Legislation in the United States senate. Save more than 18,000 lives each and every year. Thats right, 18,000 lives each and every year. We arent talking about anything other than the results of sound science. And because of that sound science, we know that at approximately five we know that at approximately five months babies can feel pain. We know that if a baby were to need prenatal surgery at that age tivhey would be given an anesthia why, because that little life feels pain. Yesterday, mr. President , senator gave name after name after name of babies born around five months who have gone onto live healthy and full lives. This, mr. President , is not about prochoice or prolife. It is simply about protecting tenin fingers, ten toes and one beating heart and bringing the amazing gift of life. And in our world, out of merely 200en nations, only seven allow abortions on demand of 20 weeks. Only seven out of 200 nations, whos among the seven nations, china, north korea, vietnam and the United States, really . And so while i may stand here today, mr. President , with a nine in my stomach, i also stand with hope. Hope that we can take a massive step forward in protecting life. 18,000 lives a year by passing this important legislation. America is truly a great nation and so lets improve our reputation and not lower our expectations because as john wythm said nearly 400 years ago, we should be as a city upon a hill the eyes of all people upon us. Thank you, mr. President. Mr. President , senator from soutseh carolina. I ask consent that quorum call be equally charged to each side. With that objection i note the we are live now in capitol hill for a Senator Committee hearing examining the labor and education to clarify issues and existing regulations. Witnesses today include officials from the tbot Government Accountability departments and oklahoma senator is the chair of the committee. Im sorry, north dakota senator. It appears we are waiting for the democrats to arrive including the Committee Member and as soon as that happens, we expect the hearing to go under way. Lye coverage on cspan2. Well get started. Good morning, everyone. Welcome to the discussion on the regulatory state, use of guidance. One of the common ways to communicate. In my first to take a full step back and look at the whole pictures. Not always begins with us, with congress, passing law to provide statutory. One of the areas that the Ranking Member have talked about often that congress has responsibility to write statutes. Agencies and rule making authorities and regulations, regulations are legally binding that are enforceable and those who fail comply my face hefty fine and jail. It requires agencies to publish a notice and receive Public Comment before they promulgate rules. Notice in comment is critical for the agency to get feedback from related parties and to the american peam people to make sure it is transparent and fair. People must have a voice in the rule making. Congress in the need to get information, also provide in the apa requirements for interpreted rules. These terms are grouped together under the umbrella of guidance. Guidance is a helpful tool, for example, agencies desire point of view, Agency Guidance is useful by exempting it from notice requirements. Therefore, when an agency chooses it may public on web scythe website and do that immediately. It comes with a catch. Guidelines may not impose legal obligation on the agency or parties it regulates beyond those inherent. Given characteristics guidance is not binding but legal requirements and regulated partys obligations, it can be very difficult even for experts to determine or when a document can be rightly called a guidance and go to rigor of apa and rule making. In fact, the Government Accountability office found legal scholars with determinations. I do believe that agencies my issue guidance with the best of intention to clear confusion or provide timely information. However, also i also concerns of regulated entities that must swift through huge stacks of guidance with varying names to make sure they are complying with standards. For example, the department has issued advisory opinions, notices to interested persons, questions and answers and circulars just to make a few. Frequently asked questions, program memos and manuals. I hope the discussion to select guidance and Going Forward. Today concerns by which decision to issue guidance is made. Making process to the Public Notice and comment is wrong in and of itself. Even if the substance of the policy it articulates is sensible. In the past, for example, watchdog organizations and committees have expressed concerns with department guidance. In 2010, 11 and 14, the officer issued guidance on bullying, Sexual Assault. The letter expand prohibited conduct in the way Disciplinary Procedures can be conducted and the scope to prohibit contact. The department of education is rarely challenged likely because the powerful position, schools frequently follow guidance without question for fear of an investigation that may damage their Academic Reputation or federal funding. Because of this the department may continue to improperly issue guidance. More recently t Labor DepartmentOccupational Health and Safety Administration issued guidance on standards. Both issued three process Safety Standards and ps memorandum. Suggested many presly unregulated parties and compounded costs. To maintain integrity of process, i hope the department of labor reconsiders the manner in which it affected regulated stakeholders within the jurisdiction. Principles are subject to procedures mandated by the ap ark. Im grateful for work and look forward for her testimony. Also with us officials with the department of labor and education. In may senator alexander