Federal Agencies Open Guidance Document Portals; Result of Executive Orders That Bring More Transparency to Regulatory Process

As of March 5, a majority of federal agencies, including the Department of Labor (DOL) and Environmental Protection Agency, have launched guidance portals in accordance with a pair of executive orders (EO 13891 and EO 13892). These measures, signed by President Trump in October 2019, intend to reduce the impact of agency guidance the White House believes has become a back-door means of regulation. The orders target significant guidance that could have the potential to impact the economy, the environment, public health, or state, local, or tribal communities.

Such guidance is supposed to be—but often isn’t—reviewed first by the Office of Management and Budget (OMB). One order requires agencies to post guidance—including letters, adjudication decisions, or even press releases—on one easily accessible and searchable website by Feb. 28. The order also requires each agency to review all of its guidance documents and, consistent with applicable law, rescind those guidance documents that it determines should no longer be in effect. AGC supports these measures as they seek to add more transparency and efficiency to the regulatory process.

Although the deadline to establish guidance portals was Feb. 28, there is a grace period through June 27 for agencies to go back and post documents they may have missed the first time. The order exempts violation notices, advisory or legal opinions directed to particular parties about circumstance-specific questions, and agency correspondence with individual persons or entities.

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