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ARTICLE · 14 FEBRUARY 2018

More Guidance On Guidance: DOJ Will Not Enforce "Improper" Agency Guidance Documents

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In November, Attorney General Sessions issued a memorandum prohibiting DOJ from issuing regulations disguised as guidance.

United StatesEnvironment
Seth Jaffe
Seth Jaffe
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In November, Attorney General Sessions issued a memorandum prohibiting DOJ from issuing regulations disguised as guidance.

Now, DOJ has taken the prohibition a step further.  It will no longer rely on guidance issued by other agencies when taking civil enforcement action.  The memorandum has made the regulated community and the NGO community sit up and take notice.

I am sympathetic to the concerns raised in the Sessions memo.  I hate circumvention of notice and comment rulemaking by guidance.  However, as I noted when the memo was released, the problem with guidance documents is not how they are drafted; it's how they are implemented.

For example, the new memorandum states that:

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