Justice Department 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.”