Processes and Procedures for Issuance and Use of Guidance Documents, 37674-37676 [2021-14480]

Agencies

• Department of Justice

[Federal Register Volume 86, Number 134 (Friday, July 16, 2021)]
[Rules and Regulations]
[Pages 37674-37676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14480]


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DEPARTMENT OF JUSTICE

28 CFR Part 50

[Docket No. OAG 174; AG Order No. 5077-2021]
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 interim final rule (``rule'') implements Executive Order 
13992, which, among other things, revoked Executive Order 13891 and 
directed the heads of all agencies to promptly take steps to rescind 
any orders, rules, regulations, guidelines, or policies, or portions 
thereof, implementing or enforcing the revoked Executive Order. By this 
rule, the Department of Justice (``Department'' or ``DOJ'') revokes 
amendments to its regulations that were made during 2020 pursuant to 
Executive Order 13891, which imposed limitations on the issuance and 
use of guidance documents. For further information on how the 
Department intends to address guidance documents going forward, 
interested parties should consult an Attorney General Memorandum the 
Department of Justice is issuing on its website in conjunction with 
this rule.

DATES: 
    Effective date: This rule is effective July 16, 2021.
    Applicability date: July 1, 2021.
    Comments: Comments are due on or before August 16, 2021.

ADDRESSES: To ensure proper handling of comments, please reference 
Docket No. OAG 174 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 
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 August 
16, 2021. 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, 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

[[Page 37675]]

FURTHER INFORMATION CONTACT paragraph.

II. Discussion

A. Overview

    This rule implements Executive Order 13992, ``Revocation of Certain 
Executive Orders Concerning Federal Regulation'' (86 FR 7049), by 
revoking the Department's regulations at 28 CFR 50.26 and 50.27. Going 
forward, the Department's approach to those matters will be governed by 
a new Attorney General Memorandum being issued concurrently with this 
rule.

B. Background--Existing Regulations and Memoranda

    In 2020, the Department of Justice published two interim final 
rules (``IFRs,'' ``rules,'' or ``regulations'') that regulate the 
issuance and use of guidance documents by the Department and its 
components. The first rule, which was entitled ``Prohibition on the 
Issuance of Improper Guidance Documents Within the Justice Department'' 
and added a new 28 CFR 50.26, was published August 19, 2020 (85 FR 
50951). That rule emphasized that guidance documents generally may not 
be used ``create rights or obligations binding on persons or entities 
outside the Executive Branch.'' 28 CFR 50.26(a)(4). It also instituted 
compliance procedures requiring Department components to include 
disclaimers and other specific language in all guidance documents. Id. 
50.26(b).
    The first rule was followed by a second, entitled ``Processes and 
Procedures for Issuance and Use of Guidance Documents'' and published 
on October 7, 2020 (85 FR 63200), which expanded on aspects of the 
first rule by adding a new 28 CFR 50.27. Briefly, this second rule set 
forth processes and procedures governing the review, clearance, and 
issuance of guidance documents, and included limitations on the use of 
guidance documents in criminal and civil enforcement actions brought by 
the Department.
    Those two regulations published in 2020 were developed from, and 
promulgated pursuant to, three documents. The first was a November 16, 
2017, memorandum issued by Attorney General Sessions, entitled 
``Prohibition on Improper Guidance Documents'' (``the November 2017 
Memorandum''). The November 2017 Memorandum acknowledged the importance 
of guidance documents but also stated that ``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.'' These 
principles were subsequently memorialized in the Justice Manual at 
section 1-19.000, https://www.justice.gov/jm/justice-manual.
    The second underlying document was a memorandum issued by Associate 
Attorney General Brand on January 25, 2018, entitled ``Limiting Use of 
Agency Guidance Documents in Affirmative Civil Enforcement Cases'' 
(``the January 2018 Memorandum''). The January 2018 Memorandum 
reiterated many aspects of the November 2017 Memorandum, and stated 
more explicitly that the Department could not ``convert'' guidance 
documents into binding rules through litigation, and that failure to 
comply with a guidance document should not be used as presumptive or 
conclusive evidence that a party violated a related statute or 
regulation. That 2018 policy statement was then codified in the Justice 
Manual at section 1-20.000.
    The third relevant document was President Trump's Executive Order 
13891, ``Promoting the Rule of Law Through Improved Agency Guidance 
Documents,'' which was issued on October 9, 2019, and published in the 
Federal Register the next week. See 84 FR 55235 (Oct. 15, 2019). That 
Executive Order embodied some of the same concepts as the November 2017 
Memorandum and January 2018 Memorandum, with some differences. In 
particular, Executive Order 13891 required, among other things, that 
each agency, as appropriate, build a single, searchable, online 
database to which the agency would publicly post all guidance 
documents. Executive Order 13891 also required that agencies promulgate 
or amend regulations to establish procedures for issuing guidance 
documents, including requiring non-binding disclaimer language and the 
publication of ``significant'' guidance documents for notice and 
comment. Executive Order 13891 also directed agencies to incorporate a 
series of detailed and prescriptive requirements into their regulations 
for the development, review, issuance, and use of guidance documents.
    The two regulations that are the subject of this rulemaking were 
issued pursuant to the requirements of Executive Order 13891, though 
some of their provisions were based on the somewhat similar language of 
the November 2017 Memorandum and January 2018 Memorandum.

