Statements of General Policy or Interpretation Not Directly Related to Regulations

DEPARTMENT OF LABOR <SUBAGY>Wage and Hour Division</SUBAGY> <CFR>29 CFR Parts 775, 776, 779, 782, 783, 784, 789, 793, and 794</CFR> <RIN>RIN 1235-AA52</RIN> <SUBJECT>Statements of General Policy or Interpretation Not Directly Related to Regulations</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Wage and Hour Division, Department of Labor. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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 <E T="03">https://www.regulations.gov</E> by searching by the RIN: 1235-AA52. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before August 1, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA52, by either of the following methods: • <E T="03">Electronic Comments:</E> Submit comments through the Federal eRulemaking Portal at <E T="03">https://www.regulations.gov.</E> Follow the instructions for submitting comments. • <E T="03">Mail:</E> 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. <E T="03">Instructions:</E> 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 <E T="03">https://www.regulations.gov</E> are advised that uploading text-recognized documents— <E T="03">i.e.,</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 <E T="03">https://www.regulations.gov.</E> The Department posts comments gathered and submitted by a third-party organization as a group under a single document ID number on <E T="03">https://www.regulations.gov.</E> 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 <E T="03">https://www.regulations.gov</E> to ensure timely receipt prior to the close of the comment period. Please submit only one copy of your comments by only one method. <E T="03">Docket:</E> Go to the Federal eRulemaking Portal at <E T="03">https://www.regulations.gov</E> 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. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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 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 <E T="03">https://www.dol.gov/agencies/whd/contact/local-offices</E> for a nationwide listing of WHD district and area offices. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> 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,” <E T="03">Perez</E> v. <E T="03">Mortgage Bankers Assoc.,</E> 575 U.S. 92, 96 (2015), <SU>1</SU> <FTREF/> 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.” <E T="03">Id.</E> 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.' ”  <SU>2</SU> <FTREF/> <FTNT> <SU>1</SU>  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.” <E T="03">Chrysler Corp.</E> v. <E T="03">Brown,</E> 441 U.S. 281, 302-03 (1979) (internal quotation marks omitted). </FTNT> <FTNT> <SU>2</SU>  Admin. Conf. of the U.S., Recommendation 2017-5, <E T="03">Agency Guidance Through Policy Statements</E> 1 (Dec. 14, 2017) (quoting Attorney General's Manual on the Administrative Procedure Act 30 n.3 (1947)), <E T="03">https://www.acus.gov/sites/default/files/documents/Recommendation%202017-5%20%28Agency%20Guidance%20Through%20Policy%20Statements%29_2.pdf.</E> </FTNT> 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 <E T="03">and legal effect,</E> ” 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); <E T="03">see also</E> 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. <E T="03">See</E> 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), <SU>3</SU> <FTREF/> 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), <SU>4</SU> <FTREF/> and child labor regulations issued under section 3(l) of the FLSA (located at 29 CFR part 570). <SU>5</SU> <FTREF/> 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. <SU>6</SU> <FTREF/> <FTNT> <SU>3</SU>   <E T="03">See</E> 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]”). </FTNT> <FTNT> <SU>4</SU>   <E T="03">See</E> 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”). </FTNT> <FTNT> <SU>5</SU>   <E T="03">See</E> 29 U.S.C. 203(l) (requiring the Department to “provide by regulation or by order” conditions of employment that wo ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 54k characters. 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