[Congressional Record Volume 153, Number 160 (Monday, October 22, 2007)]
[House]
[Pages H11809-H11811]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1615
                   REGULATORY IMPROVEMENT ACT OF 2007

  Ms. LINDA T. SANCHEZ of California. Madam Speaker, I move to suspend 
the rules and pass the bill (H.R. 3564) to amend title 5, United States 
Code, to authorize appropriations for the Administrative Conference of 
the United States through fiscal year 2011, and for other purposes.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

[[Page H11810]]

                               H.R. 3564

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Regulatory Improvement Act 
     of 2007''.

     SEC. 2. AUTHORIZATION OF APPROPRIATIONS.

       Section 596 of title 5, United States Code, is amended to 
     read as follows:

     ``Sec. 596. Authorization of appropriations

       ``There are authorized to be appropriated to carry out this 
     subchapter not more than $1,000,000 for fiscal year 2008, 
     $3,300,000 for fiscal year 2009, $3,400,000 for fiscal year 
     2010, and $3,500,000 for fiscal year 2011. Of any amounts 
     appropriated under this section, not more than $2,500 may be 
     made available in each fiscal year for official 
     representation and entertainment expenses for foreign 
     dignitaries.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
California (Ms. Linda T. Sanchez) and the gentleman from Utah (Mr. 
Cannon) each will control 20 minutes.
  The Chair recognizes the gentlewoman from California.


                             General Leave

  Ms. LINDA T. SANCHEZ of California. Madam Speaker, I ask unanimous 
consent that all Members have 5 legislative days to revise and extend 
their remarks and include extraneous material on the bill under 
consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from California?
  There was no objection.
  Ms. LINDA T. SANCHEZ of California. Madam Speaker, I yield myself 
such time as I may consume.
  Madam Speaker, the Federal regulation process is among the most 
important ways by which our Nation implements public policy. Each year, 
agencies issue thousands of regulations to ensure that the food we eat, 
the air we breathe, and the cars we drive are safe. Surprisingly, 
however, there is little empirical analysis of whether these 
regulations work as intended.
  Until 1995, the last year it received federal funding, the 
Administrative Conference of the United States was a nonpartisan, 
public-private think tank that provided invaluable guidance to Congress 
about how to improve the administrative and regulatory process. First 
established on a temporary basis, the conference, over the course of 
its nearly 30-year existence, made numerous recommendations, many of 
which were enacted into law. H.R. 3564, the Regulatory Improvement Act 
of 2007, would simply reauthorize the conference for an additional 4 
years.
  Madam Speaker, some might ask why we should reauthorize an entity 
that has not been in existence for nearly a dozen years. Let me just 
mention three reasons. First, the conference saved taxpayers many 
millions of dollars. It helped agencies implement cost-saving 
procedures and made recommendations that work to eliminate excessive 
litigation costs and long delays. Just one agency alone, the Social 
Security Administration, estimated that the conference's recommendation 
to change its appeals process yielded approximately $85 million in 
savings.
  Indeed, Justice Stephen Breyer testified before the Subcommittee on 
Commercial and Administrative Law about the ``huge'' savings to the 
public resulting from the conference's recommendations. Justice Antonin 
Scalia likewise agreed that it was an ``enormous bargain.''
  Second, the Administrative Conference promoted innovation among 
agencies. For example, it convinced 24 agencies to use alternative 
dispute resolution for issues concerning the private sector. The 
conference also spearheaded the implementation of the Negotiated 
Rulemaking Act, the Equal Access to Justice Act, and the Magnusson-Moss 
Warranty Act, governing consumer product warranties.
  Madam Speaker, the conference played a major role in encouraging 
agencies to promulgate smarter regulations. It did this by improving 
participation in the rulemaking process, promoting judicial review of 
agency regulations, and reducing regulatory burdens on the private 
sector.
  Third, and perhaps more importantly, Congress needs the conference. 
Experience with the Congressional Review Act demonstrates that we 
simply lack the resources and, sometimes, the political will to conduct 
aggressive oversight of regulations. Congressional recognition of the 
conference's significant contributions to the regulatory process is 
probably best evidenced by the fact that in nearly every Congress since 
its demise in 1995, legislation has been introduced assigning 
responsibilities to the conference. The Congressional Research Service 
advises that reactivation of the conference comes at an opportune time, 
especially in light of efforts by the executive branch to augment its 
role in the regulatory process.
  Madam Speaker, there are few entities that enjoyed more bipartisan 
support than the Administrative Conference. I commend my colleague, the 
ranking member of the Subcommittee on Commercial and Administrative 
Law, Mr. Cannon of Utah, for his continued leadership in pursuing the 
reauthorization of the conference. I urge my colleagues to support H.R. 
3564.
  Madam Speaker, I would like to insert into the Record two letters 
from Supreme Court Justices Breyer and Scalia written in 1995 that 
describe the importance of the Administrative Conference of the United 
States.

