The E.O. 13891 Guidance Document Portal: An Exercise in Utility

Federal agencies have been required (by 2019’s Executive Order 13891 and a subsequent White House directive) 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 at least redirect from there).

Agencies were given until June 27, 2020 to comply, and material they leave out 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.”)

Not all were ready and some got a waiver. As noted on the Environmental Protection Agency (EPA) HQ page and each of its sub-agencies, “EPA received an extension from the Office of Management and Budget (OMB) for full compliance with Section 3(b) of EO 13891.  Accordingly, EPA’s guidance portal will include all active guidance by July 10, 2020.”

Presumably the Treasury Department has a waiver, too: “Links to Treasury and bureau guidance documents and portals will be made available here when portals are established.” Other agencies may have as waivers as well, but that isn’t apparent.

Unfortunately, a single, official portal for the entirety of the sprawling administrative state regulatory dark matter is not required. By contrast, there is one spot to go for all regulations in the U.S. Code, and for statutes in the Code of Federal Regulations.

So for the time being, I made the substitute compilation below (itself a follow up to my March 2 compilation) that I maintain and update here on this Google Sheet (use the second tab at the top of the document) and on http://www.tenthousandcommandments.com/. To follow the agencies’ links to their own portals, see the linked version, since the links won’t work on the jpeg table pasted herein.

While the count can change daily and a lack of clarity abounds, so far, the number of guidance documents retained by agencies per E.O. 13891 by my roundup is 54,010, with a number of agencies’ tallies “indeterminate” (my count in March had been 22,936; since the EPA has a waiver, for the moment I am retaining the agency’s March tally). In contrast to my preliminary inventory, the also incomplete 2018 Shining Light on Regulatory Dark Matter report from the House Committee on Oversight and Reform compiled 13,000 pieces of guidance from 46 departments and agencies between 2008 and 2018.

An outlier in the table, accounting for about one third of the tally, is the Department of Transportation’s National Highway Traffic Safety Administration’s (NHTSA) letters of interpretation, which include responses to individual queries; there are 16,524 of these. Yet the agency asserts “these are guidance documents,” so I’m including them. Not every agency lists such material to this level of granularity.

It’s also the case that some guidance that can be counted otherwise is not included here, as I’ve done in earlier settings. Where my prior counts were higher than seen in the portals, I’m assuming agencies chose not to retain it. I’ll examine some of that later.

In my roundup, 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; 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.

Some portal pages may not be technically compliant but instead link to the department’s own Federal Register notice that pushes all the right buttons. Some sub-agencies, like the International Trade Administration at Commerce, do not reference the E.O., but the descriptive language is clearly based on it, and so get the benefit of the doubt even without the proper formalities.

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 consisting of multiple pages of multiple links. “Indeterminate” doesn’t necessarily mean impossible to present or count. For example, the Department of Transportation’s 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 presents various unindexed categories (Forms Library, Policies and Regulations, Housing Information, Legal Library) that lead to pages of links to links of other links.

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. But omission has made it easy for independent bodies to skip participation. They are saturated with “x’s,” so a new executive order bringing independent agencies into the fold is necessary because some, such as those governing financial matters, are among the most consequential in economic life. These disappointments include the Securities and Exchange Commission and the Consumer Financial Protection Bureau (the latter flush with “supervisory guidance”). The non-compliant Commodity Futures Trading Commission nonetheless presents material like “opinions and adjudicatory orders” and “staff letters” (no-action, exemptive, interpretative, staff advisories, other written communication) that I had partly inventoried earlier. Such elements could have been revamped into the E.O.’s prescribed format, but that didn’t occur. Independent agency non-compliance is a greater concern nowadays given their involvement in the COVID-19 response (like the Federal Reserve and the National Credit Union Administration). There are elements of guidance, for example on the Paycheck Protection Program, which are not apparent in the portal.

Given the complaints just raised, hats off to the independent bodies that did create a portal. If the National Endowment for the Arts and the National Endowment for the Humanities can each supply an official guidance portal—and they do—then anyone can. Some, like the General Services Administration and the Merit Systems Protection Board, created a page to host future guidance even though they have none now. The National Labor Relations Board lists guidance but fails to recognizes E.O. 13,891, so while frustratingly non-compliant, it gets an honorable mention here.

Granted, there are executive departments not in line, too, such as Defense and Treasury (the latter with its overwhelming COVID era presence).

As implied already, an “x” of non-compliance does not necessarily mean that a department, agency, or bureau has no guidance documents. And it remains unclear whether compliant agencies have fully listed what they hoped to keep. Plus, some members of the public rely on the clarity provided by some documents and would suffer if they were to be lost, with no safe harbor. For example, digging through the appendix of the House Oversight Committee’s 2018 Shining Light report, we found last year that the U.S. Department of Agriculture( USDA) owned up to some 2,388 guidance documents.” Today, I have USDA’s portal count at only 32, a seeming impossibility, even with some sub-agencies indeterminate. 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.

