About

TREASURY DIRECTIVE: 28-03

                                        
DATE:  January 19, 2017
 
SUBJECT:  Preparation, Review, and Clearance of Regulations
 
1.   PURPOSE. This Directive establishes the policy and procedures for consistent, effective, and expeditious preparation, review and clearance of regulations.
 
2.    SCOPE. This Directive covers all regulations, as defined below, issued by the Department of the Treasury, solely or jointly.  This Directive, however, does not cover regulations issued by the Office of the Comptroller of the Currency (OCC), except that OCC voluntarily submits information on its annual regulatory plan to the Office of the Assistant General Counsel for General Law, Ethics and Regulation for inclusion with the Department-wide plan. The provisions of this directive shall not be construed to interfere with or impede the authorities or independence of the Treasury Inspector General, the Treasury Inspector General for Tax Administration, or the Special Inspector General for TARP.
 

3.    DEFINITIONS.

 
·      a.  "Regulation," as that term is used herein, refers to:
 
1)  Any advance notice of proposed rulemaking (ANPR) or other substantive regulatory action preliminary to a notice of proposed rulemaking, notice of proposed rulemaking (NPRM), temporary (interim) rule, or final rule intended for publication in the Federal Register;
 
2)      Any other statement of general applicability and future effect intended to have the force and effect of law that is designed to implement, interpret, or prescribe law or policy, or to describe the procedure or practice requirements of an office or bureau;
 
3)      Any document that withdraws or substantively amends a previously issued regulation;
 
4)      Any document published in the Notice section of the Federal Register that:
 
a)      Requires or authorizes any action on the part of any person to participate in a program, avoid a penalty, or obtain a benefit;
 
b)      Contains a collection of information subject to the Paperwork Reduction Act;
 
c)      Establishes or revises policy;
 
d)      Could limit the policymaking discretion of states; or
 
e)       Could infringe upon a constitutionally protected property right; and
 
5)     Any other document or category of documents that a bureau or office head, policy official, the General Counsel, or the Executive Secretary determines should be subject to this Directive.
 
Notwithstanding the above, the term "regulation" as used in this directive does not include:
 
1)  Documents making nonsubstantive technical corrections to a previously issued regulation;
 
2)  Documents extending or reopening the public comment period for a previously published proposed regulation, provided that no new regulatory provisions or options are proposed;
 
3)  Amendments to the Internal Revenue Service Statement of Procedural Rules (26 CFR Part 601) that are not subject to the Paperwork Reduction Act;
 
4)  Revenue rulings, revenue procedures, decisions, legal determinations, or other similar documents issued by the Internal Revenue Service or the Alcohol and Tobacco Tax and Trade Bureau (TTB).
 
5)  Internal regulations, directives, and similar documents relating to agency organization, management, practice, or personnel that are not published in the Federal Register, provided that they do not substantially affect the rights or obligations of persons outside the issuing office or bureau;
 
6)  For purposes of the provisions of this Directive relating to advance review and approval by the Department, notices of proposed rulemaking published by TTB relating to the establishment of American viticultural areas (27 CFR Part 9), provided that such notices are not controversial and do not involve policy issues; and
 
7)  Other documents specifically designated by the Secretary or by the General Counsel in consultation with the Executive Secretary.
 
b.      "The Bureau" refers to the bureau that desires to publish a regulation. For regulations that originate within the Departmental Offices (DO), the DO office or the Tax Counsel originating the regulation will be considered the bureau.
 
c.       "Bureau Counsel" refers to the chief legal officer of the Bureau, or designee. For regulations originating within DO, the Assistant General Counsel with legal responsibility for the policy matter is responsible for clearance of the regulation as discussed below.
 

4.      RESPONSIBLITIES.

 
a.       Prior to Submission of a Regulation for Clearance.
 