                                              Supreme Court of the


                                                United States,

                                  Washington, DC, August 21, 1995.
     Hon. Charles E. Grassley,
     Chairman, Subcommittee on Administrative Oversight, and the 
         Courts, U.S. Senate Committee on the Judiciary, 
         Washington, DC.
       Dear Senator Grassley, thank you for the invitation to 
     submit a few comments about the Administrative Conference of 
     the United States. As a ``liaison'' to the Administrative 
     Conference (from the Judicial Conference), I have 
     participated in its activities from 1981 to 1994. I believe 
     that the Conference is a unique organization, carrying out 
     work that is important and beneficial to the average 
     American, at rather low cost.
       The Conference primarily examines government agency 
     procedures and practices, searching for ways to help agencies 
     function more fairly and more efficiently. It normally 
     focuses upon achieving ``semi-technical'' reform, that is to 
     say, changes in practices that are general (involving more 
     than a handful of cases and, often, more than one agency) but 
     which are not so controversial or politically significant as 
     to likely provoke a general debate, say, in Congress. Thus, 
     it may study, and adopt recommendations concerning better 
     rule-making procedures, or ways to avoid legal 
     technicalities, controversies, and delays through agency use 
     of negotiation, or ways of making judicial review of agency 
     action less technical and easier for ordinary citizens to 
     obtain. While these subjects themselves, and the 
     recommendations about them, often sound technical, in 
     practice they may make it easier for citizens to understand 
     what government agencies are doing to prevent arbitrary 
     government actions that may harm them.
       The Administrative Conference is unique in that it develops 
     its recommendations by bringing together at least four 
     important groups of people: top-level agency administrators; 
     professional agency staff; private (including ``public 
     interest'') practitioners; and academicians. The Conference 
     will typically commission a study by an academician, say, a 
     law professor, who often has the time to conduct the study 
     thoughtfully, but may lack first-hand practical experience. 
     The professor will spend time with agency staff, which often 
     has otherwise unavailable facts and experience, but may lack 
     the time for general reflection and comparisons with other 
     agencies. The professor's draft will be reviewed and 
     discussed by private practitioners, who bring to it a 
     critically important practical perspective, and by top-level 
     administrators such as agency heads, who can make inter-
     agency comparisons and may add special public perspectives. 
     The upshot is likely to be a work-product that draws upon 
     many different points of view, that is practically helpful 
     and that commands general acceptance.
       In seeking to answer the question, ``Who will control the 
     regulators?'' most governments have found it necessary to 
     develop institutions that continuously review, and recommend 
     changes in, technical agency practices. In some countries, 
     ombudsmen, in dealing with citizen complaints, will also 
     recommend changes in practices and procedures. Sometimes, as 
     in France and Canada, expert tribunals will review decisions 
     of other agencies and help them improve their procedures. 
     Sometimes, as in Australia and the United Kingdom, special 
     councils will advise ministries about needed procedural 
     reforms. Our own Nation has developed this rather special 
     approach (drawing together scholars, practitioners, and 
     agency officials) to bringing about reform of a sort that 
     is more general than the investigation of individual 
     complaints yet less dramatic than that normally needed to 
     invoke Congressional processes. Given the Conference's 
     rather low cost (a small central staff, commissioning 
     academic papers, endless amounts of volunteered private 
     time, and two general meetings a year), it would be a pity 
     to weaken or to lose. our federal government's ability to 
     respond effectively, in this general way, to the problems 
     of its citizens.
       I do not see any other institution readily available to 
     perform this same task. Individual agencies, while trying to 
     reform

