Fairness in Enforcement (E.O. 13892)

Summary

Makes federal agencies publish their rules and interpretations publicly before they can punish people or businesses for not following them.

What problem does this solve?

Government agencies sometimes used unpublished internal guidance to enforce rules, which was unfair to people who did not know the rules existed. This order requires agencies to make all rules and standards public before taking action, ensuring everyone has fair warning.

What does this order do?

Limits the use of guidance documents

Prohibits agencies from using internal guidance documents to create new rules or punish people. Enforcement actions must be based on official laws and regulations.

Requires fair warning before enforcement

Mandates that agencies can only enforce rules that have been publicly stated, preventing 'unfair surprise' for individuals and businesses.

Mandates public notice for new agency powers

Requires agencies to publish any new or expanded claims of their power to regulate before they can enforce them.

Gives people a chance to be heard

Ensures individuals and businesses have an opportunity to respond to an agency's findings before a final action with legal consequences is taken against them.

Establishes rules for agency inspections

Directs agencies that conduct civil inspections to publish rules explaining how those inspections are carried out.

Encourages self-reporting of violations

Asks agencies to create procedures that encourage businesses to voluntarily report their own rule violations in exchange for smaller penalties.

Who does this affect?

Federal agencies
Businesses and individuals regulated by federal agencies

What is the real world impact?

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Increases government accountability

Forces agencies to operate in the open by publishing the rules they use for enforcement. This makes it easier for the public and courts to hold them accountable for their actions.

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Protects individuals and businesses from unfair penalties

Prevents agencies from punishing people based on secret or unclear rules. It ensures that everyone knows what is expected of them before an agency can take action against them.

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Could slow down agency enforcement actions

Critics might argue that adding these transparency and procedural steps could make it harder and slower for agencies to enforce important health, safety, and environmental regulations, potentially benefiting regulated industries.

When does this start?

This order took effect on October 9, 2019, and sets several deadlines for federal agencies to update their procedures.

Rules for administrative inspections

Within 120 days of October 9, 2019, agencies must publish rules of procedure for how they conduct civil inspections.

Report on SBREFA compliance

Within 180 days of October 9, 2019, agencies must submit a report to the President showing they comply with the Small Business Regulatory Enforcement Fairness Act.

Procedures for cooperative enforcement

Within 270 days of October 9, 2019, agencies must propose procedures for voluntary self-reporting and information sharing, or explain why it is not practical.