Processes and Procedures for Issuance and Use of Guidance Documents
| Published date | 07 October 2020 |
| Citation | 85 FR 63200 |
| Record Number | 2020-19030 |
| Section | Rules and Regulations |
| Court | The Attorney General Office |
Federal Register, Volume 85 Issue 195 (Wednesday, October 7, 2020)
[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Rules and Regulations]
[Pages 63200-63204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19030]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 50
[Docket No. OAG 169; AG Order No. 4803-2020]
RIN 1105-AB61
Processes and Procedures for Issuance and Use of Guidance
Documents
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Interim final rule; request for comments.
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SUMMARY: This rule sets forth the Department's processes and procedures
governing the review, clearance, and issuance of guidance documents and
codifies existing Department limitations on the use of Department
guidance documents in criminal and civil enforcement actions brought by
the Department.
DATES:
Effective date: This rule is effective October 7, 2020.
Comments: Comments are due on or before November 6, 2020.
ADDRESSES: To ensure proper handling of comments, please reference
Docket No. OAG 169 on all electronic and written correspondence. The
Department encourages the electronic submission of all comments through
https://www.regulations.gov using the electronic comment form provided
on that site. For ease of reference, an electronic copy of this
document is also available at that website. It is not necessary to
submit paper comments that duplicate the electronic submission, as all
comments submitted to https://www.regulations.gov will be posted for
public review and are part of the official docket record. However,
should you wish to submit written comments through regular or express
mail, they should be sent to Robert Hinchman, Senior Counsel, Office of
Legal Policy, U.S. Department of Justice, Room 4252 RFK Building, 950
Pennsylvania Avenue NW, Washington, DC 20530. Comments received by mail
will be considered timely if they are postmarked on or before November
6,
[[Page 63201]]
2020. The electronic Federal eRulemaking portal will accept comments
until Midnight Eastern Time at the end of that day.
FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel,
Office of Legal Policy, U.S. Department of Justice, Room 4252 RFK
Building, 950 Pennsylvania Avenue NW, Washington, DC 20530, telephone
(202) 514-8059 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at
https://www.regulations.gov. Information made available for public
inspection includes personal identifying information (such as your
name, address, etc.) voluntarily submitted by the commenter.
You are not required to submit personal identifying information in
order to comment on this rule. Nevertheless, if you want to submit
personal identifying information (such as your name, address, etc.) as
part of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You must also locate all the personal
identifying information that you do not want posted online in the first
paragraph of your comment and identify what information you want the
agency to redact. Personal identifying information identified and
located as set forth above will be placed in the agency's public docket
file, but not posted online.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify the confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, the agency may choose not to post that comment
(or to post that comment only partially) on https://www.regulations.gov. Confidential business information identified and
located as set forth above will not be placed in the public docket
file, nor will it be posted online.
If you want to inspect the agency's public docket file in person by
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
II. Discussion
The Department is committed to ensuring the fair and impartial
administration of justice. This principle extends to the Department's
issuance and use of guidance documents. Pursuant to 5 U.S.C. 301 and
Executive Order 13891, ``Promoting the Rule of Law Through Improved
Agency Guidance Documents,'' 84 FR 55235, the Department issues this
rule to codify processes and procedures for the issuance and use of
guidance documents that will enhance the fair and impartial
administration of justice.
The Department recently codified in its regulations the Memorandum
for All Components, ``Prohibition on Improper Guidance Documents,''
issued by then-Attorney General Jefferson B. Sessions III, which set
certain limitations on the issuance of guidance documents. Att'y Gen.
Order No. 4769-2020 (July 24, 2020). This rule builds on that
regulation, providing specific processes and procedures governing the
review, clearance, and issuance of guidance documents, along with
procedures to petition for the withdrawal or modification of a guidance
document consistent with Executive Order 13891. This rule also
incorporates into the Code of Federal Regulations existing Department
policy limitations on the use of guidance documents in criminal and
civil enforcement actions brought by the Department.
