In a step backward for due process, the Biden Department of Labor has revoked a Trump‐era policy meant to rein in the use of informal guidance documents to issue regulatory commands. Per Allen Smith at the Society for Human Resource Management, this raises the likelihood that the department will move to reshape the American workplace through a rapid “stream of informal guidance” intended to be received as binding. These snap edicts, unlike more formal regulations, can be issued without the period of notice and comment that often allows employers or other regulated parties to organize against an initiative, publicize its burdens, alert allies in Congress, and lay out a factual and legal record that can serve to challenge the agency’s rationale in court:
“The Trump administration also was concerned about how the DOL was using subregulatory guidance in individual enforcement actions,” [Nathan] Oleson [of Akin Gump] said. This was particularly the case with informal guidance on wages and hours as well as occupational safety and health.”
In some cases, investigators were pointing to DOL guidance that was characterized as a recommendation and demanding that it be followed if the employer wanted to avoid an enforcement action,” he said. “Although subregulatory guidance does not have the force and effect of law, many employers felt compelled to accept the DOL’s position because of the risk posed by litigation or further enforcement action.”
Agencies use informal guidance documents in lieu of formal regulation to clarify and interpret uncertainties in existing law and enforcement. Unfortunately, this and other forms of “subregulatory guidance” can also offer a tempting way to extend an agency’s power and authority into new areas, or ban private actions that hadn’t been banned before, all without going through the notice and comment process required by regulation, with its protections for regulated parties.
I went on to note (more here and here) that the Department of Justice under Jeff Sessions had commendably sought to bring federal use of guidance documents under better control, and in particular curtail the use of documents that 1) are obsolete, 2) improperly use the process to circumvent the need for formal regulation, or 3) improperly go beyond what is provided for in existing legal authority. That DoJ initiative was done through more formal means, making it less easy to revoke.
The freedom‐oriented New Civil Liberties Alliance has been on top of this issue, tracking progress or the lack of it at agencies like the Securities and Exchange Commission, Commerce Department, and HHS. In some cases, they contend that agency reliance on guidance documents can itself be unlawful. In one recent filing (release and video) they say “the U.S. Department of Agriculture (USDA) and its subagency, the Animal and Plant Health Inspection Service (APHIS).… violated the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA) in their attempt to unlawfully require America’s ranchers to implement ‘radio frequency identification’ (RFID) eartags through a two‐page ‘Factsheet’ posted on the agency’s website without any prior warning” notwithstanding a 2013 Final Rule on animal identification and traceability that had accepted traditional lower‐tech methods of animal tagging. NCLA adds: “While USDA and APHIS have withdrawn their ‘Factsheet’ and their mandatory RFID requirement along with it, the fact remains they violated numerous laws and regulations when they attempted to force compliance with a mere ‘guidance’ document in the first place.”