[[Page H11811]]

     themselves, sometimes lack the ability to make cross-agency 
     comparisons. The American Bar Association's Administrative 
     Law Section, while a fine institution, cannot call upon the 
     time and resources of agency staff members and agency heads 
     as readily as can the Administrative Conference. 
     Congressional staffs cannot as easily conduct the technical 
     research necessary to develop many of the Conference's more 
     technical proposals. The Office of Management and Budget does 
     not normally concern itself with general procedural 
     proposals.
       All this is to explain why I believe the Administrative 
     Conference performs a necessary function, which, in light of 
     the cost, is worth maintaining. I recognize that the 
     Conference is not the most well known of government agencies; 
     indeed, it is widely known only within a fairly small 
     (administrative practice oriented) community. But, that, in 
     my view, simply reflects the fact that it does its job, 
     developing consensus about change in fairly technical areas. 
     That is a job that the public, whether or not it knows the 
     name ``Administrative Conference,'' needs to have done. And, 
     for the reasons I have given, I believe the Administrative 
     Conference well suited to do it.
       I hope these views will help you in your evaluation of the 
     Conference.
           Yours sincerely,
     Stephen Breyer.
                                  ____

                                              Supreme Court of the


                                                United States,

                                    Washington, DC, July 31, 1995.
     Hon. Charles E. Grassley,
     Chairman, Subcommittee on Administrative Oversight and the 
         Courts, U.S. Senate, Committee on the Judiciary, 
         Washington, DC.
       Dear Senator Grassley: Thank you for the invitation to 
     appear at the hearing on ``The Reauthorization of the 
     Administrative Conference'' scheduled for August 2. I will be 
     unable to do so, but your staff has advised me that a letter 
     would be appropriate.
       I am not a good source of information concerning recent 
     accomplishments of the Conference. I have not followed its 
     activities closely since stepping down as its Chairman in 
     1974. I can testify, however, concerning the nature of the 
     Conference, and its suitability for achieving its objectives.
       The Conference seeks to combine the efforts of scholars, 
     practitioners, and agency officials to improve the efficiency 
     and fairness of the thousands of varieties of federal agency 
     procedures. In my judgment, it is an effective mechanism for 
     achieving that goal, which demands change and improvement in 
     obscure areas where bureaucratic inertia and closed-
     mindedness often prevail. A few of the Conference's projects 
     have had major, government-wide impact--for example, its 
     recommendation leading to Congress's adoption of Public Law 
     94-574, which abolished the doctrine of sovereign immunity in 
     suits seeking judicial review of agency action. For the most 
     part, however, each of the Conference's projects is narrowly 
     focused upon a particular agency program, and is unlikely to 
     attract attention beyond the community affected by that 
     program. This should be regarded, not as a sign of 
     ineffectiveness, but evidence of solid hard work: for the 
     most part, procedural regimes are unique and must be fixed 
     one-by-one.
       One way of judging the worth of the Conference without 
     becoming expert in the complex and unexciting details of 
     administrative procedure with which it deals, is to examine 
     the roster of men and women who have thought it worthwhile to 
     devote their time and talent to the enterprise. Over the 
     years, the academics who have served as consultants to or 
     members of the Conference have been a virtual Who's Who of 
     leading scholars in the field of administrative law; and the 
     practitioners who have served as members have been, by and 
     large, prominent and widely respected lawyers in the various 
     areas of administrative practice.
       I was the third Chairman of the Administrative Conference. 
     Like the first two (Prof. Jerre Williams of the University of 
     Texas Law School, and Prof. Roger Cramton of the University 
     of Michigan Law School), and like my successor (Prof. Robert 
     Anthony of Cornell Law School) I was an academic--on leave 
     from the University of Virginia Law School. The Conference 
     was then, and I believe remains, a unique combination of 
     scholarship and practicality, of private-sector insights and 
     career-government expertise.
       I would not presume to provide the Subcommittee advice on 
     the ultimate question of whether, in a time of budget 
     constraints, the benefits provided by the Administrative 
     Conference are within our Nation's means. But I can say that 
     in my view those benefits are substantial: the Conference has 
     been an effective means of opening up the process of 
     government to needed improvement.
           Sincerely,
                                                   Antonin Scalia.