C. Executive Order 13992

    On January 20, 2021, President Biden issued Executive Order 13992, 
which, among other things, revoked Executive Order 13891 and stated 
that ``agencies must be equipped with the flexibility to use robust 
regulatory action to address national priorities.'' 86 FR 7049 (Jan. 
25, 2021). Executive Order 13992 directed the heads of all agencies to 
``promptly take steps to rescind any orders, rules, regulations, 
guidelines, or policies, or portions thereof, implementing or 
enforcing'' the revoked Executive Order.

D. Revocation of 28 CFR 50.26 and 28 CFR 50.27

    Based on its evaluation of the regulations at 28 CFR 50.26 and 28 
CFR 50.27, the Department has concluded that those regulations are 
unnecessary and unduly burdensome, lack flexibility and nuance, and 
limit the ability of the Department to do its work effectively. Among 
other things, the regulations have generated collateral disputes in 
affirmative and enforcement litigation, and they have discouraged 
Department components from preparing and issuing guidance that would be 
helpful to members of the public. In addition, because the regulations 
imposed requirements on a particular category of agency documents 
deemed to be ``guidance,'' the regulations caused Department staff to 
expend significant resources determining whether each agency document, 
product or communication constituted ``guidance'' and was therefore 
subject to these regulations. The Department has determined that the 
rules should be revoked.
    In revoking the rules, the Department is not departing from the 
principle that guidance documents cannot impose legal requirements 
beyond those found in relevant constitutional provisions, statutes, and 
legislative regulations. The Department also continues to believe that 
guidance documents should be clear, transparent, and readily accessible 
to the public. But these principles, and other related Department 
policies and practices concerning guidance documents, have 
traditionally been addressed through memoranda from Department 
leadership rather than through regulations. The Department is therefore 
revoking 28 CFR 50.26 and 28 CFR 50.27 in their entirety, and the 
Attorney General is concurrently issuing a new Memorandum setting forth 
the Department's policies going forward.

E. Public Comments on the Two IFRs Pertaining to 28 CFR 50.26 and 50.27

    The two IFRs issued in 2020 to promulgate 28 CFR 50.26 and 50.27 
were made effective upon issuance, and by their nature they did not 
require a pre-promulgation notice-and-comment

[[Page 37676]]

period under the Administrative Procedure Act. However, the Department 
chose to provide a 30-day period for post-promulgation public comment 
for each rule.
    The Department received fewer than ten substantive comments on the 
two rules. The comments discussed the need to ensure that regulated 
parties have notice of legal obligations, and for enforcement actions 
to be predicated on statutes and regulations. Other comments noted the 
importance of issuing agency guidance to the public, as agencies use 
interpretative guidance to explain legal requirements and put them in 
context. The Department has considered these comments in connection 
with the decision to revoke the rules.

III. Conclusion

    After having considered Executive Order 13992, the views of the 
Department's components and their experience with the two rules, and 
the public comments on the two IFRs published in 2020, the Department 
has concluded that the best approach at this point is to revoke the two 
regulations, 28 CFR 50.26 and 50.27, in their entirety, effective 
immediately. Revocation frees Department personnel, including those in 
its litigating components and those in components that issue guidance 
documents, from the overly prescriptive nature of these two 
regulations. Accordingly, this rule removes the regulations at 28 CFR 
50.26 and 50.27.
    The current provisions of the Justice Manual at sections 1-19.000 
and 1-20.000 (https://www.justice.gov/jm/justice-manual) will be 
revised as appropriate at a later date. The new Attorney General 
Memorandum, issued concurrently with this rule, sets forth the 
Department's policies in this area going forward.

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). The rule is effective upon signature. The Department, however, is, 
in its discretion, seeking post-promulgation 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 and 13563--Regulatory 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 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 reviewed by OMB. The Department had 
claimed a similar exemption at the time of promulgating the two 
regulations (28 CFR 50.26 and 50.27) that are being revoked by this 
rule. See 85 FR 50951, 50952; 85 FR 63200, 63201.

D. Executive Order 12988--Civil Justice Reform

    This regulation 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 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 (CRA), 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 CRA, 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.


Sec. Sec.  50.26 through 50.27   [Removed and reserved]

0
2. Sections 50.26 and 50.27 are removed and reserved.

    Dated: July 1, 2021.
Merrick B. Garland,
Attorney General.
[FR Doc. 2021-14480 Filed 7-15-21; 8:45 am]
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