Pension & Benefits News DOL issues final regs establishing policies and requirements for issuing guidance
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Tuesday, September 8, 2020

DOL issues final regs establishing policies and requirements for issuing guidance

By Pension and Benefits Editorial Staff

The Department of Labor (DOL) has issued final regulations, establishing the DOL’s policy and 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 rules, 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 DOL. The regulations will be effective 30 days after publication in the Federal Register.

The rules, in accordance with the order, requires that the DOL use guidance appropriately, transparently, and in a manner that is accessible to the public. The rules accomplish this in four important ways:

  1. By providing that, for significant guidance involving impacts greater than $100 million, the Department will provide for notice-and-comment review of the guidance;
  2. By requiring all Department guidance to be made available to the public in a searchable database at www.dol.gov/guidance;
  3. By allowing the public to petition the Department on issues related to its guidance; and
  4. By limiting the Department’s use of guidance to avoid potentially unfair conduct.

The regulations have eight sections, covering the rules’ scope and purpose, definitions of key terms, general requirements for issuing and using guidance, a review and approval process for guidance and the features guidance must generally have, the requirement that guidance be made publicly accessible, special processes for significant guidance, the public’s right to petition agencies to withdraw or modify guidance, and that the regulations are about agency procedure and do not create enforceable rights.

Increased clarity, greater public access, and input regarding agency policy will result in more useful and effective guidance, according to the DOL. Furthermore, 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. The DOL states that the regulations allow the Department to continue to use guidance for lawful purposes but ensures that guidance documents cannot be used in an unfair or unlawful manner.

The DOL also 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.

Source: DOL News Release No. 20-1627-NAT

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