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Senator Lankford Applauds Administration’s Commitment to Regulatory Reform

OKLAHOMA CITY, OK – Senator James Lankford (R-OK), Chairman of the Senate Homeland Security and Governmental Affairs Committee Subcommittee on Regulatory Affairs and Federal Management, today praised the Administration’s announcement of two executive orders (EOs) regarding transparency in agency guidance.  

The two executive orders, entitled “Bringing Guidance out of Darkness” and “Transparency and Fairness,” will help bring light to guidance documents issued by federal agencies. These EOs will ensure guidance is always published online and publicly available; will clarify that guidance documents are exactly that, guidance, and not a legally binding regulation that can be the basis for enforcement action; and will require guidance to be subject to review by the Office of Information and Regulatory Affairs (OIRA).

“I appreciate the Administration’s attention to these important issues with agency guidance and how it affects Americans who interact with our federal government,” said Lankford. “While we still need to codify these steps in law to ensure any future administration cannot reverse them, these Executive Orders represent a great first step to help clarify what agency guidance is and what it isn’t. Although federal regulatory reform is not trending on Twitter, it is important day-to-day oversight work Congress needs to do to ensure compliance with the Administrative Procedure Act. I look forward to continuing to work with Ranking Member Sinema on our good government bills that ultimately benefit the American people and make our government more efficient and effective.” 

The Bringing Guidance out of Darkness EO will

  • Require all guidance documents to be published online and in a searchable format
  • Require agencies to review all current guidance documents and rescind those no longer in effect
  • Require significant guidance documents go through OIRA review, including cost-benefit analysis
  • Clarify that guidance is non-binding
  • Require notice and public comment on significant guidance documents
  • Provide the public with an opportunity to petition the repeal of any guidance documents
  • Apply only to Executive Branch agencies

The Transparency and Fairness EO will

  • Prohibit the use of guidance to impose new policy
  • Prohibit an agency from relying on guidance as the basis of enforcement actions
  • Require that in the case an agency does cite guidance documents in an enforcement action, the agency clarify that the guidance is only its interpretation of the applicable statute or regulation and is not controlling and must cite the applicable statute or regulation that was violated and triggered the enforcement action
  • Clarify that a guidance document may not be cited by an agency in any enforcement action unless it was first posted online and prevent agencies from surprising the public with new interpretations of statutes or regulations—only those interpretations of which the public had notice may be cited
  • Allow regulated parties the opportunity to contest enforcement actions in person
  • Apply only to Executive Branch agencies