i see it. i cannot -- i cannot -- it makes it extraordinarily difficult. regulator, tax another benefit of a letter ruling in terms of creating certainty as the taxpayer moves forward. giving them the opportunity to rely on a letter ruling so they can make economic decisions for their business. to prohibitoo far guidance, or to too narrowly , -- i think one of the problems that i have had reading and thinking about this issue has been definitional.

line,ody has a different and we will have to navigate that. one thing that we don't want to have happen is for people's relationship with the regulated industry to materially change as a result of the guidance and dramatically shift. then, we start thinking, that is not the right way to make that decision. this is probably something that needs a greater period of comment or a substantive rulemaking process. work through-- this but i hope as the expert at gao on this that we can rely on the expertise of that agency as we think about definitional changes or what might in fact be the right response to some of these concerns. senator ernst?

want to express the frustration that i am hearing from so many of my constituents on some of these very issues in front of us today. feelr from them that they the government is out to get them from these memorandums and changes. as we look at the proposed guidances, or the ones we have today. it seems that no matter what the issue is, this administration seems to be circumventing the american people and their right to comment before they make these changes. the memorandum, and you

mentioned it about the process safety management of highly hazardous chemicals and application of the retail exemption, issued by the department of labor in july, it does reclassify the majority of traditional farmer's cooperative in iowa. warehousebusinesses, and distribute crop nutrients across the state. i would use more anhydr osamonia than any other state. madehanges that osha has will be difficult, if not impossible, for the companies to element within the six months provided and will yield little if any safety benefits. we will cost these retailers tens of thousands of dollars per

site, a cost that will be passed onto the family farms that they serve. since they did not go to the formal rulemaking process, these key stakeholders were not afforded the opportunity to comment on the impact these changes and regulations will have on their livelihood. going back to the anhydrous amonia safety. the change to do away with the 50% rule? talk about the process and what led to that because the senators i'm sure are aware that these documents are the subject of litigation. i cannot talk about the substance of the specifics.

as we know this was in response to the tragic explosion in west texas. it injured hundreds more. reuters reported $100 million in damage. west texas will never be the same. all of us are committed to preventing any sort of catastrophic tragedy again. there really was a robust engagement process as we embark on following that. this began from an executive order from the president, a careful look at the regulation and the conclusion that the guidance was out of date. we then embarked on a very robust stakeholder engagement process. that clearlyan r forecast that we were looking at the hazardous chemicals. it really communicated that this is what we're looking at and we are publishing an rfi in the

federal register and getting these comments back. we. ernst: it sounds like should have gone to the rulemaking process rather than going through a memorandum. >> i think this is a case where we looked at the requirements for omb on significant guidance. this did not meet those requirements but we knew that this was a really important issue that would benefit from more public input, so we pursued strategies that would get that. we had meetings that involved thousands. to getly of worked hard exposure. sen. ernst: and this was in response to the west texas explosion. that was determined to be ammonium nitrate, not anhydrous ammonia. those are two separate substances. so why the change in the 50% rule for a substance that wasn't even involved in that incident?

>> thank you for clarifying, that it was in response to west texas and other chemical explosions. we saw that we needed to have some common sense practical approach to make sure we were implementing the intent of those regulations. that we were giving clear guidance to the regulated community about what we need to be doing differently, to keep people safe, and to prevent an explosion like this from happening again. separatet: two substances. we are responding to a situation that certainly needed some guidance, to fill some gaps. with the agency ended up doing was covering a whole other group of chemicals weather has not been incidents -- where there has not been incidents. >> what we are charged with is was the guidance effectively

showing congress'intent? we worked hard over a two-year process to have a lot of stakeholder engagement. be, ernst: my point would if we are going through a two-year process engaging the public, then it should be through a formal rulemaking process. if it is that lengthy, and we are engaging thousands of people, they need the formalized rulemaking process. if we are taking that time, we might as well do it in a way that we are able to engage all of the stakeholders, especially when it is so economically impactful to their livelihood. again, it was done through a more informal process where the agency was able to determine that even substances that were not involved in such a significant accident are included. that would be my point. if we are taking the time to do this, it should be through

formalize rulemaking. thank you, mr. chair. alexander: thank you, mr. chair, and thank you for including me. i congratulate you and -- for your leadership. it may not be the sexiest topic and walks into an -- washington, but it is at home. washington, d.c. looks like amount was to be us of regulations -- looks like a mount vesuvius of regulations. thank you for the subject enter leadership. about ask miss mcintosh the department of education. year, catherine lehman, the assistant secretary for the opposite of civil rights was testifying and this was the exchange. you talk about something called

guidance and i have here 66 pages of guidance. do you expect institutions to comply with your title ix guidance documents? lehman --we do. alexander -- why do not go to the same process your department is undergoing? lehman: we would if they were regulatory changes. aren't theyhy regulatory changes? who gave you the authority to do that? gratitude, you did when i was confirmed. miss mcintosh, do you believe we gave you the authority to make title ix regulations binding? >> thank you for that question.

