[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
THE 60TH ANNIVERSARY OF THE ADMINISTRATIVE PROCEDURE ACT: WHERE DO WE
GO FROM HERE?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 25, 2006
__________
Serial No. 109-133
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
28-907 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
CHRIS CANNON, Utah Chairman
HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio CHRIS VAN HOLLEN, Maryland
MARK GREEN, Wisconsin JERROLD NADLER, New York
J. RANDY FORBES, Virginia DEBBIE WASSERMAN SCHULTZ, Florida
LOUIE GOHMERT, Texas
Raymond V. Smietanka, Chief Counsel
Susan A. Jensen, Counsel
Brenda Hankins, Counsel
Mike Lenn, Full Committee Counsel
Stephanie Moore, Minority Counsel
C O N T E N T S
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JULY 25, 2006
OPENING STATEMENT
Page
The Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Chairman, Subcommittee on Commercial and
Administrative Law............................................. 1
The Honorable Melvin L. Watt, a Representative in Congress from
the State of North Carolina, and Ranking Member, Subcommittee
on Commercial and Administrative Law........................... 3
WITNESSES
Professor William West, The Bush School of Government and Public
Service, Texas A&M University, College Station, TX
Oral Testimony................................................. 46
Prepared Statement............................................. 48
Professor Marshall Breger, The Catholic University of America--
Columbus School of Law, Washington, DC
Oral Testimony................................................. 53
Prepared Statement............................................. 56
Professor M. Elizabeth Magill, University of Virginia School of
Law, Charlottesville, VA
Oral Testimony................................................. 69
Prepared Statement............................................. 73
Professor Cary Coglianese, University of Pennsylvania Law School,
Philadelphia, PA
Oral Testimony................................................. 77
Prepared Statement............................................. 81
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Chris Cannon, a
Representative in Congress from the State of Utah, and
Chairman, Subcommittee on Commercial and Administrative Law.... 2
Material submitted by Chairman Cannon from the Federal
Administrative Law Judges Conference........................... 5
APPENDIX
Material Submitted for the Hearing Record
Revised Prepared Statement of Professor M. Elizabeth Magill,
University of Virginia School of Law, Charlottesville, VA 107
Response to Post-Hearing Questions from Professor William West,
The Bush School of Government and Public Service, Texas A&M
University, College Station, TX................................ 112
Response to Post-Hearing Questions from Professor Marshall
Breger, The Catholic University of America--Columbus School of
Law, Washington, DC............................................ 116
Response to Post-Hearing Questions from Professor M. Elizabeth
Magill, University of Virginia School of Law, Charlottesville,
VA............................................................. 122
Response to Post-Hearing Questions from Professor Cary
Coglianese, University of Pennsylvania Law School,
Philadelphia, PA............................................... 124
THE 60TH ANNIVERSARY OF THE ADMINISTRATIVE PROCEDURE ACT: WHERE DO WE
GO FROM HERE?
----------
TUESDAY, JULY 25, 2006
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:30 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Chris
Cannon (Chairman of the Subcommittee) presiding.
Mr. Cannon. The Committee on the Judiciary's Subcommittee
on Commercial and Administrative Law will come to order.
The current Federal regulatory process faces many
significant challenges. Just last week, the Subcommittee on
Commercial and Administrative Law conducted a hearing on
legislation aimed at addressing various loopholes and recurrent
inefficiencies involving the Regulatory Flexibility Act of
1980. As this hearing revealed, these shortcomings in the
regulatory process translate into real costs that are borne by
every American.
Other problematic issues that have arisen over the years in
the area of administrative law and procedure include the
absence of transparency at certain stages of the rulemaking
process, the increasing incidence of agencies publishing final
rules without having them first promulgated on a proposed
basis, the stultification of certain aspects of the rulemaking
process, and the need for more consistent enforcement by
agencies.
Given the fact that the Administrative Procedure Act was
enacted more than 60 years ago, a fundamental question that
arises is whether the act is still effective in the 21st
century.
To help us answer that question, House Judiciary Committee
Chairman Sensenbrenner, with the active support of Ranking
Member Conyers, last year asked our Subcommittee to spearhead
the Administrative Law Process and Procedure Project.
With the objective of conducting a nonpartisan,
academically credible analysis, the project will culminate with
the preparation of a detailed report with recommendations for
legislative proposals and suggested areas for further research
to be considered by the hopefully soon-to-be reactivated
Administrative Conference of the United States.
As many of you know, ACUS was an independent agency that
served as a think-tank and made numerous recommendations that
improved efficiency, adequacy, and fairness of the procedure
used by agencies to carry out administrative programs. We are
particularly pleased that Professor Breger, who previously
served 6 years as the chairman of ACUS, is here to share his
views on the state of the APA, especially in light of his
experience with ACUS.
Today's hearing is one of a series of programs and hearings
that our Subcommittee has conducted as part of this project. In
addition to the Regulatory Flexibility Act, the Subcommittee
conducted a hearing on the Congressional Review Act, as well as
a hearing on the project itself.
The Subcommittee has also cosponsored two symposia as part
of the project. The first symposium, held last December,
focused on Federal e-Government initiatives. This program,
chaired by Professor Coglianese, examined the executive
branch's efforts to implement e-rulemaking across the Federal
Government. Professor Coglianese will provide a summary of that
symposium for us today, as well as an update on subsequent
developments, especially with respect to the Government-wide
Federal docket management system.
The Subcommittee's second symposium examined the role of
science in the rulemaking process. Issues considered at that
program included OMB's recent initiative dealing with
regulatory science and the role of science advisory panels.
A further symposium is planned for September 11, 2006,
which will examine such issues as the respective roles that the
executive and legislative branches play in the rulemaking
process. As part of the project, several studies are also being
conducted. One of these studies, which another of our
witnesses, Professor Bill West, will discuss today, examines
how agencies develop proposed rules.
While the APA generally requires agencies to involve the
public in the rulemaking process by publishing notices of
proposed rulemaking to which the public can submit comments,
critical decisions regarding proposed rules are often made in
the months and perhaps even years before rules are published.
Surprisingly, little is known about how agencies actually
develop these rules. Professor West's study will shed some
light on this heretofore unexamined area of the rulemaking
process.
At this time, I would like to extend, on behalf of the
Subcommittee, our thanks to the Congressional Research Service
for funding this very much needed research and for its role, as
particularly exemplified by Mort Rosenberg and Curtis Copeland,
in coordinating this and other research endeavors for the
project. As Professor Magill will later explain, the need for
empirical research is not being met. This gap only emphasizes
the need to reactivate ACUS.
I now turn to my colleague, Mr. Watt, the distinguished
Ranking Member of the Subcommittee, and ask him if he has any
opening remarks.
[The prepared statement of Mr. Cannon follows:]
Prepared Statement of the Honorable Chris Cannon, a Representative in
Congress from the State of Utah, and Chairman, Subcommittee on
Commercial and Administrative Law
The current federal regulatory process faces many significant
challenges. Just last week, the Subcommittee on Commercial and
Administrative Law conducted a hearing on legislation aimed at
addressing various loopholes and recurrent inefficiencies involving the
Regulatory Flexibility Act of 1980. As this hearing revealed, these
shortcomings in the regulatory process translate into real costs that
are borne by every American.
Other problematic issues that have arisen over the years in the
area of administrative law and procedure include the absence of
transparency at certain stages of the rulemaking process, the
increasing incidence of agencies publishing final rules without having
them first promulgated on a proposed basis, the stultification of
certain aspects of the rulemaking process, and the need for more
consistent enforcement by agencies.
Given the fact that the Administrative Procedure Act was enacted
more than 60 years ago, a fundamental question that arises is whether
the Act is still effective in the 21st Century.
To help us answer that question, House Judiciary Committee Chairman
Sensenbrenner--with the active support of Ranking Member Conyers--last
year asked our Subcommittee to spearhead the Administrative Law,
Process and Procedure Project. With the objective of conducting a
nonpartisan, academically credible analysis, the Project will culminate
with the preparation of a detailed report with recommendations for
legislative proposals and suggested areas for further research to be
considered by the hopefully soon-to-be reactivated Administrative
Conference of the United States.
As many of you know, ACUS was an independent agency that served as
a think tank and made numerous recommendations that improved the
efficiency, adequacy, and fairness of the procedure used by agencies to
carry out administrative programs. We're particularly pleased that
Professor Breger, who previously served six years as the Chairman of
ACUS, is here to share his views on the state of the APA especially in
light of his experience with ACUS.
Today's hearing is one of a series of programs and hearings that
our Subcommittee has conducted as part of this Project. In addition to
the Regulatory Flexibility Act, the Subcommittee conducted a hearing on
the Congressional Review Act as well as a hearing on the Project
itself.
The Subcommittee has also cosponsored two symposia as part of the
Project. The first symposium, held last December, focused on federal e-
government initiatives. This program, chaired by Professor Coglianese
(pronounced ``Co-lone-niece''), examined the Executive Branch's efforts
to implement e-rulemaking across the federal government. Professor
Coglianese will provide a summary of that symposium for us today as
well as an update on subsequent developments especially with respect to
the government-wide Federal Docket Management System.
The Subcommittee's second symposium examined the role of science in
the rulemaking process. Issues considered at that program included
OMB's recent initiatives dealing with regulatory science and the role
of science advisory panels.
A further symposium is planned for September 11, 2006, which will
examine such issues as the respective roles that the executive and
legislative branches play in the rulemaking process.
As part of the Project, several studies are also being conducted.
One of these studies, which another of our witnesses--Professor Bill
West--will discuss today, examines how agencies develop proposed rules.
While the APA generally requires agencies to involve the public in
the rulemaking process by publishing notices of proposed rulemaking to
which the public can submit comments, critical decisions regarding
proposed rules are often made in the months and perhaps even years
before rules are published. Surprisingly, little is known about how
agencies actually develop these rules. Professor West's study will shed
some light on this heretofore unexamined area of the rulemaking
process.
At this time I would like to extend--on behalf of the
Subcommittee--our thanks to the Congressional Research Service for
funding this very much needed research and for its role, as
particularly exemplified by Mort Rosenberg and Curtis Copeland, in
coordinating this and other research endeavors for the Project. As
Professor Magill will later explain, the need for empirical research is
not being met. This gap only emphasizes the need to reactivate ACUS.
Mr. Watt. Thank you, Mr. Chairman.
I thank the Chairman for convening this hearing and for the
very important and strong and committed leadership role that he
has played in taking the charge of our Chairman, Mr.
Sensenbrenner, and the Ranking Member, seriously and studying
this area.
Today, as he has indicated, we will hear from noted
scholars on various aspects of the Administrative Procedure
Act. APA is as important now as it was when it was first
enacted in 1946. From Administration to Administration, whether
Democratic or Republican, the role of the administrative
agencies in our political system cannot be underestimated.
Although recently new entities have emerged to compete for
the title of fourth branch of Government, such as the media,
lobbyists and corporate interests, of course, there is no doubt
that our administrative agencies continue to exercise power
officially reserved for the first three branches, or power not
defined by the Constitution at all.
The Administrative Procedure Act is a necessary tool to
ensure that the power conferred upon the agencies is not abused
and that it is exercised efficiently and fairly. Our rapidly
changing technological landscape requires that we look to see
whether the APA requires modernization to ensure that fairness
and efficiency remain viable.
So I look forward to hearing from the witnesses about the
various developments in the area of administrative rulemaking
and the regulatory process, with an eye toward improving and
strengthening the process.
My staff person has just reminded me that if the APA is 60
years old, it is a baby-boomer. So we need to be researching
our own roles. Maybe we have two baby-boomers here, trying to
figure out what to do about another baby-boomer. So everybody
is studying age and growing old. It is time that we do it on
the APA.
Thank you. I yield back.
Mr. Cannon. I thank the gentleman.
Without objection, the gentleman's statement will be placed
in the record. Hearing no objection, so ordered.
Without objection, all Members may place their statements
on the record at this point. Hearing no objection, so ordered.
Without objection, the Chair will be authorized to declare
recesses of the hearing at any point. Hearing no objection, so
ordered.
I ask unanimous consent that Members have 5 legislative
days to submit written statements for inclusion in today's
hearing record. Hearing no objection, so ordered.
Some of the witnesses have asked for additional time to
submit more formal statements. We appreciate your willingness
to be here, and in a couple of cases on relatively short
notice, and so I ask unanimous consent that the witnesses be
allowed 5 days within which to submit more formal statements.
Hearing no objection, so ordered.
At this point, I would like to submit on unanimous consent
a statement from the Federal Administrative Law Judges
Conference for inclusion in the record. Hearing no objection,
so ordered.
[The material referred to follows:]
Mr. Cannon. I am now pleased to introduce the witnesses for
today's hearing.
Our first witness is Dr. Bill West of the Bush School of
Government and Public Service at Texas A&M University. A 1971
graduate of the United States Military Academy, Dr. West earned
his Ph.D in political science at Rice University. Currently, he
teaches public policy administration at the Bush School. He
also serves as the school's director of the Master in Public
Service and Administration program. Dr. West has authored two
books and published numerous articles.
Our next witness is Marshall Breger, who is a professor of
law at the Columbus School of Law at the Catholic University of
America and was my chief of staff Matt Iandoli's professor
while he studied at Catholic.
Professor Breger has had a diverse career. From 1993 to
1995, he was a senior fellow at The Heritage Foundation. During
the prior Bush administration, he served as solicitor of labor,
the chief lawyer for the Labor Department. In 1992, he served
concurrently by presidential designation as the acting
assistant secretary for labor management standards.
As I alluded to earlier, Professor Breger was the chairman
of ACUS from 1985 to 1991. For 2 years during that period, he
served as an alternate delegate of the United States to the
United Nations Human Rights Commission in Geneva.
A prolific writer and editor, Professor Breger is vice
president of the Jurispolicy Center, a Jewish conservative
think-tank. Professor Breger obtained his undergraduate and
master's degrees from the University of Pennsylvania. He
received his law degree magna cum laude from the University of
Pennsylvania, where he was an editor of the law review and a
member of the Order of the Coif.
Our third witness is Professor Elizabeth Magill of the
University of Virginia Law School, where she teaches, not
surprisingly, courses on administrative law, as well as on food
and drug law and constitutional structure.
Upon obtaining her undergraduate degree from Yale College,
Professor Magill served as a senior legislative assistant for
North Dakota Senator Kent Conrad. Thereafter, she obtained a
law degree from the University of Virginia School of Law. After
graduating from law school, Professor Magill clerked for the
Honorable J. Harvey Wilkinson of the Fourth Circuit Court of
Appeals, and then for Justice Ruth Bader Ginsburg. Like her
fellow panelists, Professor Magill has also published
extensively.
Our final witness is Professor Cary Coglianese. As I noted
in my opening remarks, Professor Coglianese was the moderator
of the Subcommittee's symposium on e-rulemaking, which was held
in this very room last December.
Welcome back.
