White House Issues Executive Order for Agency Guidance Documents

On Oct. 9, President Donald Trump issued Executive Order (EO) 13891: Promoting the Rule of Law Through Improved Agency Guidance Documents. The EO requires that executive branch agencies treat guidance documents as non-binding both in law and in practice, take public input into account when appropriate in formulating guidance documents, and make guidance documents readily available to the public.

The EO seeks to reign in the regulatory force of agency guidance documents and states: “The Agencies may clarify existing obligations through non-binding guidance documents, which the APA {The Administrative Procedure Act} exempts from notice-and-comment requirements. Yet agencies have sometimes used this authority inappropriately in attempts to regulate the public without following the rulemaking procedures of the APA.  Even when accompanied by a disclaimer that it is non-binding, a guidance document issued by an agency may carry the implicit threat of enforcement action if the regulated public does not comply.  Moreover, the public frequently has insufficient notice of guidance documents, which are not always published in the Federal Register or distributed to all regulated parties.”

According to the EO, agencies may impose legally binding requirements on the public only through regulations and on parties on a case-by-case basis through adjudications, and only after appropriate process, except as authorized by law or as incorporated into a contract.

The EO mandates that each agency or agency component establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents in effect from such agency or component within 120 days of the date on which the White House Office of Management and Budget (OMB) issues an implementing memorandum under section 6 of the EO. The EO also states that “the website shall note that guidance documents lack the force and effect of law, except as authorized by law or as incorporated into a contract.”

Within 120 days of the date on which OMB issues an implementing memorandum under section 6 of the EO, each agency must review its guidance documents and, consistent with applicable law, rescind those guidance documents that it determines should no longer be in effect.

“No agency shall retain in effect any guidance document without including it in the relevant database referred to in subsection (a) of this section, nor shall any agency, in the future, issue a guidance document without including it in the relevant database. No agency may cite, use, or rely on guidance documents that are rescinded, except to establish historical facts. Within 240 days of the date on which OMB issues an implementing memorandum, an agency may reinstate a guidance document rescinded under this subsection without complying with any procedures adopted or imposed pursuant to section 4 of this order, to the extent consistent with applicable law, and shall include the guidance document in the relevant database.”

Procedures for Issuing Guidance Documents

The EO mandates that within 300 days of the date on which OMB issues an implementing memorandum under section 6 of this order, each agency shall, consistent with applicable law, finalize regulations, or amend existing regulations as necessary, to set forth processes and procedures for issuing guidance documents.  The process set forth in each regulation shall be consistent with this order and shall include:

  • a requirement that each guidance document clearly state that it does not bind the public, except as authorized by law or as incorporated into a contract;
  • procedures for the public to petition for withdrawal or modification of a particular guidance document, including a designation of the officials to which petitions should be directed; and
  • for a significant guidance document, as determined by the Administrator of OMB’s Office of Information and Regulatory Affairs (Administrator), unless the agency and the Administrator agree that exigency, safety, health, or other compelling cause warrants an exemption from some or all requirements, provisions requiring:
    • a period of public notice and comment of at least 30 days before issuance of a final guidance document, and a public response from the agency to major concerns raised in comments, except when the agency for good cause finds (and incorporates such finding and a brief statement of reasons therefor into the guidance document) that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest;
    • approval on a non-delegable basis by the agency head or by an agency component head appointed by the President, before issuance;
    • review by the Office of Information and Regulatory Affairs (OIRA) under Executive Order 12866, before issuance; and
    • compliance with the applicable requirements for regulations or rules, including significant regulatory actions, set forth in Executive Orders 12866, 13563 (Improving Regulation and Regulatory Review), 13609 (Promoting International Regulatory Cooperation), 13771 (Reducing Regulation and Controlling Regulatory Costs), and 13777 (Enforcing the Regulatory Reform Agenda).

ACA is tracking these regulatory actions, and will keep its members apprised.

Contact ACA’s Rhett Cash for more information.

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