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Inside Washington
Trump regulatory overreach EO.jpg Official White House Photo by Shealah Craighead
President Donald J. Trump displays his signature after signing Executive Orders on Transparency in Federal Guidance and Enforcement Wednesday, Oct. 9, 2019, in the Roosevelt Room of the White House.

Executive orders address federal overreach

All agency guidance must be made public before federal government takes enforcement action.

In his ongoing promise to roll back unnecessary regulations, President Donald Trump signed two executive orders Wednesday to improve transparency and fairness surrounding federal regulatory guidance.

Trump’s executive orders, “Bringing Guidance out of the Darkness” and “Transparency and Fairness,” will make all agency guidance available to the public before agencies can enforce it. This will allow small businesses and individuals to respond to the guidance before the federal government imposes fines or punishments on them.

Federal agencies routinely write official guidance to explain how federal statutes and regulations are interpreted and enforced. Agencies, however, often do not make this guidance public. While this guidance is not legally binding, agencies often threaten enforcement actions based on views expressed solely in guidance. Agencies use guidance hidden from the public to threaten individuals and businesses into abiding by agency views in order to avoid fines or jail time.

Trump’s executive orders will restrict agencies’ use of guidance in several important ways:

  • Agencies have 120 days to inventory their existing guidance and decide what to defend keeping.
  • Every guidance with penalties must identify the particular statute or regulation that authorizes it.
  • All enforcement standards have to be articulated in advance, not invented on the fly.
  • Administrative inspection authority has to be spelled out in advance, so searches adhere to law.
  • The orders help solve the problem of guidance evading judicial review when it’s not final agency action.
  • Before any adverse legal consequences may start, an agency has to notify targets of the charges against them, give them a chance to respond and then reply to that response in writing.
  • Agencies must put processes in place that permit people to petition them to revoke certain guidances.

Two members of the National Cattlemen's Beef Association joined Trump at a White House event spotlighting past federal overreach by the U.S. Department of the Interior and the Environmental Protection Agency.

Kevin Lunny of Point Reyes, Cal., was on hand to participate in the White House event. Lunny was the owner of the Drakes Bay Oyster Co., which was forced to close in 2015 after a years-long battle with the National Park Service, U.S. Department of Interior and radical environmental groups that attracted national attention and outrage.

"As cattle producers, we’re humbled to have the opportunity to advocate for our industry at the highest levels," Lunny said. "We applaud this Administration for finally giving ranching families a voice and look forward to working with the President to find solutions to these challenges.”

Rep. Doug Collins (R., Ga.), ranking member of the House Judiciary Committee, said the executive orders will help hardworking Americans by requiring agencies to make their interpretations of statutes public before taking any enforcement measures.

“Bureaucratic regulations often blindside American citizens because agencies refuse to make their guidance public. The resulting government fees often hurt small businesses, farmers and families,” Collins said. “When bureaucracy operates in the shadows, it handicaps people trying to do their jobs. President Trump’s action helps rein in that bureaucracy.”

The New Civil Liberties Alliance (NCLA) said the executive orders vindicate the nearly two dozen anti-guidance petitions NCLA has filed with federal agencies in the past year.

“Even more than the two-out/one-in executive order on issuing new regulations, today’s executive orders will dramatically alter the way agencies regulate Americans’ lives. By taking away one of the Administrative state’s favorite shortcuts, the anti-guidance executive orders will go a long way toward preventing unlawful guidance from binding anyone’s conduct,” said Mark Chenoweth, NCLA executive director and general counsel.

However, those groups that have used the current system to advance their agenda expressed concern.

Amit Narang, Public Citizen regulatory policy advocate, said regulatory guidance has been crucial to protecting the public in several ways, including limiting children’s exposure to lead, fighting the opioid addiction crisis, protecting civil rights, preventing discrimination in the workplace, ensuring that food is safe, preventing sexual assault on campuses and much more. Limiting guidance undermines one of the key tools federal agencies use to protect the public from health, safety and environmental risks.

“Guidance does not create new duties or obligations, but it does clarify regulatory interpretations and signal enforcement interpretations; as a result, it not only advances public protections, [but] it creates certainty and clarity for regulated businesses,” Narang said in a statement.

TAGS: Policy
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