Professor Coglianese is the Edward B. Shils professor of
law and professor of political science at the University of
Pennsylvania Law School. Prior to joining the University of
Pennsylvania, Professor Coglianese spent 12 years on the
faculty of the John F. Kennedy School of Government at Harvard.
While there, he served as the faculty chair in the school's
Regulatory Policy Program and director of its Politics Research
Group.
Professor Coglianese received his undergraduate degree from
Albertson College. He then went on to the University of
Michigan, where he received his law degree and master's degree
in public policy, as well as a doctorate in political science.
I extend to each of you my warm regards and appreciation
for your willingness to participate in today's hearing.
In light of the fact that your written statements will be
included in the record, you may not want to limit your comments
to 5 minutes. We will have time for questions, and you can
certainly volunteer things during the Q&A. I don't think we are
going to have a great deal of competition from other Members of
the Committee here.
You do have a lighting system in front of you. After 4
minutes, it turns from green to yellow. It is my habit to tap
just with a pencil or something to draw your attention to the
fact that we are getting to that point. It is not a big deal
today, given the fact that we are not overwhelmed with folks
that want to ask questions.
After you have presented your remarks, we will go in order,
if others arrive, of arrival, to ask questions. Pursuant to the
direction of the Chairman of the Judiciary Committee, I ask the
witnesses to please stand and raise your right hand to take the
oath.
[Witnesses sworn.]
The record should reflect that the witnesses all answered
in the affirmative.
You may be seated.
Professor West, would you please proceed with your
testimony?
TESTIMONY OF PROFESSOR WILLIAM WEST, THE BUSH SCHOOL OF
GOVERNMENT AND PUBLIC SERVICE, TEXAS A&M UNIVERSITY, COLLEGE
STATION, TX
Mr. West. I am Bill West from The Bush School of Government
and Public Service at Texas A&M University. Thank you for
inviting me to testify in commemoration of the 60th anniversary
of the APA.
My testimony today will focus primarily on parts of a
recent exploratory study of how agencies develop proposed
rules. The study was conducted by a team of seven Bush School
students that I supervised and that was supported by the
Congressional Research Service. Curtis Copeland and Mort
Rosenberg of CRS provided invaluable support and guidance for
the project.
I might also note that Caitlyn Miller, who is the student
leader of the project, is here today.
Mr. Cannon. Could I interrupt and ask who Ms. Miller is?
Could we have her raise her hand?
Welcome. Nice to have you here today.
Pardon me for the interruption.
Mr. West. That is fine.
The 60th anniversary of the APA is a good occasion to
consider its effects and its limitations. An especially
important, if neglected topic, is that part of the rulemaking
process that takes place before the APA's requirements come to
bear. Notice and comment is intended to ensure that rulemaking
is transparent and accessible to all relevant stakeholders. Yet
although these procedures are undoubtedly salutary, it is also
true that they come to bear at a relatively late stage in the
decision-making process.
The part of the rulemaking process that precedes the
publication of notice frequently lasts for several years and
almost always results in a specific and thoroughly justified
policy proposal. It is where the most critical decisions often
occur. If public notice and comment is intended to promote
inclusive and transparent participation in decision-making
therefore, how inclusive and transparent is participation in
proposal development?
As a starting point, one thing that our study finds is that
pre-notice participation is common and that it takes place
through a variety of mechanisms. Although participants vary a
great deal from one agency to the next, and indeed from one
rule to the next, they can include representatives of industry
and other affected interests, public interest groups and other
agencies. OMB and other entities within the executive office of
the president are also sometimes involved.
Unlike notice and comment under the APA, however,
participation in the development of proposed rules usually does
not occur by general invitation. Rather, it is informal and
occurs at the specific invitation of the agency or at the
initiative of the participant. The primary exception to this is
when agencies solicit comments from all interested parties
through an advance notice of proposed rulemaking. Although
agencies' use of advanced notice varies, it is never routine or
even frequent. It is probably employed significantly less than
5 percent of the time across the Federal bureaucracy.
Participation during the pre-notice phase of rulemaking
thus is not subject to the same institutional guarantees of
inclusiveness that the APA provides during the comment phase.
Whether this is a problem, much less a problem that Congress
should address, suggests a number of more specific questions.
For example, how effective are agencies in gathering input
from all relevant stakeholders during proposal development? If
they are not effective, do the APA's notice and comment
requirement serve as a check on earlier imbalances in
participation? Would the benefits of institutional reforms that
might increase inclusiveness in proposal development outweigh
their costs in terms of administrative efficiency?
Our examination of pre-notice rulemaking also addresses the
question of transparency. Although the APA is silent on the
subject, there has been an expectation since the 1970's that
agencies base their rules on a record. Although they generally
docket communications outside the executive branch that occur
after the publication of notice, however, there is wide
variation across agencies in pre-notice docketing practices.
Some indicate that they record all communications with non-
executive actors throughout this phase. Others indicate that
they do not require any pre-notice docketing.
In between these two extremes there is variation in the
types of communications placed on the public record and in the
stage of the proposal development process at which docketing
begins. As with inclusiveness, the policy issues surrounding
transparency are complex.
If on-the-record communications promote openness in
decision-making, for example, they may also impede the
collection of needed information. As in the legislative
process, moreover, on-the-record communications may be inimical
to the bargaining and compromise required for the accommodation
of affected interests.
Some officials we interviewed for our study also indicated
that off-the-record communications with other agencies and OMB
were important for coordination among administrative programs.
Indeed, any effort by Congress to require docketing within the
executive branch would necessarily have to consider the court's
sympathy for a unified executive in recent decades.
I should hasten to emphasize that our study was designed to
identify key issues, rather than to resolve them. In these and
many other respects, gaining a better understanding of the
administrative process is an essential foundation for sound
institutional policy.
Again, I am grateful for the opportunity that you and CRS
have given to us to explore one broad dimension of rulemaking,
and I applaud other recent initiatives to shed more light on
topics such as e-rulemaking and the role of advisory committees
in administrative decision-making.
As an extension of these last observations, let me close by
stressing the need to devote more resources to policy and legal
analysis in the administrative process. For years, the
Administrative Conference of the United States produced
objective studies by first-rate scholars that were of
considerable practical, as well as academic value.
I am happy that ACUS has been reauthorized, and I would
like to join those who have argued that it should be re-funded
as well. This would produce substantial benefit for relatively
little cost.
Thank you.
[The prepared statement of Mr. West follows:]
Prepared Statement of Professor William West
I am Bill West from the Bush School of Government and Public
Service at Texas A&M University. Thank you for inviting me to testify
in commemoration of the 60th anniversary of the Administrative
Procedure Act. I am honored to be here.
My testimony today will focus primarily on the results of a recent
study of how agencies develop proposed rules. The study was conducted
by a team of seven Bush School students that I supervised and that was
supported by the Congressional Research Service. Curtis Copeland and
Mort Rosenberg of CRS provided invaluable support and guidance for the
project. I am also grateful to Daniel Mulhollan, Angela Evans, and Kent
Ronhovde for their initiatives in establishing a relationship between
CRS and the Bush School. Our study of rulemaking is one of several
worthwhile projects that CRS has sponsored at the Bush School and other
schools of public affairs.
The Administrative Procedure Act is a venerable statute that has
served the nation well. As many have remarked, however, American
administrative law was a comparatively new field at the time the APA
was enacted and the so-called bureaucratic state was still in its
relative infancy. New procedural constraints on agency discretion have
been added as the bureaucracy has grown and as new issues of legitimacy
and accountability have arisen. Mechanisms for direct oversight of
administrative policy making have been added as well. The most
important development in this latter regard has been the
institutionalization of regulatory review in the Executive Office of
the President that has occurred over the past three decades.\1\ The
various controls that shape the administrative process have been added
largely in a piecemeal fashion and perhaps without sufficient
consideration of how they all fit together.
---------------------------------------------------------------------------
\1\ James Blumstein, ``Presidential Administration and
Administrative Law: Regulatory Review by the Executive Office of the
President: An Overview and Policy Analysis of Current Issues,'' Duke
Law Journal 51 (2001).
---------------------------------------------------------------------------
In any case, the 60th anniversary of the APA is an appropriate
occasion to consider its effects and its possible limitations. With
regard to rulemaking, one might examine the effects of public comment
on agency decisions or the impact of judicial review (or the threat
thereof) as the meaning of the ``arbitrary-or-capricious'' standard has
evolved. Or one might examine the relationship between the APA's
objectives, on the one hand, and centralized executive oversight of
rulemaking on the other. Scholars have, in fact, given a good deal of
attention to these and other important topics relating to formal,
institutional constraints on agencies' exercise of legislative
discretion.
At the same time, scholars have practically ignored the informal
processes that precede the APA's notice-and-comment requirements and
most other controls on rulemaking. This, despite the fact that the most
important policy decisions in rulemaking are arguably made as proposals
are being developed. I have noted elsewhere that the notices of
proposed rulemaking that appear in the Federal Register are usually
very specific. Further, they often take years to develop and reflect a
substantial investment of agency resources. Important proposals are
sometimes accompanied by book-length documents that lay out their legal
and empirical premises. Suffice to say that agency officials usually
feel that they are on firm ground before they invite public comment,
and that the most critical issues in terms of defining problems and
eliminating alternative solutions to those problems have at least
tentatively been resolved.\2\
---------------------------------------------------------------------------
\2\ William F. West, ``Formal Procedures, Informal Processes,
Accountability, and Responsiveness in Bureaucratic Policy Making,''
Public Administration Review 64: 66-80 (February 2004).
---------------------------------------------------------------------------
This is not to deny the importance of notice and comment. Several
recent studies have found that agencies do sometimes alter proposed
rules in ways that are consistent with the comments they receive.\3\ As
a matter of perspective, however, it is difficult for agencies to
change proposed rules in fundamental ways. An obvious disincentive is
sunk organizational costs. Intertwined with this is the fact that the
demands of due process may compel agencies to invite additional
comments in response to substantial changes, thus lengthening an
already protracted process.\4\ An irony of rulemaking procedures is
that the effort to ensure the viability of public comment by requiring
agencies to base their decisions on a record (as the courts have
generally done since the 1970s and has Congress has done in some
enabling legislation) creates an incentive for agencies to develop
proposals that will not need to be changed.
---------------------------------------------------------------------------
\3\ Ibid. Also see Steven J. Balla, ``Administrative Procedures and
Political Control of the Bureaucracy,'' American Political Science
Review 92: 663-673 (1998). Marissa Martino Golden, ``Interest Groups in
the Rulemaking Process: Who Participates? Who Gets Heard?'' Journal of
Public Administration Research and Theory 8: 245-70 (1998). Cornelius
M. Kerwin, Rulemaking: How Government Agencies Write Law and Make
Policy, 2d. ed. (Washington, D.C.: Congressional Quarterly Press,
2003). Susan Webb Yackee, ``Sweet-Talking the Fourth Branch: Assessing
the Influence of Interest Group Comments on Federal Agency
Rulemaking,'' Journal of Public Administration Research and Theory 26:
103-24 (2006).
\4\ West, supra note 1. These observations were also confirmed in
some of the interviews conducted for the study described in this
testimony.
---------------------------------------------------------------------------
With these observations as a point of departure, the project that
we conducted for CRS examines how agencies develop proposed rules. It
relies primarily on agency documents, on an electronic questionnaire
sent to agency staff involved in the development of a large sample of
individual rules, and on telephone interviews with high-level agency
careerists with extensive experience in the rulemaking process. As an
exploratory study, it addressed three general sets of issues as a way
of identifying questions for further research: how are rulemaking
initiatives placed on agencies' agendas: how is the rulemaking process
managed within and across agencies; and what is the character of
outside participation in the development of proposed rules. The last of
these questions may be especially relevant to the Congress as it
considers possible amendments to the APA.
The goals of the APA offer a frame of reference for evaluating
participation in proposal development. The Act sought to provide some
uniformity across agencies (at least regulatory agencies) as they
carried out their quasi-judicial and quasi-legislative
responsibilities. By the same token, it sought to ensure a degree of
due process that was appropriate for each of these functions. In the
case of rulemaking, the ``informal'' or ``notice-and-comment''
procedures set forth in section 553 were designed to promote a certain
level of rationality as well as transparency and inclusiveness in
administrative policy making. The requirements that agencies publish a
notice in the Federal Register and solicit comments from any and all
interested parties were designed to promote these latter, democratic
values.\5\
---------------------------------------------------------------------------
\5\ The Administrative Procedure Act: A Legislative History
(Washington, D.C.: U.S. Government Printing Office, 1946) Senate Doc.
248, 79th Cong., 2d. Sess.
---------------------------------------------------------------------------
As many have noted, developments in administrative law over the
past three-and-a-half decades have been intended to reinforce these
goals. The most important has been the requirement that agencies based
their rules primarily on a record. This has resulted in part from
provisions in some enabling statutes that supersede the APA and in part
from judicial (re)interpretation of the APA's ``arbitrary or
capricious'' standard of review. Although the courts have backed off
from the precedents of the 1970s in some respects, the ``hard-look''
doctrine of review is hardly dead--especially if one compares current
practices with those that existed during the first two-and-a-half
decades after the APA's passage. Whether instituted by Congress or the
courts, the extension of more rigorous due process to rulemaking has
been motivated in part by the desire to ensure that bureaucracy
consider all legitimate comments in arriving at policy decisions.\6\
This goal became popular as the result of the allegation that agencies
were ``captured'' by special interests.\7\
---------------------------------------------------------------------------
\6\ Colin S. Diver, ``Policymaking Paradigms in Administrative
Law,'' Harvard Law Review 95: 393-434 (1981).
\7\ Richard B. Stewart, ``The Reformation of American
Administrative Law,'' Harvard Law Review 88: 1667-1814 (1975).
---------------------------------------------------------------------------
If many of the most important decisions are made before notice
appears in the Federal Register, however, what of the participation
that occurs as agencies are developing proposals? How inclusive and
transparent is that process? As with most of the other issues we
examined in our study, there are no simple answers here. This is
largely because agency practices are so diverse with regard to most of
the key dimensions of proposal development. Although we had hoped that
the data from our electronic survey would allow us to make systematic
comparisons of such variation across agencies and policy areas, a low
response rate prevented this. Still, our interviews and survey data
allow for some important observations that suggest further study and
that may ultimately be relevant for institutional reform. Indeed, the
observation that such variation exists may be significant in and of
itself given the relative standardization of practices within the
comment phase of rulemaking.
One thing that we found is that outside participation in proposal
development is common. Although it does not always occur, it does occur
frequently. Not surprisingly, in fact, a number of the officials we
interviewed noted that gathering information from people outside of the
agency was frequently indispensable to intelligent decision making.
Although participants vary a great deal from agency to agency and from
one rule to the next, they can include representatives of industry and
other affected interests, public interest groups, and other agencies.
The latter might become involved in order to resolve jurisdictional
issues or coordinate across programs or to represent the interests of
their constituents.
