Administrative Law

DOJ Interim Final Rule Restricts Reliance on Guidance Documents

In response to a Trump Executive Order, the Justice Department seeks to diminish the import of agency guidance.

|The Volokh Conspiracy |

Yesterday, the Department of Justice released an interim final rule on "Processes and Procedures for Issuance and Use of Guidance Documents." (Hat tip: Chris Walker.) This new rule constrains the ability of agency's to rely upon guidance documents in enforcement actions and in court. Specifically, the rule bars the Justice Department from bringing enforcement actions based upon non-compliance with agency guidance and places limits upon the Department's seeking deference to agency guidance documents promulgated after the rule is adopted. One effect of this rule is that agencies will have a more difficult time seeking Auer deference for regulatory interpretations embodied in guidance documents, which will also protect agencies from losing cases under the more demanding test for Auer deference detailed in Kisor v. Wilkie.

The new rule will be effective immediately upon its publication of the Federal Register, and codified at 28 C.F.R. § 50.27, though DOJ will accept comments on the rule for 30 days after publication, and may revise the rule in response to those comments. The rule is intended to implement Executive Order No. 13,891Promoting the Rule of Law Through Improved Agency Guidance Documents.

Issuing this directly as an interim final rule, instead of as a proposed rule first and then a final rule after notice and comment, may seem a bit unusual, and it is.  But do not be surprised if we see more of this sort of thing. As Kristin Hickman noted, the Supreme Court blessed the greater use of interim final rulemakings in the Little Sisters decision from this past term, and I would not be at all surprised if agencies seek to take advantage of this going forward, as interim final rules are a much quicker way to implement changes in regulatory policy.

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  1. …protects them from Kisor?

    Guys, the enemy has invented steel weapons that tear through our iron shields with ease! Better just stop carrying shields then, am I right?

    1. Well, if it causes you to stop believing in the false security of the iron shield and do something else instead (like dodge), then yeah, “stop carrying shields” might be the right answer.

      But a better analogy would be “those steel weapons tear through our iron shields so no more iron shields – but whether you upgrade to steel shields or titanium or do something else entirely is up to you.”

  2. “This new rule constrains the ability of agency’s to rely upon guidance documents….”

    I believe the plural of agency is agencies. Angecy’s is singular possessive.

    Please try to get this kind of thing right.

  3. Hasn’t experience shown that “guidance documents” can be used to circumvent notice-and-comment rule-making? Isn’t this new rule a reasonable step to reduce such abuse? Or am I missing something?

    1. Worse, guidance documents and the various agencies’ “primary responsibilities” are routinely used to apply regulations to company that explicitly state they do not apply.

    2. I think that that is exactly the problem. Because they have not gone through the APA Notice and Comment process, they aren’t binding on anyone except maybe the agency involved. But the Obama DOJ was treating them just as if they were legitimate regulations.

      I should note that in my narrow segment of the law, patents, we have had a running war for a long time now with the agency (USOTO) pulling something or another out of their nether regions, then trying to enforce it against patent applicants. Many of us have stock paragraphs to stick in our responses and briefs to defend against this sort of nonsense, it is so common.

      And I wonder why they almost never just buckle down, publish the proposed regulations in the Federal Register, the make a pretense at considering the comments received. If they want it badly enough, they can make it happen. The Obama Administration was able to enact some highly unpopular regulations involving Obamacare that generated huge numbers of comments. They persevered, pretended to consider the volume of comments, they were published as part of the CFR, and were upheld in the courts.

    3. Notice and comment rulemaking takes years. Sometimes you need to do something more quickly but at a smaller scale. Generally regarding how sub-offices might implement an existing rule.

      Courts have recognized that, and have tests for what’s a rule and what’s not. The mantra I hear is ‘requirements, prohibitions, or standards.’ Those require rulemaking. Guidance is about implementation of the above. And it’s nonbinding. My agency has been noncompliant to quite a few guidances. It’s not good practice, but it’s not breaking the law like breaking an agency rule would be ( in effect).

      Another thing I see is guidance with the purpose of explaining how a specific issue might be adjudicated before an agency. So like an advisory opinion at the ministerial level. Not a rulemaking activity at all.

      I can’t speak to Bruce’s experience; I have no doubt that there are agencies that are abusive of process. But I don’t think the process itself is fundamentally broken with respect to guidance letters.

      Though I do know that the APA does not require any more than listening to the public in the notice and comment process, so any crying about pretext misunderstands the legal requirements.

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