Unless an exception to E.O. 12866 applies, the Bureau, or as appropriate, the relevant DO policy office or Tax Counsel, shall prepare, prior to submitting any Federal Register publication for review, a memorandum ("seven point memo") to be forwarded to the Office of the Assistant General Counsel for General Law, Ethics and Regulation for transmission to the Office of Management and Budget (OMB) containing: (a) a short description of the proposed regulation; (b) a statement describing the nature of the planned publication (e.g. "notice of proposed rulemaking"); (c) the planned publication date; (d) the applicable statutory or judicial deadline, or a statement that none exists; (e) the assigned Regulation Identifier Number (RIN); (t) a statement as to whether the regulation is significant for purposes of E.O. 12866; and (g) the name and telephone number of the Bureau contact person.
 

b.       Clearance of Regulations Prior to Publication.

 
1)     The Executive Secretary shall approve a regulation before it is published in the Federal Register. All regulations to be published in the Federal Register shall first be cleared (a) by the appropriate Assistant General Counsel and the appropriate DO policy office(s) or (b) by Tax Counsel. Next, the Office of the Assistant General Counsel for General Law, Ethics, and Regulation shall clear the regulation before it is submitted to the General Counsel. The General Counsel shall clear the regulation and forward it to the Executive Secretary for clearance. The Executive Secretary shall return the regulation to the Office of the Assistant General Counsel for General Law, Ethics and Regulation upon approval.
 
2)      The Bureau, or as appropriate the cognizant DO policy office or Tax Counsel, is responsible for:
 
a)      Drafting all regulations in accordance with the instructions in the Federal Register Document Drafting Handbook. In addition to writing the substance of the rule, the Bureau shall also be responsible for the technical formatting of the rule in accordance with the Handbook;
 
b)      Unless an exception to E.O. 12866 applies, assessing whether a regulation is "significant" under E.O. 12866;
 
c)       Assessing whether a regulation implicates fundamental federalism principles under E.O. 13132;
 
d)     Assessing whether a regulation is "major" under the Congressional Review Act, 5 U.S.C. §§ 801 and 804 and thus subject to the 60-day deferral requirement;
 
e)      Assessing whether a regulation is subject to the Regulatory Flexibility Act, and, if it is, preparing, as appropriate, an initial regulatory flexibility analysis (5 U.S.C. § 603), a final regulatory flexibility analysis (5 U.S.C. § 604), or a certification (5 U.S.C. § 605(b));
 
f)       Assessing whether a regulation implicates the Paperwork Reduction Act, and, if it does, preparing all necessary information for submission to the Office of Privacy, Transparency and Records (PTR) within DO to permit PTR to obtain OMB clearance for any collections of information contained in a regulation;
 
g)      Ensuring that the regulation complies with all other requirements imposed by statute, regulation, or executive order;
 
h)      Ensuring that all regulations are cleared by Bureau counsel prior to forwarding to DO for review;
 
i)        Through the procedures reflected in this directive, obtaining clearance of the document in the following order from: (a) the Bureau through the necessary hierarchy as established within the Bureau, (b) either (1) the Assistant General Counsel with subject matter responsibility and the appropriate DO policy office(s) or (2) Tax Counsel, (c) the Office of the Assistant General Counsel for General Law, Ethics and Regulation, (d) the General Counsel and (e) the Executive Secretary;
 
j)         Providing notice to the Offices of Public Affairs and Legislative Affairs of the pendency of the rule;
 
k)      Offering an in-person briefing of the rule to the Executive Secretary, if requested;
 
1)      Making any necessary edits to the rule requested by the Office of the Assistant General Counsel for General Law, Ethics and Regulation or other parties from whom clearance is sought;
 
m)    Preparing a brief executive summary in the form of an action memorandum to the Executive Secretary requesting that she or he approve the publication of the regulation in the Federal Register. The executive summary shall state whether the regulation is economically significant under E.O. 12866, if applicable; indicate whether political or media interest has been (or likely will be) expressed in the subject matter of the regulation; state that the regulation complies with this Directive and that Bureau counsel has opined that the regulation complies with paragraphs 4.BB(2)(b) through (g), above; note the date on which the Executive Secretary was briefed in-person (if applicable); and include a recommendation as to whether the regulation should be brought to the attention of the Secretary or Deputy Secretary;
 
n)      Arranging for publication in the Federal Register of all documents to be published in the Federal Register;
 
o)      Sending copies of regulations to the Speaker of the House of Representatives, the President of the Senate, and the General Counsel of the Government Accountability Office, in accordance with the Congressional Review Act, 5
U.S.C. §§ 801 et seq.
 
