    [Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
    [Rules and Regulations]
    [Pages 53163-53173]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2020-18500]

    =======================================================================
    -----------------------------------------------------------------------

    DEPARTMENT OF LABOR

    Office of the Secretary

    29 CFR Part 89

    RIN 1290-AA40

    Promoting Regulatory Openness Through Good Guidance (PRO Good
    Guidance)

    AGENCY: Office of the Secretary, U.S. Department of Labor.

    ACTION: Final rule.

    -----------------------------------------------------------------------

    SUMMARY: This rule establishes the U.S. Department of Labor'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. This rule will help the Department use
    guidance lawfully and appropriately, and it gives Americans fairer
    notice of and improved access to guidance. The Department expects this
    rule will have meaningful benefits for employers, workers, and the
    American public overall.

    DATES: Effective on September 28, 2020.

    FOR FURTHER INFORMATION CONTACT: Erin FitzGerald, Senior Policy
    Advisor, U.S. Department of Labor, Room S-2312, 200 Constitution Avenue
    NW, Washington, DC 20210; telephone: (202) 693-5076 (this is not a
    toll-free number). Copies of this final rule may be obtained in
    alternative formats (large print, Braille, audio tape or disc), upon
    request, by calling (202) 693-5959 (this is not a toll-free number).
    TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information
    or request materials in alternative formats.

    SUPPLEMENTARY INFORMATION:

    Preamble Table of Contents

    I. Background and Overview
    II. Discussion of the Department's PRO Good Guidance Rule: Promoting
    Regulatory Openness Through Good Guidance
    III. Final Rule

    I. Background and Overview

        On October 9, 2019, the President issued Executive Order 13891
    (E.O.), titled ``Promoting the Rule of Law through Improved Agency
    Guidance Documents,'' addressing guidance issued by federal agencies
    outside of the context of formal rulemaking. Among other things, the
    E.O. requires that federal agencies generally treat guidance as non-
    binding; establish processes for issuing guidance; make all guidance
    available to the public; take comment on significant guidance; and
    receive and respond to petitions for withdrawal or modification of
    guidance. The E.O. directs the Department to finalize regulations
    related to these requirements. This Promoting Regulatory Openness
    through Good Guidance Rule (the ``rule on guidance'' or ``PRO Good
    Guidance Rule'') complies with that directive.
        Though informed and prompted by the E.O., the Department issues
    this rule under its own, independent authority. It does so expecting
    the rule will lead to meaningful benefits for employers, workers, and
    the American public. Among other things, the rule clarifies when and
    how agencies should speak outside the context of notice-and-comment
    rulemaking. It ensures that all guidance is accessible. And it enables
    the public to comment on significant guidance documents and submit
    petitions concerning guidance. Increased clarity, greater public
    access, and input regarding agency policy will result in more useful
    and effective guidance. Just as important, 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.
        Chief among its considerations, this rule is designed to take into
    account how powerful agency statements are. When agencies speak,
    Americans listen carefully and often change their behavior as a result.
    Ignorance of or failure to abide by agency regulations and the laws
    agencies enforce can have immense ramifications. In light of the
    stakes, the public often treats guidance from agencies as binding, even
    if it technically is not. Thus, it is vital that agencies promulgate,
    maintain, and use guidance carefully.

    II. Discussion of the Department's PRO Good Guidance Rule: Promoting
    Regulatory Openness through Good Guidance

        This rule has eight sections, each of which is explained in more
    detail below.

     Section 89.1 outlines the rule's scope and purpose
     Section 89.2 defines key terms
     Section 89.3 provides general requirements for issuing and
    using guidance
     Section 89.4 establishes a review and approval process for
    guidance and identifies features guidance must generally have
     Section 89.5 requires guidance to be made publicly accessible
     Section 89.6 sets up special processes for significant
    guidance
     Section 89.7 enables the public to petition agencies to
    withdraw or modify guidance
     Section 89.8 makes clear that this rule is one of agency
    procedure and does not create enforceable rights

    Section 89.1 Scope of This Part

        In Sec.  89.1, the Department explains the scope and purpose of
    this rule. Paragraph (a) begins by accounting for how guidance
    documents--in their proper place--are valuable tools of government. The
    American people are

    [[Page 53164]]

    best served by agencies that speak clearly and unambiguously about
    existing legal obligations. Well-crafted guidance enables agencies to
    do so. For example, agencies use guidance to interpret existing laws or
    clarify how they plan to enforce existing legal requirements. Agencies
    also use guidance to provide compliance assistance, which helps parties
    understand and obey the law, and to enhance worker protections.
    Appropriately used, guidance is valuable.
        As is explained in Section 1 of the E.O., however, agencies can
    also misuse guidance in ways that weaken the rule of law. For example,
    unless law otherwise permits, an agency using guidance to explicitly
    announce new standards that the agency treats as binding violates the
    Administrative Procedure Act (APA). When agencies misuse guidance,
    regulated persons have less certainty about their actual obligations.
        Agencies must do more than simply refrain from explicitly
    purporting to establish new legal requirements in guidance. Regulated
    persons are aware of the possibility of enforcement actions. They
    accordingly have strong incentive to comply with even ostensibly ``non-
    binding'' agency statements that they see as attempting to regulate
    them. For example, an agency may use guidance to suggest or imply that
    a standard for behavior in guidance is the only acceptable means of
    complying with statutory or duly-promulgated regulatory requirements,
    even when the statute itself permits other means. Yet a party may feel
    the need to comply with an implication in the guidance irrespective of
    the statutory or regulatory text because it considers the cost of
    following the guidance lower than the cost of a fight with the agency.
    This is especially the case for guidance interpreting agencies'
    legislative rules, since tribunals often defer to such guidance.
        Likewise, an agency may improperly use guidance to shape private
    parties' conduct beyond legal requirements by targeting those who do
    not follow the guidance for heightened enforcement or inspection
    activity. Guidance is improper when imposed on the public in this
    manner.\1\
    ---------------------------------------------------------------------------

        \1\ This kind of coercive guidance is different from truly
    voluntary Department programs. A program is voluntary when a person
    can freely choose to enter the program or not, without governmental
    consequences for declining. See, e.g., OSHA, ``Voluntary Protection
    Program,'' osha.gov/vpp. In an improperly coercive regime of threats
    and rewards, the private party's choice to follow the guidance is
    itself subject to government pressure in the form of, for example,
    more frequent inspections. See Chamber of Commerce of U.S. v. U.S.
    Dep't of Labor, 174 F. 3d 206 (D.C. Cir. 1999).
    ---------------------------------------------------------------------------

        To account for such considerations, this rule establishes the
    Department's policy and requirements for guidance. As explained in
    detail below, it communicates the Department's policies and procedures
    for issuing, modifying, withdrawing, and applying guidance; making
    guidance available to the public; notice-and-comment procedures for
    significant guidance; and responding to petitions from the public about
    guidance.
        In paragraph (a), the Department describes how agencies should give
    fair notice of, and full access to, agencies' guidance. Among other
    things, this means making all current guidance documents publicly
    available.
        In paragraph (b), the Department explains that its rule on guidance
    applies broadly to the Department of Labor and to all of its agencies
    involved with any phase of developing, issuing, modifying, withdrawing,
    using, or defending guidance documents.

