Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication
Record date: 2019-10-15
( printed page 55239) Executive Order 13892 of October 9, 2019 Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section 1 . Policy. The rule of law requires transparency. Regulated parties must know in advance the rules by which the Federal Government will judge their actions. The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., was
What this record contains
- Federal Register document
- 2019-22624
- Publication date
- 2019-10-15
- Citation
- 84 FR 55239
- Issuing office
- Executive Office of the President
Official record excerpt
( printed page 55239) Executive Order 13892 of October 9, 2019 Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section 1 . Policy. The rule of law requires transparency. Regulated parties must know in advance the rules by which the Federal Government will judge their actions. The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., was enacted to provide that “administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations.” Morton v. Ruiz, 415 U.S. 199, 232 (1974). The Freedom of Information Act, America's landmark transparency law, amended the APA to further advance this goal. The Freedom of Information Act, as amended, now generally requires that agencies publish in the Federal Register their substantive rules of general applicability, statements of general policy, and interpretations of law that are generally applicable and both formulated and adopted by the agency ( 5 U.S.C. 552(a)(1)(D) ). The Freedom of Information Act also generally prohibits an agency from adversely affecting a person with a rule or policy that is not so published, except to the extent that the person has actual and timely notice of the terms of the rule or policy ( 5 U.S.C. 552(a)(1) ). Unfortunately, departments and agencies (agencies) in the executive branch have not always complied with these requirements. In addition, some agency practices with respect to enforcement actions and adjudications undermine the APA's goals of promoting accountability and ensuring fairness. Agencies shall act transparently and fairly with respect to all affected parties, as outlined in this order, when engaged in civil administrative enforcement or adjudication. No person should be subjected to a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency's jurisdiction over particular conduct and the legal standards applicable to that conduct. Moreover, the Federal Government should, where feasible, foster greater private-sector cooperation in enforcement, promote information sharing with the private sector, and establish predictable outcomes for private conduct. Agencies shall afford regulated parties the safeguards described in this order, above and beyond those that the courts have interpreted the Due Process Clause of the Fifth Amendment to the Constitution to impose. Sec. 2 . Definitions. For the purposes of this order: (a) “Agency” has the meaning given to “Executive agency” in section 105 of title 5, United States Code , but excludes the Government Accountability Office. (b) “Collection of information” includes any conduct that would qualify as a “collection of information” as defined in section 3502(3)(A) of title 44, United States Code, or section 1320.3(c) of title 5, Code of Federal Regulations , and also includes any request for information, regardless of the number of persons to whom it is addressed, that is: (i) addressed to all or a substantial majority of an industry; or (ii) designed to obtain information from a representative sample of individual persons in an industry. ( printed page 55240) (c) “Guidance document” means an agency statement of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation, but does not include the following: (i) rules promulgated pursuant to notice and comment under section 553 of title 5, United States Code , or similar statutory provisions; (ii) rules exempt from rulemaking requirements under section 553(a) of title 5, United States Code; (iii) rules of agency organization, procedure, or practice; (iv) decisions of agency adjudications under section 554 of title 5, United States Code , or similar statutory provisions; (v) internal guidance directed to the issuing agency or other agencies that is not intended to have substantial future effect on the behavior of regulated parties; or (vi) internal executive branch legal advice or legal opinions addressed to executive branch officials. (d) “Legal consequence” means the result of an action that directly or indirectly affects substantive legal rights or obligations. The meaning of this term
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