A. Attorney General Sessions's Memorandum of November 16, 2017
As mentioned earlier in this preamble, the Department recently
codified the Memorandum for All Components, ``Prohibition on Improper
Guidance Documents,'' issued by then-Attorney General Jefferson B.
Sessions III on November 16, 2017. That regulation set forth general
definitions, principles, and compliance procedures required when the
Department, including any of its components, issues a guidance
document. This rule elaborates on those definitions, principles, and
compliance procedures in light of Executive Order 13891.
B. Executive Order 13891, ``Promoting the Rule of Law Through Improved
Agency Guidance Documents''
On October 9, 2019, President Donald J. Trump issued Executive
Order 13891, ``Promoting the Rule of Law Through Improved Agency
Guidance Documents.'' Pursuant to that Executive Order, Executive
departments and agencies are required to ``finalize regulations, or
amend existing regulations as necessary, to set forth processes and
procedures for issuing guidance documents.'' 84 FR at 55237. This rule
incorporates requirements outlined in the Executive Order that were not
otherwise provided for in the Department's existing processes and
procedures for issuing guidance documents.
C. Limitations on the Use of Guidance Documents in Litigation
In addition to the enhancements described above, this rule codifies
existing Department policies limiting the use of guidance documents in
criminal and civil enforcement actions initiated by the Department.
These existing policies are designed to ensure that enforcement actions
satisfy principles of accountability and fair notice. Codification of
these policies in the Code of Federal Regulations will further enhance
transparency.
III. Regulatory Certifications
A. Administrative Procedure Act
This rule relates to a matter of agency management or personnel and
is a rule of agency organization, procedure, or practice. As such, this
rule is exempt from the usual requirements of prior notice and comment
and a 30-day delay in effective date. See 5 U.S.C. 553(a)(2), (b)(A),
(d). However, the Department is, in its discretion, seeking public
comment on this rulemaking.
B. Regulatory Flexibility Act
A Regulatory Flexibility Analysis was not required for this final
rule because the Department was not required to publish a general
notice of proposed rulemaking for this matter. See 5 U.S.C. 601(2),
604(a).
C. Executive Orders 12866, 13563, and 13771--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), The Principles of Regulation, and Executive Order 13563,
``Improving Regulation and Regulatory Review,'' section 1(b), General
Principles of Regulation.
This final rule is ``limited to agency organization, management, or
personnel matters'' and thus is not a ``rule'' for purposes of review
by the Office of Management and Budget (OMB), a determination in which
OMB has concurred. See Executive Order 12866, sec. 3(d)(3). Accordingly
this rule has not been formally reviewed by OMB.
This rule is not subject to the requirements of Executive Order
13771, ``Reducing Regulation and Controlling Regulatory Costs,''
because it is a regulation ``related to agency
[[Page 63202]]
organization, management, or personnel.'' Sec. 4(b).
D. Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in section
3(a) and 3(b)(2) of Executive Order 12988, ``Civil Justice Reform.''
E. Executive Order 13132--Federalism
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Executive Order
13132, ``Federalism,'' the Department has determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
F. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more (adjusted for inflation) in any one year, and it will
not significantly or uniquely affect small governments. Therefore, no
actions are necessary under the provisions of the Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1501 et seq.
G. Congressional Review Act
This rule is not a major rule as defined by section 804 of the
Congressional Review Act, 5 U.S.C. 804. This action pertains to agency
management or personnel, and agency organization, procedure, or
practice, and does not substantially affect the rights or obligations
of non-agency parties. Accordingly, it is not a ``rule'' as that term
is used in the Congressional Review Act, 5 U.S.C. 804(3)(B), (C), and
the reporting requirement of 5 U.S.C. 801 does not apply.
H. Paperwork Reduction Act of 1995
This final rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3521.