3)    The Office of Information Management is responsible for obtaining the necessary approvals for regulations containing collections of information as required by the Paperwork Reduction Act. The Office of Information Management shall inform the Office of the Assistant General Counsel for General Law, Ethics and Regulation when a Bureau submits a request for clearance of a collection of information contained in a new regulation, and shall await clearance from the Office of the Assistant General Counsel for General Law, Ethics and Regulation before submitting the request to OMB. In addition, the Office of Information Management shall notify the Bureau and the Office of the Assistant General Counsel for General Law, Ethics and Regulation when a collection of information contained in a new regulation is cleared by OMB.
 
4)   The Office of the Assistant General Counsel for General Law. Ethics and Regulation serves as the Treasury regulations point of contact with OMB and the Small Business Administration's Office of Advocacy. It is responsible for:
 
a)  Reviewing regulations for compliance with the procedural requirements set forth in this Directive;
 
b)   Submitting all regulations to the General Counsel and Executive Secretary for final clearance prior to publication in the Federal Register:
 
c)   Coordinating clearance, as necessary, with OMB; and
 
d)  Communicating to the Bureau or originating office any edits recommended by OMB or the Small Business Administration's Office of Advocacy.
 

c.    Publication in the Federal Register.

 
Once a regulation has been cleared by the necessary parties and approved by the Executive Secretary, it shall be published in the Federal Register pursuant to the procedures set forth in Treasury Directive 25-03 ("Filing Documents for Publication with the Office of the Federal Register").
 
d.    Post Publication Responsibilities.
 
1)            The Bureau will maintain a complete rulemaking record that includes, but is not limited to, the proposed and final rules and any documents published in the Federal Register related to the rulemaking project, public comments received, meeting/hearing transcripts and summaries, and data or studies and any other materials used in decision­ making related to the rulemaking project.
 
2)  The Bureau is responsible for ensuring that public comments and other appropriate material are included in the rulemaking docket and posted to www.regulations.gov. The Bureau will maintain copies of comments as required under the applicable National Archives and Records Administration records schedule;
 
3)  The Bureau is responsible for identifying whether a rulemaking project is appropriate for retrospective review under Executive Order 13563, Improving Regulation and Regulatory Review (January 18, 2011) and the Department's Plan for Retrospective Analysis of Existing Rules (August 22, 2011).
 
5.    THE UNIFIED AGENDA.
 
a.       The Unified Agenda is published in the Federal Register and posted to www.reginfo.gov  twice a year, and includes a listing of regulations under development or review for the next twelve month. The fall Unified Agenda includes the annual Regulatory Plan.
 
b.      The Bureau shall compile and prepare information related to the Unified Agenda as directed by the Office of the Assistant General Counsel for General Law, Ethics and Regulation.
 

6.    AUTHORITIES.

 
a.       "Administrative Procedure Act," 5 U.S.C. § 553.
 
b.      "Regulatory Flexibility Act," 5 U.S.C. § 601 et seq. (as amended by the "Small Business Regulatory Enforcement Fairness Act of 1996," Pub. L. 104-121, title II).
 
c.       "Paperwork Reduction Act of 1995," 44 U.S.C. § 3501 et seq. and 5 CFR Part 1320, "Controlling Paperwork Burdens on the Public."
 
d.      "Congressional Review Act," 5 U.S.C. § 801 et seq.
 
e.       E.O. 12866, '"'Regulatory Planning and Review" dated September 30, 1993 (58 FR 51735), as supplemented by E.O. 13563, "Improving Regulation and Regulatory Review," dated January 18, 2011 (76 FR 3821).
 
7.    CANCELLATION.  Treasury Directive 28-01, "Preparation and Review of Regulations," dated July 17, 1989, is cancelled.  Treasury Directive 28-03, "Review and Clearance of Regulations," dated December 12, 2007, is superseded.
 
8.    OFFICES OF PRIMARY INTEREST.   Office of the General Counsel, Office of Executive Secretary, Office of Privacy, Transparency and Records.
 
 
 
 
/S/
Priya Aiyar
Acting General Counsel
 
 
Last Updated: 3/8/2017 2:15 PM