President Trump has signed two executive orders on issuing and enforcing agency guidance documents, which administration officials and some conservatives in Congress have criticized as sometimes setting substantial policies without going through formal rule-making processes.
Agencies have “abused their power by imposing unlawful and secret interpretations of regulations, as well as by threatening families and businesses with unfair and unexpected penalties . . . going forward, agencies will have to give people fair notice of any complaint against them and a chance to respond,” according to a White House document.
One order sets a general policy that agencies are to “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.”
The order requires agencies to put their guidance documents on easily searchable public websites, and to review and rescind any that “should no longer be in effect.” They also would have to assure that future guidance “clearly state that it does not bind the public, except as authorized by law or as incorporated into a contract” and seek public input on the most important guidance and respond to requests to withdraw them.
The second bars civil administrative enforcement action or adjudication based on agency guidance “absent prior public notice of both the enforcing agency’s jurisdiction over particular conduct and the legal standards applicable to that conduct” and further states that an agency “may not treat noncompliance with a standard of conduct announced solely in a guidance document as itself a violation of applicable statutes or regulations.” It also instructs agencies to offer opinion letters to individuals and businesses who request instructions on how to comply.
Both contain target dates to achieve goals, in many cases under policy to be determined by OMB.