  Mr. CANNON. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, I rise in strong support of H.R. 3564. I would like 
to, first of all, thank the gentlewoman from California for her 
leadership on this issue. I appreciate working with her.
  I am delighted that H.R. 3564, which would reauthorize the 
Administrative Conference of the United States, is being considered on 
the floor today. I urge support of this measure. I also urge the 
Appropriations Committee to appropriate funds to ACUS so that this 
organization can once again become a living, breathing reality.
  Madam Speaker, I am a believer in the adage that the government that 
governs best governs least; but when the government does govern, it 
must govern as its best. ACUS is just the organization to help us 
achieve that goal. Before its funding ceased some years ago, it laid 
down a decades-long track record of productive activity that was 
remarkable, unmistakable, and probably unparalleled.
  Over the course of its 28-year existence, the conference issued more 
than 200 recommendations, some of which were governmentwide and others 
that were agency specific. It issued a series of recommendations 
eliminating a variety of technical impediments to the judicial review 
of agency action and encouraging less costly consensual alternatives to 
litigation.
  The fruits of these efforts include the enactment of the 
Administrative Dispute Resolution Act of 1990, which established a 
framework for the use of Alternative Dispute Resolution. In addition to 
this legislation, ACUS served as the key implementing agency for the 
Negotiated Rulemaking Act, the Equal Access to Justice Act, the 
Congressional Accountability Act, and the Magnusson-Moss Warranty-
Federal Trade Commission Improvement Act. The Conference also made 
recommendations regarding implementation of the Congressional 
Accountability Act and played a key role in the Clinton 
administration's National Performance Review with respect to improving 
regulatory systems.
  Madam Speaker, time and again, ACUS took the small amount of taxpayer 
funds that we appropriated and produced enormous savings in the costs 
incurred and imposed by Federal regulatory agencies. That record is so 
clear that I can say with absolute confidence that, if we were not to 
authorize ACUS, we would effectively authorize waste in the rest of the 
Federal Government. I can say with equal confidence that if the 
Appropriations Committee were not to appropriate funds to ACUS after 
the Congress passes this bill, it would effectively appropriate waste 
by the Federal Government to the tune of millions upon millions of 
dollars.
  Many of you may know my enthusiasm for ACUS, and it will not surprise 
you that hordes of experts, officials and stakeholders outside of these 
walls, share that same enthusiasm as well, including Justices Scalia 
and Breyer, both of whom worked with ACUS in an earlier part of their 
careers.
  To quote just one legal luminary, ``If the conference didn't exist, 
it would have to be invented.'' Thankfully, we don't need to invent it. 
We did that long ago. We know it was a great invention. All we need to 
do is to reauthorize it today and to appropriate funds for it.
  Madam Speaker, I yield back the balance of my time.
  Ms. LINDA T. SANCHEZ of California. Madam Speaker, I yield myself 
such time as I may consume.
  Madam Speaker, regulations play a critical role in virtually every 
aspect of our daily lives, yet there is no independent, nonpartisan 
entity that Congress can utilize to scrutinize and approve the 
regulatory process. Accordingly, it is critical that we reauthorize the 
Administrative Conference of the United States as soon as possible so 
that it can fill this serious void.
  I realize that this may not be the sexiest issue on the docket today, 
but I urge my colleagues to support this bill.
  Madam Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentlewoman from California (Ms. Linda T. Sanchez) that the House 
suspend the rules and pass the bill, H.R. 3564.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________