Back in November 2017, then Attorney General Jeff Sessions issued a memorandum entitled “Prohibition on Improper Guidance Documents.” This Sessions Memo included guidance concerning DOJ’s issuance of guidance that has not gone through the formal rulemaking process. The Sessions Memo essentially provided that DOJ components may not use guidance documents to create legally binding requirements. The point was to prohibit agencies from, in effect, creating de facto regulations outside of the formal rulemaking process.
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