{!)ffice
of
t~r
Attarnt{!
~tnrral
lt
lfos~ington,
m.
QI.
20,5,30
November
16,
2017
MEMORANDUM FOR ALL COM
PO
~
FROM: THE ATTORNEY GENERAL/
"----
SUBJECT: Prohibition on Improper Guidance Documents
The Depar
tm
ent
of
Justice
ha
s
th
e duty
to
upho
ld
the laws
of
the United States and
to
ensure the fair and impartial administration
of
jus
ti
ce.
Th
erefore, when
th
e Department engages
in
re
g
ul
atory activ
it
y,
it
should model the
la
w
ful
exercise
of
regulatory powe
r.
In
promulgating regulations, the Department must abide by
co
nstitutional principles and
fo
ll
ow the
rul
es imposed by Cong
re
ss and the
Pr
esident. These principles and rules include the
fundamental requirement
th
at agencies
re
gulate only within the authority delegated to them by
Congress. They also include the
Ad
ministrati
ve
Procedure
Ac
t
's
requireme
nt
to
use,
in
mo
st
cases, notice-and-comment
rul
emaking when purporting to create rights or obligations binding
on members
of
th
e public or
th
e agency. Not o
nl
y
is
notice-
an
d-co
mm
ent rulemaking generally
required by law. but
it
ha
s
th
e benefit
of
availing agenc
ie
s
of
more complete information about a
proposed rule · s effects
th
an the agency
co
uld asce
rt
a
in
on
it
s own. a
nd
th
erefore
re
sults
in
better
decision making by regulators.
Not every agency action is requir
ed
to
und
ergo notice-and-comment
rul
em
ak
in
g.
For
exampl
e,
agencies may use guidance and similar documents to
ed
ucate regulated parties through
plain-language restatements
of
existing legal r
eq
uireme
nt
s or provide non-binding advice on
technical issues through examples or practic
es
to
guide
th
e application or interpretation
of
statutes a
nd
re
g
ul
a
ti
on
s.
But guidance may not be used as a s
ub
stitute for rulemaking and
ma
y
not be used
to
impose new requirements on entiti
es
outside the Executive Branch. Nor should
gu
id
ance create binding sta
nd
a
rd
s by which
th
e Department w
ill
determine compliance with
ex
isting regulatory or statutory requirements.
It
has co
me
to
my a
tt
ention that the Department h
as
in
the past published guidance
documents- or similar
in
struments of future effect by other names, such as letters
to
reg
ul
ated
entities-
th
at effec
ti
vely bind private parties without undergo
in
g the
rul
emaking process.
T
he
Department w
ill
no longer engage
in
this practice. Effective imm
ed
iatel
y,
Department compone
nt
s may not issue guidance documents that purport to create
ri
ghts or
obligations binding on persons or enti
ti
es outs
id
e the Executive Branch (including state, local,
Memorandum
for
the Attorney General
Subject: Improper Guidance Documents
Pa
ge
2
and tribal governments). To avoid circumventing the rulemaking process, Departme
nt
components should adhere
to
th
e following principles when issuing guidance documents:
• Guidance documents should
id
enti
fy
themselves as guidance,
di
sclaim any force or effect
of
law, and avoid language suggesting that the public has obligations that
go
beyond
tho
se se
t forth
in
t
he
app
li
cab
le
statutes or legislati
ve
rule
s.
•
Gu
idan
ce
documents should clearly state that they are
not
fin
al agency actions,
ha
ve
no
legally binding effect on per
so
ns or entities outs
id
e the federal government, and
ma
y
be
r
es
cinded or modified
in
the Department
's
complete discretion.
• Guidance doc
um
e
nt
s should not
be
used
for
the purpose of coercing persons or ent
iti
es
outside the federal government into taking any action or refraining from taking any action
be
yo
nd
what is required by the terms
of
the app
lic
able statute or
re
gulation.
• Guidance documents should not use mandatory language such as "shall," "must,"
..
required," or '·requireme
nt
"
to
direct parties outside the federal government
to
take or
refrain
fr
om taking action, except when restating- with citations
to
statutes, regulations,
or binding judicial precedent- clear mandates contained
in
a statute or regulation.
In
a
ll
cases, guidance documents should
cl
ea
rl
y identify
th
e underlying law
th
at
they a
re
explaining.
• To the extent g
uid
ance docume
nt
s set out
vo
luntary standards (e.g., recommended
practices),
th
ey should clearly state that
co
mpliance with tho
se
standards is
vo
luntary and
that noncompliance will not,
in
itse
lf,
re
sult
in
any
enforcement action.
All components shall implement the
se
principles immediately with r
es
pect
to
all future
guidance documents,
in
consultation with the Office
of
Legal Polic
y.
Components should
al
so
implement these principles consistent with policies issued by the Office
of
Mana
ge
ment and
Bud
ge
t,
including
it
s Final Bulletin
for
Agency Good Guidance Practices,
72
Fed. R
eg.
3432
(Jan. 25, 2007). Furthermore, I direct the Associate Attorney General, as Cha
ir
of
the
Department"s Reg
ul
atory Reform T
as
k Force,
to
work with components
to
identify existing
guidance docume
nt
s that should
be
repealed, replaced, or modified in light
of
these principle
s.
For purposes
of
this memorandum, guidance documents include any Department statements
of
ge
neral applicability a
nd
future effect, whether styled
as
guidance or otherwise that are
designed
to
advi
se
parties outside the federal Exec
uti
ve Branch about legal rights and ob
li
gations
falling within
th
e Department's regulatory or enforcement authorit
y.
This memorandum does
not apply
to
adjudicatory actions that do not have the aim or effect
of
bind
in
g anyone beyo
nd
the
parties
in
vol
ve
d, and
it
does not address documents informing the pub
li
c
of
th
e Department
's
enforcement priorities or factors the Department considers in exercising
it
s pro
se
cutorial
discretion. Nor does
it
address internal directives, memoranda, or training materials
for
Memorandum for the Attorney General
Subject: Improper Guidance Documents
Pa
ge
3
Department personnel directing them on how to carry out the
ir
duties, positions taken by
th
e
Departme
nt
in
litigation, or adv
ic
e provided by the Attorney General or the Office
of
Legal
Co
un
se
l.
This memorandum is an internal Department of Justice policy directed at Department
components and emp
lo
yees.
As
s
uch
,
it
is not intended to, does not, and may not be re
li
ed upon
to, create any
ri
g
ht
s,
substantive or procedural, en
fo
rcea
bl
e at law by any party
in
any matter
civil or criminal.
