[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\
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\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\
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\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'').
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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\
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\3\ Appendix G of the majority report includes letters from the 10
agencies stating that their noncodified guidance is not legally
binding.
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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\
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\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.
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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\
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\7\ Feb. 15, 2000, hearing at 90-91.
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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\
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\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.
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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\
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\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).
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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.
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\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.
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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:]