Union Calendar No. 586

106th Congress, 2d Session – – – – – – – – – – House Report 106–1009

NON-BINDING LEGAL EFFECT OF AGENCY

GUIDANCE DOCUMENTS

SEVENTH REPORT

BY THE

COMMITTEE ON GOVERNMENT REFORM

together with

MINORITY AND ADDITIONAL VIEWS

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

OCTOBER 26, 2000.—Committed to the Committee of the Whole House

on the State of the Union and ordered to be printed

NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS

NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS

NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS

N-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS

ING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS

N-BINDING LEGAL EFFECT OF AGENCY

GUIDANCE DOCUMENTS

U.S. GOVERNMENT PRINTING OFFICE

67–174 WASHINGTON : 2000

Union Calendar No. 586

106th Congress, 2d Session – – – – – – – – – – House Report 106–1009

NON-BINDING LEGAL EFFECT OF AGENCY

GUIDANCE DOCUMENTS

SEVENTH REPORT

BY THE

COMMITTEE ON GOVERNMENT REFORM

together with

MINORITY AND ADDITIONAL VIEWS

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

OCTOBER 26, 2000.—Committed to the Committee of the Whole House

on the State of the Union and ordered to be printed

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS III, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

DAVID A. KASS, Deputy Counsel and Parliamentarian

ROBERT A. BRIGGS, Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND

REGULATORY AFFAIRS

DAVID M. MCINTOSH, Indiana, Chairman

PAUL RYAN, Wisconsin

BOB BARR, Georgia

LEE TERRY, Nebraska

GREG WALDEN, Oregon

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

DENNIS J. KUCINICH, Ohio

TOM LANTOS, California

PAUL E. KANJORSKI, Pennsylvania

BERNARD SANDERS, Vermont

HAROLD E. FORD, JR., Tennessee

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

MARLO LEWIS, JR., Staff Director

BARBARA F. KAHLOW, Deputy Staff Director

GABRIEL NEIL RUBIN, Clerk

ELIZABETH MUNDINGER, Minority Counsel

LETTER OF TRANSMITTAL

HOUSE OF REPRESENTATIVES,

Washington, DC, October 26, 2000.

Hon. J. DENNIS HASTERT, Speaker of the House of Representatives,

Washington, DC.

DEAR MR. SPEAKER: By direction of the Committee on Government Reform, I submit herewith the committee’s seventh report to

the 106th Congress. The committee’s report is based on a study

conducted by its Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs.

DAN BURTON, Chairman.

(III)

C O N T E N T S

Page

I. Summary of oversight findings ..................................................................... 1

II. Report on the committee’s oversight ............................................................ 2

III. Conclusions ..................................................................................................... 8

APPENDIXES

Appendix A.—EPA’s March 1999 and October 1999 letters to Chairman

McIntosh about its guidance ............................................................................... 11

Appendix B.—Chairman McIntosh’s April to October 1999 letters to OMB

about its CRA guidance to the agencies ............................................................. 18

Appendix C.—Chairman McIntosh’s October 1999 letters to DOL, DOT and

EPA about their guidance ................................................................................... 27

Appendix D.—DOL’s OSHA and EPA’s guidance compendiums ......................... 37

Appendix E.—Baroody’s February 2000 testimony on behalf of NAM ................ 467

Appendix F.—Chairman McIntosh’s May 2000 letters to eight agencies about

their guidance ....................................................................................................... 489

Appendix G.—Ten agencies’ July to September 2000 clarification letters to

Chairman McIntosh about the non-binding legal effect of their guidance ...... 506

VIEWS

Minority views of Hon. Henry A. Waxman, Hon. Dennis J. Kucinich, Hon.

Tom Lantos, Hon. Major R. Owens, Hon. Edolphus Towns, Hon. Paul E.

Kanjorski, Hon. Carolyn B. Maloney, Hon. Eleanor Holmes Norton, Hon.

Chaka Fattah, Hon. Elijah E. Cummings, Hon. Rod R. Blagojevich, Hon.

Danny K. Davis, Hon. Harold E. Ford, Jr., and Hon. Janice D. Schakowsky 539

Additional views of Hon. David M. McIntosh ........................................................ 618

(V)

ABBREVIATIONS

CRA Congressional Review Act

OMB Office of Management and Budget

APA Administrative Procedure Act

EPA Environmental Protection Agency

GAO General Accounting Office

0PM Particulate Matter

NAAQS National Ambient Air Quality Standards

DOL Department of Labor

DOT Department of Transportation

OSHA Occupational Safety and Heath Administration

NHTSA National Highway Traffic Safety Administration

NAM National Association of Manufacturers

(VII)

Union Calendar No. 586

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–1009

NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE

DOCUMENTS

OCTOBER 26, 2000.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. BURTON, from the Committee on Government Reform

submitted the following

SEVENTH REPORT

On October 5, 2000, the Committee on Government Reform approved and adopted a report entitled, ‘‘Non-Binding Legal Effect of

Agency Guidance Documents.’’ The chairman was directed to transmit a copy to the Speaker of the House.

I. SUMMARY OF OVERSIGHT FINDINGS

Various laws enacted by Congress ensure legal protections for

the public so that agencies may not issue documents that bind the

public without the public’s opportunity to participate in the policymaking process. These good government provisions are a key to our

democratic process. They protect citizens from arbitrary decisions

and enable citizens to effectively participate in the process. If agencies avoid these legal protections or issue documents that do not

clearly state if they have binding legal effect or not, the public may

be confused or unfairly burdened—sometimes at great cost.

Agencies sometimes claim they are just trying to be ‘‘customer

friendly’’ and serve the regulated public when they issue advisory

opinions and guidance documents. This may, in fact, be true in

many cases. However, when the legal effect of such documents is

unclear, regulated parties may well perceive this ‘‘help’’ as coercive—an offer they dare not refuse. Regrettably, the committee’s investigation found that some guidance documents were intended to

bypass the rulemaking process and expanded an agency’s power beyond the point at which Congress said it should stop. Such ‘‘backdoor’’ regulation is an abuse of power and a corruption of our Constitutional system.

2

1Statement of Representative McIntosh, Mar. 28, 1996, Congressional Record at H3005.

