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


 
 ADMINISTRATIVE LAW, PROCESS AND PROCEDURE PROJECT FOR THE 21ST CENTURY

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   COMMERCIAL AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                           NOVEMBER 14, 2006

                               __________

                           Serial No. 109-152

                               __________

         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

                              ----------                              

                           NOVEMBER 14, 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

Morton Rosenberg, Esq., Specialist in American Public Law, 
  Congressional Research Service, Washington, DC
  Oral Testimony.................................................     5
  Prepared Statement.............................................     9
Curtis Copeland, Ph.D., Specialist in American National 
  Government, Congressional Research Service, Washington, DC
  Oral Testimony.................................................    19
  Prepared Statement.............................................    22
T.J. Halstead, Esq., Legislative Attorney, American Law Division, 
  Congressional Research Service, Washington, DC
  Oral Testimony.................................................    37
  Prepared Statement.............................................    39

          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

                                APPENDIX
               Material Submitted for the Hearing Record

Letter from the American Bar Association, submitted by the 
  Honorable Chris Cannon, a Representative in Congress from the 
  State of Utah, and Chairman, Subcommittee on Commercial and 
  Administrative Law.............................................    55
Memorandum from Morton Rosenberg, Specialist in American Public 
  Law and T.J. Halstead, Legislative Attorney, American Law 
  Division, Congressional Research Service, to the Subcommittee 
  on Commercial and Administrative Law...........................    95


 ADMINISTRATIVE LAW, PROCESS AND PROCEDURE PROJECT FOR THE 21ST CENTURY

                              ----------                              


                       TUESDAY, NOVEMBER 14, 2006

                  House of Representatives,
                         Subcommittee on Commercial
                            and Administrative Law,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 3:27 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Chris 
Cannon (Chairman of the Subcommittee) presiding.
    Mr. Cannon. I would like to apologize to the witnesses for 
the late start. The votes, and people chatting in the halls, 
make the gauntlet from the Capitol here virtually impassable. 
So I apologize to you, and I appreciate your patience and look 
forward to your testimony.
    Today's hearing is a fitting way to bring to a close the 
109th Congress. The Committee on the Judiciary, as one of its 
very first items of business for this Congress, authorized the 
Subcommittee on Commercial and Administrative Law to undertake 
a comprehensive study of administrative law, process and 
procedure on January 26, 2005, as part of the Committee's 
oversight plan for the 109th Congress.
    This hearing represents the culmination of that 2-year 
study known as the Administrative Law, Process and Procedure 
Project for the 21st Century. Over the course of this project, 
the Subcommittee conducted six hearings, participated in three 
symposia, and sponsored several empirical studies.
    Topics examined as part of this project included the 
adjudicatory process of agencies; the role of public 
participation in rulemaking; the process by which agency 
rulemaking is reviewed by the Congress, the President, and the 
Judiciary; and the role of science in the regulatory process.
    From its very inception, this project has been a thoroughly 
bipartisan and nonpartisan undertaking. To that end, I want to 
thank the Subcommittee Ranking Member, Mr. Watt for his active 
and unwavering support throughout this undertaking, and point 
out that I look forward to working with him in whichever 
chairmanship he assumes in the next Congress.
    It is also important to remember that this project was 
inspired and initiated by the House Judiciary Chairman, Jim 
Sensenbrenner. The project is a testament to the Chairman's 
deep and long-standing commitment to improving the law and 
procedure in general, and, in particular, to improving the 
administrative and rulemaking process. Accordingly, we thank 
the Chairman for his insight and leadership in allowing the 
Subcommittee to spearhead this endeavor.
    It is also appropriate at this time to extend our sincere 
thanks to the Congressional Research Service and its director, 
Dan Mulhollan, for devoting so many critical resources--
physical, financial, and human--to this project.
    The three witnesses who appear today on behalf of CRS, 
namely, Mort Rosenberg, Curtis Copeland and T.J. Halstead, 
deserve much of the credit for playing such a major role in 
guiding the project and ensuring its success.
    It is my sincere hope that the findings and recommendations 
of the project's report, which will be issued later this month, 
will not just sit on the proverbial shelf to gather dust. 
Rather, it should become a valuable legacy for the next 
Congress.
    Let me cite just one example. One of the most important 
legacies of the project is that it underscored the absolute and 
urgent need to have a permanent, neutral, nonpartisan think 
tank that can dispassionately examine administrative law and 
process and that can make credible recommendations for reform. 
Clearly, I am referring to the need to reactivate the 
Administrative Conference of the United States. Although 
reauthorized in the 108th Congress with overwhelming bipartisan 
support, the Conference remains to be funded.
    The extremely nominal investment to fund ACUS would redound 
in billions of savings in taxpayer dollars. Accordingly, I 
encourage our Subcommittee Members on both sides of the aisle 
to continue to pursue this very worthy cause in the waning days 
of this Congress, and, if that fails, in the next Congress.
    [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

