DOL Rescinds Limitation on Agency Guidance

The DOL has rescinded a final rule, issued in August 2020, that established policies and requirements for issuing, modifying, and withdrawing non-regulatory guidance and making it available to the public (see our Checkpoint article). The rescission was prompted by an Executive Order issued by President Biden on January 20, 2021, directing agencies to rescind rules, regulations, guidelines, and other policies implementing certain of former President Trump’s Executive Orders—with the goal of providing agencies with the flexibility to use “robust regulatory action” as necessary to address pressing national issues. According to the DOL, the rescinded rule deprived the agency of “necessary flexibility in determining when and how best to issue public guidance based on particular facts and circumstances,” and unduly restricted its ability to provide “timely guidance on which the public can confidently rely.”

EBIA Comment: The rescission should clear the way for the DOL to act nimbly in issuing new guidance. Although the rescinded rule was intended to ensure that DOL guidance was appropriate, transparent, and accessible to the public, it created potential confusion—in particular regarding whether items available on the DOL website but not found through the single search portal required by the rule were still in effect. 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.