but now those portals have been removed, as can be seen from my mentioned spreadsheet inventory above. The unique portal for each EPA sub-agency now redirects to a page stating, “Sorry, but this webpage does not exist.”
The “regulations.gov” site that the EPA invokes above will not provide the sort of transparency that briefly existed. Other departments and agencies will be just as happy to compel Biden. Hence the current inventories.
In addition to providing a point of reference or anchor for future guidance inventories, I present below (and at https://bit.ly/3J7FQzt) a roundup of agencies that, in response to Trump, did issue a final rule on Guidance. By my count, 32 departments and agencies, including some arm’s-length agencies, have issued final rules establishing guidance practices. However, 21 of these departments and agencies have issued rules rescinding these disclosures. These will be updated as changes occur. (Transparency and fairness in civil enforcement actions are also revoked by agencies, but not counted here.)
The past two years have exposed the shortcomings of attempts to streamline regulation by an executive branch acting alone, as opposed to presidential success in expanding the federal state acting alone. “Acting alone” now too often means unilateral declarations of urgency on this or that “clear and present danger”.
Thus, to counter emergency declarations from overextended executive power, compensatory emergency legislation is needed, ranging from crisis prevention abuse legislation to legislative reform and rollback. of the rule by directives. On binding agencies, we should also demand that Congress hold back, given the torrent of mega-legislation ranging from multiple coronavirus bills to bipartisan infrastructure and “competition” bills. Restriction of regulatory dark matter, executive orders, and abuse of emergency declarations must be our bridge to also restrict overspending and hyper-regulatory law-making.
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