Proposed Rule2025-12314
Statements of General Policy or Interpretation Not Directly Related to Regulations
Primary source
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Published
July 2, 2025
Issuing agencies
Labor DepartmentWage and Hour Division
Abstract
The Department of Labor (Department) proposes to remove parts located in Title 29, Chapter V, Subchapter B of the Code of Federal Regulations (CFR) that were not originally issued, or subsequently amended, through notice-and-comment rulemaking. Because these parts consist of interpretive rules and policy statements regarding the Fair Labor Standards Act (FLSA) which do not carry the force and effect of law, the Department believes that these parts, to the extent that they have not benefitted from public comment, should be repurposed as sub- regulatory guidance. The Department seeks comment on what provisions in Subchapter B should be retained in the CFR, as well as what kind of sub-regulatory guidance the Department should use to preserve interpretive rules and policy statements that are removed from the CFR. This summary can be found at https://www.regulations.gov by searching by the RIN: 1235-AA52.
Full Text
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<title>Federal Register, Volume 90 Issue 125 (Wednesday, July 2, 2025)</title>
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[Federal Register Volume 90, Number 125 (Wednesday, July 2, 2025)]
[Proposed Rules]
[Pages 28985-28992]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12314]
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Parts 775, 776, 779, 782, 783, 784, 789, 793, and 794
RIN 1235-AA52
Statements of General Policy or Interpretation Not Directly
Related to Regulations
AGENCY: Wage and Hour Division, Department of Labor.
ACTION: Notice of proposed rule; request for comments.
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SUMMARY: The Department of Labor (Department) proposes to remove parts
located in Title 29, Chapter V, Subchapter B of the Code of Federal
Regulations (CFR) that were not originally issued, or subsequently
amended, through notice-and-comment rulemaking. Because these parts
consist of interpretive rules and policy statements regarding the Fair
Labor Standards Act (FLSA) which do not carry the force and effect of
law, the Department believes that these parts, to the extent that they
have not benefitted from public comment, should be repurposed as sub-
regulatory guidance. The Department seeks comment on what provisions in
Subchapter B should be retained in the CFR, as well as what kind of
sub-regulatory guidance the Department should use to preserve
interpretive rules and policy statements that are removed from the CFR.
This summary can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a> by searching
by the RIN: 1235-AA52.
DATES: Comments must be received on or before August 1, 2025.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1235-AA52, by either of the following methods:
<bullet> Electronic Comments: Submit comments through the Federal
eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions for submitting comments.
<bullet> Mail: Address written submissions to: Division of
Regulations, Legislation, and Interpretation, Wage and Hour Division,
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW,
Washington, DC 20210.
Instructions: Response to this notice of proposed rulemaking (NPRM)
is voluntary. The Department requests that no business proprietary
information, copyrighted information, or personally identifiable
information be submitted in response to this NPRM. Commenters
submitting file attachments on <a href="https://www.regulations.gov">https://www.regulations.gov</a> are advised
that uploading text-recognized documents--i.e., documents in a native
file format or documents which have undergone optical character
recognition (OCR)--enable staff at the Department to more easily search
and retrieve specific content included in your comment for
consideration.
Anyone who submits a comment (including duplicate comments) should
understand and expect that the comment, including any personal
information provided, will become a matter of public record and will be
posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. The Department
posts comments gathered and submitted by a third-party organization as
a group under a single document ID number on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. All comments must be received by 11:59 p.m. ET on
August 1, 2025, for consideration in this rulemaking; comments received
after the comment period closes will not be considered.
The Department strongly recommends that commenters submit their
comments electronically via <a href="https://www.regulations.gov">https://www.regulations.gov</a> to ensure
timely receipt prior to the close of the comment period. Please submit
only one copy of your comments by only one method.
Docket: Go to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> for access to the rulemaking docket, including any
background documents and the plain-language summary of the rule of not
more than 100 words in length required by the Providing Accountability
Through Transparency Act of 2023.
FOR FURTHER INFORMATION CONTACT: Daniel Navarrete, Director, Division
of Regulations, Legislation, and Interpretation, Wage and Hour
Division, U.S. Department of Labor, Room S-3502, 200 Constitution
Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not
a toll-free number). Alternative formats are available upon request by
calling 1-866-487-9243. If you are deaf, hard of hearing, or have a
speech disability, please dial 7-1-1 to access telecommunications relay
services.
Questions of interpretation or enforcement of the agency's existing
regulations may be directed to the nearest WHD district office. Locate
the
[[Page 28986]]
nearest office by calling the WHD's toll-free help line at (866) 4US-
WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time
zone, or log onto WHD's website at <a href="https://www.dol.gov/agencies/whd/contact/local-offices">https://www.dol.gov/agencies/whd/contact/local-offices</a> for a nationwide listing of WHD district and area
offices.
SUPPLEMENTARY INFORMATION:
I. Background
The Administrative Procedure Act (APA) broadly defines the term
``rule'' as ``[t]he whole or a part of an agency statement of general
or particular applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency[.]'' 5 U.S.C. 551(4).
