The Honorable Julie A. Su, Acting Secretary, U.S. Department of Labor — November 2, 2023 (The House Committee on Small Business)

Summary

A letter dated November 2, 2023 from the House Committee on Small Business, signed by Chairman Roger Williams, to Acting Secretary of Labor Julie A. Su and Assistant Secretary Christopher J. Williamson of the Mine Safety and Health Administration. The letter objects to the Department of Labor's stated practice of not discussing its proposed rules with Congress, in connection with the Committee's investigation of agency compliance with the Regulatory Flexibility Act. It cites House Rule X and court decisions on congressional oversight authority. The Committee reiterates requests from its July 20, 2023 and September 28, 2023 letters and asks for six additional items, including DOL's policies on sharing information with Congress, by November 16, 2023. The 5-page letter reprints the eleven earlier questions on the effects of proposed MSHA and DOL rules on small businesses.

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                                              November 2, 2023

The Honorable Julie A. Su                                   The Honorable Christopher J. Williamson
Acting Secretary                                            Assistant Secretary of Labor
U.S. Department of Labor                                    U.S. Mine Safety and Health Administration
200 Constitution Ave. NW                                    201 12th St. S. Suite 401
Washington, DC 20210                                        Arlington, VA 22202

Dear Acting Secretary Su and Assistant Secretary Williamson:

         The House Committee on Small Business (the Committee) writes regarding the
Department of Labor’s (DOL) policy to not discuss its proposed rules with Congress. As part of
the Committee’s investigation into how agencies comply with the Regulatory Flexibility Act
(RFA), the Committee sent the DOL and the Mine Safety and Health Administration (MHSA)
letters seeking a deeper explanation of two recently proposed rules’ impact on small businesses.1
In response, the DOL and the MHSA indicated they will not discuss proposed rules with
Congress.2 The Committee vehemently disagrees with the DOL’s policy and seeks a deeper
explanation of how the DOL complies with Congressional requests for information.

        In response to letters from the Committee, the DOL and the MHSA indicated it was
against their policy to comply with Congressional requests for information on its proposed rules.3
In a follow up conversation between Committee and DOL staff, DOL staff indicated that this
was an internal practice and they did not believe an actual written policy existed.4 The DOL also
indicated in their response that they would submit the Committee’s letter as a comment on its
rule, and may address the Committee’s concerns in the preface to its final rule.5 Leaving a
comment on this proposed rule was not the Committee’s intent when sending our
communications, and our questions were not rhetorical comments for the record; the Committee
is well aware of the process it should go through to submit comments on rules. The Committee

1
  Letter from Roger Williams, et al., Chairman, H. Comm. on Small Bus., to Julie A. Su, et al. Acting Sec’y, U.S.
Dep’t of Labor (Jul. 20, 2023); Letter from Roger Williams, et al., Chairman, H. Comm. on Small Bus., to Julie A.
Su, Acting Sec’y, U.S. Dep’t of Labor (Sept. 28, 2023).
2
  Letter from Liz Watson, Assistant Sec’y, U.S. Dep’t of Labor., to Roger Williams, et al., Chairman, H. Comm. on
Small Bus. (Sep. 1, 2023) (Through discussions with the DOL Office of the Solicitor, the Committee was informed
that DOL would not provide substantive responses on any letters sent regarding its proposed rules).
3
  Letter from Liz Watson, Assistant Sec’y, U.S. Dep’t of Labor., to Roger Williams, et al., Chairman, H. Comm. on
Small Bus. (Sep. 1, 2023).
4
  Call between H. Comm. on Small Bus. Staff and Dep’t of Labor Staff (Oct. 16, 2023) (notes on file with
Committee Staff).
5
  Letter from Liz Watson, Assistant Sec’y, U.S. Dep’t of Labor., to Roger Williams, et al., Chairman, H. Comm. on
Small Bus. (Sep. 1, 2023).
The Honorable Julie A. Su
The Honorable Christopher J. Williamson
November 2, 2023
Page 2 of 5

disagrees with the DOL’s conclusion that communications regarding this rule constitute
comments for the record, and the DOL’s belief that a nonspecific response included in the
preamble to its final rule is a sufficient response to this Committee.

