[Senate Report 105-26]
[From the U.S. Government Publishing Office]



                                                        Calendar No. 78
105th Congress                                                   Report
                                 SENATE

 1st Session                                                     105-26
_______________________________________________________________________


 
            DEPARTMENT OF ENERGY STANDARDIZATION ACT OF 1997

                                _______
                                

                 June 11, 1997.--Ordered to be printed

_______________________________________________________________________


  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 649]

    The Committee on Energy and Natural Resources, to which was 
referred the Act (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, reports favorably thereon without amendment and 
recommends that the Act, do pass.

                                Purpose

    The bill repeals sections 501(b) (relating to notice of 
proposed rules), 501(d) (relating to explanatory statements 
accompanying final rules), and 624(d) (relating to advisory 
committees) of the Department of Energy Organization Act (P.L. 
95-91), and section 17 (relating to advisory committees) of the 
Federal Energy Administration Act of 1974 (P.L. 93-275). In the 
two decades since the Department of Energy was established, the 
evolution of the Department's missions, the evolution of 
administrative case law, and the enactment of other government-
wide statutes have rendered these provisions either obsolete, 
duplicative, or inconsistent with government-wide statutes 
governing rule making and advisory committee management.

                               Background

    The Department of Energy Organization Act (DOE Act) and the 
Federal Energy Administration Act of 1974 were enacted at a 
time which addressing the problems of energy pricing and 
availability was considered to be ``the moral equivalent of 
war.'' Both Acts attempted to bring together, in a unified 
manner, authority and programs to regulate energy in all its 
manifestations. For example, the Senate Report accompanying the 
DOE Act states that ``creation of a Department of Energy will 
have wide-ranging benefits both for the executive branch and 
the American people. It will provide a comprehensive overview 
of and national perspective on energy matters.'' Senate Report 
No. 95-164 at 4. The proposed economic regulatory role of the 
Department of Energy (DOE) was a key focus of the legislative 
discussions on the organization of the DOE, and particularly of 
the provisions of the DOE Act that are to be amended by this 
bill:

          Merger of the economic regulatory activities of the 
        Federal Energy Administration and the Federal Power 
        Commission into the Department of Energy to carry out 
        pricing and allocation decisions in the context of 
        national energy policies, will serve to coordinate 
        these pricing policies with the development of national 
        energy policy goals. It is the purpose of the 
        committee's provisions with regard to the economic 
        regulatory activities to assure coordination with 
        national energy policy planning and implementation and 
        to assure protection of due process by retaining the 
        benefits of impartial decisionmaking. It is the further 
        purpose of the committee's provisions in this area to 
        expedite the decisions by providing that some decisions 
        be made through rulemaking rather than adjudicatory 
        procedures. Id. at 6.

    It is not surprising to find, then, that the legislative 
history of the subsections of the DOE Act to be stricken by 
this bill focus on the need for additional procedural 
requirements for DOE rule making and advisory committees in 
order to protect the public interest involved in the economic 
regulatory role that the DOE was inheriting from the Federal 
Energy Administration.

