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White House Orders Agencies To Offer Opinion Letters Or Does It?

Last month, the White House issued this fact sheet concerning two executive orders intended "to improve the transparency and fairness of government agencies and ensure that they are held accountable".  The fact sheet describes the "Transparency and Fairness" executive order as instructing agencies "to offer opinion letters to individuals and businesses who request them, so people who want to comply with the law can learn how". 

The order, in fact, is not quite so absolute.  It only requires that within 270 days agencies to the extent practicable and permitted by law propose procedures "to provide pre-enforcement rulings to regulated parties".  A "pre-enforcement ruling" is defined as a "formal written communication from an agency in response to an inquiry from a person concerning compliance with legal requirements that interprets the law or applies the law to a specific set of facts supplied by the person".  The term includes informal guidance under section 213 of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (Title II), as amended, letter rulings, advisory opinions, and no action letters.

The order defines "agency" by reference to 5 U.S.C. Section 105.  That statute defines "executive agency" to mean "an Executive department, a Government corporation, and an independent establishment".  The Securities and Exchange Commission would appear to be "independent establishment" as defined in 5 U.S.C. Section 104 and hence subject to the executive order.  The SEC, however, already provides guidance on how to request no-action, interpretive, and exemptive letters.  See also SEC Release No. 33-5127 (Jan. 25, 1971) and Release No. 33-6269 (Dec. 5, 1980).

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