(a) If the Department relies on a decision in an agency adjudication, administrative order, or agency document to assert a new or expanded claim of jurisdiction (e.g., a claim to regulate a new subject matter or a new basis for liability, or a relinquishment of a claim of jurisdiction), the Department must give fair notice by publishing the initial decision before the conduct over which jurisdiction is sought occurs. It must publish the initial decision in full or by citation, if publicly available, in the Federal Register or the Department's guidance repository described in §1.4. A claim of jurisdiction is not “new or expanded” simply because it involves a new or novel set of facts so long as it is based on an established principle of general applicability.

(b) If the Department intends to rely on a document arising out of litigation (other than a publicly published opinion of an adjudicator), such as a brief, a consent decree, or a settlement agreement, to establish jurisdiction in future civil enforcement actions involving persons who were not parties to the litigation, the Department must—

(1) Publish that document, either in full or by citation if publicly available, in the Federal Register or on the Department's guidance repository described in §1.4, and

(2) Publish an explanation of the document's jurisdictional implications.

(c) Before seeking judicial deference to the Department's interpretation of a document arising out of litigation (other than a publicly published opinion of an adjudicator) in order to establish a new or expanded claim of jurisdiction in a different case, the Department must—

(1) Publish the document or a notice of availability in the Federal Register or on the Department's guidance repository described in §1.4, and

(2) Publish an explanation of the document's jurisdictional implications.

[86 FR 3014, Jan. 14, 2021]