Within this category are ``legislative rules'' which have ``the force
and effect of law,'' Perez v. Mortgage Bankers Assoc., 575 U.S. 92, 96
(2015),\1\ and ``interpretive rules,'' which ``advise the public of the
agency's construction of the statutes and rules which it administers''
but ``do not have the force and effect of law and are not accorded that
weight in the adjudicatory process.'' Id. at 97 (internal quotation
marks omitted). The APA also recognizes a third kind of rule: ``general
statements of policy,'' 5 U.S.C. 553, which are understood to be
``agency statements of general applicability, not binding on members of
the public, `issued . . . to advise the public prospectively of the
manner in which the agency proposes to exercise a discretionary power.'
'' \2\
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\1\ The Supreme Court has advised that legislative rules which
``carry the force and effect of law'' are those which: (1) ``affect[
] individual rights and obligations''; (2) are ``rooted in a grant
of [legislative] power by the Congress;'' and (3) are
``promulgat[ed] . . . [in] conform[ity] with any procedural
requirements imposed by Congress.'' Chrysler Corp. v. Brown, 441
U.S. 281, 302-03 (1979) (internal quotation marks omitted).
\2\ Admin. Conf. of the U.S., Recommendation 2017-5, Agency
Guidance Through Policy Statements 1 (Dec. 14, 2017) (quoting
Attorney General's Manual on the Administrative Procedure Act 30 n.3
(1947)), <a href="https://www.acus.gov/sites/default/files/documents/Recommendation%202017-5%20%28Agency%20Guidance%20Through%20Policy%20Statements%29_2.pdf">https://www.acus.gov/sites/default/files/documents/Recommendation%202017-5%20%28Agency%20Guidance%20Through%20Policy%20Statements%29_2.pdf</a>.
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Since the Code of Federal Regulations (CFR) was created in 1937,
Federal law has described the CFR as ``a complete codification of the
documents of each agency of the Government having general applicability
and legal effect,'' which are ``relied upon by the agency as authority
for, or are invoked or used by it in the discharge of, its activities
or functions.'' 44 U.S.C. 1510(a) (emphasis added); see also 1 CFR 8.1
(describing the CFR as ``a compact and practical code . . .
contain[ing] each Federal regulation of general applicability and legal
effect''). Similarly, Executive Order 12866--which sets forth
Presidential oversight of the Federal regulatory process--defines the
term ``regulation'' in relevant part as ``an agency statement of
general applicability and future effect, which the agency intends to
have the force and effect of law[.]'' 58 FR 51735, 51737 (Sept. 30,
1993). These authorities imply, and can lead the general public to
infer, that all ``regulations'' codified in the CFR are legislative
rules with the force and effect of law.
Legislative rules set forth by the Department's Wage and Hour
Division (WHD) regarding the Fair Labor Standards Act (FLSA) primarily
appear in Subchapter A of its assigned chapter in the CFR. See 29 CFR
parts 500-697. Examples of legislative rules issued by WHD include
employer recordkeeping requirements established pursuant to section
11(c) of the FLSA (located at 29 CFR part 516),\3\ criteria which
``define and delimit'' the FLSA's section 13(a)(1) exemption for
executive, administrative, and professional employees (located at 29
CFR part 541),\4\ and child labor regulations issued under section 3(l)
of the FLSA (located at 29 CFR part 570).\5\ Regulations on topics
addressed in certain FLSA amendments, such as the FLSA's application to
tipped employees (located at 29 CFR part 531 subpart D) or the
employees of state or local governments (located at 29 CFR part 553),
are also legally binding legislative rules.\6\
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\3\ See 29 U.S.C. 211(c) (requiring employers to ``make, keep,
and preserve such records as [WHD] shall prescribe by regulation or
order as necessary or appropriate for the enforcement of the
[FLSA]'').
\4\ See 29 U.S.C. 213(a)(1) (exempting ``any employee employed
in a bona fide executive, administrative, or professional capacity .
. . as such terms are defined and delimited from time to time by
regulations'').
\5\ See 29 U.S.C. 203(l) (requiring the Department to ``provide
by regulation or by order'' conditions of employment that would or
would not constitute ``oppressive child labor'').
\6\ See Public Law 89-601, sec. 602, 80 Stat. 830, 844 (1966)
(authorizing the Department to issue regulations implementing the
1966 FLSA Amendments, including statutory provisions affecting
tipped employees); see also Public Law 99-150, sec. 6, 99 Stat. 787,
790 (1985) (authorizing the Department to issue regulations
implementing the 1985 FLSA Amendments, which addressed the FLSA's
application to the employees of state and local governments).
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However, since the 1940s, WHD has provided ``Statements of General
Policy or Interpretations Not Directly Related to Regulations'' in
Subchapter B of its assigned CFR chapter,\7\ which presently spans
parts 775 to 795 of Title 29. Most of the parts in Subchapter B provide
interpretive guidance on topics that Congress has not specifically
delegated rulemaking authority to the Department to address, such as:
the principles of coverage under the FLSA (29 CFR part 776); the
determination of an employee's ``regular rate of pay'' used to
calculate overtime premiums under the FLSA (29 CFR part 778); the
definition of ``hours worked'' under the FLSA (29 CFR part 785); or
independent contractor status under the FLSA (29 CFR part 795). While
some of the parts or provisions located in Subchapter B were originally
issued or subsequently amended through notice-and-comment rulemaking,
many were not, as the APA exempts ``interpretative rules'' and
``general statements of policy'' from the notice-and-comment
requirement that generally applies to legislatives rules. See 5 U.S.C.
553(b)(A).
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\7\ See 11 FR 14099 (Dec. 5, 1946) (adding Subchapter B).
