<DOC> [106th Congress House Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:68263.wais] NON-CODIFIED DOCUMENTS IS THE DEPARTMENT OF LABOR REGULATING THE PUBLIC THROUGH THE BACKDOOR? ======================================================================= HEARING before the SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND REGULATORY AFFAIRS of the COMMITTEE ON GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTH CONGRESS SECOND SESSION __________ FEBRUARY 15, 2000 __________ Serial No. 106-171 __________ Printed for the use of the Committee on Government Reform Available via the World Wide Web: http://www.gpo.gov/congress/house http://www.house.gov/reform ______ U.S. GOVERNMENT PRINTING OFFICE 68-263 DTP WASHINGTON : 2001 _______________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON GOVERNMENT REFORM DAN BURTON, Indiana, Chairman BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California CONSTANCE A. MORELLA, Maryland TOM LANTOS, California CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania JOHN L. MICA, Florida PATSY T. MINK, Hawaii THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington, MARK E. SOUDER, Indiana DC JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio Carolina ROD R. BLAGOJEVICH, Illinois BOB BARR, Georgia DANNY K. DAVIS, Illinois DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts ASA HUTCHINSON, Arkansas JIM TURNER, Texas LEE TERRY, Nebraska THOMAS H. ALLEN, Maine JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois DOUG OSE, California ------ PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont HELEN CHENOWETH-HAGE, Idaho (Independent) DAVID VITTER, Louisiana Kevin Binger, Staff Director Daniel R. Moll, Deputy Staff Director David A. Kass, Deputy Counsel and Parliamentarian Lisa Smith Arafune, Chief Clerk Phil Schiliro, Minority Staff Director ------ Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs DAVID M. McINTOSH, Indiana, Chairman PAUL RYAN, Wisconsin DENNIS J. KUCINICH, Ohio BOB BARR, Georgia TOM LANTOS, California LEE TERRY, Nebraska PAUL E. KANJORSKI, Pennsylvania GREG WALDEN, Oregon BERNARD SANDERS, Vermont HELEN CHENOWETH-HAGE, Idaho HAROLD E. FORD, Jr., Tennessee DAVID VITTER, Louisiana Ex Officio DAN BURTON, Indiana HENRY A. WAXMAN, California Marlo Lewis, Jr., Staff Director Barbara F. Kahlow, Professional Staff Member Gabriel Neil Rubin, Clerk Elizabeth Mundinger, Minority Professional Staff Member C O N T E N T S ---------- Page Hearing held on February 15, 2000................................ 1 Statement of: Solano, Henry, Solicitor, U.S. Department of Labor; Michael Baroody, senior vice president, policy, communications & public affairs, National Association of Manufacturers; Robert Anthony, professor of law, George Mason University; Jud Motsenbocker, owner, Jud Construction Co.; Dixie Dugan, human resource coordinator, Cardinal Service Management, Inc.; Dave Marren, vice president and division manager, the F.A. Bartlett Tree Expert Co.; and Adele Abrams, attorney, Patton, Boggs, LLD......................................... 31 Letters, statements, etc., submitted for the record by: Abrams, Adele, attorney, Patton, Boggs, LLD, prepared statement of............................................... 128 Anthony, Robert, professor of law, George Mason University, prepared statement of...................................... 66 Baroody, Michael, senior vice president, policy, communications & public affairs, National Association of Manufacturers, prepared statement of....................... 43 Chenoweth-Hage, Hon. Helen, a Representative in Congress from the State of Idaho......................................... 167 Dugan, Dixie, human resource coordinator, Cardinal Service Management, Inc., prepared statement of.................... 85 Ford, Hon. Harold E., Jr., a Representative in Congress from the State of Tennessee, prepared statement of.............. 27 Kucinich, Hon. Dennis J., a Representative in Congress from the State of Ohio, prepared statement of................... 23 Marren, Dave, vice president and division manager, the F.A. Bartlett Tree Expert Co., prepared statement of............ 100 McIntosh, Hon. David M., a Representative in Congress from the State of Indiana, prepared statement of................ 5 Motsenbocker, Jud, owner, Jud Construction Co., prepared statement of............................................... 74 Solano, Henry, Solicitor, U.S. Department of Labor: Information concerning an April 22, 1999, safety seminar. 150 Prepared statement of.................................... 33 NON-CODIFIED DOCUMENTS IS THE DEPARTMENT OF LABOR REGULATING THE PUBLIC THROUGH THE BACKDOOR? ---------- TUESDAY, FEBRUARY 15, 2000 House of Representatives, Subcommittee on National Economic Growth, National Resources, and Regulatory Affairs, Committee on Government Reform, Washington, DC. The subcommittee met, pursuant to notice, at 1:12 p.m., in room 2154, Rayburn House Office Building, Honorable David M. McIntosh (chairman of the subcommittee) presiding. Present: Representatives McIntosh, Barr, Terry, Walden, Ryan, Kucinich, Ford. Staff present: Marlo Lewis, Jr., staff director; Barbara F. Kahlow, professional staff member; Heather Henderson and Bill Waller, counsels; Gabriel Neil Rubin, clerk; Elizabeth Mundinger, minority professional staff; Michelle Ash, minority counsel; and Ellen Rayner, minority chief clerk. Mr. McIntosh. The subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs will come to order. The purpose of today's hearing is to examine the Department of Labor's use of non-regulatory guidance documents and determine whether the Department is regulating the public through the backdoor. This hearing will allow the Department's Chief Legal Officer, and the Solicitor, to discuss the Department's use of non-regulatory guidance and inform us of its views on that and the ways in which it discloses or fails to disclose whether or not such guidance is a regulatory document. Various laws enacted by Congress ensure legal and procedural protections for the public so that agencies may not issue documents that are binding on the public--regulations and rules--without the public's opportunity to participate in the policymaking process. These good government provisions are key to our democratic process. They protect citizens from arbitrary bureaucrats and enable citizens to effectively participate in the policy development process at the Federal level. If agencies avoid these legal protections or issue documents that do not clearly state if they are not binding or if they are, then the public may indeed be confused or unfairly burdened, sometimes at great cost. I am well aware that the agencies claim they are just trying to be customer-friendly and to serve the regulated public when they issue advisory opinions and guidance documents. And, I think much of what the agencies have worked on may indeed be that, where they do help the customer understand Federal rules and regulations. But, this may in fact not be the case in many of the situations we are confronted with. However, when the legal affect of such documents becomes unclear, the regulated parties may well experience this help, if you will, as being corrosive. An offer they dare not refuse. Regrettably, the subcommittee's investigation suggests that some guidance documents are intended to bypass the rulemaking process and expand an agency's powers beyond the point where Congress said it should stop. Such backdoor regulation is an abuse of power and a corruption of our constitutional system. For example, the Department of Labor issues a non-regulatory guidance letter which redefined a ``serious health condition'' under the Family and Medical Leave Act. Originally DOL's 1995 opinion letter stated that minor illnesses, such as the common cold, were not a serious health condition. I think that reflected congressional intent and everybody's understanding when that law was passed. However, in 1996, in December, the Department of Labor retracted this previous definition and stated that the common cold, the flu, earaches, upset stomachs, et cetera, all were covered by the Family and Medical Leave Act. And, if an employee was incapacitated for more than 3 consecutive days and receives continuing treatment from a health provider, in other words you have got a severe cold, you are out with a fever and you are in bed and you go see a doctor, then the requirements of that act are triggered. Now the consequences of this non-regulatory and costly redefinition, because there are a lot of costs associated with this, have reverberated throughout the employer world. Since 1993, Vice President Gore has led a reinventing government initiative which includes the implementation of President Clinton's Executive Order 12862, entitled, ``Setting Customer Service Standards.'' Today's hearing will examine whether the Vice President's action and that Executive order have led the agencies to increase their use of non-regulatory guidance documents in an attempt to avoid the due process procedures mandated in the Administrative Procedure Act. Or is there another explanation for DOL's and the Department's subdivision of OSHA in issuing 16 boxes worth of guidance documents in 1999 alone and 31 boxes of such documents during the last 4 years. I would draw everyone's attention to the boxes lined up against the wall there. Those are the OSHA guidance documents in the last 4 years. I would venture to say very few people have had a chance to read all of those and digest them. The question remains, are they attempting to regulate with those boxes or are they attempting to simply elaborate existing rules and regulations? This hearing will question the volume used before the Congressional Review Act was enacted in 1996, and before the Vice President's action on the National Performance Review. Since enactment of that Congressional Review Act, agencies have been required to submit for congressional review each agency rule, which the Congressional Review Act broadly defines to include not only regulatory actions under the Administrative Procedure Act, but also those containing general statements of applicability and future effect designed to implement, interpret or prescribe policy or law. In other words, many of those guidance documents, to the extent they go beyond a written regulation, but have an effect on the regulated public, need to be submitted under the Congressional Review Act. The Office of Management and Budget has failed to issue adequate governmentwide guidance under that act. So in some ways it is not necessarily the agency's fault that it is interpreting it in various ways when OMB has failed to inform their agencies what are rules and what are regulations. By the way, OMB does that, notwithstanding repeated urging by our subcommittee to do exactly that in April, June, August and October 1999. On October 8th, the subcommittee began an investigation of the agencies overall use of non-codified documents in large part because OMB was failing to do its job. Now the subcommittee requested the Department of Labor, the Department of Transportation and the Environmental Protection Agency, three of the agencies imposing the most regulatory burdens on the public, to complete a compendium of all their non-codified documents in a tabular format and to provide a copy of each codified document, including a highlighted and tabbed reference to the specific explanation in the document itself regarding its legal affect. The compendium required the agencies to reveal which documents had been submitted for congressional review under the Congressional Review Act, and which documents were indeed intended to be legally binding. Both the Department of Labor and the Department of Transportation admitted that none of their listed 1,641 and 1,225 guidance documents, respectively, were legally binding, and none were submitted to Congress for review under the Congressional Review Act. Last week, 4 months after the subcommittee's request, EPA finally submitted its 2,600 documents. The review of those agency documents revealed that the vast majority, it was not clear what the intended legal effect was and that the regulated public could not understand whether they were legally binding or not, based upon reading them. In addition, after OSHA's Assistant Secretary, Charles Jeffress, in testimony before the House Education and Workforce Committee, on January 28th, cited an even higher number of guidance documents than DOL had reported to this subcommittee, we determined that the number of OSHA documents was not the 1,600, but in fact closer to 3,375 documents. Furthermore, only 8 percent of OSHA's 1999 documents included any explanation of legal affect, and only 5 percent put this explanation at the beginning of the document. So for the vast majority of those 3,300 documents, the public is not told, is this legally binding, is it something you have to follow as a rule or regulation, or is it, as the agency claims to us in their written explanation, not legally binding. In contrast, the Department of Transportation did include that explanation in 40 percent of its documents. Still less than half, but much better in terms of reaching that goal of informing the public what the status of the advice they are getting is. Now DOL's backdoor approach to regulation is not limited to OSHA. I cited earlier an example from the Department of Labor's Employment Standards Administration which issued non-regulatory guidance redefining serious health condition to mean the flu and the common cold. One witness will discuss the problem that this redefinition has created for needy people. Dixie Dugan, who is with Cardinal Management Services will explain how she has difficulty in following that ruling in providing the best possible care to her patients who suffer from handicaps and making sure that the staffing is there round the clock, as she needs, because of that redefinition under that Employment Standards Administration's letter ruling. Now as Professor Robert Anthony, one of our witnesses today, stated in an article in 1992, even those documents that do not have legally binding effect, they have practical binding effect, whenever the agency has used them to establish criteria that affect the rights and obligations of private persons. Those will be the issues that we discuss today in our hearing. I want to welcome today our witnesses. We are conducting the hearing in a panel where all the witnesses will be on one panel so that we can have an interchange back and forth. But let me welcome the Department of Labor Solicitor, Henry Solano. Mr. Solano, welcome. Let me also welcome former Reagan administration Assistant Secretary for Policy and current vice president for Policy and Communications and Public Affairs at the National Association of Manufacturers, Mr. Michael Baroody, welcome. Former chairman of the Administration Conference of the United States and current George Mason professor, Robert Anthony. Welcome, Professor. I also want to welcome four citizen witnesses. Jud Motsenbocker, who is the owner of Jud Construction Co. in my hometown of Muncie, IN, welcome. Dixie Dugan, whom I mentioned earlier, who is the Human Resources Coordinator for Cardinal Services Management from New Castle, IN. And Dave Marren, vice president and division manager of the Central and Lake States Division of Bartlett Tree Expert Co., who is from Roanoke, VA. Also welcome Adele Abrams, an attorney for Patton, Boggs, who is representing the American Society for Safety Engineers. Welcome, Ms. Abrams. Let me ask all of you now to please rise. Well, let me actually first ask if my colleague, Mr. Kucinich, would like to make an opening statement at this time. [The prepared statement of Hon. David M. McIntosh and the information referred to follow:] [GRAPHIC] [TIFF OMITTED] T8263.001 [GRAPHIC] [TIFF OMITTED] T8263.002 [GRAPHIC] [TIFF OMITTED] T8263.003 [GRAPHIC] [TIFF OMITTED] T8263.004 [GRAPHIC] [TIFF OMITTED] T8263.005 [GRAPHIC] [TIFF OMITTED] T8263.006 [GRAPHIC] [TIFF OMITTED] T8263.007 [GRAPHIC] [TIFF OMITTED] T8263.008 [GRAPHIC] [TIFF OMITTED] T8263.009 [GRAPHIC] [TIFF OMITTED] T8263.010 [GRAPHIC] [TIFF OMITTED] T8263.011 [GRAPHIC] [TIFF OMITTED] T8263.012 [GRAPHIC] [TIFF OMITTED] T8263.013 [GRAPHIC] [TIFF OMITTED] T8263.014 [GRAPHIC] [TIFF OMITTED] T8263.015 [GRAPHIC] [TIFF OMITTED] T8263.016 Mr. Kucinich. I would and thank you very much, Mr. Chairman. Thank you for calling this hearing. And as you know, you and I may have some differences of opinion. We both agree that the role of Congress in this democratic structure of government is essential and that as the honorable opposition here I want to indicate to you my concern that the voice of Congress always be heard and that congressional approval never be overwritten. And that is one of the reasons why I am so respectful of the Occupational Safety and Health Act, as well as any role which Congress may play in the future in creating new laws for this country. The Occupational Safety and Health Act, also referred to as OSHA, has protected the lives of many American workers. According to the Bureau of Labor Statistics, occupational injury and illness incident rates for 100 full-time workers are at their lowest since they began reporting this information in the early 1970's, shortly