Effective Sept. 28, the Department of Labor (DOL) began following the Promoting Regulatory Openness through Good Guidance Rule, a measure that requires that it use guidance appropriately, transparently and in a manner that is accessible to the public.
The rule implements Executive Order 13891, “Promoting the Rule of Law through Improved Agency Guidance Documents,” which was issued a year ago, on Oct. 9, 2019. That EO requires all federal agencies to establish and maintain a single, searchable, indexed database that contains links to all guidance documents.
The PRO Good Guidance Rule allows the DOL to continue to use guidance for lawful purposes, but ensures that guidance documents cannot be used in an unfair or unlawful manner. The rule seeks to implement that EO in four key ways:
1. By providing that, for significant guidance involving impacts greater than $100 million, the DOL will provide for notice-and-comment review of the guidance.
2. By requiring all DOL guidance to be made available to the public in a searchable database at www.dol.gov/guidance. http://www.dol.gov/guidance
3. By allowing the public to petition the DOL on issues related to its guidance.
4. By limiting the DOL’s use of guidance in order to avoid potentially unfair conduct.
Also in accordance with the Executive Order, the DOL says that it conducted a comprehensive review of its guidance; it reports that the result was the rescission of nearly 3,200 documents. The remaining documents are available in a searchable database at http://www.dol.gov/guidance.
“Just as important” as the provisions by which the DOL implements the 2019 EO, the DOL says in the overview of the rule, is that “better delineating what is and is not legally binding will give fairer notice to regulated entities and will enhance the Department’s efforts to take care that the law is faithfully executed.”
Not Unlimited
The rule makes clear that while it is intended to better serve the public, the new rule concerns agency procedure, and does not create any right or benefit enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Bottom Line
“The American people are best served by agencies that speak clearly and unambiguously about existing legal obligations. Well-crafted guidance enables agencies to do so,” says the DOL in its discussion of the rule’s scope. “Agencies also use guidance to provide compliance assistance, which helps parties understand and obey the law, and to enhance worker protections,” it continues.
“However,” the DOL notes, “agencies can also misuse guidance in ways that weaken the rule of law. When agencies misuse guidance, regulated persons have less certainty about their actual obligations.” It asserts, “Agencies must do more than simply refrain from explicitly purporting to establish new legal requirements in guidance. Regulated persons are aware of the possibility of enforcement actions. They accordingly have strong incentive to comply with even ostensibly ‘non-binding’ agency statements that they see as attempting to regulate them.”
Furthermore, the DOL says, “an agency may improperly use guidance to shape private parties’ conduct beyond legal requirements by targeting those who do not follow the guidance for heightened enforcement or inspection activity. Guidance is improper when imposed on the public in this manner.”
“To account for such considerations, this rule establishes the Department’s policy and requirements for guidance,” the DOL says.
No Comments
The DOL does not consider itself required to seek public comments on the rule, since the changes it makes to DOL policies and requirements concerning guidance “are purely internal matters of agency management, as well as the agency’s organization, procedure and practice.”
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