In 1996, Congress enacted the Congressional Review Act [CRA]

to oversee agency legislative rules and agency guidance documents

with any general applicability and future effect. Despite repeated

requests by the committee and specific direction by Congress in two

appropriation cycles, the Office of Management and Budget [OMB]

failed to provide sufficient guidance to Federal agencies for implementation of the CRA. The result has been some agency confusion

over the legal effect of agency guidance documents and incomplete

agency compliance with the CRA.

As a result of the committee’s 1999–2000 investigation, the major

regulatory agencies have each submitted, between July and September 2000, letters from their chief legal officials to the committee

stating that their agency guidance documents have no binding legal

effect on the public and that they are taking steps to clearly communicate this fact to the public. These officials state that these

guidance documents are ‘‘not legally binding’’ on the public and

conclude by saying, ‘‘We recognize the importance of using guidance properly, and we have taken—and will continue to take—appropriate steps to address the concerns that guidance not be used

as a substitute for rulemaking and to make the legal effect of our

documents clear to the public.’’

Nonetheless, as Law Professor Robert Anthony stated in a 1998

article entitled, ‘‘Unlegislated Compulsion: How Federal Agency

Guidelines Threaten your Liberty,’’ ‘‘Even though those documents

do not have legally binding effect, they have practical binding effect

whenever the agencies use them to establish criteria that affect the

rights and obligations of private persons’’ (Cato Policy Analysis No.

312, August 11, 1998, p. 1).

II. REPORT ON THE COMMITTEE’S OVERSIGHT

On March 29, 1996, Congress enacted the CRA (Title II, Sec. 251

of Public Law 104–121, codified at 5 U.S.C. ch. 8). This law requires that, before a Federal agency ‘‘rule’’ can take effect, the

agency shall submit the rule to Congress for congressional review.

The CRA defined ‘‘rule’’ broadly, as the term is defined under the

Administrative Procedure Act [APA], to include not only regulatory

actions subject to statutory notice-and-comment procedures but

also other agency actions that contain statements of ‘‘general . . .

applicability and future effect designed to implement, interpret, or

prescribe law or policy or describing the organization, procedure, or

practice requirements of an agency’’ (5 U.S.C. §§ 804(3) and 551(4)).

Thus, the CRA definition is not limited to ‘‘legislative’’ rules subject to notice-and-comment provisions of the APA’s section 553. On

the contrary, the CRA definition includes any interpretative rule or

other agency statement used to apply existing law or implement

policy. The legislative history confirms the plain text of the definition: ‘‘Interpretive rules, general statements of policy, and analogous agency policy guidelines are covered without qualification because they meet the definition of a ‘rule’ borrowed from section 551

of title 5, and are not excluded from the definition of a rule.’’ 1

Therefore, under the CRA’s definition of a ‘‘rule,’’ agency guidance

3

with any general applicability and future effect is subject to congressional review under the CRA.

Since March 1996, the Government Reform Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs continually reviewed agency compliance with the CRA and

found that agencies failed to report many guidance documents that

fall within the CRA’s definition of a ‘‘rule.’’ Under the CRA, the

Federal agency issuing a rule must file a report to Congress

‘‘[b]efore a rule can take effect’’ (5 U.S.C. § 801(a)(1)(A)). In other

words, unless and until an agency properly reports a rule, the rule

has no legal force or effect. Any action the agency takes to promulgate, implement, or enforce an unreported rule is an ultra vires act

and, therefore, legally null and void.

The subcommittee continues to believe that agency noncompliance is largely due to insufficient implementation guidance from

OMB. Despite OMB’s obligation under President Clinton’s Executive Order No. 12866 to provide the agencies with guidance on compliance with regulatory laws, OMB has done very little to ensure

that the agencies are complying with the CRA. The result has been

some agency confusion about the CRA and incomplete agency compliance with the CRA.

For example, the subcommittee’s review of the Environmental

Protection Agency’s [EPA’s] compliance with the CRA revealed

that, in February 1998, EPA issued ‘‘Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits’’

(its ‘‘Environmental Justice’’ guidance). This guidance established a

framework for handling complaints that are filed with EPA’s Office

of Civil Rights under Title VI of the Civil Rights Act of 1964, as

amended. Such complaints allege disparate environmental impacts

on minority populations resulting from the issuance of industrial

site permits by State and local governments that receive EPA funding. In light of the legal and policy effects of this guidance, the subcommittee asked the General Accounting Office [GAO] to determine

if this guidance was a rule within the meaning of the CRA. On

September 1, 1998, GAO determined that this guidance was a rule

under the CRA and indicated that EPA had not yet submitted this

guidance for congressional review under the CRA.

On December 8, 1998, the subcommittee asked EPA whether it

intended to submit its ‘‘Proposed Implementation Guidance for the

Revised Ozone and Particulate Matter [PM] National Ambient Air

Quality Standards [NAAQS] and Regional Haze Program,’’ and

many other related guidance documents, to Congress under the

CRA. In a letter dated March 2, 1999, EPA replied that ‘‘EPA does

not intend its policy statements and guidance documents to be

binding and they have no binding legal effect on the public.’’ EPA

further stated that ‘‘if such documents do contain binding legal requirements, EPA considers them within the scope of the CRA and

submits them to Congress.’’

On September 20, 1999, the subcommittee asked EPA why it had

not submitted its ‘‘Final Guidance on Environmentally Preferable

Purchasing for Federal Agencies’’ for congressional review under

the CRA. On October 6th, EPA replied that its guidance has no

legal effect and is not binding; instead, it ‘‘merely suggests’’ and

‘‘encourages agencies’’ to follow EPA’s guidance. EPA’s March 1999

4

and October 1999 letters to Subcommittee Chairman David

McIntosh are included in appendix A.

To encourage OMB to carry out its responsibilities under the

CRA, the subcommittee proposed to increase the 1998 Treasury

and General Government Appropriations Act budget for OMB’s Office of Information and Regulatory Affairs by $200,000—specifically

to help with CRA implementation. Congress accepted this proposal.