after OSHA was passed. From 1973 to 1992, the rate declined by 19 percent. And the rate declined by another 21 percent between 1992 and 1998. So that law is working and it is working to help American workers. I believe an integral part of OSHA's success is the guidance that the Department of Labor provides to the regulated public. Compliance assistance is greatly appreciated by both the employers who want to better understand the responsibilities, and the employees who are protected by these laws. Congress recognized the importance of compliance assistance when, in 1996, it passed the Small Business Regulatory Enforcement Fairness Act which requires that agencies prepare compliance assistance guides and answer questions asked by the regulated public. In response, the Department of Labor has provided over 1,500 guidance documents to the public which have also been produced to the subcommittee. The Department has made many of these documents available on the internet. Mr. Chairman, I agree that guidance should not expand the law. And if the reader is likely to be confused about the legal affect of a document, it makes sense to try and clear up this confusion in the text of the document. In fact, many of the documents provided by the Department of Labor, I believe, clearly state that the document does not alter or determine compliance responsibilities which are provided for in the underlying statutes and regulations. And I support the Chair's concern because congressional intent is something that we take very seriously here. However Mr. Chairman, in addressing these issues we need to make sure that we do not discourage agencies from providing quick responses to the public's questions. If the Department of Labor would be made to jump through so many hoops before providing compliance assistance, I would be concerned that the business person with a safety question may not get a response in time to protect his employees. We also should not discourage agencies from publishing the guidance on the Web. If a question has already been asked and answered, others with similar questions should benefit from these responses. Publishing on the internet provides information to the public faster and promotes consistent enforcement of the law. I also want to make sure that we do not add to any confusion by forcing agencies to stamp all statements with boiler-plate language which could create more confusion than it clears up. Our guidance comes in many forms, including telephone conversations, speeches, directives to OSHA employees, letters answering specific factual questions posed by the public, and broadly applicable guidance manuals. It could be confusing if directives to OSHA employees stated that it was not legally binding. And although non-codified guidance has no legal binding effect, the Small Business Regulatory Enforcement Fairness Act specifically provides that some of this guidance may be used to determine the reasonableness of fines and penalties. Therefore, boiler-plate language stating that a document is not legally binding, may create the misimpression that it cannot be used in court for any purpose. Mr. Chairman, OSHA is an extremely important statute and we need to make sure that the Department is able to both enforce it and provide guidance to the public on how to comply with it. However, I look forward to hearing from the witnesses and gaining some insight as to how the guidance process might be improved. And I want to again express my appreciation to the Chair for his willingness at all times to call these Departments and agencies to an accounting. That is the purpose of this committee. Thank you. [The prepared statement of Hon. Dennis J. Kucinich follows:] [GRAPHIC] [TIFF OMITTED] T8263.017 [GRAPHIC] [TIFF OMITTED] T8263.018 [GRAPHIC] [TIFF OMITTED] T8263.019 Mr. McIntosh. Thank you, Mr. Kucinich. And let me say I think there is good bi-partisan working relationship on this project and I certainly agree with two of your main points. That we don't want to impede any real effort to improve safety by slowing down effective guidance to people. And that it is a good idea to put these on the internet. For example, this hearing is live on the internet today. I am a big believer that you use that as a way of informing people about information that otherwise would be hard to obtain out of the government. So you raise some very good points and I appreciate your help with that. Let me now ask if, Mr. Terry, do you have any brief remarks you would like to do or you can put them into the record. Mr. Terry. I will submit it for the record. Mr. McIntosh. Thank you. Mr. Ford, did you have any brief comments? Mr. Ford. I will submit to the record as well. I am of the belief that when you invite witnesses to testify they should have an opportunity to testify. So I look forward to hearing what they have to say. And I would say that I share the beliefs of my chairman, I think, and for the holding the hearing as well as some of the admonitions of my colleague, Mr. Kucinich, has advised. I do note that all those, I guess, are OSHA advisories over in the corner there. I hope we don't have to review all those doggone things before they get put out, as we start the hearing. So with that I yield back the time to the Chair. [The prepared statement of Hon. Harold E. Ford, Jr., follows:] [GRAPHIC] [TIFF OMITTED] T8263.020 [GRAPHIC] [TIFF OMITTED] T8263.021 [GRAPHIC] [TIFF OMITTED] T8263.022 Mr. McIntosh. Thank you, Mr. Ford. Mr. Ryan. Mr. Ryan. Mr. Chairman, I too would like to submit a fuller statement for the record. But let me just, just from listening to my friend from Ohio and yourself, Mr. Chairman, I would just like to say that, as Members of Congress, it is very important that we represent our constituents as they interact with the Federal Government and the Federal Government's agencies. And there seems to be a lot of confusion out there when they are receiving these guidance documents. So I think if we are ever going to err, we err on the side of what is legal, what is right and what is digestible for our constituents. OSHA is a very important statute. It is very important for the employers, it is very important for the employees, but it ought to be something that is extraordinarily clear to both parties involved. And that is why I think it is important to have some kind of a workable solution. Not boiler-plate, but a workable solution which makes sure that guidance documents do contain within them what legal value they have or do not have, so that the recipients of these documents know where they stand and that they are not embroiled in some kind of confusion. So I think it is important that we put together a workable standard and I look forward to hearing the testimony from the witnesses. With that, I yield. Mr. McIntosh. Thank you, thank you very much, Mr. Ryan. Mr. Walden. Mr. Walden. Thank you, Mr. Chairman, I will just be brief as well. But I wanted to followup on a comment from my colleague, from I believe Tennessee, who said he hoped we didn't have to read all 17,400 pages of the OSHA documents. And the point is, and being in small business, that is what you get saddled with. And that is just one agency. And I think that is the whole issue. And I certainly see it as licensing and the Federal Communications Commission and some of their most recent rules that are out, including mandating what I have to put on an internet site if my company has to have an internet site, and I didn't know they had jurisdiction to dictate content on internet sites, but that is a whole matter for another day. Thank you, Mr. Chairman. Mr. McIntosh. That is an agency that has a lot of problems. Shall we proceed. Mr. Ford. I will note that that is over a few years and I hope you, no small business would have to read it. But I know the purpose of this hearing is to try to figure out how we can do best by business and do best by employees around the Nation. So I appreciate it. Mr. Walden. But if you look at the one I pointed to, that is just 1999, and just one agency, on the right. Mr. Ford. I look forward to hearing from the agency why there are so many of them. I appreciate it. Mr. McIntosh. Let us hear from the witnesses and we definitely have one question for you, Mr. Solano, along with others. Let me ask all of the witnesses to now please rise. It is the policy of our full committee to always swear in all of our witnesses. So please repeat after me. [Witnesses sworn.] Mr. McIntosh. Thank you. Let the record show that each of the witnesses answered in the affirmative. And what I would suggest for each of the witnesses is to provide for us a summary of your written statement. You needn't read it all into the record. We will include it there as an official part of this hearing, but touch on the highlights for us. And feel free, as we are going through it, to have a discourse back and forth. It will then, in the question and answer period, give folks a chance to respond if a subsequent witness has made a point they want to discuss further. Because the goal here is to illuminate this issue and find out what is happening and how we can best manage this process so that it does not create new burdens, but it does effectively inform people of what the rules are. With that, Mr. Solano, please share with us a summary of your testimony. STATEMENTS OF HENRY SOLANO, SOLICITOR, U.S. DEPARTMENT OF LABOR; MICHAEL BAROODY, SENIOR VICE PRESIDENT, POLICY, COMMUNICATIONS & PUBLIC AFFAIRS, NATIONAL ASSOCIATION OF MANUFACTURERS; ROBERT ANTHONY, PROFESSOR OF LAW, GEORGE MASON UNIVERSITY; JUD MOTSENBOCKER, OWNER, JUD CONSTRUCTION CO.; DIXIE DUGAN, HUMAN RESOURCE COORDINATOR, CARDINAL SERVICE MANAGEMENT, INC.; DAVE MARREN, VICE PRESIDENT AND DIVISION MANAGER, THE F.A. BARTLETT TREE EXPERT CO.; AND ADELE ABRAMS, ATTORNEY, PATTON, BOGGS, LLD Mr. Solano. Chairman McIntosh, members of the subcommittee, I am pleased to appear before the subcommittee today to discuss the Department of Labor's use of non-codified documents. Non- codified documents are documents related to compliance with the laws and regulations enforced by the Department. They are not published in the Code of Federal Regulations, they do not create new law or change existing law. Let me reemphasize that. They do not create new law or change existing law. Issuing these documents is an important part of the Department's responsibility to faithfully execute the laws that Congress has passed. The public regularly asks for guidance and the Department routinely responds to these requests. This is a long-standing and well established practice. Congress has made it clear that agencies should be providing such compliance assistance. The end result is better public understanding of the law. That means better protection for American workers and their families. The Labor Department is responsible for a wide range of statutes. They cover everything from safety and health in the work place and the security of employee benefit plans, to minimum wage and overtime guarantees, family and medical leave and equal employment opportunity. American employers want to comply with the laws that apply to them, but statutes and regulations can be complicated. At the same time they cannot specifically address every factual situation that may come up in the work place. Questions about application of the law are bound to come up. When they do, citizens rightfully and rightly expect agencies to give them guidance. On the whole, the practice of providing compliance assistance works well. Some questions take longer than others to answer, and there are times when an answer needs to be clarified. But I think the Department's answers, for the most part, are helpful to the public. Certainly, that is our goal. In cases involving the application of Federal statutes and regulations, Federal courts do often give weight to the interpretations offered by the regulatory agencies. That is if they are reasonable and depending on the nature and the circumstances of the interpretation. That principle is well established in our law. It is based on the authority that Congress has delegated to the agencies and on the expertise that the agencies have developed. But the courts have the final say, and they provide an important check on agency action. As I said, the public has a strong interest in compliance assistance information. That is an important reason why the volume of non-codified documents issued by the Department is large. Many documents are generated in response to specific requests from the public. That holds true for the OSHA documents that you requested for this hearing, Mr. Chairman. The Labor Department is committed to helping the public comply with the law. The Department is also committed to complying with the laws that applies to its own regulatory work. Statutes like the Administrative Procedure Act and the Congressional Review Act. My written statement discusses some of these requirements. One important function of the Solicitor's Office is to help the Department's agencies follow the law. That help includes giving day-to-day advice, as well as broader, more formal efforts. For example, the Department began taking steps to implement the Small Business Regulatory Enforcement Fairness Act, including the Congressional Review Act, shortly after the law was passed in 1996. My office helped to provide training to more than 250 Department staff members. Later we met with agency contacts to review basic SBREFA responsibilities with the focus on the Congressional Review Act requirements. I believe that the Department is complying with the requirements of the Congressional Review Act in a responsible way, consistent with the law and with the guidance from the Office of Management and Budget. Since the passage of the Congressional Review Act, the Department has submitted about 100 rules to the Congress. None has been rejected. I would be pleased to answer questions from the subcommittee. [The prepared statement of Mr. Solano follows:] [GRAPHIC] [TIFF OMITTED] T8263.023 [GRAPHIC] [TIFF OMITTED] T8263.024 [GRAPHIC] [TIFF OMITTED] T8263.025 [GRAPHIC] [TIFF OMITTED] T8263.026 [GRAPHIC] [TIFF OMITTED] T8263.027 [GRAPHIC] [TIFF OMITTED] T8263.028 [GRAPHIC] [TIFF OMITTED] T8263.029 Mr. McIntosh. Thank you, Mr. Solano, and we will indeed have some questions for you. Let me turn now to Mr. Michael Baroody for your testimony. Please summarize your written testimony for us. Mr. Baroody. Thank you, Mr. Chairman and members of the subcommittee. On behalf of the National Association of Manufacturers, our 14,000 member companies, large, mid-sized and small, and the 18 million people who make things in America, I want to thank you for this opportunity to testify before you today. To put the matter simply, your subject is important. It is important economically and commercially, socially and politically, legally and constitutionally. Jefferson, when asked why a formal Declaration of Independence was needed, said its purpose was to put the matter before people in a language so plain and firm as to command their assent. And, when he wrote the Declaration, he wrote with what he termed a decent respect to the opinions of mankind. I am a Labor Department veteran and a proud one, having served as Assistant Secretary for Policy there for more than 4 years, including most of Ronald Reagan's second term. I don't expect the Department, in its regulating, anymore than I expect Congress in its legislating, to always match Jefferson's language, plain, firm and compelling. That would be too much to expect. But, on behalf of manufacturers and the broader business community, I do not think it too much to expect that the appointees in charge of regulatory agencies of the Department, and governmentwide for that matter, would at least display a decent respect for the opinions of the regulated and for the public in general. The many times in recent years when they have not, is the important subject before this committee. An attachment to my testimony includes an annotated list of examples which we will be happy to try to expand in coming weeks. Importantly, the short list we have provided makes the point that the problem of non-regulatory guidance, non-rule rules, backdoor rulemaking, as it is variously described, is not just a problem of OSHA, nor just a problem at the Department of Labor. It is a problem widespread in the administration. One has the sense that the administration, perhaps gotten in its final year an intimation of its own mortality, is in a bit of a rush to make policy by administrative fiat where it has failed to do so by legislative means or by following the regular regulatory order. The recent ``Work at Home'' rules provide a well known case in point. First noticed in an interpretive letter on OSHA's Website, the letter spoke in terms of obligations on all employers. National news accounts and the firestorm of ridicule and reaction they prompted, teased out of the Department an explanation that the letter describing obligations on all employers actually applied only to one employer; that the interpretation intended to offer clear answers to questions put to OSHA, had caused confusion instead, though it had been 2 years in the drafting; and that the letter was therefore being withdrawn. When the letter was withdrawn, though, it seemed, at least for a