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[Federal Register Volume 90, Number 12 (Tuesday, January 21, 2025)]
[Rules and Regulations]
[Pages 6804-6806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-01409]

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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 50

[Docket No. OAG 174; AG Order No. 6148-2025]
RIN 1105-AB61

Processes and Procedures for Issuance and Use of Guidance 
Documents

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Final rule.

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SUMMARY: This rule finalizes without change an interim final rule by 
which the Department of Justice (``Department'') removed amendments to 
its regulations that were made during 2020 pursuant to the now-revoked 
Executive Order 13891, which had imposed limitations on the use of 
Department guidance documents in criminal and civil enforcement actions 
brought by the Department.

DATES: This rule is effective January 17, 2025.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, 
Office of Legal Policy, U.S. Department

[[Page 6805]]

of Justice, telephone (202) 514-8059 (not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Discussion

A. Overview

    This rule finalizes without change the interim final rule, 
Processes and Procedures for Issuance and Use of Guidance Documents 
(OAG 174; RIN 1105-AB61), published at 86 FR 37674 (July 16, 2021) (the 
``July 16 interim rule''). The interim rule implemented Executive Order 
13992 of January 25, 2021, 86 FR 7049 (Revocation of Certain Executive 
Orders Concerning Federal Regulation), by removing the Department's 
regulations at 28 CFR 50.26 and 50.27 and reserving those sections. The 
Department's approach to the development, issuance, and use of guidance 
documents is now governed by the Attorney General Memorandum issued on 
July 1, 2021, ``Issuance and Use of Guidance Documents by the 
Department of Justice,'' https://www.justice.gov/opa/page/file/1408606/download.

B. Executive Order 13992

    As discussed in greater detail in the July 16 interim rule, on 
January 20, 2021, President Biden issued Executive Order 13992, which, 
among other things, revoked Executive Order 13891 and stated that 
``agencies must be equipped with the flexibility to use robust 
regulatory action to address national priorities.'' 86 FR at 7049. 
Executive Order 13992 directed the heads of all agencies to ``promptly 
take steps to rescind any orders, rules, regulations, guidelines, or 
policies, or portions thereof, implementing or enforcing'' the revoked 
Executive Order. Id.

C. Revocation of 28 CFR 50.26 and 50.27

    Based on its evaluation of the prior regulations at 28 CFR 50.26 
and 50.27, the Department concluded that those regulations were 
unnecessary and unduly burdensome, lacked flexibility and nuance, and 
limited the ability of the Department to do its work effectively. Among 
other things, the regulations generated collateral disputes in 
affirmative and enforcement litigation, and they discouraged Department 
components from preparing and issuing guidance that would be helpful to 
members of the public. In addition, because the regulations imposed 
requirements on a particular category of agency documents deemed to be 
``guidance,'' the regulations inherently caused Department staff to 
expend significant resources determining whether each agency document, 
product or communication constituted ``guidance'' and was therefore 
subject to these regulations. Accordingly, the Department determined 
that the rules should be removed.
    In removing the rules, the Department did not depart from the 
principle that guidance documents are interpretative and thus cannot 
impose legal requirements beyond those found in relevant constitutional 
provisions, statutes, and existing regulations. The Department also 
continues to believe that guidance documents should be clear, 
transparent, and readily accessible to the public. But these 
principles, and other related Department policies and practices 
concerning guidance documents, have traditionally been addressed 
through memoranda from Department leadership rather than through 
regulations. The Department therefore removed 28 CFR 50.26 and 50.27 in 
their entirety, and solicited public comment. On July 1, 2021, the 
Attorney General issued a new Memorandum setting forth the Department's 
policies going forward from that date regarding the development, 
issuance, and use of guidance documents, and the Department has updated 
other applicable internal protocols in accordance with these policies.

D. Public Comments on the July 16, 2021, Interim Rule Pertaining to 28 
CFR 50.26 and 50.27

    During the public comment period, which closed on August 16, 2021, 
the Department received only two comments, both of which supported the 
interim rule. The reasons given by the commenters in support of the 
removal of 28 CFR 50.26 and 50.27 largely paralleled the Department's 
own reasons and justifications. Accordingly, the July 16 interim final 
rule is being finalized without change.

II. Conforming Changes to the Justice Manual

    The provisions of the Justice Manual at section 1-19.000 (https://www.justice.gov/jm/justice-manual) have been revised, and the 
provisions of the Justice Manual previously published at section 1-
20.000 have been removed, to conform with the principles set forth in 
the July 1, 2021, Attorney General Memorandum.

III. Regulatory Certifications

A. Administrative Procedure Act

    This final rule relates to a matter of agency management or 
personnel and is a rule of agency organization, procedure, or practice. 
As such, this rule is exempt from the usual requirements of prior 
notice and comment and a 30-day delay in effective date. See 5 U.S.C. 
553(a)(2), (b)(A), (d). The rule is effective upon being posted for 
public inspection at the Federal Register. The Department, in its 
discretion, had sought post-promulgation public comment on the July 16 
interim rule. As previously explained, the Department received only two 
comments, both of which supported the rule.

B. Regulatory Flexibility Act

    A Regulatory Flexibility Analysis was not required for this final 
rule because the Department was not required to publish a general 
notice of proposed rulemaking for this matter. See 5 U.S.C. 601(2), 
604(a).

C. Executive Orders 12866, 13563, and 14094--Regulatory Review

    This final rule has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation; in accordance with Executive Order 
13563, ``Improving Regulation and Regulatory Review,'' section 1(b), 
General Principles of Regulation; and in accordance with Executive 
Order 14094, ``Modernizing Regulatory Review''.
    This final rule is ``limited to agency organization, management, or 
personnel matters'' and thus is not a ``rule'' for purposes of review 
by the Office of Management and Budget (OMB), a determination in which 
OMB has concurred. See Executive Order 12866, sec. 3(d)(3). 
Accordingly, this rule has not been reviewed by OMB. The Department 
claimed a similar exemption at the time of promulgating the July 16 
interim rule.

D. Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988, ``Civil Justice 
Reform.''

E. Executive Order 13132--Federalism

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various

[[Page 6806]]

levels of government. Therefore, in accordance with Executive Order 
13132, ``Federalism,'' the Department has determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement.

F. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted for inflation) in any one year, and it will 
not significantly or uniquely affect small governments. Therefore, no 
actions are necessary under the provisions of the Unfunded Mandates 
Reform Act of 1995, 2 U.S.C. 1501 et seq.

G. Congressional Review Act

    This rule is not a major rule as defined by section 804 of the 
Congressional Review Act (CRA), 5 U.S.C. 804. This action pertains to 
agency management or personnel, and agency organization, procedure, or 
practice, and does not substantially affect the rights or obligations 
of non-agency parties. Accordingly, it is not a ``rule'' as that term 
is used in the CRA, 5 U.S.C. 804(3), and the reporting requirement of 5 
U.S.C. 801 does not apply.

H. Paperwork Reduction Act of 1995

    This final rule does not impose any new reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3521.

List of Subjects in 28 CFR Part 50

    Administrative practice and procedure.

0
Accordingly, the interim rule amending 28 CFR part 50, which was 
published at 86 FR 37674 on July 16, 2021, is adopted as final without 
change.

    Dated: January 14, 2025.
Merrick B. Garland,
Attorney General.
[FR Doc. 2025-01409 Filed 1-17-25; 8:45 am]
BILLING CODE 4410-BB-P
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