[House Report 106-1009]
[From the U.S. Government Publishing Office]



                                                 Union Calendar No. 586

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

         NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS

                               __________

                             SEVENTH REPORT

                                 by the

                     COMMITTEE ON GOVERNMENT REFORM

                             together with

                     MINORITY AND ADDITIONAL VIEWS

                                     


                                     

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

October 26, 2000.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
67-174                     WASHINGTON : 2000

                     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 III, Virginia        CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana           ELEANOR HOLMES NORTON, District of 
MARK E. SOUDER, Indiana                  Columbia
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
                        Robert A. Briggs, Clerk
                 Phil Schiliro, Minority Staff Director

   Subcommittee on National Economic Growth, Natural Resources, and 
                           Regulatory Affairs

                  DAVID M. McINTOSH, Indiana, Chairman
PAUL RYAN, Wisconsin                 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, Deputy Staff Director
                       Gabriel Neil Rubin, Clerk
                 Elizabeth Mundinger, Minority Counsel
?

                         LETTER OF TRANSMITTAL

                              ----------                              

                                  House of Representatives,
                                  Washington, DC, October 26, 2000.
Hon. J. Dennis Hastert,
Speaker of the House of Representatives,
Washington, DC.
    Dear Mr. Speaker: By direction of the Committee on 
Government Reform, I submit herewith the committee's seventh 
report to the 106th Congress. The committee's report is based 
on a study conducted by its Subcommittee on National Economic 
Growth, Natural Resources, and Regulatory Affairs.
                                                Dan Burton,
                                                          Chairman.
                                     

                           C O N T E N T S

_______________________________________________________________________
                                                                   Page
  I. Summary of oversight findings....................................1
 II. Report on the committee's oversight..............................2
III. Conclusions......................................................8

                               APPENDIXES

Appendix A.--EPA's March 1999 and October 1999 letters to            11
  Chairman McIntosh about its guidance.
Appendix B.--Chairman McIntosh's April to October 1999 letters to    18
  OMB about its CRA guidance to the agencies.
Appendix C.--Chairman McIntosh's October 1999 letters to DOL, DOT    27
  and EPA about their guidance.
Appendix D.--DOL's OSHA and EPA's guidance compendiums...........    37
Appendix E.--Baroody's February 2000 testimony on behalf of NAM..   467
Appendix F.--Chairman McIntosh's May 2000 letters to eight          489
  agencies about their guidance.
Appendix G.--Ten agencies' July to September 2000 clarification     506
  letters to Chairman McIntosh about the non-binding legal effect 
  of their guidance.

                                 VIEWS

Minority views of Hon. Henry A. Waxman, Hon. Dennis J. Kucinich,    539
  Hon. Tom Lantos, Hon. Major R. Owens, Hon. Edolphus Towns, Hon. 
  Paul E. Kanjorski, Hon. Carolyn B. Maloney, Hon. Eleanor Holmes 
  Norton, Hon. Chaka Fattah, Hon. Elijah E. Cummings, Hon. Rod R. 
  Blagojevich, Hon. Danny K. Davis, Hon. Harold E. Ford, Jr., and 
  Hon. Janice D. Schakowsky.
Additional views of Hon. David M. McIntosh.......................   618


                             ABBREVIATIONS

                               __________


CRA                                 Congressional Review Act
OMB                                 Office of Management and Budget
APA                                 Administrative Procedure Act
EPA                                 Environmental Protection Agency
GAO                                 General Accounting Office
0PM                                 Particulate Matter
NAAQS                               National Ambient Air Quality
                                     Standards
DOL                                 Department of Labor
DOT                                 Department of Transportation
OSHA                                Occupational Safety and Heath
                                     Administration
NHTSA                               National Highway Traffic Safety
                                     Administration
NAM                                 National Association of
                                     Manufacturers


                                                 Union Calendar No. 586
106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                    106-1009

======================================================================

 
         NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS

                                _______
                                

October 26, 2000.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Burton, from the Committee on Government Reform submitted the 
                               following

                             SEVENTH REPORT

    On October 5, 2000, the Committee on Government Reform 
approved and adopted a report entitled, ``Non-Binding Legal 
Effect of Agency Guidance Documents.'' The chairman was 
directed to transmit a copy to the Speaker of the House.

                    I. Summary of Oversight Findings

    Various laws enacted by Congress ensure legal protections 
for the public so that agencies may not issue documents that 
bind the public without the public's opportunity to participate 
in the policymaking process. These good government provisions 
are a key to our democratic process. They protect citizens from 
arbitrary decisions and enable citizens to effectively 
participate in the process. If agencies avoid these legal 
protections or issue documents that do not clearly state if 
they have binding legal effect or not, the public may be 
confused or unfairly burdened--sometimes at great cost.
    Agencies sometimes claim they are just trying to be 
``customer friendly'' and serve the regulated public when they 
issue advisory opinions and guidance documents. This may, in 
fact, be true in many cases. However, when the legal effect of 
such documents is unclear, regulated parties may well perceive 
this ``help'' as coercive--an offer they dare not refuse. 
Regrettably, the committee's investigation found that some 
guidance documents were intended to bypass the rulemaking 
process and expanded an agency's power beyond the point at 
which Congress said it should stop. Such ``backdoor'' 
regulation is an abuse of power and a corruption of our 
Constitutional system.
    In 1996, Congress enacted the Congressional Review Act 
[CRA] to oversee agency legislative rules and agency guidance 
documents with any general applicability and future effect. 
Despite repeated requests by the committee and specific 
direction by Congress in two appropriation cycles, the Office 
of Management and Budget [OMB] failed to provide sufficient 
guidance to Federal agencies for implementation of the CRA. The 
result has been some agency confusion over the legal effect of 
agency guidance documents and incomplete agency compliance with 
the CRA.
    As a result of the committee's 1999-2000 investigation, the 
major regulatory agencies have each submitted, between July and 
September 2000, letters from their chief legal officials to the 
committee stating that their agency guidance documents have no 
binding legal effect on the public and that they are taking 
steps to clearly communicate this fact to the public. These 
officials state that these guidance documents are ``not legally 
binding'' on the public and conclude by saying, ``We recognize 
the importance of using guidance properly, and we have taken--
and will continue to take--appropriate steps to address the 
concerns that guidance not be used as a substitute for 
rulemaking and to make the legal effect of our documents clear 
to the public.''
    Nonetheless, as Law Professor Robert Anthony stated in a 
1998 article entitled, ``Unlegislated Compulsion: How Federal 
Agency Guidelines Threaten your Liberty,'' ``Even though those 
documents do not have legally binding effect, they have 
practical binding effect whenever the agencies use them to 
establish criteria that affect the rights and obligations of 
private persons'' (Cato Policy Analysis No. 312, August 11, 
1998, p. 1).