while, that the interpretation stood and the confusion was only compounded. Perhaps the matter of ``Work at Home'' is concluded, though one can't really be certain. And certainty about what the law means and what it requires is what this hearing is all about. But the underlying problem exists. Let me give another example. It has been the settled practice in OSHA compliance for a long time to treat repeat violations as more serious than first-time events. Equally settled was the definitional point that such violations were those found in separate inspections at the same plant. Quietly, through a compliance directive and without notice to employers, much less notice and comment rulemaking, in 1998, OSHA redefined repeat violations to mean that a violation found in one company's plant in, say, New York, even if corrected when found in New York, was a repeat violation if previously found in another of that company's plants in, say, Idaho, even if corrected in Idaho. The question here, as the chairman well knows, isn't which is better, the old policy or the new. Rather, since they are unarguably two different policies with very different impacts and implications, the question is how an agency of the government of the United States of America can go from one policy to the other without telling anybody or asking anybody. Without so much as a by your leave. To repeat, when rulemakers and enforcers behave this way, how is one to know what the law means and what it requires and for that matter, how long it will continue to mean what it seems to mean today. And how long it will be until the requirements change. Mr. Chairman, the NAM applauds efforts by you and many of your colleagues to impose greater discipline, oversight and scrutiny on what may be called the Regulatory Branch. Clarity in rulemaking, consistency in compliance enforcement and stronger analysis of both economic and scientific bases for rulemaking are all devoutly to be wished. But, as a Labor Department veteran, I offer the caution that the regulatory history of recent decades has been one of piecemeal encroachments and expansions. And there may be a limit to how much can be achieved by attempting to deregulate in the same way. At the NAM, we have successfully sued OSHA for its lock out/tag out rules, and more recently the EPA, for its new national ambient air quality rules. In both cases, the U.S. Court of Appeals has stepped in, ruled in our favor and found the agencies overstepped the doctrine of non-delegation. In the lock out/tag out case, the court held, ``that OSHA's proposed analysis would give the executive branch untrammelled power to dictate the vitality and even survival of whatever segments of American business it might choose.'' For perhaps 30 years or more, until the middle of the past decade, Congress had often legislated so broadly and vaguely as to invite the agencies to make law. The brakes on this imposed by recent Congresses and proposed in this one, are welcome but they may be brakes that can at best slow, rather than bring to a full stop the problems that arise when agencies are willful, ideologies run strong and interests demand satisfaction. What is needed by Congress, the Supreme Court or both is a reassertion of both the doctrine and the habit of non- delegation. One other general point, Mr. Chairman, if I may, the subcommittee is properly focused on agency avoidance of the scrutiny and oversight provided for by the Administrative Procedure Act, the Congressional Review Act and similar enactments. In fact, such avoidance through guidance and other means is always inappropriate and at least occasionally illegal. Equally troubling, though, are the occasions when an agency might technically comply with such legal requirements, but does so in a way that may be best described as pre-textual. In other words, when compliance with what I have called the accountability statutes is a ruse. I cite in my written submission, Mr. Chairman, the Reg Flex example, we can talk about that later if you wish. The second example is far more recent and current. OSHA's ergonomics proposal, along with supporting documents, was published about 96 hours after the first session of this Congress adjourned without finalizing legislation that would have prevented it. The rule was not actually available on OSHA's Website on its publication date. The comment period was only 70 days and that extended over a period including Thanksgiving, Christmas, New Year's, Hanukkah and Martin Luther King Day. And, during the comment period, the rule was amended to correct errors in the original version, though the errors were never specified. This is arguably the biggest rule in OSHA's history. For new rules and changes in existing rules of far less consequence and controversy, comment periods of 90, 120 days and even more are not uncommon. This ergonomics proposal may be notice and comment rulemaking in some technical sense, Mr. Chairman, but it does not in our view display a decent respect for the opinions of the regulated. Thank you, Mr. Chairman. [The prepared statement of Mr. Baroody follows:] [GRAPHIC] [TIFF OMITTED] T8263.030 [GRAPHIC] [TIFF OMITTED] T8263.031 [GRAPHIC] [TIFF OMITTED] T8263.032 [GRAPHIC] [TIFF OMITTED] T8263.033 [GRAPHIC] [TIFF OMITTED] T8263.034 [GRAPHIC] [TIFF OMITTED] T8263.035 [GRAPHIC] [TIFF OMITTED] T8263.036 [GRAPHIC] [TIFF OMITTED] T8263.037 [GRAPHIC] [TIFF OMITTED] T8263.038 [GRAPHIC] [TIFF OMITTED] T8263.039 [GRAPHIC] [TIFF OMITTED] T8263.040 [GRAPHIC] [TIFF OMITTED] T8263.041 [GRAPHIC] [TIFF OMITTED] T8263.042 [GRAPHIC] [TIFF OMITTED] T8263.043 [GRAPHIC] [TIFF OMITTED] T8263.044 [GRAPHIC] [TIFF OMITTED] T8263.045 [GRAPHIC] [TIFF OMITTED] T8263.046 [GRAPHIC] [TIFF OMITTED] T8263.047 [GRAPHIC] [TIFF OMITTED] T8263.048 [GRAPHIC] [TIFF OMITTED] T8263.049 [GRAPHIC] [TIFF OMITTED] T8263.050 Mr. McIntosh. Thank you, Mr. Baroody. Let me now turn to Professor Anthony of George Mason University. Professor. Mr. Anthony. Thank you, Mr. Chairman. I am a professor of administrative law at George Mason, with an interest in Federal agency use of non-legislative rules. These are documents such as guidances and circulars that were not promulgated through processes like notice-and-comment that Congress has laid down for making rules with the force of law. The key proposition here is that agencies should not use non-legislative documents like guidances to impose binding requirements on the public. Agencies have no inherent power to make law. They only have the power that Congress gives them. Acts of Congress determine the subject matter on which agencies can act and, more pertinent today, acts of Congress specify the procedures by which the agencies must act. For making rules that bind people, the Administrative Procedure Act lays down the procedures that the agencies must follow in most cases. These are the familiar notice-and-comment procedures. Sometimes Congress specifies variations on these rulemaking procedures for a particular agency, as in the Occupational Safety and Health Act, but the basic mandate to use statutory rulemaking procedures remains the same. When an agency follows congressionally required rulemaking procedures, the resulting rule or regulation is called a legislative rule. Today we are concerned with less formal documents like guidances, bulletins, advisories and dear colleague letters, memorandums, manuals, policy statements, press releases, circulars. These are called non-legislative rules. Sometimes the agencies use these non-legislative documents where they should be using legislative rules, as a way to impose new standards or obligations without going through the procedures required by Congress for making rules with the force of law. Often the practical affect of an informal document is just as rigid and binding as a formally promulgated regulation. This happens when a document establishes fixed criteria that the agency routinely applies, for example, by basing enforcement on the document or requiring that its terms be satisfied before a permit will be granted. And frequently there is little that the affected private parties can do about agency use of non- legislative documents. An applicant for a permit, for example, usually needs the permit right away and can't afford the hassle of challenging the document in court. Now if agencies could make these low profile documents binding on the public, even just as a practical matter, then they wouldn't need legislative rules made by notice-and- comment. A guidance or a memo is quick and cheap and often is less vulnerable to review by Congress and the courts than is a regulation. But members of the affected public are hurt. They have no opportunity for input on the agency position. They have no opportunity to get fresh consideration of the position before it is applied to them. And they may have no opportunity to get it reviewed in court. Fortunately, the law has become firmly established that the agencies, if they want to bind the public, must promulgate regulations that comply with the APA or other legislative rulemaking procedures specified by Congress. If an agency chooses to issue only an informal document, like a guidance or a circular, it must make clear that the document is not binding but is tentative. And the agency must keep an open mind and be prepared to reconsider the policy at the time of its application. There is one exception. When the document only interprets the language of existing legislation, the agency doesn't have to use notice-and-comment. But the informally issued interpretation does not have the force of law and should not get judicial deference. And thus, until the courts have accepted a non-legislative interpretation, the agency's effort to enforce it may be on shaky ground. But procedurally, it is permissible. As a matter of good practice, though, in many situations the agency should use notice-and-comment procedures on a proposed interpretation to get public input. Examples are interpretations that would expand the practical scope of the agency's jurisdiction or would alter the liabilities of private parties. Observance of notice-and-comment procedures in situations like these has benefits for both the public and the agency. Where the unelected agencies make policy, notice-and- comment procedures supply a sort of democratic process which serves as an imperfect substitute for the democratic process of legislation by the people's elected representatives in Congress. A foundational precept of our system is that officials can't issue decrees without congressional authority. That proposition lies near the heart of our freedoms. It marks a boundary between democracy and autocracy. It is a vital element of our civil liberties. Thank you. [The prepared statement of Mr. Anthony follows:] [GRAPHIC] [TIFF OMITTED] T8263.051 [GRAPHIC] [TIFF OMITTED] T8263.052 [GRAPHIC] [TIFF OMITTED] T8263.053 [GRAPHIC] [TIFF OMITTED] T8263.054 [GRAPHIC] [TIFF OMITTED] T8263.055 [GRAPHIC] [TIFF OMITTED] T8263.056 Mr. McIntosh. Thank you very much, Professor, and particularly for that eloquent statement of the way our freedoms are protected and our structural divisions of power. Let me now turn to Jud Motsenbocker from Muncie, IN, from the perspective of one of the members of the regulated community. Please share with us a summary of your testimony. Mr. Motsenbocker. Good afternoon, Mr. Chairman and members of the subcommittee. My name is Jud Motsenbocker and I have been in the construction business since 1957. I have been the president and CEO of Jud Construction since 1968, and I have held many leadership positions in the home building industry on a local, State and national level, including serving as a senior life director of the National Association of Home Builders. I have served as one of the area vice presidents and I want to thank you for giving me the opportunity to come before you to talk about the non-regulatory guidance documents, specifically those of the Occupational Safety and Health Administration, and how they impact the home building industry. Today I would like to give you some examples of how the non- regulatory guidance documents have become much more than their intended purpose of educating employers and the public. In effect, they have become regulations without the benefit of lawmaking procedures. Let me give you one which we classify as forced safety committees. In the 1990's, the Indiana Occupational Safety and Health Administration decided that, after an employer was cited for a violation, as part of the settlement agreement, the employer must form an Employee Safety Committee. The employees could choose their representatives and must meet monthly. The minutes of these meetings are required to be sent to the Commissioner of Labor and kept on file. The context of the minutes could be used against the employer if a future violation was cited. So the future violation would no longer be a serious violation with a maximum fine of $7,000, but now would be a knowing and willful violation with a maximum fine of $70,000. Because of the employer's prior knowledge as provided in the minutes of the forced Safety Committee meeting. Employee committees are valuable. However, in the way in which they were mandated by IOSHA violated the National Labor Relations Act and forced recognition of employee unions. Let me give you another one. Can you imagine a $1,000 fine for a signature? In the 1990's, when Indiana had a new Commissioner of Labor, employers were being fined for not having the Commissioner's signature on the safety posters at their work site. Now the posters were there, they were the right size, they were the right color, they had the right verbiage in it, but they didn't have his signature on it. They had the previous signature of the Commissioner on it. This type of activity does not promote safety, only frustration. Mr. Chairman, I am a small businessman. I have 19 employees. This is about the size of the average employer in Indiana. I am very active in organizations in my industry, perhaps that is why I am here today. I do the very best I can to learn what the requirements are of an employer. I read regulations, newsletters, explanation of those newsletters, and I continue to pursue information necessary to comply with all the regulations of the Internal Revenue Service, Environmental Protection Agency, OSHA, U.S. Department of Labor, and all the other things that regulate our industry. I believe that this is my duty and law, but more importantly, the duty to my employees and my community and company. But, how am I to know from within the desk drawers of a bureaucrat may come some advisory letter to change the way that I must comply after I have already done what I believe I need to do, to be in compliance. How may I know what that advisory exists or what is required. Mr. Chairman, let me assure you that I have not read 17,400 pages of documents from 1999, to try to make sure that I have complied. I still meet a payroll on Friday and I still have the obligation to my employees to keep them employed in a safe working condition. Mr. Chairman, members of the subcommittee, thank you for allowing me to address you today on this important issue. I sincerely hope that changes are made so that employers, employees have the input into the regulatory process and proper notification of compliance requirements. I hope that we can create an environment that assists employers with compliance issues rather than what appears to be the present course of regulations by some government agency. Thank you. [The prepared statement of Mr. Motsenbocker follows:] [GRAPHIC] [TIFF OMITTED] T8263.057 [GRAPHIC] [TIFF OMITTED] T8263.058 [GRAPHIC] [TIFF OMITTED] T8263.059 [GRAPHIC] [TIFF OMITTED] T8263.060 [GRAPHIC] [TIFF OMITTED] T8263.061 [GRAPHIC] [TIFF OMITTED] T8263.062 [GRAPHIC] [TIFF OMITTED] T8263.063 [GRAPHIC] [TIFF OMITTED] T8263.064 [GRAPHIC] [TIFF OMITTED] T8263.065 Mr. McIntosh. Thank you, Jud. And thank you for coming out today for this hearing. Let me now turn to Ms. Dixie Dugan with Cardinal Services Management, Inc. of New Castle. Ms. Dugan, welcome and share with us a summary of your testimony. Ms. Dugan. Thank you. Good afternoon, Mr. Chairman and members of the subcommittee. I am Dixie Dugan, Human Resource Coordinator for Cardinal Service Management, located in New Castle, IN. We are a small private for-profit corporation and our services include group homes and supported living in apartments. We assist and support individuals with developmental disabilities, such as mental retardation. Of our 175 employees, 144 are direct contact staff. Our direct contact staff provides supervision and training for the individuals served 24-hours a day, 365 days a year. I fully support the original intention of the Family and Medical Leave Act to protect the employees job when serious health matters prevent them from working. When circumstances, such as the birth of a child or adoption occur, the last thing that parents want to worry about is job security. In the case of serious medical conditions for either the employee or their immediate family member, it is equally important to have sufficient time to recover or assist with the care of a family member. Personally, I utilized the Family and Medical Leave Act during the last few months of my mother's terminal