as you know, i wasn't there. sen. alexander: i know. clear in mybe very opening statement that guidance that the department issues does not have the force of law. this is theer: assistant secretary of the department with title ix which affects 6000 institutions and she had not gotten word. who is going to tell her? are you? know,she knows, and as i title ix is the binding law that applies in the cases. senator alexander so guidance under title ix is not binding? >> guidance under title ix is not binding. it helps the many people who are subject to title ix understand what they need to do to comply with the law. senator alexander: who is going to tell miss lehman this? >> i had the discussion with her

and she fully agrees -- sen. alexander: did she haave a lapse of memory that they? >> i cannot speak to her. sen. alexander: she described it as a bullying guidance. on the website it is not listed as a significant guidance. >> i don't have it on my list of significance, but let me describe the process -- -- sen.alexander bang alexander: there are to be some input from those affected. forhe procedures significant guidance are very clear,. and we follow those. sen. alexander: apparently this was not a significant guidance. that is odd to me because bullying is a big subject. we had a big debate on it in the united states senate. reauthorization

of higher education, elementary and secondary act which got 81 votes. it was bipartisan and the one overriding subject was we did not want a national school board. we did not have any agreement among ourselves on whether we should be telling 100,000 public schools with their discipline and bullying policies should be. where does the department of education get the authority to issue a guidance or regulation on bullying? where is that in the law if the united states senate thinks that it is making the law of bullying or not? senator of all, alexander, thank you very much for your leadership and a bipartisan work that the senate has done toward a new esca bill. i think the bullying guidance you are talking about stems from civil rights law, that is also a

law of congress. doesn't sayer: it anything about bullying. you're talking about title vi? thatthink you would agree bullying could be a serious problem and a violation -- sen. alexander: it is a problem but the united states senate doesn't agree that the federal government are to be telling the local school what it's bullying policy ought to be, so where does the department of education get the authority to think that everyone she issues a guidance to has to do what she says? rights,ffice of civil according to the laws of congress, gets complaints about civil rights violations from schools, higher ed institutions. some of those complaints relate to bullying. of civilto the office rights to follow-up on all complaints about civil rights violations. sen. alexander: it is not up to

the office of civil rights to make a law. the federal law doesn't say anything about bullying. the united states congress is still debating it and off she goes telling what hundred thousand schools whether they are a native alaskan school or the mountains of tennessee that this is how you ought to handle discipline. >> we did not make any new law or binding requirements. sen. alexander: she says her edicts are binding and she issued one on bullying. my time is up. sen. daines: thank you mr. chairman, i would like to thank you for coordinating this. i'm happy to be on this dais to be part of this hearing. i would agree with senator alexander's comments about what i hear home in montana. i hear more about regulations,

concerns and ambiguity and the force of such an impact on small businesses than i do about taxes. i applaud the chairman and the ranking member for moving forward with these discussions. i believe this matter of regulatory oversight and accountability is one of the most fundamental of congress'responsibilities and a dialogue here today is important. that agencies often use these interpretive rules to expand regulations, rather than merely provide clarification. since interpretive rules are not required to undergo notice and comment, it often allows a channel for unvented regulation to negatively effect a small business. a more transparent and protectable process for widely promulgated rules would resolve this dilemma and encourage business growth and job creation.

a question for miss maxwell, in your written testimony you state that effective regulations help achieve congress' objective to invest in human capital and building skilled infrastructure that supports business growth. there does seem to be a positive length between regulatory transparency and job creation. franchise business owner in montana is named brad anderson. he has buffalo wild wings all over the state. he provides jobs to allow college students the ability to make a wage and put themselves through college. they are great businesses. let me quote what brad said to me, " interpretive rules are changing the nuts and bolts operations of how restaurants operate. when the department of labor issues interpretive rules on a regular basis, and

unpredictability is the norm, you had better believe it causes businesses like mind to think twice about considering automating processes over making the additional higher. interpretive rules discourage job creation." how do youl, recognize the statement from your testimony with the economic reality my constituent is facing. >> thank you for your question. when i spoke in my opening testimony about the work that we do to invest in the skills infrastructure to make sure that workers have the skills they need to compete in the global economy, and that employers have a skilled workforce that they need, it speaks to the diversity and range of the responsibility of the department of labor. it speaks to the diversity of the different guidance documents. we are a department that enforces many labor standards.

we are a department that invests in the workforce system. we have a really wide range of responsibilities that congress and trusts in us to implement -- entrusts in us to implement. i think that speaks to the range of guidance documents that you see. daines: does that suggest- that some of these are ineffective as we think about stimulating jobs growth? >> we work so hard to make sure that this guidance is not making any new requirements. we follow the rules, the apa and the onb bulletin. guidance is to clarify expectations and to hear from

them about what we need to do better and differently. i would also say -- an open door. we would happily make time to hear from that constituent in your district, and to hear about how any of our guidance documents are impacting them. sen. daines: we will be talking about more transparency. i have a question, but i am running out of time. you mentioned in your testimony baior to the perez vs m decision which overturned long-standing precedent to subject modified interpretive rules to notice and comment. do you believe that the perez vs mba ruling made the regulatory environment more or less protectable. sager: the nature of the perez decision is something we did note and a report.