                              Section 501

Legislative history

    Section 501 of the DOE Act establishes procedures for DOE 
rule making. H.R. 649 repeals two of section 501's seven 
subsections and makes conforming amendments to subsections. 
Section 501(b) provides requirements for notices of proposed 
rule making published by the DOE or by State and local 
government acting under delegation from the DOE. It also 
contains, in section 501(b)(3), an unusual ``exemption to an 
exemption'' that subjects DOE rule making on public property, 
grants, contracts, and loans to the Administrative Procedure 
Act (APA), notwithstanding the exemption for such matters 
contained in the APA (5 U.S.C. 553(a)(2)). Section 501(d) 
establishes requirements for explanatory statements that 
accompany final rules promulgated by the DOE.
    The report of the Committee on Government Operations of the 
House of Representatives, in explaining section 501 of the DOE 
Act, stated that ``This section makes the provisions of the 
Administrative Procedures [sic] Act applicable to the issuance 
of rules, regulations or orders issued by the Department of 
Energy. In addition, this section transfers some but not all 
protections presently incorporated in the Federal Energy 
Administration legislation which is to be transferred to the 
Department under this act.'' House Report 95-346, Part I, at 
25-26. With respect to sections 501(b)(1), 501(b)(2), and 
501(d) of the DOE Act, the Government Operations Committee 
adopted language closely modeled on section 7(i)(1)(B) of the 
Federal Energy Administrative Act of 1974 and section 523 of 
the Energy Policy and Conservation Act of 1975. However, the 
language of section 501(b)(3) was not in the version of the 
bill reported by the Government Operations Committee.
    During debate on the DOE Act in the House, a comprehensive 
substitute amendment rewriting most of sections 501 and 502 was 
offered and accepted, in which the language that eventually 
became section 501(b)(3) first appeared. The statement 
accompanying this amendment stressed the need to ``keep in 
place all of those procedural rights and safeguards'' contained 
in three regulatory acts: the Federal Energy Administration Act 
of 1974, the Energy Policy and Conservation Act of 1975, and 
the Emergency Petroleum Allocation Act of 1973. Congressional 
Record, June 2, 1977, at 17321.
    A rationale for including the provision in section 
501(b)(3) of the DOE Act does not appear in the floor 
discussion, nor does the provision of section 501(b)(3) appear 
in any of the three laws on which the floor amendment was 
based. The Federal Energy Administration Act of 1974, in 
section 7(i)(1)(A), makes 5 U.S.C. 553 applicable to rule 
making without any qualification or change. Identical 
legislative language is contained in section 523 of the Energy 
Policy and Conservation Act of 1975. The Emergency Petroleum 
Allocation Act of 1973 makes rule making subject to the 
Economic Stabilization Act of 1970, which in section 207(a) 
invokes the requirements of 5 U.S.C. 553 without qualification 
or change.
    The Senate Report on the DOE Act also spoke to the need for 
``additional, more specific procedural requirements than found 
in the Administration Procedure Act'' in adopting the 
provisions that eventually became sections 501(b)(1), 
501(b)(2), and 501(d) of the DOE Act. There was no provision 
equivalent to the present section 501(b)(3) of the DOE Act in 
the Senate bill. In fact, the Senate Report specifically noted 
that it was the intention of the Senate that ``Certain 
interpretative, procedural, or other types of rules exempted 
from notice and comment requirements of the Administrative 
Procedure Act by 5 U.S.C. 553 will also be exempted from the 
requirements of this section.'' Senate Report No. 95-164 at 43.
    A consideration of the implications of the above 
legislative history for the present bill, then, must separate 
the issues dealt with in section 501(b) (1) and (2) and section 
501 (d) and (e) from the issue presented by section 501(b)(3).
    While the provisions of sections 501(b)(1), 501(b)(2), and 
501(d) were considered, in 1977, to represent additional and 
more specific procedural requirements than those of the APA, 
the evolving jurisprudence on the requirements of the APA and 
the requirements for reasoned decision making in agencies have 
substantially changed this situation.

Sections 501(b) (1) and (2)

    The Senate Committee report described the rationale for 
section 501(b) (1) and (2) in the following manner:

          The subsection states that notice of any proposed 
        rule or regulation required by law to be published in 
        the Federal Register shall be accompanied, to the 
        degree necessary, by a statement describing the 
        research, analysis, and other information supporting 
        the need for, and probable effect of, any proposed rule 
        or regulation. Currently, the research and analysis on 
        which a proposed rule is based may be neither 
        publicized nor made available to the public when the 
        rule is proposed. The lack of this information places 
        members of the public at an extreme disadvantage in 
        attempt to evaluate and comment on a proposed rule, in 
        part because they cannot assess the validity of the 
        underlying information, and hence, the proposed rule 
        itself.
          The subsection further specifies that in addition to 
        publication in the Federal Register, other means of 
        publicity should be utilized to notify interested 
        parties of the nature and probable effect of any 
        proposed rule or regulation. A minimum of 30 days must 
        be provided for public comment on the proposal. The 
        period may only be less than 30 days where necessary to 
        avoid serious harm or injury to the public health, 
        safety, or welfare.
          Section 501(b) further requires that public notice of 
        all rules or regulations which are promulgated by 
        officers of a State or local government shall be 
        published in at least two newspapers of statewide 
        circulation. Of such publication is not practicable, 
        notice of any proposed rule or regulation shall be 
        given by other means which will assure wide public 
        notice. Senate Report No. 95-164 at 44.