    Today's hearing is a fitting way to bring to a close the 109th 
Congress. The Committee on the Judiciary--as one of its very first 
items of business for this Congress--authorized the Subcommittee on 
Commercial and Administrative Law to undertake a comprehensive study of 
administrative law, process and procedure on January 26, 2005 as part 
of the Committee's Oversight Plan for the 109th Congress.
    This hearing represents the culmination of that two-year study, 
known as the Administrative Law, Process and Procedure Project for the 
21st Century. Over the course of this Project, the Subcommittee 
conducted six hearings, participated in three symposia, and sponsored 
several empirical studies.
    Topics examined as part of this Project included the adjudicatory 
process of agencies; the role of public participation in rulemaking; 
the process by which agency rulemaking is reviewed by the Congress, the 
President, and the judiciary; and the role of science in the regulatory 
process.
    From its very inception, this Project has been a thoroughly 
bipartisan and nonpartisan undertaking. To that end, I thank the 
Subcommittee Ranking Member, Mr. Watt, for his active and unwavering 
support throughout this undertaking.
    It is also important to remember that this Project was inspired and 
initiated by House Judiciary Chairman Jim Sensenbrenner. The Project is 
a testament to the Chairman's deep and longstanding commitment to 
improving the law and procedure in general, and, in particular, to 
improving the administrative and rulemaking process. Accordingly, we 
thank the Chairman for his insight and leadership in allowing the 
Subcommittee to spearhead this endeavor.
    It is also appropriate at this time to extend our sincere thanks to 
the Congressional Research Service and its Director, Dan Mulhollan, for 
devoting so many critical resources--physical, financial, and human--to 
this Project. The three witnesses who appear today on behalf of CRS, 
namely, Mort Rosenberg, Curtis Copeland, and T.J. Halstead deserve much 
of the credit for playing such a major role in guiding the Project and 
ensuring its success.
    It is my sincere hope that the findings and recommendations of the 
Project's report, which will be issued later this month, will not just 
sit on the proverbial shelf to gather dust. Rather, it should become a 
valuable legacy for the next Congress.
    Let me cite just one example. One of the most important legacies of 
the Project is that it underscored the absolute and urgent need to have 
a permanent, neutral, nonpartisan think-tank that can dispassionately 
examine administrative law and process and that can make credible 
recommendations for reform.
    Clearly, I am referring to the need to reactivate the 
Administrative Conference of the United States. Although reauthorized 
in the 108th Congress with overwhelming bipartisan support, the 
Conference remains to be funded.
    The extremely nominal investment to fund ACUS would redound in 
billions of savings in taxpayer dollars. Accordingly, I encourage our 
Subcommittee Members--on both sides of the aisle--to continue to pursue 
this very worthy cause in the waning days of this Congress and, if that 
fails, in the next Congress.

    Mr. Cannon. I now turn to my colleague Mr. Watt, the 
distinguished Ranking Member--soon to be more distinguished--of 
the Subcommittee, and ask him if he has any opening remarks.
    Mr. Watt. Thank you, Mr. Chairman. I assure you that being 
a Chair or a Ranking Member is not, by definition, more 
distinguishing or less distinguishing.
    Mr. Cannon. I agree with the gentleman. I hope that I don't 
lose much stature in the process. It would be hard for you to 
gain more stature because you're a person of great 
accomplishments and distinction already.
    Mr. Watt. It does feel good.
    Mr. Cannon. Now let's not rub it in, okay?
    Mr. Watt. I will just, if it is all right, Mr. Chairman, 
ask unanimous consent to revise and extend my remarks and 
submit a statement for the record, and will make a very brief 
comment about this hearing because I think it is important for 
us to do the follow-up. And hopefully whoever is in charge of 
this Subcommittee and Committee next term of Congress will not 
allow this to go unnoticed, and the package of recommendations 
will be implemented.
    We are in thorough need of reform in Government agencies 
and the administrative procedures since we haven't had a major 
reform in over a decade, when we had the National Performance 
Review and the second Clinton/Gore term began to focus on some 
of these issues, so I think this is important. The Chair has 
put it at the top of his agenda, and I hope some Chair will put 
it at the top of their agenda in the next term of Congress if 
nothing is done this year.
    That having been said, Mr. Chairman, I would ordinarily 
yield back, but if this is to be the last meeting of our 
Subcommittee in this term of Congress, I think I would be 
remiss not to express my gratitude to you and my high 
admiration for the manner in which you have conducted this 
Subcommittee and consulted with me as the Ranking Member. It's 
the kind of consultation that I think is important, and that 
the American people are saying they desire to have Republicans 
and Democrats have. And from my part, you can be assured 
wherever I am, as a Chair, it will be my intention to exercise 
the same kind of consultation as we go forward, either on this 
Subcommittee or on whatever Subcommittee I'm on, on Judiciary 
or Financial Services, which I may also be eligible for a 
Subcommittee on.
    So you've set a good model for us and set a high standard 
for bipartisanship and consultation and respect and friendship, 
and I just publicly want to express my thanks to you for that.
    And with that, I'll yield back the balance of my time.
    Mr. Cannon. I want to thank the gentleman for those kind 
remarks. I can't imagine any kinder thing being said about me, 
except possibly that I'm a good father, but you don't know my 
family, so that's beyond your purview. But thank you very much 
for those kind comments.
    And I would just point out that America has evolved, it's 
grown in the last 10 or 12 or 15 years, and I think the next 
Congress is going to be an opportunity to focus on what America 
needs and not in a partisan fashion. There are many, many 
issues that are truly nonpartisan that are important, and I 
look forward to working with the gentleman on many of those 
issues.
    Without objection, the gentleman's entire statement will be 
placed in the record. Hearing no objection, so ordered.
    [The information referred to was not available.]
    Mr. Cannon. I ask unanimous consent to include a letter 
from the American Bar Association in the prehearing record. 
Hearing no objection, so ordered.
    [The information referred to can be found in the Appendix.]
    Mr. Cannon. Without objection, all Members may place their 
opening statements in 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 the Members have 5 legislative 
days to submit written statements from the conclusion of 
today's hearing record. Hearing no objection, so ordered.
    I am now pleased to introduce today's witnesses for today's 
hearing.
    Our first witness is Mort Rosenberg, a specialist in 
American public law in the American Law Division at the CRS. In 
all matters dealing with administrative law, Mort has been the 
Judiciary Committee's right hand. For more than 25 years he's 
been associated with CRS. Prior to his service at that office, 
he was chief counsel at the House Select Committee on 
Professional Sports, among other public service positions he's 
held. In addition to these endeavors, Mort has written 
extensively on the subject of administrative law. He obtained 
his undergraduate degree from New York University and his law 
degree from Harvard Law School, and he has been a remarkable 
help us to through this process, and I want to thank you for 
that, Mr. Rosenberg.
    Our second witness is Dr. Curtis Copeland, a specialist in 
American Government at CRS. Dr. Copeland's expertise, 
appropriately relevant to today's hearing, is Federal 
rulemaking and regulatory policy. In addition to this area of 
expertise, Dr. Copeland also heads the Government and Finance 
Divisions, Executive and Judiciary Section at CRS, which covers 
issues ranging from Federal financial management to the 
appointment of Supreme Court Justices. Prior to joining CRS, he 
held a variety of positions at the Government Accountability 
Office over a 23-year period. Dr. Copeland received his Ph.D. 
From the University of North Texas.
    Our final witness is T.J. Halstead, a legislative attorney 
in the American Law Division of CRS, and in this capacity is 
one of CRS's primary analysts on administrative law and 
separation of powers issues. Before joining CRS in 1998, Mr. 
Halstead received both his undergraduate and law degrees from 
the University of Kansas.
    We understand and appreciate that as CRS staff, your 
testimony will be confined to technical, professional and 
nonadvocative aspects of the hearing subject matter pursuant to 
congressional guidelines on objectivity and nonpartisanship.
    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 hearing record, I request that you limit your 
oral remarks to 5 minutes. Accordingly, please feel free to 
summarize or highlight the salient points of your testimony.
    You will note that we have a lighting system that starts 
with a green light. After 4 minutes it turns to a yellow light, 
and then at 5 minutes it turns to a red light. It is my habit 
to tap the gavel or a pencil at 5 minutes. We would appreciate 
it if you would finish up your thoughts within that time frame. 
We don't want to cut people off, and certainly not in the 
middle of your thinking, so it's not a hard red light or a hard 
termination.
    After you've presented your remarks, the Subcommittee 
Members, in the order they arrive, will be permitted to ask 
questions of the witnesses subject to the 5-minute limit. I 
suspect that won't be a real long event.
    Let me just say we welcome Mr. Chabot, who has joined us 
here on this end.
    I would ask the witnesses to rise and raise your hand to 
take the oath.
    [Witnesses sworn.]
    Mr. Cannon. The record should reflect that all the 
witnesses answered in the affirmative.
    Mr. Rosenberg, would you now proceed with your testimony.

