Federal Guidance Transparency Redux: The Return of Executive Order 13891
Arlington, VA | February 12, 2025 Recent actions by the Trump Administration have kicked off reimplementation of important government-wide guidelines for the development and disclosure of agency guidance. But that reimplementation will take time. In the interim, state-led efforts to ensure public access to federal guidance, as recommended by Right on Transparency in a recent model policy, remain as important as ever.
In 2019, President Trump issued Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” The order marked an important—indeed, necessary—step towards improving transparency into federal agencies’ use of sub-regulatory guidance. Guidance, also known as “regulatory dark matter,” covers a broad range of documents that agencies issue to interpret the law, set policy, and influence the behavior of regulated parties. EO 13891 not only required better processes and procedures for issuing guidance, but it also mandated agencies to proactively disclose current guidance in publicly accessible online portals.
Unfortunately, EO 13891 was not long for this world. On his first day in office, President Biden rescinded the order with his own executive action. Many agencies soon deleted their guidance portals. Others dismantled other reforms intended to improve the guidance-creation process.
In the wake of these developments, our coalition debuted a model policy encouraging states to pick up where the federal government had left off. The policy recommends that state governments disclose guidance received from federal agencies in a centralized, state-wide searchable online database or, alternatively, on individual agency web portals.
President has now rescinded Biden’s executive order, which in turn reverses the revocation of EO 13891, ostensibly putting it back into effect. Although the White House and the Office of Management and Budget need to take further steps to ensure that agencies reinstate their guidance portals, modify controlling internal directives, or otherwise initiate rulemakings to re-implement EO 13891’s goals of guidance reform, the White House’s initial steps suggest a commitment to improving transparency of the administrative state.
Despite the return of federal guidance disclosure requirements, it is important for states to commit to providing similar transparency. Our coalition’s model policy would ensure that no guidance document slips through the cracks. And until Congress takes steps to statutorily codify guidance transparency, a future administration could reverse course yet again. The public deserves better. Public knowledge of federal guidance should not depend on the policy whims of any one president.