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REGWRITER ALERT: Executive Orders on Agency Guidance

October 11, 2019

President Trump signed two new executive orders related to agency guidance.

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:

Executive Order 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents

Executive Order 13892, Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication

 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.

Recommendation 2017-5, Agency Guidance Through Policy Statements

Recommendation 2019-1, Agency Guidance Through Interpretive Rules

Recommendation 2019-3, Public Availability of Agency Guidance Documents