OMB's Office of Information and Regulatory Affairs can also be an
important participant in proposal development. Although its level of
involvement varies a good deal from one agency to the next, some
officials characterized OIRA as the ``800-pound gorilla.'' Its informal
role in policy formulation is undergirded by the formal powers it
enjoys at a later stage to return for reconsideration proposed rules
that are not properly justified or that are inconsistent with the
president's agenda. In contrast, there was a near consensus among those
we interviewed that, although specific statutory requirements were a
very important source of rulemaking initiatives in some agencies, the
extent and impact of congressional involvement in the development of
proposed rules tended to be quite limited.
Beyond the observation that it occurs and that it can involve
various actors, we found that the character of participation varies
considerably. The timing of input is one important dimension of
variation. Some officials indicated that their agencies communicate
with extra-governmental actors throughout proposal development while
others indicated that their policy is to terminate communications at an
intermediate stage of the process. Among the latter, the most common
termination point is after the agency has collected general views about
the nature of the problem being addressed and possible solutions to
that problem and before it begins to articulate and support a specific
policy proposal. The mechanisms of participation also vary a great
deal. They range from informal conversations at trade conferences or
over the telephone to e-mails and letters to hearings to advisory
committees, among various other possibilities. Some agencies even use
focus groups on occasion.
A generalization that one can offer about participation in proposal
development, however, is that--unlike notice-and-comment under the
APA--it does not usually occur by general invitation. Rather, it occurs
either at the specific invitation of the agency or at the initiative of
the participant. The primary exception to this generalization is when
agencies solicit comment from all interested parties through an
advanced notice of proposed rulemaking. Yet although the use of ANPRMs
varies from one agency to the next, they are never used on a routine or
even a frequent basis. Although we did not gather precise data, it
appears as if they are employed significantly less than five percent of
the time across all rulemaking.
Our interviewees offered several explanations for their reluctance
to use advance notices more often. One was that ANPRMs were an
additional source of delay in a process that was already slowed by
numerous procedural hurdles. This disincentive was sometimes reinforced
by pressures from Congress and elsewhere to issue rules in a timely
fashion. Another explanation was that advanced notices did not produce
any useful information beyond what the agency could obtain by
contacting stakeholders individually. Not surprisingly, virtually all
of the officials we interviewed indicated that they made assiduous
efforts to gather all relevant perspectives, and many expressed
confidence that they usually knew who were affected by their rules. In
addition, several officials noted that, because it did not occur in
response to a specific proposal, comment pursuant to advance notices
was too unfocused to be of much value. Two of the senior people we
interviewed noted that their agencies' use of ANPRMs had declined in
recent years as the result of these factors.
In brief, then, although critical policy decisions are at least
tentatively made during proposal development, participation during that
phase of rulemaking is not subject to the same institutional guarantees
of inclusiveness that the APA provides during the comment phase of
rulemaking. Whether or not this is a problem, much less a problem that
Congress should seek to address is a complex issue that involves a
variety of considerations. One obvious question is whether agencies are
effective in gathering input from all relevant stakeholders during
proposal development (or whether participation and influence tends to
be confined to the ``usual suspects''). To the extent participation
during proposal development is not inclusive, another important set of
questions have to do with whether the APA's notice and comment
requirements redress participatory imbalances during proposal
development. Are agencies willing to make substantial changes in
proposed rules? Given the resources required for effective comment,
moreover, the formal opportunity to offer feedback on proposed rules
may have little practical effect in enfranchising those who have not
had access to agency decision makers during proposal development.
Finally, even if Congress could promote inclusiveness through
institutional constraints on proposal development, the potential
benefits of such a reform must also be weighed against its costs in
terms of administrative efficiency and effectiveness. The officials we
interviewed were unanimous in their opinion that requiring advanced
notices for all or certain classes of rulemaking would impose undue
delay on decision making.
Our study also addressed the related issue of transparency in
proposal development. Again, although the APA is silent on the subject,
there has been an expectation since the 1970s that agencies base their
rules on a record. Given this, almost all of the officials we
interviewed indicated that they made available to the public all
communications with actors outside of the Executive Branch (including
legislators and legislative staff) that occurred after a notice
appeared in the Federal Register. In contrast, there was wide variation
in pre-notice docketing practices. A high-level official in the general
counsel's office of one department indicated that his agency's policy
was that practically all communications with non-executive actors must
be recorded. In contrast, another official indicated that his agency
did not feel a need to docket any pre-notice communications. In between
these two extremes, some interviewees said that their agencies did not
docket early communications designed to collect general information
about problems but became more conscious of the need to docket
communications at the later stages of proposal development. Others
indicated that they tended only to docket communications that were
material to their proposed rules.
Such wide variation in docketing practices may be attributable in
part to the current ambiguity of judicial precedent in this area over
the past thirty years. It is also undoubtedly attributable to agency
culture and tradition, as well to the preferences key officials. One
senior careerist with a good deal of influence over administrative
procedures within his department indicated that he favored strict
docketing requirements on policy as opposed to legal grounds. Given
that most pre-notice participation occurred at the specific invitation
of agency officials, he felt that recording such communications was
desirable as a way of avoiding perceptions of bias in the process.
As with inclusiveness, the prescriptive issues surrounding
transparency are complex and invite further research. If off-the-record
communications obviously detract from the openness (and thus perhaps
the legitimacy) of proposal development, they may also be desirable in
terms of administrative efficiency and effectiveness. Although the
officials we interviewed were not as consistent in their opposition to
docketing requirements as they were to advanced notices, a number of
them indicated that ex parte conversations facilitated the kind of
information gathering required for rulemaking. As in the legislative
process, moreover, on-the-record communications may be inimical to the
bargaining and compromise required for the accommodation of competing
interests. Although agency officials involved in rulemaking typically
describe it as a ``technical'' process of ascertaining legislative
intent and making sound factual determinations, there is little doubt
that it is also frequently a political process that requires ``partisan
mutual adjustment'' among competing interests. (It usually requires
only a little prodding in interviews to bring this out.)
Some officials also indicated that off-the-record communications
with other agencies and OMB were important for coordination and
management among administrative programs. Indeed, any effort by
Congress to require the docketing of communications within the
Executive Branch would necessarily have to consider the legal
implications of such a policy. This observation is underscored by the
Supreme Court's sympathy in recent decades for a ``unified executive''
as a means of rationalizing policy implementation across the federal
bureaucracy.\8\ Yet while managerial prerogatives within the executive
are certainly an important consideration, it is also true that other
agencies, OMB, and the White House sometimes act as conduits for
private interests in their efforts to influence rulemaking. This is
well-documented in the case of OIRA, for example.\9\ To some extent,
therefore, docketing requirements for non-governmental actors but not
for members of the Executive Branch might have the potential to produce
a misleading appearance of transparency.
---------------------------------------------------------------------------
\8\ Elena Kagan, ``Presidential Administration,'' Harvard Law
Review 114 (2001).
\9\ For a recent discussion see William F. West, ``The
Institutionalization of Regulatory Review: Organizational Stability and
Responsive Competence at OIRA,'' Presidential Studies Quarterly 35
(March 2005).
---------------------------------------------------------------------------
All of this is to say that the development of proposed rules
deserves much more attention than it has received. It is the proverbial
black box; the part of the iceberg that lies under the water. Again,
our study was an exploratory effort designed to identify some the key
parameters of variation in the process and to identify important
questions rather than to answer them. That was true of our
consideration of agenda setting and the management of proposal
development as well.
In the case of agenda setting, for example, we found that whereas
some agencies' rulemaking consisted primarily or exclusively of
discretionary initiatives that derived from various sources (agency
staff research, feedback from enforcement officials, suggestions from
affected groups, etc.) other agencies' agendas were dominated by non-
discretionary (legislatively required) rules. Still other agencies
combined the two in various proportions. A systematic, cross-agency
study of where ideas for rules come from and of why some ideas become
rules and others do not can add a good deal to our understanding of how
government works. An examination of agenda setting might also have
prescriptive value. In the case of one agency, for example, although
non-discretionary rules comprised a minority of its total workload, the
fact that they took precedence nonetheless made it difficult to plan
and execute a coherent agenda for all rulemaking. The official with
whom we spoke felt that more effective communication with Congress
could help alleviate this problem.
The management of proposal development is also a fertile area for
further investigation. For example, we found that some agencies have
highly detailed, formalized procedures whereas others have no written
policies to guide the process. The degree to which key decisions in the
formulation of proposed rules is centralized at the departmental level
also varies a good deal. To observe that such variation exists
naturally suggests the questions of why it exists and what difference
it makes in terms of agency performance.
There are many other important dimensions of proposal development
that have received little if any attention. For example, what are the
forms and roles of advisory committees and to what extent do these
bodies provide effective representation for stakeholders? Another
important set of questions concerns whether and how rulemaking is
coordinated across agencies. The list could go on.
This is not to say that studying proposal development is easy.
Evaluative and prescriptive analysis is complicated at the conceptual
level by the fact that we expect different qualities in the rulemaking
process. Given its legislative nature, we naturally want it to reflect
the democratic values of openness and balanced responsiveness. Given
its administrative nature, we also want it to be carried out in as
timely and efficient a manner as possible. A third criterion, which
might labeled ``substantive rationality,'' is the expectation that
rulemaking decisions be objective and based on rigorous empirical
evidence. All of these criteria are legitimate bases for assessing
proposal development (and rulemaking more generally). As might be
evident from the preceding discussion, however, they all potentially
conflict with one another in critical ways.
Data collection presents another, more practical challenge to the
study of proposal development. Because of its extreme diversity,
studies that focus on one or a few cases are of limited value in
developing generalizations. Conversely, gathering process-related data
for a large sample of rules can be a daunting task. As we found, for
example, efforts to accomplish this goal through surveys of agency
personnel face several obstacles, not the least of which is the
inherent reluctance of bureaucracy to share information. Indeed, two
agencies ordered their staff not to comply with our survey despite (or
perhaps because of) a cover letter indicating that it was being
conducted under the auspices of CRS and the Judiciary Committee. Even
the senior officials we interviewed, all of whom were extremely
helpful, were sometimes unable to share internal documents describing
the rulemaking process.
Still, the research needs to be done. Gaining a better
understanding of the administrative process is an essential foundation
for sound institutional policy. Again, I am grateful for the
opportunity that you and CRS have given us to explore one broad
dimension of rulemaking and I also applaud other recent initiatives to
shed more light on topics such as e-rulemaking and the use of advisory
committees.
As an editorial observation, let me close by stressing the need to
devote more resources to policy and legal analysis in these and other
areas of the administrative process. For years, the Administrative
Conference of the United States produced studies by first-rate scholars
that were of considerable practical as well as academic value. Because
it was clearly non-partisan and free of organizational ties that might
otherwise bias its analysis, ACUS enjoyed the kind of access to
agencies that is necessary for studying many of the most important
issues in the administrative process. I am happy that ACUS has been re-
authorized, and I would like to join the more distinguished individuals
who have argued that it should be funded as well. This would produce
substantial benefit for relatively little cost.
Thank you.
Mr. Cannon. Thank you. We will use that last statement when
it comes to get it re-funded.
Professor Breger, you are recognized for 5 minutes.
TESTIMONY OF PROFESSOR MARSHALL BREGER, THE CATHOLIC UNIVERSITY
OF AMERICA-COLUMBUS SCHOOL OF LAW, WASHINGTON, DC
Mr. Breger. Thank you. My name is Marshall Breger. I teach
at the Columbus School of Law at The Catholic University of
America. I am pleased to join you today in this discussion of
the future of the Administrative Procedure Act.
If I may just follow along with Congressman Watt's
comments, the Administrative Procedure Act may be 60, but I
think like many baby-boomers, it is not ready for retirement,
rather for reviving, re-tuning, and hopefully a new lease on
life.
Having said that, the APA has served us well for the last
60 years, but we have to remember we are today in a different
time and a different place. In 1946, over 90 percent, and I
could get you the exact numbers, but over 90 percent of the
activities of administrative agencies were adjudications. Now,
it has flipped. It is mostly rulemaking.
In 1946, we came out of the New Deal with great enthusiasm,
belief in the power of the regulatory process to address
political, economic, and social problems. Today, we are more
realistic, if not more skeptical. Indeed, we have a kind of
default position for market solutions and the regulatory
process has to prove itself in every instance. But being
skeptical about regulation does not mean that you should be
uninterested in the regulatory process. In fact, it means you
need to think more hardly, more seriously, and have more
empirical research about regulation, what works, what doesn't
work, and what works better. So I am very pleased that this
Committee is beginning to address that issue.
I am going to speak about a number of issues in rulemaking,
which I believe is the gravamen of this hearing, that I think
are important to consider in thinking about revisions of the
APA. First, informal rulemaking. You know that the notice and
comment rulemaking process has been called by Kenneth Davis the
greatest invention of Government in the 20th century. No doubt,
it swept the board and changed the nature of the administrative
process.
However, we have seen in the last 60 years growing
accretion of requirements for what is supposed to be informal,
from the judiciary, growing accretions of requirements from
Congress in mandates, and from the White House OIRA process,
making informal more formal.
We have had the growth of non-statutory informal rulemaking
techniques, interim rulemaking, direct final rulemaking,
advance notice of proposed rulemaking. And we have had the
increasing tendency for agencies to bypass the
``informal''notice-and-comment process using interpretive rules
and other forms of guidance to avoid what they call the
``ossification'' of the rulemaking process.
Now, we certainly don't want ossification. What we have to
think of now, is the time to begin to institutionalize and
codify some of these non-statutory techniques and to consider
how to pattern interpretive and guidance documents to make sure
that they provide the proper transparency and public
participation that the Administrative Procedure Act stands for.
Secondly, we have seen and we will see a growth in
cooperative regulation, EPA, OSHA, VPP program, EPA Brownfields
program, where there is an individuated interaction between the
regulated entity and the regulator. It is trying to find
flexible individual solutions. This is good. This is terrific,
but it leaves us a challenge. How to have flexibility and at
the same time neutrality, fairness and the rule of law? The
rulemaking process has to think about that.
Similarly, we have to think about public-private
partnerships. We have had and we will have an increased growth
in public-private partnerships, Government-sponsored
enterprises, Government corporations, contracting out of what
we generally think of as public functions, charter schools,
private prisons. Does administrative law end when we start to
move out of the traditional or classic public bureaucracy? That
is a challenge for administrative law and for the APA.
Judicial review. When the APA was passed, it instituted the
notion of substantial evidence on the record as a criteria for
judicial review. Justice Frankfurter said, Congress has set a
mood for the judges to follow in reviewing administrative
agency actions. Sixty years is a great deal of judicial
experience. It may be appropriate for Congress to revisit that
mood and recalibrate its notions of the proper relationship
between judicial review of the courts and the agencies.
And similarly, the whole problem of deference to agency
interpretations of statutes and regulations, the Chevron case,
and now the Mead and cases following, call out for some
guidance from Congress on what the proper canons of
construction should be.
