By the end of the Trump administration, several dozen federal agencies had issued final rules clarifying their use of sub-regulatory guidance documents. In one of a series of rollbacks in transparency, President Joe Biden has directed agencies to issue new rules specifically erasing these public guarantees.
Former president Donald Trump’s October 2019 Executive Order 13,891, “Promoting the Rule of Law through Improved Agency Guidance Documents” required that executive agencies create “a single, searchable, indexed database that contains or links to all guidance documents in effect.”
This move subjected the various memoranda, notices, circulars, administrative interpretations, bulletins, and other material to disclosure. During 2020, many (by no means all) agencies created compliant portals depicting over 73,000 entries, still far from exhaustive.
Biden’s Executive Order 13,992 on “Revocation of Certain Executive Orders Concerning Federal Regulation” eliminated Trump’s portal directive, along with the former president’s one-in, two-out regulatory order and more.
But Trump’s E.O. 13,891 had also required agencies to issue a final rule on guidance, since Trump’s team anticipated that a future president might eliminate the new procedures. Accordingly, agencies were directed to issue their own notice-and-comment rules outlining their guidance practices. Doing so would make them immune to revocation by executive order alone.
In a recent post, we detailed how 32 agencies had issued such final rules on guidance (FROGs) by the time of Biden’s day-one order for purge. Many FROGs formalized a “searchable” database or otherwise announced public access and clarified that guidance “lacks force and effect of law.”
We do not repeat all that detail here (go here instead), but links to all are available in the online version of the portal at https://bit.ly/2TfWzZ2. An “x” in the “Portal in 2020” column in the table below indicates there was never a compliant agency portal page to begin with. Revoked FROGs appear in red type.
But not so fast. Our main point then was that while Biden revoked Trump’s executive order, the subsequent FROGs are now law as part of the Code of Federal Regulations. So, Biden needs agencies to undertake a new notice-and-comment rulemaking or instrument like an interim final rule to hide the portals. And that is exactly what Biden has done. His revocation order states that, “The Director of the Office of Management and Budget and the heads of agencies shall promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing” the Trump orders.
There are two notable wrinkles for Biden’s “erasure.” First, independent agencies were not bound by Trump’s order to create portals, but a number of them did anyway. They are likewise not bound by Biden’s revocation order, so it will be interesting to watch what they do.
Second, as noted in most agencies’ declarations in their FROG, if a guidance document is not posted on its portal, it is rescinded; in other words, anything not listed in a portal is no longer a valid guidance. So, if a guidance document has evaporated from an agency before it ever materialized on a portal, there exists no vehicle or venue upon which it would automatically resurrect (FROG or no FROG), which Biden’s order would imply they must do.
In his January 20 “Fact Sheet: List of Agency Actions for Review,” FROGs from the Council on Environmental Quality and those of the Environmental Protection Agency and the Department of the Interior were among the targets for removal. So far, the CEQ has removed its portal but not FROG, and it ought not take the administration long to get to the rest.
So where do things stand? As of March 30, 2021, 32 departments and agencies have issued some form of final rule on guidance. Three have issued proposals on revocation. These are the Departments of Energy, Labor, and Transportation. They appear in red in the table above. The latter is an extraordinary disappointment given the Department of Transportation’s (DOT) broader independent commitment to “rules on rulemaking” under former Secretary Elaine Chao. Revocations so far involve new rulemakings and rescissions.
In addition, of the agencies that had set up a guidance document portal, 10 have removed it. These include six agencies within the Department of Agriculture (Agricultural Research Service, Economic Research Service, Food and Nutrition Service, U.S. Forest Service, Food Safety and Inspection Service, National Institute of Food and Agriculture); the National Institute of Standards and Technology within the Commerce Department; the Council on Environmental Quality; the Federal Mediation and Conciliation Service, and the Tennessee Valley Authority.
Like the independent agencies that set up portals under Trump, there likely will be other things to keep an eye on. For example, the three agencies that have “stomped their FROGs” so far nonetheless still have a portal intact. Thousands of documents are involved, so the impending loss of portals is highly significant.