  TESTIMONY OF MORTON ROSENBERG, ESQ., SPECIALIST IN AMERICAN 
   PUBLIC LAW, CONGRESSIONAL RESEARCH SERVICE, WASHINGTON, DC

    Mr. Rosenberg. Thank you, Mr. Chairman. Thank you, Mr. 
Watt. I just want to reiterate that I am honored not only to 
appear before you again, but also for giving me the opportunity 
to do the kind of work we've been doing for the last 2 years. 
It's been an education for me, and it's been a fruitful 
endeavor to put together, you know, symposia, be at these 
hearings, and to generally support the work of this Committee 
in identifying emerging issues.
    Today, my CRS colleagues Curtis Copeland and T.J. Halstead 
and I will try to brief you on the status of the Process and 
Procedure Project and what might be done in the future. My 
testimony will focus on the potential significance of the 
reactivation of ACUS, and one of the seven elements of the 
project, the Congressional Review Act. Curtis and T.J. Will 
discuss the other six elements of the study.
    With respect to ACUS, I've always thought that in this part 
of the project there was, you know--of course it's important 
for it to be the reactivation that occurred in 2000--the 
reauthorization that occurred in 2004 was important, and that 
the funding and ultimate reactivation of ACUS was not important 
at that moment. But at some particular point--and our 
experience with our studies underlines the fact that there is a 
need for an organization like ACUS, which provided nonpartisan, 
nonbiased, comprehensive, practical and cost-effective 
assessments and guidance on a wide range of agency processes, 
procedures and practices, a history that has been well 
documented before this Committee.
    What struck me as important was one of the study projects 
that we commissioned, the one which Professor West conducted 
with regard to participation in the--public participation in 
the prenotice and comment period. His excellent study was, you 
know, hindered a great deal by the fact that, as his testimony 
before this Committee revealed, that his entree to the 
Committee, to the agencies that he was attempting to get 
information and to do his assessments was met with 
recalcitrance and suspicion. Generally, the best information 
that he got was through informal interviews that were in, you 
know, deep, you know, background from knowledgeable officials 
of these agencies.
    That was not true during the heyday of the Administrative 
Conference. Its reputation of credibility, of nonpartisanship, 
and expertise opened doors when an ACUS-sponsored researcher 
came to the door because there was a certain amount of self-
interest involved. The reputation of ACUS as an entity that 
would provide expert guidance redounded, and the kinds of 
studies and suggestions for the agencies to--you know, to 
change their practices or to undertake new ways of 
decisionmaking redounded to their benefit so that there was a 
self-interest involved in having an ACUS study that could help 
that agency. So that reactivation, you know, that could be 
looked to as an extraordinarily important aspect to it.
    I also enjoyed very much the empirical--the symposia that 
we conducted, as well as the--one of the more symposia--at 
least, and most interesting was the science and rulemaking 
symposium, from which, after questioning some of the members of 
the panel on advisory bodies, we discovered that nobody knew 
how many science advisory bodies were out there. Nobody knew 
what the selection process was--these were among experts in 
this field--and as a result of that revelation in itself--and 
the panels at that science symposia were quite excellent--we 
commissioned a study to develop a taxonomy of science advisory 
committees in the Federal Government, a study that will be 
completed sometime next June, and we'll present it to this 
Committee, which will tell us, you know, how many there are, 
how they're selected, how they're vetted, how they deal with 
conflicts of interest and various important information about 
these advisory committees that will allow Congress to decide 
whether any kinds of legislative actions needs more regulating.
    The symposium we held on September 11 on Presidential, 
Congressional and Judicial Control of Rulemaking was also one 
that I would recommend to scholars, Congresspeople, everybody 
to read the transcript. One of the themes and one of the things 
that came across very well was the constitutional dimension of 
the study, or parts of the study, that you are engaged in. And 
I will talk about that, you know, in a few moments.
    I chaired the panel on the Congressional Review Act, and of 
course I've spoken about the Congressional Review Act with you 
at one of your hearings. The panel was interesting, revealing, 
and I'd like to say a few words about the Congressional Review 
Act and where we could go from here.
    Congress' stated objective of setting in place an effective 
mechanism to keep it informed about the rulemaking activities 
of Federal agencies which would allow for expeditious 
congressional review and possible nullification of particular 
rules may not have been met. That was the clear result of the 
testimony there and the discussion. Statistically, to date, 
over 43,000 rules have been reported to Congress, including 
over 630 major rules, and only one, the Department of Labor's 
ergonomics standard, was disapproved in 2001. Many analysts 
believe that the negation of the ergonomics rule was a singular 
event, not likely to be repeated.
    Witnesses at your hearing pointed to structural defects in 
the mechanism, most commonly the lack of a screening mechanism 
to identify rules that warranted review by jurisdictional 
Committees, and then expedited consideration process in the 
House--the lack of an expedited consideration process in the 
House that complemented the Senate's procedures, as well as 
numerous interpretive difficulties of key statutory provisions 