cancer. Because of that availability, I was able to take her to necessary treatments, assist in taking care of her at home, as well as spending precious moments with her in the hospital and in the nursing home. My sisters and I shared in this responsibility without fear of losing our jobs. This is not a choice I would want anyone to have to face. Cardinal Service Management provided generous paid leave benefits to accommodate our employees before this law was enacted. Especially in this time of a tight labor market, we have to be concerned with meeting the needs of all of our employees. We have every interest in following the existing laws, but hope that some clarification and definition of the Department of Labor's serious health condition interpretations will allow us to do so within the letter of the law. I am glad that FMLA is here to stay, but the Department of Labor's regulations and interpretations have broadened the act and made compliance difficult. We are concerned that the Department of Labor opinion letters, one, are not readily available to all employers, and two, are going beyond the original intent of the law. In my position as Human Resource Coordinator, I am responsible for informing our employees of this protection, for training our supervisors to identify possible qualifying events, and for making the final determination as to whether the event qualifies under the law. I am also responsible for coordinating this request with other laws such as the Americans With Disability Act and workers compensation laws, as well as our own company's leave policies. The aspect of determining whether the event is a serious health condition under FMLA has been extremely difficult for our company. In fact, up to this point, we have felt compelled to approve all requests as long as there is a physician willing to complete the certification form. The Department of Labor places the burden of designating whether the absence is covered by the FMLA on the employer. The employers must notify employees that leave will be counted toward FMLA leave within just 2 business days. Additionally, the medical certification process required by the Department of Labor for employees and their families is cumbersome. Under the DOL regulations, a certification form is the only way the employer can verify the leave. The employers cannot call and speak to the doctor or care giver. Since we are responsible for providing direct supervision and support to individuals not able to live independently, we must have staff on duty. It is not merely a matter of saving the work until later or delegating out the critical parts of that. Someone must be there and available to fill that shift. When employees are legitimately on leave, we find a way to cover for them. However, under DOL opinion letters, unscheduled and unplanned absences and illegitimate leave hurts us. They threaten our ability to serve our clients who are counting on us to be there 24-hours a day. We share this dilemma with many industries where unscheduled and unplanned absences can affect customers and co-workers. I have found that the Department of Labor's FMLA implementing regulations and opinion letters are overly broad and confusing. I cannot imagine that Congress intended this when the FMLA was passed. When Congress passed the original FMLA it was supposed to be serious health conditions leave, not a national sick leave program or to cover brief conditions. However, those types of conditions became covered when the Department issued its regulations and opinion letters. One year the Department of Labor said that the cold, the flu and non-migraine headaches were not serious health conditions. The next year they said they could be. This has been very confusing for us as we have tried to comply with the law. These opinion letters are attached to my statement. When employees request federally protected FMLA serious health condition leave for minor illnesses, such as headaches and strep throat, this type of misapplication has a direct impact on the morale of those expected to carry the workload in the employee's absence. FMLA mis-applications under the Labor Department's interpretations affect operating costs and quality of care. We certainly will not compromise our client's care. In closing, I would like to respectfully request that the Department of Labor revise its opinion letters and implementing regulations to restore the FMLA to its original congressional intent, so that it effectively helps those who need it. I would like to thank the subcommittee for the opportunity to express the concerns of companies who are trying in good faith to comply with the FMLA, but have been perplexed by the Labor Department's interpretations. This is particularly difficult for small businesses and providers of essential services, such as health care. Thank you for the opportunity to share my experiences and concerns. [The prepared statement of Ms. Dugan follows:] [GRAPHIC] [TIFF OMITTED] T8263.066 [GRAPHIC] [TIFF OMITTED] T8263.067 [GRAPHIC] [TIFF OMITTED] T8263.068 [GRAPHIC] [TIFF OMITTED] T8263.069 [GRAPHIC] [TIFF OMITTED] T8263.070 [GRAPHIC] [TIFF OMITTED] T8263.071 [GRAPHIC] [TIFF OMITTED] T8263.072 [GRAPHIC] [TIFF OMITTED] T8263.073 [GRAPHIC] [TIFF OMITTED] T8263.074 [GRAPHIC] [TIFF OMITTED] T8263.075 [GRAPHIC] [TIFF OMITTED] T8263.076 [GRAPHIC] [TIFF OMITTED] T8263.077 [GRAPHIC] [TIFF OMITTED] T8263.078 Mr. McIntosh. Thank you very much, Ms. Dugan, for that very compelling testimony. Let me now turn to another one of our citizen witnesses, Mr. Dave Marren, who is with the Bartlett Tree Expert Co. from Roanoke, VA. Mr. Marren. Mr. Marren. Good afternoon, Mr. Chairman and members of the committee. My name is David Marren and I serve as vice president and division manager of the F.A. Bartlett Tree Expert Co. I am responsible for a large portion of my company's tree care operations within the United States, including our utility operations in Indiana. My purpose for appearing before this committee here today is to express our frustration with OSHA's recent pattern of regulating our industry through the use of letters of interpretation, which we feel bypass the notice-and- comment period mandated by the Administrative Procedure Act. We also feel that the use of letters of interpretation to regulate our industry have resulted in inconsistent enforcement through the country. Recently, there have been two examples that have concerned us. The first example involved OSHA's letter of interpretation that all arborists are loggers subject to the logging industry standard specified in 1910.266. Our industry recognizes significant differences between arborists and loggers and membership directed its concerns to the National Arborists Association. The National Arborists Association then threatened to sue OSHA for effectively changing the logging standard by including our industry without providing us the opportunity for notice-and-comment on the issue. As a result, OSHA responded over a year ago with a letter revoking its letter of interpretation placing us under the logging standard. However, as of 7 days ago, OSHA's original letter of interpretation that placed us under the logging standard was still posted on the internet for all its compliance officers to follow. While OSHA claims that these letters of interpretation do not have the force of law, we feel that these letters served as a basis for prosecuting members of our industry. In fact, this became apparent when North Carolina OSHA cited a member of the National Arborists Association expressly relying on the withdrawn Federal OSHA letter of interpretation. Another example of OSHA's misuse of letters involves an OSHA letter of interpretation which effectively changed the specifications in 1910.67 OSHA Standard, which requires all area lift operators to tie into the bucket with a body belt and lanyard. OSHA's letter of interpretation then required the area lift operators use a full body harness instead of a body belt. Again, our industry directed its concern through the National Arborists Association. The National Arborists Association threatened to sue OSHA for effectively changing its standards without providing us the opportunity for notice-and-comment and OSHA withdrew its letter of interpretation. While my company uses the full body harness, we agree with the industry that OSHA's use of the letter of interpretation deprives our industry the opportunity to provide meaningful comment on this very important issue. Our contention is that Congress enacted the OSHA Act and the Administrative Procedure Act, which mandate that regulating agencies such as OSHA provide notice-and-comment before promulgating new regulations or substantially altering existing regulations, so that potentially affected parties would have the opportunity to provide meaningful comment on the subject matter, and so that potentially affected parties would be aware of the regulations governing them. Our concern is that OSHA's continued use of letters of interpretation in the manner described here today, violates OSHA's own requirement to follow the OSHA Act and the Administrative Procedure Act by denying our industry the opportunity to know about substantial changes in the existing laws, and to provide meaningful comment on the changes before they become law. We feel that this is inherently unfair. Our request is that Congress takes action to ensure that our industry will not be regulated through the use of letters of interpretation. In closing, I would like to state that my company recognizes the positive contributions that OSHA has made to our industry and that we will continue to cooperate with them regarding all regulations and issues that affect our industry. We are not insensitive to the fact that the opportunity for improving safety in the tree care industry is very much a moving target. We recognize the opportunities for improvement and are committed through the National Arborists Association's extensive involvement with the American National Standards Institute's Z133.1 National Consensus Tree Care Safety Standard, to work with industry, unions and OSHA in a cooperative effort to improve safety on a consensus basis. We simply ask that this distinguished committee recognize our legitimate concern in this matter and we are confident that you will do what is in the best interest of our employees, our industry and the public at large. Thank you, Mr. Chairman. 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Thank you very much, Mr. Marren, you have raised some questions that we will explore further in this hearing of what happens when something is withdrawn. How do we, how does the public know what the status is. Let me now turn to Ms. Adele Abrams. Ms. Abrams, thank you very much for coming today, share with us a summary of your testimony. Ms. Abrams. Thank you, Mr. Chairman and members of the subcommittee. My name is Adele Abrams and I am an attorney with Patton, Boggs in Washington, DC, practicing occupational safety and health law. I am also a Washington Representative for the American Society of Safety Engineers and I am a professional member of ASSE's National Capital Chapter. ASSE is the oldest and the largest society of safety professionals in the world. It represents nearly 33,000 safety professionals and also serves as the Secretariat of seven ANSI Committees, which develop voluntary consensus standards in the safety and health area. Our testimony focuses on how ASSE views the administrative procedures used by OSHA and also by the Mine Safety and Health Administration, MSHA, when issuing letters of interpretation, memoranda, procedural documents and other policy statements. And we have also submitted a longer statement which we ask to be included in the hearing record. ASSE's members probably request and receive more letters of interpretation from OSHA and MSHA than those of any other organization involved with safety and health. The interpretative documents and policy statements are a significant part of both the agency's compliance and consultation assistance activities. ASSE supports and encourages the issuance of information that assists employers in complying with OSHA and MSHA standards and ensures the safety of their workers. ASSE's members make decisions on a daily basis that literally have life and death consequences. And the actions they choose to take may be guided by such cutting edge information. Therefore, it is in the best interest of safety and health in the work place that such information be available readily, both for publication and broadcast on the agency's Websites. We hope that the subcommittee will not overlook the positive benefit that these interpretative materials can have for small businesses. Small business compliance assistance is of growing interest to ASSE and we have long encouraged Federal agencies to dedicate more resources to this area. ASSE's members, the consultants that are members of ASSE and small business employers routinely seek guidance from OSHA, MSHA and NIOSH to obtain interpretative statements concerning particular subject areas. Overall results have been excellent in getting such guidance from OSHA and MSHA, although in some cases there have been significant delays in issuing a response. Generally, however, the information provided assists business in implementing their occupational safety and health program in an effective and efficient manner. Both employees and employers receive direct benefit from this win-win approach and consequently ASSE strongly recommends that OSHA and MSHA continue to provide and disseminate interpretative materials publicly. Although they are not legally binding, some of the agency's more formal interpretative documents, such as MSHA's Program Policy Manual and the OSHA directives that are labeled as CPLs, can be instructive in determining how an agency interprets a standard or regulation and how they have done so in the past. These documents are often utilized by the courts to determine whether an enforcement action is reasonable and the degree of deference that should be accorded based upon the consistency of an agency's interpretation. We believe the agency should make it clear to the public that such guidance documents are of a non-binding nature and the agencies must guard against extending the scope of existing standards and regulations through such interpretative materials. Although safety and health professionals and attorneys are aware that interpretative materials are not legally binding, the public may not be clear on this point. And therefore, OSHA, MSHA and other agencies should consider issuing a statement to this effect on future materials that are intended by the agency to be interpretative policies, rather than substantive rules. We understand the chairman's new legislation, H.R. 3521, addresses this issue. It appears to be a reasonable approach and we look forward to hearing the debate on this legislation. In summary, although ASSE's overall experience with agency interpretative materials has been very positive, there can be significant improvement. We encourage OSHA and MSHA to work with organizations such as ASSE, more pro-actively when addressing such issues. There is a greater need for synergy in both the public and private sectors when writing interpretative materials. And from its standards work, ASSE has the expertise to do so and is more than willing to work with these agencies. Finally, in order to remain exempt from formal rulemaking requirements under the Administrative Procedure Act, interpretative documents cannot go beyond the plain language of the standard or create a secret rule. And if an agency desires to impose new obligations or burdens on the regulated community, it must engage in formal notice and comment rulemaking. The APA's procedures provide employers, employees and safety professionals with the opportunity to offer OSHA and MSHA valuable input and to share real world experience. The end result is an improved regulatory structure and enhancement of safety and health. And with that final statement, I thank you for your time and I will be pleased to answer any questions you might have. [The prepared statement of Ms. Abrams follows:] [GRAPHIC] [TIFF OMITTED] T8263.105 [GRAPHIC] [TIFF OMITTED] T8263.106 [GRAPHIC] [TIFF OMITTED] T8263.107 [GRAPHIC] [TIFF OMITTED] T8263.108 [GRAPHIC] [TIFF OMITTED] T8263.109 [GRAPHIC] [TIFF OMITTED] T8263.110 [GRAPHIC] [TIFF OMITTED] T8263.111 [GRAPHIC] [TIFF OMITTED] T8263.112 [GRAPHIC] [TIFF OMITTED] T8263.113 Mr. McIntosh. Thank you very much, Ms. Abrams. Let me now ask a question. And what I think we will do in the process of this is rotate back and forth between the majority and the minority on 5 minutes of questioning. And so I will begin on our side. Question for Mr. Solano. Now, as I mentioned in my opening statement, in 1973, the Vice President had his Reinventing Government Initiative and President Clinton issued his Executive order. Has that caused a change in the Department's approach toward issuing guidance? Is there no more emphasis on issuing guidance than there was prior to that? Mr. Solano. What I would say is that the Department clearly embraces the notion and the benefit of providing meaningful compliance assistance. I am not in position to compare before or after, I just would say