List of Subjects in 28 CFR part 50
Administrative practice and procedure.
Accordingly, for the reasons set forth in the preamble, part 50 of
chapter I of title 28 of the Code of Federal Regulations is amended as
follows:
PART 50--STATEMENTS OF POLICY
0
1. The authority citation for part 50 continues to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 28 U.S.C. 509, 510,
516, and 519; 42 U.S.C.1921 et seq., 1973c; and Pub. L. 107-273, 116
Stat. 1758, 1824.
0
2. Add Sec. 50.27 to read as follows:
Sec. 50.27 Processes and procedures for issuance and use of guidance
documents.
(a) Definitions--(1) Guidance document has the same meaning
described in Sec. 50.26 of this part. A guidance document does not
impose new standards of conduct on persons outside the Executive
Branch, except as expressly authorized by statute or as expressly
incorporated into a contract.
(2) Significant guidance document means a guidance document that
may reasonably be anticipated to:
(i) Lead to an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(ii) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(iii) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(iv) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles of Executive
Order 12866.
(3) Pre-enforcement ruling means a formal written communication by
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. Pre-enforcement ruling
includes, but is not limited to:
(i) Informal guidance under section 213 of the Small Business
Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (Title
II), as amended;
(ii) Letter rulings;
(iii) Advisory opinions; and
(iv) No-action letters.
(4) Guidance Portal means the single, searchable, indexed database
located at www.justice.gov/guidance that the Department has established
pursuant to section 3(a) of Executive Order 13891.
(5) Contract includes, but is not limited to, a grant or
cooperative agreement.
(b) Limitation on use of guidance documents in litigation. (1)
Criminal and civil enforcement actions brought by the Department must
be based on violations of applicable legal requirements, not mere
noncompliance with guidance documents issued by federal agencies,
because guidance documents cannot by themselves create binding
requirements that do not already exist by statute or regulation. Thus,
the Department should not treat a party's noncompliance with a guidance
document as itself a violation of applicable statutes or regulations.
The Department must establish a violation by reference to statutes and
regulations. The Department may not bring actions based solely on
allegations of noncompliance with guidance documents. Consistent with
Part 1-20.000 of the Department's Justice Manual, the Department may
continue to rely on agency guidance documents for purposes, including
evidentiary purposes that are otherwise lawful and consistent with the
Federal Rules of Evidence, that do not treat such documents as
independently creating binding requirements that do not already exist
by statute or regulation.
(2) The Department shall not seek deference to any guidance
document issued by the Department or any component after the effective
date of this rule that does not substantially comply with the
requirements of paragraphs (c) and (d) of this section.
(c) Requirements for Department of Justice issuance of guidance
documents--(1) Requirements for issuance of all guidance documents. (i)
Guidance documents may not be used as a substitute for regulation and
may not be used to impose new standards of conduct on persons outside
the Executive Branch, except as expressly authorized by statute or as
expressly incorporated into a contract.
(ii) Each guidance document shall clearly state that it does not
bind the public, except as expressly authorized by statute or as
expressly incorporated into a contract. This clear statement shall be
prominent in each guidance document.
(A) The clear statement shall consist of the following: ``The
contents of this document do not have the force and effect of law and
are not meant to bind the public in any way. This document is intended
only to provide clarity to the public regarding existing requirements
under the law or Department policies.''
(B) Where a guidance document is binding because binding guidance
is expressly authorized by statute or the guidance document is
expressly incorporated into a contract with a specific party or
parties, the clear statement described in paragraph
[[Page 63203]]
(c)(1)(ii)(A) of this section shall be modified to reflect either of
those facts.
(C) Nothing in this section shall be construed to prevent a
guidance document from stating that the underlying law it discusses, as
opposed to the guidance document itself, is binding.
