Promoting the Rule of Law Through Improved Agency Guidance Documents

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;

(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.

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.

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.