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New Policy Places Limits on Guidances

February 14, 2018

A new Trump administration policy places limit on the use by the Department of Justice of guidance documents issued by federal agencies, prohibiting litigators from using guidance documents as evidence of violations in court cases.

The Office of the Associate Attorney General issued the new policy on Jan. 25, stating that guidance documents “cannot create binding requirements that do not already exist by statute or regulation” for any entity outside of the Executive Branch, and cannot be converted into binding rules by DOJ.

“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,” said Associate Attorney General Rachel Brand.

“This policy helps restore the appropriate role of guidance documents and avoids rulemaking by enforcement,” Brand said.

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