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White House Orders Target Non-Binding Guidance

The White House recently issued executive orders aimed at scaling back government agencies’ use of non-binding guidance. One executive order noted that agencies have used non-binding guidance inappropriately “in attempts to regulate the public without following the rulemaking procedures of the [Administrative Procedure Act].” The White House states that even when accompanied by a disclaimer that it is non-binding, a guidance document “may carry the implicit threat of enforcement action if the regulated public does not comply.” The Treasury Department and IRS have already begun to limit their use of sub-regulatory guidance, according to a Bloomberg article. Independent agencies such as the SEC are not subject to presidential executive orders.

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