Executive Order 13,891 Sub-Regulatory Guidance Document Portal Tops 70,000 Entries
Congress makes laws. Agencies make rules, but they also issue guidance documents in heretofore unknown quantity.
The year 2019 brought Executive Order 13891 (“Promoting the Rule of Law through Improved Agency Guidance Documents”) and a subsequent White House directive requiring federal agencies to create “a single, searchable, indexed database that contains or links to all guidance documents in effect.” Each guidance document portal is to be located at www.[agencyname].gov/guidance, or to at least redirect from there.
Agencies were given until June 27, 2020 to comply. Some got deferrals; for example, as noted on the Environmental Protection Agency (EPA) headquarters’ and each of its sub-agencies’ pages, “EPA received an extension from the Office of Management and Budget (OMB) for full compliance with Section 3(b) of EO 13891” that ultimately ran until July 31, 2020. Compliance for the Department of Health and Human Services was extended through August 2020. Other departments and agencies may have extensions as well, but that isn’t apparent which did or were simply non-compliant as of this compilation.
Guidance material left out of the new portals by agencies presumably becomes null and void: “No agency shall retain in effect any guidance document without including it in the relevant database … nor shall any agency, in the future, issue a guidance document without including it in the relevant database.”
While one may go to a single online location for all statutes in the U.S. Code and for regulations in the Code of Federal Regulations, an official portal for the entirety of the sprawling administrative state’s vast inventory of sub-regulatory guidance documents is not required.as yet.
This compilation serves as a substitute and is a follow-up to my March 2, 2020 and July 7, 2020 roundups. The static jpeg table presented herein (and prior iterations) is maintained and updated on this (https://bit.ly/2TfWzZ2) Google Sheet as well as on http://www.tenthousandcommandments.com/. Use the linked version to drill down into the agencies’ links to their own portals.
While the count can change daily and a lack of clarity abounds, the number of guidance documents (which go by many names) retained by agencies per E.O. 13891 per my roundup stands at 73,424 (compared to 54,010 in July and 22,936 in March. In contrast to this inventory, the 2018 Shining Light on Regulatory Dark Matter report issued by the House Committee on Oversight and Reform compiled 13,000 pieces of guidance from 46 departments and agencies between 2008 and 2018. It was also inevitably incomplete given the nature of the guidance document regime.
The tally of 73,424 guidance documents represents a bare minimum, particularly since a number of agencies’ tallies remain “indeterminate.” By indeterminate, I loosely mean a compliant portal that defies reasonable attempts to tally, such as by containing a significant amount of largely unindexed guidance, or multiple pages of multiple links. “Indeterminate” doesn’t necessarily mean impossible to present or count. For example, the Department of Transportation’s (DOR) Federal Highway Administration guidance presentation appears thorough but combines unindexed links to guidance with those for legislation and regulations. Likewise, the Department of Housing and Urban Development (HUD) presents various unindexed categories (Forms Library, Policies and Regulations, Housing Information, Legal Library) that lead to pages of links to links of other links.
The Railroad Retirement Board (RRB) provides another example of the complexity of tracking guidance. The RRB breaks much of its guidance down into “Publications,” “News releases,” and “Articles” and is credited with 511 documents here. But it has 80 years of legal opinions not yet compiled (I still elected not to deem it “indeterminate” given the thoroughness elsewhere). By contrast, the Department of Transportation’s National Highway Traffic Safety Administration’s “letters of interpretation,” which include responses to individual queries, total 16,524. The agency asserts “these are guidance documents,” so they belong there. But not every government agency owns up to this level of granularity. Clearly, including counts for what today remains “indeterminate” would vastly increase the total.
Knowing the number of guidance documents from non-compliant agencies would also greatly increase the total beyond the current 73,434. By “non-compliant” (marked with an “x”) I loosely mean that the agency: (1) has no guidance page at www.[agencyname].gov/guidance at all (often a “404” error); (2) fails to list any guidance if it does have a landing page; or 3) fails to include the framing mandated by E.O. 13,891, which instructs as follows:
In addition to the information associated with each guidance document, agencies should also include a clearly visible note expressing that (a) guidance documents lack the force and effect of law, unless expressly authorized by statute or incorporated into a contract; and (b) the agency may not cite, use, or rely on any guidance that is not posted on the website existing under the EO, except to establish historical facts.