                II. Report on the Committee's Oversight

    On March 29, 1996, Congress enacted the CRA (Title II, Sec. 
251 of Public Law 104-121, codified at 5 U.S.C. ch. 8). This 
law requires that, before a Federal agency ``rule'' can take 
effect, the agency shall submit the rule to Congress for 
congressional review. The CRA defined ``rule'' broadly, as the 
term is defined under the Administrative Procedure Act [APA], 
to include not only regulatory actions subject to statutory 
notice-and-comment procedures but also other agency actions 
that contain statements of ``general . . . applicability and 
future effect designed to implement, interpret, or prescribe 
law or policy or describing the organization, procedure, or 
practice requirements of an agency'' (5 U.S.C. Sec. Sec. 804(3) 
and 551(4)).
    Thus, the CRA definition is not limited to ``legislative'' 
rules subject to notice-and-comment provisions of the APA's 
section 553. On the contrary, the CRA definition includes any 
interpretative rule or other agency statement used to apply 
existing law or implement policy. The legislative history 
confirms the plain text of the definition: ``Interpretive 
rules, general statements of policy, and analogous agency 
policy guidelines are covered without qualification because 
they meet the definition of a `rule' borrowed from section 551 
of title 5, and are not excluded from the definition of a 
rule.'' \1\ Therefore, under the CRA's definition of a 
``rule,'' agency guidance with any general applicability and 
future effect is subject to congressional review under the CRA.
---------------------------------------------------------------------------
    \1\ Statement of Representative McIntosh, Mar. 28, 1996, 
Congressional Record at H3005.
---------------------------------------------------------------------------
    Since March 1996, the Government Reform Subcommittee on 
National Economic Growth, Natural Resources, and Regulatory 
Affairs continually reviewed agency compliance with the CRA and 
found that agencies failed to report many guidance documents 
that fall within the CRA's definition of a ``rule.'' Under the 
CRA, the Federal agency issuing a rule must file a report to 
Congress ``[b]efore a rule can take effect'' (5 U.S.C. 
Sec. 801(a)(1)(A)). In other words, unless and until an agency 
properly reports a rule, the rule has no legal force or effect. 
Any action the agency takes to promulgate, implement, or 
enforce an unreported rule is an ultra vires act and, 
therefore, legally null and void.
    The subcommittee continues to believe that agency 
noncompliance is largely due to insufficient implementation 
guidance from OMB. Despite OMB's obligation under President 
Clinton's Executive Order No. 12866 to provide the agencies 
with guidance on compliance with regulatory laws, OMB has done 
very little to ensure that the agencies are complying with the 
CRA. The result has been some agency confusion about the CRA 
and incomplete agency compliance with the CRA.
    For example, the subcommittee's review of the Environmental 
Protection Agency's [EPA's] compliance with the CRA revealed 
that, in February 1998, EPA issued ``Interim Guidance for 
Investigating Title VI Administrative Complaints Challenging 
Permits'' (its ``Environmental Justice'' guidance). This 
guidance established a framework for handling complaints that 
are filed with EPA's Office of Civil Rights under Title VI of 
the Civil Rights Act of 1964, as amended. Such complaints 
allege disparate environmental impacts on minority populations 
resulting from the issuance of industrial site permits by State 
and local governments that receive EPA funding. In light of the 
legal and policy effects of this guidance, the subcommittee 
asked the General Accounting Office [GAO] to determine if this 
guidance was a rule within the meaning of the CRA. On September 
1, 1998, GAO determined that this guidance was a rule under the 
CRA and indicated that EPA had not yet submitted this guidance 
for congressional review under the CRA.
    On December 8, 1998, the subcommittee asked EPA whether it 
intended to submit its ``Proposed Implementation Guidance for 
the Revised Ozone and Particulate Matter [PM] National Ambient 
Air Quality Standards [NAAQS] and Regional Haze Program,'' and 
many other related guidance documents, to Congress under the 
CRA. In a letter dated March 2, 1999, EPA replied that ``EPA 
does not intend its policy statements and guidance documents to 
be binding and they have no binding legal effect on the 
public.'' EPA further stated that ``if such documents do 
contain binding legal requirements, EPA considers them within 
the scope of the CRA and submits them to Congress.''
    On September 20, 1999, the subcommittee asked EPA why it 
had not submitted its ``Final Guidance on Environmentally 
Preferable Purchasing for Federal Agencies'' for congressional 
review under the CRA. On October 6th, EPA replied that its 
guidance has no legal effect and is not binding; instead, it 
``merely suggests'' and ``encourages agencies'' to follow EPA's 
guidance. EPA's March 1999 and October 1999 letters to 
Subcommittee Chairman David McIntosh are included in appendix 
A.
    To encourage OMB to carry out its responsibilities under 
the CRA, the subcommittee proposed to increase the 1998 
Treasury and General Government Appropriations Act budget for 
OMB's Office of Information and Regulatory Affairs by 
$200,000--specifically to help with CRA implementation. 
Congress accepted this proposal. Nonetheless, $200,000 and 12 
months later, OMB showed no signs of improvement. Despite 
continued requests from the subcommittee, OMB failed to issue 
complete, government-wide CRA implementation guidance to the 
agencies. For example, OMB failed to inform the agencies that 
agency guidance documents with general applicability and future 
effect are ``rules'' under the CRA and must be submitted for 
congressional review. Without full compliance, the public is 
robbed of the opportunity to have Congress review costly and 
burdensome requirements, some of which may exceed congressional 
authorization or intent.
    As a result of the subcommittee's oversight and analysis, 
on October 21, 1998, as part of the 1999 Treasury and General 
Government Appropriations Act, Congress enacted a requirement 
for OMB to provide additional guidance to the agencies on 
specific provisions of the CRA by March 31, 1999, to ensure 
full implementation of the CRA (under OMB Salaries and Expenses 
in Public Law 105-277). The accompanying Conference Report 
stated, ``The conferees have been assured that OMB will 
strictly adhere to the statutory requirements included in the 
bill on Paperwork Reduction and the Congressional Review Act. 
The conferees will monitor OMB's compliance with these 
requirements carefully'' (House Report 105-825).
    The subcommittee reached an understanding with OMB, which 
was memorialized in a September 23, 1998 letter from the 
subcommittee to OMB and a September 24th return letter from OMB 
to the subcommittee. Unfortunately, OMB did not share its draft 