Nonetheless, $200,000 and 12 months later, OMB showed no signs

of improvement. Despite continued requests from the subcommittee, OMB failed to issue complete, government-wide CRA

implementation guidance to the agencies. For example, OMB failed

to inform the agencies that agency guidance documents with general applicability and future effect are ‘‘rules’’ under the CRA and

must be submitted for congressional review. Without full compliance, the public is robbed of the opportunity to have Congress review costly and burdensome requirements, some of which may exceed congressional authorization or intent.

As a result of the subcommittee’s oversight and analysis, on October 21, 1998, as part of the 1999 Treasury and General Government Appropriations Act, Congress enacted a requirement for OMB

to provide additional guidance to the agencies on specific provisions

of the CRA by March 31, 1999, to ensure full implementation of the

CRA (under OMB Salaries and Expenses in Public Law 105–277).

The accompanying Conference Report stated, ‘‘The conferees have

been assured that OMB will strictly adhere to the statutory requirements included in the bill on Paperwork Reduction and the

Congressional Review Act. The conferees will monitor OMB’s compliance with these requirements carefully’’ (House Report 105–825).

The subcommittee reached an understanding with OMB, which

was memorialized in a September 23, 1998 letter from the subcommittee to OMB and a September 24th return letter from OMB

to the subcommittee. Unfortunately, OMB did not share its draft

guidance with the subcommittee until Friday, March 25, 1999. On

Monday, March 29th, the subcommittee met with OMB and expressed its view that the draft was not responsive to the subcommittee’s expectations, the previous agreements between the

subcommittee and OMB, or congressional intent. In a nutshell,

OMB was required to provide expanded and complete guidance; instead, OMB’s draft barely expanded on its previous guidance and

did not address the key issues which needed clarification and expansion.

Nonetheless, OMB issued its revised guidance the next day

(March 30th), making only four minor changes in the draft based

on the subcommittee’s comments. On April 1st, the subcommittee

directed OMB to issue the previously agreed-upon expanded and

complete guidance by April 30th, including an elaboration of the

definition of ‘‘rule,’’ a discussion of the ‘‘good cause’’ exemption for

a change in the effective date of a rule, and a discussion of the

legal standing, effectiveness, and potential for judicial review of

rules not submitted for congressional review under the CRA.

Throughout 1999, OMB continued to resist issuing full CRA

guidance to the agencies, necessitating the subcommittee’s additional letters to OMB, dated June 2nd, August 2nd, and October

12th. Subcommittee Chairman McIntosh’s four 1999 letters to

5

OMB about its CRA guidance to the agencies are included in appendix B.

After these repeated and unsuccessful requests that OMB provide additional CRA guidance to the agencies, on October 8, 1999,

the subcommittee began an investigation of the agencies’ use of

non-codified guidance documents. The subcommittee sought to

verify that each document with any general applicability and future effect was submitted to Congress under the CRA and that

each document included an explanation to ensure the public’s understanding of the document’s legal effect.

The subcommittee requested that the Department of Labor

[DOL], the Department of Transportation [DOT] and EPA—three of

the agencies imposing the most regulatory requirements on the

public—complete a compendium of all their non-codified documents

in tabular format and to provide a copy of each non-codified document, including a highlighted and tabbed reference to the specific

explanation in the document itself regarding its legal effect. These

letters began by saying, ‘‘This letter begins our investigation of

your agency’s use of non-codified documents (such as guidance,

guidelines, manuals, and handbooks) and your agency’s explanation

within each of them to ensure the public’s understanding of their

legal effect.’’ The compendium required the agencies to reveal

which documents had been submitted for congressional review

under the CRA and which documents were legally binding. Chairman McIntosh’s October 1999 letters to DOL, DOT and EPA are

included in appendix C.

In a November 12th meeting, DOL and DOT asked the subcommittee to narrow the request. In response, the subcommittee

narrowed the initial request to only those documents issued since

the March 1996 enactment of CRA by DOL’s Occupational Health

and Safety Administration [OSHA] and DOT’s National Highway

Traffic Safety Administration [NHTSA], respectively. On December

31, 1999, DOT submitted its NHTSA compendium and 1,225 guidance documents. On January 3, 2000, DOL submitted its OSHA

compendium and guidance documents. On February 7, 2000, EPA

submitted its compendium and 2,653 guidance documents.

However, after OSHA Assistant Secretary Charles Jeffress, in

testimony before the House Education and the Workforce Committee’s Subcommittee on Oversight and Investigations on January 28,

2000, cited an even higher number of guidance documents than

DOL claimed in its earlier response to the Government Reform

subcommittee’s request, the subcommittee determined that the

number of OSHA documents was not 1,641, as DOL had claimed,

but actually 3,374. On August 23rd, DOL submitted its revised

compendium. DOL’s OSHA and EPA’s compendiums are included

in appendix D.

On January 24, 2000, Subcommittee Chairman McIntosh introduced H.R. 3521. Section 4 of this bill was intended to ensure the

public’s understanding of the effect of agency guidance documents.

It required agencies to include a notice on the first page of each

agency guidance document to make clear that, if the document has

no general applicability or future effect, it is not legally binding on

the public. On January 31st, Chairman McIntosh asked for the

views of DOL, DOT and EPA on Section 4 of this bill and asked

for them to be submitted before the subcommittee’s upcoming FebVerDate 11-MAY-2000 23:15 Oct 26, 2000 Jkt 067174 PO 00000 Frm 00013 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1009.XXX pfrm09 PsN: HR1009
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ruary 15th hearing. Unfortunately, none of the three agencies replied before the hearing.

On February 15, 2000, the subcommittee held a hearing entitled,

‘‘Is The Department of Labor Regulating the Public Through the

Backdoor?’’ The purpose of the hearing was to examine DOL’s use

of nonregulatory guidance documents and to determine whether

DOL was regulating the public through the backdoor—by imposing

binding legal requirements in nonregulatory guidance documents.

The hearing allowed the Department’s chief legal officer, Solicitor

Henry Solano, to discuss DOL’s use of nonregulatory guidance documents instead of public rulemaking and the ways in which DOL

disclosed or failed to disclose whether or not each such guidance

document is legally binding on the public.

