REGWRITER ALERT: Executive Orders on Agency Guidance
October 11, 2019
On Wednesday, October 9, 2019, President Trump signed two new executive orders related to agency guidance. One executive order establishes new procedures for issuing agency guidance, and requires agencies to provide access to guidance documents on their website. The other executive order seeks to ensure enforcement actions and adjudications are not based solely on policies established through agency guidance.
Both executive orders require agencies to develop procedures for implementing the requirements of that order. Other issues implicated by these executive orders include, deference to agency interpretations (Auer Deference), leniency in civil penalties for small entities under § 223 of the Small Business Regulatory Enforcement Fairness Act (SBREFA), and compliance with the Paperwork Reduction Act during regulatory compliance investigations.
Links to the two Executive Orders are provided below:
Readers should review OMB's Final Bulletin for Agency Good Guidance Practices (72 FR 3432; January 25, 2007) as both executive orders generally use definitions of guidance terms consistent with the bulletin. Also, both documents appear to have been influenced by recent recommendations of the Administrative Conference of the United States (ACUS). If you have not already read these ACUS recommendations links are provided below.