that seemed to deter use of the mechanism.
    One witness at the hearing, Todd Gaziano of the Heritage 
Foundation, while agreeing with the structural critique, 
suggested that the law's presence and the threat of a filing of 
a joint resolution of disapproval had had a degree of influence 
that could not be ignored. He agreed, however, that the framers 
of the legislation anticipated that the mechanism would provide 
an incentive for legislators to insist on institutional 
accountability as a response to criticisms of Congress that it 
had been delegating vast amounts of lawmaking authority to 
executive agencies without maintaining countervailing checks on 
the exercise of that authority.
    There was also recognition among the witnesses that the 
establishment of a joint Committee that would screen rules, 
recommend action to jurisdictional Committees in both Houses 
could provide the coordination and information that were 
necessary to inform the bodies sufficiently and in a timely 
manner and nature of such to take appropriate legislative 
actions.
    The balanced nature of such a joint Committee and its lack 
of substantive authority appeared to provide a way to allay 
political concerns over turf intrusions. The House 
Parliamentarian, John B. Sullivan, agreed that such a joint 
Committee was a viable construct.
    A further question raised at the March hearing, and again 
at the panel discussion of the Congressional Review Act in the 
September 11th symposium, was whether it was necessary to have 
all the rules reported and reviewed. It was suggested that only 
major rules need be reported, which would save legislative 
time, and also money; and that the many rules, the thousands 
that have come before Congress, simply aren't of a stature that 
needs to be addressed by a jurisdictional Committee.
    There was no consensus, however, among the panelists as to 
who or how a major rule would be defined. There was an 
agreement among the panelists that the nonsubstantive advisory 
joint Committee would be a politically viable screening 
mechanism, but not the same unanimity with respect to an 
expedited House consideration procedure. Former House 
Parliamentarian, Charles Johnson, explained that it was likely 
that the lack of a parallel House expedited procedure in the 
CRA was purposeful. He explained that the House leadership 
believes that the House is a majoritarian institution, and that 
expedited procedures undermines majority rule.
    One panelist, Professor Jack Beermann, expressed a view 
that making it easier for Congress to overturn an agency rule 
may come at a very high political cost. He asks the question, 
``does Congress really want to be in the position where it is 
perceived that everything an agency does is their 
responsibility, since they've taken it on and reviewed it under 
this mechanism? Do they want to have that perception?'' He 
concluded, ``I think that this may just increase the blaming 
opportunities for Congress.''
    Professor Beermann also stated the belief that--similar to 
that expressed by Todd Gaziano, that the current CRA has the 
effect of forcing the executive to negotiate, which is a 
satisfactory result, in his view. I don't think there is a lot 
of empirical evidence to support those comments, but it is a 
view that's prevalent out there.
    Proponents of the CRA concept, however, argue that it 
reflects a congressional recognition of the need to enhance its 
own political accountability, and thereby strengthening the 
perception of legitimacy and competence of the administrative 
rulemaking process.
    It is also said to rest on an understanding that broad 
delegations of rulemaking authority to agencies are necessary 
and appropriate, and will continue for the indefinite future. 
The Supreme Court's most recent rejection in 2001 in the 
Whitman case of an impending revival of the so-called 
nondelegation doctrine is impetus for Congress to consider 
several facets and ambiguities of the current mechanism.
    Absent congressional review, it is argued, current 
instances of avoidance in notice and comment, rulemaking, lack 
of full reporting of covered rules to be submitted under the 
CRA, and increasing Presidential control over the rulemaking 
process will likely continue. Professor Paul Verkuil, who was 
on the CRA panel, was a particularly strong voice for this view 
at the symposium.
    Let me conclude by observing that much of the 
Administrative Law Project has an important constitutional 
dimension, raising the crucial question of where ultimate 
control of agency decisionmaking authority lies in our 
constitutional scheme of separated, but balanced powers. The 
tension and conflicts of this scheme were well brought forth 
and voiced in CRS's symposium on Presidential, Congressional 
and Judicial Control of Rulemaking.
    There can be little doubt as to Congress' authority to make 
the determinative decisions with respect to the wisdom of any 
particular agency rulemaking, and to prescribe the manner in 
which congressional review will be conducted. Whether or not to 
do so is a political decision, a hard one with many practical 
consequences.
    I thank you, and I'll welcome questions.
    Mr. Cannon. Thank you, Mr. Rosenberg.
    [The prepared statement of Mr. Rosenberg follows:]

                 Prepared Statement of Morton Rosenberg




    Mr. Cannon. The Chair would like to recognize Mr. Coble, 
the gentleman from North Carolina, who has joined us, and also 
the gentleman from Massachusetts Mr. Delahunt.
    In deference to your experience, we went beyond the 5-
minute rule. When we made that decision, we had only a couple 
of us here, but if I could remind the other two questions--we 
will probably have time for questioning, but I would like to 
have the panel to have the opportunity to question, so I will 
probably tap at 5 minutes.
    Thank you, Mr. Rosenberg.
    And Dr. Copeland, you are now recognized.

