This action implements a portion of the President's recent Executive Order 13891, "Promoting The Rule Of Law Through Improved Agency Guidance Documents." In that executive order, the President directed agencies to review their guidance documents, to rescind any guidance documents that they determined should no longer be in effect, and to assemble on their websites databases containing all guidance documents that remain in effect.
Under the executive order, any guidance document not included in the agency's website database is deemed rescinded. The executive order sets out procedures for agencies to reinstate old guidance documents or to issue new guidance documents in the future.
The executive order also mandates that any reinstated or new guidance document must be included in the issuing agency's website database. The website must note that guidance documents lack the force and effect of law, except as authorized by law or as incorporated into a contract.
As part of the executive order, the Office of Management and Budget ("OMB") set a deadline of February 28, 2020, for agencies to create the new guidance document databases and to issue notices in the Federal Register announcing their creation. OMB further instructed agencies that their guidance document databases should be housed at www.[agencyname].gov/guidance.
Among the agencies that have created guidance databases on their websites are:
- U.S. Food & Drug Administration: https://www.fda.gov/regulatory-information/search-fda-guidance-documents
- U.S. Environmental Protection Agency: https://www.epa.gov/guidance
- U.S. Department of Labor: https://www.dol.gov/guidance
- U.S. Department of Education: https://www2.ed.gov/policy/gen/guid/types-of-guidance-documents.html
- U.S. Department of Homeland Security: https://www.dhs.gov/guidance
These new websites provide businesses with searchable online databases to review every guidance document still in effect at each agency. The websites are intended to give regulated businesses fair notice of agency guidance documents and to promote open and transparent regulatory processes.
Further action related to Executive Order 13891 is expected this year as agencies finalize new or amend existing regulations that set forth a process for issuing guidance documents.
Originally published 14 May, 2020
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