Federal Agencies Scheduled to Revamp Use of Guidance Documents

January 21, 2020
Todd D. Kantorczyk, Esq.
MGKF Special Alert - Federal Forecast 2020

In October 2019, President Trump issued two executive orders addressing how federal agencies develop, publicize and ultimately use interpretive guidance documents that are routinely issued by those agencies to “clarify” obligations under enacted laws and promulgated regulations.  While it remains to be seen whether the two executive orders will have a near-term meaningful impact on the use of guidance documents in enforcement contexts, they have set out some important deadlines and requirements for agencies, including USEPA, that will play out in 2020.

Executive Order 13891, entitled “Promoting the Rule of Law Through Improved Agency Guidance Documents” in large part establishes a framework that requires federal agencies to evaluate and publicize existing guidance, and develop procedures with respect to the development of new “significant guidance” going forward.  And the issuance of OMB’s implementation memorandum for EO 13891 at the end of October 2019 established some key 2020 deadlines for federal agencies on these points.  In particular:

  • By February 28, 2020, federal agencies must establish a single, searchable, indexed website that includes, or contains links to, guidance documents currently in effect. Availability of the website must be published in the Federal Register as well as the agency’s typical means of publicizing important announcements.
  • As part of establishing this database, agencies are required to perform some housekeeping by evaluating existing guidance documents and rescinding those that should no longer be in effect.
  • After establishing the database, federal agencies have until June 27, 2020, to reinstate any guidance that may have been left off the initial database. After that date, any additional guidance documents must follow the procedures for developing new guidance.
  • To that end, agencies are supposed to promulgate regulations for issuing new guidance documents by April 28, 2020. These regulations must provide a 30-day notice and comment period for “significant guidance”, which is defined as guidance that has an annual effect of the economy of $100 million or more, or adversely affects in a material way, among other things, the economy, jobs, the environment, or public health or safety.

Executive Order 13892, entitled “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication” includes several directives that arguably reflect current law with respect to the use of guidance documents in enforcement proceedings.  But this EO also includes some notable items and deadlines that could have an effect in 2020.  For example, Section 6 of the EO requires agencies to provide an opportunity to be heard before taking any action that has “legal consequence,” which includes no-action letters and notices of non-compliance (although there is an exception in cases of a serious threat to health safety or other emergency).  In addition, within 270 days (July 13, 2020), federal agencies are supposed to propose procedures that: encourage voluntary self-reporting in exchange for reduction or waiver of civil penalties; encourage information sharing among regulated parties; and provide for pre-enforcement rulings (although all procedures only need to be “to the extent practicable.”)  Furthermore, by February 12, 2020, agencies are required to publish a rule of agency procedure regarding civil administrative inspections.

It is not unusual for agencies to miss EO imposed deadlines, especially in an election year, but how these guidance document directives play in out in 2020 may bear watching.