Besides Mr. Solano, witnesses included: Michael E. Baroody, senior vice president, Policy, Communications and Public Affairs, National Association of Manufacturers [NAM] and former Assistant

Secretary of Policy, DOL; Robert A. Anthony, George Mason University Foundation professor of law and former chairman, Administrative Conference of the United States; Jud Motsenbocker, owner,

Jud Construction Co., Muncie, IN; Dixie Dugan, human resource

coordinator, Cardinal Service Management, Inc., New Castle, IN;

Dave Marren, vice president and division manager, the F.A. Barlett

Tree Expert Co., Roanoke, VA; and Adele Abrams, attorney with

Patton, Boggs in Washington, DC.

The hearing revealed that: (a) DOL and DOT had admitted that

none of their listed guidance documents were legally binding on the

public; (b) DOL and DOT had admitted that none of their listed

guidance documents were submitted to Congress for review under

the CRA; (c) the vast majority of DOL’s and DOT’s submitted guidance documents did not make it clear to the public that the documents are not legally binding on the public; and (d) only 8 percent

of DOL’s 1999 OSHA guidance documents included any explanation

of legal effect and only 5 percent put this explanation at the beginning of the document. In contrast, DOT included an explanation of

legal effect in about 40 percent of its NHTSA guidance documents.

The hearing also examined several areas of DOL guidance. Mr.

Baroody opened his testimony by saying, ‘‘To put the matter simply, your subject is important. It is important economically and

commercially, socially and politically, legally and constitutionally.’’

He provided many examples of agency guidance documents which

make ‘‘the point that the problem of non-regulatory guidance, ‘nonrule rules,’ back-door rulemaking as it is variously described, is not

just a problem at the Occupational Safety and Health Administration, nor is it just a problem at the Department of Labor. It is a

problem widespread in this Administration.’’

He continued, ‘‘This 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,’ through interpretive and opinion letters, through compliance documents and

the like is always inappropriate and at least occasionally illegal.

Equally troubling 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 pretextual—in other words, when

compliance with what I have called the accountability statutes is

7

a ruse.’’ Mr. Baroody’s testimony on behalf of NAM is included in

appendix E.

The hearing, including testimony by Ms. Dugan, examined one

aspect of DOL’s Family and Medical Leave Act [FMLA] guidance.

The hearing revealed that DOL issued a nonregulatory but

policysetting guidance opinion letter which redefined a ‘‘serious

health condition’’ under the 1993 FMLA. DOL’s 1995 opinion letter

said that minor illnesses, such as the common cold, were not a serious health condition. However, in December 1996, DOL retracted

its previous definition and stated that the common cold, the flu,

ear-aches, upset stomachs, et cetera, all are covered by the FMLA

if an employee is incapacitated more than 3 consecutive days and

receives continuing treatment from a health care provider. Ms.

Dugan’s testimony explained that the consequences of this nonregulatory and costly redefinition reverberated throughout the employer world and actually created a problem for needy people. Ms.

Dugan, a human resource coordinator for a private, for-profit corporation whose services include group homes and supported living

apartments, explained, ‘‘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 coworkers.’’

The hearing noted DOL’s backdoor work-at-home guidance. On

January 5, 2000, the subcommittee wrote to DOL about its November 15, 1999, work-at-home policysetting guidance letter, which

was not included in DOL’s 3,374 OSHA documents submitted to

the subcommittee, since it was issued after the subcommittee’s October 8th request letter. The subcommittee sought to determine if

DOL’s 1999 guidance had been submitted to Congress for review

under the CRA and if it was legally binding on the public. Of especial concern was DOL’s expansion, without any express statutory

delegation from Congress, of its jurisdiction into private homes.

Subsequently, DOL withdrew this guidance document; however,

DOL’s 1993, 1995, and 1997 work-at-home guidance documents had

not been withdrawn as of the hearing. However, the 1993 and 1995

documents had an advisory on OSHA’s website that they were

‘‘under review.’’

The hearing, including testimony by Mr. Marren, explored DOL’s

1998 and 1999 guidance documents for arborists. DOL withdrew

both of these guidance documents after threats of lawsuits against

DOL for not following the APA’s statutory procedures for new rulemaking.

One of these guidance documents was removed from OSHA’s

website right before the subcommittee’s hearing.

During the hearing, Subcommittee Ranking Member Dennis

Kucinich stated his desire ‘‘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.’’

As a consequence, after late replies from DOL, DOT and EPA

about Section 4 of H.R. 3521, on May 3rd and May 19th, subVerDate 11-MAY-2000 23:15 Oct 26, 2000 Jkt 067174 PO 00000 Frm 00015 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1009.XXX pfrm09 PsN: HR1009
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committee majority and minority staff met with officials of these

agencies and OMB. After being unable to reach agreement on revised legislative language, on May 19th, Subcommittee Chairman

McIntosh wrote eight additional regulatory agencies for a compendium of their non-codified documents issued since March 1996 and

a copy of the first page of each such document and all other pages

with any specific explanation in the document itself regarding its

legal effect. These agencies included: the Department of Agriculture, the Department of Energy, the Food and Drug Administration in the Department of Health and Human Services, the Fish

and Wildlife Service in the Department of the Interior, the Consumer Product Safety Commission, the Federal Communications

Commission, the Federal Trade Commission, and the Securities

and Exchange Commission.

In addition, DOL and DOT were asked to provide compendiums

and the other information for the rest of their bureaus since they

had previously only provided such information for OSHA and

NHTSA, respectively. Since EPA had provided information on all

of its guidance documents issued since March 1996 and since EPA

had submitted March 1999 and October 1999 letters confirming

that its guidance documents have no binding legal effect on the

public (see appendix A), it was not additionally tasked.

Instead of producing the requested compendiums and other information, DOT proposed and then orchestrated a model letter for

each of the agencies to send the subcommittee to clarify the nonbinding legal effect of their agency guidance documents. The subcommittee agreed and then worked with DOT staff to develop a

mutually acceptable model letter. From July to September 2000,

these eight agencies, along with DOL and DOT, each submitted

their individual clarification letters from their chief legal officials

stating that their agency guidance documents are not legally binding on the public.

The letters state that their guidance documents are ‘‘not legally

binding’’ and conclude by saying, ‘‘We recognize the importance of

using guidance properly, and we have taken—and will continue to

take—appropriate steps to address the concerns that guidance not

be used as a substitute for rulemaking and to make the legal effect

of our documents clear to the public.’’ Additionally, the letters explain that the public can ‘‘rely’’ on agency guidance, especially in

an enforcement action, i.e., the guidance provides a ‘‘safe harbor.’’