guidance with the subcommittee until Friday, March 25, 1999. On 
Monday, March 29th, the subcommittee met with OMB and expressed 
its view that the draft was not responsive to the 
subcommittee's expectations, the previous agreements between 
the subcommittee and OMB, or congressional intent. In a 
nutshell, OMB was required to provide expanded and complete 
guidance; instead, OMB's draft barely expanded on its previous 
guidance and did not address the key issues which needed 
clarification and expansion.
    Nonetheless, OMB issued its revised guidance the next day 
(March 30th), making only four minor changes in the draft based 
on the subcommittee's comments. On April 1st, the subcommittee 
directed OMB to issue the previously agreed-upon expanded and 
complete guidance by April 30th, including an elaboration of 
the definition of ``rule,'' a discussion of the ``good cause'' 
exemption for a change in the effective date of a rule, and a 
discussion of the legal standing, effectiveness, and potential 
for judicial review of rules not submitted for congressional 
review under the CRA.
    Throughout 1999, OMB continued to resist issuing full CRA 
guidance to the agencies, necessitating the subcommittee's 
additional letters to OMB, dated June 2nd, August 2nd, and 
October 12th. Subcommittee Chairman McIntosh's four 1999 
letters to OMB about its CRA guidance to the agencies are 
included in appendix B.
    After these repeated and unsuccessful requests that OMB 
provide additional CRA guidance to the agencies, on October 8, 
1999, the subcommittee began an investigation of the agencies' 
use of non-codified guidance documents. The subcommittee sought 
to verify that each document with any general applicability and 
future effect was submitted to Congress under the CRA and that 
each document included an explanation to ensure the public's 
understanding of the document's legal effect.
    The subcommittee requested that the Department of Labor 
[DOL], the Department of Transportation [DOT] and EPA--three of 
the agencies imposing the most regulatory requirements on the 
public--complete a compendium of all their non-codified 
documents in tabular format and to provide a copy of each non-
codified document, including a highlighted and tabbed reference 
to the specific explanation in the document itself regarding 
its legal effect. These letters began by saying, ``This letter 
begins our investigation of your agency's use of non-codified 
documents (such as guidance, guidelines, manuals, and 
handbooks) and your agency's explanation within each of them to 
ensure the public's understanding of their legal effect.'' The 
compendium required the agencies to reveal which documents had 
been submitted for congressional review under the CRA and which 
documents were legally binding. Chairman McIntosh's October 
1999 letters to DOL, DOT and EPA are included in appendix C.
    In a November 12th meeting, DOL and DOT asked the 
subcommittee to narrow the request. In response, the 
subcommittee narrowed the initial request to only those 
documents issued since the March 1996 enactment of CRA by DOL's 
Occupational Health and Safety Administration [OSHA] and DOT's 
National Highway Traffic Safety Administration [NHTSA], 
respectively. On December 31, 1999, DOT submitted its NHTSA 
compendium and 1,225 guidance documents. On January 3, 2000, 
DOL submitted its OSHA compendium and guidance documents. On 
February 7, 2000, EPA submitted its compendium and 2,653 
guidance documents.
    However, after OSHA Assistant Secretary Charles Jeffress, 
in testimony before the House Education and the Workforce 
Committee's Subcommittee on Oversight and Investigations on 
January 28, 2000, cited an even higher number of guidance 
documents than DOL claimed in its earlier response to the 
Government Reform subcommittee's request, the subcommittee 
determined that the number of OSHA documents was not 1,641, as 
DOL had claimed, but actually 3,374. On August 23rd, DOL 
submitted its revised compendium. DOL's OSHA and EPA's 
compendiums are included in appendix D.
    On January 24, 2000, Subcommittee Chairman McIntosh 
introduced H.R. 3521. Section 4 of this bill was intended to 
ensure the public's understanding of the effect of agency 
guidance documents. It required agencies to include a notice on 
the first page of each agency guidance document to make clear 
that, if the document has no general applicability or future 
effect, it is not legally binding on the public. On January 
31st, Chairman McIntosh asked for the views of DOL, DOT and EPA 
on Section 4 of this bill and asked for them to be submitted 
before the subcommittee's upcoming February 15th hearing. 
Unfortunately, none of the three agencies replied before the 
hearing.
    On February 15, 2000, the subcommittee held a hearing 
entitled, ``Is The Department of Labor Regulating the Public 
Through the Backdoor?'' The purpose of the hearing was to 
examine DOL's use of nonregulatory guidance documents and to 
determine whether DOL was regulating the public through the 
backdoor--by imposing binding legal requirements in 
nonregulatory guidance documents. The hearing allowed the 
Department's chief legal officer, Solicitor Henry Solano, to 
discuss DOL's use of nonregulatory guidance documents instead 
of public rulemaking and the ways in which DOL disclosed or 
failed to disclose whether or not each such guidance document 
is legally binding on the public.
    Besides Mr. Solano, witnesses included: Michael E. Baroody, 
senior vice president, Policy, Communications and Public 
Affairs, National Association of Manufacturers [NAM] and former 
Assistant Secretary of Policy, DOL; Robert A. Anthony, George 
Mason University Foundation professor of law and former 
chairman, Administrative Conference of the United States; Jud 
Motsenbocker, owner, Jud Construction Co., Muncie, IN; Dixie 
Dugan, human resource coordinator, Cardinal Service Management, 
Inc., New Castle, IN; Dave Marren, vice president and division 
manager, the F.A. Barlett Tree Expert Co., Roanoke, VA; and 
Adele Abrams, attorney with Patton, Boggs in Washington, DC.
    The hearing revealed that: (a) DOL and DOT had admitted 
that none of their listed guidance documents were legally 
binding on the public; (b) DOL and DOT had admitted that none 
of their listed guidance documents were submitted to Congress 
for review under the CRA; (c) the vast majority of DOL's and 
DOT's submitted guidance documents did not make it clear to the 
public that the documents are not legally binding on the 
public; and (d) only 8 percent of DOL's 1999 OSHA guidance 
documents included any explanation of legal effect and only 5 
percent put this explanation at the beginning of the document. 
In contrast, DOT included an explanation of legal effect in 
about 40 percent of its NHTSA guidance documents.
    The hearing also examined several areas of DOL guidance. 
Mr. Baroody opened his testimony by saying, ``To put the matter 
simply, your subject is important. It is important economically 
and commercially, socially and politically, legally and 
constitutionally.'' He provided many examples of agency 
