Promoting the Rule of Law Through Improved Agency Guidance Documents

[Federal Register Volume 84, Number 199 (Tuesday, October 15, 2019)]

[Presidential Documents]

[Pages 55235-55238]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2019-22623]

[[Page 55233]]

Vol. 84

Tuesday,

No. 199

October 15, 2019

Part II

The President

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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 Adjudication

Presidential Documents

Federal Register / Vol. 84 , No. 199 / Tuesday, October 15, 2019 /

Presidential Documents

___________________________________________________________________

Title 3--

The President

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Executive Order 13891 of October 9, 2019

Promoting the Rule of Law Through Improved Agency

Guidance Documents

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to ensure that Americans are

subject to only those binding rules imposed through

duly enacted statutes or through regulations lawfully

promulgated under them, and that Americans have fair

notice of their obligations, it is hereby ordered as

follows:

ws of the United States of

America, and in order to ensure that Americans are

subject to only those binding rules imposed through

duly enacted statutes or through regulations lawfully

promulgated under them, and that Americans have fair

notice of their obligations, it is hereby ordered as

follows:

Section 1. Policy. Departments and agencies (agencies)

in the executive branch adopt regulations that impose

legally binding requirements on the public even though,

in our constitutional democracy, only Congress is

vested with the legislative power. The Administrative

Procedure Act (APA) generally requires agencies, in

exercising that solemn responsibility, to engage in

notice-and-comment rulemaking to provide public notice

of proposed regulations under section 553 of title 5,

United States Code, allow interested parties an

opportunity to comment, consider and respond to

significant comments, and publish final regulations in

the Federal Register.

Agencies may clarify existing obligations through non-

binding guidance documents, which the APA 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

appropriately 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.

Americans deserve an open and fair regulatory process

that imposes new obligations on the public only when

consistent with applicable law and after an agency

follows appropriate procedures. Therefore, it is the

policy of the executive branch, to the extent

consistent with applicable law, to require that

agencies treat guidance documents as non-binding both

in law and in practice, except as incorporated into a

contract, take public input into account when

appropriate in formulating guidance documents, and make

guidance documents readily available to the public.

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.

Sec. 2. Definitions. For the purposes of this order:

(a) ``Agency'' has the meaning given in section

3(b) of Executive Order 12866 (Regulatory Planning and

Review), as amended.

gh adjudications, and only

after appropriate process, except as authorized by law

or as incorporated into a contract.

Sec. 2. Definitions. For the purposes of this order:

(a) ``Agency'' has the meaning given in section

3(b) of Executive Order 12866 (Regulatory Planning and

Review), as amended.

(b) ``Guidance document'' means an agency statement

of general applicability, intended to have future

effect on the behavior of regulated parties, that sets

forth a policy on a statutory, regulatory, or technical

issue, or an interpretation of a statute or regulation,

but does not include the following:

(i) rules promulgated pursuant to notice and comment under section 553 of

title 5, United States Code, or similar statutory provisions;

(ii) rules exempt from rulemaking requirements under section 553(a) of

title 5, United States Code;

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(iii) rules of agency organization, procedure, or practice;

(iv) decisions of agency adjudications under section 554 of title 5, United

States Code, or similar statutory provisions;

(v) internal guidance directed to the issuing agency or other agencies that

is not intended to have substantial future effect on the behavior of

regulated parties; or

(vi) internal executive branch legal advice or legal opinions addressed to

executive branch officials.

(c) ``Significant guidance document'' means a

guidance document that may reasonably be anticipated

to:

to the issuing agency or other agencies that

is not intended to have substantial future effect on the behavior of

regulated parties; or

(vi) internal executive branch legal advice or legal opinions addressed to

executive branch officials.

(c) ``Significant guidance document'' means a

guidance document that may reasonably be anticipated

to:

(i) lead to an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the economy,

productivity, competition, jobs, the environment, public health or safety,

or State, local, or tribal governments or communities;

(ii) create a serious inconsistency or otherwise interfere with an action

taken or planned by another agency;

(iii) materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs or the rights and obligations of recipients thereof;

or

(iv) raise novel legal or policy issues arising out of legal mandates, the

President's priorities, or the principles of Executive Order 12866.

(d) ``Pre-enforcement ruling'' means a formal

written communication by an agency in response to an

inquiry from a person concerning compliance with legal

requirements that interprets the law or applies the law

to a specific set of facts supplied by the person. The

term includes informal guidance under section 213 of

the Small Business Regulatory Enforcement Fairness Act

of 1996, Public Law 104-121 (Title II), as amended,

letter rulings, advisory opinions, and no-action

letters.

Sec. 3. Ensuring Transparent Use of Guidance Documents.

lied by the person. The

term includes informal guidance under section 213 of

the Small Business Regulatory Enforcement Fairness Act

of 1996, Public Law 104-121 (Title II), as amended,

letter rulings, advisory opinions, and no-action

letters.