In fact, agency guidance is often legally binding on the agency

itself. Chairman McIntosh’s May 2000 letters to the eight agencies

are included in appendix F. The 10 agencies’ July to September

2000 clarification letters about the non-binding legal effect of their

guidance documents are included in appendix G.

III. CONCLUSIONS

The committee finds that, since the March 1996 enactment of the

CRA, OMB failed to provide sufficient guidance to the agencies on

implementation of the CRA. The result has been some agency confusion about the CRA, especially about agency guidance documents

subject to congressional review under the CRA, and incomplete

agency compliance with the CRA. Under the CRA, agency guidance

with any general applicability and future effect is subject to conVerDate 11-MAY-2000 23:15 Oct 26, 2000 Jkt 067174 PO 00000 Frm 00016 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1009.XXX pfrm09 PsN: HR1009
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gressional review. Without the required congressional review, covered agency guidance has no legal force or effect.

The committee also finds that agencies have sometimes improperly used guidance documents as a backdoor way to bypass the

statutory notice-and-comment requirements for agency rulemaking

and establish new policy requirements.

The committee further finds that agencies often do not clearly

state within their guidance documents that they are not legally

binding on the public. As a consequence, the public often is confused and unfairly burdened, sometimes at great cost.

As a consequence, the committee requested information from the

major regulatory agencies about their use of nonregulatory guidance documents, their submissions for congressional review under

the CRA, and their specific explanations within each guidance document regarding its legal effect. The agencies responded by submitting letters to the committee confirming that their guidance documents have no legally binding effect on the public.

The committee is pleased to make these agency letters available

to the public but remains concerned about future backdoor rulemaking attempts by the agencies and future agency guidance documents without explanations regarding their non-binding legal effect

on the public. As a consequence, the committee intends to continue

its oversight in this area and asks the public to inform the committee about any instances of agency guidance which either establishes policy through the backdoor or is unclear about its not-binding legal effect on the public.

[The appendixes referred to follow:]

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(539)

MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. DENNIS J. KUCINICH, HON. TOM LANTOS, HON. MAJOR R.

OWENS, HON. EDOLPHUS TOWNS, HON. PAUL E. KANJORSKI, HON. CAROLYN B. MALONEY, HON. ELEANOR

HOLMES NORTON, HON. CHAKA FATTAH, HON. ELIJAH E.

CUMMINGS, HON. ROD R. BLAGOJEVICH, HON. DANNY K.

DAVIS, HON. HAROLD E. FORD, JR., AND HON. JANICE D.

SCHAKOWSKY

Agency guidance—also known as compliance assistance—plays

an extremely important role in the administration of Federal law.

Statutes and regulations cannot address every factual circumstance

that may arise. Therefore, individuals and businesses often have

questions as to whether and how the laws apply to their specific

factual circumstances. They want and appreciate the issuance of

guidance that addresses their questions. The public also benefits

because guidance helps prevent unintentional violations.

Congress acknowledged the importance of agency guidance when,

in 1996, it passed the Small Business Regulatory Enforcement

Fairness Act [SBREFA]. This law requires agencies to prepare compliance assistance guides and answer questions asked by the regulated public. When the Subcommittee on National Economic

Growth, Natural Resources, and Regulatory Affairs asked the Department of Transportation [DOT], the Department of Labor

[DOL], and the Environmental Protection Agency [EPA] for a subset of their guidance since SBREFA was passed, the subcommittee

received compendiums totaling over 7,000 documents.

Unfortunately, the majority’s report on agency guidance comes to

some inaccurate conclusions. In the first place, the report incorrectly alleges that agencies use guidance as backdoor regulation. In

testimony, meetings, and letters, the agencies explained that none

of their noncodified guidance was legally binding. Second, the majority incorrectly alleges that agencies failed to submit guidance to

Congress pursuant to the Congressional Review Act [CRA]. In fact,

because noncodified guidance is not legally binding, it is not covered by the CRA. Another problem is that the majority report does

not include a complete and accurate record of the investigation.

A. THE RECORD DOES NOT ESTABLISH THAT AGENCIES ISSUE

LEGALLY BINDING GUIDANCE

The record does not support the majority’s conclusion that agencies are inappropriately regulating the public ‘‘through the backdoor’’ by issuing legally binding guidance. In fact, the record indicates that noncodified guidance is not legally binding and agencies

have not inappropriately implied that it is binding.

On numerous occasions, agencies explained to the subcommittee

that none of their noncodified guidance is legally binding. For instance, when the subcommittee held a hearing on noncodified guidVerDate 11-MAY-2000 23:15 Oct 26, 2000 Jkt 067174 PO 00000 Frm 00547 Fmt 6604 Sfmt 6604 E:\HR\OC\HR1009.XXX pfrm09 PsN: HR1009
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1Statement of Henry Solano, Solicitor of Labor at the Department of Labor, Subcommittee

on National Economic Growth, Natural Resources, and Regulatory Affairs, House Committee on

Government Reform, hearing on non-codified documents: ‘‘Is the Department of Labor Regulating the Public Through the Backdoor?’’ (Feb. 15, 2000) (exhibit 1). 2Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs,

House Committee on Government Reform, hearing on non-codified documents: ‘‘Is the Department of Labor Regulating the Public Through the Backdoor?’’, 75–76 (Feb. 15, 2000) (stenographic record) (hereinafter ‘‘Feb. 15, 2000, hearing’’). 3 Appendix G of the majority report includes letters from the 10 agencies stating that their

noncodified guidance is not legally binding. 4Statement of Henry Solano, supra n.1.

5Feb. 15, 2000, hearing at 21 and 83.

ance on February 15, 2000, the one agency representative, Henry

Solano, the Solicitor of Labor at the Department of Labor, testified:

I understand the term ‘‘noncodified documents’’ to mean

materials, related to compliance with the laws and regulations enforced by the Department, which are issued by the

Department in printed and/or electronic form, but which

are not published in the Code of Federal Regulations.

