Executive Orders Regarding the Issuance and Use of Agency Guidance: Orders Impose Publication Requirements, Heightened Requirements for “Significant Guidance Documents,” and Restrictions on the Reliance on Guidance Documents in Certain Administrative Actions

Sullivan & Cromwell LLP - October 25, 2019
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On October 9, President Trump signed two Executive Orders aimed, respectively, at (1) promoting “improved agency guidance documents” and (2) enhancing “transparency and fairness” in certain administrative enforcement actions and adjudications.  Notably, the Executive Order imposing new requirements on the issuance of guidance documents does not apply to “independent regulatory agencies,” which include the Federal Reserve, the CFTC, the FDIC, the SEC, the CFPB and the OCC.  This Memorandum describes both Executive Orders and provides some key takeaways.