An Executive Order 13,891 Guidance Document Portal Update: Another Lap to Go

President Donald Trump’s October 9, 2019 Executive Order 13,891 (E.O. 13,891) and a subsequent White House Office of Management directive to amplify and clarify it required agencies to create “a single, searchable, indexed database that contains or links to all guidance documents in effect” at www.[agencyname].gov/guidance.

The executive order did not require a single portal for guidance like one might have for the U.S. Code or the Code of Federal Regulations. A subsequent presidential directive (or legislation) needs to do that. In the meantime, I maintain the work-in-process, one-stop portal pasted on this page and live-linked as “Executive Order 13891 Guidance Document Portal” (or https://bit.ly/2TfWzZ2) at the top of http://www.tenthousandcommandments.com/.

In my March 2 roundup examining results as of the initial February 28 deadline (A One-Stop Executive Order 13891 Guidance Document Portal), agencies revealed “only” 22,936 documents.

Despite the February 28 deadline, agencies were given until June 27 to reinstate any guidance documents they missed that had existed last October 31. So on July 7, my updated tally (The E.O. 13891 Guidance Document Portal: An Exercise in Utility) found agencies had posted 54,010 guidance document. On July 10, I updated that to 56,857.

Today’s tally is 57,098, as seen nearby. To follow the agencies’ links and drill down on what the guidance documents are, see the “live” version.

A reason documents have still increased since the deadline is that waivers had been given to some agencies that, for whatever reason, couldn’t meet the June 27 deadline. For example, the Environmental Protection Agency (EPA) was given until July 31. EPA sub-agencies presented a total of 9,182 documents back on March 3 and 10,079 by July 10. That has now converged on 9,810 with the passage of the EPA’s deadline. We’ll keep an eye on it.

The Department of Health and Human Services (HHS) requested a waiver that was granted through August 31, 2020. It was HHS documents in particular that were rapidly landing in the database during that second week in July. There were 11,446 HHS documents compiled as of July 10 and 11,956 today. A future writeup after the August 31 deadline will compile whatever new HHS documents appear.

I see these updates as part of a series. The two prior writeups contain assorted observations and clarifications about the executive order and its tractability, such as what I mean by agencies whose efforts are “non-compliant” or whose numbers of guidance documents are “indeterminate” (for example, an “x” of non-compliance does not necessarily mean that a department, agency or sub-bureau had no guidance documents), so I won’t repeat all that here.

As we anticipate the next update after August 31, and the amount of indeterminate and non-compliant agency responses still outstanding, we note that other agencies may have been granted waivers, too. But since there is little public clarification about that, the term “dark matter” still applies to the guidance document phenomenon. It’s probably immaterial whether the Treasury Department has a waiver or not, since no one can do anything about it regardless, as illustrated by the awesome power it has chosen to seek, procure, and exercise during the COVID-19 contagion. Its landing page intones, “Links to Treasury and bureau guidance documents and portals will be made available here when portals are established.”

As I mentioned before, the disclosure of guidance needs to be an exercise in utility rather than one in futility. I’ve described in the earlier writeups linked above and elsewhere (see “Deep State Guide to Resisting Trump’s Executive Orders on Guidance Document Abuse”) some of the loopholes by which I think appointees, careerists, and progressives can and will undermine this order.

So, I close by stressing that what matters now is the administration’s response to what agencies have done, or not done, so far. The “x”-saturated portal I present here illustrates, among much else, that a new executive order commanding the participation of independent agencies in regulatory and guidance review would be a start.