Finally, I think we need to be looking at State and local
innovations. There is a tendency when the APA was passed, to
Federal administrative law. That is what we study. That is what
we focus on. There has been a really cauldron of creativity in
the States, California, Arizona, Florida to name a few. We need
studies to look at what they have been doing and to see how
they are relevant to the Federal administrative process.
Now, to complete this agenda, what we need is an
institution like the Administrative Conference to undertake the
kinds of studies that marry not just academic expertise, but
practical experience. That was a peculiar genius of the
conference.
So I applaud this Committee for reauthorizing the
conference, and I hope that it will be appropriated in this
year and future years to continue this work and begin to solve
these problems.
I thank the Committee, and I would be happy to answer any
questions.
[The prepared statement of Mr. Breger follows:]
Prepared Statement of Marshall J. Breger
Mr. Cannon. Thank you, Professor.
I couldn't help thinking while you were speaking that
between the Ranking Member and me, we at least, maybe more than
average between us, spent more than half of the life of APA as
lawyers. That is a startling concept when you think about the
evolution, especially recent evolution. In your litany of these
issues, I was getting more and more nervous. How do we deal
with this?
The answer, of course, is ACUS. We need to reauthorize it.
We need to fund it. We need to get people who are smart
together because even with all the scope of this Committee and
its resources, we can't deal with the problems that are
transforming before us as quickly as the litany that you
presented. So thank you for that. We will have some questions.
Professor Magill, you are recognized for 5 minutes.
TESTIMONY OF PROFESSOR M. ELIZABETH MAGILL, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VA
Ms. Magill. Thank you, Mr. Chairman. My name is Elizabeth
Magill. I am a law professor at the University of Virginia. I
teach and write in the fields of administrative law and
constitutional law.
I am so pleased to be asked to testify before the
Subcommittee because, like a lot in the administrative law
community, we have all admired the work of the Subcommittee,
the leadership in seeking the reauthorization of ACUS and its
passage in 2004.
We have admired the efforts of the Subcommittee with the
assistance of CRS's American Law Division to start to identify
a research agenda to address important questions of
administrative process and funding projects like Professor
West's and the project Professor Freeman testified about last
fall and the fall of 2004. We are so excited about what is
happening, and it is such a pleasure as a result of that to be
asked to testify.
This hearing recalls the adoption of the APA and asks the
question, where do we go from here? I am going to do my best in
the last minute of my remarks to answer that question, but I
have to say at the outset that I don't know exactly where we go
from here because in my opinion we don't fully comprehend where
we are right now.
That is, despite the scope and the significance of the
administrative state, there is not enough, as all the witnesses
to date have said, and I bet the subsequent witness will say
and this Subcommittee knows so well, there is not enough
systematic and careful work that asks about the way the
administrative state works, actually what it does, and whether
it does it well.
Nor is there enough systematic work about the various
mechanisms we have and rely on to curb the exercise of agency
discretion, congressional oversight, executive oversight,
judicial review. There are lots of examples that highlight the
lack of empirically grounded research and writing on the
administrative state.
One of my favorites that I uncovered is that there is an
often repeated statistic, repeated many times, that 90 percent
of agency action is informal, that is it falls below the APA
requirements. It is not formal enough to invoke the APA
requirements. I traced the origin of the statistic and the
author of the statistic said, this is a guess. So I think the
first step to studying the course for the future is the
investment of resources in careful study of the most pressing
issues that arise across a range of agencies.
And if I might add a little bit to the pitch for why ACUS,
it is wonderful that it is here, why it needs to be
appropriated, I think administrative process is a little
different than a lot of other questions we might want to
address. And that is because administrative agencies do a wide
variety of things in a wide variety of ways. So there is an
enormous complexity.
At the same time, I think most people who study them think
there are enough similar tasks that they do, for instance,
relying on science to make decisions, a similarity in their
processes, that you can generalize across agencies. But that is
a pretty tough task to produce useful answers to questions that
both take account of the complexity that is across the
administrative state, but also try to find generalizable
lessons.
So I think that is an added sort of argument for why we
need funding of a think tank like ACUS.
I think I was asked to testify because for the past several
years I have been trying to find out exactly where we are now,
which is what I said was I think the first step to figuring out
where we go in the future. With a colleague at the University
of Michigan, Steve Croley, we have been working together to try
to provide a comprehensive empirical picture of Federal agency
decision-making.
Our data, our project will present pretty detailed data on
the frequency and type of decisions that Federal agencies make,
both across agencies and across time. Our goal is to explain
with attention to the legal parameters of agency decision-
making tools, as in-depth a data as is available on the
frequency, including the changing frequency over time, of
agency reliance on these tools. By ``these tools,'' I mean
rulemaking, adjudication, litigation on behalf of agencies, and
guidance.
Our data is presented in the aggregate, how many rules do
we have across the Federal Government and how that has changed
over time, if it has changed over time, and it is also agency
by agency. So our project is, as I have described, quite
descriptive, but we also try to address various questions that
are raised by the descriptive patterns we uncovered.
We undertook this project because as students of the
administrative state and teachers of administrative law, we
were incredibly frustrated by the lack of comprehensive
information about what agencies do, and whether it has changed
over time, and if so, how. So our primary goal has been to
supply what we think is missing, some certain basic
comprehensive facts about agency behavior.
We have relied on a lot of sources in the work we have been
doing. In identifying the sources, we I think have had an ACUS-
like attitude, which is our preference was for data collected
across a large number of agencies, collected by neutral
entities at regular intervals. So we wanted to avoid collecting
data agency by agency because that risks inconsistency in the
way a single entity characterizes what it does.
Our sources are largely Government sources. They are OPM,
the GAO, the Regulatory Information Service Center, OIRA at
OMB, the GSA, the Executive Office of U.S. Attorneys, and the
Administrative Office of the Courts. So the work of the project
really has been collecting and presenting in meaningful and
useful form data that is already out there.
We are still very much in the process of writing and
analyzing what we found. In January of 2006, we presented some
preliminary findings, and let me give you a flavor of them. The
core of the work is a chapter devoted to each of the major
policymaking tools available to agencies, as I said,
rulemaking, adjudication, Government litigation, and guidance.
I will talk about rulemaking, adjudication and Government
litigation very quickly, because I have 50 seconds left.
So knowing how many rules are promulgated each year is
actually a pretty complicated enterprise. A rule is a legal
term of art. There are different definitions of rules, and even
within definitions, there are different types of rules. There
are two sources that provide pretty good aggregate data and
those are the ones we rely on.
Agencies together issue over about 4,000 final rules per
year, an amount that reflects a gradual decline from the early
1980's when they issued over 6,000 rules a year, and 66 percent
of all final rules come from agencies whose heads report to
cabinet secretaries, and 10 percent come from the independent
agencies. That is a decline from about 20 percent 2 decades
ago, and the last 25 percent come from agencies like EPA that
don't report to cabinet secretaries, but to the president.
Not all rules, though, have substantive effect. Some are
ministerial. There are somewhere between, 1,000 and 1,200 rules
each year that had a substantive effect. Among the substantive
rules, about 500 to 700 are far-reaching enough that they
trigger White House review. That number was closer to 500 in
the 1990's and it is now, since 2000, closer to 700 each year.
Of those 500 to 700, 45 to 75, depending on the year, are huge
rules, for lack of a better term. They have an estimated annual
impact on the economy of more than $100 million.
I am going to skip to Government litigation because I think
what we see there is----
Mr. Cannon. Ms. Magill, from my perspective, I am quite
interested and you don't need to worry about the time.
Ms. Magill. Okay. All right. Sorry. These are red stop
signs.
Let me talk a moment, half of a minute, about adjudication.
Tracking adjudication, as many people at this table know, in
the Federal Government is actually quite difficult. There are
two different kinds of adjudicators, there are actually more
than that, but administrative law judges, obviously, and what
have been denominated presiding officers.
They are not administrative law judges, but they preside
over evidentiary hearings. There is no current Government-wide
collection of data on the number of adjudications performed
each year. The vast majority of administrative law judges in
the Federal Government adjudicate cases in the Social Security
Administration. The Social Security Administration ALJs have
since 1991 always constituted more than 72 percent of all
Federal ALJs. After the Social Security Administration, the
next highest employers of ALJs are Labor, the NLRB, and the
Energy Department.
In the aggregate from 1991 to 2004, the number of ALJs in
the Federal Government increased by 13 percent, and that
increase, of course, occurred during a period when total
Government employment declined by about 15 percent. But the 13
percent increase was not consistent across agencies.
Basically, Social Security Administration ALJs increased,
while other ALJs decreased. So Social Security ALJs increased
31 percent, while non-Social Security Administration ALJs
declined 37 percent. Roughly speaking, you could say that the
number of adjudicators in the Federal Government who are
implementing regulatory programs, say, at the NLRB or in the
Energy Department, declined, while the number of adjudicators
adjudicating benefits in the Social Security Administration
increased.
There are many adjudicators in the Federal Government,
however, who are not ALJs. We know this from two surveys, the
first one conducted under the auspices of ACUS, and the first
one was in 1989. It showed that there were several thousand
presiding officers in 1989. The author found 2,600 presiding
officers. That number increased to 3,300 in a follow-up survey
in 2002.
The largest users of presiding officers were in the Justice
Department's Executive Office for Immigration Review, the
Veterans Administration and the IRS. That was from 2002.
Last, Government litigation. I think it is less written
about, although there are actually quite great data sources
that tell you what is happening with Government litigation.
That is one window onto the administrative state, observe the
litigation that is brought on behalf of agencies, and also the
defense of litigation when the United States defends an agency
from a suit brought against it. Affirmative litigation is
called U.S. plaintiff litigation in the reports, and U.S.
defendant litigation is the defense of litigation.
A look at these data are actually revealing on a lot of
different fronts. The most dramatic descriptive trend, my
coauthor and I found, was a quite significant decline in U.S.
plaintiff litigation starting from 1990 to the present. The
Administrative Office of the U.S. Courts reports that U.S.
plaintiff litigation declined by two-thirds in a 14-year period
between 1990 and 2004, going from 30,000 U.S. plaintiff cases
to 10,000 in 2004.
Another source we used was from the Justice Department
which tracks the cases brought by United States Attorneys in
U.S. Attorneys' offices throughout the country, which is the
lion's share of litigation handled by the Justice Department.
From 1991 to 2003, overall civil cases handled by the U.S.
Attorneys declined by 11 percent, but the U.S. plaintiff cases
declined by 60 percent, while U.S. defendant cases increased 11
percent. Affirmative litigation on behalf of every agency that
the Justice Department represents declined, except for the
Interior Department.
Kind of a whirlwind tour of statistics that we are going to
present with more detail in our book. The goal, as I said, is
to provide an accurate and systematic picture of the activities
of the administrative state. Like the other witnesses, I hope
this sort of grounded work will be a basis for moving forward,
identifying the right questions to ask and potentially
identifying solutions.
The data obviously raise a lot of different questions. Why
in the last 5 years are there more significant rules being
forwarded to the White House's OIRA for review? What accounts
for the rise in presiding officers? Why is the number of
regulatory ALJs declining? And what is happening to the work
that they did? Why has U.S. plaintiff litigation declined so
dramatically?
So I think the real question that this Subcommittee is
interested in is where do we go from here. My plea is we don't
quite know where we are, and we need to invest more resources
in figuring out where we are and identifying the important
questions, and answering them in a systematic way, not by
anecdote, not by haphazardly gathered data, but by very careful
collection of information that establishes the facts on the
ground and allows us to move forward.
Thank you very much.
[The prepared statement of Ms. Magill follows:]
Prepared Statement of Elizabeth Magill \1\
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\1\ A revised version of this statement is published in the
Appendix of this hearing.
---------------------------------------------------------------------------
My name is Elizabeth Magill and I am a law professor at the
University of Virginia School of Law. Thank you for asking me here
today.
My teaching and research are in the fields of constitutional law
and administrative law. I have taught administrative law and related
courses--food and drug law, advanced administrative law--since 1998. My
academic writing in administrative law is about judicial review of
administrative action and about the varied procedural choices agencies
make when they implement their statutory mandates--whether, for
instance, they adopt a legislative rule or adjudicate a case or bring
an enforcement action in the courts. I have served as a reporter for
the APA Restatement Project of the Administrative Law and Regulatory
Practice Section of the American Bar Association.
I am especially pleased to be asked to testify before this
Subcommittee. Like many administrative law professors, I have admired
this Subcommittee's work on administrative process. The academics I
know all cheered this Subcommittee's leadership in seeking the
reauthorization of the Administrative Conference of the United States
and we hailed its passage in 2004. We have also admired the efforts of
this Subcommittee to, with the assistance of the Congressional Research
Service's American Law Division, identify a research agenda to address
important questions of administrative process and to fund several
research projects.
I. WHERE DO WE GO FROM HERE?
This hearing, which recalls the adoption of the Administrative
Procedure Act sixty years ago, has been convened to ask what the future
holds. I will do my best to answer that question in a moment, but I
must note at the outset that it is not exactly clear where we go from
here. That is because we do not fully comprehend where we are this
moment. Despite the scope and significance of the administrative state,
there is not enough systematic work that identifies what agencies are
doing and asks whether they are doing it well; nor is there enough
systematic work that asks about the effects of the mechanisms used to
curb agency discretion--Congressional oversight, Executive and judicial
review. There are many examples that highlight this lack of
empirically-grounded research and writing on the administrative state.
As Professor Jody Freeman pointed out in her testimony before this
Subcommittee in 2005, an often-repeated statistic was that 80% of EPA
rules were challenged in court; the only problem was that this had no
basis in fact as one study demonstrated. Another often repeated
statistic is that 90% of agency action is ``informal''--that is, it
does not follow procedures specified in the APA--but, after tracing the
origin of this statistic, I found that the author of the statistic
represented it as a ``guess.''
In my view, the first most important step to setting a course for
the future is the investment of resources in careful study of the most
pressing issues that arise across a range of agencies. This
Subcommittee's leadership has started us down that road, and I will
speak in a moment about work that advances that objective. But I do not
have any doubt that more remains to be done.
Careful and systematic study is not an easy task and that is one
reason why there is not enough of it. The administrative state is
incredibly complex. Agencies have distinctive statutory mandates--some
distribute benefits, some regulate the market, some protect the nation.
They also follow different processes and have distinctive designs--
Commission, Administrator, Cabinet level or not Cabinet level. They
address a dizzying variety of tasks in varied ways. That complexity
makes systematic and generalizable research very difficult to conduct.
At the same time, it is clear that administrative agencies are not
so distinctive that one cannot generalize about their behavior and draw
conclusions about what may trouble us about the soundness or wisdom of
their activities. Of course, most agencies are subject the basic
template provided for in the Administrative Procedure Act. More than
that, though, many agencies share similar substantive tasks--they must
rely on scientific judgments to do their business or they manage large
benefit programs or they are in the business of licensing firms before
they enter the market. Looking across agencies to determine and assess
how they perform these tasks is obviously a worthwhile endeavor.