        Pursuant to House Rule X, this Committee has a duty to the House of Representatives
and the American people to legislate and conduct oversight on “the problems of all small
business.”6 The Committee cannot conduct oversight if the DOL continues to withhold requested
information. Similarly, the Committee cannot draft adequately informed legislation without the
DOL’s input on substantive questions. As a general rule, ex parte communications between
federal agencies and Congress are encouraged for Notice-and-Comment rulemakings such
these.7 Courts have found that better legislation and rules are created when agencies and
Congress work together to create rules which implement legislation correctly.8 This is valuable
since agencies are tasked with implementing laws and have subject matter expertise in the
relevant field, while Congress is responsible for passing the laws, thus having a better
understanding of its intent and purpose.

        In your responses to the Committee, you indicated “the Department examined the impact
of the proposed rule on small businesses, in accordance with the Regulatory Flexibility Act.”9
While it is reassuring the DOL claims to have considered these interests, the purpose of our letter
was to ensure that the DOL was, indeed, complying with their obligations to small businesses.
Congress' authority to conduct oversight is inherent in Article I, sec. 1 which states: "All
legislative powers herein granted shall be vested in a Congress of the United States." The United
States Supreme Court has consistently affirmed Congress’s authority to conduct oversight and
investigations, holding that “the power of inquiry—with process to enforce it—is an essential
and appropriate auxiliary to the legislative function.”10 Rule X of the Rules of the United States
House of Representatives delegates this responsibility to standing committees.11

        Denying the Committee the requested information prevents it from upholding and acting
in furtherance of its legislative function, namely reviewing regulatory burdens imposed on small
businesses by federal agencies and determining how they may be alleviated.12 This includes the
ability of this body to initiate investigations to inform itself about how existing laws function,
whether new laws are necessary and if old laws should be repealed or altered. Responding
substantively to the Committee’s letter using information available in the docket, or information




6
  Rules of the House of Representatives, Rule X(1), 118th Cong. (2022).
7
  MAEVE P. CAREY, ET AL., CONG. RESEARCH SERV., IF12368, COMMUNICATIONS BETWEEN CONGRESS AND
FEDERAL AGENCIES DURING THE RULEMAKING PROCESS (Mar. 30, 2023).
8
  Sierra Club v. Costle, 657 F.2d 298, 409 (D.C. Cir. 1981).
9
  Letter from Liz Watson, Assistant Sec’y, U.S. Dep’t of Labor., to Roger Williams, et al., Chairman, H. Comm. on
Small Bus. (Oct. 18, 2023).
10
   McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
11
   Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020); McGrain v. Daugherty, 273 U.S. 135 (1927).
12
   Rules of the House of Representatives, Rule X(1)(q)(1), 118th Cong. (2022).
The Honorable Julie A. Su
The Honorable Christopher J. Williamson
November 2, 2023
Page 3 of 5

DOL makes available prior to the final rule, would in no way undermine the completeness of the
docket or effectiveness of this rulemaking.13

       It is important for agencies to examine small businesses interests—which make up 99.9
percent of all businesses in the United States—when passing any new rule. America’s small
businesses deserve to have their voices heard and considered. Seeing no valid reason for the
DOL withholding information on this rule, we reiterate our requests from our July 20, 2023 and
September 28, 2023 letters as well as request the following additional information as soon as
possible but no later than November 16, 2023:

     1. A copy of DOL’s policy with regard to sharing information with Congress generally.

            a. An explanation of when this policy was implemented, and any policy which may
               have predated DOLs current policy regarding sharing information with Congress.

     2. A copy of DOL’s policy with regard to responding to Congressional oversight requests
        related to a proposed rule.

            a. An explanation of when this policy was implemented, and any policy which may
               have predated DOLs current policy regarding sharing information with Congress.

     3. An explanation of the legal reason the DOL believes sharing information with Congress
        regarding proposed rules is improper.

     4. An explanation for DOL’s rationale for not engaging in ex parte communications with
        Congress about proposed rules.

