With the new Biden administration now in place, the Department of Labor (DOL) has withdrawn a Trump era measure on guidance documents. Following a recent Executive Order, the DOL issued a final rule on January 27 to rescind the Trump DOL’s prior rule. The result will likely be less public involvement in DOL guidance.
Back on August 28, 2020, the DOL issued a final rule on guidance implementation in an Executive Order entitled “Promoting the Rule of Law Through Improved Agency Guidance Documents.” The August 28 rule provided the requirements for issuing, modifying, withdrawing, and using guidance; making guidance available to the public; a notice and comment process for significant guidance; and taking and responding to petitions about guidance. The approach made DOL guidance documents publicly available, offered notice and comment opportunities for significant guidance, and was promoted as a more measured approach for guidance and rulemaking.
The New Executive Order
On January 20, 2021, President Biden issued the “Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation,” which, among other things, revoked President Trump’s Executive Order 13891 and directed agencies to promptly take steps to rescind any orders, rules, or regulations that implemented or enforced the Executive Orders. The January 20 Executive Order states that it is the policy of the administration:
“to use available tools to confront the urgent challenges facing the Nation, including the coronavirus disease 2019 (COVID-19) pandemic, economic recovery, racial justice, and climate change. To tackle these challenges effectively, executive departments and agencies (agencies) must be equipped with the flexibility to use robust regulatory action to address national priorities. This order revokes harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront these problems and empowers agencies to use appropriate regulatory tools to achieve these goals.”
A change in the White House typically results in a review of the policy actions by the previous administration, so the new Executive Order should not be surprising.
The DOL issued its revocation on January 22, to be effective January 27, that the previous internal rule on guidance had deprived the DOL and subordinate agencies of “necessary flexibility” in determining when and how best to issue public guidance and unduly restricted the department’s ability to provide timely guidance for the public to rely. The DOL’s final rule rescinded the internal rule on guidance from the previous administration published at 85 FR 53163. DOL’s determination is deemed a final rule, being viewed solely as a matter of agency management, organization, procedure, and practice. Thus, just as DOL had done with the August 2020 final rule, it determined it was not required to engage in a notice and comment process under the Administrative Procedure Act and that the final rule was effective immediately.
The previous rule allowed for more public participation and awareness, whereas the new DOL rule is likely to promote more unilateral guidance. Unsurprisingly, the DOL under the Biden administration is sure to be active and will be able to do so with less public input. Employers should stay tuned as it is a new era at the DOL.