These types of documents do not create new law or change

existing law. . . . One type of compliance assistance is the

use of non-codified documents. These documents are not legally binding.1

Furthermore, at the hearing, Mr. Solano answered questions

about specific DOL guidance mentioned in the majority’s report. He

admitted that some guidance was not drafted well. Nevertheless,

he explained, none of it is legally binding. Guidance interprets underlying statutory and regulatory language. It is not intended to

expand upon the underlying requirements. Thus, he explained,

when someone is found liable, they are liable for violating the underlying statute or regulation—not for violating guidance.2

In addition, when the subcommittee staff met with representatives of DOL, DOT, and EPA afer the hearing, the agency representatives reiterated that none of their noncodified guidance is

legally binding. Moreover, at the request of the subcommittee, 10

agencies wrote letters to the subcommittee clearly stating that

their noncodified guidance is not legally binding.3

Furthermore, there was no evidence that agencies inappropriately implied that their nonbinding guidance was binding. On

many occasions, the agencies included language in guidance documents explicitly stating that the guidance is not legally binding.

This language is often found in general guidance manuals which

are provided to a variety of audiences. The agencies explained that

they did not always include this language in agency letters to individuals that answer questions about how the law applies to a specific set of facts. This guidance is often addressed to sophisticated

industry organizations who understand that guidance is not legally

binding.

Although the report does not clearly list which documents it

claims are examples of backdoor regulation, it appears to be referring to DOL’s 1998 and 1999 letters to arborists, its November

1999 work-at-home guidance letter, and its December 1996 guidance letter addressing the definition of ‘‘serious health condition’’

under the Family and Medical Leave Act. However, as DOL explained in written testimony,4 at the February 15, 2000 hearing,5

and in staff meetings, these documents were not legally binding. In

541

6 Recently, the Government Accounting Office [GAO] identified an instance of an agency guidance document that GAO contends is legally binding and should have been issued as a rule.

In an Oct. 17, 2000, letter to Representative James Leach, the GAO found that a booklet issued

by the Farm Credit Administration describing a national charter initiative meets the requirements of a legislative rule and should have gone through notice and comment procedures. 7Feb. 15, 2000, hearing at 90–91.

8The CRA provides that documents that are covered by the CRA do not take effect, in most

circumstances, until they have been submitted to Congress. Hence, if the majority were correct,

the guidance could not be legally binding until it was submitted to Congress. 9 5 U.S.C. 551 (CRA requirements at 5 U.S.C. 801 provide for the submission of rules to Congress. 5 U.S.C. 804 provides that ‘‘[t]he term ‘rule’ has the meaning given such term in section

551’’ with certain exceptions). 10See, e.g., Feb. 15, 2000, hearing at 66–67. See also, majority report, part II (discussion of

EPA’s correspondence with Representative McIntosh).

fact, there is not a single instance of legally binding compliance assistance identified in the majority report.6

Some of this guidance was later withdrawn when it received public criticism. At the February 15, 2000, hearing, Mr. Solano of the

DOL explained this process when he was asked about the 1998 and

1999 letters to arborists. He testified:

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 back door 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, to be open, to reconsider

and rethink. So those two examples, to me, represent that,

that kind of an example.7

B. CRA DOES NOT COVER NONCODIFIED GUIDANCE

The majority also mistakenly concludes that agencies inappropriately failed to provide legally binding guidance to Congress pursuant to the CRA. This conclusion is unsupported because none of the

guidance is legally binding.8

The statute provides that, in general, agencies must send to Congress any ‘‘agency statement of general . . . applicability and future effect designed to implement, interpret, or prescribe law or

policy.’’ 9 The agencies explained in letters, testimony, and staff

meetings that, because noncodified guidance is not legally binding,

it does not have ‘‘future effect.’’ Therefore, it is not covered by the

CRA.10

Ever since Congress enacted the CRA in 1996, legal experts have

warned that a broad interpretation of CRA requirements would be

so burdensome as to be impractical. Including noncodified guidance

under the act could have this effect. If agencies were required to

send noncodified guidance to Congress, agencies would have to

compile, copy, and deliver their guidance documents to Congress,

the Government Accounting Office [GAO] would need to review and

summarize them, and the Senate and House Parliamentarians

would need to ensure that they are accurately printed in the Congressional Record. Although the extent of this burden is not known,

542

the majority reports that, when the subcommittee asked only three

agencies for a subset of their guidance documents produced since

1996, it received compendiums totaling over 7,000 documents.

Moreover, a broad interpretation of the CRA requirements could

discourage agency guidance. In order to limit their CRA responsibilities, agencies might choose to limit the amount of guidance

they provide to the public. This would be contrary to the congressional intent of SBREFA which was passed by Congress just 4

years ago.

Furthermore, a broad interpretation could discourage the publication of guidance. Agencies might try to avoid some of the CRA

burden by answering compliance questions verbally instead of in

writing. Unfortunately, this practice would put the regulated public

at a disadvantage. Currently, written guidance—although it is not

legally binding—may be introduced in court as evidence that the

individual was acting in good faith by relying on agency guidance.

This evidence can lead to a reduction in penalties and fees. If written guidance is discouraged, entities who rely on agency guidance

might find it more difficult to prove their case.

Agencies also might be discouraged from their current practice of

publishing individual guidance on the Internet if it is argued that

publication makes ‘‘individual’’ advice ‘‘general’’ and subject to the

CRA. Some agencies have recently adopted the practice of publishing individual guidance on the Internet in order to provide immediate answers to individuals and businesses who may have similar questions. This practice not only provides immediate answers,

it encourages consistent enforcement of the law.

It is interesting to note that much of the subcommittee’s investigation and criticism related to the DOL’s work-at-home guidance

letter. Although this letter answered one employer’s questions,

DOL published it on the Internet. If DOL had been discouraged

from publishing such guidance, the public—and this committee—

may never have known of its existence.