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Like other forms of guidance, the interpretive rules and policy
statements in Subchapter B provide ``enormous value'' by ``channel[ing]
the discretion of agency employees, increas[ing] efficiency, and
enhanc[ing] fairness by providing the public clear notice of the line
between permissible and impermissible conduct while ensuring equal
treatment of similarly situated parties.'' \8\ ``[W]hile not
controlling upon the courts,'' interpretive rules and policy statements
``constitute a body of experience and informed judgment to which courts
and litigants may properly resort for guidance[,]'' with the weight
afforded to such guidance ``depend[ing] upon the thoroughness evident
in its consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors which give
it power to persuade, if lacking power to control.'' Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944). As with legislative rules, employers
can rely upon interpretive rules and policy statements issued by the
WHD Administrator under section 10 of the Portal-to-Portal Act of 1947,
which provides a defense against liability for violations of the FLSA,
the Walsh-Healey Public Contracts Act, or the Davis-Bacon Act for any
acts or omissions that an employer makes in good faith reliance on such
guidance. See 29 U.S.C. 259; see also 29 CFR 790.13-.19 (elaborating on
the requirements for a ``good faith reliance'' defense under the
Portal-to-Portal Act).
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\8\ Final Bulletin for Agency Good Guidance Practices, OMB Bull.
No. 07-02, 2 (Jan. 18, 2007), <a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-07.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-07.pdf</a>.
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However, when interpretive rules and policy statements are codified
in the CFR alongside legislative rules, there is
[[Page 28987]]
a risk that regulated entities and members of the public may
misunderstand the nature of these materials. For example, employers may
mistakenly assume that all ``regulations'' set forth in the CFR carry
the force of law. In fact, Federal courts have sometimes stated that
heightened standards of judicial deference intended for legislative
rules apply to the interpretive rules set forth in Subchapter B.\9\ For
example, in ruling against a plaintiff employee in Kavanagh v. Grand
Union Co., Inc., 192 F.3d 269 (2d Cir. 1999), the Second Circuit said
that it was ``not free to disregard'' an interpretive rule on
compensable time set forth in part 785, ``when that regulation
represents a permissible construction of the statute'' at the time
under the then-applicable Chevron deference. Despite remarking that
``[the employee's] situation strikes us as inequitable,'' the court
emphasized that ``constraints on the judicial function'' determined the
outcome of the case. Id. at 272-73. Whether by courts or employers,
undue deference to the guidance set forth in Subchapter B is a
foreseeable outcome of authorities implying that all content in the CFR
has binding ``legal effect,'' as noted earlier. See 44 U.S.C. 1510(a);
see also 1 CFR 8.1.
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\9\ See, e.g., Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1299 (11th Cir. 2011) (advising that Chevron
deference generally applies to ``interpretive regulations''
addressing individual and enterprise coverage under the FLSA in part
776); see also Scott v. City of New York, 592 F.Supp.2d 386, 398
(S.D.N.Y. 2008) (``Regardless of whether [CFR provisions addressing
overtime pay] are labeled as `regulations' or `interpretations,'
they are entitled to Chevron deference.''). Although Chevron
deference was abolished last year in Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 (1984), decisions applying Chevron to
Subchapter B provisions were in tension with earlier Supreme Court
precedent emphasizing that courts are ``not required to give effect
to an interpretative regulation.'' Batterton v. Francis, 432 US 416,
425 n.9 (1977) (citing Skidmore, 323 U.S. at 140); see also
Christensen v. Harris Co., 529 U.S. 576, 587 (2000) (holding that
``interpretations . . . which lack the force of law . . . do not
warrant Chevron-style deference'').
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Even if employers understand that the interpretive rules and policy
statements set forth in Subchapter B are non-binding--i.e., that the
``correctness an interpretation . . . can be determined finally and
authoritatively only by the courts'' and that WHD ``will receive and
consider statements suggesting change of any interpretation,'' 29 CFR
790.1(c)--employers may feel compelled to comply with such guidance as
a practical matter. As the Administrative Conference of the United
States (ACUS) has noted, ``modern regulatory schemes often have
structural features that tend to lead regulated parties to follow [an
interpretive rule or policy statement] even if in theory they might be
legally free to choose a different course, because the costs and risks
associated with doing so are simply too high,'' particularly where
``statutes or regulations . . . subject the regulated party to the
possibility of enforcement proceedings that entail prohibitively high
costs regardless of outcome, or can lead to sanctions so severe that
the party will not risk forcing an adjudication of the accusation.''
\10\
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\10\ Recommendation 2017-5, supra n. 2, at 4; see also Admin.
Conf. of the U.S., Recommendation 2019-1, Agency Guidance Through
Interpretive Rules 5 (June 13, 2019) (asserting that ``factors
[which] deter affected persons from contesting guidance documents
with which they disagree . . . operate in approximately the same
manner regardless of whether a policy statement or interpretive rule
is involved''), <a href="https://www.acus.gov/sites/default/files/documents/Agency%20Guidance%20Through%20Interpretive%20Rules%20CLEAN%20FINAL%20POSTED.pdf">https://www.acus.gov/sites/default/files/documents/Agency%20Guidance%20Through%20Interpretive%20Rules%20CLEAN%20FINAL%20POSTED.pdf</a>.
