The EEOC will publish a notice in tomorrow’s Federal Register announcing the launch of a new “searchable, indexed database containing all EEOC guidance documents currently in effect.” EEOC guidance documents have not historically been difficult to find, but this new, centralized database is in response to Executive Order 13891 issued by President Trump on October 9, 2019.
The Executive Order takes issue with the practice of Executive Branch agencies imposing legally binding requirements on the public outside of the rulemaking processes contained in the Administrative Procedures Act (APA) and the Paperwork Reduction Act (PRA), arguing that such practices usurp Congress’s Constitutional legislative power. Guidance documents can be used to clarify existing obligations contained in the laws passed by Congress, but cannot be used to effectively create new law. However, the line between clarification and new law is not always clear.
Nonetheless, the Trump Administration has explicitly ordered Executive agencies to treat guidance documents “as non-binding both in law and in practice, except as incorporated into a contract.” Agencies are also instructed to “take public input into account when appropriate in formulating guidance documents,” and to make those documents “readily available to the public.”
The Executive Order directs the Office of Management and Budget (OMB), an Executive Branch agency, to “issue memoranda” implementing the order, which are presumably binding on all Executive agencies. In turn, the Executive agencies have 120 days from the issuance of OMB memoranda to review their guidance documents, rescind any they deem should be no longer be in effect, and to launch their guidance document databases. On October 31, 2019, OMB issued Memorandum M-20-02, giving Executive agencies until February 28, 2020 to comply.
The EEOC and the Department of Defense appear to be the first out of the gate. The EEOC’s guidance portal will go live on the February 28 deadline and will be located at www.eeoc.gov/guidance. The Department of Defense has already launched its “portal” at https://open.defense.gov/Regulatory-Program/Guidance-Documents/, though the announcement is not set to be published in the Federal Register until tomorrow.
The Executive Order also instructs Executive agencies to implement regulations (or revise existing regulations) regarding processes and procedures for issuing new guidance documents. Agencies will be required to clearly state that guidance is non-binding, and provide procedures for the public to petition for withdrawal or modification of a document. If a guidance document is deemed “significant,” agencies must also provide for a period of public notice and comment of at least 30 days and seek approval from the Office of Information and Regulatory Affairs within OMB. This provision effectively makes “significant guidance documents,” as defined in the Executive Order, subject to a mini-PRA.
What does all this mean in practical terms? That remains to be seen, but it should increase transparency. And it should increase stability and predictability for regulated communities. It will also likely lead to a lot of guidance revision and rule-making (or pseudo-rule-making). In other words, there could be a lot of changes coming down the pike.
One practical example jumps to mind regarding federal contractors. Contractors subject to the VEVRAA and/or Section 503 affirmative action regulations must annually prepare a “data collection analysis” that includes total headcounts of all “job openings,” “jobs filled,” and “hires” in the preceding 12 months. The OFCCP’s regulations do not define those terms. Rather, those terms are defined somewhat confusingly and inconsistently in the agency’s “FAQs,” which are guidance documents under the Executive Order. The OFCCP should explicitly treat those definitions as non-binding, meaning contractors do not have to follow them, and contractors should soon have a clear avenue for requesting that the OFCCP either rescind or revise those definitions.
But the potential impact of the Executive Order is myriad. At the very least, lawyers will be sharpening their pencils over any potential enforcement action that isn’t tied to an explicit regulatory citation, which could get very interesting. For instance, what is the OFCCP’s legal basis supporting the popular violation of “insufficient outreach” under the AAP regulations for women and/or people of color? This author has never been able to find it. We will all just need to buckle-up and see where all this leads.