[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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]
BILLING CODE 4410-BB-P