In early October, President Donald J. Trump issued two executive orders aimed to further his administration’s stated goal of reducing both executive agencies’ power and burdens on regulated entities. Both executive orders will affect how federal agencies issue informal guidance documents, through which agencies provide interpretation or clarification of regulations they have promulgated.

The first, the “transparency and fairness” executive order, clarifies that guidance documents may not be used as a basis for imposing requirements or standards of conduct on any regulated entity. It also states that agencies may only take enforcement actions or engage in adjudication in reliance on standards of conduct that have been made publicly known, and may not do so in ways that may cause “unfair surprise.” In addition, prior to taking any action having a legal consequence as to any regulated person or entity, an agency must give that person or entity an opportunity to contest enforcement.