wrote to the department of labor and education asking to determine when to issue guidance in lieu of rule making. In response, they provided some helpful insights and i look forward to expanding on some of the insights today. This is something that is a serious issue. Its not just the two agencies, this is a bigger issue. And even in the letter that we promulgated and in other questions that we had, this is not picking on two agencies, this happened to be two agencies that there are a lot questions and a lot of guidance documents. As i mentioned before, some of the guidance is good policy, its the process that we are talking about to make sure people are included in it. With that, i would like to recognize member. Thank you, it may not sound like the most topic. We get very excited about all these topics. But obviously this is one of incredible importance and one that affects so many of our businesses and so many of our schools and pretty much the regulatory community. As i said, regulations almost what our nation and citizens do. They keep products and food safe, they work to prevent fraud and keep our economy and americans working. However, sometimes the language agencies use creates confusing and seemingly conflicting standards. Guidance is the means by which businesses can get the clarity and answers theyre searching for. It gives them certainty. Guidance helps clarify expectations. Guidance for exchanges and tool to streamline processes. Guidance allows business to better understand the relationship with the regulator. Guidances nor should it be rule making. Its important to recognize that more obvious than not, guidance comes at the request of the regulated parties. Any work that we do here must not exchange for valuable tool and full business government. Theres more to guidance than simply clarifying views and expectations. The create creation must take into account to the parties. Guidance cannot change law, it has the power to influence markets. In order for this to be truly exceptional process, we must ensure that there are seats for all interested parties at the table, and that seat must be a real seat. However, theres a difference between having a seat at the table and getting one own way. The Congress Holds the key. Sometimes agencies simply do not have the authority to alter a regulation due to a statutory mandate. In these instances, it is up to congress, it is up to everyone to ensure that we listen to agencies an we listen to businesses and we listen to those who are regulated. It is up to us to be willing to Work Together to tweak and amend legislation when necessary. It is up to us to ensure that good intentions do not overly burden our economy. In reviewing the testimony and reports in preparation for the hearing, it seems that theres much we can do as a chamber to ensure that guidance published is of the highest quality. Its important that theres con consistency. We are looking at and thats the role at the committee to look at a systemic view, however illustrations can inform us on the types of reforms that we may we may be advancing out of this committee. Small businesses dont always have the staff or the time to swift through pages and pages. In fact, i can guaranty you they do not have the staff or the time to swift through pages. Administrator memorandums and program instructions. We need to work to make sure that guidance is accessible to the public. We need to ensure that one does not have, does not need to have intimate knowledge of the regulatory state to understand what is and what is not a guidance document. We need to simplified terms and create consist consist i look forward to hearing from our witnesses and hopefully having a fairly lively debate on what we could all learn from these examples and move forward to amend the system when it isnt working. Thank you, mr. Chairman. Thank you. At this time we will proceed testimony from the witnesses. It is the tradition of this committee that we have two rounds of questions. The first round of the questions will be structured 5minute time period. So we will go around the dias. We will have open dialogue so any member can jump in at any time and have dialogue and follow up on questions and answers. But the first round will be very structured. I hope that makes sense. Let me introduce our witnesses and well ask you to be sworn in as well. Michelle sagger. Ms. Sagger manages governmental and budget issues with multiple federal agencies. She served at john hopkins as well as Public Policy. Previously chief of staff from the department, Senior Adviser to the secretary of labor. Amy of the department of Education Office of policy development. Your card must have two sides. [laughs] the front and the back. In this capacity she overseas policy management from kindergarten and policy services. She was assistant secretary k12. Before that she served in various capacities in new york state, new York City Department of education. Thank you all for appearing before today as its a custom to swear. If you dont mind, please stand and raise your right hand. Do you swear the testimony that youre about to give before the subcommittee is the truth, the whole truth and nothing but the truth, so help you god. Thank you, you may be seated. Let the record reflect the witnesses answered in the affirmative. Before we begin, we would ask consent for senators alexander to be recognized before the subcommittee today. Much of what we discuss today will relate directly to a may seventh letter sent to withins in the department of education and labor. The leadership has been extraordinary and im happy to have him here today. Senator danes has taken leadership roles in the issues and we welcome here today. With that objection, so ms. Sager, you are first to give