(iii) Each guidance document shall:
(A) Include the term ``guidance'';
(B) Identify the component issuing or maintaining the document;
(C) Identify the activities to which and the persons to whom the
document applies;
(D) Include the date of issuance;
(E) Note if it is a revision to a previously issued guidance
document and, if so, identify the guidance document that it replaces;
(F) Provide a title and unique document identification number;
(G) Include citations of the statutory provisions or regulations to
which it applies or which it interprets;
(H) Include the clear statement specified in paragraph (c)(1)(ii)
of this section; and
(I) Include, at the top of the document, a short summary of the
subject matter covered in the document.
(2) Requirements for significant guidance documents. Unless the
Department, or a component, has sought and obtained an exemption
pursuant to section 4(a)(iii) of Executive Order 13891, the following
requirements shall apply to a significant guidance document, except
that the following requirements shall not apply to a pre-enforcement
ruling:
(i) Approval and signature. Before issuance, a significant guidance
document shall be approved and signed, on a non-delegable basis, by the
Attorney General, by the Deputy Attorney General, or by the head of a
component whose appointment to office is required to be made by the
President.
(ii) Submission to the Office of Information and Regulatory Affairs
(``OIRA'') of the Office of Management and Budget (``OMB''). Before
issuance, a significant guidance document shall be submitted to OIRA,
through the Department's Office of Legal Policy, for review under
Executive Order 12866, unless the Administrator of OIRA has issued a
categorical exception applicable to the guidance document through a
memorandum issued pursuant to section 4(b) of Executive Order 13891.
The Department will seek a determination of significance from OIRA for
certain guidance documents, as appropriate, in the same manner as for
rulemakings.
(iii) Notice and comment and response. (A) Before issuance, a
significant guidance document shall be made available for public notice
and comment for no less than 30 days, except when the Department or a
component finds that notice and public comment are impracticable,
unnecessary, or contrary to the public interest. Any such finding, and
a brief statement of reasons therefor, shall be incorporated into any
significant guidance document that is not made available for public
notice and comment.
(B) Notice that a draft significant guidance document is available
for public comment shall be accomplished by publication of a notice in
the Federal Register and posting of the draft significant guidance
document on the Guidance Portal. The document that is published in the
Federal Register shall announce the availability of a draft significant
guidance document, provide a title and descriptive summary of the draft
significant guidance document, and state the length of the comment
period and the method or methods by which public comments may be
submitted.
(C) The Department shall ensure that persons with disabilities are
afforded an opportunity to comment during any period of public notice
and comment that is equal to that afforded to other members of the
public.
(D) The Department shall make comments available to the public for
online review by posting them on the Guidance Portal or on another
website with a direct link to the Guidance Portal.
(E) The Department or a component seeking to issue a significant
guidance document need not respond to every comment or issue raised in
a comment, but the Department or a component shall provide a public
response to each major concern raised in comments. The Department or a
component shall also provide a public explanation of the Department's
or component's choices in the final guidance document, including why
the Department or component did or did not agree with relevant
suggestions from commenters.
(F) The public response to comments shall be incorporated into the
final guidance document or into a companion document that is made
available on the Guidance Portal.
(iv) The development and issuance of significant guidance documents
shall comply with the applicable requirements for regulations or rules,
including significant regulatory actions, set forth in Executive Orders
12866, 13563, 13609, 13771, and 13777.
(3) Contact. Components having questions regarding implementation
of Sec. 50.27(c) should contact the Department's Office of Legal
Policy.
(d) Public access to all guidance documents. (1) All final guidance
documents for which OMB has not issued a waiver or extension pursuant
to section 3(c) of Executive Order 13891 shall be publicly available on
the Guidance Portal.
(2) Except for a guidance document for which OMB has issued a
waiver or extension pursuant to section 3(c) of Executive Order 13891,
a guidance document shall not represent the Department's policy on a
statutory, regulatory, or technical issue or represent the Department's
interpretation of a statute or regulation unless and until it is
publicly available on the Guidance Portal.
