With DOL Rule Process Amended, Agency Looks To Halt Affirmative Outreach
Federal agencies are currently following orders under the Trump administration to review current regulations and amend or delete rules that may increase burden. Sometimes this process brings up existing rules that really leave you scratching your head trying to determine their exact meaning.
The Department of Labor (DOL), in today’s Federal Register, stated in a new final rule effective July 31, that it was deleting a rulemaking provision at 29 C.F.R. §2.7 that contains so many “nots” and “exceptions” that we had to read it four or five times to try to fully understand it. The provisions is as follows: “It is the policy of the Secretary of Labor, that in applying the rulemaking provisions of the Administrative Procedure Act (APA) (5 U.S.C. 553), the exemption therein for matters relating to public property, loans, grants, benefits or contracts shall not be relied upon as a reason for not complying with the notice and public participation requirements thereof except for all information-gathering procedures adopted by the Bureau of Labor Statistics.”
Instead of this policy, which has been in place since 1971, DOL will revert back to APA requirements, which generally requires, before an agency promulgates a regulation, a notice of proposed rulemaking to be published in the Federal Register and give interested persons an opportunity to participate in the rulemaking through submission of written data, views or arguments with or without opportunity for oral presentation. “The principal benefit of the rule is to increase regulatory efficiency and responsiveness by removing unnecessary internal requirements that can slow administrative action,” DOL states in the notice, adding that DOL “has determined that net benefits are positive, consisting of cost savings, efficiency gains and improved flexibility, with no material offsetting costs.”
Frankly, we see this as an improvement to the current rule. However, stakeholders should be aware that DOL, also today, issued a proposed rule to remove the regulations implementing the nondiscrimination and equal opportunity provisions of the Workforce Innovation and Opportunity Act (WIOA) that contain affirmative outreach requirements for recipients of financial assistance under Title I of WIOA. DOL states that WIOA does not authorize the agency to require affirmative outreach, so it now proposes to remove this requirement.
DOL, like other federal agencies earlier this year, added that it was concerned that affirmative outreach may conflict with the Supreme Court's decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), which DOL says reaffirmed that the government’s use of race and similar protected traits are subject to strict scrutiny and must be narrowly tailored to a compelling interest. “While § 38.40 was framed as an outreach provision, it forces recipients to make ‘reasonable efforts’ to take action based on characteristics like race, sex, and national origin,” the agency contends. “This may require recipients to consider protected traits in designing recruitment or programming, [and] risks encouraging demographic classifications that are suspect under SFFA.
We recommend concerned stakeholders assess the language in this proposed rule and responde to it by the July 31 comment due date.
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