we do not reinterpret legal rulings but as we discussed in senator heitkamp's question -- >> is the light on your microphone? the green light is not coming on -- there we go. sorry about that. opinion,es: in your didn't make it more or less predictable? ms. sager: the very nature of this topic is fraught with difficulty. agencies have a tremendous amount of discretion in issuing guidance and that is by design. depending onoken, how extensive the efforts are to communicate with stakeholders, they may not be aware of what agencies are issuing or what their responsibilities are for complying.

daines: the feedback from the folks in the trenches who are trying to grow jobs and make small businesses work are telling me it is less predictable. we have introduced a bill, regulatory predictability for growth business act that would reinstate the previous court precedent. i think reinstating it -- that helped divide better predictability in this process. that this will be a legislative fix to what happened in court this year. to open up all microphones and this will be more of a free-flowing conversation. members need not wait on each other. let's have an open dialogue and it will be the same for our witnesses. you can interject at any point. i want to make a quick comment on what senator dance just said. on theare some concerns

banker's decision. i don't think i am alone on that. justice sotomayor made a comment where she said there may be times when an agency's decision to issue an interpretive rule rather than legislative is driven by a desire to skirt notice and comment provisions. justice scalia said to expand its domain the agency only need more substantive rules broadly and vaguely leaving gaps to be filled in later using interpretive rules unchecked by notice and comment. the apa does not remotely contemplate this regime. this is an issue i have a concern. one of the reasons we are having this hearing today is to say we have to get ahead of this, so that in the days ahead we are clear on what is a guideline, guidance and rule. we are still a nation of the people, by the people, for the

people which means people should still have an engagement with the government. if the government notifies people how to run the business rather than business working with government, the whole thing is on its head. let me make a quick comment to back up from might questions earlier. a complete list of guidance. a new compliance person comes in at a university in the previous person did not take good notes. a brand-new person can easily go to the federal register and find all of the regulations, but looking up the dear collegue letters from as far back as they want to go and determine where are the guidance letters. to a person comes fertilizer plant and are trying to finalize it all, where would they go to get all of the

previous guidance and how far do they have to go back to get that? one of the questions that senator alexander and i asked. we wrote to the secretary of education saying, how do we get a complete list of guidance. what we got back was a list of and manys to websites, of these different hyperlinks were not all connected to each other. there was no central location. some of them did not work. they use all sorts of different terms say you cannot tell what is a guidance and what is not. even one of the simple questions we asked was, tell us any complaints that have come in about guidance, shockingly, since 2007 the department of education shared with senator alexander and i that there had been no complaints on any guidance. we got nothing back. while i find that striking, knowing some of my fellow oklahomans seem to find a lot of thinks a complete about, i'm

stunned that 300 million americans have no complaints. let me ask the general question, how would someone go get guidance so they know they have a complete, comprehensive guidance document from education or department of labor? where would they go to get that? in mcintosh: the new person a university does not need to get all of the guidance that we have ever issued. they need to go and find the documents that are relevant to someone in that position. they would find them on our website. it would take -- all the significant guidance is clearly labeled and in one place. on the website relating to people from universities are references to other kinds of dear colleague letter sent guidance. i would argue that it is most important that the person start

with understanding which laws apply. many of the guidance documents we issue might not be relevant. what is relevant to them is which laws apply and then the guidance can help that person sort out what they need to do. thing, thethis one gao report does point out for many of our agencies, that it can be a little difficult to get everything in one place. committed towe are taking a good, hard look at the usability of guidance documents on our websites. and to analyze the data about usage that comes from them, to make sure that people are able to find the documents. the last thing i would say is, you asked about guidance documents and whether they closed the door to public comment.

i would strongly disagree. almost every guidance document either starts from a set of questions that come from constituents. manyny questions -- and instances we engage during guidance and every document opens up another opportunity for comment and feedback. all of our guidance documents have links to communicate back with us. additional those deals and thoughts about whether we need to revise guidance or do a webinar. it is a continuous process. sen. lankford: i understand that but this sumptuous main that of course everyone is keeping up-to-date with our guidance and we have done this for years and is new people moved to different

universities, they don't have that previous experience. there is a centralized place to go. that is a major issue for us. significantry few guidance documents. we will talk about that more and a moment. the department of labor and where they would go to get guidance. ms. maxwell: for starters i auld say that the gao does pretty good job. we take seriously getting the information that you need and if there are gaps and our response, we commit to following up to make sure that you have the information that you need.

the pieces i would say to this question of how people find with their need, the fullness of guidance documents. i grew up in omaha nebraska. i have not lived most of my life in the beltway and i bring that perspective to my work every single day. and where i live people don't know the epa or the omb bulletin. there are real people and a myriad of different situations running a business or a worker working in a business. understandant to what their rights and responsibilities are. they want to be in compliance. that is the purpose of guidance. people may or may not know to call it guidance. i don't know if it would look on the website for guidance. but