As noted, the EPA sports a waiver until July 10, but I tallied 9,182 back in March (kept as a placeholder here). By contrast, when the House Oversight Committee issued the 2018 Shining Light report, the EPA only owned up to 16 guidance documents. I found more than that in my earlier reports on regulatory dark matter simply by rooting around blindly for them.

Adding to inherent inexactness, my “portal” does not list every bureau and agency; it is unknown how many agencies exist, but there are at least 400.  I have primarily incorporated the roughly 60 that are contained in the twice-yearly Unified Agenda.

The Social Security Administration, while hosting a compliant page, disavows that any of what it produces is guidance under E.O. 13,891, despite the overwhelming importance of the federal government controlling much of retirement and the fate of one’s contributions and returns on those funds before they are collected. This is one example of administrative state regulatory takeovers of economic and social matters that cease to be considered regulation as generations pass that better reporting on guidance can help recapture.

There exist the occasional humorous aspects, such as OMB itself not following its own landing page directive, although much of its material may be found elsewhere. Cute 404 pages are NASA’s “The cosmic object you are looking for has disappeared beyond the event horizon,””DOD’s “we’re sorry the mission can’t be completed,” and the Peace Corps’ “Not all who wander are lost …but we can’t find the page you were looking for.”

Just as regulations need better classification among economic, health andsafety, environmental, social, social engineering, and other categories of intervention, there is a need for better classification of guidance documents’ heft. Via 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 8,478 were deemed significant. For reference, however imperfect, among the congressional Shining Light report’s 13,000 documents, we learned that 536 were deemed significant, 328 underwent OIRA review, and 189 were compliant with the Congressional Review Act (technically rendering the noncompliant rest invalid). This deeper detail is needed, perhaps via coordination with the April 2019 Russell Vought OMB memo on guidance compliance with CRA and other steps. 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.

There will always be ambiguity. Nobody on Earth knows how much guidance there is. Some departments like USDA and the Department of Homeland Security have guidance portals for subagencies, others, oddly, for programs (like the Department of Energy). Not every agency classifies press releases as guidance, but some (Railroad Retirement Board) do. Guidance documents from the Bureau of Economic Analysis, or from USDA 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. I cannot help but congratulate 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.

It seems there are documents that could be added to the portals that were not, and perhaps documents added that ought not to have been. For example, the Council of the Inspectors General on Integrity and Efficiency proclaims that “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 prtal and common classification to minimize ambiguity.

Regarding significant guidance and compliance with E.O 13,891, USDA’s headquarters guidance page is 13,891-aware, yet some sub agencies are not technically compliant. The Animal and Plant Health Inspection Service, Economic Research Service, Food and Nutrition Service, Food Safety and Inspection Service (which also has links to indeterminate number of other “guidelines” and such) and the U.S. Forest Service reference only “significant guidance documents.” Some claim adherence to the January 25, 2007 OMB Bulletin on Agency Good Guidance Practices that requires agencies to maintain a current electronic list of all “significant guidance documents” as defined therein. These agencies (but not the Agricultural Marketing Service’s 404 page) get a pass here, since HQ referenced the executive order, although to the extent they left out non-significant guidance it will be rendered unintentionally void. A similar situation exists with the Department of Interior’s Office of Surface Mining Reclamation and Enforcement.

Errata: Commerce’s Bureau of Industry and Security, the U.S. AbilityOne Commission, and the Tennessee Valley Authority are out of compliance as of this compilation but back in March had presented 71, 31 and 13 respectively. Also—notable and something to monitor is that some agencies like NHTSA and the Consumer Financial Protection Bureau link to separate coronavirus guidance (but as noted the latter frustratingly lacks a compliant portal).

With those somewhat random observations, the next inflection point will be the administration’s response to what agencies have achieved or not achieved. Steps should take include creating a single guidance portal out of all the agencies’ doings with consistent archive-worthy global numerical unique-identifier classifications and centralization at a location like regulations.gov; cracking down on independent agencies; insisting upon CRA compliance and presenting data regarding such; better categorizing guidance by type and by economic/social significance; tracking OMB/OIRA review of guidance; and making provisions for guidance intended to streamline as opposed to bind. All this should be done in anticipation of Congress eventually acting on guidance via measures such as the Guidance Out of Darkness Act.

As it stands, E.O. 13,981 is vulnerable to being undermined by agencies with or without Trump, so strengthening like that noted will give permanent guidance clarity and a deregulatory legacy a better chance.

Earlier I said no one knows how many guidance documents there are. If the portal allows us to start fresh, blank slate style, perhaps we may.