C. MAJORITY’S REPORT DOES NOT INCLUDE RELEVANT DOCUMENTS

We are concerned that the majority report has only provided one

side of the story. For instance, numerous oversight requests by

Representative McIntosh are attached to the majority report, yet

the agency responses to these requests are not included. Similarly,

hearing testimony that supports the report’s conclusions is attached while agency testimony refuting them is missing. In order

to provide a more complete record—including the agencies views on

the facts—we are attaching the following to these views:

Exhibit 1: Testimony provided by Henry Solano, Solicitor of

Labor, U.S. Department of Labor [DOL] and Adele Abrams,

Esq., American Society of Safety Engineers, at the Subcommittee on National Economic Growth, Natural Resources,

and Regulatory Affairs’ February 15, 2000, hearing on guidance documents;

Exhibit 2: Letters from the Office of Management and Budget

[OMB] to Representative McIntosh in which OMB states that

it has provided adequate assistance to the agencies regarding

how they should apply the CRA, related OMB assistance to the

543

11Letter from Robert Raben, Assistant Attorney General, Department of Justice, to Representative McIntosh (June 19, 2000); letter from Nancy McFadden, General Counsel, DOT, to Representative McIntosh (Feb. 22, 2000); letter from Henry Solano, Solicitor of Labor, DOL, to Representative McIntosh (Mar. 16, 2000); and letter from Gary Guzy, General Counsel, EPA, to

Representative McIntosh (Feb. 25, 2000). These letters have been attached as exhibit 3.

agencies, and relevant letters from Representative McIntosh

that were not included in the majority’s report; and

Exhibit 3: Letters from the Department of Justice, Department

of Labor, Department of Transportation, and Environmental

Protection Agency to Representative McIntosh criticizing his

proposed legislation that requires agencies to state on all guidance documents whether or not the document is legally binding.

D. AGENCIES HAVE AGREED TO PROTECT AGAINST CONFUSION

ABOUT THE EFFECT OF GUIDANCE

The majority report discusses ways to ensure that people do not

inaccurately believe that noncodified guidance is legally binding.

We want the regulated community to understand that guidance is

guidance—not an expansion of the underlying statutory and regulatory requirements. Even if agencies do not intend to expand upon

legal requirements, they need to make sure that the regulated community does not misunderstand the legally binding effect of guidance. We are pleased that, as a result of the subcommittee’s work,

the agencies appear to be more sensitive to this concern and have

agreed that, if the legally binding effect of a document is unclear,

the agency should take whatever steps are appropriate to clear up

that confusion.

We are also pleased that Representative McIntosh chose not to

pursue his ill-advised legislative solution to this problem contained

in Section 4 of H.R. 3521. That provision provides that ‘‘[t]he head

of each agency shall include on the first page of each statement

published by the agency that is not a rule a notice that the statement has no general applicability or future effect (or both), as applicable, and is not binding on the public.’’ Although this proposal

was intended to clear up confusion, it threatened to create even

greater confusion.

At the February 15, 2000, hearing, Representative Kucinich expressed numerous concerns with this provision. He explained that

guidance comes in numerous forms and is directed at various audiences. In some instances, general language about a document’s legally binding effect might not be helpful. For instance, it might be

confusing to state that guidance is not legally binding if the letter

in question quotes legally binding statutory language.

The agencies expressed similar concerns at the February 15,

2000, hearing, at follow-up meetings with subcommittee staff, and

in letters to Representative McIntosh from the Department of Justice, DOT, EPA, and DOL.11 They also explained that the McIntosh

provision is drafted so broadly that it includes more than interpretative guidance. The language also includes statements such as

work site posters advising employees to take safety precautions. If

these posters included language stating that the poster had no legally binding effect, the import of the safety message might be

weakened. Similarly, the McIntosh language includes public service

544

messages such as agency posters stating ‘‘say no to drugs’’ and

DOT bumper stickers advising riders to ‘‘buckle up.’’ The public

would likely be confused if these statements included language

stating that they were not legally binding.

Fortunately, as a result of these concerns, Representative

McIntosh elected not to pursue his legislative proposal.

HON. HENRY A. WAXMAN. HON. DENNIS J. KUCINICH. HON. TOM LANTOS. HON. MAJOR R. OWENS. HON. EDOLPHUS TOWNS. HON. PAUL E. KANJORSKI. HON. CAROLYN B. MALONEY. HON. ELEANOR HOLMES NORTON. HON. CHAKA FATTAH. HON. ELIJAH E. CUMMINGS. HON. ROD R. BLAGOJEVICH. HON. DANNY K. DAVIS. HON. HAROLD E. FORD, JR. HON. JANICE D. SCHAKOWSKY.

[The exhibits referred to follow:]

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(618)

ADDITIONAL VIEWS OF HON. DAVID M. MCINTOSH

The minority views section of this report confirms many key

points about agency guidance documents: (1) ‘‘none of their noncodified guidance is legally binding;’’ (2) ‘‘because noncodified guidance is not legally binding, it does not have ‘future effect;’ ’’ and (3)

‘‘guidance is guidance—not an expansion of the underlying statutory and regulatory requirements.’’

The committee intended to only include the most relevant documents in its report. However, since the minority chose to include

some less relevant documents, the committee wants to include

some of the other related documents that the minority left out. The

minority’s exhibit 1 includes minority testimony from the subcommittee’s February 15, 2000 hearing but not testimony from four

other witnesses. The missing testimony is available on the subcommittee’s website: http://www.house.gov/reform/neg/hearings/

index.htm. The minority’s exhibit 2 is missing an October 12, 1999

letter from the subcommittee to the Office of Management and

Budget [OMB] about its guidance to the agencies on the Congressional Review Act [CRA]. The missing letter is provided herein.

The minority’s exhibit 3 is missing the subcommittee’s January 31,

2000 letters to the chief legal officers in the Department of Labor

[DOL], the Department of Transportation and the Environmental

Protection Agency [EPA] asking for their views on section 4 in H.R.

3521. The missing letters are provided herein.

I take issue with certain statements in the minority views section. I will discuss them in order of their appearance. First, the minority states, ‘‘Agency guidance—also known as compliance assistance.’’ This is untrue since there is a wide variety of agency guidance documents, some of which are not even intended for compliance assistance. In fact, sometimes the audience is not even the

regulated public. Agency guidance includes documents such as: advisory circulars, booklets, bulletins, compliance directives, compliance programs, enforcement guidelines, enforcement policies, guidances, guidelines, inspection plans, letters, memoranda of understanding, models, opinion letters, oral guidance, policies, policy

clarifications, policy directives, policy statements, press releases,

program policy letters, staff instructions, staff manuals, testimony

before Congress, and question-and-answer documents.

