On October 9, 2019, President Donald Trump put forth two new Executive Orders (EO) that are of interest to the regulated community at large.
Both Executive Orders are intended to help regulated entities clearly identify, understand, and comply with the regulations that impact their businesses. As President Trump put it in his official remarks, the Orders are designed to "protect Americans from out-of-control bureaucracy and stop regulators from imposing secret rules and hidden penalties on the American people."
EO #1: Transparency and Fairness in Administrative Enforcement and Adjudication
The “Transparency and Fairness” Executive Order lays out stricter standards for how Federal agencies may exercise their enforcement authority in cases of regulatory noncompliance.
The "Transparency and Fairness" Executive Order:
- Requires agencies to give regulated persons a chance to respond (in person or in writing) to proposed enforcement actions before the agency issues a no-action letter, notice of noncompliance, or a similar notice.
- Clarifies restrictions on how agencies can use guidance documents. An agency “may not treat noncompliance with a standard of conduct announced solely in a guidance document itself as a violation of applicable statutes or regulations.”
- Requires agencies to avoid “unfair surprise” when engaging in enforcement actions and other consequential determinations.
- Requires agencies to make public any documentation that asserts a new or expanded claim to jurisdiction—such as administrative orders, agency documents, and consent decrees—before exercising that jurisdiction in other cases.
- Requires executive agencies (such as US EPA, US DOT, OSHA, etc.) to “publish a rule of agency procedure governing … inspections” within 120 days (if such a rule does not already exist.)
In addition, the Executive Order
requires agencies to encourage voluntary self-reporting of regulatory violations in exchange for reductions or waivers of civil penalties, and promotes more information sharing among regulated parties.
Read the full EO here.
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EO #2: Improved Agency Guidance Documents
A second Executive Order released on October 9 addresses Federal agency guidance documents. Because regulations are complex, confusing, and written in the dense language of government, agencies like OSHA, US DOT, or US EPA commonly produce guidance documents to explain or clarify how the agency enforces or interprets a specific rule or rules.
Concerns have been raised in recent years about the scope of these guidance documents, and whether agencies have used “guidance” as an end-around to the normal regulatory process. Guidance documents should
not introduce any new legally-enforceable standards not already required by regulation.
The "Guidance Document" Executive Order will require Federal agencies to:
- Establish/maintain a searchable database of all guidance documents.
- Create/amend regulations to set for processes, procedures for issuing guidance documents.
- Provide more clarity about the fact that guidance docs being “non legally binding.”
Read the full EO here.
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