When I saw that the last president had issued an executive order mandating a range of broadly-supported best practices regarding agency guidance documents, my reaction was not pleasant surprise that, just like a broken clock that is right twice a day, President Trump had finally, if accidentally, done something reasonable and deserving of support. It was, rather, discouragement that something reasonable and deserving of support had been irredeemably politicized merely by being associated with President Trump – and so the next president, if he or she were a Democrat, would probably feel compelled to rescind it. President Biden did just that, on his first day in office. I reassured myself at the time by thinking that, even so, agencies would keep in place procedures and structures that promoted transparency and public access. Surely they wouldn’t actively take steps to make it harder to find their guidance documents.
Wrong. EPA has just abandoned a prior commitment to maintain all of its currently-effective guidance documents in a single, searchable Web portal. Now, you can just look for them, like you did back in the bad old days.
In administrative law, as in most other issues, President Trump seemed to delight in breaking political china, announcing unprecedented actions that were an order of magnitude more controversial than anything any prior president had ever attempted (e.g., his infamous “1 in, 2 out” E.O.). It was all the more surprising, therefore, when he signed E.O. 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents,” in October 2019. The new E.O., which instructed agencies to issue rules governing guidance documents, largely tracked an OMB bulletin that had been in effect for over a dozen years, persisting unchanged throughout the eight years of the Obama Administration. In effect, Trump was just telling agencies that now, they really had to follow it.
Both OMB’s 2007 “Final Bulletin for Agency Good Guidance Practices” and E.O. 13891 required federal agencies to do two principal things regarding guidance documents. The first was to establish a set of procedures regarding the contents of guidance documents and their issuance. Guidance documents could not contain mandatory language like “shall” or “must.” Agencies had to have an internal clearance process for issuing them, and provide members of the public with a process for seeking changes to them. The most controversial aspect of these procedures was a requirement that agencies conduct a notice-and-comment process before issuing economically significant documents (the Trump E.O. expanded this requirement to all “significant” guidance documents, thus capturing those raising novel legal or policy issues). The Trump E.O. also required OIRA review of significant guidance documents.
Congress has required the FDA to conduct notice and comment on “Level 1” guidance documents for over two decades now, and I have argued in this blog that the benefits of that practice – principally, informing an agency before it acts – are worth the costs. That is especially so if agencies are not obligated to respond to comments, which both the OMB Bulletin and E.O. 13891 unfortunately required. The ABA has supported notice and comment for significant guidance documents since 1993. ACUS has not, however, and the issue is likely to remain controversial. Thus, it was not shocking that the Biden Administration would rescind this requirement.
But the second principal element of the OMB Bulletin and E.O. 13891 seemed like the good-government equivalent of motherhood and apple pie: a requirement that agencies maintain on their websites a single, searchable, indexed database that contains or links to all of that agency’s guidance documents that are currently in effect. After all, providing this sort of transparency to the world is one of the salient virtues of the Internet. And guidance documents, if not the law, are at least quasi-law. Making all current guidance available from a single agency Web page is a natural extension of the requirement, in FOIA Section 552(a)(2), that agencies make available for public inspection and copying those statements of policy and interpretations and other “reading room records” that are not published in the Federal Register. Indeed, a quarter century ago, Congress in the E-FOIA Amendments required access to such documents generated after 1996 to be made available “by computer telecommunications” or other “electronic means.” I have not seen an explanation by the Biden Administration why this part of E.O. 13891 had to go, too, but I would assume it would be along the lines of “well, agencies will keep doing this, so we didn’t need to keep ordering them to do so.”
Except they’re not. On May 18, EPA published a final rule rescinding the rule it had issued implementing E.O. 13891. In explaining why it was OK for EPA to free itself from the obligation to provide access to all of its currently effective guidance documents on a single Web page, EPA said “The EPA will continue to make Agency guidance available to the public on the Agency’s website at https://www.epa.gov.” But that’s the agency’s home page, not a page dedicated to guidance documents. In other words, “all our guidance documents are on our website, somewhere. Good luck!” The Agency still maintains a guidance landing page (https://www.epa.gov/guidance). But it was newly updated on May 11. And now, it says the following (note italicized words):
As part of its mission to protect human health and the environment, EPA works to inform and educate the public about its policies and activities. This includes issuing materials that could be broadly considered “guidance” such as interpretive memoranda, policy statements, manuals, bulletins, and advisories. Users can find and access many of these materials by searching topics of interest through one of the following areas:
Alternatively, users can visit any https://epa.gov page, and use the “Search Epa.gov” box in the upper-right corner of the page. If you do not find what you are looking for, you may wish to contact a hotline or reach out via “Contact Us” on the page most closely related to your topic of interest.
There are two likely reasons why EPA backpedaled like this. The more innocent is that keeping track of what guidance is “in effect,” and posting all and only such documents via a central Web portal, is logistically challenging and requires resources that could be spent on other activities. The other reason is strategic: EPA benefits when its staff, particularly its lawyers, know which guidance documents are important for which issues – and the public doesn’t. These situations allow EPA staff to play guidance documents like trump cards in a way that they could not if all the guidance cards were face up on the same table. Of course, the ability of agencies to deploy “secret law” was a chief impetus behind the APA (which includes FOIA). The arc of the regulatory universe is long, but it bends toward transparency and fairness. It’s disappointing to see this Administration, in particular, try to bend it in a different direction.
Jamie Conrad is the Principal of Conrad Law & Policy Counsel in Washington, D.C., and a former Chair of the ABA’s Section of Administrative Law & Regulatory Practice.