Sec. 3. Ensuring Transparent Use of Guidance Documents.

(a) Within 120 days of the date on which the Office of

Management and Budget (OMB) issues an implementing

memorandum under section 6 of this order, each agency

or agency component, as appropriate, shall 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. 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.

(b) Within 120 days of the date on which OMB issues

an implementing memorandum under section 6 of this

order, each agency shall 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

g 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.

(c) The Director of OMB (Director), or the

Director's designee, may waive compliance with

subsections (a) and (b) of this section for particular

guidance documents or categories of guidance documents,

or extend the deadlines set forth in those subsections.

(d) As requested by the Director, within 240 days

of the date on which OMB issues an implementing

memorandum under section 6 of this order, an agency

head shall submit a report to the Director with the

reasons for maintaining in effect any guidance

documents identified by the Director.

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The Director shall provide such reports to the

President. This subsection shall apply only to guidance

documents existing as of the date of this order.

head shall submit a report to the Director with the

reasons for maintaining in effect any guidance

documents identified by the Director.

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The Director shall provide such reports to the

President. This subsection shall apply only to guidance

documents existing as of the date of this order.

Sec. 4. Promulgation of Procedures for Issuing Guidance

Documents. (a) 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:

(i) 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;

(ii) 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

(iii) 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:

gnation of the officials

to which petitions should be directed; and

(iii) 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) 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;

(B) approval on a non-delegable basis by the agency head or by an agency

component head appointed by the President, before issuance;

(C) review by the Office of Information and Regulatory Affairs (OIRA)

under Executive Order 12866, before issuance; and

(D) 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).

ore issuance; and

(D) 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).

(b) The Administrator shall issue memoranda

establishing exceptions from this order for categories

of guidance documents, and categorical presumptions

regarding whether guidance documents are significant,

as appropriate, and may require submission of

significant guidance documents to OIRA for review

before the finalization of agency regulations under

subsection (a) of this section. In light of the

Memorandum of Agreement of April 11, 2018, this section

and section 5 of this order shall not apply to the

review relationship (including significance

determinations) between OIRA and any component of the

Department of the Treasury, or to compliance by the

latter with Executive Orders 12866, 13563, 13609,

13771, and 13777. Section 4(a)(iii) and section 5 of

this order shall not apply to pre-enforcement rulings.

Sec. 5. Executive Orders 12866, 13563, and 13609. The

requirements and procedures of Executive Orders 12866,

13563, and 13609 shall apply to guidance documents,

consistent with section 4 of this order.

13771, and 13777. Section 4(a)(iii) and section 5 of

this order shall not apply to pre-enforcement rulings.

Sec. 5. Executive Orders 12866, 13563, and 13609. The

requirements and procedures of Executive Orders 12866,

13563, and 13609 shall apply to guidance documents,

consistent with section 4 of this order.

Sec. 6. Implementation. The Director shall issue

memoranda and, as appropriate, regulations pursuant to

sections 3504(d)(1) and 3516 of title 44, United States

Code, and other appropriate authority, to provide

guidance regarding or otherwise implement this order.

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Sec. 7. General Provisions. (a) Nothing in this order

shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or

the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget

relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with

applicable law and subject to the availability of

appropriations.

(c) This order is not intended to, and does not,

create any right or benefit, substantive or procedural,

enforceable at law or in equity by any party against

the United States, its departments, agencies, or

entities, its officers, employees, or agents, or any

other person.

(d) Notwithstanding any other provision in this

order, nothing in this order shall apply:

benefit, substantive or procedural,

enforceable at law or in equity by any party against

the United States, its departments, agencies, or

entities, its officers, employees, or agents, or any

other person.

(d) Notwithstanding any other provision in this

order, nothing in this order shall apply:

(i) to any action that pertains to foreign or military affairs, or to a

national security or homeland security function of the United States (other

than guidance documents involving procurement or the import or export of

non-defense articles and services);

(ii) to any action related to a criminal investigation or prosecution,

including undercover operations, or any civil enforcement action or related

investigation by the Department of Justice, including any action related to

a civil investigative demand under 18 U.S.C. 1968;

(iii) to any investigation of misconduct by an agency employee or any

disciplinary, corrective, or employment action taken against an agency

employee;

(iv) to any document or information that is exempt from disclosure under

section 552(b) of title 5, United States Code (commonly known as the

Freedom of Information Act); or

(v) in any other circumstance or proceeding to which application of this

order, or any part of this order, would, in the judgment of the head of the

agency, undermine the national security.

(Presidential Sig.)

THE WHITE HOUSE,

October 9, 2019.

[FR Doc. 2019-22623

Filed 10-11-19; 11:15 am]

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