[House Report 105-11]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     105-11
_______________________________________________________________________


 
            DEPARTMENT OF ENERGY STANDARDIZATION ACT OF 1997

                                _______
                                

 March 11, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


  Mr. Bliley, from the Committee on Commerce, submitted the following

                              R E P O R T

                        [To accompany H.R. 649]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Commerce, to whom was referred the bill 
(H.R. 649) to amend sections of the Department of Energy 
Organization Act that are obsolete or inconsistent with other 
statutes and to repeal a related section of the Federal Energy 
Administration Act of 1974, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for Legislation..............................     2
Hearings.........................................................     2
Committee Consideration..........................................     3
Roll call Votes..................................................     3
Committee Oversight Findings.....................................     3
Committee on Government Reform and Oversight.....................     3
New Budget Authority and Tax Expenditures........................     3
Committee Cost Estimate..........................................     3
Congressional Budget Office Estimate.............................     3
Federal Mandates Statement.......................................     4
Advisory Committee Statement.....................................     5
Constitutional Authority Statement...............................     5
Applicability to Legislative Branch..............................     5
Section-by-Section Analysis of the Legislation...................     5
Changes in Existing Law Made by the Bill, as Reported............     5

                          Purpose and Summary

    The purpose of this legislation is to conform public 
participation procedures of the Department of Energy to the 
standards required of other Federal agencies. Since the 
original passage of the Department of Energy Organization Act 
and the Federal Energy Administration Act of 1974, the 
evolution of the Department's missions, the evolution of 
administrative case law, and the enactment of other government-
wide statutes have rendered certain public participation 
provisions either obsolete, duplicative, or inconsistent with 
government-wide statutes governing rulemaking and advisory 
committee management.

                  Background and Need for Legislation

    The Administrative Procedure Act (APA), P.L. 89-554, and 
the Federal Advisory Committee Act (FACA), P.L. 92-463, 
generally determine the parameters of public involvement in the 
Federal government's rulemaking and advisory committee 
processes. The general public is provided notice of proposed 
rulemakings, a period of time to comment on the proposed rules, 
and the opportunity for the agency to consider these comments 
prior to the issuance of a final rule. The public is also 
afforded the opportunity for involvement, either through actual 
participation or through attendance at meetings, in the various 
advisory committees which make recommendations to Federal 
agencies. This public involvement is a critical aspect of the 
Federal rulemaking process, providing a strong stream of public 
input into Federal decision making.
    The Department of Energy Organization Act (DOE Act), P.L. 
95-91, and the Federal Energy Administration Act of 1974 
(FEAA), P.L. 93-275, include provisions which, through the 
passage of time since their original enactment, have become 
inconsistent with the APA and FACA. When originally passed, the 
DOE Act and FEAA included language which incorporated a higher 
standard of public involvement than was then provided by the 
APA and FACA. Since that time, however, a succession of court 
cases has interpreted the requirements of the APA and FACA to 
be much more stringent than their original application. As a 
result, the APA and FACA, as interpreted by courts and 
administrative law judges, require a fairly high standard of 
public involvement. The requirements of the DOE Act and FEAA 
have, in effect, been overtaken by developments surrounding the 
APA and FACA.
    This situation has led to a duplication of effort within 
the Department of Energy (DOE) to comply with the differing 
standards within these various statutes. In order to rectify 
this situation, H.R. 649 would eliminate those provisions of 
the DOE Act and FEAA which conflict with or overlap the 
requirements of the APA and FACA. With these changes, DOE's 
rulemaking process and administration of advisory committees 
would be consistent with that of other Federal agencies.

                                Hearings

    The Subcommittee on Energy and Power held a hearing on H.R. 
649 on February 26, 1997. The Subcommittee received testimony 
from Mr. Eric Fygi, Deputy General Counsel of the Department of 
Energy, who testified in support of the legislation.

                        Committee Consideration

    On February 26, 1997, the Subcommittee on Energy and Power 
met in open markup session and approved H.R. 649 for Full 
Committee consideration, without amendment, by a voice vote. On 
March 5, 1997, the Committee on Commerce met in open markup 
session and ordered H.R. 649 reported to the House, without 
amendment, by a voice vote.