Agencies are also subject to similar controls. They are the object of
close oversight by Congress, the Executive, and/or the federal courts.
Thus, despite the enormous complexity of the administrative state,
there are common issues and problems that affect a large set of
agencies such that cross-agency study will repay enormous dividends and
will guide administrative reforms.
To figure out where we go from here, then, we must invest the
resources to study the general issues that affect a substantial number
of agencies and, if warranted, identify problems and formulate
solutions. I would emphasize that those resources must be put in the
hands of people who will approach their study in a systematic way. In
my view, such studies must rely on the time-tested methods of social
scientific inquiry, rather than the haphazard gathering of data or,
worse, anecdote. It is only careful study that can establish the facts
of the matter and thus provide a sound basis for identifying problems
that need to be rectified.
There are several promising signs that such study is starting to
occur. In part, these developments are due to the efforts and vision of
the Members and staff of this Subcommittee and the CRS. Re-
authorization of ACUS has generated enormous enthusiasm in the
administrative law community. The studies that this Subcommittee's
efforts have spawned--Professor West's work on public participation in
rulemaking that we are hearing about today and Professor Freeman's
study of judicial review of administrative action--are important
efforts that will advance our understanding and clarify what, if
anything, is needed in the way of law reform. More than that, in my
corner of the world, an increasing number of my peers are convinced of
the need for empirical study of the administrative state and an
increasing number of people in law teaching have the necessary training
to engage in rigorous empirical work.
II. ESTABLISHING AN ACCURATE PICTURE OF THE ADMINISTRATIVE STATE'S
ACTIVITY
For the past several years, I have been working with a colleague to
complete what I just testified was the most important step to take
before we could identify what comes next--that is, we have been working
on a project to find out exactly where we are now. My colleague is
Professor Steven Croley at the University of Michigan Law School and we
have been working together to provide a comprehensive empirical picture
of federal agency decision-making. We have received several grants to
support our work, including from the Milton and Miriam Handler
Foundation and the Olin Foundation. Our goal, in the most general
terms, is to describe what agencies do and how that has changed over
time.
Our project will present detailed data on the frequency and type of
decisions that federal agencies make, both across agencies and across
time. Our book explains the legal parameters of agencies' primary
decision making tools--including legislative rulemaking, adjudication,
litigation, and agency guidance--and provides as in depth data as is
available about the frequency, including change in frequency over time,
of agency reliance on those tools. Our data is presented in the
aggregate (how many rules across the federal government and how has
that changed over time) as well as agency by agency. We also identify
patterns in that data. Our project is heavily descriptive, but we also
provide narrative explanation of why, when, and how federal agencies
make decisions, and we address various normative questions implicated
by our empirical findings as well.
Professor Croley and I undertook this project because, as students
of the administrative state, we were frustrated by the lack of
comprehensive information about agency decision-making. Most
administrative law scholarship focuses primarily on judicial review of
agency decision making. While obviously important, judicial reaction to
agency work product is only one window onto the activities of the
administrative state. Meanwhile, political scientists and economists
who write about agency behavior are not generally attentive to the
legal differences among the agencies' policymaking tools. As teachers
of administrative law, we found no work that examined empirically the
range and frequency of procedures agencies employ. More than that, no
work provides a ready general source of data about the form and
frequency of administrative agencies' legal work-product. Our
motivation for undertaking this project has been primarily to supply
what is missing--certain basic, comprehensive facts--about agency
behavior and agency decision-making.
Our effort has several goals. Most basically, we aim to shed
descriptive light on fundamental but understudied questions about
federal agency decision-making. For example: Exactly how often do
agencies engage in rulemaking and adjudication processes under APA?
Which agencies do so the most, and which the least? Have agencies
engaged in more or less rulemaking, and adjudication, over time (and
adjusting for variables like population, GNP, and legislative
activity)? In addition, how many of which different types of rules--
``regulatory rules,'' ``redistributive rules,'' ``governmental
housekeeping rules,'' etc.--have agencies issued over recent years? How
many staff have agencies committed to the adjudication processes over
time? How many times do agencies sue to enforce their statutory
mandates and how, if at all, has that changed over time? How often are
agencies sued and required to defend their exercises of authority and
how, and if so, has that changed over time?
A related goal of our project is to provide others with an
empirical base from which others can draw their own conclusions about
administrative government. We hope to inspire others to enlist the data
we supply to advance their own research on agency behavior. Abstract
discussions of administrative government should be grounded as much as
possible in concrete facts about what agencies really do, and the facts
we present will inform others' work.
Last but not least, we engage in analyses ourselves, practicing
what we preach. That is, in addition to presenting the facts about the
type and volume of agency activities, we consider how those facts might
connect to perennial normative debates about, for example, executive
versus legislative control of agencies, agency accountability and
independence, and the appropriate size and role of the federal
government, among others. We also explore our descriptive findings by
running several statistical tests to evaluate hypotheses related to
normative discussions of agency activity. For example, we investigate
whether certain agency decision-making procedures increase or decrease
with Republican or Democratic administrations, or in times of divided
or undivided government, among other things.
We have collected data from a very wide variety of sources. In
identifying sources, we had a strong preference for data collected
across a large number of agencies, and collected by neutral entities at
regular intervals. We wished to avoid collecting data agency by agency
because of the risks of inconsistency this raises. Our sources are
largely available from various government sources. The data come from,
for example, Office of Personnel Management, GAO, the Regulatory
Information Service Center, Office of Information and Regulatory
Affairs at OMB, the General Services Administration, Executive Office
of the United States Attorneys, and the Administrative Office of the
U.S. Courts. Much of it is available in a raw form that must be
analyzed and aggregated to be meaningful and appropriate for
generalization. Most of the labor of our project consists of the
legwork of finding, compiling, and aggregating data across many
different sources, and then organizing and presenting that data in
meaningful ways.
We are still in the process of producing our book. But in January
of 2006, at the annual meeting of the American Association of Law
Schools, we presented some of our preliminary findings. I will recount
for you some of what we reported there.
The core of the book are chapters devoted to each of the major
policy making tools available to agencies--rulemaking, adjudication,
government litigation, and guidance. Let me provide a few highlights of
our findings about rulemaking, adjudication, and government litigation:
*Rules: Knowing how many rules are promulgated each year depends on
the type of rule as well as the classification system of the entity
that collects the information. ``Rule'' is a legal term of art and
there are different definitions of rule and different types of rules.
But, two sources, RISC and GAO, provide the most useful aggregate data
on the number of rules issued each year. Relying one these data
sources, we have come to the following preliminary conclusions.
First, agencies together issue just over 4,000 final rules per
year, an amount reflecting a gradual decline since the early 1980s,
when they issued just over 6,000 rules a year. Second, about 66% of all
final rules come from agencies whose heads report to cabinet
secretaries, while only about 10% percent come from the independent
agencies, down from about 20% percent two decades ago. The remaining
25% come from executive-branch agencies, like the EPA, whose heads do
not report to cabinet secretaries but to the President.
Considering proposed rather than final rules, the same general
pattern emerges. Agencies now publish about 2,700 proposed rules a
year, down from over 3,500 in the early and mid-1980s. Here, however,
independent agencies publish a bigger share, 15-20% of proposed rules,
with non-cabinet executive agencies publishing just barely more than
that, and the remaining 60% then coming from cabinet agencies.
Not all rules, however, have a substantive effect. Somewhere
between 1,000 and 1,200 rules issued each year have a substantive
effect. Among substantive rules, between about 500 and 700 rules each
year are far-reaching enough to trigger White House review. The number
was closer to 500 in the late 1990s, and approximates 700 each year
since 2000. Of those, about 45 to 75 per year constitute huge rules
with an estimated annual impact on the economy of more the $100
million.
*Adjudication: Tracking adjudication in the federal government is
difficult because there are different types of adjudicators--
Administrative Law Judges (ALJs) and Presiding Officers (POs)--who
preside over evidentiary hearings and there is no current
governmentwide collection of data on the number of adjudications
conducted each year. For one putting together an accurate empirical
picture of administrative adjudication, the primary sources are OPM
personnel data, two publications by the ACUS in the late 1970s, and two
surveys of non-ALJ adjudications conducted in 1989 and 2002.
The vast majority of ALJs in the federal government adjudicate
cases in the Social Security Administration. SSA ALJs have, since 1991,
always constituted more than 72% of the total ALJs in the federal
government. After SSA, the next highest employers of ALJs are Labor,
NLRB, and the Energy Department.
In general, from 1991 through 2004, the total number of ALJs
increased by 13%, from 1191 to 1341. This increase occurred during a
period when total government employment declined by 15%.
The 13% increase in the number of ALJs was not consistent across
agencies. Social Security Administration ALJs increased by 31% while
the number of non-SSA ALJs declined 37% between 1991 and 2004. In other
words, the number of adjudicators who are implementing regulatory
programs declined while those adjudicating benefits have increased.
Many who adjudicate cases in the federal government are not ALJs.
We know from two surveys that there are several thousand POs conducting
evidentiary hearings. In a 1989 survey, the author found 2,692 POs and
this number increased to 3,370 according to a follow-up survey
conducted in 2002. As of the 2002 survey, the largest number POs were
in the Justice Department's Executive Office for Immigration Review,
the Veterans Administration, and the IRS and the largest number of
cases decided by POs were in EOIR, the IRS, and the Appeals Council of
the SSA.
*Government Litigation: One window onto to the administrative state
is to observe litigation on behalf of agencies in the courts. This
includes affirmative litigation--called ``US as plaintiff''
litigation--brought by the federal government as litigation whether the
government is defending against a challenge to its activities--called
``US as defendant.'' The Administrative Office of the Courts and the
Executive Office of U.S. Attorneys each track this litigation.
A look at those data are revealing on a variety of fronts, but the
most dramatic descriptive trend is the dramatic decline in ``US as
plaintiff'' litigation. The Administrative Office of the Courts reports
that US plaintiff litigation declined by two thirds in a 14 year
period. In 1990, there were 30,000 US plaintiff cases and this declined
to 10,000 in 2004. During the same period, US as defendant litigation
increased dramatically, from just under 25,000 cases to nearly 40,000
cases.
The Executive Office of the US Attorneys reports similar data,
although their data track agency litigation more closely because US
Attorneys represent client agencies throughout the government. From
1991 through 2003, overall civil cases handled by US Attorneys declined
by 11%. But US plaintiff cases declined by 60% while US defendant cases
increased by 11%. Affirmative litigation on behalf of every agency that
DOJ represents declined, except the Interior Department.
______
This whirlwind tour of statistics provides just a slice of the data
we will present in our book. As you can see, our goal is to provide an
accurate and systematic picture of the activities of the administrative
state. It is our hope that this sort of grounding will be a basis for
moving forward by identifying the right questions to ask. And the data
raise many questions: Why, in the last five years, are there more
``significant'' rules being forwarded to OIRA for review? What accounts
for the rise in POs? Why is the number of regulatory ALJs declining?
Why has US Plaintiff litigation declined so dramatically?
iii. where do we go from here?
So I return to the question I started with, namely, where do we go
from here? As I said at the outset, I do not know where we go next
because of the dearth of sound and careful work about where we are now.
I am absolutely confident that further study is necessary to identify
problems and formulate solutions. And the reauthorized ACUS gives is a
real opportunity to move forward. Once funding is secured, many will
clamor to fund various research projects. They may disagree on the
priority, but few will disagree about the central need for more and
more rigorous work about what is occurring at agencies. And there are
many worthy research projects. In the fall of 2005, you heard testimony
from Professor Jeffrey Lubbers, Mr. Mort Rosenberg, and Professor Jody
Freeman, all suggesting possible avenues for research of a
reconstituted ACUS. I have read their testimony and believe they made
extremely valuable suggestions. I will add a few of my own to the list.
My suggestions are not detailed proposals for study, but what I view to
be the most important general areas for research.
External Agency controls: To my mind, a central question about
agency activity is whether and how the various oversight mechanisms
that are in place for agencies work. Agencies are subject to control
and oversight by Congress, by the Executive, and they are subject to
judicial review by courts. To my mind, asking about the function and
efficacy of these control mechanisms is probably the most important
question we can be asking. Thankfully, there is work that has been and
is being done on these areas. Professor Croley has carefully studied
the White House Review of agency rules and Professor Freeman is now
engaged in her own comprehensive study of judicial review of agencies.
These two studies are notable for their systematic--as opposed to ad
hoc-approach and they have and will teach us a lot. But we need to do
more because these external controls on agencies are so important and
it is a complex enterprise to assess their efficacy. In my view, we are
just at the beginning of building an accepted base of knowledge and
moving toward conclusions about the wisdom and efficacy of these
control mechanisms.
Internal Agency Controls: Another promising area for research is to
get inside the agency and study how agencies make their important
decisions. My own research has made me very interested in why it is
agencies choose to implement their mandates in such different ways,
some relying heavily on adjudication, others relying heavily on rules.
But there are many other questions, for instance: When and why do
agencies adopt enforcement guidelines? How do they organize internal
appeals from front-line decision makers? How do they set their
regulatory priorities? These questions about the internal decision
making process of agencies are central to understanding why they behave
the way they do and, as a result, are worthy of sustained attention.
Effectiveness of Rules. Many have noted that we have no way to
determine the effectiveness of rules after they are in place. Among
other things, we presently have no mechanism to determine whether the
projections contained in the cost-benefit analysis when the rule is
adopted turn out to be accurate in the long-run. Answering this
question may not answer questions about the overall efficacy of
regulations, but it would be a useful question to ask and, more
importantly, it is just the sort of analytic task that a think tank arm
of government could design and conduct. A research program aimed at
identifying the promising ways to go about assessing the costs and
benefits after implementation and comparing them to earlier projections
would be a worthy enterprise.
______
Thank you for inviting me here today. I am gratified by the
interest this Subcommittee has shown in the efficacy and fairness of
administrative process.
Mr. Cannon. Thank you. I look forward to your report.
Professor Coglianese, you are recognized for 5 minutes or
whatever time you would like to take.
TESTIMONY OF PROFESSOR CARY COGLIANESE, UNIVERSITY OF
PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, PA
Mr. Coglianese. Thank you very much.
Chairman Cannon, and fellow Members of the Subcommittee, I
appreciate the invitation to testify here today. I recently
joined the University of Pennsylvania Law School faculty, after
spending 12 years at the John F. Kennedy School of Government,
where I remain a senior research fellow and continue to do work
on administrative law, with a particular emphasis on empirical
inquiry of the regulatory process.
I would like to take my time today to talk about the role
of information technology in the rulemaking process, and what
kind of implications that has for thinking about the
Administrative Procedure Act in the next 60 years. I would like
to make three main points.
First, information technology is here to stay. It is an
important fixture in the administrative process. Second,
empirical research on the effects of information technology is
important for decision-makers to have available in deciding how
to deploy information technology in a smart way. And third,
information technology projects present key management
challenges, some of which will demand congressional involvement
in oversight.
