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OCR Page 1 of 37fed emp
DAN BURTON, INDIANA,
CHAIRMAN
BENJAMIN A. GILMAN, NEW YORK
PALPAUE
HENRY A. WAXMAN. CALIFORNIA
CONSTANCE A, MORELLA. MARYLAND
ONE HUNDRED SIXTH CONGRESS
RANKING MINORITY MEMBER
CHRISTOPHER SHAYE, CONNECTICUT
TOM LANTOS CALIFORNIA
ILEANA ROB-LBHTINEN. FLORIDA
ROBERT E. WISE, in. WEST VIRGINIA
JOHN M. McHUGH, NEW YORK
Congress of the United States
MAJOR R. OWENS. NEW YORK
STEPHEN HORN, CALIFORNIA
EDOLPHUS TOWNS, NEW YORK
JOHN L. MICA FLORIDA
PAUL E. KANJORSKI PENNSYLVANIA
THOMAS M. DAVIS III. VIRGINIA
PATSY T. MINK, HAWAII
DAVID M, MCINTOSH, INDIANA
MARK E. SOUDER. INDIANA
house of Representatives
CAROLYN M. MALONEY NEW YORK
ELEANOR HOLMES NORTON
JOE SCARBOROUGH. FLORIDA
DISTRICT OF COLUMBIA
STEVEN C. LATOURETTE OHIO
CHAKA PATTAH, PENNSYLVANIA
MARSHALL "MARK" BANFORD, SOUTH CAROLINA
COMMITTEE ON GOVERNMENT REFORM
ELIJAH E. CUMMINGS, MARYLAND
BOB BARR, GEORGIA
DENNIS J. KUCINICH, OHIO
DAN MILLER, FLORIDA
2157 RAYBURN HOUSE OFFICE BUILDING
ROD R. BLACC.IEVICH ILLINOIS
ASA HUTCHINSON, ARKANSAS
DANNY K. DAVIS, ILLINOIS
LEE TERRY. NEBRASKA
JOHN F. TIERNEY, MASEACHUSETTS
JUDY BIGGERT, ILLINOIS
WASHINGTON, DC 20515-6143
JIM TURNER, TEXAS
GREG WALDEN, OREGON
THOMAS H. ALLEN, MAINE
DOUG OSE, CALIFORNIA
HAROLD E. FORD. JR., TENNESSEE
PAUL RYAN, WISCONSIN
MAJORITY (202) 225-5074
JANICE D. SCHAKOWSKY ILLINOIS
HELEN CHENOWETH. IDAHO
MINOMITY (202) 225-5061
DAVID VITTER, LOUISIANA
TTY
(202) 225-8852
BERNARD SANDERS, VERMONT
INDEPENDENT
May 31, 2000
BY FACSIMILE
The Honorable Alexis M. Herman
Secretary
Department of Labor
200 Constitution Avenue, N.W. - Room S2018
Washington, D.C. 20210
Dear Madam Secretary:
This letter continues our investigation of the Federal agencies' use of non-codified
documents (such as guidance, guidelines, manuals, and handbooks) as opposed to codified
regulations or legislation. Early this year, the Department of Labor (DOL) admitted that all of its
Occupational Safety and Health Administration non-codified documents issued since March
1996 do not have general applicability and future effect and are not legally binding. I understand
that DOL will be admitting that they also do not have any legal effect. On February 15, 2000,
DOL's Solicitor testified that DOL's non-codified documents were not being used as backdoor
rulemaking. Now, our investigation is turning to the Federal agencies' use of codified
Congress, i.e., backdoor legislating.
regulations instead of legislation for significant policy changes without a specific delegation by
First, DOL's regulatory proposal to use unemployment compensation for paid family
leave seems to me to be backdoor legislating. As a consequence, I object to DOL's pending final
UI"). I have concerns not only about the statutory basis for this rulemaking but also about
rule, entitled "Birth and Adoption Unemployment Compensation" (popularly known as "Baby
DOL's compliance with certain provisions governing codified regulations, including Executive
Order (E.O.) 12866, the Small Business Regulatory Enforcement Fairness Act (SBREFA), the
Regulatory Flexibility Act (RFA), the Unfunded Mandates Reform Act (UMRA), and the
Paperwork Reduction Act (PRA). To be fair to DOL and to understand the basis for its
approach, I asked to review all of its internal legal analyses relating to its decision to propose
also wanted to see how DOL analyzed its legal obligations under E.O. 12866 and the
regulatory change instead of initiating a legislative proposal ("DOL's 48 internal documents"). a I
aforementioned laws governing rulemaking.
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