[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]





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


                                 ______

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                     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:]
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    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:]
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[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:]
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[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:]
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    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:]
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    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:]
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    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:]
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    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:]
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    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.
    [The prepared statement of Mr. Marren follows:]
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    Mr. McIntosh. 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:]
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    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?
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    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. Helen Chenoweth-Hage and 
additional information submitted for the hearing record 
follow:]
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