    Section 89.2 Definitions

        In this section, the Department defines key terms for this rule. To
    develop its definitions, the Department took direction from E.O. 13891
    and OIRA's Guidance Implementing Executive Order 13891 (Oct. 31, 2019),
    https://www.whitehouse.gov/wp-content/uploads/2019/10/M-20-02-Guidance-Memo.pdf.
        Paragraph (a) defines ``agency'' as the Department of Labor or any
    of its agencies, agency components, offices, or other similar
    organizational units. This broad definition accounts for the variety of
    Departmental entities that issue guidance.
        Paragraph (b) defines ``agency head'' as the actual head of the
    respective agency within the Department.
        Paragraph (c) defines ``Department'' as the Department of Labor.
        Paragraph (d) defines ``guidance'' or ``guidance document'' as ``an
    agency statement of general applicability, intended to have future
    effect on the behavior of regulated persons, that sets forth a policy
    on a statutory, regulatory, or technical issue, or an interpretation of
    a statute or regulation.'' Generally, if a document is unavailable to
    the public, it is not guidance. This is because an agency statement is
    generally not intended to have future effect on the behavior of
    regulated persons if it is internal to an agency and not publicly
    available. The definition accounts for how agencies issue guidance in a
    variety of formats. These include letters, memoranda, circulars,
    bulletins, or advisories, and may include video, audio, and web-based
    formats. An agency statement in any format that satisfies the
    definition of ``guidance'' could qualify, regardless of how it is
    labeled.
        The definition of guidance has nine exceptions. The first four
    reflect that Congress in the APA has already categorized certain types
    of agency statements and has addressed what process is needed to make
    them. The last five exceptions reflect common types of agency
    statements that typically fall outside the general definition of
    guidance.
        Under paragraph (d)(1), guidance does not include rules promulgated
    by notice and comment under 5 U.S.C. 553 or similar statutory
    provisions. Legislative rules promulgated through notice and comment
    under the APA qualify for this exception, as do interpretive rules and
    statements of policy that go through notice and comment despite being
    exempt from those requirements under Sec.  553(b) of the APA. By
    contrast, an interpretive rule or statement of policy not issued
    through notice-and-comment would not qualify for the exception and thus
    would constitute guidance. The last phrase in (d)(1), ``or similar
    statutory provisions,'' accounts for rules that may be promulgated
    under rulemaking procedures distinct from the APA.
        Under paragraph (d)(2), guidance does not include rules exempt from
    rulemaking requirements under 5 U.S.C. 553(a) or similar statutory
    provisions. That section makes the APA's informal rulemaking
    requirements inapplicable ``to the extent that there is involved--(1) a
    military or foreign affairs function of the United States; or (2) a
    matter relating to agency management or personnel or to public
    property, loans, grants, benefits, or contracts.'' If an existing or
    future statute other than the APA provides for rulemaking but then
    exempts rules addressing these matters, a rule arising under that
    statute would also qualify under (d)(2) as something that is not
    guidance.
        Under paragraph (d)(3), guidance does not include rules of agency
    organization, procedure, or practice. This language parallels an
    exception from the requirement to issue a notice of proposed rulemaking
    in the APA. See 5 U.S.C. 553(b)(A). Applying paragraph (d)(3) requires
    a functional test, and it does not exclude statements of agency
    organization, procedure, or practice that are in fact used to shape the
    behavior of regulated parties. For instance, a document ostensibly
    addressed to regional agency officials directing them

    [[Page 53165]]

    to make enforcement decisions based on a particular construction of a
    statute, but then released to the public with the predictable result of
    dissuading the public from taking actions inconsistent with the statute
    as the document construed it, would constitute guidance. This rule
    itself is an example of a rule of agency organization, procedure, or
    practice that is accordingly not subject to the definition of guidance.
        Under paragraph (d)(4), guidance does not include decisions of
    agency adjudications under 5 U.S.C. 554 or similar statutory
    provisions. Under this exception, an agency judicial opinion following
    formal adjudication under the APA or similar law would not be guidance.
        The next five exceptions, in paragraphs (d)(5) through (d)(9),
    contain common types of agency statements that generally fall outside
    the rule's definition of guidance. As illustrated in the discussion of
    paragraph (d)(3) above, however, in applying the definition of guidance
    and its exceptions, agencies should assess agency statements
    independent of their labels. If a document's title suggests an
    exception but the agency actually uses the document as guidance, that
    exception may not apply.
        Under paragraph (d)(5), guidance does not include internal
    statements directed to the issuing agency or other agencies that are
    not intended to have substantial future effect on the behavior of
    regulated persons. This includes statements made solely to the issuing
    agency or other agencies or their personnel. For example, a memorandum
    addressed and sent to an agency's regional administrators, and not
    publicly disseminated, would presumptively be excluded. Internal agency
    documents made public only because of FOIA or agency disclosure
    policies requiring their release would be presumptively excluded as
    well. However, agencies should assess whether such statements will have
    substantial future effect on the behavior of regulated persons. If so,
    they would likely be guidance.
        Under paragraph (d)(6), guidance does not include internal
    executive branch legal advice or legal opinions addressed to executive
    branch officials. For example, a memorandum giving legal opinions from
    the Department's Office of the Solicitor to client agencies would not
    be guidance.
        Paragraph (d)(7) excepts legal briefs and other court filings. Such
    documents are not guidance because they are intended to inform or
    persuade a court, not affect the conduct of regulated persons.
        Paragraph (d)(8) excepts agency statements of specific
    applicability. For example, advisory or legal opinions directed to
    particular persons about circumstance-specific questions would
    generally not be guidance, especially if the Department never makes the
    opinions public beyond the specific addressee. This exception includes
    documents such as case or investigatory letters, responses to
    complaints, and warning letters. Similarly, notices regarding
    particular locations or facilities--such as a memorandum pertaining to
    the use, operation, or control of a government facility or property--
    are not guidance under this rule. Nor is correspondence with individual
    persons or entities, such as congressional correspondence or notices of
    violations.
        However, agency statements ostensibly directed to a particular
    person but also designed or used to guide the conduct of the broader
    regulated public may be guidance. For example, when an agency sends an
    opinion letter to a particular person in response to an inquiry, but
    then publishes or otherwise issues the opinion letter and then cites it
    in a letter to a different person, that letter would likely be
    guidance.
        Paragraph (d)(9) excepts agency statements that do not set forth a
    policy on a statutory, regulatory, or technical issue or an
    interpretation of a statute or regulation. This would generally
    include, for example, statements that merely transmit news updates
    about the agency (such as a speech or press release announcing a new
    program), or publications that merely repeat, summarize, or put into
    lay language laws or regulations for a worker audience that is the
    beneficiary of those laws or regulations (such as a ``know your
    rights'' card).
        The Department notes that other types of agency statements may not
    be ``guidance'' even if they are not listed explicitly in exceptions
    (d)(1) through (d)(9). For example, Information Collection Request
    (ICR) packages, submitted to OMB and subject to notice and comment,
    would not generally be guidance. Generally speaking, neither would
    agency homepages. However, agencies should still assess these and other
    documents on a case-by-case basis, since any agency statement could
    function as guidance depending on how it is used.
        Paragraph (e) defines ``OIRA'' as the Office of Management and
    Budget's Office of Information and Regulatory Affairs.
        Paragraph (f) defines ``person'' to include entities such as state,
    tribal, and local governments; corporations, companies, associations,
    labor unions, firms, partnerships, societies; and individuals. This
    illustrative list generally reflects the types of ``persons'' with
    which the Department interacts. This preamble also uses the term
    ``person'' throughout in a manner that is consistent with this
    definition.
        In paragraph (g), the Department defines ``pre-enforcement ruling''
    as a formal written communication by an agency in response to an
    inquiry from a person concerning compliance with legal requirements
    that interprets the law or applies the law to a specific set of facts
    supplied by the person. The term includes informal guidance under
    section 213 of the Small Business Regulatory Enforcement Fairness Act
    of 1996, Public Law 104-121 (Title II), as amended; letter rulings;
    advisory opinions; and no-action letters. Pre-enforcement rulings can
    be guidance but, as explained below, are exempt from procedures for
    issuing significant guidance.
        In paragraph (h), the Department defines ``significant guidance''
    or ``significant guidance document'' as guidance that falls into
    several different categories. The Department's approach codifies
    existing practice, developed over time in line with the definition of
    ``significant guidance'' in OMB's Final Bulletin for Agency Good
    Guidance Practices, 72 FR 3432, 3439 (Jan. 25, 2007), and the
    Department's approach to ``significant regulatory actions'' under E.O.
    12866.
        Under paragraph (h)(1), guidance is significant if it may
    reasonably be anticipated to lead to an annual effect on the economy of
    $100 million or more, or adversely affect in a material way the
    economy, a sector of the economy, productivity, competition, jobs, the
    environment, public health or safety, or state, local, or tribal
    governments or communities. Under paragraph (h)(2), guidance is
    significant if it may reasonably be anticipated to create a serious
    inconsistency or otherwise interfere with an action taken or planned by
    another Federal agency (one outside the Department). Under paragraph
    (h)(3), guidance is significant if it may reasonably be anticipated to
    materially alter the budgetary impact of entitlements, grants, user
    fees, loan programs, or the rights and obligations of recipients
    thereof. Under paragraph (h)(4), guidance is significant if it may
    reasonably be anticipated to raise novel legal or policy issues arising
    out of legal mandates, the President's priorities, or the principles of
    Executive Order 12866. Under Sec.  89.6(a), discussed below, OIRA will
    determine whether guidance is

