Associate AG Announces End to Use of Civil Enforcement Authority to Enforce Agency Guidance Documents
Following up on a memorandum issued by Attorney General Jeff Sessions in November 2017, the Office of the Associate Attorney General issued a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules.
Under the Department’s new policy, Department civil litigators are prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.
On November 17, 2017, Attorney General Jeff Sessions issued a memo prohibiting the Department of Justice from issuing guidance documents that have the effect of adopting new regulatory requirements or amending the law binding on persons or entities outside the Executive Branch. The memo prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations.
In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.
As used in this context, “guidance document” means any agency statement of general applicability and future effect, whether styled as “guidance” or otherwise, that is designed to advise parties outside the federal Executive Brach about legal rights and obligations.
“Although guidance documents can be helpful in educating the public about already existing law, they do not have the binding force or effect of law and should not be used as a substitute for rulemaking,” Associate Attorney General Rachel Brand said. “Consistent with our duty to uphold the rule of law with fair notice and due process, this policy helps restore the appropriate role of guidance documents and avoids rulemaking by enforcement.”
The policy does not apply to adjudicatory actions that do not have the aim or effect of binding anyone beyond the parties involved, documents informing the public of agency enforcement priorities or factors considered in exercising prosecutorial discretion, or internal directives, memoranda, or training materials for agency personnel.
The new policy can be found here.
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Richard B. Newman is a leading FTC defense attorney and regulatory defense counselor at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
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