Trump's Executive Order 13,891 Creates Portals For Federal Agency Guidance Documents; And Here They Are

In a leap forward for governmental disclosure and accountability, federal agencies late last year were directed to scrub their guidance documents and post online those that they retain (E.O. 13,891, “Promoting the Rule of Law through Improved Agency Guidance Documents”)

Not that they’re easy to decipher (that’s what courts are for, one supposes) federal statutes (U.S. Code) and regulations in the Code of Federal Regulations are easy to locate online. This has never been the case, however, for the thousands of guidance documents, notices, bulletins, circulars, memoranda — and the list goes on. Agencies use sub-regulatory guidance to inform the public but sometimes also, according to the Administrative Conference of the United States, inappropriately leverage it to influence policy and behavior.

President Donald Trump’s order and a subsequent directive from White House Office of Management and Budget Director Russell T. Vought together require agencies to create “a single, searchable, indexed database that contains or links to all guidance documents in effect” to be located at www.[agencyname].gov/guidance.

How did they do? Well, compliance extensions issued to some major departments and agencies in 2020 have now lapsed, so we have a bit of an idea. I go into great detail that I won’t repeat here in this “one-stop” roundup post regarding this very worthwhile federal “exercise in utility.”

Over 73,000 documents have been retained by agencies, but there remains a great, vast number of unaccounted-for guidance documents that serve to keep the regulatory dark matter character of guidance operative particularly for independent agencies. The latter should have been more explicitly targeted in several recent executive actions. At first pass, though, whether or not executive agencies’ counts are accurate is less an issue than the fact that if guidance is not listed, it’s null and void (although that can create problems if safe harbors are not provided to members of the public with nothing else to rely on). Going forward, I’ll keep the tallies periodically updated on this (https://bit.ly/2TfWzZ2) Google GOOGL +4.3% Sheet as well as linked atop http://www.tenthousandcommandments.com/. (A jpg image of the table is pasted at bottom, but you’ll need the live links to drill down.)

There exists considerable potential for activists, progressives and resistant agencies to undermine the new guidance portal project. What matters now will be the administration’s response to agencies’ progress or lack of it, and further commandments to them in lieu of but in anticipation of Congress eventually acting on the misuse or abuse of these sub-regulatory policy documents.

Read the full article at Forbes.

Clyde Wayne Crews

In a leap forward for governmental disclosure and accountability, federal agencies late last year were directed to scrub their guidance documents and post online those that they retain (E.O. 13,891, “Promoting the Rule of Law through Improved Agency Guidance Documents”)