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This rulemaking seeks to address such risks by proposing to remove
all parts from Subchapter B which have not undergone notice-and-comment
rulemaking. Ensuring that all of the parts in Subchapter B have
undergone notice-and-comment rulemaking will confirm that the guidance
provided therein has benefited from the input of interested outside
stakeholders, particularly ``parties [who] lack the opportunity and
resources to participate in the individual adjudicatory or enforcement
proceedings to which [an interpretive rule or] policy may apply.'' \11\
The Department also intends for this action to reinforce the
distinction between such rules and other sub-regulatory guidance,
thereby promoting consistency in its regulatory program
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\11\ Recommendation 2017-5, supra n. 2, at 6.
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The Department acknowledges that there may once have been reason to
publish interpretive guidance in the CFR at a time when few would have
access to view such guidance otherwise. Indeed, when the Department
began moving interpretive guidance from earlier ``Interpretive
Bulletins'' into the CFR in the late 1940s, the Department explained
that the purpose of codification was ``to make available in one place
interpretations of the Administrator which will provide `a practical
guide to employers and employees as to how the office representing the
public interest in enforcement of the law will seek to apply it.' '' 13
FR 419, 420 (Jan. 30, 1948) (citing Skidmore, 323 U.S. at 138).
However, technology has widened the availability of resources
available to the public, which are no longer limited to the U.S. Code
and the CFR. Indeed, it is commonplace today for interested parties to
view the Department's website and, in particular, WHD's Field
Operations Handbook (FOH), which summarizes many of the agency's
positions and cross-references to various other resources.\12\ And
while one of the original reasons for the CFR was to have a
comprehensive publication of every agency's rules and legal
interpretations, many agencies, including WHD, issue sub-regulatory
guidance outside of the CFR which is entitled to the same weight as
interpretive rules and policy statements that are in the CFR.
Accordingly, the Department intends to temporarily retain all content
which is removed from the CFR as sub-regulatory guidance, apart from
the provisions in part 779 which are obviously obsolete.\13\
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\12\ The FOH does not establish a binding legal standard on the
public and is not a device for establishing interpretive policy.
Rather, the FOH is an ``operations manual'' that makes available to
WHD investigators and staff policies already ``established through
changes in legislations, regulations, significant court decisions,
and the decisions and opinions of the WHD Administrator.'' Field
Operations Handbook, U.S. Dept. of Labor (last accessed June 9,
2025), <a href="https://www.dol.gov/agencies/whd/field-operations-handbook">https://www.dol.gov/agencies/whd/field-operations-handbook</a>;
see also WHD Opinion Letter FLSA2020-12, at 4 (Aug. 31, 2020);
Probert v. Family Centered Servs. of Alaska, Inc., 651 F.3d 1007,
1012 (9th Cir. 2011).
\13\ Most of the provisions in Part 779 were last updated in
1970, see 35 FR 5856 (Apr. 9, 1970), and much of this content is
either obsolete or erroneous. For example, Part 779 includes
numerous references to statutory language which has since been
amended or repealed, as well as erroneous dollar thresholds.
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In sum, to better serve the public and increase transparency, the
Department proposes to remove all interpretive rules and policy
statements located in Title 29, Chapter V, Subchapter B of the CFR that
have not, at least in part, been issued or revised through notice-and-
comment rulemaking, while seeking comment on whether any portions
should be retained in the CFR. The Department intends to relocate the
removed Subchapter B provisions (other than obsolete content in Part
779) into an appendix to the FOH (with similar citations) until such
time that WHD can determine which are appropriate to: (1) propose as
legislative or interpretative regulations; (2) retain as sub-regulatory
interpretive guidance; or (3) amend or eliminate for one or more
substantive reasons. Any substantive changes made as described in
category (3) would not require public notice and, as such, it would be
up to the Department's discretion regarding how to proceed with respect
to any changes once the material is located in the FOH.
The Department emphasizes that this rulemaking is not a commentary
on the underlying merits of any provisions
[[Page 28988]]
which are presently located in Subchapter B. Relocating interpretive
guidance from Subchapter B of the CFR to the FOH would not have any
substantive import for the guidance itself, nor would the relocation
invalidate or call into question any (1) WHD opinion letters, fact
sheets, or other compliance assistance materials that interpret and
rely on the CFR provisions, (2) any court decisions that have relied on
such provisions, or (3) any of the Department's enforcement efforts
that may involve these provisions.
Although it is not necessary to issue an NPRM for the relocation or
elimination of individual interpretative rules or policy statements
which themselves were not promulgated or revised through notice and
comment rulemaking, given the scope of the proposed changes to
Subchapter B, and as a matter of public courtesy, the Department is
seeking comment on the current proposed rule. The Department, however,
reserves its right to decline additional notice-and-comment for any
future changes to content removed from the CFR as a consequence of this
rulemaking.\14\
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\14\ See Perez v. Mortgage Bankers Assoc., 575 U.S. at 100
(``[The APA's] exemption of interpretive rules from the notice-and-
comment process is categorical[.]'').
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II. Discussion
WHD's assigned portion of the CFR (located in Chapter V of Subtitle
B of Title 29) is divided into the following four subchapters:
Subchapter A (``Regulations''); Subchapter B (``Statements of General
Policy or Interpretation Not Directly Related to Regulations'');
Subchapter C (``Other Laws''); and Subchapter D (``Garnishment of
Earnings''). The potential effects of this rulemaking for each of these
sections is addressed below.
A. The Status of Subchapters A, C, and D
Subchapter A (``Regulations'') contains Part 500 through Part 697.