    [[Page 53166]]

    significant, and the Department will work closely with OIRA on such
    determinations.

    Section 89.3 General Requirements

        This section outlines general requirements for the issuance and use
    of guidance documents and reflects a central consideration of this
    rule: Unless law otherwise permits or the guidance is incorporated into
    a contract, cooperative agreement, or grant, guidance itself cannot
    impose binding requirements. Paragraph (a) implements as an internal
    rule the Department's existing obligation under the APA that all
    legislative rules must comply with all applicable notice-and-comment
    requirements set out in 5 U.S.C. 553 or with other appropriate
    processes under applicable law.
        Under paragraph (b), all agency guidance issued after the effective
    date of this rule must be issued in accordance with the procedures
    codified in this rule. This paragraph is prospective.
        Paragraph (b) also provides that, for each guidance document an
    agency issues jointly with other federal agencies (outside the
    Department), an agency may, subsequent to consultation with those
    outside agencies about that document, modify its approach from the
    requirements of part 89 as necessary. This paragraph accounts for how
    some agencies at the Department such as the Employee Benefits Security
    Administration may issue guidance jointly with other federal agencies
    outside the Department. When issuing such guidance, the agency should
    attempt to comply with the requirements of this rule to the extent
    possible.
        In paragraph (c), the Department first limits the use of guidance
    in actions initiated after the effective date of the rule and then
    gives examples of permissible uses of guidance in such actions.
        In paragraph (c)(1), the Department makes clear that enforcement
    actions must be based on violations of applicable legal requirements,
    not mere noncompliance with guidance documents. Guidance documents
    cannot, by themselves, create binding requirements unless binding
    guidance is authorized by law or the guidance is incorporated into a
    contract, cooperative agreement, or grant. Thus, an agency may not use
    noncompliance with a guidance document as itself a violation of
    applicable statues or regulations, and may not bring actions based
    solely on allegations of noncompliance with guidance documents. This
    limitation will not, and is not intended to, have any effect on
    agencies' ability to bring enforcement actions and prove violations of
    the law. This limitation merely prevents agencies from relying on
    noncompliance with nonbinding guidance rather than proving an actual
    violation of a binding legal standard.
        Paragraph (c)(2) illustrates three recurring permissible uses of
    guidance in legal actions. First, if guidance describes existing legal
    requirements, an agency may use the guidance as evidence that a person
    had the requisite scienter, notice, or knowledge of the law. This
    example is relevant to certain types of agency enforcement actions.
    Second, an agency may cite guidance as evidence of its past positions
    or to establish the consistency of those positions with the agency's
    current views. For example, if a party argues an agency's position is
    arbitrary and capricious, the agency may use previous guidance to show
    its position has been consistent over time. Third, an agency may use a
    guidance document to show that a party has failed to meet professional
    or industry standards when those are relevant to statutory or
    regulatory requirements. For example, showing industry recognition of a
    condition or activity as hazardous is one way to establish an element
    of a violation of the general-duty clause of the Occupational Safety
    and Health Act of 1970. These examples are not exhaustive.
        Paragraphs (c)(1) and (2) should be read together. The former
    strengthens the rule of law and prevents misuse of guidance by focusing
    agency actions on the actual bases of legal obligations. The latter
    provides important examples of permissible uses of guidance.
        Paragraph (d) forbids using guidance issued or modified after the
    effective date of this rule in attempts to regulate the public beyond
    what the law allows. This paragraph bars the use of guidance to coerce
    parties into taking action beyond what the substantive terms of
    applicable statutes or legislative rules actually require. For
    instance, an agency should not use guidance to suggest that a standard
    of behavior in a guidance document is the only acceptable means of
    complying with statutory requirements if the relevant statute or
    legislative rule permits other means of complying. Likewise, an agency
    should not threaten enforcement actions against persons who do not
    follow substantive requirements in the guidance itself (unless the
    guidance is binding because binding guidance is authorized by law or
    because the guidance is incorporated into a contract, cooperative
    agreement, or grant). For example, if an agency's guidance purports to
    establish a standard higher than that of an underlying legislative rule
    and then announces the agency will increase the frequency of
    inspections for employers that fall short of the standard, that
    approach would likely violate this provision. Similarly, an agency
    should avoid using guidance that ``rewards'' regulated persons for
    compliance with substantive requirements in guidance by reducing the
    frequency of inspections or audits, if those rewards effectively make
    the guidance coercive beyond what is permitted by law. As noted
    earlier, these concerns do not arise with truly voluntary programs for
    which persons suffer no adverse consequences for declining to
    participate.
        Paragraph (e) reminds agencies that in issuing or modifying
    guidance, they must comply with any applicable requirements of the
    Congressional Review Act (CRA). The CRA creates obligations on agencies
    that issue ``rules,'' which the CRA defines broadly to include certain
    types of guidance. See 5 U.S.C. 804(3).\2\ Accordingly, as agencies
    review guidance, they should ensure that if guidance also constitutes a
    ``rule'' under the CRA, they comply with the CRA with respect to that
    guidance. In complying with this paragraph, the Department should
    consult with OIRA, which determines whether a rule is ``major'' under
    the CRA, consistent with this rule's Sec.  89.6(a).
    ---------------------------------------------------------------------------

        \2\ See also OMB, ``Guidance on Compliance with the
    Congressional Review Act,'' (Apr. 11, 2019) (``The CRA applies to
    more than just notice-and-comment rules; it also encompasses a wide
    range of other regulatory actions, including, inter alia, guidance
    documents . . . .''), https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf.
    ---------------------------------------------------------------------------

    Section 89.4 Requirements for Guidance

        This section establishes a review and approval process for guidance
    and other requirements for guidance documents. These provisions ensure
    that guidance receives appropriate approval and clearance; is clearly
    identified as non-binding (or binding, but only when law permits); and
    is more useful for employers, workers, and other members of the
    American public.
        Paragraphs (a)(1) through (3) require that before any guidance is
    issued, modified, or withdrawn, it must be reviewed and approved by an
    agency official. These officials include (i) the appropriate agency
    head; (ii) an acting agency head or official otherwise leading the
    agency; or (iii) an appropriately designated official. By contrast to
    the non-delegable review and approval processes for significant

