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e-CFR data is current as of October 19, 2020

Title 29Subtitle A → Part 89


Title 29: Labor


PART 89—GUIDANCE DOCUMENTS


Contents
§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.

Source: 85 FR 53170, Aug. 28, 2020, unless otherwise noted.

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§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.

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§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;

(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.

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§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).

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§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.

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.

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§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 §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 §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 §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.

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§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 §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 under §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 §89.2(g), that are guidance under this rule.

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§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 §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.

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§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.

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