that it is a valuable and important part of our mission in addition to enforcement. Mr. McIntosh. Well, maybe I will come to Mr. Baroody and maybe he will have some reflections on before. But there has been a dramatic increase. I mean if you look just from 1996 to 1998, there are 16 boxes in that period. And then in 1999 alone there is another 15 boxes, which is a huge increase in just 1 year. What is going on there? What is the need for those? Mr. Solano. Well, first of all you did indicate a very important date. In 1996, in the SBREFA legislation Congress specifically mandated in Section 213 that we provide compliance assistance to small businesses. So it is clear that we are trying to fulfill and meet that directive from Congress. In addition, it is a part of a growing, important process of providing meaningful, helpful compliance assistance. So it is a combination. Mr. McIntosh. Is 1999, typical? Can we anticipate that from 2000, and on, or is that an unusually high number? Mr. Solano. Well the compliance assistance has a number of different aspects to it. The chairman and others have alluded to the boxes. Out of the boxes that are there, approximately one-third is press releases, which were required to be submitted as a part of our response to this subcommittee's request. Approximately half related to information that was part of OSHA's Technical Institute, and consists of the training materials which is used to train our Compliance Officers. At least 90 percent of the attendees at the Technical Institute are the Inspectors. I think approximately 10 percent may be private individuals who we permit and encourage to be there. So a large part of that is---- Mr. McIntosh. What percent of that would be made public either on being posted on the Internet or in some other way a publication? Mr. Solano. Well all of it---- Mr. McIntosh. Obviously the press releases are. Mr. Solano. I can't give a percentage. What I can tell you is OSHA is in the process, is continuing to pursue making available, not just because of the Freedom of Information Act requirements, which talk about reading rooms for public documents, making available as much of its information on the Internet. That is part of, not only just providing compliance assistance in particular circumstances, but being an open government. And OSHA is making more information publicly available and continuing to try and increase and improve how it makes public information and compliance assistance available. Mr. McIntosh. But is it consistent? Are there some letters that are there and some aren't? And, if so, how do they choose which ones go on the Internet? Mr. Solano. It is an effort that they are making to bring as much in a manageable and coherent way onto the internet. OSHA is moving as quickly as it can in that direction. Obviously not everything may be on there, but it is attempting to be open and in that process assist the public and provide public documents, not only in its official repositories but on and through the Internet. Mr. McIntosh. Have you ever had anybody in the agency ask you do we have to post this on the Internet? Mr. Solano. I have never had any particular question as to must it or must it not be posted on the Internet. As I understand the Freedom of Information Act, including amendments made by Congress, at least the indices for what is listed under FOIA as the reading room documents, which by law is the repository of public information, must be on the Internet. We are trying to go beyond that in a positive way, in a helpful way. And that is what we are attempting to do. Mr. McIntosh. Good, I think that is good. I would urge you to come up with some internal guidance document as to which things go on and which don't, so that everybody can operate under those standards. And it is a new territory. I encourage you to work on that. Mr. Solano. And I thank the chairman for his observation and I will take that back to the Department. Mr. McIntosh. Let me Mr. Baroody on that same line, did agency prior to the Reinventing Government Initiative, issue this type of guidance in as great a frequency or in as many problems with policy setting? Mr. Baroody. I can speak impressionistically, Mr. Chairman. I think that guidance clearly of the sort that all of us would agree is important, that is compliance assistance guidance, issued certainly during my experience at the Labor Department. But it is my clear impression that it issued in much, much lesser volume. By how much, I can't hazard a guess, but it was I think a fraction of this volume. And there was a deliberate effort made, during my experience at the Department, to make sure that the confusion or reinterpretation or changes in law that are subject of concern before this committee did not occur. So my impression is first that the volume has increased, but what impresses us-- -- Mr. McIntosh. Would a disclaimer help make sure that there weren't uses where they were trying to interpret or change the standard? Mr. Baroody. I think it would, with the caveat that we are constantly impressed in American manufacturing with the agility of the legal mind in America. So how durably helpful this may be, you know better than I as a question. Mr. McIntosh. Real quickly, since my time is up, Mr. Solano, do you see a problem with trying to put the disclaimer on those documents? Mr. Solano. It depends on the nature of the document, the purpose and the intent of the documents. It is not clear that a one size fits all approach would be helpful in advisory opinions where people, including some of the members of the panel here have specifically asked for an answer to a particular set of facts. And I think it was touched on, even in your remarks, when we provide compliance assistance, the best interpretation based upon the act and the regulations is given. To have a disclaimer on the advisory letter may be confusing and contrary to the very purpose sought by the person who asked the question and wanted some sense of certainty and clarity. And then the question becomes, in the enforcement area, what may or may not be the implication of our trying to give our best interpretation with a disclaimer and a matter later in enforcement litigation. So again, I think we should look at this carefully and thoughtfully. We do provide disclaimers where appropriate. We will look at that process. We will continue to work on improving that process. But a one size fits all approach may raise more concerns than the benefit, which is a worthwhile benefit, which might be obtained. Mr. McIntosh. Well, I think a useful compromise would be where you don't feel the disclaimer applies. Where you are in fact interpreting the statute then follow the process in the Congressional Review Act and before issuing it make sure it is submitted to Congress. I mean that way, sure, you don't want to put it on every piece of document because sometimes you are trying to explain and interpret the law. Mr. Solano. May I respond, Mr. Chairman? Mr. McIntosh. Yes. Mr. Solano. Again, I think the implicit assumption, and I have heard it said here, is that we engage in backdoor- rulemaking; creating legal, binding obligations and avoiding the Administrative Procedure Act. That is not our policy. That is not our practice. And we comply with the Administrative Procedure Act and the Congressional Review Act. So I hope that it is not misunderstood that that compliance is there. Now we can indeed---- Mr. McIntosh. I have to respectfully disagree. I mean there has been instance after instance that is coming up recently where you all have made very substantive decisions in documents that were not submitted to Congress, they weren't put into the Federal Register and you have had to withdraw them because people pointed out that is a substantive change in the law and we never had a chance to talk about it. That is a problem. And we need to develop procedures that prevent that from happening. Yes---- Mr. Solano. Well, I have answers to that because, first of all, most of the examples that were given were squarely within the heartland of what Congressman Hyde and Senator Nichols stated in the Congressional Record were exempt under the Congressional Review Act. These advisory letters or opinion letters, are like the IRS examples provided by these Members of Congress. And the examples here were responses to specific requests, giving our best interpretation. Now there are some instances when we were asked to reconsider them. And when we were asked to reconsider them, we did. And that is different from saying we are not complying with the Congressional Review Act. That is inherent in the process of when we are looking at a particular set of facts and the differences that people may have on the interpretation to be given to the act and the regulations. Mr. McIntosh. Well, let me just, because my time is expired, be very clear on the Congressional Review Act because I wrote the provision that eventually was enacted in there. And it was very much intended to include anything, including advisory opinions, that had a future effect and were interpreted or created a binding legal obligation. And so it is when the public is confronted for the first time with a new obligation that we need to make sure it goes through the process so you have got input, you have got a chance for debate back and forth on the issue. And then the agency makes a very considered opinion under the law. And that is really what the Congressional Review Act was intended to strengthen under the Administrative Procedures Act. These are examples that are troubling there. They were new understandings of the law. They were perceived as being burdensome by the regulated community. And that is the problem we need to address. The disclaimer may not be a panacea, it may not solve that problem, as Mr. Baroody said. But we have got to look at this whole process and find a way to make sure that doesn't happen. Let me now turn to Mr. Kucinich and for his period of questioning. Mr. Kucinich. Thank you very much, Mr. Chairman. When you are speaking in terms of disclaimers, I would also like to refer back to Mr. Baroody's testimony quoting Jefferson about making sure that the language is plain and firm as to command assent. So if we get to that point of disclaimers, clarity and when disclaimers would be appropriate is something that needs to be considered so as not to create more of a problem than we had in the first place. I think the fact that Mr. Baroody is in the unique position of having been in both the public sector and the private sector, that your presence here is meaningful and I had a couple of questions about the concern about backdoor rulemaking being a widespread problem. I think in one example you talked about this administration, the Department of Labor, changing its enforcement policy through a compliance directive, changing its interpretation to what qualifies as a repeat violation without going through the formal rulemaking procedure. One of the things I was wondering, as you have been going through that, is in your experience as the Assistant Secretary for Policy at the Department of Labor, were there any instances when the Department changed enforcement policy through a compliance directive instead of going through the official rulemaking procedure? I would just like to see if this is a creature of the institution or if its something that is kind of new. Mr. Baroody. My recollection, as I said in the earlier question, is that there were some guidances issued that may even have involved at least a clarification of legal interpretation. I don't suggest that it didn't happen. I do suggest that we, and as I said, tried to approach those quite deliberately. I think there is a contrast between that and the more recent experience. And I don't mean to cast aspersions about the lack of deliberation, but the very volume of activity this committee is considering suggests that much more of it is being done and the possibility for reflection on it is less than we tried to achieve when I was there. Mr. Kucinich. You know I am particularly interested in, you spoke about, the ergonomics rule. Mr. Baroody. Yes. Mr. Kucinich. And that it is my understanding the administration is going through a formal rulemaking procedure but you believe the administration should have provided for a longer comment period? Mr. Baroody. Quite a bit longer, yes sir. This is a very substantial rule. Mr. Kucinich. I would like to draw now on your expertise as a member of the Department of Labor. Were there any instances when the Department established ergonomics policies without using notice-and-comment procedures. Mr. Baroody. There was some voluntary guidance, as I recall, offered by OSHA at the Department at the time, if I could expand for a minute. That became, during OSHA's experiment during the Cooperative Compliance Program, the basis for an attempt by OSHA to impose on employers a certain category of employers, in fact not all, through the backdoor, if I could use the phrase, the requirement that they either accept the ergonomics voluntary guidance as a requirement, in effect, in their work force, or face the certainty of inspections. When the court deliberated over that, the court found, as we had urged them to, that that was overstepping OSHA's responsibility. Mr. Kucinich. You know, it is interesting to hear you say that in the context of what I understand happened in 1990, when in August the Department proposed ergonomics program management guidelines for meat packing plants and didn't go through a formal rulemaking process. Now in 1990, in August, were you still at the Department? Mr. Baroody. In 1990, in August, to be---- Mr. Kucinich. When those guidelines were set? Mr. Baroody [continuing]. To be precise, I believe, I was certainly still at the Department. I believe that my term as Assistant Secretary for Policy had by then ended. Mr. Kucinich. Well, the only reason I mention it is because it may be that this concern that you have expressed, and I think it is well taken, about whether or not a proposed rulemaking, a formal proposed rulemaking has occurred prior to going into issuing these, what amount to directives. It seems to me that it may happen in administrations of every political stripe. And the value of this meeting is that as we go forward, we could face again this challenge of whether or not the proposed rulemakings have had enough of an opportunity to be considered and that policies not be pursued without issuing appropriate notice-and-comment procedures. My concern is that we not leave this hearing with the idea that somehow this phenomenon of rulemaking and of directives, which could be quite vexing, I understand, on the private sector, is new to this administration. Because there is always going to be a dynamic tension between the regulators and the regulated. But the idea of congressional intent here is to make sure that that tension exists in order to have a process of regulation which works. You, gentlemen and ladies, bring to us this experience which helps us to make sure that the process is working more effectively. On one hand, without frustrating regulation and on the other hand, without making it so onerous that it doesn't work anyway. So I think we see a balancing that can occur here and certainly the public is served. I just had, could I have a couple of extra minutes? Mr. McIntosh. By all means, go ahead and finish your line of questioning. Mr. Kucinich. When you were testifying, Mr. Baroody, I was wondering, no actually this would relate to, I think, Mr. Motsenbocker. I was hearing your testimony about your experience. You have 19 employees, is that right? Mr. Motsenbocker. That is correct. Mr. Kucinich. And when was the last time that OSHA, in your State, inspected your work place, how long ago was that? Mr. Motsenbocker. I am going to tell you and this is by memory, so I could be off by some. Probably 5 years. Mr. Kucinich. OK, and were you cited? Mr. Motsenbocker. No, I was not. Mr. Kucinich. Oh, congratulations. So there are no fines or anything? Mr. Motsenbocker. There was some things that were cleared up. Probably the biggest problem I had in that whole scenario was that the gentleman was there for 2 weeks in a 2,700 square restaurant that had burnt. And his comment was, it was in January, and his comment was, it is cold outside and it is warm in here. And he sat at a table for 2 weeks while we worked in the facility. So it was very frustrating for---- Mr. Kucinich. I imagine it would be. Were you fined though? Mr. Motsenbocker. No, we were not fined. Mr. Kucinich. So there is no---- Mr. Motsenbocker. That is correct. Mr. Kucinich. OK, well that is instructive and, you know, I appreciate you coming here from Indiana to testify. And I think the importance of hearing from people such as yourself who have to deal with the practical consequences, you know, it is important. I also think it is important when you bring to us information about the attempts to comply. And that is the same thing that Ms. Marren, I think, was getting at. That you want to comply, right? Mr. Motsenbocker. Yes, I think, we don't have a problem, ``with OSHA per se.'' There are a lot of good safety factors in there that we should have been doing a long time ago. I don't have a problem with that. Mr. Kucinich. Sometimes