AG Sessions Halts Improper Use Of Guidance

On Friday, U.S. Attorney General Jeff Sessions sent a memorandum to all Department of Justice (DOJ) divisions directing them to discontinue the practice of publishing “guidance documents…that effectively bind private parties without undergoing the rulemaking process.”

DOJ and other federal departments and agencies frequently issue guidance documents, such as interpretive memoranda, policy statements, and “dear colleague” letters to regulated entities. According to the Administrative Conference of the United States (ACUS), while agency issuance of these “nonbinding statements of policy and interpretation…is often helpful to the public and is normally to be encouraged, commentators and the Administrative Conference have expressed concern that agencies too often rely on guidance in ways that circumvent the notice-and-comment rulemaking process.”

The AG shares this concern, and his memo outlines a set of principles for DOJ divisions to follow when issuing new guidance documents as well as procedures for evaluating existing guidance.

Concerns about the misuse of guidance are not new

While concerns about agencies’ use of guidance documents to impose binding regulatory requirements have come to a head recently (more on this below), they are not new.

In 1946, after years of debate over executive branch agencies’ abuse of discretion, arbitrariness and lack of transparency, congress passed the Administrative Procedure Act (APA), which generally requires agencies to use notice-and-comment rulemaking when issuing binding regulations.

Yet, in 1992, ACUS expressed concern with “situations where agencies issue policy statements which they treat or which are reasonably regarded by the public as binding…” It recommended that agencies “not issue statements of general applicability that are intended to impose binding substantive standards or obligations upon affected persons without using legislative rulemaking procedures,” and that “policy statements of general applicability should make clear they are not binding.”

Read more of this Forbes op-ed by Susan E. Dudley by clicking here.

Photo: Saul Loeb/AFP/Getty Images