    [[Page 53167]]

    guidance documents in Sec.  89.6(b)(2) below, Sec.  89.4(a) retains
    flexibility to account for how some fairly routine guidance is issued.
        Paragraph (b) requires that an official that reviews and approves
    guidance under paragraph (a) ensure that guidance follows all relevant
    statutes and regulations, including the requirements of this rule. The
    review required by paragraph (b) looks at all the surrounding
    circumstances, including the anticipated public response to the
    guidance, and goes beyond the four corners of the document under
    review.
        Paragraph (c) requires that, in conducting the review required by
    paragraph (a), the reviewing official must evaluate whether the
    agency's statement in question is in fact guidance, regardless of its
    label. Even documents that expressly disclaim the force and effect of
    law could still appear to establish binding requirements or otherwise
    inappropriately attempt to regulate private parties. This is
    impermissible.
        Under paragraph (d), guidance issued or modified after the
    effective date of this rule must include an appropriate disclaimer. The
    Department expects that the disclaimer language in (d)(1), derived from
    OIRA's Guidance Implementing Executive Order 13891, will be suitable
    for most guidance: ``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.'' This disclaimer makes
    clear that any given guidance document does not itself bind the public,
    and exists only in relation to other authorities.
        Paragraph (d)(2) authorizes modifying the language in (d)(1) if
    binding guidance is permitted based on underlying statute or other
    legal authority and the modified disclaimer language is developed in
    consultation with OIRA, such that OIRA has an opportunity to review and
    comment on the modified disclaimer. Such a modified disclaimer is
    appropriate when the agency's guidance is binding because binding
    guidance is authorized by law or because the guidance is incorporated
    into a contract, cooperative agreement, or grant. The modified
    disclaimer must explain why the guidance is binding. For example, if an
    agency ties a funding announcement to guidance that the successful
    grant applicants must agree to follow, the agency should use a modified
    disclaimer to explain that the guidance is binding.
        Next, paragraph (d) provides general parameters for how agencies
    should display the disclaimer language under (d)(1) or (d)(2). These
    parameters are designed to ensure that disclaimers are legible and
    prominently displayed. These parameters are that a disclaimer should be
    prominently located; and should direct readers to www.dol.gov/guidance
    for questions or additional information.
        These parameters generally apply, but on occasion modifications may
    be appropriate and make guidance more effective and useful. For
    example, a brochure with a cover sheet does not need a disclaimer on
    its cover. Breakroom posters providing guidance might need 24-point
    font to be legible, where wallet-sized cards would need only 6-point
    font. And guidance in a video or interactive web page may require other
    modifications. However, the Department expects the parameters will suit
    the vast majority of guidance.
        Paragraph (d) is prospective only. Before issuing this rule, the
    Department fully reviewed all its agencies' guidance and placed all
    guidance in effect on a public website. That website's landing page has
    a disclaimer akin to the language in paragraph (d)(1) and already
    informs readers that the Department's guidance does not have the force
    and effect of law. Given the large amount of work that would be
    necessary to revise each piece of guidance to apply new disclaimer
    language, the Department will apply paragraph (d)(1) only to newly-
    issued or modified guidance.
        Paragraph (e) requires that guidance documents issued or modified
    after the effective date of the rule avoid using mandatory language--
    language such as ``shall,'' ``must,'' ``required,'' or
    ``requirement''--to direct persons outside the Department to take or
    refrain from taking action. This paragraph is generally consistent with
    OMB's Good Guidance Practices, 72 FR at 3440. It gives agencies a
    practical means to avoid issuing guidance that appears to create
    binding obligations or that inappropriately attempts to regulate the
    public. At the same time, paragraph (e) permits mandatory language when
    guidance restates requirements, provisions, or holdings contained in
    binding legal authorities, and similarly, when binding guidance is
    authorized by law, or is binding by incorporation into a contract,
    cooperative agreement, or grant.
        Paragraph (f) requires that guidance documents be written in plain
    and understandable language. This is consistent with the Department's
    goal of making guidance as useful as possible, and such clarity will
    effectively advance agencies' missions.
        Paragraphs (g)(1) through (9) list additional features that
    guidance must reflect, except when not feasible. These features will
    increase transparency and help communicate the purpose and the nature
    of the document in question. For example, when agencies issue guidance
    through interactive online formats, small brochures, or wallet-sized
    cards, they may be unable to incorporate every feature in (g)(1)
    through (9).
        Paragraph (g)(1) requires that guidance prominently display the
    term ``guidance.'' This will reduce potential confusion about the
    nature of any given agency statement--helping distinguish the guidance
    from an internal rule of agency procedure, for example.
        Paragraph (g)(2) requires that guidance identify the agency that
    issued it.
        Paragraph (g)(3) requires that each guidance document provide the
    title of the guidance and its identification number, which will be
    posted on the website under Sec.  89.6. This will help keep track of
    and readily identify any given guidance document. It also enhances the
    petition process under Sec.  89.7.
        Paragraph (g)(4) requires that guidance include a date of issuance.
    Among other benefits, this will prevent confusion when successive
    guidance documents address the same topic.
        Paragraph (g)(5) requires that each guidance document include, at
    the top of the document, a short summary of the subject matter covered.
    However, this feature may not always be feasible, given the formats of
    certain agency guidance (for example, brochures). Under such
    circumstances, agencies need not include a summary.
        Paragraph (g)(6) requires that guidance identify the activities to
    which and the persons to whom the guidance applies. This is a
    requirement that agencies can readily satisfy even when guidance
    applies broadly. For example, a guidance document from the Wage and
    Hour Division about internships could include language as simple as:
    ``This guidance is intended for employers covered by the FLSA who
    intend to hire interns.''
        Paragraph (g)(7) requires that guidance include the citation to the
    statutory provision(s) or regulation(s) (in the Code of Federal
    Regulations format) to which it applies or which it interprets. This is
    consistent with and will reinforce conformity to other requirements in
    this rule. For example, including citations to relevant legal
    authorities will help ensure that the

    [[Page 53168]]

    agency statement is actually guidance under the definition in Sec.
    89.2(d).
        Paragraph (g)(8) requires that a guidance document note if it
    revises a previously issued guidance document. If it does, it should
    identify the guidance it replaces.
        Paragraph (g)(9) requires that guidance have a statement indicating
    if the guidance is valid for only a limited duration or, instead, until
    it is modified or rescinded. This feature will help keep track of the
    expiration date of guidance (where such a date exists).
        Taken together, the Department believes the requirements in this
    section will result in more uniform, clear, and useful guidance.

