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EO 13891Executive OrderTrump 45 · R Quiet signal

Executive Order 13891

Promoting the Rule of Law Through Improved Agency Guidance Documents

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federal agencies to treat guidance documents as non-binding, maintain public databases of all active guidance, rescind outdated guidance, and establish formal procedures for issuing new guidance including public notice-and-comment for significant documents.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

Impact dates

  1. Agencies establish/maintain searchable guidance database; review and rescind outdated guidance

  2. Agencies finalize regulations setting processes for issuing guidance documents

  3. Agencies may reinstate rescinded guidance without section 4 procedures

  4. Agency heads submit reports to OMB Director on reasons for maintaining existing guidance identified by Director

  5. 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  • Agencies must rescind guidance documents no longer in effect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

Timeline

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  • Within 120 days of OMB memorandum: agencies must review and rescind outdated guidance
  • Within 240 days of OMB memorandum: agencies may reinstate rescinded guidance without section 4 procedures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')
Executive Order 13891: Promoting the Rule of Law Through Improved Agency Guidance Documents · Executive Orders