                             Rollcall Votes

    Clause 2(l)(2)(B) of rule XI of the Rules of the House 
requires the Committee to list the recorded votes on the motion 
to report legislation and amendments thereto. There were no 
recorded votes taken in connection with ordering H.R. 649 
reported. A motion by Mr. Bliley to order H.R. 649 reported to 
the House, without amendment, was agreed to by a voice vote, a 
quorum being present.

                      Committee Oversight Findings

    Pursuant to clause 2(l)(3)(A) of rule XI of the Rules of 
the House of Representatives, the Committee held a legislative 
hearing and made findings that are reflected in this report.

              Committee on Government Reform and Oversight

    Pursuant to clause 2(l)(3)(D) of rule XI of the Rules of 
the House of Representatives, no oversight findings have been 
submitted to the Committee by the Committee on Government 
Reform and Oversight.

               New Budget Authority and Tax Expenditures

    In compliance with clause 2(l)(3)(B) of rule XI of the 
Rules of the House of Representatives, the Committee finds that 
H.R. 649, the Department of Energy Standardization Act of 1997, 
would result in no new or increased budget authority or tax 
expenditures or revenues.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 403 of the Congressional Budget Act of 1974.

                  Congressional Budget Office Estimate

    Pursuant to clause 2(l)(3)(C) of rule XI of the Rules of 
the House of Representatives, the following is the cost 
estimate provided by the Congressional Budget Office pursuant 
to section 403 of the Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, D.C., March 6, 1997.
Hon. Tom Bliley,
Chairman, Committee on Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 649, the 
Department of Energy Standardization Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Kathleen 
Gramp.
            Sincerely,
                                              James L. Blum
                                   (For June E. O'Neill, Director.)
    Enclosure.

H.R. 649--Department of Energy Standardization Act of 1997

    This bill would change the statutory guidelines for various 
administrative activities at the Department of Energy (DOE). 
Assuming that appropriations are adjusted to be consistent with 
the bill, CBO estimates that enacting H.R. 649 would result in 
discretionary savings of about $500,000 a year. Because the 
bill would not affect direct spending or receipts, pay-as-you-
go procedures would not apply. H.R. 649 contains no 
intergovernmental or private-sector mandates and would not 
impose any costs on state, local, or tribal governments.
    H.R. 649 would eliminate certain statutory requirements 
applicable to DOE's procurement actions and advisory 
committees. DOE currently must comply with two sets of 
standards: those that apply government-wide and some that apply 
only to the department. For example, before DOE procurement 
rules can be finalized, the department has to issue a proposed 
rule and provide for public notice and comment. In contrast, 
other agencies are authorized to issue procurement rules 
without going through that process. Likewise, all meetings of 
DOE's advisory committees must be open to the public unless 
they involve documented national security issues or research 
and development. Based on information provided by DOE, CBO 
estimates that repealing these agency-specific requirements 
would reduce the workload associated with procurement actions, 
saving the department about $500,000 a year beginning in fiscal 
year 1998. CBO estimates that other provisions of the bill 
would have no significant budgetary impact.
    The CBO staff contact for this estimate is Kathleen Gramp. 
This estimate was approved by Robert A. Sunshine, Deputy 
Assistant Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                   Constitutional Authority Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for this legislation is provided in 
article I, section 8, clause 3, which grants Congress the power 
to regulate commerce with foreign nations, among the several 
States, and with the Indian tribes.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation

                               Section 1

    Section 1 of the bill provides the short title, the 
Department of Energy Standardization Act of 1997.

                               Section 2

    Section 2 of the bill consists of two subsections. The 
first subsection strikes redundant and conflicting sections of 
the Department of Energy Organization Act related to the 
promulgation of Department of Energy regulations. After 
enactment of this subsection, DOE rulemaking with respect to 
public property, contracts, loans, and grants will be conducted 
under the same legislative authorities as such rulemaking is 
conducted generally, i.e., under the Office of Federal 
Procurement Policy Act (41 U.S.C. 418b). Requirements for other 
proposed and final DOE rules will be governed by the applicable 
provisions of the Administrative Procedure Act (5 U.S.C. 553(c) 
and (d)).
    The second subsection strikes redundant and conflicting 
sections of the Department of Energy Organization Act and the 
Federal Energy Administration Act of 1974 relating to advisory 
committee management. After enactment of this subsection, DOE 
advisory committees will be governed completely by the Federal 
Advisory Committee Act (5 U.S.C. Appendix).

