Justice Officials End Use of "Guidance Documents"; Provides More Regulatory Relief
Last week, the U.S. Department of Justice (DOJ) issued a memorandum (memo) “…prohibiting Department components from issuing guidance documents that effectively bind the public without undergoing the notice-and-comment rulemaking process.” Specifically, the memo states that, “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.”
Issuing the memo was Associate Attorney General Rachel Brand, who noted, “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.” Brand continued, “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.”
This latest development on the regulatory front will significantly limit the federal government’s ability to take federal actions against companies on a wide range of issues, including safety, trucking and environmental issues. Not only will it limit federal actions, but provide industry with another avenue for challenging previous and future federal regulatory action.