Federal Manager's Daily Report

President Biden has repealed two 2019 executive orders on issuing and enforcing agency guidance documents, policies the Trump administration had said were necessary to address over-reach by agencies that effectively set binding rules without going through the formal rules-making process.

In canceling those orders and several others Trump had issued regarding regulation, the new order says that they “threaten to frustrate the federal government’s ability to confront” economic and other problems and that agencies need to be free “to use appropriate regulatory tools” to address them.

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One order set 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.” It further required agencies to put their guidance documents on easily searchable public websites, and to review and rescind any that “should no longer be in effect.”

The second barred 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 said that an agency could not treat noncompliance with a standard of conduct announced solely in a guidance document as a violation of law or regulation.

Biden also revoked a Trump order requiring agencies to repeal at least two regulations whenever a new regulation is issued and one requiring them to propose offsets to the costs of discretionary administrative actions, or actions not required by statute, that increase mandatory spending.

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