Memo on Subregulatory Issues

Memeorandum to Negotiated Rulemaking Participants

FROM: D. Jean Veta
Deputy General Counsel
Diane E. Rogers
Chief of Staff to the Deputy Secretary

SUBJECT: Procedures for Non-Regulatory Guidance

We have received several questions regarding the Department’s issuance of non-regulatory guidance. As you know, the Department typically issues non-regulatory guidance to clarify the law before regulations are finalized. Often, the dissemination of this information is in response to requests for such guidance from our constituents and partners. We also have issued guidance during past negotiated rulemaking sessions.

We appreciate the concerns recently expressed by some negotiators about the Department’s issuance of guidance concerning the implementation of the new statutory provisions that also are the subject of negotiated rulemaking. As a result, with respect to those matters, the Department will seek to limit the amount of such non-regulatory guidance that is issued while these negotiated rulemaking sessions are in progress.

Prior to issuing such guidance through the use of Dear Colleague Letters, Federal Register notices, or similar materials published on the Department’s web site, the Department will use its best efforts to provide you with our proposed guidance on these matters before issuing it. While non-regulatory guidance will not be subject to rulemaking negotiations, we will carefully consider any suggestions or information you may have.