My criteria may change as agency portals evolve. Some portal pages may not be technically compliant but instead link to a Federal Register notice that pushes the right buttons. Or, some sub-agencies (like the International Trade Administration at Commerce), may not reference the executive order but contain descriptive language clearly based on it, and so get the benefit of the doubt.
As is the case with indeterminate, non-compliant does not mean (some of) a given agency’s guidance documents cannot be counted otherwise (as I’ve done in earlier settings), or that a figure of “at least X” cannot be derived; it just means life is too short. The National Labor Relations Board (NLRB), for example, lists a substantial amount of onion-layered guidance of indeterminate amount, but on a non-compliant page (no reference to E.O. 13,891), so it is not tallied here. The NLRB also sits among the frustratingly non-compliant, listing poorly cataloged guidance and failing to recognize E.O. 13,891. Where my prior counts may have been higher than seen in today’s portals (based on some agencies’ adherence to the January 25, 2007 OMB Bulletin on Agency Good Guidance Practices that required agencies to maintain a current electronic list of all “significant guidance documents” as defined therein). I’m assuming agencies chose not to retain it. I’ll examine some of that in a future setting.
Even agency tallies here deemed compliant can be loaded with ambiguity. The Federal Transit Administration has 20 different guidance classifications, plus information from 10 regional offices. Sometimes agencies imply they may not be showing all their cards, yet seem to be attempting to prevent still-improperly classified documents from being disqualified for representation in their portal. For example, the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) says: “You may also find useful information that is potentially not accessed from the page in the links below” and then lists nine different kinds of FAQs, bulletins, manuals, and more.
The Bureau of Land Management at the Department of the Interior, which here presents 2,646 documents, also nonchalantly indicates that “BLM policy documents are categorized by subject codes that may further help you identify collections of policies.” But just the code list itself is an Excel sheet that is 9,691 lines long. The Federal Election Commission has a black-box search field on a page with no reckoning of the executive order, nor means of listing what it contains, while simultaneously noting that, unlike peer agencies, the FEC’s search database “does not include advisory opinions.”
Adding to inherent inexactness, my “portal” does not list every bureau and agency. That’s because, while there are at least 400, it is unknown how many agencies exist. My tally roughly incorporates the 60 or so that are contained in the twice-yearly Unified Agenda of Regulatory and Deregulatory Actions.
Here are some observations in no particular order on the new portals’ contribution to the governability or non-governability of the administrative state and on what should come next:
- While Trump’s E.O. 13,891 did not mention independent agencies, a prior OMB directive on compliance with the Congressional Review Act, upon which it builds, did. While that omission has made it easy for independent bodies to skip participation in the guidance document portal exercise, they exemplify my concerns about regulatory dark matter and prove the problem is unsolved, indicative of the longstanding need for an executive order bringing independent agencies into the regulatory review fold. The independent agencies remain saturated with Xs despite being among the most consequential in economic life (such as those governing financial matters). Many independent agencies don’t even try to pretend, with “[agency]/guidance” opening to dead, unadorned 404 page-not-found links. But that doesn’t mean they don’t have guidance; they have a lot of it, often uncounted. The disappointments include the Securities and Exchange Commission and the Consumer Financial Protection Bureau (the latter flush with “supervisory guidance” despite non-participation in E.O. 13,891 format festivities). Similarly the non-compliant Commodity Futures Trading Commission presents material like “opinions and adjudicatory orders” and “staff letters” (no-action, exemptive, interpretative, staff advisories, other written communication) that I had partly inventoried in earlier settings. Non-compliance from independent agencies like the Federal Reserve and the National Credit Union Administration is a greater concern given their involvement in the COVID-19 response on guidance-saturated matters such as the Paycheck Protection Program and the Federal Reserve System’s alarming dominance of business lending and its ownership of “almost a third of bonds backed by home loans in the U.S.” These sweeping interventions are not readily apparent in the portal project.
- While I find the noncompliant pages frustrating, some agencies wear their defiance with a sense of humor. Among these are NASA’s “The cosmic object you are looking for has disappeared beyond the event horizon,” and the Peace Corps’ “Not all who wander are lost …but we can’t find the page you were looking for.”
- Given widespread non-compliance with E.O. 13,891, the independent bodies that did create a portal deserve props. If the National Endowment for the Arts and the National Endowment for the Humanities can supply an official guidance portal—and both do—then anyone can. Some, like the General Services Administration and the Merit Systems Protection Board, created a compliant landing page to host future guidance even though they report none now. The Federal Mediation and Conciliation Service, for example, reports: “FMCS currently does not have any guidance documents. Any guidance documents issued will be posted here,” and posts template headings to receive them. The Federal Energy Regulatory Commission, while not compliant, claims the “content you are looking for is in the process of being migrated,” even though as an independent body it might have been more obstinate.
