U.S. Dept. of Labor issues ‘Promoting Regulatory Openness Through Good Guidance’ rule
The U.S. Department of Labor today announced publication of its “Promoting Regulatory Openness through Good Guidance Rule” (PRO Good Guidance Rule). The rule, which implements Executive Order 13891, “Promoting the Rule of Law through Improved Agency Guidance Documents,” seeks to create fairer procedures for the issuance and use of regulatory guidance at the Department of Labor.
The PRO Good Guidance Rule, in accord with the order, requires that the Department use guidance appropriately, transparently, and in a manner that is accessible to the public. The rule accomplishes this in four key ways:
– By providing that, for significant guidance involving impacts greater than $100 million, the Department will provide for notice-and-comment review of the guidance;
– By requiring all Department guidance to be made available to the public in a searchable database at www.dol.gov/guidance;
– By allowing the public to petition the Department on issues related to its guidance; and
– By limiting the Department’s use of guidance to avoid potentially unfair conduct.
“Following the President’s direction, the U.S. Department of Labor undertook a comprehensive, nine-month assessment to ensure that American workers and businesses have fair notice of their rights and obligations under the law,” said U.S. Deputy Secretary of Labor Patrick Pizzella. “The Department is proud to unveil the results of its months of hard work – recognizing that these are just the first steps toward a more transparent government.”
In addition to these substantive requirements, pursuant to the Executive Order and this rule, the Department undertook a comprehensive review of its own guidance, rescinding nearly 3,200 documents. The remaining documents are all available in a searchable database at dol.gov/guidance.
Guidance documents can be invaluable when used properly. Guidance should provide clarity about existing rights and obligations and help stakeholders comply with laws and regulations. However, guidance cannot be used to create new obligations and cannot modify the law. The PRO Good Guidance Rule allows the Department to continue to use guidance for lawful purposes, but ensures that guidance documents cannot be used in an unfair or unlawful manner.