    Section 89.5 Public Access to Guidance Documents

        This section ensures that the public will have access to all
    guidance documents in effect at any given point in time. It also
    describes requirements for the Department's guidance website. This
    section will enhance fair notice of agency policies. By creating a
    complete digital inventory of all current guidance and requiring that
    agencies routinely publish a list of changes to guidance, this section
    will lower the cost of staying current with any given agency's
    policies.
        Paragraph (a) requires that the Department maintain a single,
    searchable, indexed website that contains, or links to, each agency's
    guidance documents that are in effect. The Department established this
    website in February 2020. It is available at www.dol.gov/guidance.
    Under paragraph (a), guidance posted to the website will be deemed
    final unless it is proposed significant guidance. This provision helps
    ensure agencies treat guidance consistently in various contexts. For
    example, it will help agencies characterize guidance as final both in
    pre-enforcement discussions with parties, as well as when describing
    the same guidance to a tribunal.
        Paragraph (b) requires that the Department's guidance website have
    two statements, both of which are presently visible on the website.
    First, under paragraph (b)(1), the website must note that guidance
    documents lack the force and effect of law, except as authorized by law
    or as incorporated into a contract, cooperative agreement, or grant. As
    explained above in the discussion of Sec.  89.4, guidance documents
    issued before this rule's effective date need not each individually
    have the disclaimer this rule requires. The language on the website
    will provide the necessary context for guidance created before this
    rule was promulgated.
        Under paragraph (b)(2), the website must note an agency may not
    cite, use, or rely on any guidance that is not posted on the website
    except to establish historical facts.
        Relatedly, paragraph (c) explains that all guidance documents not
    posted on the Department's website are no longer in effect. Consistent
    with the language on the website, such guidance must not be cited,
    used, or relied on by any agency as indicative of the agency's policies
    or views except to establish historical facts. For example, an agency
    could use withdrawn guidance to establish the agency's historical
    position on a topic in defense against claims that recent agency action
    is arbitrary and capricious. Importantly, this provision does not
    prevent regulated parties from attempting to use guidance that is no
    longer in effect as a defense to an enforcement action or other agency
    action where that guidance is used to establish a historical fact, such
    as willfulness or knowledge. For example, it may be appropriate for a
    person to use a guidance document that is now withdrawn but was in
    effect at the time of a cited violation of law as evidence that the
    person did not willfully violate the law.
        Paragraph (d) requires that the Department maintain and advertise
    on its website a means for the public to comment electronically on any
    guidance documents subject to the notice and comment procedures
    required in Sec.  89.6, discussed below.
        Under paragraph (e), the Department must provide clear instructions
    on its website about how to submit petitions for withdrawal or
    modification of any guidance document, consistent with Sec.  89.7.
    Those instructions must be clearly displayed on the website and must
    include, at a minimum, an email address or web portal; a physical
    mailing address for hard-copy petitions; and the office responsible for
    coordinating responses to petitions.
        Paragraph (f) requires that, within 14 calendar days after the end
    of each quarter, the Department publish a list of each agency's
    guidance documents issued, modified, or withdrawn in that immediately
    preceding quarter. The list must include links to those guidance
    documents, unless it is not feasible. For example, links might not
    exist for withdrawn guidance. The quarterly-reporting requirement
    creates an efficient way for the American public to stay abreast of
    agencies' policies as they change. For example, rather than paying a
    law firm to monitor all agency statements and send periodic updates, an
    HR manager could scan this list each quarter to learn whether relevant
    policies have changed. This provision will help make clear what
    guidance agencies have withdrawn, which may not be immediately apparent
    from reviewing the website.

    Section 89.6 Procedures for Significant Guidance

        Though guidance cannot generally create binding legal requirements,
    it can still have significant impact. To improve such guidance and
    provide better notice of its contents, the Department, following OIRA's
    Guidance Implementing Executive Order 13891 (Oct. 31, 2019), is
    establishing additional procedures for guidance OIRA deems
    ``significant.'' These procedures will benefit the American public by
    ensuring that significant guidance receives careful review from the
    agency issuing the guidance; from OIRA, and other federal agencies when
    appropriate; and from those the guidance will impact.
        Section 89.6 applies to guidance issued, modified, or withdrawn
    after the effective date of this rule. It accounts for reliance
    interests on existing guidance because guidance that predates this
    rule, later modified or withdrawn, must still comply with this section
    if deemed significant.
        Under Sec.  89.6(a), the Department must consult with OIRA to
    determine whether guidance is significant guidance, or ``major'' under
    the Congressional Review Act, unless the guidance is otherwise exempted
    from such a determination by the OIRA Administrator.\3\ Prior to
    issuing guidance, the Department will give OIRA opportunity to review
    guidance and make a significance determination.\4\ The Department will
    provide this opportunity through their regular notification to OIRA of
    upcoming guidance. Notice can be provided through a list of guidance
    documents planned, with summaries of each guidance document and the
    agency's recommended designation of ``not significant,''
    ``significant,'' or ``economically significant,'' and the

    [[Page 53169]]

    reason for the designation. For example, an agency could recommend that
    guidance not be deemed significant because it is routine or
    ministerial. The Department will provide OIRA with any additional
    information needed, as well as any information for determining whether
    the guidance is a major rule under the CRA. Under this section, the
    required consultation with OIRA will consist of giving OIRA an
    opportunity to review each guidance document on a timeline reasonable
    for the size, complexity, and importance of the guidance document.
    ---------------------------------------------------------------------------

        \3\ See 5 U.S.C. 804(2) (defining ``major rule'').
        \4\ The Department will evaluate whether, although not legally
    binding, an agency guidance document may result in a significant
    economic impact (e.g., by inducing private parties to alter their
    conduct to conform) where ``significant'' is defined by E.O. 12866.
    E.O. 12866 also requires agencies to estimate the net benefits of
    regulations. Net benefits are defined as total benefits minus total
    costs. When it is determined that a guidance document will be
    economically significant, the agency must prepare a Regulatory
    Impact Analysis and make it publicly available in the same manner it
    what would accompany an economically significant rulemaking.
    ---------------------------------------------------------------------------

        Once OIRA deems guidance significant, it will generally be subject
    to additional requirements, including notice and comment. However,
    under paragraph (b) an agency and the OIRA Administrator may agree that
    exigency, safety, health, or other compelling cause warrant an
    exemption from some of paragraph (b)'s requirements. Absent such an
    exemption, paragraphs (b)(1) through (b)(4) establish requirements
    applicable to significant guidance.
        Under paragraph (b)(1), significant guidance must undergo a period
    of public notice and comment of at least 30 days before issuance of the
    final guidance. When finalized, significant guidance must be
    accompanied by a publicly posted response from the agency, made
    available either as part of the final guidance or in a companion
    document, that addresses major concerns raised in timely submitted
    comments. This response-to-comments should be similar to what typically
    appears in the preamble to a final rule under the APA. An agency need
    not respond to every comment or every issue raised, but it should
    provide explanations of its choices in the final guidance document,
    including why it disagreed with the principal suggestions received.
        Under (b)(1), notice and comment will not be necessary when an
    agency for good cause finds that notice and public comment is
    impracticable, unnecessary, or contrary to the public interest. This
    exception parallels an APA exception for informal rulemaking. 5 U.S.C.
    553(b)(B). Agencies must, as required under paragraph (e), incorporate
    the good cause finding and a brief statement of reasons for it into the
    guidance.
        Paragraph (b)(2) requires that agency component heads, acting
    component heads, or the Secretary or the Deputy Secretary approve and
    sign significant guidance. Approval and signature are non-delegable due
    to the importance of significant guidance, and this provision is less
    flexible than the review and approval process for non-significant
    guidance in Sec.  89.4(a). Approval and signature must come from (i) an
    agency component head appointed by the President, with or without
    confirmation by the Senate; (ii) by an official serving in an acting
    capacity as the foregoing; or (iii) by the Secretary or the Deputy
    Secretary.
        Paragraph (b)(3) requires that significant guidance undergo review
    by OIRA under Executive Order 12866 before issuance. Among other
    things, this provision will help ensure that federal agencies outside
    the Department provide feedback, as needed, on significant guidance.
        Paragraph (b)(4) requires that significant guidance comply with the
    requirements of certain executive orders (E.O.s) that otherwise apply
    to rules, including significant regulatory actions, including E.O.s
    12866, 13563, 13609, 13771, and 13777. Compliance with E.O.s 12866 and
    13563 requires that an agency explain the analysis it has conducted
    that shows that the guidance under consideration maximizes net
    benefits. The agency should also discuss the alternatives it has
    considered and whether it is issuing the guidance as a result of any
    retrospective review. Compliance with E.O. 13609, if applicable,
    requires the agency to explain how the guidance promotes international
    regulatory cooperation and how the agency considered the effect the
    guidance may have on interactions with other countries. Compliance with
    E.O. 13777 requires an explanation whether the guidance is being issued
    as a result of the Department's regulatory reform agenda or through a
    recommendation as a result of the Department's Regulatory Reform Task
    Force. The Department expects to work closely with OIRA so that
    significant guidance adequately addresses applicable requirements in
    these E.O.s.
        Paragraph (c) requires agencies to publish notices in the Federal
    Register to announce the availability of all proposed and final
    significant guidance documents. Agencies also must make proposed and
    final significant guidance available on the website maintained under
    Sec.  89.5. In this section, as with this rule as a whole, the
    Department seeks to give fair notice of agency statements and
    positions, in particular when they will likely have significant impact.
        Paragraph (d) requires agencies to ensure that comments timely
    submitted in response to each proposed significant guidance document
    are published online, on or linked from the website maintained under
    Sec.  89.5, before publishing a final significant guidance document.
    This will make the agency's response to comments received more
    intelligible for anyone wishing to view the comments to which the
    agency responds.
        Paragraph (e) applies when OIRA and an agency have agreed that
    exigency, safety, health, or other compelling cause warrants an
    exemption under paragraph (b). When this occurs, the agency must
    incorporate that finding and a brief statement of reasons for it into
    the guidance issued. This provision resembles the requirement in
    paragraph (b)(1) and gives the public notice of an agency's rationale
    for its approach.
        Under paragraph (f), any significant guidance initially exempt from
    certain requirements under paragraph (b), including (b)(1), is only
    temporary. Such guidance will be rescinded automatically 270 days after
    its publication unless the agency later makes it permanent by following
    the procedures for significant guidance not exempt under paragraph (b).
    Paragraph (f) guarantees that all significant guidance eventually
    benefits from the notice and comment process. The Department expects
    taking comment on such guidance may be particularly valuable due to the
    public having had experience with it for an extended period of time.
        Under paragraph (g), procedures for significant guidance documents
    do not apply to pre-enforcement rulings that are guidance. Among other
    considerations, this approach accounts for the importance of giving
    parties timely direction as they face market pressures. For example, an
    employer may have opportunities that weigh in favor of changing current
    business practices. Absent an agency's opinion, though, the employer
    may be unwilling to make the change due to perceived legal risk. An
    agency's rapid response to such an inquiry may be vital to such an
    employer, and may improve only marginally through notice and comment--
    especially when the underlying basis for the agency response may itself
    have gone through notice and comment and the agency's response is
    specific to the facts of the inquiry.