- While independent agencies dominate non-compliance, there are to be sure prominent executive departments that have failed to fall into line. The Treasury Department, with its overwhelming COVID-era presence, remains frustratingly non-compliant. “Links to Treasury and bureau guidance documents and portals will be made available here when portals are established,” we are told. Another similar aberration is the non-compliant Office of Personnel Management registering “page not found,” despite having affirmed 4,782 guidance documents in our examination of the appendices of the House Shining Light report. Other executive agencies, while compliant, are aggravatingly indeterminate, such as the above-noted HUD and some offices within Interior. In a humorous twist, OMB itself does not adhere to its own landing page directive, although much of its guidance material may be found elsewhere. And it is curious at least that the White House Council on Environmental Quality, with its high-profile and controversial changes to National Environmental Policy Act guidance, does not have a technically compliant page. It does, of course, provide extensive information about the new implementing regulations. On the other hand, the formerly non-compliant Department of Defense, with a “we’re sorry the mission can’t be completed” 404 page, now lists over 1,400 of its documents.
- Specific rescinded guidance documents still need to be disclosed. Not to downplay the impropriety of governance by guidance, but it is the case that in many instances members of the regulated public have come to rely on the clarity provided by some guidance (this is not how I would have made the world, just the way the administrative state is). While it is the case that not listing them now should render such guidance void, it remains unclear whether compliant agencies have fully listed what they hoped to keep. But if they didn’t, technically they have lost them and will need to reissue the guidance under the new strictures of E.O. 13,891. The problem is that some parties (those regulated by the EPA, as a high-profile example) could suffer if certain guidance were to be lost with no safe harbor, with no direction on what the new expectations are. For this reason, while in transition from the pre- to post-E.O. 13,891 world, institutional memory is important. Examples of smart document retention include the Johnny-come-lately Department of Defense’s rescinded guidance document page, and the Department of Education’s Federal Register notice containing a listing of the documents it has rescinded. Similarly the Bureau of Ocean Energy Management at the Interior Department provides helpful “Archived Notices to Lessees and Operators,” reporting that: “The listing below contains the NTL’s that are archived because they have been superseded, expired or rescinded. Links are provided to the latest version of the NTL if it has been superseded.”
- Denial that guidance is guidance can be a factor. The Social Security Administration, while hosting a compliant landing page, disavows that any of the vast amount of material it produces is guidance under E.O. 13,891 (“most … do not qualify as guidance documents”) despite the overwhelming significance of the federal government controlling much of the fate and financial returns (or lack thereof) of one’s financial contributions, and the amounts received in retirement compared to what one could have received via investing the amounts instead. This is one example of administrative state regulatory takeovers of economic and social matters that cease to be recognized as regulation at all as generations pass.
- In some cases, the “denial” has an upside. Some bodies that have not listed guidance in the past now, thanks to E.O. 13,891, list even material they claim does not qualify as guidance. There is inherent good for disclosure. The General Services Administration, for example asserts that:
- GSA does not issue guidance as defined in Executive Order (EO) 13891. Recognizing that GSA may issue such guidance in the future, we have updated GSA Order 1812, Writing GSA External Directives, to incorporate requirements of EO 13891. Additionally, to aid the public in understanding internal policies related to GSA programs, GSA is providing links to non-guidance policies.
The aforementioned Pipeline and Hazardous Materials Administration at DOT provides another example:
- Although some of the materials that can be accessed from this page may fall outside the definitions of “guidance” set forth in Executive Order 13891 and 49 CFR 5.25(c), PHMSA has determined that they include potentially useful information for stakeholders and is including them in this database in an effort to make these materials easier for members of the public to find.
- Some agencies do not include internal guidance in their portals; others do. While the Bureau of Reclamation at Interior sports an indeterminate guidance tally, it also states: “Reclamation has an extensive library of internal guidance that details Reclamation’s internal procedures, including staff and office responsibilities. While these internal guidance documents are not applicable to the definition of guidance provided in Executive Order 13891, they are available and transparent to the public.”
