FEDERAL AGENCIES MUST POST ALL GUIDANCE ON THEIR WEBSITE BY NEXT FEBRUARY OR SUCH WILL BE CONSIDERED RESCINDED

Last month, this newsletter reported that President Trump, on October 9, signed two executive orders to reduce the impact of agency guidance that had become a back door means of regulation.  Agencies are supposed to review all their federal guidance documents and rescind those no longer in effect.  The Office of Management and Budget has given agencies until February 28, 2020 to list all their operative industry guidance documents and post them to a single departmental website. 

In a related development, the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) announced that they, too, will meet these requirements, even though as independent agencies, they are outside the normal requirements. 

Guidance from federal agencies is a double-edged sword to industry.  On the one hand, many administrations have used such guidance to change the law without going through the normal notice and comment period, but on the other hand, some in industry like whatever advice they can get on compliance requirements of complicated legal issues.  The new executive order will definitely promote transparency and consistency by requiring such postings to a central website.