The Department of Transportation, as noted, stomped the FROG but still has a portal using Trump administration language but without a direct reference to E.O. 13,891: “Welcome to the DOT Guidance Portal. This web portal is a searchable, indexed database, that contains all guidance documents issued by DOT and its nine operating administrations that are in effect today.” We’ll just say here if they want to plagiarize, and that’s the price for retaining a portal, we’ll take it. Conversely, the National Highway Traffic Safety Administration, within DOT, had not removed its explicit reference to the Trump order as of this writing.
The Pipeline and Hazardous Materials Safety Administration (PHMSA) references the DOT’s now extinct FROG. “For more information regarding the procedures associated with the development and issuance of DOT guidance documents, please see the Department’s regulations on “Administrative Rulemaking, Guidance, and Enforcement Procedures.” (December 27, 2019). But when one clicks the link one gets the message, “You are not authorized to access this page.”
As of now, many prominent departments like the Departments of Homeland Security, State, and Veterans Affairs (VA) still reference Trump’s E.O. 13,891 with intact portals (well, the VA with an Excel sheet version of one). The Department of Health and Human Services’ landing page references its own FROG but not E.O. 13, 891. The Department of the Treasury still references E.O. 13891 but without having complied a compliant portal. Some agencies, like the National Institute of Standards and Technology (NIST), seem to have struck out on their own to remove a portal even if their parent department (Commerce) still has a FROG in place. The Department of Defense’s long-promised “Coming Soon: Rescinded Guidance Documents Page” will likely never appear.
Even the Environmental Protection Agency (EPA) still retains its portal landing page with reference to the Trump order but notes the Biden revocation (as we have now learned, the annual reports on regulatory “one-in, two-out” and the “Deregulatory” rules designation in the Unified Agenda database of regulations has been removed).
On October 9, 2019, former President Trump signed Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” Among other things, the Executive Order directed federal agencies to make active guidance documents available via an online guidance document portal. EO 13891 has been revoked by President Biden.”
On October 19, 2020, EPA published a final rulemaking EPA Guidance; Administrative Procedures for Issuance and Public Petitions, providing further detail about the agency’s development and issuance of guidance documents. Additionally, the rule provides the public the means to petition the agency with requests to modify or withdraw an active guidance document.
Several EPA agencies, which so far have retained their respective portals, also reference E.O. 13,891 without noting the Biden revocation of it. Other bodies, like the Food and Nutrition Service, seem to have elected to fall back or revert to 2007 guidance principles.
As noted, some independent agencies still reference the Trump executive order and issued a FROG; these include AmeriCorp, the Concil of the Inspectors General on Integrity and Efficiency, the Institute of Museum Library Services, the U.S. Merit Systems Protection Board, the Pension benefit Guaranty Corporation, and the Small Business Administration. The independent Federal Deposit Insurance Corporation had FROG-like procedures independent of E.O. 13,891. The Commodity Futures Trading Commission was never compliant (nor obligated) but had a “Staff Letters” landing page. Likewise, the Consumer Financial Protection Bureau has a similar “Compliance” landing page. Other agencies, like the Federal Mediation and Conciliation Service, still retain a FROG, but have eliminated once-compliant portals. NASA never had a compliant portal, but nonetheless has a FROG.
Policy makers should expect the pace to speed up. With the revocation order and his “Modernizing Regulatory Review” directive, Biden is eliminating barriers standing in the way of the exercise of regulatory power. The modernization directive shifts the Office of Management and Budget’s already suspect cost-benefit balancing to a stance of seeming one-way regulatory expansion, with emphasis on benefits as agencies see them and little concern for costs.
Congress needs to monitor and make an issue out of the removal of guidance documents from public view and the revocation of FROGs. This is a time for query letters, hearing inquiries, and watching for reappears.
Most importantly now is a time for the construction of a legislative response in anticipation of some future climate in which administrative state reform and Article I restoration are possible.