Rule2021-14480
Processes and Procedures for Issuance and Use of Guidance Documents
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 16, 2021
Effective
July 16, 2021
Issuing agencies
Justice Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 134 (Friday, July 16, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
<a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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, <a href="https://www.justice.gov/jm/justice-manual">https://www.justice.gov/jm/justice-manual</a>.
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 (<a href="https://www.justice.gov/jm/justice-manual">https://www.justice.gov/jm/justice-manual</a>) 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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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.