Promoting the Rule of Law Through Improved Agency Guidance Documents, 55235-55238 [2019-22623]

Agencies

• Executive Office of the President

[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]



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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:

                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. 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.
                    (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;

[[Page 55236]]

(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:

(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. 
                (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. 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.

                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:

  (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).

                    (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.

                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.

[[Page 55238]]

                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:

(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]
Billing code 3295-F0-P