Let me take each of these in turn. First, information
technology has become a major issue in how we think about the
rulemaking process today, and it will only continue to be a
major issue in the future.
Now, that is, I think, something that is quite different
than at least the first 50 years of the Administrative
Procedure Act. During that time, information technology moved
roughly from carbon copy to photocopy, but the way in which
information was managed by regulatory agencies remained largely
paper-based. People who wanted to find out about the rulemaking
process had to come to Washington, physically enter a docket
room to gather information. If they wanted to participate in
the regulatory process, there might be an occasional public
hearing held somewhere in the country that they might attend,
but generally speaking they would participate by picking up the
phone or, more commonly, sending in a letter.
That has changed. It is now possible with information
technology for people in Washington State, as well as
Washington, D.C., to access information about any rule that
Government agencies are developing. It is now possible for
people all around the country to engage in an interactive
iterative way with themselves or with Government officials over
regulations, through the Internet.
This is a process that has been encouraged, that is the
process of employing information technology in the rulemaking
process, encouraged by both the Clinton administration and the
Bush administration. The Bush administration most recently has
created an e-rulemaking initiative which has produced an online
portal called Regulations.gov at which place any member of the
public can go and find out about any proposed rule that is open
for comment and comment on it.
The e-rulemaking initiative is now also developing a
Federal docket management system which will be a single
location on the Internet where eventually a member of the
public could go and find all the supporting documents for any
rule across the Federal Government. These issues are, as I say,
here to stay.
The second point is that we need to understand what
difference this information technology is actually making, what
kind of effects it is having on the rulemaking process. Now,
one of the predictions that is most widespread both among
Government officials, as well as among academics, is that the
Internet will create what some people have even called a
revolution in public participation, allowing citizens to play a
role in rulemaking that they have never been able to play
before and involving them on a frequent basis in the regulatory
process.
This actually is an issue that researchers have examined
quite extensively already. A growing body of research is
developing on these questions. What is most surprising, perhaps
given these predictions, is that the available research is
showing that public participation has not increased in almost
all rules due to the advent of the Internet.
I say that should be surprising given the predictions, but
I think with hindsight it probably shouldn't be too surprising.
Rulemaking, whether it is e-rulemaking or not, is still a
fairly technical, and if not even arcane, area of public
policymaking. So we probably shouldn't be surprised that many
members of the public are not participating on a frequent
basis.
Indeed, just as the Internet has lowered the cost to
participate in the rulemaking process, it has also lowered the
cost for members of the public to chat online with their
friends or follow sports results or celebrity gossip or do
other things that they would probably much rather do with their
time.
Now, the fact that public participation has not expanded
with the advent of e-mail and Regulations.gov does not mean
that e-rulemaking shouldn't be pursued. There are other
important purposes for using information technology in the
regulatory process, from transparency, from public expectations
about access to Government, from enhanced oversight by the
legislature or the executive branch, various administrative
efficiencies, and I also think a great deal of benefit for
academic researchers.
But for all of those purposes, empirical research will be
important to figure out which kind of technologies are actually
serving those goals, how well are they serving those goals, and
how can information technology be better deployed to serve
those goals.
My third and final point is that in any information
technology project, technology is only half the battle.
Organizational and institutional factors matter a lot for the
success of any information technology project. When we had our
symposium here in December of 2005, a number of people
expressed concerns and complaints about the current Federal
Docket Management System, its searching capability, and the
kinds of information that it holds.
Those are concerns that the people managing the project are
aware of. But they might be among the first to acknowledge that
the institutional structures right now for pursuing information
technology projects relate to rulemaking, the FDMS project in
particular, are really somewhat makeshift. It is the
Environmental Protection Agency that is actually managing a
Government-wide IT initiative related to rulemaking.
However much you may admire the work that the folks at EPA
are doing, it is not clear that an individual regulatory agency
should have the authority to be managing this project. We might
look in the future at the model of the Office of Federal
Register or the National Archives and Records Administration as
a possible institutional way of organizing information
technology projects in the future.
Of course, as with efforts for empirical research and other
important efforts of Government, IT projects also need adequate
funding vehicles as well. So there is a continued role for
Congress in pursuing and overseeing information technology
projects as they related to rulemaking.
I thank the Committee for the opportunity to talk with you
about these issues and for your interest in these issues.
[The prepared statement of Mr. Coglianese follows:]
Prepared Statement of Cary Coglianese
Mr. Cannon. Thank you, Professor.
I intend to do more than one round of questioning, if that
is agreeable to Mr. Watt. So I am going to limit myself to 5
minutes, and we will go back and forth, if that is interesting
to you.
I was intrigued, Professor Coglianese, by your comments
about empirical studies. Can I ask a couple of questions of you
all, four or five?
How many of you have been online to look at Wikipedia or
any other wiki? Do any of you do that? It is a fascinating
experience.
How many of you have used Google as your search engine?
Okay. How many of you have e-mailed, or how many of you have
looked at gmail? Okay, you are obviously the guru here.
Are any of you members of an online community?
Let me tell you my experience. I don't spend a lot of time
on the Net because my time is jerked around. But yesterday, I
am too fat and I want to lose weight, and to do that I decided
to Google ``calorie counter.''
So I ended up with a whole bunch of choices, and I went to
a site called ``sparklepeople'' or something like that. It
looked like it had a calorie counter, so I went to the site and
couldn't find the counter without joining. And I thought, what
the heck, I joined the community, so I signed up.
They asked for my e-mail. I was reluctant to give my real
e-mail, and so I decided to see what Gmail is like. I don't
mean to bore you here, but if you are talking about being
empirical, you can't do empirical analysis retrospectively. You
have to look at the tools that are available, and that is where
I am sort of headed here. So Gmail is not e-mail.
Let me just say, you also look at Gmail. I am not
recommending that because that would not be a congressional
thing to do, but it was fascinating, and I decided to sign up
for the Gmail account. And I used that as the e-mail address,
and I hope I am protected because you use your cell phone
number, by the way, when you do Gmail. It is not e-mail. It is
a different thing and very interesting.
And then I became part of the community. It turns out the
calorie counter was more awkward to use there than otherwise,
but I did flip through the site to see how it worked, and it is
a real community about people trying to use weight.
In that environment, in the environment we are in, which is
an environment of dramatic change, just with the difference
between e-mail, where you communicate back and forth, and
Gmail, where I think what they say on the Web site is archive
and don't delete.
So, for instance, I had a very interesting conversation on
texting from my telephone to my son's telephone in quite a
poignant point of our lives, and what I have on my telephone is
my statement in the outbox and his statement in the inbox, and
you can't put them together, at least not with the technology
that I have.
So I have saved that, because it is sort of interesting. In
fact, it is very interesting. I think 10 years from now he is
going to be fascinated when we go back over that conversation.
You can't do that given the technology that is the latest
technology you can get that I have had, but you can do it with
Gmail.
And so, when you talk about people being engaged, I am sort
of lecturing here, but the reason I am, I really appreciated
the input. This has been a remarkable hearing. When you look at
the decisions we have to make, and you all are focused on those
and dealing with those, it has got to be done in the context
not of what Government is or what has been happening or what
agencies have been doing or what agencies haven't been doing,
or what people are involved.
Given the nature of the community, you are not going to get
people, individuals normally involved with a system that has
questions about what records are available, when you have
Google that makes everything available.
And so it seems to me part of what we need to do here is
look at where we can go with people and their involvement. And
you don't expect a guy who is not a geophysicist to be
commenting on a rule that relates to something technical like
geophysics. But you can get him involved if you have a
community and a discussion and a conclusion and a choice.
And many times, we don't vote on the rules. We do the
things that make rational sense, but you can get feedback from
people in the context of maybe we should think about this. If
you have gone through and read and evaluated and considered the
implications of what you are doing, how do you think Government
ought to react?
In that context, I think that we have to look back at our
most famous and first democrat, Thomas Jefferson, who believed
that that governs best which is closest to the people that are
affected by it. How much Government are we going to be able to
shift away from the Federal level and toward the local level?
And by the way, you can multiply complexity because there are a
lot more people at the local level than there are in
Washington, D.C.
So I am going to ask some questions in my next round. My
time is almost up. I hope you will help as we go forward with
this project, and you guys have been involved and we appreciate
it. We absolutely need, the thing that has come through with
great clarity is we need ACUS.
ACUS is not what it was in the 1960's. ACUS is the place
where we can draw with resources everybody together and think
about these issues. They are not Republican issues. They are
not Democrat issues. They are issues of our time. They are
issues that are largely created by technology and if we don't
answer them thoughtfully and with a thoughtful process, we are
going to get the wrong kinds of answers.
So with that, I will yield back and recognize the
gentleman, the Ranking Member, for 5 minutes.
Mr. Watt. Mr. Chairman, I am impressed.
Mr. Cannon. That I didn't ask a question? [Laughter.]
Mr. Watt. No, with your knowledge of the technology. While
you were exploring the technology, I was out running.
[Laughter.]
It will help you lose weight a lot faster.
Mr. Cannon. He doesn't need the calorie counter. I am
almost ready to take that up. [Laughter.]
Mr. Watt. Just a suggestion to you, in case you are looking
for a suggestion about how to lose weight. Don't count the
calories, just burn them. [Laughter.]
Anyway, having said that, Professor Breger, your last round
of statements, or your last subject that you dealt with, was
some of the creativity at the State level. I was hurriedly
trying to read through your testimony. You gave it a sentence
or two in your oral statement and you gave it a sentence or two
in your written statement, too.
So can you tell us a little bit more about what some of the
States are doing in terms of creativity that we ought to be at
least thinking about?
Mr. Breger. Thank you, Congressman.
Arizona has, institutionalized by the State legislature, a
kind of State OIRA process, which has some innovative features
for centralized review of rulemaking, including the centralized
review also suggesting to the agencies when they should be re-
looking at existing rules or not.
Florida has its own State APA which has dealt with
interpretive regulations in innovative ways, also problems of
waiver of regulation by agencies. California's Administrative
Procedure Act has a different approach toward judicial review
with different levels of deference.
And of course, the model State Administrative Procedure
Act, which is a kind of model for the States, has a number of
different approaches and solutions from the APA that are worth
considering, including interpretative regulations among others.
Those are just a few of the kind of creative activity that is
going on in the States.
I would be happy to enlarge on that in written testimony.
Mr. Watt. I think that would be helpful to us, lest we have
to go and Google what the States are doing. While my Chairman
will be capable of doing that, I assure you I will not.
[Laughter.]
I won't either e-mail it or Gmail it.
Let me try to tie together what Professor Magill and
Professor Coglianese said. Is it possible that the decline in
hearings and U.S. litigation may be being precipitated by those
limited number of people who are engaging in e-technology? It
seems to me that one possibility is that e-technology is
certainly enabling people who are interested in an issue to be
a lot more involved in discussing that issue quickly and
interactively.
It used to be that you could only comment through the
written, paper, slow-mail process. You got no response to that
until the rule was actually made. Is this notion that I have
that this increased interactive capability may be helping to
sort through some of the disagreements that are taking place or
were taking place that were not resolved, and maybe leading to
a reduction in administrative procedures and/or litigation?
Ms. Magill. Sure. It is an interesting idea. I guess the
theory would be that increased participation and potential
collaboration resolves conflicts, and therefore agencies have
less need to bring enforcement actions or pursue violators of
rules or statutory violations. That is an interesting idea.
It is not something we had yet thought of, but we haven't
yet zeroed in on this descriptive finding. At the moment, we
are very big-picture, what has happened with rulemaking, what
has happened with adjudication, what has happened with
litigation. This descriptive trend surprised us. We presented
it in January of 2006. There were several people from the
Justice Department who were also surprised.
So we don't know the answer, and the best I can say is I
think there are lots of possibilities. This is one possibility
we can think about. We are some months away from thinking about
it in a sort of rigorous way. What could possibly explain the
reductions, and then try to test whether those factors do show
up as causally related to the reduction, or at least correlated
with the reduction.
So it is an interesting idea, and I am sad to say I can't
yet tell you with confidence whether I think the data supports
it.
Mr. Coglianese. We don't have any definitive research on
that specific question, but it is highly plausible. In fact,
one would expect that if members of the public can access
Government information about rulemaking more easily, then their
comments should be better informed and more helpful to the
agency, right, which should enable the agency to make a better
rule.
And if it is easier for interested members of the public,
as you say, those who have a connection with the rule and an
understanding of the general area, if it is easier for them to
participate, then Government may hear more from them. And that
may enable them to anticipate problems, anticipate conflicts,
and create a better rule.
Right now, we don't have any research that examines the
extent to which information technology creates better rules,
but we would hope it does. And we would hope that with
increased investments and innovation in information technology,
we could come up with tools that would make rules even better;
that would not only avoid litigation, but deliver more benefits
to society.
Mr. Watt. Mr. Chairman, I know I am over my time, but since
I am on a roll and I haven't gotten Professor West yet, can I
ask one more question? Well, actually one more question after
that, too, but it is not as important.
Mr. Cannon. Would the gentleman mind? I would like to
follow up on the last question. Are you going to change the
subject?
Mr. Watt. No. I think I am going to extend it to the pre-
comment period with Mr. West. That is what he devoted most of
his time talking about, and his student may want to join in the
conversation with us.
I was just fascinated by how you can do this pre-comment
period, get more interactive, especially through technology you
could do it. But I don't know how you would do it without
having a bunch of Government officials just sitting there e-
mailing back and forth in every agency.
How would you structure this increased pre-comment notion
that you think is desirable, that it seemed to me that you all
thought it might be desirable, and maybe actually helpful in
maybe decreasing even more the litigation, if you could get
more people talking earlier in the process. But how do you
structure something like that without just being so burdensome
that it just takes up so much time that you can't manage it?
Mr. West. That is a great question. I don't have a ready
answer for it.
You know, we wanted to see how much communication there was
in the pre-notice phase of rulemaking, and with whom it took
place and raise some issues. Should the pre-notice process be
structured? That begs a number of other questions. In part, it
depends on how effective the comment phase of rulemaking is in
redressing imbalances that occur during it.
Mr. Watt. It has to be structured to some extent, don't you
think, because otherwise you don't know who to communicate
with. Maybe that is a good dissertation undertaking for your
student. She is smiling, hey, maybe I can structure something
pre-comment period.
Mr. West. Well, that is a great question.
An obvious alternative would be to require agencies to use
advance notices for all rules or for certain kinds of rules,
maybe rules that reach a certain threshold of significance.
Actually, our study was based in large part on interviews with
seasoned public servants, many of whom had been working in the
area of rulemaking for decades. They were uniformly against
that, a requirement for advance notice is across the board.
They thought that that would just impede efficiency too much.
Mr. Watt. And be burdensome.
Mr. West. It would be burdensome. It would delay the
process.
Mr. Watt. It would take a lot of time.
Mr. West. Sure it would, yes. It is already a protracted
process and they felt that it would lengthen rulemaking by
years, in some cases.
