On October 9, 2019, President Trump issued an executive order on agency reliance on informal guidance documents. The order seeks to curb what the Administration believes to be a “back-door” practice of regulation that allows agencies to improperly bypass the formal rulemaking process. While the policy would not prohibit agencies from issuing informal guidance, such guidance must be treated as non-binding in both law and practice and may not be relied on to establish an independent basis for enforcement. Additionally, the order requires agencies to make all informal guidance readily available to the public and consider public input when formulating that guidance.