     5. All training and supplemental support materials provided by the DOL to its employees
        regarding the Regulatory Flexibility Act.

     6. An explanation for how the DOL accounts for the disparate costs incurred by small
        businesses compared to larger businesses, when conducting rulemaking.

       For your convenience, the requests from the July 20, 2023 and September 28, 2023 letters
are copied below:

     1. What impact would this rule have on entrepreneurs seeking to open a new mine?

     2. In its Initial Regulatory Flexibility Analysis, MSHA proposed an alternative rule which
        would accomplish the department’s goals while reducing the cost of this rule on small



13
  Administrative Procedure Act (APA), 5 U.S.C. § 553; See also JONATHAN GAFFNEY, CONG. RESEARCH SERV.,
LSB10558, JUDICIAL REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT (APA) (Dec. 8, 2020).
The Honorable Julie A. Su
The Honorable Christopher J. Williamson
November 2, 2023
Page 4 of 5

      businesses by nearly 30 percent. Why did the MSHA not select this option as its primary
      proposal?

   3. This rule justifies not permitting mines to rely on Powered Air Purifying Respirators
      (PAPRs) because “respiratory protection should only be relied upon as an exposure
      control measure in limited situations and on a temporary basis.” During the multi-year
      COVID-19 Pandemic, the CDC asserted that the respiratory protection provided by cloth
      and N-95 masks was an effective, reliable, and useful tool in mitigating the inhalation and
      spread of the SARS-CoV-2 virus. Why would respiratory protection used by untrained
      civilians be effective at preventing the inhalation of a virus, which measured just
      microns, but superior respiratory protection, such as PAPRs, be ineffective at preventing
      the inhalation of silica dust particles, which are up to ten times larger?

   4. What specific acts does MSHA expect small mines to undertake that will increase their
      compliance costs?

   5. Table IV-3 within the proposed rule indicates that stone cutting operators were at nearly
      twice the risk of severe silica inhalation when compared to any other mining operator.
      Why then, does this rule not account for variations such as the location of the mine, or the
      material being mined, when creating the assessment and record keeping standards?

   6. According to the proposed rule, there is no data available to determine whether small
      businesses are more or less likely than non-small businesses to employ exempt EAP
      workers or affected EAP workers. The DOL states that the best assumption available is to
      assign the same rates to all small and non-small businesses. How did the DOL come to
      this conclusion?

   7. The DOL uses data from 2017 to estimate the number of impacted small businesses.6
      This data is already six years old and is out-of-date. Does the DOL have any more recent
      data to verify these numbers?

   8. The DOL estimates that it would take only an hour for each entity to become familiar
      with the content of this rulemaking. However, since small entities often have limited
      human resources or legal personnel on staff, how did the DOL reach the conclusion that it
      will only take an hour?

   9. The DOL expects that small entities would rely on compliance assistance materials
      provided by the DOL or industry associations to become familiar with the final rule.7
      Where exactly can small businesses access these materials and what materials are
      provided?

   10. The DOL estimates that the rule would affect 1.3 million workers who are employed by
       between 179,700 and 1.3 million small entities; comprising from 2.8 percent to 20.8
The Honorable Julie A. Su
The Honorable Christopher J. Williamson
November 2, 2023
Page 5 of 5

         percent of all small entities. This is an unacceptable large range. Does the DOL expect
         the number of affected small entities to be closer to 1.3 million or 179,700?

      11. The proposed rule states that it is possible that the costs of the proposed rule are
          disproportionately large for small entities. What alternatives have been considered to
          lessen the impacts on small businesses?

       To schedule the delivery of your response or ask any related follow-up questions, please
contact Committee on Small Business Majority Staff at (202) 225-5821. The Committee on
Small Business has broad authority to investigate “problems of all types of small business” under
House Rule X. Thank you in advance for your cooperation with this inquiry.

                                          In God We Trust,




                                        Roger Williams
                                            Chairman
                                    Committee on Small Business



cc:      The Honorable Nydia M. Velasquez, Ranking Member
         Committee on Small Business


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