^®: CRE Regulatory Action of the Week

Corps of Engineers to Cease Publication of
Regulatory Guidance Letters In the Federal Register
A New Way to Save Money?

The U.S. Army Corps of Engineers announced that they will cease publishing Regulatory Guidance Letters in the Federal Register. The Federal Register announcement stated that "to insure widest dissemination while reducing costs to the Federal Government" the RGLs would be published on their web site at the convenient address: https://www.usace.army.mil/inet/functions/cw/cecwo/reg.

To locate Regulatory Guidance Letters on the Corps' Regulatory Program website, click on Statutory, Administrative and Judicial Materials, scroll down and click on Administrative Materials, scroll down to Corps of Engineers Administrative Materials and click on Current Regulatory Guidance Letters. According to the site, the most recent current RGL is from 1996. There site also has an Archives section which is intended for Expired Regulatory Guidance Letters among other materials. However, the Expired Regulatory Guidance Letters is currently Under Construction and contains no material.

It should be noted that although agencies do pay a modest publishing fee to the Federal Register for Notices and other documents, it is quite small compared to the agency's overall budget -- particularly when that agency is the Army Corps of Engineers.

To assist the Corps in their mission to insure the widest dissemination of regulatory information, the CRE will maintain the link to Corps regulatory page and directly to the Current Regulatory Guidance Letters both in this article and in our list of Federal links.

Regulatory Guidance Letters are documents which describe Corps regulatory policy on specific issues. For example, in what is apparently the last batch of RGLs to be published in the Federal Register, the Corps codifies policy on topics such as "individual permit flexibility for small landowners." Although the RGLs "are intended only to interpret or clarify" existing policy, the Notice notes that the letters "do provide mandatory guidance to Corps district offices" [emphasis added] Furthermore, as the Notice explains, the Corps incorporates most of the guidance into the regulations themselves when they are revised. Thus, the RGLs are, in many regards, the functional equivalent of regulations.

Both the RGLs and the Corps decision to cease publishing them in the Federal Register raises several important questions:

1. Does the dollar savings from ceasing Federal Register publication of the RGLs justify the diminished public access to the regulatory information in the documents?
2. Is the Corps establishing a precedent for other regulatory agencies to cease Federal Register publication of guidance documents?
3. Does the Corps extensive use of RGLs constitute Regulation by Guidance?

For the complete text of the Corps' announcement, see: click here.

Please click below to submit comments to the CRE on the Corps decision to terminate Federal Register publication of Regulatory Guidance Letters.

Corps of Engineers Decision to Cease Publication of RGLs: Interactive Public Docket

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