  TESTIMONY OF CURTIS COPELAND, PH.D., SPECIALIST IN AMERICAN 
     NATIONAL GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE, 
                         WASHINGTON, DC

    Mr. Copeland. Thank you very much.
    Mr. Chairman, Members of the Subcommittee, thank you for 
inviting me here today to discuss the Administrative Law 
Project. My testimony will focus on three elements of that 
project, the Presidential review of rulemaking, the utility of 
regulatory analysis requirements and the role of science in the 
regulatory process.
    During the past 25 years, the epicenter of Presidential 
review has been a small office within OMB, the Office of 
Information and Regulatory Affairs, or OIRA. OIRA's role in 
reviewing agency rules has changed with the changes in the 
Presidency. The current Bush administration has reasserted 
OIRA's gatekeeper role that was prominent during the Reagan 
administration.
    Although OIRA's reviews have become somewhat more 
transparent in recent years, it is still far from a transparent 
process. For example, OIRA has said that it has its greatest 
impact before rules are formally submitted to it for review, 
but has instructed agencies not to disclose those changes to 
the public.
    OIRA also remains highly controversial. Some public 
interests groups assert that OIRA review has been a one-way 
rachet that only weakens and delays rules, while business 
groups contend that OIRA has not been assertive enough in 
reining in agencies.
    A number of very interesting studies have recently examined 
the impact that OIRA has on rulemaking, but many issues remain 
that either Congress or ACUS may want to address. Those issues 
include whether Congress should codify Presidential review, 
whether independent regulatory agencies' rules should be 
subject to review, and what rules should govern OIRA's contacts 
with outside parties during the review process.
    OIRA also has been a key player in implementing regulatory 
analysis requirements established by Congress and the 
President. Many of those requirements were developed in the 
1980's and `90's in an effort to ensure that the benefits of 
regulation were worth the compliance cost. For example, before 
publishing any proposed or final rule, the Regulatory 
Flexibility Act of 1980 requires agencies to prepare an 
analysis describing the rule's effects on small businesses and 
what efforts the agency took to avoid those effects.
    The Unfunded Mandates Reform Act of 1995 has similar 
requirements to protect the interests of State and local 
governments. Executive Order 12866 requires covered agencies to 
prepare a cost/benefit analysis for any rule having a $100 
million impact on the economy. However, numerous studies 
indicate that these requirements have often been less effective 
than their advocates have hoped. For example, agencies can 
avoid a reg flex analysis if they certify that the rule in 
question does not have a ``significant economic impact'' on a 
``substantial number of small entities.'' And agencies have 
certified rules, even when they cost businesses thousands of 
dollars each year in compliance costs.
    In other cases, new requirements have been linked to old 
ones that have been viewed as ineffective. For example, the 
requirements that agencies develop compliance guides to help 
businesses and others comply with the regulations and that 
agencies reexamine their rules every 10 years are not triggered 
if the agency certifies those rules don't have a significant 
impact on small entities.
    After more than 25 years of experience with these analytic 
requirements, we know surprisingly little about their 
effectiveness or how they can be improved. Issues that Congress 
or ACUS could explore include the extent to which the 
requirements contribute to what is called the ``ossification'' 
of the rulemaking process; the accuracy of agency's prerule 
estimates of cost and benefits; and whether the myriad of 
requirements should be made consistent and codified in one 
place.
    The role of science in rulemaking has become highly 
controversial in recent years, with observers from both the 
left and the right suggesting that ``sound science'' has been 
given insufficient weight in the development of regulatory 
standards. The May 2006 symposium that Mort mentioned on this 
topic featured panelists discussing such issues as the role of 
science advisory panels, science and judicial review, and 
Government agencies' capabilities. A panel that I moderated 
focused on OIRA's recent science-related initiatives, including 
recent bulletins on peer review and risk assessment.
    While OIRA's peer review bulletin was initially very 
controversial, with some science groups and others asserting 
that it could make peer review vulnerable to political 
manipulation or controlled by regulated entities. As a result 
of those concerns, OIRA later published a substantially revised 
version of the bulletin that gave agencies more discretion, 
while reserving some for itself.
    OIRA's January 2006 proposed bulletin on risk assessment is 
currently undergoing peer review by the National Academy of 
Sciences. In May 2006, nine Federal agencies testified at a 
public meeting on that bulletin. Some agencies said that the 
scope of this risk assessment bulletin is so broad that doctors 
and the public may not receive timely warnings about potential 
health risks posed by medical devices and drugs like Vioxx. 
Other agencies were more supportive of the risk bulletin, but 
still proposed certain changes.
    Possible areas for further research in this area include 
whether the Information Quality Act should be amended to 
provide for judicial review, how advisory panels can be 
constructed to ensure that they're unbiased, and whether 
governmentwide standards for peer review and risk assessment 
are needed and working as intended. Objective and rigorous 
examinations of all of these administrative law issues by 
Congress or ACUS could prove to be a wise investment in the 
long term.
    Mr. Chairman, that concludes my prepared statement. I'd be 
happy to answer any questions.
    Mr. Cannon. Thank you, Dr. Copeland.
    [The prepared statement of Mr. Copeland follows:]

                Prepared Statement of Curtis W. Copeland




    Mr. Cannon. Mr. Halstead.