To the extent that these parts contain provisions that should be
removed or relocated, such provisions may be addressed in a separate
rulemaking. To provide one illustration, Part 531(``Wage Payments Under
the Fair Labor Standards Act of 1938'') contains a subpart (Subpart C)
entitled ``Interpretations,'' consisting of what appear to be non-
binding interpretive rules. For example, an introductory section to
Subpart C of part 531 explains that the ``the interpretations [provided
in this subpart] indicate . . . the construction of the law which the
Secretary of Labor and the [WHD] Administrator believe to be correct
and which will guide them in the performance of their administrative
duties under the [FLSA] unless and until they are otherwise directed by
authoritative decisions of the courts.'' 29 CFR 531.25(b) (emphases
added). Nearly identical language appears in an introductory section
for 29 CFR part 790, which provides interpretive guidance about the
Portal-to-Portal Act of 1947. See 29 CFR 790.1(c).
If Subpart C of part 531 consists of non-binding
``Interpretations,'' it arguably should not appear alongside
legislative rules in a part located within Subchapter A
(``Regulations''). By contrast, if the provisions in Subpart C of part
531 should be regarded as legislative rules with the force and effect
of law, then the title of Subpart C and the Introductory Statement
published at 29 CFR 531.25 should be revised accordingly.
Subchapters C and D of WHD's CFR chapter may also contain non-
binding interpretive rules and policy statements. See, e.g., 29 CFR
part 870, subpart B (``Determinations and Interpretations''). However,
as with provisions located in Subchapter A, content which is located
within Subchapters C and D is outside the scope of this rulemaking.
B. The Status of Subchapter B
Part 775 through Part 795 are contained in Subchapter B,
``Statements of General Policy or Interpretation Not Directly Related
to Regulations.'' On its face, Subchapter B features non-binding
interpretive rules and policy statements. For all of the reasons
described earlier, the Department is proposing to remove all parts in
Subchapter B that were not, at least in part, promulgated through
notice-and-comment rulemaking from the CFR. Except for content which is
obviously outdated or erroneous,\15\ the Department proposes to
relocate these provisions to WHD's FOH as appended ``Interpretive
Bulletins'' which use the same section numbers as currently used in the
CFR. Importantly, the provisions being relocated for purposes of
clarity rather than removed for purposes of obsolescence would continue
to constitute the Department's sub-regulatory position. The Department
seeks comment on this proposal, including whether appending
Interpretive Bulletins to the FOH would be an appropriate means of
preserving interpretive rules and policy statements that are removed
from the CFR or whether the Department should consider alternative sub-
regulatory guidance vehicles, such as Field Assistance Bulletins (FABs)
or Administrator Interpretations (AIs).
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\15\ See, e.g., supra n. 13 (discussing outdated and erroneous
content in 29 CFR part 779).
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As noted earlier, some parts in Subchapter B were initially issued
or subsequently amended through notice-and-comment rulemaking.
Specifically, the Department has engaged in notice-and-comment
rulemaking to issue or amend provisions in parts 778,\16\ 780,\17\
785,\18\ 786,\19\ 788,\20\ 790,\21\ and 795.\22\ The Department
proposes to retain these parts in their entirety for legibility reasons
and because the public has had the opportunity to request changes in
these parts in at least one prior rulemaking. Relatedly, the Department
proposes to rename Subchapter B as ``Other Regulations.'' The
Department seeks comment on this approach, including whether the
Department should instead retain in the CFR only those parts which have
been revised in a comprehensive rulemaking (e.g., retaining part 778
while removing part 785), or only those provisions which have been
addressed in a notice-and-comment rulemaking.
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\16\ See 84 FR 68736 (2019 rule revising numerous provisions);
85 FR 34970 (2020 rule revising 778.114).
\17\ See 76 FR 18832 (2011 rule revising 780.400, 780.401,
780.406, and 780.408); 89 FR 1638 (2024 rule revising 780.330).
\18\ See id. (revising 785.7, 785.9, 785.34, and 785.50).
\19\ See id. (revising 786.300 and 786.350).
\20\ See 89 FR 1638 (revising 788.16).
\21\ See 76 FR 18832 (revising 790.3).
\22\ See 89 FR 1638 (revising the entirety of part 795).
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Given the number of provisions within Subchapter B that may be
impacted under this proposal, as a matter of public courtesy, the
Department seeks comment on the proposed rule. The Department, however,
recognizes that interpretative rules are not subject to the APA's
notice and comment requirements which typically apply to legislative
rules. As such, the Department reserves the right to decline additional
notice-and-comment for any future changes to content removed from the
CFR as a consequence of this rulemaking.
III. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866
Under Executive Order 12866, the Office of Management and Budget's
(OMB) Office of Information and Regulatory Affairs (OIRA) determines
whether a regulatory action is significant and, therefore, subject to
the
[[Page 28989]]
requirements of the Executive Order and OMB review.\23\ Section 3(f) of
Executive Order 12866 defines a ``significant regulatory action'' as a
regulatory action that is likely to result in a rule that may: (1) have
an annual effect on the economy of $100 million or more, or adversely
affect in a material way a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or state,
local, or tribal governments or communities (also referred to as
economically significant); (2) create serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees or 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 set forth in
the Executive Order. OIRA has determined that this proposed rule is
significant under section 3(f) of Executive Order 12866.
