Washington, D.C. (November 26, 2019) - On October 31, 2019, the Office of Management and Budget, Office of Information and Regulatory Affairs (OIRA), published a memorandum (the OIRA memo) instructing the regulatory agencies on how to implement an October 9, 2019 Executive Order, EO 13891, "Promoting the Rule of Law Through Improved Agency Guidance Documents." (See our October 17 legal alert covering this EO and EO 13892, which both set forth strict requirements for how agencies use informal or draft policy documents and require transparent, public processes for the issuance of guidance, as well as its use in civil enforcement actions).
EO 13891 requires agencies to ensure that any effort to impose legally binding requirements on regulated entities must proceed through the rulemaking process. It also establishes a single, searchable website of all guidance documents and makes clear those documents lack the force of law, and further rescinds all guidance documents that should no longer be in effect.
The OIRA memo sets firm deadlines for carrying out these directives. It also integrates the Administration's regulatory reform efforts into OIRA's Good Guidance Bulletin on best practices that agencies should follow, increasing the durability of these improvements. These changes, discussed in more detail below, create opportunities for businesses to engage with agencies on the development of procedures for issuance of guidance and determinations of which guidance documents should be retained or rescinded.
Deadlines Create Opportunities for Engagement
The OIRA memo establishes important deadlines. First, the memo requires agencies to submit proposed regulations setting forth procedures for issuing guidance documents to OIRA by January 29, 2020, and final regulations no later than April 28, 2020.
By February 28, 2020, agencies must establish a searchable website of all effective guidance documents. Any guidance document not appearing on the agency's website will be considered rescinded unless the agency reinstates the guidance by June 27, 2020. Because these deadlines force near-term agency action, they provide significant opportunities for industries to engage in agency decision-making on what guidance will remain in force.
The memo defines "guidance" broadly to include policy statements, manuals, bulletins, and advisories, and specifically excludes certain internal agency statements that do not set forth agency policy or interpret a statute or regulations. The following are also expressly excluded from the memo: rules of agency practice, adjudicative decisions, and legal briefs and opinions.
The memo requires a separate Regulatory Impact Analysis for any guidance document with a cost benefit impact of $100 million in one year. Notably, the memo requires the prominent inclusion of a disclaimer on each guidance document specifying that the document does not have "the force and effect of law and [is] not meant to bind the public in any way." (See the OIRA memo at 6.)
Takeaways
The Administration hopes these changes will help regulated parties to understand standards for compliance and provide a clear process for agencies to follow in developing new guidance. Interested parties should monitor these developments closely and take advantage of upcoming opportunities to engage.
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