    However, since the enactment of the DOE Act, the issues 
that the Congress was attempting to address in section 
501(b)(1) have been addressed more fully by a line of court 
cases growing out of the U.S. Court of Appeals for the District 
of Columbia Circuit's decision in Portland Cement Assn. v. 
Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973). The court in this 
case stated the basis for its action in terms of a broad 
principle of general applicability: ``It is not consonant with 
the purpose of a rule-making proceeding to promulgate rules on 
the basis of inadequate data, or on data that, [to a] critical 
degree, is known only to the agency.'' Id. at 393.
    Portland Cement has been followed and expanded on in many 
cases in other circuits since the enactment of the DOE Act. For 
example, rules have been overturned because underlying studies 
were not exposed to public scrutiny. Aqua Slide `N' Dive Corp. 
v. Consumer Product Safety Commission, 569 F.2d 831, 842 (5th 
Cir. 1978). ``An agency commits serious procedural error when 
it fails to reveal portions of the technical basis for a 
proposed rule in time for meaningful commentary. Connecticut 
Light and Power Co. v. NRC, 673 F.2d 525, 531 (D.C. Cir. 1982), 
cert. denied, 459 U.S. 835 (1982). A supplemental notice 
containing new data and analysis was held inadequate when it 
was received one day before the rule was promulgated in Solite 
Corp. v. EPA, 952 F.2d 473, 499-500 (D.C. Cir. 1991). At the 
same time, the post-Portland Cement jurisprudence has 
introduced some nuances missing from the statutory language in 
the DOE Act. In Air Pollution Control Dist. v. EPA, 739 F.2d 
1071 (6th Cir. 1984) the court held that data submitted after 
close of the comment period may be considered when members of 
the pubic were aware of it and the petitioner had responded to 
it. An agency may change calculations in response to comments 
without providing opportunity to challenge the changes. Air 
Transport Assn. v. CAB, 732 F.2d 219 (D.C. Cir. 1984). The test 
as to whether Portland Cement requires publication of a study 
on which a rule is based is whether the new study provides 
critical new understanding. Community Nutrition Institute v. 
Block, 749 F.2d 50, 58 (D.C. Cir. 1984). Given that the problem 
stated by the drafters of the DOE Act, that ``currently, the 
research and analysis on which a proposed rule is based may be 
neither publicized nor made available to the public when the 
rule is proposed,'' has been addressed with considerable 
sophistication in the post-Portland Cement case law, this 
statutory requirement may be removed from the DOE Act without 
affecting the rights of the public to know ``the technical 
basis for a proposed rule in time to allow for meaningful 
commentary.'' 673 F.2d at 531.
    With respect to section 501(b)(2), no rules have been 
promulgated by an officer of a State local government pursuant 
to a delegation from DOE in the entire history of DOE, and no 
current DOE statutory authority provides for such delegated 
rule making. States have their own laws governing 
administrative rule making, and many are of more recent 
vintage, and are more detailed in their requirements, than the 
Administrative Procedure Act. There would appear to be no 
rationale for maintaining a superfluous Federal supplementation 
of State law.

Section 501(d)

    The need for section 501(d) was also predicated on the 
belief, at the time of the enactment of the DOE Act, that the 
corresponding provision in the Administrative Procedure Act, 
section 553(c), was too weak. The Senate Committee on 
Governmental Affairs explained this rationale as follows: 
``Following the notice and comment period, including any oral 
presentations required by section 501(b) [moved in the final 
bill to 501(c)], Secretary or the Board may promulgate the rule 
if it is accompanied by an explanation responding to the major 
comments, criticisms, and alternative proposals offered in the 
comments. The committee believes that such a requirement will 
help assure full consideration of all comments submitted by 
interested persons, and help the pubic understand the full 
basis and nature of the ultimate decision reached by the Board 
or the Secretary.'' Senate Report No. 95-164 at 45. Case law 
interpreting section 553(c), though, has reached an identical 
state of development since 1977. AS described in Professors 
Kenneth C. David and Richard J. Pierce, Jr.:

          Over the decades since Congress enacted Sec. 553(c), 
        the courts gradually have attached greater significance 
        to the language Congress used to describe the statement 
        of basis and purpose in the Committee reports 
        [accompanying the enactment of the Administrative 
        Procedure Act]. * * *
          No court today would uphold a major agency rule that 
        incorporates only a ``concise general statement of 
        basis and purpose.'' To have any reasonable prospect of 
        obtaining judicial affirmance of a rule, an agency must 
        set forth the basis and purpose of the rule in a 
        detailed statement, often several hundred pages long, 
        in which the agency refers to the evidentiary basis for 
        all factual predicates, explains its method of 
        reasoning from factual predicates and expected effect 
        of the rule, relate the factual predicates and expected 
        effects of the rule to each of the statutory goals or 
        purposes the agency is required to further or to 
        consider, responds to all major criticisms contained in 
        the comments on its proposed rule, and explains why it 
        has rejected at lease some of the most plausible 
        alternatives to the rule that it has adopted. See e.g., 
        American Gas Assn. v. FERC, 888 F.2d 136 (D.C. Cir. 
        1989); Mobil Oil Co. v. DOE, 610 F.2d 796 (TECA 1979), 
        cert. denied, 446 U.S. 937 (1980); national Tire 
        Dealers & Retreaders v. Brinegar, 491 F.2d 31 (D.C. 
        Cir. 1974). Failure to fulfill one of these judicially 
        prescribed requirements of a ``concise general 
        statement of basis and purpose'' has become the most 
        frequent basis for judicial reversal of agency rules.'' 
        * * * Administrative Law Treatise 310-311 (3d ed. 
        1994).