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

                 DEPARTMENT OF ENERGY ORGANIZATION ACT

          * * * * * * *

         TITLE V--ADMINISTRATIVE PROCEDURES AND JUDICIAL REVIEW

                               procedures

  Sec. 501. (a) * * *
  [(b)(1) In addition to the requirements of subsection (a) of 
this section, notice of any proposed rule, regulation, or order 
described in subsection (a) shall be given by publication of 
such proposed rule, regulation or order in the Federal 
Register. Such publication shall be accompanied by a statement 
of the research, analysis, and other available information in 
support of, the need for, and the probable effect of, any such 
proposed rule, regulation, or order. Other effective means of 
publicity shall be utilized as may be reasonably calculated to 
notify concerned or affected persons of the nature and probable 
effect of any such proposed rule, regulation, or order. In each 
case, a minimum of thirty days following such publication shall 
be provided for an opportunity to comment prior to promulgation 
of any such rule, regulation, or order.
  [(2) Public notice of all rules, regulations, or orders 
described in subsection (a) which are promulgated by officers 
of a State or local government agency pursuant to a delegation 
under this Act shall be provided by publication of such 
proposed rules, regulations, or orders in at least two 
newspapers of statewide circulation. If such publication is not 
practicable, notice of any such rule, regulation, or order 
shall be given by such other means as the officer promulgating 
such rule, regulation, or order determines will reasonably 
assure wide public notice.
  [(3) For the purposes of this title, the exception from the 
requirements of section 553 of title 5, United States Code, 
provided by subsection (a)(2) of such section with respect to 
public property, loans, grants, or contracts shall not be 
available.]
  [(c)] (b)(1) If the Secretary determines, on his own 
initiative or in response to any showing made pursuant to 
paragraph (2) (with respect to a proposed rule, regulation, or 
order described in subsection (a)) that no substantial issue of 
fact or law exists and that such rule, regulation, or order is 
unlikely to have a substantial impact on the Nation's economy 
or large numbers of individuals or businesses, such proposed 
rule, regulation, or order may be promulgated in accordance 
with section 553 of title 5, United States Code. If, the 
Secretary determines that a substantial issue of fact or law 
exists or that such rule, regulation, or order is likely to 
have a substantial impact on the Nation's economy or large 
numbers of individuals or businesses, an opportunity for oral 
presentation of views, data, and arguments shall be provided.
  (2) Any person, who would be adversely affected by the 
implementation of any proposed rule, regulation, or order who 
desires an opportunity for oral presentation of views, data, 
and arguments, may submit material supporting the existence of 
such substantial issues or such impact.
  (3) A transcript shall be kept of any oral presentation with 
respect to a rule, regulation, or order described in subsection 
(a).
  [(d) Following the notice and comment period, including any 
oral presentation required by this subsection, the Secretary 
may promulgate a rule if the rule is accompanied by an 
explanation responding to the major comments, criticisms, and 
alternatives offered during the comment period.]
  [(e)] (c) The requirements of [subsections (b), (c), and (d)] 
subsection (b) of this section may be waived where strict 
compliance is found by the Secretary to be likely to cause 
serious harm or injury to the public health, safety, or 
welfare, and such finding is set out in detail in such rule, 
regulation, or order. In the event the requirements of this 
section are waived, the requirements shall be satisfied within 
a reasonable period of time subsequent to the promulgation of 
such rule, regulation, or order.
  [(f)] (d)(1) With respect to any rule, regulation, or order 
described in subsection (a), the effects of which, except for 
indirect effects of an inconsequential nature, are confined 
to--
          (A) a single unit of local government or the 
        residents thereof;
          (B) a single geographic area within a State or the 
        residents thereof; or
          (C) a single State or the residents thereof;
the Secretary shall, in any case where appropriate, afford an 
opportunity for a hearing or the oral presentation of views, 
and provide procedures for the holding of such hearing or oral 
presentation within the boundaries of the unit of local 
government, geographic area, or State described in paragraphs 
(A) through (C) of this paragraph as the case may be.
  (2) For the purposes of this subsection--
          (A) the term ``unit of local government'' means a 
        county, municipality, town, township, village, or other 
        unit of general government below the State level; and
          (B) the term ``geographic area within a State'' means 
        a special purpose district or other region recognized 
        for governmental purpose within such State is not a 
        unit of local government.
  (3) Nothing in this subsection shall be construed as 
requiring a hearing or an oral presentation of views where none 
is required by this section or other provision of law.
  [(g)] (e) Where authorized by any law vested, transferred, or 
delegated pursuant to this Act, the Secretary may, by rule, 
prescribe procedures for State or local government agencies 
authorized by the Secretary to carry out such functions as may 
be permitted under applicable law. Such procedures shall apply 
to such agencies in lieu of this section, and shall require 
that prior to taking any action, such agencies shall take steps 
reasonably calculated to provide notice to persons who may be 
affected by the action, and shall afford an opportunity for 
presentation of views (including oral presentation of views 
where practicable) within a reasonable time before taking the 
action.
          * * * * * * *