Mr. Watt. I didn't change the subject, I don't think.
Mr. Breger. Mr. Chairman, if I can just add, when I was
Solicitor of Labor, when we did Advance Notices of Proposed
Rulemaking, these were for major rules. We thought through in
advance questions to ask with great particularity to see what
the different interest groups in the regulated community
thought about going in different directions. We found that was
very helpful.
We also developed some roundtables trying to bring together
different interest groups. I won't call them focus groups.
Mr. Watt. That is the same thing as a chat room?
Mr. Breger. But in person. That was pre-high-tech. Again,
that was very useful in bringing to our attention problems in
our thinking and therefore make the rule better.
And finally, and of course with Professor Coglianese here,
I have to mention negotiated rulemaking, which is another
mechanism, where he is an expert, but another mechanism which
we used at the Labor Department to bring out in kind of less
than formal ways problems with a proposed rule to try to refine
it and improve it in the rule development process.
Thank you.
Mr. Cannon. Neg reg, of course, was one of the great
successes of ACUS.
Mr. Breger. Yes.
Mr. Cannon. May I ask, how many students do we have who are
associated with your project here? Do you want to raise your
hand, those who are associated with Dr. West's project?
Mr. West. Just one.
Mr. Cannon. One. Do you have any other students associated
with Dr. Magill's project?
Okay, we are not going to put anybody on the spot here.
Thanks.
Let me follow up on this line of reasoning, whether we call
it a chat room or in-person kind of thing. Let me give you
another experience that I had, also related to my weight.
I have decided, since this discussion, I am going to find a
keyboard that has more resistance so I am using more calories
when I do that, but I noticed my weight was different in Utah
than in Washington. I had the same brand of scale. I got it
from Costco. It was very consistently different.
So I Googled the difference in altitude and weight. I got a
very simple answer, but that was as part of a discussion board,
and somebody responded to that simple answer with a more
complex answer, and then somebody who had a Ph.D in something
came on and said no and then gave a very big answer, a very
complicated answer. The net effect is I think it is just a
consistent difference in my scales.
But the reason I tell that story is because if you look at
the world like having to do a pre-rulemaking and a notice of
rulemaking or a negotiated rulemaking, you are dealing with
what a few people in an agency are seeing, as opposed to what
the world is seeing. And so maybe if you have a context for
discussions, this rule is not working because I have a farm in
Minnesota and it is a different situation from the people that
you have regulated in other parts of the country.
If you have that kind of an environment, all of a sudden
you get the right kind of input from the right kind of people,
and then maybe some agronomist somewhere can point out, you
think your farm is different, but in these regards it is the
same. And the guy says, oh, yes, you are right. And so you have
compliance by a guy who might otherwise not comply on the low
end, and therefore less litigation, but on the other end you
have people, associations of people that then focus on their
interest and their differences and the way they communicate.
So if you look at the Internet as a way to do what we used
to do better, it is not the same thing as saying, what do we
have, what tools do we have available that allows us to do
better what we ought to be doing, rather than what we have
done. And so, let me just hope that that will ferment in your
perfervid imaginations.
Ms. Magill, may I ask you a question? You said that the 90
percent agency actions informal statistic, when did he come up
with that guess? Do you know?
Ms. Magill. It was a speech given in the middle of the
1970's, published in the Administrative Law Journal.
Mr. Cannon. We have been using that figure, that guess, for
30 years.
Ms. Magill. Professor Freeman had an example in the fall of
2005 in her testimony that I think people relied upon. This was
the 80 percent figure, 80 percent of EPA rules are challenged
in court. A study demonstrated that that was not true. I am not
sure my 90 percent figure has been the basis for policymaking,
but it is repeated a lot.
Mr. Cannon. It is repeated a lot, yes.
Ms. Magill. It is repeated a lot. It is a difficult
enterprise to carefully answer the question, how much agency
action is informal, even in one agency. So maybe a guess is the
best we can do. I don't think so. But to answer that question
definitely would be hard, but again, we can do better than a
guess, I think.
Mr. Cannon. And probably the difference is going to be
relevant and significant as we go forward.
Ms. Magill. Yes.
Mr. Cannon. Dr. West, in your prepared statement, you said
two agencies ordered their staff not to comply with your
survey, despite a cover letter indicating that it was being
conducted under the auspices of CRS and the Judiciary
Committee.
What were the two agencies that refused to cooperate with
you?
Mr. West. Caitlyn, correct me if I am wrong, but I think it
was the Internal Revenue Service and the Department of
Transportation.
Mr. Cannon. Ms. Miller, would you like to join us at the
table? We won't even put you under oath. We would love to have
you here.
Do either of you have a guess as to why those two agencies
were uncooperative?
This goes on your resume. You have yet to testify. You have
to say something at some point. [Laughter.]
Mr. West. The person from the IRS told us that. We assured
everyone that the survey would be confidential and that it
would not even identify specific regulations, but they were
nonetheless afraid that that would establish a precedent that
would lead to lawsuits or other efforts to open up, to get
access to communications that occurred during the pre-notice
phase of rulemaking. That was my recollection for IRS.
I can't remember the rationale that was given to us by the
Department of Transportation.
Ms. Miller. We did do the survey electronically, and we got
some e-mails. We sent out the cover letter to all of our
respondents, and then we sent out a preliminary e-mail with the
link to the survey. We got some responses back that there were
policies from the counsel's office in the departments that they
were not to participate in any academic surveys. Their
impression was that they were too busy.
Mr. Cannon. I suspect that means we have to haul them in
here before this Committee, right?
Mr. West. I will add, though, that especially with the
Department of Transportation, the other part of our study
consisted of interviews with experienced Government officials,
people from general counsel's offices and so forth. There were
several people from Transportation that were extremely helpful
in that part of the project.
Mr. Cannon. You know, there is an interesting overlay
between what Congress can do and what our staff can do, and
what an academic institution can do. I suspect that ACUS sort
of helps bridge that gap by working together with staff.
Do you think, Professor West, that if ACUS had been
involved that that would have affected these agencies'
reaction?
Mr. West. Well, it might have, and this is something that
Curtis Copeland and I discussed. ACUS is obviously a
nonpartisan agency without any apparent institutional bias. So
people in the agencies might be more forthcoming to cooperate
in research by ACUS than in research occurring under the
auspices of, say, a congressional Committee.
Mr. Cannon. But would you indulge me for one more question?
Dr. Breger, you headed ACUS for a period of time. In your
experience, did ACUS ever work with Committee staff to get
information that was otherwise difficult to get?
Mr. Breger. We worked with Committee staff in the sense
that Committee staff often suggested projects to us. We
generally had a good working relationship with the agencies.
The reason is that every agency by statute was a member of
ACUS. Usually, their chief legal officer, or their general
counsel, was the member or the deputy general counsel in charge
of regulations. So they, in a sense, bought into the process.
As a result, we had a much easier time. I won't say
``easy.'' We had a relatively easy time in gaining their
cooperation, certainly on the front end of the study. One of my
jobs after the plenary assembly approved a recommendation was
to knock on everyone's door and say, why don't you accept it?
That was not always so easy.
Mr. Cannon. You know, you gave a litany of the problems we
have. Everybody has suggested that there is a vast amount that
we don't know that is knowable, and ACUS can help us know that
on the one hand. On the other hand, we have great opportunities
to transform what we do, and having agencies buy in through
ACUS makes the case very, very strongly, I think, for ACUS.
I yield back. Do you have more questions, Mel?
Mr. Watt. I just wanted to follow up with Professor
Coglianese. Can you provide a little information about how EPA
got to managing e-rulemaking, the whole process? And would ACUS
be an alternative to that? Or what would be the logical
alternatives to one particular agency taking the lead on
something like that?
Mr. Coglianese. Certainly. The president established an e-
Government agenda which had 24 different projects. E-rulemaking
was one of those projects. For each project, the Administration
designated a lead agency to administer these initiatives.
My understanding is that OMB hired a consulting firm to
examine the hardware that was used by agencies that had online
docket systems in place already, and that the consultant report
identified the EPA as having the best hardware, which was not
surprising since EPA was one of the most recent agencies, at
that time, to adopt such a system. So it had the latest
technology.
EPA has since worked with a great deal of cooperation by
all the other agencies, 100 agencies or so, that are connected
in this e-rulemaking initiative. Many of the agencies that
issue a lot of rules are more active in working collaboratively
with EPA, but the project is administered by EPA. That has led
to some challenges when it comes to funding.
Initially, OMB was channeling funds on a pro-rata basis
according to how many rules an agency issues, all coming from
different agencies to fund this initiative. The congressional
Appropriations Committee didn't quite agree with that as an
approach to funding e-Government efforts and has since called
into question that practice, and now it is much more difficult
to fund this project adequately because of this makeshift
institutional structure.
The other thing that has happened is that EPA really has no
final say, in a sense, because it is not administering a
statutory mandate that has vested management authority in it.
So an alternative model for undertaking an e-rulemaking project
like this that covers the entire Federal Government would
probably not be ACUS, but something like the Office of Federal
Register, which similarly is charged with an information
management function that cuts across the entire Federal
Government. There are standards for what goes into the Federal
Register, what format it is in, and the like, and those
standards apply to all agencies.
So something like that might be the more appropriate model
to look at creating an institution that could manage
information technology projects that cut across the Government,
and hopefully extend indefinitely into the future and allow for
innovation as technology improves over time.
Can I add one other comment, by the way, to your earlier
point about chat rooms and involving the public in notice-and-
comment rulemaking?
Mr. Watt. I have actually never been in a chat room.
Mr. Coglianese. I just wanted to note, it wasn't in my
testimony, but it is in a forthcoming article I have written
that will appear in the Duke Law Journal. There have been
several agencies that have tried chat-room, online discussions,
interactive forums, as ways of generating information.
There was one study by Woody Stanley, a DOT employee, where
he looked at a project that the Federal Motor Carriers
Administration had undertaken. He went to the Web site, and you
could either join the chat room or you could file a comment.
Interestingly enough, the people who filed the comments and
chose that avenue tended to be the usual suspects. But people
who entered the chat room and discussed issues tended to be
truck drivers who wouldn't ordinarily have filed comments. And
through that interactive dialogue, Stanley reports, there were
different kinds of issues that were presented to the agency
than emerged in the comments.
The comments focused on a lot of technical issues, costs
and the like. The truck drivers were raising issues of
practicality, of safety and the like, that were not emphasized
as much through the formal comments. So there is some work
being done by agencies to explore these interactive
opportunities, and some research being done on what it all
means.
Mr. Watt. Your second dissertation is on structuring this
e-rulemaking technology. We are giving her a lot of information
today.
Thank you, sir. I appreciate it. I yield back.
Mr. Cannon. I have one very quick question, and then a
couple of things for the record.
Professor Coglianese, have you worked at all with the IEEE
to help develop standards in this regard? They are a massive
resource, and you ought to connect with them.
In fact, let me suggest a name, Lee Hollaar, L-E-E, last
name H-O-L-L-A-A-R, has worked on the Hill on the Senate side.
He has a degree in computer science and also law, and he works
closely with the IEEE. He is on several of their Committees,
and we can get you his phone number. He would be a great guy to
talk to about this because he is smart and he has the
background and he can connect with the folks who ought to be
doing this at IEEE, and they ought to be part of our overall
project.
And just for the record, it is Ms. Miller, right? And what
is your first name?
Ms. Miller. Caitlyn.
Mr. Cannon. C-A-I-T-L-I-N?
Ms. Miller. Y-N.
Mr. Cannon. Y-N. Okay. Great. M-I-L-L-E-R.
Ms. Miller. Correct.
Mr. Cannon. Just so you know, this is the permanent record
forever, and you are here with us. We thank you for being here.
I ask unanimous consent that we keep the record open for 10
business days, working days, for follow-up written questions.
Without objection, so ordered.
Let me just thank you all. We appreciate your expertise. It
is a very difficult issue which is timely and very important,
and we appreciate your involvement here today, but also in the
broader project. We look forward to seeing you again soon.
Thank you.
We are adjourned.
[Whereupon, at 12:59 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Revised Prepared Statement of Professor M. Elizabeth Magill, University
of Virginia School of Law, Charlottesville, VA
My name is Elizabeth Magill and I am a law professor at the
University of Virginia School of Law. Thank you for asking me here
today.
My teaching and research are in the fields of constitutional law
and administrative law. I have taught administrative law and related
courses--food and drug law, advanced administrative law--since 1998. My
academic writing in administrative law is about judicial review of
administrative action and about the varied procedural choices agencies
make when they implement their statutory mandates--whether, for
instance, they adopt a legislative rule or adjudicate a case or bring
an enforcement action in the courts. I have served as a reporter for
the APA Restatement Project of the Administrative Law and Regulatory
Practice Section of the American Bar Association.
I am especially pleased to be asked to testify before this
Subcommittee. Like many administrative law professors, I have admired
this Subcommittee's work on administrative process. The academics I
know all cheered this Subcommittee's leadership in seeking the
reauthorization of the Administrative Conference of the United States
and we hailed its passage in 2004. We have also admired the efforts of
this Subcommittee to, with the assistance of the Congressional Research
Service's American Law Division, identify a research agenda to address
important questions of administrative process and to fund several
research projects.
I. WHERE DO WE GO FROM HERE?
This hearing, which recalls the adoption of the Administrative
Procedure Act sixty years ago, has been convened to ask what the future
holds. I will do my best to answer that question in a moment, but I
must note at the outset that it is not exactly clear where we go from
here. That is because we do not fully comprehend where we are this
moment. Despite the scope and significance of the administrative state,
there is not enough systematic work that identifies what agencies are
doing and asks whether they are doing it well; nor is there enough
systematic work that asks about the effects of the mechanisms used to
curb agency discretion--Congressional oversight, Executive and judicial
review. There are many examples that highlight this lack of
empirically-grounded research and writing on the administrative state.
As Professor Jody Freeman pointed out in her testimony before this
Subcommittee in 2005, an often-repeated statistic was that 80% of EPA
rules were challenged in court; the only problem was that this had no
basis in fact as one study demonstrated. Another often repeated
statistic is that 90% of agency action is ``informal''--that is, it
does not follow procedures specified in the APA--but, after tracing the
origin of this statistic, I found that the author of the statistic
represented it as a ``guess.''
The first most important step to setting a course for the future is
the investment of resources in careful study of the most pressing
issues that arise across a range of agencies. This Subcommittee's
leadership has started us down that road, and I will speak in a moment
about work that advances that objective. But I do not have any doubt
that more remains to be done.
Careful and systematic study is not an easy task and that is one
reason why there is not enough of it. The administrative state is
incredibly complex. Agencies have distinctive statutory mandates--some
distribute benefits, some regulate the market, some protect the nation.
They also follow different processes and have distinctive designs--
Commission, Administrator, Cabinet level or not Cabinet level. They
address a dizzying variety of tasks in varied ways. That complexity
makes systematic and generalizable research very difficult to conduct.