- There will always be ambiguity. No one on Earth knows how much guidance there is. Not every agency classifies press releases as guidance, but some, such as the Railroad Retirement Board, do. Guidance documents from the Bureau of Economic Analysis, or from Department of Agriculture grant programs, or the 19 kinds of grants from the Institute of Museum and Library Services, or from Energy Department loan programs are not obviously representative of the kind of sub-regulatory decrees that irk industry, but they nonetheless are contained on compliant pages and recognized here. One cannot help but congratulate the Bureau of Economic Analysis (BEA) for including “PowerPoint slides,” and the Federal Transit Administration for including “Recorded presentations.” (But where BEA listed “Forms,” I couldn’t bring myself to tally those.)
- As noted, it seems there are documents that could be added to the portals that were not, and documents added that perhaps ought not to have been. For example, the Council of the Inspectors General on Integrity and Efficiency proclaims: “Inclusion of a document on this page does not necessarily mean that the document is a ‘Guidance document’ as defined in Executive Order 13891.” A guidance document for purposes of governance cannot simply mean “any agency publication.” But what will ultimately count? Even those bodies with compliant pages and impressive, seemingly thorough databases may have classes of documents that do not appear. And one cannot be confident that any particular individual piece of guidance in the portal does not link to yet more guidance. It is easy to inflate or deflate the amount of guidance, and easy to differ as to whether one document is a distinct set of guidance from another. All this indistinctness is a reason for a common portal and common classification to minimize ambiguity.
The next inflection point will be the administration’s response to what agencies have or have not achieved, in anticipation of Congress eventually acting on guidance via measures such as the Guidance Out of Darkness Act. There are key steps to take at this stage too, as follows.
- An executive order to bring independent agencies into the regulatory oversight regime at OMB, including the new guidance document portals, is needed.
- An executive order should also institute a single, one-stop guidance portal compiling all the agency sub-portals (replacing my unofficial one). Numbering by agencies is still complicated, erratic, and even non-existent, and needs to be clarified with consistent archive-worthy global numerical unique-identifier classifications and centralization at a location like regulations.gov.
- E.O.’s current criteria for elements in agencies’ portal consist of a Title, a Number, a Short Description, the Date Posted, and a Link to the guidance. To these criteria there needs to be added fields for:
Whether or not the guidance is “significant” or “economically significant”
- Whether or not the guidance was submitted to the Government Accountability Office and to both houses of Congress as required by the Congressional Review Act (CRA), as was reiterated in an April 2019 memo to executive agencies by OMB’s Russell T. Vought on “Guidance on Compliance with the Congressional Review Act.” While addressed to executive agencies, the CRA applies to independent agencies.
- Whether or not the guidance was submitted to and reviewed by OMB.
Just as regulations need better classification among economic, health and safety, environmental, social, social engineering, and other categories of intervention, there is a need for better classification of guidance documents’ heft. Even after E.O. 13,981, an observer cannot readily determine the economic significance of guidance documents, an exception being filters on the Department of Labor portal to isolate that costlier strata of rules. Yet, even at Labor, only four documents out of 8,483 were deemed significant, which is implausible. For reference, however imperfect, among the congressional Shining Light report’s 13,000 documents, 536 were deemed significant, 328 underwent Office of Information and Regulatory Affairs review, and 189 were compliant with the Congressional Review Act, technically rendering the noncompliant rest invalid. Even now, if guidance documents were not submitted to Congress and the Government Accountability Office, they are arguably invalid even if they are listed in the new portals.
As it stands, E.O. 13,981 is vulnerable to being undermined by agencies and progressives with or without Trump, so strengthening like that noted will give guidance clarity and a deregulatory legacy a better chance. During 2020, there has been increasingly less outright non-compliance. This progress can be built upon; everyone, presumably, sees disclosure as a good thing.
Note: Other related reports in this “regulatory dark matter” series:
The E.O. 13891 Guidance Document Portal: An Exercise in Utility, July 7, 2020
A One-Stop Executive Order 13891 Guidance Document Portal, March 2, 2020
Deep State Guide to Resisting Trump’s Executive Orders on Guidance Document Abuse, October 23, 2019
What Works and what Doesn’t in OMB’s New Guidance to Federal Agencies on Regulatory Oversight, Forbes, June 19, 2019
A Partial Eclipse of the Administrative State: A Case for an Executive Order to Rein in Guidance Documents and other “Regulatory Dark Matter,” October 3, 2018
Mapping Washington’s Lawlessness: An Inventory of “Regulatory Dark Matter, 2017