Promoting Regulatory Openness Through Good Guidance (PRO Good Guidance), 29 CFR Part 89, 85 Fed. Reg. 53163 (Aug. 28, 2020); News Release: U.S. Department of Labor Issues “Promoting Regulatory Openness through Good Guidance” Rule (Aug. 21, 2020)
The DOL has issued a final rule establishing policies and requirements for issuing, modifying, and withdrawing non-regulatory guidance and making it available to the public. Explaining that agency guidance issued outside of the formal rulemaking process generally cannot modify the law or impose binding requirements, the DOL expressed concern that the weight of agency pronouncements may imply that following agency guidance is the only acceptable means of complying with underlying statutory or regulatory requirements. According to an accompanying fact sheet, the new rule will ensure that DOL guidance is “appropriate, transparent, and accessible to the public.” Here are highlights:
Guidance Subject to Rule. “Guidance” for purposes of this rule includes DOL statements of general applicability setting forth agency policy or the DOL’s interpretation of a statute or regulation. Certain items, including advisory opinions directed to particular persons, are excluded from the definition.
General Principles. The rule specifies that guidance documents should not be treated as binding unless the underlying law permits the DOL to create binding guidance, and any binding requirements are subject to a notice-and-comment rulemaking process. Special requirements apply to guidance determined to be “significant.” Guidance documents issued under the rule (other than authorized binding guidance) should avoid using mandatory language such as “shall” or “required.” DOL agencies that issue guidance jointly with agencies outside the DOL are permitted to modify their approach as necessary. [EBIA Comment: The preamble specifically identifies EBSA as a DOL agency that issues guidance jointly with other federal agencies. We note that HHS is undertaking a similar process, and has issued a proposed rule on agency guidance documents.]
Guidance Search Page. The DOL has established a Guidance Search portal to comply with the rule’s requirement to maintain a single, searchable, indexed website containing the guidance documents that are in effect. The portal notes that guidance documents do not have the force and effect of law, are not meant to bind the public, and are intended only to provide clarity on existing requirements or agency policies. Search filters include agency (such as EBSA), year issued/updated, and form of guidance.
Effective Date. The rule applies to guidance issued, modified, or withdrawn after September 28, 2020. After that date, guidance documents not posted on the DOL website and accessible through the Guidance Search portal are no longer in effect but may still be useful for historical purposes.
EBIA Comment: Excluding advisory opinions from the guidance definition makes some sense, as they are not binding and can only be relied on by the party requesting the opinion. But for other types of guidance, confusion may arise if an item is not found through the Guidance Search portal but is still available elsewhere on the DOL website. For example, a set of FAQs regarding a federal trial court decision vacating provisions of the association health plan (AHP) regulations (see our Checkpoint article) appears to be absent from the portal, but an earlier set of AHP FAQs incorrectly marked with the date of the missing FAQs is included, making it unclear whether the missing set was intentionally or inadvertently excluded. What is clear is that plan sponsors, plan administrators, service providers, and advisors should rely primarily on statutes and regulations, not agency pronouncements. For more information, see EBIA’s ERISA Compliance manual at Section II.B (“Governing Law: Where Do the Rules Come From?”). See also EBIA’s 401(k) Plans manual at Section III.D. 4 (“Other DOL Guidance”), EBIA’s Group Health Plan Mandates manual at Section III.F (“Agency Guidance”), EBIA’s Self-Insured Health Plans manual at Section V.C (“Employee Protections: ERISA”), and EBIA’s Health Care Reform manual at Section I.C.2 (“Regulations and Other Guidance”).
Contributing Editors: EBIA Staff.