Prohibition on the Issuance of Improper Guidance Documents Within the Justice Department
| Citation | 85 FR 50951 |
| Record Number | 2020-16473 |
| Published date | 19 August 2020 |
| Section | Rules and Regulations |
| Court | The Attorney General Office |
Federal Register, Volume 85 Issue 161 (Wednesday, August 19, 2020)
[Federal Register Volume 85, Number 161 (Wednesday, August 19, 2020)]
[Rules and Regulations]
[Pages 50951-50953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16473]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 50
[Docket No. OAG 165; AG Order No. 4769-2020]
Prohibition on the Issuance of Improper Guidance Documents Within
the Justice Department
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Interim final rule; request for comments.
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SUMMARY: This rule codifies in the regulations of the Department of
Justice (``Department'') the Memorandum for All Components from
Attorney General Jefferson B. Sessions III titled, ``Prohibition on
Improper Guidance Documents'' (Nov. 16, 2017), consistent with
Executive Order 13891, ``Promoting the Rule of Law Through Improved
Agency Guidance Documents'' (Oct. 9, 2019).
DATES: Effective date: This rule is effective August 19, 2020.
Comments: Comments are due on or before September 18, 2020.
ADDRESSES: To ensure proper handling of comments, please reference
Docket No. OAG 165 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 easy 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 September
18, 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.
If you wish to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not wish 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 wish to submit confidential business information as part of
your comment but do not wish 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 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://
[[Page 50952]]
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 wish to inspect the agency's public docket file in person by
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
II. Discussion
A. Attorney General Memorandum of November 16, 2017
In a memorandum to all components of the Department dated November
16, 2017, then-Attorney General Jefferson B. Sessions III reiterated
the duty of the Department ``to uphold the laws of the United States
and to ensure the fair and impartial administration of justice.''
Memorandum for All Components, ``Prohibition on Improper Guidance
Documents,'' Nov. 16, 2017, available at https://www.justice.gov/opa/press-release/file/1012271/download (``Attorney General's
memorandum''). The Attorney General's memorandum further stated that
``when the Department engages in regulatory activity, it should model
the lawful exercise of regulatory power.'' Id.
In particular, the Attorney General's memorandum explained that,
``[i]n promulgating regulations, the Department must abide by
constitutional principles and follow the rules imposed by Congress and
the President. These principles and rules include the fundamental
requirement that agencies regulate only within the authority delegated
to them by Congress. They also include the Administrative Procedure
Act's requirement to use, in most cases, notice-and-comment rulemaking
when purporting to create rights or obligations binding on members of
the public or the agency. Not only is notice-and-comment rulemaking
generally required by law, but it has the benefit of availing agencies
of more complete information about a proposed rule's effects than the
agency could ascertain on its own, and therefore results in better
decision making by regulators.'' Id.
The Attorney General's memorandum further explained that, ``[n]ot
every agency action is required to undergo notice-and-comment
rulemaking. For example, agencies may use guidance and similar
documents to educate regulated parties through plain-language
restatements of existing legal requirements or provide non-binding
advice on technical issues through examples or practices to guide the
application or interpretation of statutes and regulations. But guidance
may not be used as a substitute for rulemaking and may not be used to
impose new requirements on entities outside the Executive Branch. Nor
should guidance create binding standards by which the Department will
determine compliance with existing regulatory or statutory
requirements.'' Id.
The Attorney General's memorandum acknowledged that ``the
Department has in the past published guidance documents--or similar
instruments of future effect by other names, such as letters to
regulated entities--that effectively bind private parties without
undergoing the rulemaking process.'' Id. However, it stated that, going
forward, ``[t]he Department will no longer engage in this practice.''
Id. Effective immediately, the Attorney General directed Department
components not to ``issue guidance documents that purport to create
rights or obligations binding on persons or entities outside the
Executive Branch (including state, local, and tribal governments).''
Id.
The Attorney General's memorandum also directed that, to avoid
circumventing the rulemaking process, Department components must adhere
to a set of defined principles when issuing guidance documents. Id.
Subsequently, these principles were included in the Justice Manual at
section 1-19.000. See Justice Manual, sec. 1-19.000, ``Limitation on
Issuance of Guidance Documents,'' available at https://www.justice.gov/jm/justice-manual.