Second, the minority incorrectly alleges that the report does not

include examples of backdoor regulation. Quite to the contrary, appendix E, testimony by the National Association of Manufacturers

[NAM], includes many examples, including instances which were

successfully litigated. Here are three backdoor rulemaking examples in NAM’s testimony, which required litigation: cooperative

compliance program, striker replacement, and periodic monitoring

guidance. First, NAM sued DOL after 12,000 companies received

letters from DOL stating that they had to comply with new comVerDate 11-MAY-2000 23:15 Oct 26, 2000 Jkt 067174 PO 00000 Frm 00626 Fmt 6604 Sfmt 6604 E:\HR\OC\HR1009.XXX pfrm09 PsN: HR1009
619

prehensive safety and health requirements or face wall-to-wall inspections. The U.S. Court of Appeals for the D.C. Circuit found that

DOL exceeded its authority by trying to promulgate a standard

without using notice-and-comment procedures (Chamber of Commerce of U.S. v. U.S. Department of Labor, 174 F.3d 206 D.C. Cir.

1999). Second, the President issued an Executive order enabling

agencies to blacklist government contractors who legally hire permanent replacements for workers on an economic strike. The order

was issued without notice and comment and added new penalties.

The U.S. Court of Appeals for the D.C. Circuit vitiated the order

(Chamber of Commerce of the U.S. v. Reich, Secretary of Labor, 74

F.3d 1322 D.C. Cir. 1996). Third, NAM sued EPA for its periodic

monitoring guidance that changed which monitoring results trigger

the need to take corrective action and which results indicate a violation. The U.S. Court of Appeals for the D.C. Circuit vitiated the

guidance because of EPA’s failure to use notice and comment to

amend its existing rule (Appalachian Power Co. v. EPA, 208 F. 3d

1015 D.C. Cir. 2000).

In this connection, it is important to note that the minority employs circular reasoning to deny the reality of backdoor rulemaking.

For example, the minority cites agency letters and testimony confirming that noncodified guidance is not legally binding. The real

question is whether agencies ever use guidance coercively, as a

form of unlegislated compulsion. The report and my additional

views provide several examples of such abuse. What was the public

hue and cry over DOL’s work-at-home guidance about, if not the

agency’s attempt to expand its regulatory turf into people’s homes?

Third, the minority misleadingly states, ‘‘On many occasions, the

agencies included language in guidance documents explicitly stating that the guidance is not legally binding.’’ The subcommittee’s

investigation revealed that only 8 percent of DOL’s 1999 Occupational Health and Safety Administration guidance documents included any explanation of legal effect and only 5 percent put this

explanation at the beginning of the document. Eight percent is not

‘‘many.’’

Fourth, the minority says that some guidance was later withdrawn by the agencies ‘‘when it received public criticism.’’ Unfortunately, the subcommittee was unable to fully investigate the circumstances surrounding DOL’s withdrawn guidance documents

since—even after repeated requests—DOL failed to reply to question 7 in the subcommittee’s February 16, 2000 post-hearing questions. Question 7 follows:

Q7. Withdrawn Guidance.

a. Besides OSHA’s 1999 work-at-home guidance and

OSHA’s 1998 and 1999 arborists guidance, what other

DOL guidance documents have been withdrawn since

March 1996 and under what circumstances?

b. Did DOL ever post these other withdrawal letters? If

not, why not? Please provide complete details for each case

for the record.

Fifth, the minority inaccurately captions its Section B ‘‘CRA Does

Not Cover Noncodified Guidance.’’ In fact, CRA covers any noncodified guidance documents with general applicability and future effect. For example, the subcommittee’s review of EPA’s compliance

620

with the CRA revealed that, in February 1998, EPA issued ‘‘Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits’’ (its Environmental Justice guidance).

This guidance established a framework for handling complaints

that are filed with EPA’s Office of Civil Rights under Title VI of

the Civil Rights Act of 1964, as amended, and allege disparate environmental impacts on minority populations resulting from the

issuance of industrial site permits by State and local governments

that receive EPA funding. In light of the legal and policy effects of

this guidance, the subcommittee asked the General Accounting Office [GAO] to determine if this guidance is a rule within the meaning of the CRA. On September 1, 1998, GAO determined that this

guidance is a rule under the CRA and indicated that EPA had not

yet submitted this guidance for congressional review under the

CRA.

For a more recent example, on October 17, 2000, GAO issued an

opinion on whether the Farm Credit Administration’s [FCA’s] national charter initiative is a rule under the CRA. GAO found that

FCA’s ‘‘National Charters’’ booklet, which was issued after FCA’s

withdrawal of the portion of a proposed rule that would have had

the same effect, constitutes a rule subject to congressional review

under the CRA and should have been issued using notice and comment procedures. The subcommittee continues to believe that OMB

has failed to fully clarify which agency guidance documents are

covered by the CRA, resulting in some agency noncompliance with

the law.

Sixth, the minority curiously states, ‘‘Moreover, a broad interpretation of the CRA requirements could discourage agency guidance.’’

It is unclear what the minority means by a ‘‘broad interpretation.’’

What is needed is for OMB to issue complete guidance to the agencies that addresses each type of guidance documents. In fact, in October 1998, subcommittee counsel drafted such guidance for OMB’s

issuance. However, OMB has continued to resist issuing such helpful and complete guidance to ensure legal compliance by the agencies.

Last, the minority expressed its pleasure that I did not pursue

a legislative solution to ensure clarity for the regulated public.

However, the absence of a required disclaimer at the beginning of

each agency guidance document should not be used as an excuse

for agencies to continue their current practice of almost never clarifying the legal import of their guidance documents within those

documents. The minority’s claim that any requirement to clarify

the legal status of guidance documents can be confusing is absurd.

It assumes that the public is smart enough to figure out the

unstated legal status of documents several hundred pages in

length, but not smart enough to understand a 2–3 sentence clarification of the document’s legal status.

HON. DAVID M. MCINTOSH.

[The exhibits referred to follow:]

621

622

623

624

625

Æ