it helps, right? Mr. Motsenbocker. That is correct. My problem is that I think we have gotten to something else that maybe should be brought up, if I may. And the point being that, when these directives are put out, the people who are enforcing them are the ones who are changing what the meaning is down on the local levels. And I think what those, when that becomes a problem to us, that they say, this is the law. And we have to prove that it is not the law. We have to go into the situation to try to find out whether it has been promulgated properly. Mr. Kucinich. I think that, my guess is that would be a problem that everyone that is being regulated has and that is that, well, do you really mean that? And you hope they don't if it is something that is not favorable. But I appreciate all of you coming here and I thank the Department for the work it is doing. Thank you. Mr. McIntosh. Thank you, Mr. Kucinich. I am going to now recognize the vice chairman of the Committee, Mr. Ryan, and ask if he will yield me, say a minute and a half to followup on that? Mr. Ryan. Yes, please, by all means. Mr. McIntosh. I think Jud has raised a very interesting and important question and maybe, Mr. Solano, you can tell me what the Department's official position is. Are these guidance documents something that should be used to inform an Inspector's judgment when he is making a decision under the General Duty Clause, about whether somebody is in compliance? Mr. Solano. Let us understand that directives cover the whole range of the act and the regulations. The General Duty Clause is but one part for which guidance documents may provide some assistance to the Inspector as to what to look at concerning the implications of the General Duty Clause. What I would say is---- Mr. McIntosh. Are they allowed to use these interpretive letters or other documents and say, here, this is what we think under the General Duty you should be doing? Mr. Solano. Let me, as I said early on, in terms of enforcement for citation purposes, they are to cite for failure to comply with the act and the regulations, the substantive regulations. To the extent that the directives may be of some assistance in terms of interpretation, they are not to cite based upon a violation of the directive. It is based upon the legislative or the quasi-legislative function of the substantive rules and the act. Directives may assist them. The other benefit is the more the directives are put on the Internet and made available, then the employers have the direct interpretation available to them. Again, citations or enforcement are not based upon or cited in regard to the directives but on the act and the regulations and the standards. Mr. McIntosh. And do you send out guidance to the inspectors that under the General Duty Clause they can't use those as a definition of what the general duty is? Mr. Solano. There is a specific directive that says pursuant to section 9 of the act which says that the enforcement is to be based upon the act and the regulations and the standards which have been duly adopted. That is the direction in the instruction to all OSHA Inspectors. Mr. McIntosh. But it doesn't tell them don't use these non- regulatory documents in interpreting the regulation. Mr. Solano. Again, the non-codified documents are an expression and interpretation of the substantive rules and regulations. It may assist them so that they may be informed on the interpretations, but when it comes down to applying the facts and the circumstances and determining whether or not to issue a citation, they are to rely on the act, the regulations and the standards. The duly, legally binding adoptions of Congress and OSHA. Mr. McIntosh. Thank you. I return to Mr. Ryan for his questioning period. Mr. Ford. I move that Mr. Ryan get a full 5 minutes, sir. Mr. McIntosh. Without objection. Mr. Ryan. Thank you very much. I would like to ask you, Professo Anthony, a few questions if I may. I would like to go back to the crux of the matter, so to speak. It seems that, you know, we have all these hearings in Congress about the reaction to regulatory actions. We have constituents, and I hope we can have some people from Wisconsin sometime up here. But it seems that we have these hearings all the time. You are from Wisconsin? Mr. Anthony. My wife is from Wisconsin. Mr. Ryan. That is half as good. But we sit here and we react constantly to legislative and non-legislative rules. And I would like to ask you, as a Professor who studies these things, to go back to how did this all begin? Where did the delegation issue arise? Is it the so-called sick chicken case, the Schechter Poultry case that opened the door for delegation to arise? Can you just for the benefit of educating the Internet public and those of us here, tell us how this door got opened and tell us about the constitutionality of a delegation of power from the legislative branch to the executive branch? I know it is a pretty wide open question, but I think there is some interesting follow-ups to be taken from that. Mr. Anthony. Well, I will give that a try, Mr. Ryan. That is a big issue. Of course, the constitution vests the legislative power in the Congress in Article 1. And it has been true through the course of history that, and increasingly that Congress has been giving power to agencies to make law in accordance with delegated power. The delegation, in order for an agency to validly make a law, has to have two parts. The agency has to have the authority over the subject matter and it also has to have the authority to issue documents, usually legislative rules, regulations that have the force of law. And unless Congress has given this lawmaking power to the agency, the agency is acting beyond the scope of its authority. And if it issues documents that don't have the backing of the congressional authority that I have mentioned, then they can be invalidated and they are invalidated. The practice of delegation has grown since the Schechter Poultry case of 1935, stupendously, so that the power to legislate is now largely in the hands of agencies and away from Congress where it was lodged originally by the Constitution. There are those who feel that that has gone too far. There are those who feel that particular delegations have gone too far. And while recent cases with only a couple of exceptions have tended to affirm the power of Congress to delegate broadly, the problem still remains. And it is, in my opinion, a major problem of our system of government. As my remarks earlier indicated, although they weren't addressed to the non- delegation problem, Congress should make the laws. And anything the agencies do should be strictly and scrupulously within the authorities that Congress has given them. And sometimes I would even criticize Congress for going too far in giving powers to the agencies to make law. The excessive delegation problem. Mr. Ryan. Having said that, can you specifically address the non-legislative rules and how you believe they seem to be a backdoor way around Congress legislating and the executive agencies administrating these rules? Specifically, how do you think the nature of the non-legislative rulemaking process helps executive agencies get around that? Mr. Anthony. Well, they are not supposed to get around it. The Administrative Procedure Act is understood, I think, by everyone. And we haven't had, as far as I can tell, any disagreement on this here at the panel. That if agencies promulgate documents that go beyond a fair interpretation of the existing law, then they must use notice-and-comment procedures. They must use legislative rulemaking procedures, that is procedures to generate documents that have force of law because Congress has given the agency the power to issue rules that have the force of law. It is a lot cheaper, it is a lot easier, and it is a lot faster to issue some kind of a bulletin or memorandum, maybe in the field, maybe at a lower level within the headquarters agency. And sometimes that temptation is succumbed to. Mr. Ryan. If I could, because I see the light moving. I think from the consumer point of view, from those who are on the receiving ends of these regulations, they are not always, it is not always very clear whether this is guidance or whether this is a legislative rule. I would like to direct the question to Mr. Baroody. Your organization has recently, successfully completed some legal actions on this delegation issue. Could you give me just a brief update on the constitutionality today on the delegation issue going back to the Schechter Case and where you stand on this issue and your basic interpretation of the whole delegation issue as these recent court rulings materialized? Mr. Baroody. In all humility, no. I am neither a lawyer nor a constitutional expert. I would suggest to you that the, this non-delegation problem is a problem that is not brand new. It didn't emerge full blown in the 1990's. It is a problem with a long history. We would suggest that the real problem of volume that concerns us is not the sheer and impressive volume of the guidance that has come out of the agencies during the 1990's, but the increased volume. It is our clear experience and perception of this guidance that it goes beyond compliance assistance to making rules, changing rules, interpreting the law and changing the law. That we think, as I said in my opening statement, poses concerns on a lot of different fronts, not least constitutional and legal. But when it comes to the concerns of our members, I think many of them would say what Mr. Motsenbocker has said. That, when it comes to trying to run a business and understand, given that you are predisposed to want to comply with the law, how to comply with the law is an ever-changing kaleidoscopic experience. Much of this gets down to simple definition. I mentioned a change in the definition of repeat violation, which has to do, admittedly, with multi-state situations. And we are talking about larger companies there. But Ms. Dugan mentioned FMLA. The issue there is one of simple definition. And let me just tell you, Mr. Ryan, for all of our members, whether they are large or small, the confusion inheres in a situation like the following: Where within a 2-year period, the Department variously defined minor ailments as follows. They ``are,'' ``ordinarily are not,'' they ``definitely are,'' they ``may be'' and they ``never are'' serious health conditions under the act. It is impossible to comply with the best rule in the world with that ever-changing experience. That doesn't get to the constitutional question, Mr. Ryan, I apologize. Mr. Ryan. I think it is important to raise these issues. I think the recent court rulings that your firm has received are very, very instructive. They shed a whole new light and set a new precedent for this whole issue of delegation. It is important, I think, that we recognize that blame or whatever you may call it, can be spread to everybody. Congress passes extremely vague laws. We pass these vague laws and go home and extol the values of these vague laws, only to be on the receiving end of these laws when we represent our constituents. And the problem we are finding is that the spirit of these laws are not necessarily being taken as intended. The spirit of the laws are not necessarily being followed through upon and they change. And now it is a case where we have the executive agencies actually writing the full force of laws that are affecting our constituents in, as you mentioned, very, very vague and ambiguous terms. I think it is important to scale this back and, you know, widen the view of this issue and look at exactly how laws are written in the Federal Government. How they are carried through and whether or not those laws take into account the original intent of the legislation that we actually pass here in Congress. While that is something that I think is highlighted with this hearing, what we are seeing here with this hearing and many, many others is that we are on the receiving end constantly of a flawed legislative system whereby laws are written by executive agencies that are not representative of the people through elections. And it is something that we all should take a look at. And I can tell, Mr. Solano, you had some strong opinions on that just from looking at your face. I know my time is up but I would like to hear your thoughts on this, if you could. Mr. McIntosh. We will gladly extend the gentleman's time, I think it would be interesting to hear Mr. Solano's comments. Mr. Solano. Again, I just want to indicate and affirm we comply with the Administrative Procedure Act. We comply with the Congressional Review Act. We do not engage in creating substantive, legally binding obligations through backdoor rulemaking. We do that through the front door, through adopting rules and regulations. When called upon in a long-established process of providing interpretive guidance to particular facts, we do, so under the APA, and under the CRA, through interpretive guidance or statement of particular applicability. That means that when asked by a member of the public, including the regulated community, to give an opinion of what the act and the regulations provide for, we do respond. We think that is appropriate and we respond to the best of our ability to give the interpretations, but we do not use that vehicle as an indirect way to create legally binding obligations or substantive rules and regulations. That is not our policy. I believe that is not our practice. So, now, to the extent that we can all improve our performance and our conduct, we embrace that and we endorse being clear and complying with the law. Mr. Ryan. But, let me ask you this. Let me take a followup on that if I can, Mr. Solano. Since the 1996, enactment of the CRA, did the Solicitor's Officer clear guidance of each of these documents over here to my left prior to its issuance by the Department? Mr. Solano. Again, I tried to give the characterization of the documents. One-third of the documents are press releases. At some form or in some ways because of the day-to-day interaction of our staff with the agencies we may have, depending on the nature of it, reviewed it and provided assistance to the individuals. Press releases are not covered under the Congressional Review Act as documents to be submitted. I indicated that about half of them are training documents from the OSHA Training Institute. We assist our clients in providing and reviewing that information that was intended for instructional purposes. Again, the day-to-day interaction is one where we give the agencies the best advice we can. In that day-to-day interaction, I believe we comply with the Administrative Procedure Act and the Congressional Review Act. I can't guarantee 100 percent accuracy. I don't know of any organization, public or private, which could. But we strive hard and I believe we are very good at complying with the law and the spirit of the law. Mr. Ryan. And you did read all of the training documents? It seems to me that the training documents explain how you tell people how to comply or not comply with the laws. Mr. Solano. As I said, the training documents are documents for the training of our inspectors. Mr. Ryan. Sure. Mr. Solano. We are aware that these are people outside of the inspectors accepted to be in the Training Institute. There is an interaction between OSHA and Solicitor Office staff. I can't say that every page was reviewed. But through that strong working relationship with very competent professionals, and I think Mr. Baroody indicated that he believes that in the Department of Labor, when he was there and I would say while I have been there, we had and have very strong, committed, very excellent professionals who strive to comply with the law. Mr. Ryan. Well, striving is good, but doing it is another thing, I think. But I appreciate your testimony. Mr. McIntosh. Let me switch back to Mr. Ford and then we will come back. Mr. Ryan. Thank you very much. Mr. McIntosh. Mr. Ford. Mr. Ford. I was enjoying Mr. Ryan. Mr. McIntosh. You are welcome to yield him some of your time if you want. Mr. Ford. Let me thank the panelists and thank all my colleagues and certainly thank the chairman for calling the hearing. I think it is important to note, I sincerely appreciate all the testimony. We have had some, obviously, some difference of opinions and, even here on this panel and certainly amongst the witnesses. But I do sense that there is a commitment on the part of all on the panel, or there is a belief rather on all the panel that we do need work place and safety rules, first off. And two, we need an agency to ensure that these things are done right. But we certainly don't want them to impose unnecessary burdens on business people. I was struck by, first of all, the impressive way that the NAM's representative, your testimony, sir. In, I guess the first page you mentioned, really the inside cover, the key to economic growth and you cite some impressive statistics. The U.S. rated No. 1 in global competitiveness by the Switzerland-based Institute for Management Development. U.S. manufacturing productivity growth averaging more than 4 percent during 1996 and 1997. How that is an improvement and increase. You talk about no sector of the economy, including the