B. Executive Order 13891 of October 9, 2019
On October 9, 2019, President Donald J. Trump issued Executive
Order 13891, ``Promoting the Rule of Law Through Improved Agency
Guidance Documents.'' Executive Branch agencies must follow the
requirements and provisions prescribed therein to ensure that Americans
are subject to only those binding rules imposed through duly enacted
statutes or through regulations lawfully promulgated under them and
that Americans have fair notice of their obligations.
Among its other provisions, Executive Order 13891 set forth a
definition of ``guidance document'' and provided robust limitations and
protections regarding Executive Branch agencies' issuance of guidance
documents.
C. This Interim Rule
This rule codifies in the Statements of Policy portion of the
Department's regulations, 28 CFR part 50, the principles set forth in
both the Attorney General's memorandum, and section 1-19.000 of the
Justice Manual, consistent with Executive Order 13891. The scope of
this rulemaking is limited. The Department anticipates publishing a
rulemaking in the future to implement the requirements and provisions
of Executive Order 13891 that are not covered by this rulemaking.
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
This rule will not have an impact on small entities because it
pertains to personnel and administrative matters affecting the
Department. 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 Planning and
Review)
This rule 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 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 not a significant regulatory action under Executive Order
12866.
D. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 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
[[Page 50953]]
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 by 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 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. Section 50.26 is added to read as follows:
Sec. 50.26 Limitation on issuance of guidance documents.
(a) General principles. (1) The term ``guidance document'' means an
agency statement of general applicability, intended to have future
effect on the behavior of regulated parties, that sets forth
(i) A policy on a statutory, regulatory, or technical issue, or
(ii) An interpretation of a statute or regulation.
(2) The term ``guidance document'' does not include the following:
(i) Rules promulgated pursuant to notice and comment under section
553 of title 5, United States Code, or similar statutory provisions;
(ii) Rules exempt from rulemaking requirements under section 553(a)
of title 5, United States Code;
(iii) Rules of agency organization, procedure, or practice;
(iv) Decisions of agency adjudications under section 554 of title
5, United States Code, or similar statutory provisions;
(v) Internal guidance directed to the issuing agency or other
agencies that is not intended to have substantial future effect on the
behavior of regulated parties;
(vi) Internal Executive Branch legal advice or legal opinions
addressed to Executive Branch officials, see E.O. 13891 of October 9,
2019, sec. 2(b); or
(vii) Documents informing the public of the agency's enforcement
priorities or factors the agency considers in exercising its
prosecutorial discretion.
(3) An agency guidance document 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
law or as expressly incorporated into a contract.
(4) In accordance with the principles set forth in paragraphs
(a)(1) through (3) of this section, except where expressly authorized
by law or as expressly incorporated into a contract, Department
components may not issue guidance documents that purport to create
rights or obligations binding on persons or entities outside the
Executive Branch (including state, local, and tribal governments).
Likewise, except where expressly authorized by law or as expressly
incorporated into a contract, Department components may not issue
guidance documents that create binding standards by which the
Department will determine compliance with existing regulatory or
statutory requirements.
(b) Compliance procedures. To ensure compliance with this section,
when issuing guidance documents, Department components must, except
where expressly authorized by law or as expressly incorporated into a
contract:
(1) Identify the documents as guidance, disclaim any force or
effect of law, and avoid language suggesting that the public has
obligations that go beyond those set forth in the applicable statutes
and regulations;
(2) Clearly state that the documents do not bind the public, except
as authorized by law or as incorporated into a contract;
(3) Avoid using the documents for the purpose of coercing persons
or entities outside of the Executive Branch into taking any action or
refraining from any action beyond what is required by the terms of the
applicable statute or regulation;
(4) Avoid using mandatory language such as ``shall,'' ``must,''
``required,'' or ``requirement'' to direct parties outside the
Executive Branch to take or refrain from taking action except when
restating--with citations to statutes, regulations, or binding judicial
precedent--clear mandates contained in the statute, regulation, or
binding judicial precedent; and
(5) Clearly state that noncompliance with voluntary standards will
not, in itself, result in any enforcement action.
Dated: July 24, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-16473 Filed 8-18-20; 8:45 am]
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