Banking and Finance Law Daily Trump signs executive orders on regulatory transparency
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Thursday, October 10, 2019

Trump signs executive orders on regulatory transparency

By J. Preston Carter, J.D., LL.M.

The executive orders are to give public access to agencies’ guidance documents and to prohibit enforcement of rules that have not been made publicly known in advance.

President Trump, on Oct. 9, 2019, signed two Executive Orders intended to "improve the transparency and fairness of government agencies and ensure that they are held accountable," according to a White House Fact Sheet. The two orders are titled: Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication; and Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents.

The "Improved Agency Guidance Documents" Executive Order requires agencies to put their guidance documents on easily searchable websites so individuals are able to access them. The Fact Sheet states that its purpose is to ensure Americans have their voices heard. The Order will also require government agencies to seek public input on the most important guidance they issue. Also, Americans will be able to ask agencies to withdraw guidance they believe is wrong.

The "Transparency and Fairness" Executive Order prohibits agencies from enforcing rules they have not made publicly known in advance. The order also instructs agencies to offer opinion letters to individuals and businesses who request them, so people who want to comply with the law can learn how.

In a statement on the Executive Orders, Sen. Pat Toomey (R-Pa) said, "For too long, federal regulators have circumvented Congress and the formal rulemaking process by using ‘guidance' documents. Today's actions by the president will help to improve regulatory transparency and curb excessive fines that are levied on shaky legal ground. This is a good start, and I encourage the administration to go farther and work with Congress to wholly rein in the administrative state."

Wayne Crews, Vice President for Policy at the Competitive Enterprise Institute, commended Trump in a news release for "taking strong executive action aimed at restraining agencies from using guidance documents or 'Regulatory Dark Matter’ to effectively implement policy without at least adhering to the legally required notice and comment process created by the Administrative Procedure Act nor submitting guidance to Congress and the GAO as required for review."

However, a news release from the consumer advocacy organization Public Citizen stated, "Regulatory guidance has been crucial to protecting the public" by, for example, "limiting children’s exposure to lead, fighting the opioid addiction crisis, protecting civil rights, preventing discrimination in the workplace, ensuring our food is safe, preventing sexual assault on campus and much more." The organization said, "Guidance does not create new duties or obligations, but it does clarify regulatory interpretations and signal enforcement interpretations; as a result, it not only advances public protections, it creates certainty and clarity for regulated businesses."

Companies: Competitive Enterprise Institute; Public Citizen

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