guidance documents which make ``the point that the problem of 
non-regulatory guidance, `non-rule rules,' back-door rulemaking 
as it is variously described, is not just a problem at the 
Occupational Safety and Health Administration, nor is it just a 
problem at the Department of Labor. It is a problem widespread 
in this Administration.''
    He continued, ``This subcommittee is properly focused on 
agency avoidance of the scrutiny and oversight provided for by 
the Administrative Procedure Act, the Congressional Review Act 
and similar enactments. In fact such avoidance through 
`guidance,' through interpretive and opinion letters, through 
compliance documents and the like is always inappropriate and 
at least occasionally illegal. Equally troubling are the 
occasions when an agency might technically comply with such 
legal requirements but does so in a way that may be best 
described as pretextual--in other words, when compliance with 
what I have called the accountability statutes is a ruse.'' Mr. 
Baroody's testimony on behalf of NAM is included in appendix E.
    The hearing, including testimony by Ms. Dugan, examined one 
aspect of DOL's Family and Medical Leave Act [FMLA] guidance. 
The hearing revealed that DOL issued a nonregulatory but 
policysetting guidance opinion letter which redefined a 
``serious health condition'' under the 1993 FMLA. DOL's 1995 
opinion letter said that minor illnesses, such as the common 
cold, were not a serious health condition. However, in December 
1996, DOL retracted its previous definition and stated that the 
common cold, the flu, ear-aches, upset stomachs, et cetera, all 
are covered by the FMLA if an employee is incapacitated more 
than 3 consecutive days and receives continuing treatment from 
a health care provider. Ms. Dugan's testimony explained that 
the consequences of this nonregulatory and costly redefinition 
reverberated throughout the employer world and actually created 
a problem for needy people. Ms. Dugan, a human resource 
coordinator for a private, for-profit corporation whose 
services include group homes and supported living apartments, 
explained, ``When employees are legitimately on leave we find a 
way to cover for them; however, under DOL opinion letters 
unscheduled and unplanned absences and illegitimate leave hurts 
us. They threaten our ability to serve our clients who are 
counting on us to be there 24 hours a day. We share this 
dilemma with many industries where unscheduled and unplanned 
absences can affect customers and coworkers.''
    The hearing noted DOL's backdoor work-at-home guidance. On 
January 5, 2000, the subcommittee wrote to DOL about its 
November 15, 1999, work-at-home policysetting guidance letter, 
which was not included in DOL's 3,374 OSHA documents submitted 
to the subcommittee, since it was issued after the 
subcommittee's October 8th request letter. The subcommittee 
sought to determine if DOL's 1999 guidance had been submitted 
to Congress for review under the CRA and if it was legally 
binding on the public. Of especial concern was DOL's expansion, 
without any express statutory delegation from Congress, of its 
jurisdiction into private homes. Subsequently, DOL withdrew 
this guidance document; however, DOL's 1993, 1995, and 1997 
work-at-home guidance documents had not been withdrawn as of 
the hearing. However, the 1993 and 1995 documents had an 
advisory on OSHA's website that they were ``under review.''
    The hearing, including testimony by Mr. Marren, explored 
DOL's 1998 and 1999 guidance documents for arborists. DOL 
withdrew both of these guidance documents after threats of 
lawsuits against DOL for not following the APA's statutory 
procedures for new rulemaking.
    One of these guidance documents was removed from OSHA's 
website right before the subcommittee's hearing.
    During the hearing, Subcommittee Ranking Member Dennis 
Kucinich stated his desire ``that we move forward in a bi-
partisan way to try to craft some language which may be of 
assistance to our friends in the private sector, but not in any 
way serve to undermine the spirit of the laws which we have 
taken part in passing.''
    As a consequence, after late replies from DOL, DOT and EPA 
about Section 4 of H.R. 3521, on May 3rd and May 19th, 
subcommittee majority and minority staff met with officials of 
these agencies and OMB. After being unable to reach agreement 
on revised legislative language, on May 19th, Subcommittee 
Chairman McIntosh wrote eight additional regulatory agencies 
for a compendium of their non-codified documents issued since 
March 1996 and a copy of the first page of each such document 
and all other pages with any specific explanation in the 
document itself regarding its legal effect. These agencies 
included: the Department of Agriculture, the Department of 
Energy, the Food and Drug Administration in the Department of 
Health and Human Services, the Fish and Wildlife Service in the 
Department of the Interior, the Consumer Product Safety 
Commission, the Federal Communications Commission, the Federal 
Trade Commission, and the Securities and Exchange Commission.
    In addition, DOL and DOT were asked to provide compendiums 
and the other information for the rest of their bureaus since 
they had previously only provided such information for OSHA and 
NHTSA, respectively. Since EPA had provided information on all 
of its guidance documents issued since March 1996 and since EPA 
had submitted March 1999 and October 1999 letters confirming 
that its guidance documents have no binding legal effect on the 
public (see appendix A), it was not additionally tasked.
    Instead of producing the requested compendiums and other 
information, DOT proposed and then orchestrated a model letter 
for each of the agencies to send the subcommittee to clarify 
the non-binding legal effect of their agency guidance 
documents. The subcommittee agreed and then worked with DOT 
staff to develop a mutually acceptable model letter. From July 
to September 2000, these eight agencies, along with DOL and 
DOT, each submitted their individual clarification letters from 
their chief legal officials stating that their agency guidance 
documents are not legally binding on the public.
    The letters state that their guidance documents are ``not 
legally binding'' and conclude by saying, ``We recognize the 
importance of using guidance properly, and we have taken--and 
will continue to take--appropriate steps to address the 
concerns that guidance not be used as a substitute for 
rulemaking and to make the legal effect of our documents clear 
to the public.'' Additionally, the letters explain that the 
public can ``rely'' on agency guidance, especially in an 
enforcement action, i.e., the guidance provides a ``safe 
harbor.'' In fact, agency guidance is often legally binding on 
the agency itself. Chairman McIntosh's May 2000 letters to the 
eight agencies are included in appendix F. The 10 agencies' 
July to September 2000 clarification letters about the non-
binding legal effect of their guidance documents are included 
in appendix G.