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\23\ See 58 FR 51735, 51741 (Oct. 4, 1993).
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Executive Orders 12866 and 13563 direct agencies to, among other
things, propose or adopt a significant rule only upon a reasoned
determination that its benefits justify its costs; that it is tailored
to impose the least burden on society, consistent with obtaining the
regulatory objectives; and that, in choosing among alternative
regulatory approaches, the agency has selected those approaches that
maximize net benefits. Executive Order 13563 recognizes that some costs
and benefits are difficult to quantify and provides that, when
appropriate and permitted by law, agencies may consider and discuss
qualitatively values that are difficult or impossible to quantify,
including equity, human dignity, fairness, and distributive impacts.
The analysis provided below outlines the impacts that the
Department anticipates may result if this proposed rule is finalized as
proposed and was prepared pursuant to the above-mentioned executive
orders. This proposed rule is expected to be an Executive Order 14192
deregulatory action.
1. Introduction
Subchapter B of WHD's assigned CFR chapter contains non-binding
interpretive rules and general policy statements issued under the Fair
Labor Standards Act (FLSA), Portal-to-Portal Act, and related statutes.
Many of these provisions were codified between the 1940s and 1970s
without notice-and-comment procedures.
Although they are not legally binding legislative rules, the
codification of these interpretive materials in the CFR may give rise
to regulatory confusion. Regulated entities may mistake these
statements as being legally binding legislative rules or fail to
distinguish them from legally binding legislative rules in Subchapter
A.
The Department therefore proposes to remove the 9 identified parts
from Subchapter B. These parts were never subject to public comment.
The Department intends that interpretive content other than provisions
in Part 779 which are outdated or erroneous would be retained in WHD's
Field Operations Handbook (FOH) as appended Interpretive Bulletins, but
welcomes comment on what kind of sub-regulatory guidance the Department
should use to preserve interpretive rules and policy statements that
are removed from the CFR.
Under this proposed rule, the following Subchapter B parts would
remain in Title 29 of the CFR: Part 778 (``Overtime Compensation'');
Part 780 (``Exemptions Applicable to Agriculture, Processing of
Agricultural Commodities, and Related Subjects Under the Fair Labor
Standards Act''); Part 785 (``Hours Worked''); Part 786
(``Miscellaneous Exemptions and Exclusions from Coverage''); Part 788
(``Forestry or Logging Operations in Which Not More than Eight
Employees Are Employed''); Part 790 (``General Statement as to the
Effect of the Portal-to-Portal Act of 1947 on the Fair Labor Standards
Act of 1938''); Part 795 (``Employee or Independent Contractor
Classification Under the Fair Labor Standards Act''). These parts have
benefited from prior public input and retain standalone value as
complete, legible documents.
2. Need for Rulemaking
As explained in greater detail in section I of this notice, the
need for this rulemaking arises from the Department's interest in: (1)
reducing potential confusion between binding and non-binding rules; (2)
promoting greater stakeholder engagement with WHD's interpretive
guidance; and (3) ensuring procedural integrity and transparency in
regulatory design.
This NPRM is also consistent with the Department's obligations
under Executive Order 13563 to ``promote predictability,'' ``reduce
uncertainty,'' and ``use the best, most innovative, and least
burdensome tools for achieving regulatory ends.'' \24\
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\24\ 76 FR 3821.
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3. Affected Entities
This rule does not impose compliance obligations or require
behavioral changes from any regulated parties. However, it may affect
regulated entities' perception of WHD guidance and their interaction
with agency materials. Stakeholders who rely on the interpretive rules
proposed for removal (e.g., industry groups, compliance professionals,
legal counsel) may need to adjust their internal citations and training
materials to refer to the FOH rather than the CFR.
The Department does not anticipate any material disruption to
regulated entities. WHD intends to provide clear cross-references in
the FOH and to preserve the interpretive content in a familiar,
searchable format. In many cases, stakeholders already rely on the FOH
and other sub-regulatory guidance in practice.
4. Anticipated Benefits, Costs, and Transfers
i. Benefits
The proposed rule may yield several qualitative benefits. First,
removing non-binding interpretive rules and policy statements from the
CFR will reduce the risk that employers or courts perceive such
guidance to be binding law. This could empower employers to dispute the
application of such guidance in appropriate circumstances and reduce
the likelihood of such guidance receiving unwarranted judicial
deference in legal proceedings.
Second, the proposal would significantly reduce the size of the CFR
administered by WHD, helping employers focus on provisions more likely
to include binding legislative rules that they are required to follow.
Specifically, removing parts 775, 776, 779, 782, 783, 784, 789, 793,
and 794 from Subchapter B would remove approximately 229 pages from the
905 pages located in WHD's assigned CFR Chapter \25\--a 25 percent
reduction. Reducing the volume of federal wage and hour regulations
could improve employer compliance with wage and hour law and would be
consistent with the deregulatory goals of Executive Order 14192.
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\25\ See 29 CFR chapter V (2024), <a href="https://www.govinfo.gov/content/pkg/CFR-2024-title29-vol3/pdf/CFR-2024-title29-vol3-subtitleB-chapV.pdf">https://www.govinfo.gov/content/pkg/CFR-2024-title29-vol3/pdf/CFR-2024-title29-vol3-subtitleB-chapV.pdf</a>.
