The Department of Justice (DOJ) recently published two new interim final rules that prohibit the DOJ from imposing new rights or obligations through guidance documents on parties outside the executive branch; set forth new requirements to issue guidance documents; and, provide a new process for the public to contest or modify guidance documents. DOJ guidance documents are issued by the DOJ through certain officials in a context where they reflect the DOJ’s authoritative or official position on a subject.
The first rule, “Prohibition on the Issuance of Improper Guidance Documents Within the Justice Department,” codifies statements contained in a 2017 memo from former Attorney General Sessions that directed the DOJ to avoid issuing guidance documents to circumvent the Administrative Procedure Act’s rulemaking process. Under this new rule, the DOJ is prohibited from creating new rights or obligations for persons or entities outside the executive branch through the issuance of guidance documents, except as provided by law or as provided by contract. Importantly, the DOJ cannot use guidance documents to set “binding standards” when reviewing compliance with regulatory or statutory requirements.
The second interim final rule, “Processes and Procedures for Issuance and Use of Guidance Documents,” codifies internal DOJ policies that limit the use of guidance documents in enforcement actions. The rule reiterates that the DOJ cannot base an enforcement action on a violation of guidance document, instead, the DOJ must identify a violation of an existing statute or regulation. The new regulations do not prevent the DOJ from relying on guidance documents for other purposes. Finally, the new rule requires public access to all existing guidance documents through the DOJ’s Guidance Portal. Public parties may petition to withdraw or modify a guidance document by filing a petition in writing according to the procedures listed on the Guidance Portal.