[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]


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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.

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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\
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    \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).
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    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

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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).
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    \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.
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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

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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