[House Hearing, 109 Congress]
[From the U.S. Government Printing 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


                                 ______

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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

                              ----------                              

                             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\
---------------------------------------------------------------------------
    \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