    TESTIMONY OF T.J. HALSTEAD, ESQ., LEGISLATIVE ATTORNEY, 
    AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE, 
                         WASHINGTON, DC

    Mr. Halstead. Mr. Chairman, Members of the Subcommittee, I 
am pleased to be here today to discuss the Subcommittee's 
Administrative Law Process and Procedure Project.
    I've been particularly involved in the consideration of 
four issues that have arisen in the various symposia, hearings 
and studies conducted under the project's banner, namely, 
public participation in the rulemaking process, agency 
adjudication, judicial review of agency rulemaking, and the 
utility of a reconstituted ACUS in light of the regulatory 
clearance and review functions of the Office of Management and 
Budget. I have addressed those issues in detail in my prepared 
statement, and I would like to focus today on efforts that have 
been made to study court participation and judicial review over 
the course of the project. I think they illustrate both the 
time and effort that has gone into the project, as well as 
factors that could be viewed as supporting the continuing need 
for an entity such as ACUS.
    The staff of your Subcommittee has spent a great deal of 
time focusing on public participation issues ranging from the 
impact of non-rule rules on public participation, to whether e-
rulemaking initiatives have, in fact, facilitated an increase 
in public participation.
    Professor Cary Coglianese convened a congressional 
symposium for the Committee on the e-rulemaking issue last 
December, and I think that type of collaborative effort has 
been essential to furthering our understanding of these issues. 
One interesting aspect of that symposium was the general 
consensus that e-rulemaking initiatives have not, in fact, 
generated the significant increase in participation that was 
largely expected in light of the strides that have been made in 
electronic technology and accessibility. The participants of 
that symposium recommended further studies on the issue, and, 
in particular, recommended expanding and institutionalizing 
opportunities for collaboration, which is a role that ACUS has 
served in the past and could arguably fulfill again.
    Another significant study that Mort mentioned in his 
testimony has been conducted by Professor William West at Texas 
A&M, focusing on how agencies develop proposed rules, with a 
particular emphasis on public participation and transparency in 
the prenotice and comment phase of rule formulation. The study 
relied in large part on an electronic questionnaire sent to 
agency staff involved in the development of a large sample of 
individual rules and on interviews with high-level agency 
personnel with extensive experience in the rulemaking process. 
One of the hopes of that study was that the questionnaire would 
generate data that would enable a systematic comparison of 
variations in agency practice during this phase of rulemaking, 
but, as Mort mentioned, a low response rate to the survey 
prevented that from happening.
    The interview and survey data did enable Professor West and 
his team to make some very interesting and important 
observations relating to the outside participation of 
individuals in the development of rules, but I think the low 
response rate to that survey, again, could be taken to support 
the position that there is an important role for ACUS. 
Professor West himself has related his view that the survey was 
hobbled by a general reluctance on the part of agencies to 
share information, with apparently two agencies explicitly 
ordering their staff not to respond to the survey.
    Given the factors that Mort mentioned earlier regarding 
ACUS's nonpartisan nature and organizational independence, it's 
quite possible that a reconstituted ACUS would be able to 
secure a greater response for these types of studies, which in 
turn would further Congress' knowledge of such issues.
    Another key study in the project is being conducted by 
Professor Jody Freeman at Harvard Law School, focusing on 
empirical analysis of judicial review of agency rulemaking. The 
goal of the study is to find out what happens to agency rules 
during review in the circuit courts, essentially to determine 
how often rules are invalidated in whole or in part, and the 
reasons why they are invalidated. Professor Freeman's study is 
ongoing, but she discussed the methodology of the study and 
presented her preliminary findings at our September 11, 2006, 
symposium on Presidential, Congressional and Judicial Control 
of Agency Rulemaking.
    The study is ultimately expected to yield significant and 
useful empirical data on the success of challenges to agency 
rules in the appellate courts, but the limitations on this type 
of study might be seen as providing further evidence of the 
futility of a reconstituted ACUS. Professor Freeman herself 
noted in her comments at that symposium that stand-alone 
studies of this type do not give rise to a coherent and 
comprehensive empirical strategy that fosters optimal analysis 
of administrative process for the long term. Rather, it could 
be argued that only an entity such as a reconstituted ACUS will 
have the ability to assemble a group of experts with the aim of 
formulating a cohesive methodology that will be supported by 
ongoing and systematic analysis.
    I hope my testimony has given you an idea of the scope of 
work that's been done in these areas, as well as the potential 
for a reconstituted ACUS to further improve our knowledge and 
understanding of administrative law and process, and I look 
forward to answering any questions that you might have. Thank 
you.
    Mr. Cannon. Thank you, Mr. Halstead.
    [The prepared statement of Mr. Halstead follows:]