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Third, provisions in the parts proposed for removal have not been
amended in decades and may be outdated or erroneous. For example, most
of the provisions in part 779 have not been amended since 1970 and many
include erroneous dollar thresholds
[[Page 28990]]
(such as multiple references to a $1.60 per hour minimum wage) or
address statutory provisions from the FLSA which have since been
amended or repealed. Removing outdated guidance from the CFR will
ensure that such errors do not confuse employers and employees about
their rights and responsibilities. Relatedly, repurposing the content
in these parts as sub-regulatory guidance will allow the Department to
more expediently update such content than if it remains in the CFR.\26\
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\26\ At this time, the only content the Department proposes to
omit from relocation into WHD's FOH are provisions in Part 779 which
are obviously obsolete or erroneous. However, the Department will
continue reviewing the entirety of Subchapter B for outdated and
erroneous content, including the other parts proposed for removal in
this rulemaking.
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If the Department determines that parts removed in this rulemaking
should be reintroduced into the CFR, it would do so in future
rulemakings inviting input from employers, employees, and other
interested members of the public. This could improve the quality of
such guidance by ensuring that the perspectives of outside parties have
been taken into consideration in its development.
ii. Costs
This rule is deregulatory in nature and does not impose new
requirements. Therefore, the Department does not anticipate any
compliance costs. Potentially affected entities might experience
negligible administrative costs in updating references to the removed
CFR parts, but the Department expects these impacts to be de minimis.
iii. Transfers
The Department does not anticipate any transfer effects as a
consequence of this rulemaking. This rulemaking does not affect any of
the rights or responsibilities of employers, employees, and other
interested parties.
5. Discussion of Regulatory Alternatives
The Department considered three alternatives to this proposal.
First, the Department considered removing the entirety of Subchapter B
so CFR provisions administered by WHD would consist entirely of
legislative rules with the ``force and effect of law.'' \27\ The
Department rejected this approach because stakeholders in recent
rulemakings have emphasized the utility of codifying interpretive
guidance in the CFR, even if such guidance is non-binding. Therefore,
the Department decided to propose removing only those parts from
Subchapter B which were not initially issued or subsequently amended in
a notice-and-comment rulemaking.
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\27\ See Executive Order 12866 Sec. 3(d), 58 FR 51737 (defining
the term ``regulation'').
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Second, the Department considered removing all interpretive rules
and policy statements within Subchapter B that were not issued or
amended through notice-and-comment rulemaking. Under this approach, the
Department would remove all of the parts it has proposed for removal in
this NPRM as well as most of the provisions within part 778 (``Overtime
Compensation''), part 780 (``Exemptions Applicable to Agriculture,
Processing of Agricultural Commodities, and Related Subjects Under the
Fair Labor Standards Act''), part 785 (``Hours Worked''), part 786
(``Miscellaneous Exemptions and Exclusions from Coverage''), and part
790 (``General Statement as to the Effect of the Portal-to-Portal Act
of 1947 on the Fair Labor Standards Act of 1938''). The Department
declined to take this approach in the NPRM because removing CFR
sections from parts 778, 780, 785, 786, 788, and 790 could make those
documents harder to understand (and therefore less useful) as
standalone guidance documents. Additionally, the Department notes that,
although specific sections in parts 778, 780, 785, 786, 788, and 790
may not have been addressed in notice-and-comment rulemakings, the
public has had the opportunity to request changes to these sections in
rulemakings which addressed other provisions in those parts.
Finally, the Department considered amending each part through
separate notice-and-comment rulemakings, beginning with a rulemaking to
address part 779 (the part in Subchapter B with the most outdated and
erroneous content). This approach would be slower and more resource-
intensive than the proposed approach, which could perpetuate many of
the risks that are motivating this rulemaking as Subchapter B would
continue to include entire parts which have not had the benefit of
public comment.
6. Conclusion
The Department concludes that this rule, if finalized as proposed,
will impose no regulatory burdens and may generate meaningful
qualitative benefits. It supports WHD's goals of transparency,
procedural fairness, and public engagement, consistent with Executive
Orders 12866, 13563, and 14192.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis (IRFA) and a
final regulatory flexibility analysis (FRFA) for any rule that by law
must be proposed for public comment, unless the agency certifies that
the rule, if promulgated, will not have a significant economic impact
on a substantial number of small entities. Because the changes proposed
in this rulemaking are procedural in nature and would not affect the
current rights and responsibilities of any small entity under the FLSA
or any other federal wage and hour law, the Department certifies that
this proposed rule would not have a significant economic impact on a
substantial number of small entities. The Department will transmit this
certification and supporting statement of factual basis to the Chief
Counsel for Advocacy of the Small Business Administration for review
under 5 U.S.C. 605(b).
C. Review Under the Paperwork Reduction Act
The purpose of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., includes minimizing the paperwork burden on affected
entities. The PRA requires certain actions before an agency can adopt
or revise a collection of information, including publishing for public
comment a summary of the collection of information and a brief
description of the need for and proposed use of the information.
This proposed rule does not contain a proposed collection of
information or affect any existing information collection requests
because the Department is merely proposing to relocate interpretive
rules and policy statements from the CFR to sub-regulatory guidance,
apart from obsolete provisions which have no practical impact. The
Department welcomes comment on this determination.
D. Review Under Executive Order 13132
E.O. 13132, ``Federalism,'' 64 FR 43255 (August 10, 1999), imposes
certain requirements on Federal agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. The Executive order requires agencies to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and to carefully assess
the necessity for such actions. The Executive order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of
[[Page 28991]]
regulatory policies that have federalism implications.