At the same time, it is clear that administrative agencies are not
so distinctive that one cannot generalize about their behavior and draw
conclusions about what may trouble us about the soundness or wisdom of
their activities. Of course, most agencies are subject the basic
template provided for in the Administrative Procedure Act. More than
that, though, many agencies share similar substantive tasks--they must
rely on scientific judgments to do their business or they manage large
benefit programs or they are in the business of licensing firms before
they enter the market. Looking across agencies to determine and assess
how they perform these tasks is obviously a worthwhile endeavor.
Agencies are also subject to similar controls. They are the object of
close oversight by Congress, the Executive, and/or the federal courts.
Thus, despite the enormous complexity of the administrative state,
there are common issues and problems that affect a large set of
agencies such that cross-agency study will repay enormous dividends and
will guide administrative reforms.
To figure out where we go from here, then, we must invest the
resources to study the general issues that affect a substantial number
of agencies and, if warranted, identify problems and formulate
solutions. I would emphasize that those resources must be put in the
hands of people who will approach their study in a systematic way. In
my view, such studies must rely on the time-tested methods of social
scientific inquiry, rather than the haphazard gathering of data or,
worse, anecdote. It is only careful study that can establish the facts
of the matter and thus provide a sound basis for identifying problems
that need to be rectified.
There are several promising signs that such study is starting to
occur. In part, these developments are due to the efforts and vision of
the Members and staff of this Subcommittee and the CRS. Re-
authorization of ACUS has generated enormous enthusiasm in the
administrative law community. The studies that this Subcommittee's
efforts have spawned--Professor West's work on public participation in
rulemaking that we are hearing about today and Professor Freeman's
study of judicial review of administrative action--are important
efforts that will advance our understanding and clarify what, if
anything, is needed in the way of law reform. More than that, in my
corner of the world, an increasing number of my peers are convinced of
the need for empirical study of the administrative state and an
increasing number of people in law teaching have the necessary training
to engage in rigorous empirical work.
II. ESTABLISHING AN ACCURATE PICTURE OF THE ADMINISTRATIVE STATE'S
ACTIVITY
For the past several years, I have been working with a colleague to
complete what I just testified was the most important step to take
before we could identify what comes next--that is, we have been working
on a project to find out exactly where we are now. My colleague is
Professor Steven Croley at the University of Michigan Law School and we
have been working together to provide a comprehensive empirical picture
of federal agency decision-making. We have received several grants to
support our work, including from the Milton and Miriam Handler
Foundation and the Olin Foundation. Our goal, in the most general
terms, is to describe what agencies do and how that has changed over
time.
Our project will present detailed data on the frequency and type of
decisions that federal agencies make, both across agencies and across
time. Our book explains the legal parameters of agencies' primary
decision making tools--including legislative rulemaking, adjudication,
litigation, and agency guidance--and provides as in depth data as is
available about the frequency, including change in frequency over time,
of agency reliance on those tools. Our data is presented in the
aggregate (how many rules across the federal government and how has
that changed over time) as well as agency by agency. We also identify
patterns in that data. Our project is heavily descriptive, but we also
provide narrative explanation of why, when, and how federal agencies
make decisions, and we plan to address various normative questions
implicated by our empirical findings as well.
Professor Croley and I undertook this project because, as students
of the administrative state, we were frustrated by the lack of
comprehensive information about agency decision-making. Most
administrative law scholarship focuses primarily on judicial review of
agency decision making. While obviously important, judicial reaction to
agency work product is only one window onto the activities of the
administrative state. Meanwhile, political scientists and economists
who write about agency behavior are not generally attentive to the
legal differences among the agencies' policymaking tools. As teachers
of administrative law, we found no work that examined empirically the
range and frequency of procedures agencies employ. More than that, no
work provides a ready general source of data about the form and
frequency of administrative agencies' legal work-product. Our
motivation for undertaking this project has been primarily to supply
what is missing--certain basic, comprehensive facts--about agency
behavior and agency decision-making.
Our effort has several goals. Most basically, we aim to shed
descriptive light on fundamental but understudied questions about
federal agency decision-making. For example: Exactly how often do
agencies engage in rulemaking and adjudication processes under APA?
Which agencies do so the most, and which the least? Have agencies
engaged in more or less rulemaking, and adjudication, over time (and
adjusting for variables like population, GNP, and legislative
activity)? In addition, how many of which different types of rules--
``regulatory rules,'' ``redistributive rules,'' ``governmental
housekeeping rules,'' etc.--have agencies issued over recent years? How
many staff have agencies committed to the adjudication processes over
time? How many times do agencies sue to enforce their statutory
mandates and how, if at all, has that changed over time? How often are
agencies sued and required to defend their exercises of authority and
how, and if so, has that changed over time?
A related goal of our project is to provide others with an
empirical base from which others can draw their own conclusions about
administrative government. We hope to inspire others to enlist the data
we supply to advance their own research on agency behavior. Abstract
discussions of administrative government should be grounded as much as
possible in concrete facts about what agencies really do, and the facts
we present will inform others' work.
Last but not least, we engage in analyses ourselves, practicing
what we preach. That is, in addition to presenting the facts about the
type and volume of agency activities, we consider how those facts might
connect to perennial normative debates about, for example, executive
versus legislative control of agencies, agency accountability and
independence, and the appropriate size and role of the federal
government, among others. We also explore our descriptive findings by
running several statistical tests to evaluate hypotheses related to
normative discussions of agency activity. For example, we investigate
whether certain agency decision-making procedures increase or decrease
with Republican or Democratic administrations, or in times of divided
or undivided government, among other things.
We have collected data from a very wide variety of sources. In
identifying sources, we had a strong preference for data collected
across a large number of agencies, and collected by neutral entities at
regular intervals. We wished to avoid collecting data agency by agency
because of the risks of inconsistency this raises. Our sources are
largely available from various government sources. The data come from,
for example, Office of Personnel Management, GAO, the Regulatory
Information Service Center, Office of Information and Regulatory
Affairs at OMB, the General Services Administration, Executive Office
of the United States Attorneys, and the Administrative Office of the
U.S. Courts. Much of it is available in a raw form that must be
analyzed and aggregated to be meaningful and appropriate for
generalization. Most of the labor of our project consists of the
legwork of finding, compiling, and aggregating data across many
different sources, and then organizing and presenting that data in
meaningful ways.
We are still in the process of producing our book. But in January
of 2006, at the annual meeting of the American Association of Law
Schools, we presented some of our preliminary findings. I will recount
for you some of what we reported there.
The core of the book are chapters devoted to each of the major
policy making tools available to agencies--rulemaking, adjudication,
government litigation, and guidance. Let me provide a few highlights of
our findings about rulemaking, adjudication, and government litigation:
*Rules: Knowing how many rules are promulgated each year depends on
the type of rule as well as the classification system of the entity
that collects the information. ``Rule'' is a legal term of art and
there are different definitions of rule and different types of rules.
But, two sources, RISC and GAO, provide the most useful aggregate data
on the number of rules issued each year. Relying one these data
sources, we have come to the following preliminary conclusions.
First, agencies together issue just over 4,000 final rules per
year, an amount reflecting a gradual decline since the early 1980s,
when they issued just over 6,000 rules a year. Second, about 66% of all
final rules come from agencies whose heads report to cabinet
secretaries, while only about 10% percent come from the independent
agencies, down from about 20% percent two decades ago. The remaining
25% come from executive-branch agencies, like the EPA, whose heads do
not report to cabinet secretaries but to the President.
Considering proposed rather than final rules, the same general
pattern emerges. Agencies now publish about 2,700 proposed rules a
year, down from over 3,500 in the early and mid-1980s. Here, however,
independent agencies publish a bigger share, 15-20% of proposed rules,
with non-cabinet executive agencies publishing just barely more than
that, and the remaining 60% then coming from cabinet agencies.
Not all rules, however, have a substantive effect. Somewhere
between 1,000 and 1,200 rules issued each year have a substantive
effect. Among substantive rules, between about 500 and 700 rules each
year are far-reaching enough to trigger White House review. The number
was closer to 500 in the late 1990s, and approximates 700 each year
since 2000. Of those, about 45 to 75 per year constitute huge rules
with an estimated annual impact on the economy of more the $100
million.
*Adjudication: Tracking adjudication in the federal government is
difficult because there are different types of adjudicators--
Administrative Law Judges (ALJs) and Presiding Officers (POs)--who
preside over evidentiary hearings and there is no current
governmentwide collection of data on the number of adjudications
conducted each year. For one putting together an accurate empirical
picture of administrative adjudication, the primary sources are OPM
personnel data, two publications by the ACUS in the late 1970s, and two
surveys of non-ALJ adjudications conducted in 1989 and 2002.
The vast majority of ALJs in the federal government adjudicate
cases in the Social Security Administration. SSA ALJs have, since 1991,
always constituted more than 72% of the total ALJs in the federal
government. After SSA, the next highest employers of ALJs are Labor,
NLRB, and the Energy Department.
In the aggregate, from 1991 through 2004, the total number of ALJs
increased by 13%, from 1191 to 1341. This increase occurred during a
period when total government employment declined by 15%.
But the 13% increase in the number of ALJs was not consistent
across agencies. Social Security Administration ALJs increased by 31%
while the number of non-SSA ALJs declined 37% between 1991 and 2004. In
other words, the number of adjudicators who are implementing regulatory
programs declined while those adjudicating benefits have increased.
Many who adjudicate cases in the federal government are not ALJs.
We know from two surveys that there are several thousand POs conducting
evidentiary hearings. In a 1989 survey, the author found 2,692 POs and
this number increased to 3,370 according to a follow-up survey
conducted in 2002. As of the 2002 survey, the largest number POs were
in the Justice Department's Executive Office for Immigration Review,
the Veterans Administration, and the IRS and the largest number of
cases decided by POs were in EOIR, the IRS, and the Appeals Council of
the SSA.
*Government Litigation: One window onto to the administrative state
is to observe litigation on behalf of agencies in the courts. This
includes affirmative litigation--called ``US as plaintiff''
litigation--brought by the federal government as well as litigation
where the government is defending against a challenge to its
activities--called ``US as defendant.'' The Administrative Office of
the Courts and the Executive Office of U.S. Attorneys each track this
litigation.
A look at those data are revealing on a variety of fronts, but the
most dramatic descriptive trend is the dramatic decline in ``US as
plaintiff'' litigation. The Administrative Office of the Courts reports
that US plaintiff litigation declined by two thirds in a 14 year
period. In 1990, there were 30,000 US plaintiff cases and this declined
to 10,000 in 2004. During the same period, US as defendant litigation
increased dramatically, from just under 25,000 cases to nearly 40,000
cases.
The Executive Office of the US Attorneys reports similar data,
although their data track agency litigation more precisely because the
reports categorize litigation based on the client agency that US
Attorneys are representing. From 1991 through 2003, overall civil cases
handled by US Attorneys declined by 11%. But US plaintiff cases
declined by 60% while US defendant cases increased by 11%. Affirmative
litigation on behalf of every agency that DOJ represents declined,
except the Interior Department.
______
This whirlwind tour of statistics provides just a slice of the data
we will present in our book. As you can see, our goal is to provide an
accurate and systematic picture of the activities of the administrative
state. It is our hope that this sort of grounding will be a basis for
moving forward by identifying the right questions to ask. And the data
raise many questions: Why, in the last five years, are there more
``significant'' rules being forwarded to OIRA for review? What accounts
for the rise in POs? Why is the number of regulatory ALJs declining?
Why has US Plaintiff litigation declined so dramatically?
III. WHERE DO WE GO FROM HERE?
So I return to the question I started with, namely, where do we go
from here? As I said at the outset, I do not know where we go next
because of the dearth of sound and careful work about where we are now.
I am absolutely confident that further study is necessary to identify
problems and formulate solutions. And the reauthorized ACUS provides an
opportunity to move forward. Once funding is secured, many will clamor
to fund various research projects. They may disagree on the priority,
but few will disagree about the central need for more and more rigorous
work about what is occurring at agencies. And there are many worthy
research projects. In the fall of 2005, you heard testimony from
Professor Jeffrey Lubbers, Mr. Mort Rosenberg, and Professor Jody
Freeman, all suggesting possible avenues for research of a
reconstituted ACUS. I have read their testimony and believe they made
extremely valuable suggestions. I will add a few of my own to the list.
My suggestions are not detailed proposals for study, but what I view to
be the most important general areas for research.
External Agency controls: To my mind, a central question about
agency activity is whether and how the various oversight mechanisms
that are in place for agencies work. Agencies are subject to control
and oversight by Congress, by the Executive, and they are subject to
judicial review by courts. Asking about the function and efficacy of
these control mechanisms is probably the most important question we can
be asking. Thankfully, there is work that has been and is being done on
these areas. Professor Croley has carefully studied the White House
Review of agency rules and Professor Freeman is now engaged in her own
comprehensive study of judicial review of agencies. These two studies
are notable for their systematic--as opposed to ad hoc-approach and
they have and will teach us a lot. But we need to do more because these
external controls on agencies are so important and it is a complex
enterprise to assess their efficacy. In my view, we are just at the
beginning of building an accepted base of knowledge and moving toward
conclusions about the wisdom and efficacy of these control mechanisms.
Internal Agency Controls: Another promising area for research is to
get inside the agency and study how agencies make their important
decisions. My own research has made me very interested in why it is
agencies choose to implement their mandates in such different ways,
some relying heavily on adjudication, others relying heavily on rules.
But there are many other questions, for instance: When and why do
agencies adopt enforcement guidelines? How do they organize internal
appeals from front-line decision makers? How do they set their
regulatory priorities? These questions about the internal decision
making process of agencies are central to understanding why they behave
the way they do and, as a result, are worthy of sustained attention.
Effectiveness of Rules. Many have noted that we have no way to
determine the effectiveness of rules after they are in place. Among
other things, we presently have no mechanism to determine whether the
projections contained in the cost-benefit analysis when the rule is
adopted turn out to be accurate in the long-run. Answering this
question may not answer questions about the overall efficacy of
regulations, but it would be a useful question to ask and, more
importantly, it is just the sort of analytic task that a think tank arm
of government could design and conduct. A research program aimed at
identifying the promising ways to go about assessing the costs and
benefits after implementation and comparing them to earlier projections
would be a worthy enterprise.
______
Thank you for inviting me here today. I am gratified by the
interest this Subcommittee has shown in the efficacy and fairness of
administrative process.
Response to Post-Hearing Questions from Professor William West, The
Bush School of Government and Public Service, Texas A&M University,
College Station, TX
Response to Post-Hearing Questions from Professor Marshall Breger, The
Catholic University of America--Columbus School of Law, Washington, DC
Response to Post-Hearing Questions from Professor M. Elizabeth Magill,
University of Virginia School of Law, Charlottesville, VA
Response to Post-Hearing Questions from Professor Cary Coglianese,
University of Pennsylvania Law School, Philadelphia, PA