                  Prepared Statement of T.J. Halstead



    Mr. Cannon. And again, thank you all for being here today.
    Mr. Rosenberg, if I could just follow up on some of your 
comments. You talked at some length about the Congressional 
Review Act and about how it would work here in Congress. And 
you fell a little short of talking about what we actually 
talked about, I think, in this hearing, and that was if 
Congress were to review every rule. In other words, if you set 
aside the major rules as impractical to actually determine, 
then what the effect of that would be that noncontroversial 
rules would be viewed as minor, and if anybody had a problem 
with a rule, they could raise that problem in the course of a 
congressional oversight process.
    That would mean that Congress would have to staff up 
somewhat. The Majority or the Minority would shift a little bit 
in how they would happen, but you would have an internal 
process whereby notice and comment could be had, and that way 
what was major would be determined not by the agency's action 
or by some other standard which would be difficult to 
implement, but rather by the reaction of the population. So 
that in the case of a small business and the effect of a 
regulation on a small business, small businesses could come 
forward and say, hey, this regulation would be more difficult, 
and you could do it in a more easier fashion.
    I don't know if you recall that part of the conversation, 
but it seems to me actually that the panel is agreeing that if 
you give up the idea of making a distinction between major and 
minor regulations, that you pretty soon end up in a point where 
you just say maybe Congress should review all, and then those 
that are substantial would become the point of focus. Do you 
recall that? And what is your thinking on that today?
    Mr. Rosenberg. What I was talking about today was a 
relation of testimony at the March hearing. It has been my view 
that there is a way to deal with all rules; that if, let's say, 
a joint Committee was set up as a screening mechanism, or a 
quorum-type vehicle was set up as a screening mechanism, which 
then presented recommendations, an internal procedure could be 
set up to screen out those rules that might be deemed minor 
rather than major, and that a deeming process that we talked 
about at the last hearing, which was approved by current 
Parliamentarian Sullivan and former Parliamentarian Charlie 
Johnson, that these could be the mechanism for----
    Mr. Cannon. Would you mind suspending for a moment here 
while we have people leave? Thank you.
    Please proceed.
    Mr. Rosenberg. The difficulty with limiting congressional 
review to major rules is just what you're saying: You're going 
to be losing rules that have an impact. Right now a major rule 
is defined by the Office of Management and Budget, and I don't 
know that you want to continue to have the Office of Management 
and Budget deciding what is a major rule, and therefore, these 
are the only rules that will come before Congress. You could do 
it verbally, with a sense of a $100 million impact, or a catch-
all kind of a thing where it has a major significance, impact 
on--I did a nice thing here.
    One of the constitutional problems is Congress itself can't 
decide what to bring up, what would be a charter problem, 
demanding that an agency bring up a particular rule. So you may 
have a problem of all or nothing, and to have the kind of 
effective congressional oversight, it would seem to me that all 
rules, as they are now, should come before Congress. And you 
would set up a procedure whereby there would be a screening 
process that, let's say, after 30 days, if a particular rule is 
not acted upon or a joint resolution of approval is not 
followed against that particular rule, it then goes to a 
calendar Wednesday when all the rules are being passed at that 
particular point or approved.
    Mr. Cannon. But the charter problem doesn't exist if all 
rules come through, but directing a rule--Congress is not good 
at directing, so you don't ultimately have a charter problem, 
do you?
    Mr. Rosenberg. Not when it's there, not with all the rules 
covered. Then there can be a selection process and a deeming of 
approval at that particular point. You could get rid of 99.98 
percent of the rules every year, and you would be able to catch 
the 60 or so major rules that come forward, if they're 
necessary. Most of the major rules are not that controversial 
either. So that you would have a process whereby the meaningful 
threat is out there that Congress is looking, and that these 
rules will have to come up, you know, in a way that, you know, 
conforms with what they were supposed to be.
    Mr. Cannon. Mr. Watt, would you allow me to do one more 
question?
    Mr. Watt. Sure.
    Mr. Cannon. Dr. Copeland, when you talked about the blaming 
process--I think you mentioned that, that was mentioned by one 
of the witnesses here--that is, does Congress want to be blamed 
for rules that it approves based upon agency action? It seems 
to me that that's actually our job.
    But secondly, having a process whereby you have a political 
review means that if you don't have significant objection to a 
rule, that the blame really goes to the people who have the 
interest who didn't assert the interest at the time. So do you 
think that the blaming--concern about blaming is something that 
Members of Congress would want to avoid, or is it something 
that we can deal with if we did some kind of a review of all 
regulations and perhaps a vote on all regulations?
    Mr. Copeland. I don't recall getting into the blaming 
issue, but I can respond to your question a bit.
    The issue of whether congressional accountability for 
agency rules--it really gets back to the question of that the 
agency rules are based on congressional action. But the problem 
is more alluded to if Congress got in the business of approving 
all rules. There is about 4,000 final rules issued every year, 
and that would take up a significant amount of Congress' time. 
So some process of weeding these things out is necessary in 
order to avoid that overwhelming task.
    The question then becomes how do you pick. And if you let 
OMB and the agencies pick which ones are subject to 
congressional review and would come up here. But technically 
any rule, under the Congressional Review Act--and Mort, correct 
me if I'm wrong--any rule can be challenged right now; there 
can be a resolution of disapproval on any rule, and it doesn't 
have to be one that an agency does a major rule report on or 
that GAO does a major rule report on. So Congress can pick 
which ones, and certainly the interest groups in Washington are 
adept at pointing things out to Congress which ones they have a 
problem with.
    Mr. Rosenberg. The difficulty is it goes through a normal 
process of legislation, and you know how difficult that is. 
That's why expedited procedures assist in focusing and taking 
action in a timely and effective way. I'm the one that brought 
up the blaming----
    Mr. Cannon. Oh, I'm sorry. You were quoting someone else, 
but----
    Mr. Rosenberg. I was quoting one of the participants on my 
panel who was making a political point, you know, that you're 
never going to get this because it puts too much 
responsibility. It may be that Congress gets blamed for doing 
things, and most often for not doing things; and here you're 
adding a whole category of rules that they could have taken 
care of, and somebody will hammer then. So therefore, let's 
have a procedure that's less threatening to us, or to you guys.
    Mr. Cannon. I would hope that you could do some sort of 
expedited procedure and pass all bills, and the American people 
actually want that, and they're beginning to see that. And the 
blame thing is an initiating thing that we look at as 
individuals. Institutionally I think that Congress ought to 
have a greater role in the vast amount of law that gets created 