    Section 89.7 Petitions for Withdrawal or Modification

        This section establishes that members of the public may submit
    petitions for withdrawal or modification of guidance documents. It also
    outlines how agencies must respond. The Department believes the
    petition process will help agencies receive important feedback, which
    will lead to more useful and effective guidance. The Department also
    expects that petitions will prevent needless litigation. For example,
    if an agency mistakenly issues guidance that ostensibly but unlawfully
    establishes a

    [[Page 53170]]

    binding requirement, an employer could submit a petition requesting the
    document's withdrawal and drawing the agency's attention to what it may
    have overlooked.
        Paragraph (a) provides that any member of the public can petition
    an agency for withdrawal or modification of its guidance.
        Paragraph (b) establishes requirements for petitions. They must be
    written. They must include an email and mailing address as well as any
    other preferred means for the agency to respond to the petitioner
    (where the petitioner has means of electronic communication). The
    Department expects that some agencies will receive numerous petitions,
    including some by postal mail. It may be costly to respond to each
    individual petition if the Department cannot respond electronically.
    This requirement furthers the Department's ongoing cost-saving and
    modernization efforts.
        Under paragraph (b), the petition must identify the specific
    guidance that is the subject of the petition. The Department expects
    this will typically include the title of the guidance, the agency that
    issued it and the date it was issued, and any available document
    identification numbers.
        A petition must also state in detail the reasons for requesting
    withdrawal or modification. For example, a petition could explain in
    detail that the document was treated as guidance, but, despite how the
    document is labeled, it appears to contain a binding requirement and
    should have been promulgated through notice and comment rulemaking. By
    contrast, general petitions or those lacking in detailed reasoning and
    argument would not satisfy paragraph (b). For example, summarily and
    generally disagreeing with an agency's policy and then simply listing
    links to relevant guidance would fall short. So would a petition that
    baldly requests modification or withdrawal of all, or a significant
    portion, of an agency's guidance. Detailed explanations will enable
    agencies to fairly evaluate petitions and reassess guidance as needed.
    Absent such detail, reasoning, and argument, agencies have no
    obligation to respond.
        Under paragraph (c), the petition must be directed to the relevant
    agency official, pursuant to instructions provided on the website
    described in Sec.  89.5. This ensures that the petition reaches the
    right agency and receives due consideration.
        Under paragraph (d), an agency may choose to withdraw, modify, or
    retain guidance. Decisions to withdraw or modify guidance are subject
    to applicable provisions of this rule.
        Paragraph (e) describes how agencies must respond to petitions.
    Under paragraph (e), an agency must provide a response in writing to a
    petition promptly, but no later than 90 days after receiving it. This
    means agencies must respond to all petitions satisfying Sec.  89.7(b).
    However, paragraph (e) gives agencies discretion over how they respond.
    Decisions should depend on factors such as the nature of the petition;
    the complexity of the guidance under review; and relevant resource
    constraints. An agency that receives only a few petitions each year may
    opt to respond in detail to each one. Or, for example, if an agency
    receives multiple similar petitions, it may choose to respond
    substantively only to the first such petition and then respond to the
    rest by acknowledging their receipt and enclosing a link to the initial
    response. The agency also may simply acknowledge receipt of a petition
    in writing when appropriate under the circumstances.

    Section 89.8 Enforceability

        In Sec.  89.8, the Department explains that this rule on guidance
    is not intended to, and does not, create any right or benefit,
    substantive or procedural, enforceable at law or in equity by any party
    against the United States, its departments, agencies, or entities, its
    officers, employees, or agents, or any other person. The Department
    includes this paragraph to make clear that this rule is one of agency
    procedure. And though this rule establishes a means for the Department
    to accept petitions, it does not create associated rights or benefits.

    III. Final Rule

        The Department has determined that this rule is suitable for final
    rulemaking. The revisions to the Department's policies and requirements
    surrounding guidance are purely internal matters of agency management,
    as well as the agency's organization, procedure, and practice.
    Accordingly, the Department is not required to engage in a notice and
    comment process to issue them, under either the APA or this rule
    itself. See 5 U.S.C. 553(a)(2), 553(b)(A), infra Sec.  89.2(d)(3).

    List of Subjects

        Administrative practice and procedure, Labor.

    0
    For the reasons discussed in the preamble, the Department of Labor adds
    29 CFR part 89 to read as follows:

    PART 89--GUIDANCE DOCUMENTS

    Sec.
    89.1 Scope of this Part.
    89.2 Definitions.
    89.3 General Requirements.
    89.4 Requirements for Guidance.
    89.5 Public Access to Guidance.
    89.6 Procedures for Significant Guidance.
    89.7 Petitions for Withdrawal or Modification.
    89.8 Enforceability.

        Authority:  5 U.S.C. 301, E.O. 13891.

    Sec.  89.1  Scope of this part.