government, coverage including the government provides health care insurance coverage to a greater percentage of its employees. A sign to me that things are going extremely well. I was even struck by the gentleman from Indiana, the construction company manager. And some of my construction management folks were on the Hill today to lobby on the Fair Act and some other issues which you might in town as well to do, sir. I was also struck in your testimony when you said that as it is, the home building industry is one of the most heavily regulated groups in the Nation, which is one of the reasons why the cost of housing and home ownership is beyond the reach of millions of Americans. I would just say that we are undergoing, as both sides of the aisle on this Congress will take credit for, one of the greatest and most unprecedented eras of economic growth and prosperity. I would also note that in addition to home builders being one of the most heavily regulated industries, one of the other reasons, at least in the African-American community and the Hispanic community that home ownership is beyond the reach of millions of Americans has nothing to do with the regulation of the home building issue. It also has something to do with redlining and the way credit and access to capital might be determined. But I appreciate the issues that you raise. I would ask the professor, as well as asking the Solicitor to the extent that the professor may know. I appreciate him walking through, really tracing the history for us of how non-legislative documents or the delegation of power came about. I am a graduate of the University of Michigan Law and we like Cornell and George Mason too, but I had a good professor to walk through some of these issues as well. But Mr. Solano, you mentioned that the Department of Labor holds employers responsible for the content of DOL guidelines. And you said that employers, when they request information, are guided, that when employers want guidance they are happy when they receive it. Do you have evidence of this happiness that you are talking about and can you say how employers are happy to hear about these things? Mr. Solano. Congressman Ford, let me first of all, I want to just be very precise in the words used. We hold employers responsible not for the guidance but for the act and the regulations and the standards. And I may have misunderstood the phrase you used. Mr. Ford. I apologize. Mr. Solano. There are some documents that evidence this and there is a particular institute, I would have to get the name for you, that indicated that they do appreciate the interaction that we have. I think even the witness, Ms. Abrams, indicates that there is a give and take process under the auspices of compliance assistance that both parties find mutually beneficial. Mr. Ford. Do you have any you can just submit to the record, just so we might be able to have some evidence of that, sir? Mr. Solano. I don't have, let me please submit it, if I may, if that is OK without objection? [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T8263.114 [GRAPHIC] [TIFF OMITTED] T8263.115 [GRAPHIC] [TIFF OMITTED] T8263.116 [GRAPHIC] [TIFF OMITTED] T8263.117 [GRAPHIC] [TIFF OMITTED] T8263.118 [GRAPHIC] [TIFF OMITTED] T8263.119 [GRAPHIC] [TIFF OMITTED] T8263.120 Mr. McIntosh. Yes, let me in fact ask unanimous consent that we hold the record open for 10 days for that submission and any other submissions the panelists would want to make. We may, in addition, have the staff on either side, some additional questions that we will send to you and keep the record open for those answers. Seeing no objection, so ordered. Mr. Ford. Some of the, many of the witnesses, rather, gave examples of a guidance that they were provided in an inappropriate manner. That concerns me too, and I must say there is a perception here in Washington and probably fueled by us in Washington and believed by many around the country that because those of us are Democrats have to support the Democratic administration, Republicans have to bash on that. I must say we do a pretty good job of affirming that up here at times, but just, out of curiosity, would you mind responding to that, Mr. Solano, in terms of this inappropriate manner that, in which guidance might have been provided to not only some of the witnesses, but I would imagine Mr. Baroody and others may speak for many of their members and others around the country. Mr. Solano. Well, part of the reason why, Congressman Ford, I was very particular on the language even in the nature of the question is, it is that precision that I think is very helpful and very important to dispel the notion of backdoor rulemaking or creating legally binding effect in terms of directives or guidance. The repeat violation example that was used. In fact, that is not a creature of a substantive rule or a change of the rights and obligations of members of the regulated industry to comply with the law. It is really a part of what happens for violation in the sanction or the enforcement side, so that is not a change in the substantive obligations under the act or the regulations. It is an enforcement piece which is like an enhanced penalty, which I am very familiar with having been in law enforcement as the U.S. attorney for Colorado. And in particular, in 1992, prior to this administration that principle was utilized and applied to one industry as an enforcement strategy by the prior administration. What happened was that same principle, which did not change the rights and obligations to comply with the act, but is again an enforcement strategy, was extended to others. But again, that is an enforcement practice which is not backdoor rulemaking. So that is one example. In terms of the commercial tree trimming, my comment to that is again at the request of the regulated community we tried to give our best interpretation, in response to the questions and the facts provided. When they raised a question about that interpretation we agreed to revisit that interpretation. That is a part of the interchange, the give and take that goes when we try to give our best interpretation. I view that as not a method of backdoor rulemaking, it is an engagement, at the specific request of the regulated community, to try and give an interpretation. And when there is a question about it, it is appropriate to be open, to reconsider and rethink. So those two examples, to me, represent a clarification of what happened. That is just a brief response to the question. Mr. Ford. Mr. Chairman, if you wouldn't mind, thank you, Solicitor. And if I could have Mr. Baroody, he looks as if he is itching to say something. Mr. McIntosh. Certainly. Mr. Baroody. I appreciate it, Mr. Ford. And with all due respect to the Solicitor of Labor and I am given to understand he is due a great deal of respect. I think that his substantive, his recent, his previous answer is interesting to all of us in this town, in this room, and those of us who must be concerned with the way the law is written and some technical requirements. But the sum total result for a lot of my members and the business community generally is confusion nonetheless. If it is a settled matter of compliance enforcement policy, that the definition of repeat violation for years has been implemented on a one-plant basis, and then it turns out to be implemented on a multi-plant, multi-state comparison basis, it makes it very difficult for conscientious employers concerned about the safety of their employees and complying with the law, to know where to go. A different example. It took 2 years for the Occupational Safety and Health Administration to respond to the inquiry from an employer in Texas about his obligations if people worked at home under his authority. The very fact that the Department published that letter, which as I said in my opening statement had reference to the obligations of all employers, and put it on the Internet, which we have all agreed is a good thing to do, was an implicit signal to all employers that, if they had their people in their work force work at home, they were subject to the very confusing requirements in the letter. When the letter was withdrawn, as I said, it only compounded the confusion. But I think the issuance of the letter in the first place created the confusion and represented an extension of interpretations of the law so significant as to basically amount to a reinterpretation of the law. And the effect it induces on employer, after employer, after employer, is to tell them they ought not get into this changing work place, the changing modern work place, by contemplating having people work at home--even if it meets work/family concerns that many workers have. Or it promises to enhance productivity. So that is the problem we are talking about. Mr. Ford. My time is up, but let me just say, when you talk about the repeat OSHA violations, I think it is important to note that the company has violated more than once. So the change here, to my understanding, was different plants. It is not as if we are, I understand some of what the Solicitor is saying and I think it is important to note, as much as I understand what you are saying, Mr. Vice President, and appreciate and respect it. We are still talking about violations and by the same token, the fact that the way it is being enforced, I mean it doesn't really change the substance. If you break the law, you break the law. It is just they reduce the number of times you can break the law---- Mr. Baroody. Yes, sir, but---- Mr. Ford [continuing]. They are now looking at a multi- plant. And just because you are at another plant, because you are in the plant in Memphis versus Nashville, there is still a violation. And as much as I understand what you are saying, I do think it is important for the committee to note that because I think we get a little confused at times. Mr. Baroody. If I may, just one point. Mr. Ford. Yes, sir. Mr. Baroody. It is more than a semantic change or a compliance change. It has everything to do with the level of fines that can be imposed for ``repeat violations.'' Mr. Ford. But they are, I think that perhaps the adjective used to describe it, it is a repeat violation that we are talking about. Thank you, Mr. Chairman. Mr. McIntosh. Let me interject real quickly, because I think this is an important discussion. The intent of the repeat violation provision is to have a very, very serious punishment if somebody is operating a plant cited for something and then fails to change it as they go forward. They are in my book a bad actor and we ought to come down on them like a ton of bricks. And I think that is what the intent of that rule is. What, as I understand it, Mr. Baroody is saying is if somebody operates plants in different parts of the country, that second plant is not a bad actor, they just haven't had somebody come in and tell them this is the way you should be doing it. Mr. Ford. But they all are part of the same company. I would imagine if, just like your congressional Office in Washington and mine back in Memphis, you may have multiple ones. If there is a mistake made not taking messages and you were in the District Office, I would imagine that, I mean there are uniform policies that people ought to take messages for you in both of your offices. Mr. McIntosh. Right, but keep in mind, and I have been in a lot of these companies in my District where they are run essentially autonomously in one place, and it may be part of a large conglomerate, and run autonomously in another one. So we have got to be careful what we do in trying to do it. Ultimately, I think Mr. Baroody's point is you could come out either way, but do it in a way that you have notice-and-comment and everybody can---- Mr. Ford. In that I was just making a point about repeat violations. But I appreciate that. Mr. Baroody. If I may, the point in my prepared testimony was almost exactly what the chairman suggests. Honest people could differ as to which of the two definitions and policies, based on the definition, were preferable. The issue, as I framed it, and believe is the issue before the committee, is how an agency of the government of the United States can go from one policy to another without telling anybody. Without going through notice-and-comment rulemaking. Mr. Ford. Right. Can I, my only point with that is they are still part of the same company. And I don't allow people in my Washington office that use profanity with constituents and allow them in my District office too. I mean there is pretty much a uniform policy. And as much as I understand what you are saying, I mean without a doubt I understand that the way the economy and the way companies are formed today and certainly with this Internet boom, I mean you can, you can have companies, obviously plants all across the Nation and really sit in one little cubby hole and control a company with the access of a computer and technology. But my only point is that it should be a uniform policy. And to the extent that we can ensure that the Department of Labor understands that and appreciates that and passes rules that enforce it consistently, I think that is fair. The substance of a rule being changed, Mr. Baroody, I would totally agree, but I am a little puzzled when we talk about the enforcement change because it is still, I mean what is wrong in one plant is wrong in another. And I would hope that the plant would say, gosh, we have gotten away with it once here, we have got six more because we have six additional plants. And I wouldn't dare accuse the business community of doing that. But one could walk away, after listening to the comments of some of those, and perhaps that was not the intent of what you are saying. But one could walk away construing that. And I am certain that the chairman, or Mr. Ryan or even any of the witnesses or any of your members would agree with that. But you can walk away from that with construction. Mr. Baroody. Well, if I may, Mr. Chairman. It may be that if we had the opportunity for extended conversation about the one policy or the other, we would agree. Clearly consistency is important, I agree with you, Mr. Ford. All we are saying is that in addition, continuity is important, I think. Consistency 1 day to the next is also important. But all we are really saying here is that such compliance policies should be discussed, and they should be discussed not just within the walls of the Labor Department, but among Labor Department officials and the public at large and the regulated community. And in this case, this change, which had great import, was never discussed. Mr. McIntosh. Let me, and then I am going to recognize Mr. Ryan again since he requested it. Let me ask you, and you can be very brief on this, Mr. Solano, if you choose. The merits aside on that particular policy, why wouldn't or why didn't the Department decide to use a notice-and-comment process to make that shift? Mr. Solano. Let me be very precise because Mr. Baroody has indicated that notice-and-comment, because it was a substantive rule, applied. And our position is, is that it did not. The underlying compliance with the act was the same before and after the change from just one industry in 1992, to the larger group. So, as far as we are expected to comply with the law, the notion of how many chances they might, whether on one side or larger, be able to not have to face the prospect of enhanced penalty is different than rules requiring notice-and-comment. Mr. McIntosh. But, why wouldn't you want to use that anyway? Mr. Solano. Well, what I am indicating is, with all the choices for enforcement, for every manner with which we choose to enforce the regulations, the notion that before we enforce we must get notice-and-comment approval from the regulated community is not appropriate. The question becomes at what point in time do you do it and do you not. We would consider, and we do in some instances, provide notice-and-comment, not because we are required to, but because we want to obtain the opinions when it is helpful. We are doing that on the voluntary protection program. OSHA is doing that, as an example. There can't be an ironclad rule for every circumstance. Mr. McIntosh. I was just wondering if you had a good reason for it and I haven't heard one, to be honest with you. If I were sitting in your chair, I would say let us do this. That way we let everybody know the fines are going to increase effectively for repeat offenses. Ms. Dugan. Mr. Chairman, may I---- Mr. McIntosh. And you have your intended effect of making people be more careful. Mr. Solano. Again, and I am going to be very clear. The change happened prior to this administration. I am being asked to defend the choice of notice-and-comment or notice, which is another procedure, in the past. There are times that we have, in this current administration, provided notice-and-comment, not because it is rulemaking. And I have tried to give you examples. The VPP Program, our self-audit program in OSHA, where in fact if an employer self-audits how we will treat the results---- Mr. McIntosh. By the way, feel free to criticize your predecessors. I mean the key is to try to get to good government and so I appreciate that. Ms. Dugan, you had a comment. Ms. Dugan. Yes, I would like to add a comment, to bring it back