Biden administration revokes Trump-era policies on DOL guidance

Washington — The Biden administration has rescinded Department of Labor policies and requirements for guidance documents that went into effect four months ago, according to final rule published in the Jan. 27 Federal Register.

Since Sept. 28, DOL had required “significant” guidance to undergo notice-and-comment procedures – much like potential regulations – in accordance with a final rule published in the Aug. 28 Federal Register. The documents also had to be reviewed by the White House Office of Information and Regulatory Affairs. “Significant” guidance documents are those with an expected economic impact of $100 million or more.

The initial rule required any guidance documents published on dol.gov/guidance to remain in effect. Additionally, agencies weren’t allowed to use noncompliance with a guidance document as a reason for issuing violations. Also, the public could petition an agency to withdraw or change a guidance document.

Under the rule, guidance documents were required to include a disclaimer, which typically read: “This document does not have the force and effect of law and is not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.”

The rule required DOL to provide an updated, quarterly list of guidance documents issued, changed or withdrawn. When the rule was published, the department said it had rescinded nearly 3,200 of its approximate 11,700 guidance documents.

The latest final rule, effective immediately, contends that the previous rule deprived DOL and its agencies of “necessary flexibility” and restricted the department’s “ability to provide timely guidance on which the public can confidently rely.”

The new rule stems from an Executive Order signed Jan. 20 by President Joe Biden titled Revocation of Certain Executive Orders Concerning Federal Regulation. It rescinded EO 13891, signed by former President Donald Trump in October 2019.