        (a) Guidance documents can provide a valuable means for an agency,
    among other things, to interpret existing law or to clarify how it
    intends to enforce an existing legal requirement. However, unless law
    permits, guidance documents should not establish new requirements that
    the agency treats as binding; any such requirements should be issued
    pursuant to applicable notice and comment requirements of the
    Administrative Procedure Act or pursuant to other appropriate process
    under applicable law.
        (b) This part governs the Department of Labor and its agencies
    involved with any phase(s) of developing, issuing, modifying,
    withdrawing, or using guidance documents.
        (c) Except where other law or this part provide otherwise, the
    provisions of this part apply to guidance issued and modifications or
    withdrawals of existing guidance that occur after September 28, 2020.

    Sec.  89.2  Definitions.

        The following definitions apply for purposes of this part:
        Agency means the Department of Labor or any of its agencies, agency
    components, offices, or other similar organizational units.
        Agency head means the actual head of the respective Agency within
    the Department.
        Department means the Department of Labor.
        Guidance or guidance document means an agency statement of general
    applicability, intended to have future effect on the behavior of
    regulated persons, that sets forth a policy on a statutory, regulatory,
    or technical issue, or an interpretation of a statute or regulation.
    Guidance may come in a variety of forms, including letters, memoranda,
    circulars, bulletins, or advisories, and may include video, audio, and
    web-based formats. Guidance does not include the following:
        (1) Rules promulgated pursuant to notice and comment under 5 U.S.C.
    553 or similar statutory provisions;

    [[Page 53171]]

        (2) Rules exempt from 5 U.S.C. 553's rulemaking requirements under
    5 U.S.C. 553(a) or any other statute;
        (3) Rules of agency organization, procedure, or practice;
        (4) Decisions of agency adjudications under 5 U.S.C. 554 or similar
    statutory provisions;
        (5) Internal agency statements directed to the issuing agency or
    other agencies that are not intended to have substantial future effect
    on the behavior of regulated persons;
        (6) Internal executive branch legal advice or legal opinions
    addressed to executive branch officials;
        (7) Legal briefs and other court filings;
        (8) Agency statements of specific applicability, including advisory
    or legal opinions directed to particular persons about circumstance-
    specific questions (e.g., case or investigatory letters, responses to
    complaints, warning letters), notices regarding particular locations or
    facilities (e.g., an agency statement pertaining to the use, operation,
    or control of a government facility or property), and correspondence
    with individual persons or entities (e.g., congressional correspondence
    or notices of violations), except statements ostensibly directed to a
    particular person but also designed or used by the agency to guide the
    conduct of the broader regulated public--for example, an opinion letter
    to a particular person that an agency publishes or otherwise issues and
    then cites in a letter to a different person could be guidance; or
        (9) Agency statements that do not set forth a policy on a
    statutory, regulatory, or technical issue or an interpretation of a
    statute or regulation, such as statements merely communicating news
    updates about the agency (e.g., speeches or press releases).
        OIRA means the Office of Management and Budget's Office of
    Information and Regulatory Affairs.
        Person includes entities such as state, tribal, and local
    governments; corporations, companies, associations, labor unions,
    firms, partnerships, societies; and individuals.
        Pre-enforcement ruling means a formal written communication by an
    agency in response to an inquiry from a person concerning compliance
    with legal requirements that interprets the law or applies the law to a
    specific set of facts supplied by the person. The term includes letter
    rulings, advisory opinions, no-action letters, and informal guidance
    under section 213 of the Small Business Regulatory Enforcement Fairness
    Act of 1996, Public Law 104-121 (Title II), as amended.
        Significant guidance or Significant guidance document means
    guidance or a guidance document that may reasonably be anticipated to:
        (1) Lead to an annual effect on the economy of $100 million or more
    or adversely affect in a material way the economy, a sector of the
    economy, productivity, competition, jobs, the environment, public
    health or safety, or state, local, or tribal governments or
    communities;
        (2) Create a serious inconsistency or otherwise interfere with an
    action taken or planned by another Federal agency (one outside the
    Department);
        (3) Materially alter the budgetary impact of entitlements, grants,
    user fees, loan programs or the rights and obligations of recipients
    thereof; or
        (4) Raise novel legal or policy issues arising out of legal
    mandates, the President's priorities, or the principles of Executive
    Order 12866.

    Sec.  89.3  General requirements.

        (a) Unless law otherwise permits, all legislative rules must comply
    with all applicable notice and comment requirements set out in 5 U.S.C.
    553 or other appropriate process under applicable law.
        (b) All guidance documents issued after September 28, 2020 must be
    issued in accordance with this part. For each guidance document an
    agency issues jointly with other federal agencies (outside the
    Department), an agency may, subsequent to consultation with those
    outside agencies about that document, modify its approach from the
    requirements of this part as necessary.
        (c) In any enforcement action commenced after September 28, 2020:
        (1) An agencies may not treat a party's noncompliance with a
    guidance document as itself a violation of applicable statutes or
    regulations.
        (2) However, among other permissible uses of guidance--
        (i) If guidance explains or paraphrases existing legal
    requirements, an agency may use the guidance as evidence that a person
    had the requisite scienter, notice, or knowledge of the law;
        (ii) An agency may cite guidance as evidence of its past positions
    or to establish the consistency of the agency's current view(s) with
    those positions; and
        (iii) An agency may use a guidance document as probative evidence
    that a party has satisfied, or failed to satisfy, professional or
    industry standards or practices relating to applicable statutory or
    regulatory requirements.
        (d) Guidance must not be used to attempt to regulate the public
    unless the guidance is binding because binding guidance is authorized
    by law or because the guidance is incorporated into a contract,
    cooperative agreement, or grant. Guidance should not, for instance,
    suggest that a standard for behavior in a guidance document is the only
    acceptable means of complying with statutory requirements where the
    relevant statute and any relevant legislative rule permits other means
    of complying. Guidance also should not threaten enforcement action
    against persons that do not follow the guidance itself.
        (e) In issuing or modifying guidance, an agency must comply with
    any applicable requirements of the Congressional Review Act (5 U.S.C.
    801-808).

    Sec.  89.4  Requirements for guidance.

        (a) Before any guidance is issued, modified, or withdrawn, it must
    be reviewed and approved by:
        (1) The appropriate agency head;
        (2) An official who is serving in an acting capacity as the agency
    head, or when there is no acting agency head, the official otherwise
    leading the agency; or
        (3) An official designated by the appropriate agency head, acting
    agency head, or the official otherwise leading the agency.
        (b) An official reviewing and approving guidance under paragraph
    (a) must ensure that each guidance document follows all relevant
    statutes and regulations, including the applicable requirements of this
    part.
        (c) In assessing whether an agency's statement is in fact guidance
    during the review under paragraph (a) of this section, an official
    should evaluate the statement independent of how it is labeled.
        (d) Guidance issued or modified after September 28, 2020 must:
        (1) Include a disclaimer that states: ``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.'';
    or,
        (2) Include a modified version of the disclaimer described in
    paragraph (d)(1)--if permitted by underlying statute or other legal
    authority and developed in consultation with OIRA--explaining that the
    agency's guidance document is binding because it is authorized by law
    or because the guidance is incorporated into a contract, cooperative
    agreement, or grant. Such a modified disclaimer must provide the reason
    why the guidance document is binding.