The Department has examined this proposed rule and has determined
that it would not have a substantial direct effect on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.
E. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' imposes on Federal agencies the general duty to
adhere to the following requirements: (1) eliminate drafting errors and
ambiguity, (2) write regulations to minimize litigation, (3) provide a
clear legal standard for affected conduct rather than a general
standard, and (4) promote simplification and burden reduction.\28\
Regarding the review required by section 3(a), section 3(b) of E.O.
12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) clearly specifies
the preemptive effect, if any, (2) clearly specifies any effect on
existing Federal law or regulation, (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction, (4) specifies the retroactive effect, if any, (5) adequately
defines key terms, and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General.
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\28\ 61 FR 4729 (Feb. 7, 1996).
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Section 3(c) of E.O. 12988 requires Executive agencies to review
regulations in light of applicable standards in section 3(a) and
section 3(b) to determine whether they are met or it is unreasonable to
meet one or more of them. The Department has completed the required
review and determined that, to the extent permitted by law, this
proposed rule meets the relevant standards of E.O. 12988.
F. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a regulatory action likely to result in a rule that may cause the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year
(adjusted annually for inflation), section 202 of the UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy. 2
U.S.C. 1532(a), (b)). The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect them.
The Department examined this proposed rule according to the UMRA
and its statement of policy and determined that the proposed rule does
not contain a Federal intergovernmental mandate, nor is it expected to
require expenditures of $100 million or more in any one year by State,
local, and Tribal governments, in the aggregate, or by the private
sector. As a result, the analytical requirements of the UMRA do not
apply.
G. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This proposed rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, the Department
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
H. Review Under Executive Order 12630
Pursuant to E.O. 12630, ``Governmental Actions and Interference
with Constitutionally Protected Property Rights,'' 53 FR 8859 (March
18, 1988), the Department has determined that this proposed rule would
not result in any takings that might require compensation under the
Fifth Amendment to the U.S. Constitution.
I. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to
review most disseminations of information to the public under
information quality guidelines established by each agency pursuant to
general guidelines issued by OMB. OMB's guidelines were published at 67
FR 8452 (Feb. 22, 2002). The Department has reviewed this proposed rule
under the OMB guidelines and has concluded that it is consistent with
applicable policies in those guidelines.
J. Review Under Additional Executive Orders and Presidential Memoranda
The Department has examined this proposed rule and has determined
that it is consistent with the policies and directives outlined in E.O.
14154, ``Unleashing American Energy,'' E.O. 14192, ``Unleashing
Prosperity Through Deregulation,'' and Presidential Memorandum,
``Delivering Emergency Price Relief for American Families and Defeating
the Cost-of-Living Crisis.'' This proposed rule is expected to be an
Executive Order 14192 deregulatory action.
List of Subjects
29 CFR Part 775
Administrative practice and procedure, law enforcement, wages.
29 CFR Part 776
Construction industry, wages.
29 CFR Part 779
Reporting and recordkeeping requirements, wages.
29 CFR Part 782
Motor carriers, wages.
29 CFR Part 783
Seamen, wages.
29 CFR Part 784
Fisheries, seafood, wages.
29 CFR Part 789
Child labor, law enforcement, transportation, wages.
29 CFR Part 793
Radio, television, wages.
29 CFR Part 794
Petroleum, reporting and recordkeeping requirements, wages.
For the reasons set forth in the preamble, under the authority of
29 U.S.C. 201 et seq. the Department is proposing to amend chapter V,
subchapter B of title 29 of the Code of Federal Regulations, as set
forth below:
SUBCHAPTER B--OTHER REGULATIONS
0
1. Retitle subchapter B.
[[Page 28992]]
PART 775--[REMOVED AND RESERVED]
0
2. Remove and reserve part 775, consisting of Sec. Sec. 775.0 through
775.1.
PART 776--[REMOVED AND RESERVED]
0
3. Remove and reserve part 776, consisting of Sec. Sec. 776.0 through
776.30.
PART 779--[REMOVED AND RESERVED]
0
4. Remove and reserve part 779, consisting of Sec. Sec. 779.0 through
779.515.
PART 782--[REMOVED AND RESERVED]
0
5. Remove and reserve part 782, consisting of Sec. Sec. 782.0 through
782.8.
PART 783--[REMOVED AND RESERVED]
0
6. Remove and reserve part 783, consisting of Sec. Sec. 783.0 through
783.51.
PART 784--[REMOVED AND RESERVED]
0
7. Remove and reserve part 784, consisting of Sec. Sec. 784.0 through
784.156.
PART 789--[REMOVED AND RESERVED]
0
8. Remove and reserve part 789, consisting of Sec. Sec. 789.0 through
789.5.
PART 793--[REMOVED AND RESERVED]
0
9. Remove and reserve part 793, consisting of Sec. Sec. 793.0 through
793.21.
PART 794--[REMOVED AND RESERVED]
0
10. Remove and reserve part 794, consisting of Sec. Sec. 794.1 through
794.144.
Signed this 27th day of June, 2025.
Donald Harrison,
Acting Administrator, Wage and Hour Division.
[FR Doc. 2025-12314 Filed 6-30-25; 8:45 am]
BILLING CODE 4510-27-P
</pre></body>
</html>Indexed from Federal Register on July 2, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.