The Department of Justice has taken another significant step today to ensure that its regulatory activity is performed lawfully and transparently, announcing a pair of interim final rules imposing procedural requirements on the Department’s issuance and modification of guidance documents. The rules also codify preexisting Department guidance practices and implement the interagency reforms of Executive Order 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents (EO 13891). More than just carrying out the Department’s obligations under EO 13891, these rules implement innovative new internal accountability mechanisms, such as requiring Department entities to comply with the rule’s procedural requirements in order to claim judicial deference to interpretations contained in guidance documents.
The first rule, “Prohibition on the Issuance of Improper Guidance Documents Within the Justice Department,” codifies the general prohibition on the use of guidance documents to create rights or impose obligations on persons outside of the executive branch, originally set forth in the Department’s 2017 “Sessions Memo.” The Department’s issuance of the Sessions Memo was one of the administration’s first actions to curb the use of guidance documents as a backdoor tool to reading new expansive, substantive regulatory obligations into policy documents outside of the established procedural requirements set forth in the Administrative Procedure Act (APA). Similar, and expanded, limitations were subsequently imposed administration-wide in 2019 through EO 13891.
The second rule, “Processes and Procedures for Issuance and Use of Guidance Documents,” codifies Department limitations, first generally set forth in the 2018 “Brand Memo,” on the use of guidance documents in criminal and civil enforcement actions and implements robust Department-wide procedures governing the review, clearance, and issuance of guidance documents. The rule also creates a process for the public to petition the Department to withdraw or modify existing guidance documents. In addition, under the rule, Department components must post every currently effective guidance document on the Department’s public Guidance Portal.
“Some guidance can be helpful to regulated parties, but backdoor regulation by guidance document is improper,” Deputy Attorney General Jeffrey A. Rosen said. “With these new rules, the Department of Justice has formalized its procedures for ensuring that guidance documents will not be used to impose novel legal requirements as a shortcut around the rulemaking process.”
Beth A. Williams, Assistant Attorney General for the Office of Legal Policy, praised the benefits the rules will have for the public: “The new rules accomplish an unprecedented degree of transparency and public involvement in the Department’s guidance document processes. For the first time, the public will have a robust process available to petition the government to withdraw or modify a guidance document that may be outdated or raise other concerns.”
The Department of Justice is committed to regulatory reform that enhances good government. Earlier this month, the Department published a landmark report on the need to modernize agency procedures to increase accountability and transparency through amendment of the APA, enacted in 1946 and not substantially updated since that time. The report incorporates proposals raised by government officials, members of the private sector, and legal academics at DOJ’s December 2019 APA reform summit. The report’s submission to congressional members and committees provided a formal Department recommendation that Congress pursue legislative APA reform, building on Administration efforts such as EO 13891 to improve government responsiveness in the evaluation of regulations. The report is available here.