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.

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. 13,891, Promoting 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.