Promoting the Rule of Law Through Improved Agency Guidance Documents

Democracy & Governance Federal Workforce Economy & Labor

In simple terms

This executive order requires federal agencies to treat guidance documents as non-binding, maintain public databases of all active guidance, rescind outdated guidance, and establish formal procedures for issuing new guidance including public notice-and-comment for significant documents. It aims to prevent agencies from using guidance documents to impose binding requirements without going through formal rulemaking under the Administrative Procedure Act.

Federal Register Open PDF 84 FR 55235

Record & deadlines

Oct 9, 2019Signed
Signed by the President
Oct 15, 2019FR published
Published in the Federal Register · 84 FR 55235
Federal Register PDF
Date TBD
Agencies establish/maintain searchable guidance database; review and rescind outdated guidance
Date TBD
Agencies finalize regulations setting processes for issuing guidance documents
Date TBD
Agencies may reinstate rescinded guidance without section 4 procedures
Date TBD
Agency heads submit reports to OMB Director on reasons for maintaining existing guidance identified by Director
Date TBD
OMB issues implementing memorandum under section 6

Key directives

OMB Director to issue implementing memoranda under Section 6 (triggers all deadlines)
Agencies must establish single searchable indexed database of all guidance documents
Agencies must rescind guidance documents no longer in effect
No agency may retain or issue guidance without including it in database
Agencies must finalize regulations with procedures for issuing guidance, including public petition process
Significant guidance documents require 30-day public notice and comment
Significant guidance documents require non-delegable approval by agency head or Presidentially-appointed component head
Significant guidance documents require OIRA review under EO 12866
Significant guidance documents must comply with applicable requirements of EOs 12866, 13563, 13609, 13771, and 13777

Who is ordered

Related orders

What to expect

Immediate

OMB Director must issue implementing memoranda to trigger all deadlines
Policy declaration that guidance documents lack force of law

Near term (90d)

Within 120 days of OMB memorandum: agencies must create searchable guidance databases
Within 120 days of OMB memorandum: agencies must review and rescind outdated guidance
Within 240 days of OMB memorandum: agencies may reinstate rescinded guidance without section 4 procedures
Within 240 days of OMB memorandum: agency heads must submit reports to OMB Director on retained guidance (existing guidance only)

Long term

Within 300 days of OMB memorandum: agencies must finalize regulations establishing procedures for issuing guidance
Ongoing: all new guidance must be included in databases
Ongoing: significant guidance requires 30-day public comment, agency head approval, and OIRA review

Risks & tensions

All deadlines are contingent on OMB first issuing an implementing memorandum; no fixed calendar date or relative deadline for this trigger is specified, creating uncertainty about when obligations actually begin
Potential tension between 'non-binding' policy goal and practical reality that guidance documents often shape enforcement priorities and regulated party behavior regardless of disclaimer
Rescission requirement may create regulatory gaps if agencies remove guidance without adequate analysis of dependencies
Exemptions for Treasury components and pre-enforcement rulings create inconsistent application across government
'Significant guidance' threshold ($100M economic effect) may capture large volume of documents, potentially slowing agency responsiveness
Good cause exceptions for notice-and-comment may be broadly invoked, weakening procedural protections
Section 7(d) national security exemption is broadly discretionary ('in the judgment of the head of the agency')