under the direction of the law we pass, but at the behest of 
the Administration.
    Mr. Rosenberg. One of the ostensible reasons for the 
passage of the Congressional Review Act was to place 
responsibility and accountability on Congress in order to wipe 
out the criticism that they nearly delegated vast amounts of 
power out and never, you know----
    Mr. Cannon. That lever hasn't worked as well--it might have 
worked a little bit, but we don't have the data, and it hasn't 
worked clearly as well as we had hoped. But you know that I'm a 
fan of the idea of passing all.
    Thank you, all. And I would like to recognize Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman.
    And let me also join you in thanking the witnesses who have 
devoted so much time to this project, and I think advanced it 
to a point where hopefully it can be picked up and moved 
forward.
    Mr. Rosenberg, I just had one clarifying question because I 
wasn't sure I understood what you were saying about ACUS being 
reauthorized in the 108th Congress, but wasn't so critical that 
it be funded. What was that point?
    Mr. Rosenberg. Well, my meaning was simply that the process 
that we're going through, the study process, the projects, the 
symposia, were setting the groundwork. And we could set the 
groundwork over a 2-year period, which we have done, but at 
some point there would have to be an ACUS or something like 
ACUS. There has to be something like ACUS to provide the kind 
of objective, nonpartisan consideration and study of 
sophisticated----
    Mr. Watt. Right. I just wanted to make sure that the record 
was clear that all three of the witnesses, I assume, would 
strongly advocate funding of ACUS, not just reauthorizing it; 
or is there any disagreement about that?
    Mr. Rosenberg. We don't advocate, but we would be pleased--
--
    Mr. Watt. I mean, supportive and pleased, yes.
    Mr. Rosenberg, let's just do it one by one so we'll have it 
in the record, and there won't be any equivocation about it.
    Mr. Rosenberg. I am supportive of a reactivated ACUS.
    Mr. Copeland. Certainly it makes sense for these issues to 
be explored further. I think the potential is there for 
significant savings as a result of this because the people will 
quibble about what the total dollar value is of all 
regulations, but it's clearly in the hundreds of millions of 
dollars. Just last year OMB approved 82, I believe it was, 
economically significant rules, each of which is $100 million; 
1 percent of that total is $82 million.
    Mr. Halstead. It's very difficult to quantify how much 
money ACUS saved over its existence. There are anecdotal 
examples----
    Mr. Watt. Let me be clear. I'm trying to get a straight 
answer into the record that you support or don't support 
appropriating money to fund ACUS.
    Mr. Halstead. I think over the course of the project we've 
identified several factors that could be looked at as very much 
supporting the notion that a reconstituted, refunded ACUS would 
have a beneficial effect for modern administrative government.
    Mr. Watt. Having established that from all three of the 
witnesses, let me also be clear. If you have some concept of 
what the appropriate appropriation level would be to adequately 
fund ACUS. And I guess I would say that against--obviously not 
having ACUS or something similar to it has had substantial 
economic impacts on various parts of our economy, businesses, 
so forth and so on. I'm trying to kind of put in context for 
the next Congress or future Congresses or Members of this 
Committee or the Judiciary Committee what it would cost as 
opposed to what it would save, I guess. And so what kind of 
appropriation level would we be talking about to adequately 
fund ACUS? Got a clue?
    Mr. Halstead. Well, we----
    Mr. Watt. Mr. Halstead.
    Mr. Halstead. Using the prior reauthorization, it 
authorized, if my memory serves correctly, a funding level for 
fiscal years 2005 through 2007 of roughly $3 million a year. I 
think it's 3.2 million for the 2007 authorization. And based on 
the work that the Subcommittee did for that initial 
reauthorization, the expectation is that that would be 
somewhere in the neighborhood of what you would need for ACUS 
to get up and running in an effective fashion.
    When you look at the academic literature study in ACUS, it 
has always been regarded as a very cost-effective organization 
in relation to the return it provides. So somewhere around that 
$3 million figure is maybe----
    Mr. Watt. Three million?
    Mr. Halstead. Three million, yes.
    Mr. Watt. Okay. And that's the figure that you're 
projecting that would be to get it up and running. What is the 
annual figure, ballpark, that you would think it would be 
appropriate to sustain it once it is up and running on an 
annual basis?
    Mr. Halstead. I would think it would be somewhere in that 
neighborhood. Throughout the course of its existence, it was at 
somewhat roughly that proportional level.
    Mr. Watt. Okay. I just wanted all that to be in the record 
because, I mean, you know, we're constantly doing cost/benefit 
analyses. It seems to me that this is one of those occasions 
that, while we're not being scientific about it, that it's 
important for us to make it very clear to future Committees and 
Congresses that we view ACUS as being a very cost-effective 
agency. And $3 million, if you're saving substantial cost in 
paperwork and administrative burden and getting substantial 
benefits out of what ACUS does, is a minuscule amount of money 
when juxtaposed against the benefit that we get out of it.
    That's the point I'm trying to drive home, and I don't want 
this hearing to end without having that unequivocally in the 
record. If anybody wants to argue with it, I want that from the 
witnesses, but--nobody seems to be arguing with it, so I'm 
going to do like the Chairman does when he administers the 
oath: Let the record show that everybody is nodding in 
affirmative agreement with the statements that I just made.
    And with that, I'm happy, and I'll yield back, Mr. 
Chairman.
    Mr. Cannon. Thank you.
    Let me just add my view that ACUS is a remarkably cost-
effective tool for governing ourselves, and that while I 
suspect that neither of us will be back on this Committee or 
directing this Committee next cycle, we will both be advocates 
for ACUS and for change. I am certainly concerned about who 
does Chair this Committee, and I'm hoping that we get someone--
we've talked to several people who might end up doing that--who 
would recognize the importance of what we would be doing with 
this study and how we can translate that into law.
    I'd like to ask unanimous consent to introduce into the 
record this memorandum from the Congressional Research Service 
from Mr. Rosenberg and Mr. Halstead, which its subject is the 
comparison of the duties and objectives of the Office of 
Management and Budget and the Administrative Conference of the 
United States with respect to the assessments of executive 
agency performance in the administrative process. I think that 
that is a valuable addition, especially in conjunction with the 
questions Mr. Watt asked.
    [The information referred can be found in the Appendix.]
    Mr. Cannon. I want to, again, thank the witnesses for being 
here, and the hearing will now be adjourned.
    [Whereupon, at 4:23 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

  Letter from the American Bar Association submitted by the Honorable 
Chris Cannon, a Representative in Congress from the State of Utah, and 
      Chairman, Subcommittee on Commercial and Administrative Law




Memorandum from Morton Rosenberg, Specialist in American Public Law and 
      T.J. Halstead, Legislative Attorney, American Law Division, 
 Congressional Research Service, to the Subcommittee on Commercial and 
                           Administrative Law




                                 
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