Processes and Procedures for Issuance and Use of Guidance Documents, 63200-63204 [2020-19030]

Agencies

• Department of Justice
• Office of the Attorney General

[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

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(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

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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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