(e) Department's reliance on guidance documents. (1) No guidance
document that has been withdrawn or superseded by modification may be
cited, used, or relied upon by the Department for purposes other than
to establish historical facts.
(2) Final guidance documents that are expressly incorporated into a
contract with a specific party or parties may be cited, used, or relied
upon by the Department with respect to that contract.
(3) Except as provided in paragraph (e)(2) of this section, of the
final guidance documents for which OMB has not issued a waiver or
extension pursuant to section 3(c) of Executive Order 13891, only those
that are publicly available on the Guidance Portal may be cited, used,
or relied upon by the Department for purposes other than to establish
historical facts.
(f) Procedure to petition for withdrawal or modification of a
guidance document. (1) Any member of the public may petition to
withdraw or modify a guidance document.
(2) A member of the public wishing to petition for the withdrawal
or modification of a guidance document shall submit a petition in
writing, directed to the component that issued or maintains the
guidance document, containing a statement of reasons for the petition.
Upon receipt of a petition for withdrawal or modification, the
receiving component shall forward a copy of the petition to the
Department's Office of Legal Policy, which shall coordinate such
requests.
(3) The Guidance Portal shall provide clear instructions to members
of the public regarding how to submit a petition for the withdrawal or
modification of a guidance document, including an email address or web
portal where electronic petitions can be submitted, a mailing address
where
[[Page 63204]]
petitions can be submitted, and instructions that petitions shall:
(i) Be in writing (which may include using electronic means) and,
if the petition is not in English, be accompanied by an English
translation;
(ii) Be directed to the component that issued or maintains the
guidance document;
(iii) Be titled as a petition for withdrawal or a petition for
modification of a guidance document;
(iv) Identify the guidance document at issue; and
(v) Contain a statement of the reasons for the petition.
(4) The component that issued or maintains the guidance document
shall respond to a petition in writing (which may include using
electronic means) no later than 90 days after it receives the petition.
The response shall state whether the petition is granted, granted in
part and denied in part, denied, or provisionally denied for lack of
adequate information. If the petition is provisionally denied for lack
of adequate information, the response shall indicate what additional
information is necessary to adjudicate the petition. Upon receipt of
the necessary additional information, the receiving component shall
forward the information to the Department's Office of Legal Policy, and
the component that issued or maintains the guidance document shall
respond to the petition in writing no later than 90 days after it
receives the necessary additional information. The response shall state
whether the petition is granted, granted in part and denied in part, or
denied.
(5) The Department or a component may consider in a coordinated
manner, or provide a coordinated response to, similar petitions for
withdrawal or modification.
(g) Exclusions. (1) Notwithstanding any other provision in this
section, except for the provisions of paragraph (b)(1) of this section,
nothing in this rule shall apply:
(i) To any action that pertains to foreign or military affairs, or
to a national security or homeland security function of the United
States (other than guidance documents involving procurement or the
import or export of non-defense articles and services);
(ii) To any action related to a criminal investigation or
prosecution, including undercover operations, or any civil enforcement
action or related investigation by the Department, including any action
related to a civil investigative demand under 18 U.S.C. 1968;
(iii) To any investigation of misconduct by an agency employee or
any disciplinary, corrective, or employment action taken against an
agency employee;
(iv) To any document or information that is exempt from disclosure
under section 552(b) of title 5, United States Code (commonly known as
the Freedom of Information Act); or
(v) In any other circumstance or proceeding to which application of
this rule, or any part of this rule, would, in the judgment of the
Attorney General or his designee, undermine the national security.
(2) Notwithstanding any other provision in this regulation, except
for the provisions of paragraph (b)(1) of this section, nothing in this
regulation shall apply to categories of guidance documents made exempt
from Executive Order 13891 by the Administrator of OIRA through
memoranda issued pursuant to section 4(b) of Executive Order 13891.
Dated: August 21, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-19030 Filed 10-6-20; 8:45 am]
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