testimony. Thank you for the invitation to appear before you today and discuss guidance process. My remarks will explain aspect of Agency Communication and highlight answer to four key questions that were covered in the topic. First what is Regulatory Guidance and second how do agencies use Regulatory Guidance and when to issue guidance and fourth, how can agencies ensure more effective guidance pro procesees. First in terms of Regulatory Guidance is a communication tool that agencies use to communicate about the implementation of regulatory and Grant Programs to regulate a party, to guarantees and the general public. One of the main purposes of guidance is to explain and help regulate a party comply with agencies regulations. Regulatory guidance can take a variety of formats and names, fax sheets. They help agencies move quickly using rule making. Even though guidance is not legally binding guidance can have a significant effect on regulated entities and the public both because entities rely on large values and guidance can prompt changes in the behavior of regulated parties and the again public. Second, in terms of how agencies use Regulatory Guidance, in our report we focus on four agencies and we found that officials at the Department Said agricultural, education, house and Human Services and labor use guidance for a number of purposes include to go including to explain and respond to questions from regulated entities or leadership priorities. Departments typically identify very few of guidance documents as significant which is defined by the office of management and guidance with a broad and substantial impact on regulated entities. A third in terms of the decision of whether to issue guidance or undertake rule making officials considered a number of factors before making this decision. He among those factors was whether or not they intended for the guidance document to be legally binding. Officials said that they generally understood when guidance was inappropriate and when it was more appropriate to undertake rule making. Fourth, in terms of how agencies can ensure that their guidance process addhere, we also found that they could strengthen their internal control or their management control to ensure that their guidance achieved desired results and also prevent errors. In absent for specific nonspecific guidance which is the majority, the application of internal controls is particularly important. The 25 Agency Components within the four agencies included in our review addressed some control standards more regularly than others. So for example, both components, very few have written procedures that govern their guidance production. All components could describe process that they followed for management approval of their guidance. We recommended that agencies adhere to requirements for significant guidance and also strengthen their internal controls for guidance production processes. They report they were taking actions with the recommendations. In summary, agencies must exercise diligence in issuing guidance. Although its not legally binding, guidance documents can affect the actions of stake holders and other breasted parties by articulating as well as interpretations. The effects of these documents and risk of legal challenges to agencies underscore the need for consistent and well understood processess for guidance. This concludes my statement. I look forward to any questions that you may have. Thank you. Thank you. Good morning, mr. Chairman, Ranking Member, members of the subcommittee, senators. Thank you for the opportunity to testify on the departments labor effort to disseminate accurate guidance to inform stakeholders of opportunities and do so in a way with applicable laws and procedures. The Department Takes this seriously including but issuing regulation that is give employers workers and the workforce system the information they need to comply with the law and achieve safety and security in the workplace. Employers, workers, job seekers and retirees, clarify requirements that are set out in statutes and regulations. We consider letters an phone calls that we received from members of congress, public, listening sessions with stakeholders, regular request for information and more depending on the situation. The departments guidance concern number of different purposes clarifying regulations and providing information and providing assistance responding to specific stake holder questions and directing to existing resources. We strive to issue guidance to members of the public and who should not have to hire a lawyer to understand the law. The wage and Hour Division created a handbook about rights and responsibilities under the family and medical leave act that weigh requests for people and what people should consider in responding to requests. Guidance helps us to maintain responsibility to respond to stake holder questions and challenges. For example, Occupational Safety and Health Administration coordinated the worker safety and Health Aspects of domestic response to last year response to ebola outbreak. Of course, there are situations in which we more formally seek Public Comment on a guidance document because of its cig nickance. We abide by the administrative procedure act and guidance and we are pleased the audit found that the department consistently applied requirements for Public Access and feedback for significant guidance. An example of that this past spring, the Department Published for comment proposed guidance to assist the Contracting Community in applying president obama fair pay and work executive order including severity of violations. Providing 90 days to weigh in on the full implementation picture. As gao noted in agency, and we do work hard to use technology to share guidance. We focus