    [[Page 53172]]

        In general, a disclaimer under (d)(1) or (2) of this section must
    be located prominently and direct readers to www.dol.gov/guidance for
    questions or additional information. However, an agency may modify
    those requirements for a disclaimer if appropriate given the nature of
    the guidance (for example, for a video, interactive web page, a
    brochure, a letter of interpretation, or a wallet-sized guidance card),
    so long as the disclaimer is still legible.
        (e) Guidance issued or modified must avoid using mandatory language
    such as ``shall,'' ``must,'' ``required,'' or ``requirement'' to direct
    persons outside the Department to take or refrain from taking action,
    except when restating--with applicable citations--the relevant
    requirements, provisions, or holdings contained in binding legal
    authorities, or when the guidance is binding because binding guidance
    is authorized by law or because the guidance is incorporated into a
    contract, cooperative agreement, or grant.
        (f) Guidance issued or modified must be written in plain and
    understandable language.
        (g) In general, except when not feasible given the nature of the
    guidance document (for example, guidance issued in interactive online
    formats, small brochures, or on wallet-sized cards designed to be
    carried by workers for quick reference), each guidance document issued
    or modified must:
        (1) Prominently display the term ``guidance'';
        (2) Identify the agency issuing the guidance;
        (3) Provide the title of the guidance and the document
    identification number;
        (4) Include the date of issuance;
        (5) Include a short summary at the top of the document of the
    subject matter covered in the guidance;
        (6) Identify the activities to which and the persons to whom the
    guidance applies;
        (7) Include the citation to the statutory provision(s) or
    regulation(s) (in the Code of Federal Regulations format) to which it
    applies or which it interprets;
        (8) Note if the guidance is a revision to a previously issued
    guidance document and, if so, identify the guidance document that it
    replaces; and
        (9) Include a statement indicating if the guidance is valid for
    only a limited duration or, instead, until it is modified or rescinded.

    Sec.  89.5  Public Access to guidance.

        (a) The Department must maintain a single, searchable, indexed
    website that contains, or links to, each agency's guidance documents in
    effect. Each agency must ensure that all its guidance is available
    through this website; any guidance posted will be deemed final unless
    it is a proposed significant guidance document under Sec.  89.6.
        (b) The website described in paragraph (a) of this section must
    clearly note that guidance documents lack the force and effect of law,
    except as authorized by law or as incorporated into a contract,
    cooperative agreement, or grant and that an agency may not cite, use,
    or rely on any guidance that is not posted on the website, except to
    establish historical facts.
        (c) All guidance documents that are not posted on the Department's
    website described in paragraph (a) of this section shall be deemed no
    longer in effect. Such guidance must not be cited, used, or relied upon
    by any agency as indicative of an agency's policies or views except to
    establish historical facts, including the agency's position at the time
    and the regulated party's knowledge, or (where the legal standard so
    permits) constructive knowledge or reckless disregard, of legal
    requirements at the time an enforcement action was initiated.
        (d) The Department must maintain and advertise on its website a
    means for the public to comment electronically on any guidance
    documents that are the subject of the notice-and-comment procedures
    described in Sec.  89.6.
        (e) The Department must provide clear instructions on its website
    regarding how to submit petitions for withdrawal or modification of any
    guidance document, consistent with Sec.  89.7. These instructions must
    include an email address or web portal, a physical mailing address for
    hard-copy petitions, and the office responsible for coordinating
    responses to petitions. This website should clearly identify the
    relevant agency official(s) to whom petitions should be directed.
        (f) Within 14 calendar days after the end of each fiscal quarter,
    the Department must publish a list of each agency's guidance documents
    issued, modified, or withdrawn in that immediately preceding quarter,
    including links to those guidance documents when feasible.

    Sec.  89.6  Procedures for significant guidance.

        In this section, requirements that apply to issuance of guidance
    also apply to modification or withdrawal of guidance.
        (a) The Department must consult with OIRA to determine whether
    guidance is significant guidance, or qualifies as ``major'' guidance
    under the criteria in 5 U.S.C. 804(2), unless the guidance is otherwise
    exempted from such a determination by the Administrator of OIRA.
    Consultation with OIRA will consist of giving OIRA an opportunity to
    review each guidance document on a timeline reasonable for the size,
    complexity, and importance of the guidance document.
        (b) For a significant guidance document, as determined by the
    Administrator of OIRA, unless the agency and the Administrator agree
    that exigency, safety, health, or other compelling cause warrants an
    exemption from some or all requirements of this paragraph, each
    significant guidance document must:
        (1) Undergo a period of public notice and comment of at least 30
    days before issuance of the final guidance document and be accompanied
    by a publicly posted response from the agency, made available either as
    part of the final guidance document or in a companion document, that
    addresses major concerns raised in timely submitted comments, except
    when the agency for good cause finds (and incorporates the finding and
    a brief statement of reasons for the finding into the guidance) that
    notice and public comment under this paragraph are impracticable,
    unnecessary, or contrary to the public interest;
        (2) Before initial and final issuance, receive both approval and
    signature on a non-delegable basis by:
        (i) The agency head;
        (ii) An official who is serving in an acting capacity as the
    foregoing; or
        (iii) The Secretary or the Deputy Secretary, as appropriate;
        (3) Undergo review by OIRA under Executive Order 12866 before
    issuance; and,
        (4) Comply with the applicable requirements that would otherwise
    apply to regulations or rules, including significant regulatory actions
    as set forth in Executive Orders 12866 (Regulatory Planning and
    Review), 13563 (Improving Regulation and Regulatory Review), 13609
    (Promoting International Regulatory Cooperation), 13771 (Reducing
    Regulation and Controlling Regulatory Costs), and 13777 (Enforcing the
    Regulatory Reform Agenda).
        (c) An agency must publish a notice in the Federal Register
    announcing the availability of each proposed and final significant
    guidance document and must make each proposed and final significant
    guidance document available on the website maintained under Sec.  89.5.
        (d) An agency must ensure that comments timely submitted in
    response to each proposed significant guidance document are published
    online or linked from the website maintained

    [[Page 53173]]

    under Sec.  89.5, before publishing the final significant guidance
    document.
        (e) For each significant guidance document where the agency and the
    Administrator of OIRA agree that exigency, safety, health, or other
    compelling cause warrants an exemption from some or all requirements
    under paragraph (b) of this section, the agency must incorporate that
    finding and a brief statement of reasons for the finding into the
    guidance.
        (f) For all significant guidance exempt from requirements under
    this section as permitted by paragraph (b) of this section, such
    significant guidance shall be treated as temporary and will be
    rescinded by operation of law 270 days after it is published. The
    agency may make the temporary significant guidance permanent before the
    automatic rescission by following the procedures outlined for all
    significant guidance not exempt under paragraph (b).
        (g) This section does not apply to pre-enforcement rulings, defined
    in Sec.  89.2(g), that are guidance under this rule.

    Sec.  89.7  Petitions for withdrawal or modification.

        (a) Any member of the public may petition an agency for withdrawal
    or modification of a guidance document issued by the agency.
        (b) Such a petition must be submitted in writing; include an email
    address and mailing address, as well as any other preferred means for
    the agency to respond electronically to the petitioner (where the
    petitioner has a means of electronic communication); identify the
    guidance document that is the subject of the petition; and state in
    detail the reason(s) for requesting withdrawal or modification.
        (c) A petition must be directed to the relevant agency official,
    pursuant to instructions provided on the website described in Sec.
    89.5.
        (d) The agency may choose to withdraw, modify, or retain a guidance
    document.
        (e) Under this section an agency must provide a response in writing
    to a petition that meets the requirements of paragraph (b) of this
    section promptly, but no later than 90 days after receiving the
    petition.

    Sec.  89.8  Enforceability.

        This rule is intended to improve the internal management of the
    Department. As such, it is for the use of Department personnel only and
    is not intended to, and does not, create any right or benefit,
    substantive or procedural, enforceable at law or in equity by any party
    against the United States, its departments, agencies, or entities, its
    officers, employees, or agents, or any other person.

        Signed at Washington, DC, this 19th day of August, 2020.
    Jonathan A. Wolfson,
    Deputy Assistant Secretary of Labor for Policy.
    [FR Doc. 2020-18500 Filed 8-27-20; 8:45 am]
    BILLING CODE 4510-HL-P