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Presidential Executive Order to Limit Regulatory Impact of Agency Guidance Documents


President Trump signed two executive orders this week designed to improve transparency when government agencies issue guidance documents on how to comply with federal laws or regulations. Agency guidance documents are generally made in response to a regulated party’s request for regulatory clarification. However, some federal agencies use guidance, in the form of memos, letters, and even blog posts, to assert more authority than is written in their regulations. Moreover, some agencies use guidance documents to justify citations issued to regulated parties for non-compliance. Agency reliance on guidance documents is widespread because they can be used to impose regulatory requirements without submission to the public notice and comment process that all federal rulemakings must follow. These “stealth regulations” are issued more quickly than rulemakings, issued without knowledge of regulated parties and remain largely hidden from public view. As a result, regulated parties often don’t learn about the existence of regulatory guidance until they are cited for violating its provisions.

The President’s first executive order requires each federal agency to upload guidance documents to their websites on a single repository page that is easily accessed by the public. Any guidance document that is not posted within a required time frame will be deemed null and void. The repository page will make it easier for regulated parties to find guidance on a subject affecting their business. In addition, agencies must provide a 30-day public notice and comment period for new guidance documents 30 days before they are finalized.

The second executive order prevents agencies from conducting “surprise enforcement actions” based on regulatory requirements based on obscure guidance documents and provides regulated parties more opportunity to contest any resulting violation. In January 2018, the House of Representatives Committee on Oversight and Government Reform asked federal agencies to submit reports on the number of guidance documents each issued over the previous ten-year period. The committee received an inventory of more than 13,000 agency guidance documents issued over the time period and speculated substantially more were likely to be found in unknown regions of agency websites.

Federal Compliance

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