                  TITLE VI--ADMINISTRATIVE PROVISIONS

          * * * * * * *

                      Part B--Personnel Provisions

          * * * * * * *

                          advisory committees

  Sec. 624. [(a)] The Secretary is authorized to establish in 
accordance with the Federal Advisory Committee Act such 
advisory committees as he may deem appropriate to assist in the 
performance of his functions. Members of such advisory 
committees, other than full-time employees of the Federal 
Government, while attending meetings of such committees or 
while otherwise serving at the request of the Secretary while 
serving away from their homes or regular places of business, 
may be allowed travel expenses, including per diem in lieu of 
subsistence, as authorized by section 5703 of title 5, United 
States Code, for individuals in the Government serving without 
pay.
  [(b) Section 17 of the Federal Energy Administration Act of 
1974 shall be applicable to advisory committees chartered by 
the Secretary, or transferred to the Secretary or the 
Department under this Act, except that where an advisory 
committee advises the Secretary on matters pertaining to 
research and development, the Secretary may determine that such 
meeting shall be closed because it involves research and 
development matters and comes within the exemption of section 
552b(c)(4) of title 5, United States Code.]
          * * * * * * *
                              ----------                              


      SECTION 17 OF THE FEDERAL ENERGY ADMINISTRATION ACT OF 1974

                          [advisory committees

  [Sec. 17. (a) Whenever the Administrator shall establish or 
utilize any board, task force, commission, committee, or 
similar group, not composed entirely of full-time Government 
employees, to advise with respect to, or to formulate or carry 
out, any agreement or plan of action affecting any industry or 
segment thereof, the Administrator shall endeavor to insure 
that each such group is reasonably representative of the 
various points of view and functions of the industry and users 
affected, including those of residential, commercial, and 
industrial consumers, and shall include, where appropriate, 
representation from both State and local governments, and from 
representatives of State regulatory utility commissions, 
selected after consultation with the respective national 
associations.
  [(b) Each meeting of such board, task force, commission, 
committee, or similar group, shall be open to the public, and 
interested persons shall be permitted to attend, appear before, 
and file statements with, such group, except that the 
Administrator may determine that such meeting shall be closed 
in the interest of national security. Such determination shall 
be in writing, shall contain a detailed explanation of reasons 
in justification of the determination, and shall be made 
available to the public.
  [(c) All records, reports, transcripts, memoranda, and other 
documents, which were prepared for or by such group, shall be 
available for public inspection and copying at a single 
location in the offices of the Administration.
  [(d) Advisory committees established or utilized pursuant to 
this Act shall be governed in full by the provisions of the 
Federal Advisory Committee Act (Public Law 92-463, 86 Stat. 
770), except as inconsistent with this section.]

                                
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