                            III. Conclusions

    The committee finds that, since the March 1996 enactment of 
the CRA, OMB failed to provide sufficient guidance to the 
agencies on implementation of the CRA. The result has been some 
agency confusion about the CRA, especially about agency 
guidance documents subject to congressional review under the 
CRA, and incomplete agency compliance with the CRA. Under the 
CRA, agency guidance with any general applicability and future 
effect is subject to congressional review. Without the required 
congressional review, covered agency guidance has no legal 
force or effect.
    The committee also finds that agencies have sometimes 
improperly used guidance documents as a backdoor way to bypass 
the statutory notice-and-comment requirements for agency 
rulemaking and establish new policy requirements.
    The committee further finds that agencies often do not 
clearly state within their guidance documents that they are not 
legally binding on the public. As a consequence, the public 
often is confused and unfairly burdened, sometimes at great 
cost.
    As a consequence, the committee requested information from 
the major regulatory agencies about their use of nonregulatory 
guidance documents, their submissions for congressional review 
under the CRA, and their specific explanations within each 
guidance document regarding its legal effect. The agencies 
responded by submitting letters to the committee confirming 
that their guidance documents have no legally binding effect on 
the public.
    The committee is pleased to make these agency letters 
available to the public but remains concerned about future 
backdoor rulemaking attempts by the agencies and future agency 
guidance documents without explanations regarding their non-
binding legal effect on the public. As a consequence, the 
committee intends to continue its oversight in this area and 
asks the public to inform the committee about any instances of 
agency guidance which either establishes policy through the 
backdoor or is unclear about its not-binding legal effect on 
the public.
    [The appendixes referred to follow:]
    
    

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

    Agency guidance--also known as compliance assistance--plays 
an extremely important role in the administration of Federal 
law. Statutes and regulations cannot address every factual 
circumstance that may arise. Therefore, individuals and 
businesses often have questions as to whether and how the laws 
apply to their specific factual circumstances. They want and 
appreciate the issuance of guidance that addresses their 
questions. The public also benefits because guidance helps 
prevent unintentional violations.
    Congress acknowledged the importance of agency guidance 
when, in 1996, it passed the Small Business Regulatory 
Enforcement Fairness Act [SBREFA]. This law requires agencies 
to prepare compliance assistance guides and answer questions 
asked by the regulated public. When the Subcommittee on 
National Economic Growth, Natural Resources, and Regulatory 
Affairs asked the Department of Transportation [DOT], the 
Department of Labor [DOL], and the Environmental Protection 
Agency [EPA] for a subset of their guidance since SBREFA was 
passed, the subcommittee received compendiums totaling over 
7,000 documents.
    Unfortunately, the majority's report on agency guidance 
comes to some inaccurate conclusions. In the first place, the 
report incorrectly alleges that agencies use guidance as 
backdoor regulation. In testimony, meetings, and letters, the 
agencies explained that none of their noncodified guidance was 
legally binding. Second, the majority incorrectly alleges that 
agencies failed to submit guidance to Congress pursuant to the 
Congressional Review Act [CRA]. In fact, because noncodified 
guidance is not legally binding, it is not covered by the CRA. 
Another problem is that the majority report does not include a 
complete and accurate record of the investigation.

 A. The Record Does Not Establish that Agencies Issue Legally Binding 
                                Guidance

    The record does not support the majority's conclusion that 
agencies are inappropriately regulating the public ``through 
the backdoor'' by issuing legally binding guidance. In fact, 
the record indicates that noncodified guidance is not legally 
binding and agencies have not inappropriately implied that it 
is binding.
    On numerous occasions, agencies explained to the 
subcommittee that none of their noncodified guidance is legally 
binding. For instance, when the subcommittee held a hearing on 
noncodified guidance on February 15, 2000, the one agency 
representative, Henry Solano, the Solicitor of Labor at the 
Department of Labor, testified:

        I understand the term ``noncodified documents'' to mean 
        materials, related to compliance with the laws and 
        regulations enforced by the Department, which are 
        issued by the Department in printed and/or electronic 
        form, but which are not published in the Code of 
        Federal Regulations. These types of documents do not 
        create new law or change existing law. . . . One type 
        of compliance assistance is the use of non-codified 
        documents. These documents are not legally binding.\1\
---------------------------------------------------------------------------
    \1\ Statement of Henry Solano, Solicitor of Labor at the Department 
of Labor, Subcommittee on National Economic Growth, Natural Resources, 
and Regulatory Affairs, House Committee on Government Reform, hearing 
on non-codified documents: ``Is the Department of Labor Regulating the 
Public Through the Backdoor?'' (Feb. 15, 2000) (exhibit 1).

    Furthermore, at the hearing, Mr. Solano answered questions 
about specific DOL guidance mentioned in the majority's report. 
He admitted that some guidance was not drafted well. 
Nevertheless, he explained, none of it is legally binding. 
Guidance interprets underlying statutory and regulatory 
language. It is not intended to expand upon the underlying 
requirements. Thus, he explained, when someone is found liable, 
they are liable for violating the underlying statute or 
regulation--not for violating guidance.\2\
---------------------------------------------------------------------------
    \2\ Subcommittee on National Economic Growth, Natural Resources, 
and Regulatory Affairs, House Committee on Government Reform, hearing 
on non-codified documents: ``Is the Department of Labor Regulating the 
Public Through the Backdoor?'', 75-76 (Feb. 15, 2000) (stenographic 
record) (hereinafter ``Feb. 15, 2000, hearing'').
---------------------------------------------------------------------------
    In addition, when the subcommittee staff met with 
representatives of DOL, DOT, and EPA afer the hearing, the 
agency representatives reiterated that none of their 
noncodified guidance is legally binding. Moreover, at the 
request of the subcommittee, 10 agencies wrote letters to the 
subcommittee clearly stating that their noncodified guidance is 
not legally binding.\3\
---------------------------------------------------------------------------
    \3\ Appendix G of the majority report includes letters from the 10 
agencies stating that their noncodified guidance is not legally 
binding.
---------------------------------------------------------------------------
    Furthermore, there was no evidence that agencies 
inappropriately implied that their nonbinding guidance was 
binding. On many occasions, the agencies included language in 
guidance documents explicitly stating that the guidance is not 
legally binding. This language is often found in general 
guidance manuals which are provided to a variety of audiences. 
The agencies explained that they did not always include this 
language in agency letters to individuals that answer questions 
about how the law applies to a specific set of facts. This 
guidance is often addressed to sophisticated industry 
organizations who understand that guidance is not legally 
binding.
    Although the report does not clearly list which documents 
it claims are examples of backdoor regulation, it appears to be 
referring to DOL's 1998 and 1999 letters to arborists, its 
November 1999 work-at-home guidance letter, and its December 
1996 guidance letter addressing the definition of ``serious 
health condition'' under the Family and Medical Leave Act. 
However, as DOL explained in written testimony,\4\ at the 
February 15, 2000 hearing,\5\ and in staff meetings, these 
documents were not legally binding. In fact, there is not a 
single instance of legally binding compliance assistance 
identified in the majority report.\6\
---------------------------------------------------------------------------
    \4\ Statement of Henry Solano, supra n.1.
    \5\ Feb. 15, 2000, hearing at 21 and 83.
    \6\ Recently, the Government Accounting Office [GAO] identified an 
instance of an agency guidance document that GAO contends is legally 
binding and should have been issued as a rule. In an Oct. 17, 2000, 
letter to Representative James Leach, the GAO found that a booklet 
issued by the Farm Credit Administration describing a national charter 
initiative meets the requirements of a legislative rule and should have 
gone through notice and comment procedures.
---------------------------------------------------------------------------
    Some of this guidance was later withdrawn when it received 
public criticism. At the February 15, 2000, hearing, Mr. Solano 
of the DOL explained this process when he was asked about the 
1998 and 1999 letters to arborists. He testified:

        In terms of the commercial tree trimming. My comment to 
        that is again at the request of the regulated community 
        we tried to give our best interpretation in response to 
        the questions and the facts provided. When they raised 
        a question about that interpretation we agreed to 
        revisit that interpretation. That is a part of the 
        interchange, the give and take that goes when we try to 
        give our best interpretation. I view that as not a 
        method of back door rulemaking, it is an engagement, at 
        the specific request of the regulated community, to try 
        and give an interpretation. And when there is a 
        question about it, to be open, to reconsider and 
        rethink. So those two examples, to me, represent that, 
        that kind of an example.\7\
---------------------------------------------------------------------------
    \7\ Feb. 15, 2000, hearing at 90-91.
---------------------------------------------------------------------------

               B. CRA Does Not Cover Noncodified Guidance

    The majority also mistakenly concludes that agencies 
inappropriately failed to provide legally binding guidance to 
Congress pursuant to the CRA. This conclusion is unsupported 
because none of the guidance is legally binding.\8\
---------------------------------------------------------------------------
    \8\ The CRA provides that documents that are covered by the CRA do 
not take effect, in most circumstances, until they have been submitted 
to Congress. Hence, if the majority were correct, the guidance could 
not be legally binding until it was submitted to Congress.
---------------------------------------------------------------------------
    The statute provides that, in general, agencies must send 
to Congress any ``agency statement of general . . . 
applicability and future effect designed to implement, 
interpret, or prescribe law or policy.'' \9\ The agencies 
explained in letters, testimony, and staff meetings that, 
because noncodified guidance is not legally binding, it does 
not have ``future effect.'' Therefore, it is not covered by the 
CRA.\10\
---------------------------------------------------------------------------
    \9\ 5 U.S.C. 551 (CRA requirements at 5 U.S.C. 801 provide for the 
submission of rules to Congress. 5 U.S.C. 804 provides that ``[t]he 
term `rule' has the meaning given such term in section 551'' with 
certain exceptions).
    \10\ See, e.g., Feb. 15, 2000, hearing at 66-67. See also, majority 
report, part II (discussion of EPA's correspondence with Representative 
McIntosh).
---------------------------------------------------------------------------
    Ever since Congress enacted the CRA in 1996, legal experts 
have warned that a broad interpretation of CRA requirements 
would be so burdensome as to be impractical. Including 
noncodified guidance under the act could have this effect. If 
agencies were required to send noncodified guidance to 
Congress, agencies would have to compile, copy, and deliver 
their guidance documents to Congress, the Government Accounting 
Office [GAO] would need to review and summarize them, and the 
Senate and House Parliamentarians would need to ensure that 
they are accurately printed in the Congressional Record. 
Although the extent of this burden is not known, the majority 
reports that, when the subcommittee asked only three agencies 
for a subset of their guidance documents produced since 1996, 
it received compendiums totaling over 7,000 documents.
    Moreover, a broad interpretation of the CRA requirements 
could discourage agency guidance. In order to limit their CRA 
responsibilities, agencies might choose to limit the amount of 
guidance they provide to the public. This would be contrary to 
the congressional intent of SBREFA which was passed by Congress 
just 4 years ago.
    Furthermore, a broad interpretation could discourage the 
publication of guidance. Agencies might try to avoid some of 
the CRA burden by answering compliance questions verbally 
instead of in writing. Unfortunately, this practice would put 
the regulated public at a disadvantage. Currently, written 
guidance--although it is not legally binding--may be introduced 
in court as evidence that the individual was acting in good 
faith by relying on agency guidance. This evidence can lead to 
a reduction in penalties and fees. If written guidance is 
discouraged, entities who rely on agency guidance might find it 
more difficult to prove their case.
    Agencies also might be discouraged from their current 
practice of publishing individual guidance on the Internet if 
it is argued that publication makes ``individual'' advice 
``general'' and subject to the CRA. Some agencies have recently 
adopted the practice of publishing individual guidance on the 
Internet in order to provide immediate answers to individuals 
and businesses who may have similar questions. This practice 
not only provides immediate answers, it encourages consistent 
enforcement of the law.
    It is interesting to note that much of the subcommittee's 
investigation and criticism related to the DOL's work-at-home 
guidance letter. Although this letter answered one employer's 
questions, DOL published it on the Internet. If DOL had been 
discouraged from publishing such guidance, the public--and this 
committee--may never have known of its existence.