to the discussion that I am interested in on FMLA. With the opinion letters I am very concerned that all employers do not have access to those opinion letters, yet we are expected to comply with changing definitions. And I would really like for the FMLA to correct some of the problems that we are experiencing at this point in time before we consider additional changes to FMLA. One of those being going back to the original intent of the law related to the serious health condition and the definition of that. And I thank you for your time. Mr. McIntosh. Thank you. I appreciate that. Mr. Ryan. Mr. Ryan. Mr. Baroody, I wanted to ask you a question about part of your testimony. On Page 5 you call for strengthening the Congressional Review Act and the need for Congress to non- delegate its own lawmaking authority to the agencies leaving less room for agency discretion and abuse of discretion. In what ways do you think we should strengthen the Congressional Review Act, and specifically in my home State of Wisconsin we had a procedure in our State government where we have a bi- cameral committee which reviews final rules and regulations before they actually become published and become effective to make sure that they somewhat jive with the original intent of the legislation. There is a bill here before us today in Congress, I think it is called the Congressional Responsibility Act, co-sponsored by J.D. Hayworth, a colleague of ours. Have you looked at that piece of legislation specifically and what other ideas did you have for strengthening the Congressional Review Act? Mr. Baroody. Well I haven't looked at it in detail, no sir. Let me say that the process that the Congressional Review Act represents and codified in the statute I think has had the effect of telling the agencies that they either have to do less, do it differently or do it by other means, which may be one of the reasons why we have the concern that is before this committee today. If one has to bring rules before Congress before they can take effect, but one can achieve by other means what you might in an earlier day have sought to achieve through a rulemaking, it may be that the Congressional Review Act has opened that backdoor, if you will. So provisions to strengthen it by recognizing that and trying to, I think, strengthen what is already in the original act, as I understand it, the broader, more expansive definition of rulemaking and maybe to get a clearer administration-wide policy statement from OMB to that effect that makes it clear that the agencies really need to bring everything before Congress unless there is a compelling reason that they can convince themselves they do not have to do that. That would strengthen the act and address the sort of defensive response, if I can use that descriptive term, of the agencies. Well, perhaps that is an answer to your question. I hope so. Mr. Ryan. Thank you. Mr. Ford. Would the gentleman yield for just 1 second. Mr. Ryan. Sure. Mr. Ford. Just for Mr. Baroody, if you don't mind. Mr. Baroody, I was just a little bit intrigued just sort of thinking about our last conversation regarding the changing of enforcement. You served as, under President Reagan, God bless him right now and belated happy birthday to him. Mr. Baroody. Yes. Mr. Ford. You served under President Reagan for most of his second term? Mr. Baroody. That is correct. Mr. Ford. While you were Assistant Secretary for Policy, and forgive me for not knowing all of the rest of the titles, did you not change the policy, did it not, I quote, egregious policy which changed the whole policy---- Mr. Baroody. Yes, sir, we did. Mr. Ford [continuing]. By allowing the Department to assess greater penalties when a number of employees were endangered by the same underlying violation. Mr. Baroody. We did. Mr. Ford. I didn't go to George Mason or Cornell. Explain to me how that is different from what we were just criticizing---- Mr. Baroody. In all candor, an awful lot of my members would not, for the reasons I have already cited, see much of a difference. I don't suggest to you that the second term of the Reagan administration, just because I was there, was a golden age. Mr. Ford. Neither am I, but I am just curious. Mr. Baroody. But I would suggest to you that there was much less of the kind of guidance, reinterpretation activity that we saw in the 1990's, in the latter 1980's, at the Labor Department. I don't suggest it never occurred, and for example, on guidance we worked collaboratively with HHS when we didn't think it would be possible to make rules governing blood borne pathogens to put out guidance governing blood borne pathogens because the problem was real and becoming more dramatically a concern by day. So I don't suggest we never acted this way. We did, from time-to-time, I suppose. But I do think that we, if you will indulge me, I didn't want to go without acknowledging that the Solicitor correctly states my view. Some of the finest public servants I have ever known I encountered at the Department of Labor. And I feel very strongly about that. I learned from them. And some of them were in Mr. Solano's department, the Solicitor's Office. I learned from them, but not only from them, that one category of question that was always asked was what was legally permissible. What we sought to do as the management team that ran the Labor Department was introduce into the debate other questions beyond mere legal permissibility. It wasn't just what could we on the advice of lawyers, get away with doing or justify. It was what should we do particularly if what we were serious about was advancing health and safety as opposed to something else. So thank you for giving me that opportunity to agree with Mr. Solano's characterization of the public servants at the Labor Department. It is a blessed Department in that respect. Mr. Ford. Mr. Chairman, I didn't mean to be critical at all to Mr. Assistant Secretary, I was just curious as to the difference and you helped to explain it. I understand your goal, as I am sure all of our goals here is to try to get to a point where we don't have, the public, particularly the business community, is not faced with sort of a changing set of objectives in terms of health and safety for the workers. Mr. Baroody. And I understand that to be the goal of this subcommittee. I really appreciate the opportunity to seek to further you in pursuing that goal. Mr. McIntosh. Thank you. Let me turn now and recognize Mr. Kucinich for a round of questions. Mr. Kucinich. Thank you, Mr. Chairman. I was looking over a booklet from the U.S. Department of Labor Occupational Safety and Health Administration on the issue of sling safety. Slings being used to help move materials along. There is a disclaimer on the inside of this booklet right here and I would like to quote from this disclaimer. It says, This information booklet is intended to provide a generic, non-exhaustive overview of a particular standards-related topic. This publication does not itself alter or determine compliance responsibilities which are set forth in OSHA standards themselves and in the Occupational Safety and Health Act. Moreover, because interpretations and enforcement policy may change over time, for additional guidance on OSHA compliance requirements, the reader should consult current administrative interpretations and decisions by the Occupational Safety and Health Review Commission and the courts. Is there anyone here that takes issue with this kind of a disclaimer? OK, now, let me continue. Let us suppose that this disclaimer simply said---- Mr. McIntosh. By the way, while the gentleman is finding that, let me note that would have been in the 8 percent that the staff counted as having a disclaimer. And I think you have found a very good example of that. Mr. Kucinich. But, well, and I appreciate the Chair's recognition that this is a very good example. And let us contrast this particular disclaimer here with a disclaimer which would say, simply, ``no general applicability of future effect,'' or that ``the document has no general applicability or future effect and is not binding on the public.'' I think that for those who are familiar with the issue of sling safety you want to know a little more about how to take the context of this. And too, my concern, Mr. Chairman, is that we don't lessen the impact of this kind of a bulletin for the public by putting a disclaimer on it that might, in effect, lead people to believe, well, not give them the full understanding of what this bulletin represents, on one hand. And on the other hand, perhaps give them to believe that the information in here is in fact not, that there is no legally binding information there. I would like to ask Mr. Solano some questions about this. When someone calls the Department of Labor for advice, for instance when they call to find out if the minimum wage applies to one of its employees, do you believe that the Department of Labor ought to clarify legal advice by saying that it is not legally binding or would this create confusion? Mr. Solano. In that example, I think it might be confusing to the individual because they would want to ask for specific guidance and they would believe that they could, in some ways, take the information as helpful to them. Saying that we believe---- Mr. Kucinich. That is just our next round of activity. I would like to go on and ask another question. When the Federal policy is stated in a bumper sticker, for example, I think it is the National Transportation and Safety Board or the Highway Safety Board has a policy which encourages people to buckle up. Would it create confusion if a little line was at the bottom of that which said it wasn't legally binding? Mr. Solano. I think that goes to the question of should one size fit all and is there an appropriate circumstance for---- Mr. Kucinich. Well, that is the point, should one size fit all? Mr. McIntosh. Our campaign bumper sticker that has a little small print, paid for and authorized by. Mr. Kucinich. I don't know about that, but I am admiring the fact that one-third of those documents over there are press releases. We could probably learn something from the Department of Labor. Mr. McIntosh. By the way, let me clarify that my staff tells me they don't think it is a third, as they were reviewing it. But you are asking a good question. Let me clarify also for the record, the statute that we are trying to work on in this is not intended to say one size fits all or you have to have a particular language that you use in the disclosure. And I think this is a good idea and my view is more is better. Mr. Kucinich. And I appreciate the Chair saying that and I think it is important that it comes out of this hearing that we are not saying one size fits all and that there are some cases where a simple disclaimer may suffice and others where it clearly will not. And in some cases, perhaps, a disclaimer at all is subject to question. I would like to, again, ask Mr. Solano if a small business person asks for compliance assistance and in response the Department of Labor quoted applicable statutory language and then added a stamp, in effect, stating that the document has no general applicability or future effect, it is not binding on the public. Is it possible that a small business person could be under the misimpression that the underlying statutory language quoted in the letter is not legally binding? Mr. Solano. I would be concerned that the person might assume, when we restate the standard or when we say exactly what the language of the act or the rule or standard says and we have that disclaimer, they might believe that they were free not to comply. Mr. Kucinich. I have one final question and that is, as SBREFA specifically states that the guidance it requires does not create new legal obligations, but it may be used to determine the reasonableness of a fine or a penalty. If a guidance letter has a stamp indicating that it has, you know, the proposed incantation, is it possible that a person reading the letter could be under the misimpression that it could not be used in court for any reason? Mr. Solano. It is indeed possible that that could be an interpretation and that would be unfortunate. Mr. Kucinich. I raise these questions, Mr. Chairman, in the context of my deep respect for the Chair and gratitude that we brought these fine witnesses here. And in concern that as we struggle to deal with this in the context of the Congressional Review Act and the Administrative Procedure Act, that we move forward in a bi-partisan way to try to craft some language which may be of assistance to our friends in the private sector, but not in any way serve to undermine the spirit of the laws which we have taken part in passing. Mr. McIntosh. I appreciate that. Let me say, in general, the intent here would be to, where appropriate, and I would like to see it in more places than not, tell the public what the agency's position is on these documents and, they are telling us they don't have legal effect, find a way of disclosing that to the public as they receive those documents. Let me now re-yield and turn to Mr. Barr who has joined us. And I hope I don't need to use all of that. But in terms of the guidance documents on the work at home, the one that caused all the controversy was a November 15th guidance document that has been withdrawn by Secretary Herman on January 5th. My question goes to Mr. Solano. The process within the agency when things like that are withdrawn, and I am hoping the staff will put up there the document. In this case it was removed from the Website, but there are three other at-home guidance documents that our staff found. One on October 7th, 1993, one of June 19th, 1995, and one on February 21st, 1997. The question I have got is have those all been removed from the Website? I understand some of them are still on there with the words, under review, or some notice about being under review on the Website. And what is the policy of the agency as they withdraw these to make sure that there isn't this lingering misunderstanding by the employees or the public? Mr. Solano. In response to your question as Assistant Secretary Jeffress indicated, the original letter that was the subject of controversy, the 1999 letter, overstated policy, that was withdrawn. He also indicated to the extent that there were other advisory opinions that related to the topic, they would be the subject of review. The first two that you identified have a notation on them consistent with his testimony that until the directive comes out that they are under review. The February 1997 document that you reference, and I had a copy of it in front of me just briefly, I got it just as I came into the hearing. It appears to deal with home construction, not the topic of home work places. And to the extent that that is the case, then it would not necessarily be covered. But again, Assistant Secretary Jeffress said---- Mr. McIntosh. So that is still in effect? Mr. Solano. Well, it deals with, as I understand it, home construction, not work-at-home, either home office or a manufacturing in a home. It dealt with the unrelated topic of construction of homes. But again, Assistant Secretary Jeffress said when the directive comes out we will review all advisory opinions to see that they comply and are consistent with the statement of the enforcement policy. Those that do not will be either rescinded or modified. Those that still are correct interpretations will be continued. So that review process will be undertaken. I take seriously the comment, we will look at it. As I said, I just got notification of this letter as I sat down in this chair. We will look at it and, if it is appropriate to put an advisory statement on it, we will do so. Mr. McIntosh. Good. And I would encourage you to work with the Secretary to come up with a procedure in which you deal with all of these to make the public aware. And some of them will be easy, as you pointed out, if they are indeed press releases. But others are more complex and I think it would be helpful for the agency moving forward to quickly put that into place. Mr. Solano. Mr. Chairman, I appreciate the comments. I will directly take your comments directly to the Secretary and the senior officials of the Department. Thank you. Mr. McIntosh. Great. Thank you very much. We do have a vote going on and, Mr. Ford, did you have any other question that you wanted for the panelists? I am wanting to close this by saying thank you to you all being here. We do have some other questions. I have several I didn't get to today, but I think we have covered this in great detail. And frankly, I think it is an area where Congress needs to have greater oversight to make sure the agencies are narrow in their use of these guidance documents so that they are truly helping the customer and not a backdoor way of regulating. I appreciate everybody, especially those who traveled from afar to come here. You helped us very much illuminate this issue and its effect on people outside of the beltway. And so I appreciate that greatly. With that, I will now close the hearing and we shall be in adjournment. Thank you. [Whereupon, at 3:34 p.m., the subcommittee was adjourned.] [The prepared statement of Hon. 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