In early October, President Donald J. Trump issued two executive orders aimed to further his administration’s stated goal of reducing both executive agencies’ power and burdens on regulated entities. Both executive orders will affect how federal agencies issue informal guidance documents, through which agencies provide interpretation or clarification of regulations they have promulgated.
The first, the “transparency and fairness” executive order, clarifies that guidance documents may not be used as a basis for imposing requirements or standards of conduct on any regulated entity. It also states that agencies may only take enforcement actions or engage in adjudication in reliance on standards of conduct that have been made publicly known, and may not do so in ways that may cause “unfair surprise.” In addition, prior to taking any action having a legal consequence as to any regulated person or entity, an agency must give that person or entity an opportunity to contest enforcement.
The second, the “improved agency guidance documents” executive order, requires agencies to post all guidance documents online, in a searchable format, along with a disclaimer that they are simply guidance and lack the force and effect of law. As part of this process, agencies are to review current guidance to determine whether it should be rescinded; any guidance not posted online as required within 120 days will be considered rescinded. Additionally, the Office of Management and Budget will establish procedures whereby the public may petition for withdrawal or modification of any particular guidance document. Perhaps the most substantial change required by the executive order is the requirement that no “significant” guidance documents may be issued without being subject to a period of public notice and comment, akin to the Administrative Procedure Act’s (APA) requirement for agencies issuing formal, binding regulations. Significant guidance documents must also be reviewed by the Office of Information and Regulatory Affairs before issuance.