        C. Majority's Report Does Not Include Relevant Documents

    We are concerned that the majority report has only provided 
one side of the story. For instance, numerous oversight 
requests by Representative McIntosh are attached to the 
majority report, yet the agency responses to these requests are 
not included. Similarly, hearing testimony that supports the 
report's conclusions is attached while agency testimony 
refuting them is missing. In order to provide a more complete 
record--including the agencies views on the facts--we are 
attaching the following to these views:
        Exhibit 1: Testimony provided by Henry Solano, 
        Solicitor of Labor, U.S. Department of Labor [DOL] and 
        Adele Abrams, Esq., American Society of Safety 
        Engineers, at the Subcommittee on National Economic 
        Growth, Natural Resources, and Regulatory Affairs' 
        February 15, 2000, hearing on guidance documents;
        Exhibit 2: Letters from the Office of Management and 
        Budget [OMB] to Representative McIntosh in which OMB 
        states that it has provided adequate assistance to the 
        agencies regarding how they should apply the CRA, 
        related OMB assistance to the agencies, and relevant 
        letters from Representative McIntosh that were not 
        included in the majority's report; and
        Exhibit 3: Letters from the Department of Justice, 
        Department of Labor, Department of Transportation, and 
        Environmental Protection Agency to Representative 
        McIntosh criticizing his proposed legislation that 
        requires agencies to state on all guidance documents 
        whether or not the document is legally binding.

 D. Agencies Have Agreed to Protect Against Confusion About the Effect 
                              of Guidance

    The majority report discusses ways to ensure that people do 
not inaccurately believe that noncodified guidance is legally 
binding. We want the regulated community to understand that 
guidance is guidance--not an expansion of the underlying 
statutory and regulatory requirements. Even if agencies do not 
intend to expand upon legal requirements, they need to make 
sure that the regulated community does not misunderstand the 
legally binding effect of guidance. We are pleased that, as a 
result of the subcommittee's work, the agencies appear to be 
more sensitive to this concern and have agreed that, if the 
legally binding effect of a document is unclear, the agency 
should take whatever steps are appropriate to clear up that 
confusion.
    We are also pleased that Representative McIntosh chose not 
to pursue his ill-advised legislative solution to this problem 
contained in Section 4 of H.R. 3521. That provision provides 
that ``[t]he head of each agency shall include on the first 
page of each statement published by the agency that is not a 
rule a notice that the statement has no general applicability 
or future effect (or both), as applicable, and is not binding 
on the public.'' Although this proposal was intended to clear 
up confusion, it threatened to create even greater confusion.
    At the February 15, 2000, hearing, Representative Kucinich 
expressed numerous concerns with this provision. He explained 
that guidance comes in numerous forms and is directed at 
various audiences. In some instances, general language about a 
document's legally binding effect might not be helpful. For 
instance, it might be confusing to state that guidance is not 
legally binding if the letter in question quotes legally 
binding statutory language.
    The agencies expressed similar concerns at the February 15, 
2000, hearing, at follow-up meetings with subcommittee staff, 
and in letters to Representative McIntosh from the Department 
of Justice, DOT, EPA, and DOL.\11\ They also explained that the 
McIntosh provision is drafted so broadly that it includes more 
than interpretative guidance. The language also includes 
statements such as work site posters advising employees to take 
safety precautions. If these posters included language stating 
that the poster had no legally binding effect, the import of 
the safety message might be weakened. Similarly, the McIntosh 
language includes public service messages such as agency 
posters stating ``say no to drugs'' and DOT bumper stickers 
advising riders to ``buckle up.'' The public would likely be 
confused if these statements included language stating that 
they were not legally binding.
---------------------------------------------------------------------------
    \11\ Letter from Robert Raben, Assistant Attorney General, 
Department of Justice, to Representative McIntosh (June 19, 2000); 
letter from Nancy McFadden, General Counsel, DOT, to Representative 
McIntosh (Feb. 22, 2000); letter from Henry Solano, Solicitor of Labor, 
DOL, to Representative McIntosh (Mar. 16, 2000); and letter from Gary 
Guzy, General Counsel, EPA, to Representative McIntosh (Feb. 25, 2000). 
These letters have been attached as exhibit 3.
---------------------------------------------------------------------------
    Fortunately, as a result of these concerns, Representative 
McIntosh elected not to pursue his legislative proposal.

                                   Hon. Henry A. Waxman.
                                   Hon. Dennis J. Kucinich.
                                   Hon. Tom Lantos.
                                   Hon. Major R. Owens.
                                   Hon. Edolphus Towns.
                                   Hon. Paul E. Kanjorski.
                                   Hon. Carolyn B. Maloney.
                                   Hon. Eleanor Holmes Norton.
                                   Hon. Chaka Fattah.
                                   Hon. Elijah E. Cummings.
                                   Hon. Rod R. Blagojevich.
                                   Hon. Danny K. Davis.
                                   Hon. Harold E. Ford, Jr.
                                   Hon. Janice D. Schakowsky.

    [The exhibits referred to follow:]
    
    

