ExecutiveOrdersEO
EO 13892Executive OrderTrump 45 · R Quiet signal

Executive Order 13892

Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication

This executive order requires federal agencies to rely only on publicly available statutes and regulations—not unpublished guidance documents—when taking civil administrative enforcement actions or adjudications against regulated parties. It mandates advance notice of legal standards, opportunity to contest agency determinations, and sets deadlines for agencies to publish inspection rules, propose cooperative enforcement procedures, and demonstrate compliance with the Small Business Regulatory Enforcement Fairness Act.

Federal Register Open PDF 84 FR 55239

Impact dates

  1. Agencies must propose cooperative enforcement and pre-enforcement ruling procedures (or submit report explaining why not practicable)

  2. Agencies must submit SBREFA compliance reports to President

  3. Agencies must publish civil administrative inspection procedure rules

Key directives

  • Guidance documents may not impose new standards of conduct on persons outside executive branch unless expressly authorized by law or incorporated into contract
  • Agencies must apply only publicly stated standards that would not cause unfair surprise in enforcement actions and adjudications
  • New or expanded jurisdictional determinations must be published in Federal Register or on searchable agency guidance database before conduct occurs
  • Agencies must afford persons opportunity to be heard before actions with legal consequences, with exceptions for emergencies and settlement negotiations
  • Agencies conducting civil administrative inspections must publish inspection procedure rules within 120 days
  • Collections of information during investigations must display valid OMB control number or inform recipients no response is legally required
  • Agencies must propose procedures for voluntary self-reporting, information sharing, and pre-enforcement rulings within 270 days
  • Agencies must submit SBREFA compliance reports to President within 180 days
  • Multiple exemptions: foreign/military affairs, DOJ civil enforcement, national security, criminal investigations, counterfeit goods, employee misconduct investigations

Who is ordered

Timeline

Immediate

  • EO takes effect; agencies must cease using unpublished guidance documents to impose new standards of conduct

Near term (90d)

  • Agencies must publish civil administrative inspection procedure rules by February 6, 2020 (120 days)

Long term

  • Agencies must propose cooperative information sharing and pre-enforcement ruling procedures by July 5, 2020 (270 days); agencies must submit SBREFA compliance reports to President by April 7, 2020 (180 days)

Risks & tensions

  • Ambiguity in 'unfair surprise' standard may create litigation over what constitutes adequate advance notice
  • Exemption for DOJ civil enforcement actions (Sec. 11(d)(ii)) significantly narrows scope—many major enforcement actions occur through DOJ
  • Sec. 11(d)(v) grants agency heads broad discretionary power to exempt actions based on national security judgment, potentially hollowing out requirements
  • Tension between transparency goals and agency desire for enforcement flexibility; may reduce deterrent effect of guidance documents
  • 'To the extent practicable and permitted by law' language in Sec. 9 creates substantial wiggle room for agencies to avoid cooperative procedures
Executive Order 13892: Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication · Executive Orders