               ADDITIONAL VIEWS OF HON. DAVID M. McINTOSH

    The minority views section of this report confirms many key 
points about agency guidance documents: (1) ``none of their 
noncodified guidance is legally binding;'' (2) ``because 
noncodified guidance is not legally binding, it does not have 
`future effect;' '' and (3) ``guidance is guidance--not an 
expansion of the underlying statutory and regulatory 
requirements.''
    The committee intended to only include the most relevant 
documents in its report. However, since the minority chose to 
include some less relevant documents, the committee wants to 
include some of the other related documents that the minority 
left out. The minority's exhibit 1 includes minority testimony 
from the subcommittee's February 15, 2000 hearing but not 
testimony from four other witnesses. The missing testimony is 
available on the subcommittee's website: http://www.house.gov/
reform/neg/hearings/index.htm. The minority's exhibit 2 is 
missing an October 12, 1999 letter from the subcommittee to the 
Office of Management and Budget [OMB] about its guidance to the 
agencies on the Congressional Review Act [CRA]. The missing 
letter is provided herein. The minority's exhibit 3 is missing 
the subcommittee's January 31, 2000 letters to the chief legal 
officers in the Department of Labor [DOL], the Department of 
Transportation and the Environmental Protection Agency [EPA] 
asking for their views on section 4 in H.R. 3521. The missing 
letters are provided herein.
    I take issue with certain statements in the minority views 
section. I will discuss them in order of their appearance. 
First, the minority states, ``Agency guidance--also known as 
compliance assistance.'' This is untrue since there is a wide 
variety of agency guidance documents, some of which are not 
even intended for compliance assistance. In fact, sometimes the 
audience is not even the regulated public. Agency guidance 
includes documents such as: advisory circulars, booklets, 
bulletins, compliance directives, compliance programs, 
enforcement guidelines, enforcement policies, guidances, 
guidelines, inspection plans, letters, memoranda of 
understanding, models, opinion letters, oral guidance, 
policies, policy clarifications, policy directives, policy 
statements, press releases, program policy letters, staff 
instructions, staff manuals, testimony before Congress, and 
question-and-answer documents.
    Second, the minority incorrectly alleges that the report 
does not include examples of backdoor regulation. Quite to the 
contrary, appendix E, testimony by the National Association of 
Manufacturers [NAM], includes many examples, including 
instances which were successfully litigated. Here are three 
backdoor rulemaking examples in NAM's testimony, which required 
litigation: cooperative compliance program, striker 
replacement, and periodic monitoring guidance. First, NAM sued 
DOL after 12,000 companies received letters from DOL stating 
that they had to comply with new comprehensive safety and 
health requirements or face wall-to-wall inspections. The U.S. 
Court of Appeals for the D.C. Circuit found that DOL exceeded 
its authority by trying to promulgate a standard without using 
notice-and-comment procedures (Chamber of Commerce of U.S. v. 
U.S. Department of Labor, 174 F.3d 206 D.C. Cir. 1999). Second, 
the President issued an Executive order enabling agencies to 
blacklist government contractors who legally hire permanent 
replacements for workers on an economic strike. The order was 
issued without notice and comment and added new penalties. The 
U.S. Court of Appeals for the D.C. Circuit vitiated the order 
(Chamber of Commerce of the U.S. v. Reich, Secretary of Labor, 
74 F.3d 1322 D.C. Cir. 1996). Third, NAM sued EPA for its 
periodic monitoring guidance that changed which monitoring 
results trigger the need to take corrective action and which 
results indicate a violation. The U.S. Court of Appeals for the 
D.C. Circuit vitiated the guidance because of EPA's failure to 
use notice and comment to amend its existing rule (Appalachian 
Power Co. v. EPA, 208 F. 3d 1015 D.C. Cir. 2000).
    In this connection, it is important to note that the 
minority employs circular reasoning to deny the reality of 
backdoor rulemaking. For example, the minority cites agency 
letters and testimony confirming that noncodified guidance is 
not legally binding. The real question is whether agencies ever 
use guidance coercively, as a form of unlegislated compulsion. 
The report and my additional views provide several examples of 
such abuse. What was the public hue and cry over DOL's work-at-
home guidance about, if not the agency's attempt to expand its 
regulatory turf into people's homes?
    Third, the minority misleadingly states, ``On many 
occasions, the agencies included language in guidance documents 
explicitly stating that the guidance is not legally binding.'' 
The subcommittee's investigation revealed that only 8 percent 
of DOL's 1999 Occupational Health and Safety Administration 
guidance documents included any explanation of legal effect and 
only 5 percent put this explanation at the beginning of the 
document. Eight percent is not ``many.''
    Fourth, the minority says that some guidance was later 
withdrawn by the agencies ``when it received public 
criticism.'' Unfortunately, the subcommittee was unable to 
fully investigate the circumstances surrounding DOL's withdrawn 
guidance documents since--even after repeated requests--DOL 
failed to reply to question 7 in the subcommittee's February 
16, 2000 post-hearing questions. Question 7 follows:
        Q7. Withdrawn Guidance.
                a. Besides OSHA's 1999 work-at-home guidance 
                and OSHA's 1998 and 1999 arborists guidance, 
                what other DOL guidance documents have been 
                withdrawn since March 1996 and under what 
                circumstances?
                b. Did DOL ever post these other withdrawal 
                letters? If not, why not? Please provide 
                complete details for each case for the record.
    Fifth, the minority inaccurately captions its Section B 
``CRA Does Not Cover Noncodified Guidance.'' In fact, CRA 
covers any noncodified guidance documents with general 
applicability and future effect. For example, the 
subcommittee's review of EPA's compliance with the CRA revealed 
that, in February 1998, EPA issued ``Interim Guidance for 
Investigating Title VI Administrative Complaints Challenging 
Permits'' (its Environmental Justice guidance). This guidance 
established a framework for handling complaints that are filed 
with EPA's Office of Civil Rights under Title VI of the Civil 
Rights Act of 1964, as amended, and allege disparate 
environmental impacts on minority populations resulting from 
the issuance of industrial site permits by State and local 
governments that receive EPA funding. In light of the legal and 
policy effects of this guidance, the subcommittee asked the 
General Accounting Office [GAO] to determine if this guidance 
is a rule within the meaning of the CRA. On September 1, 1998, 
GAO determined that this guidance is a rule under the CRA and 
indicated that EPA had not yet submitted this guidance for 
congressional review under the CRA.
    For a more recent example, on October 17, 2000, GAO issued 
an opinion on whether the Farm Credit Administration's [FCA's] 
national charter initiative is a rule under the CRA. GAO found 
that FCA's ``National Charters'' booklet, which was issued 
after FCA's withdrawal of the portion of a proposed rule that 
would have had the same effect, constitutes a rule subject to 
congressional review under the CRA and should have been issued 
using notice and comment procedures. The subcommittee continues 
to believe that OMB has failed to fully clarify which agency 
guidance documents are covered by the CRA, resulting in some 
agency noncompliance with the law.
    Sixth, the minority curiously states, ``Moreover, a broad 
interpretation of the CRA requirements could discourage agency 
guidance.'' It is unclear what the minority means by a ``broad 
interpretation.'' What is needed is for OMB to issue complete 
guidance to the agencies that addresses each type of guidance 
documents. In fact, in October 1998, subcommittee counsel 
drafted such guidance for OMB's issuance. However, OMB has 
continued to resist issuing such helpful and complete guidance 
to ensure legal compliance by the agencies.
    Last, the minority expressed its pleasure that I did not 
pursue a legislative solution to ensure clarity for the 
regulated public. However, the absence of a required disclaimer 
at the beginning of each agency guidance document should not be 
used as an excuse for agencies to continue their current 
practice of almost never clarifying the legal import of their 
guidance documents within those documents. The minority's claim 
that any requirement to clarify the legal status of guidance 
documents can be confusing is absurd. It assumes that the 
public is smart enough to figure out the unstated legal status 
of documents several hundred pages in length, but not smart 
enough to understand a 2-3 sentence clarification of the 
document's legal status.

                                   Hon. David M. McIntosh.

    [The exhibits referred to follow:]
    
    
                                  