    Perhaps the most important contributor to the evolution of 
jurisprudence relating to the statement of basis and purpose 
has been the evolving judicial interpretation of the 
requirement in the APA for courts ``to hold unlawful and set 
aside agency action'' that is ``arbitrary, capricious, and 
abuse of discretion, or otherwise not in accordance with law.'' 
5 U.S.C. 706(2)(A). In Motor Vehicle Manufacturers Assn. v. 
State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), 
the Supreme Court provided a generalized standard concerning 
the content of a statement of basis and purpose required to 
support or avoid a conclusion that a rule is ``arbitrary'' or 
``capricious''.

          Normally, an agency rule would be arbitrary and 
        capricious if the agency has relied on factors which 
        Congress has not intended for it to consider, entirely 
        failed to consider an important aspect of the problem, 
        offered an explanation for its decision that runs 
        counter to the evidence before the agency, or is so 
        implausible that it could not be ascribed to a 
        difference in view or the product of agency expertise. 
        463 U.S. at 43.

    Seen in the light of this evolution of case law on section 
553, most of which occurred after the passage of the DOE Act in 
1977, the need for a separate section 501(d) is not readily 
apparent. The disadvantage of retaining this subsection can be 
seen by the presence of a waiver for the requirements of 
subsection (d) in section 501(e) of the DOE Act. Given that 
courts, in developing their standards for reasoned decision 
making, have not seen fit to conclude that agencies need 
waivers from such standards, one could argue that the DOE Act 
now provides less protection on this score than the case law 
interpreting section 553. At best, then, section 501(d) is 
surplusage, and it could be argued that retaining this 
subsection risks allowing an obsolete provision to remain in 
the U.S. Code that may be out of step with the future evolution 
of the APA through legislation or case law on rule making.

Section 501(b)(3)

    As stated above, the rationale for the provision of section 
501(b)(3) is much more difficult to understand in light of the 
legislative history of the DOE Act. It appears without any 
specific explanation and the general explanation provided for 
the amendment in which it initially appeared does not apply to 
it. The conference report on the DOE Act similarly provides no 
explanation of the need for or intention of this provision. In 
1984, Congress provided, by enacting a new section 22 of the 
Office of Federal Procurement Policy Act (41 U.S.C. 418b), that 
procurement policies, regulations, procedures, and forms must 
be published in the Federal Register for at least 30 days of 
public comment prior to their adoption. Thus, there are now two 
separate laws requiring rule making procedures that apply to 
DOE procurement-related rules, while other Federal agencies 
have only one. Given this, the anomalous provision in the DOE 
Act is no longer required.

                              Section 624

Legislative history

    The Senate bill that became the DOE Act authorized the 
Secretary to establish advisory committees to assist in the 
performance of his functions, and made these advisory 
committees subject to section 17 of the Federal Energy 
Administration Act of 1974. The House bill limited the 
applicability of section 17 to the regulatory activities of the 
Department. As was stated during the floor debate on the House 
bill, ``there are other operational needs to close advisory 
committee meetings such as when trade secrets or other private 
business, confidential information, or other privileged 
information of a personal or private nature will have to be 
discussed,'' and the DOE was intended to be ``an operational as 
well as regulatory agency.'' Congressional Record, June 3, 
1977, p. 17406. The conferees decided to keep the Senate 
provision with the addition of exemption number 4 in the 
Government in the Sunshine Act (5 U.S.C. 552b(c)(4); relating 
to trade secrets and confidential business information) as an 
additional grounds to close advisory committee meetings. Senate 
Report No. 95-367.

Current status

    In the years since the enactment of the DOE Act, the 
regulatory mission of the Department has waned dramatically, 
while the operational mission of the Department in research and 
development (not prominent in the originally reported bills to 
create the Department) has grown substantially. There has also 
been further development in the implementation of the Federal 
Advisory Committee Act (FACA). Responsibility for 
implementation of FACA was transferred to the General Services 
Administration (GSA) in October 1977, after the enactment of 
the DOE Act, and the GSA subsequently published government-wide 
regulations (codified at 41 CFR 101-6.1001 et seq.) that 
provide essentially the same advisory committee protections 
contained in the Federal Energy Administration Act of 1974 
(e.g., requiring balanced membership on committees, access to 
minutes of advisory committee meetings and to studies 
considered by such committees). The unique restriction 
remaining as a result of section 624(b) of the DOE Act has thus 
become more pronounced as a bar to the use, for example, of 
advisory committees in peer review of grant and contract 
applications, without compensating benefits not found in the 
Federal Advisory Committee Act and its implementing 
regulations. In 1991, the General Accounting Office agreed with 
DOE that DOE's ``authorizing legislation generally prohibits 
closing advisory committee meetings on research and 
development, unless the closing is due to national security 
reasons or the protection of privileged information. However, 
this legislation does not allow the closing of panel meetings 
to protect personal information. Consequently, [if DOE] 
charters its peer review panels under FACA it would not be able 
to close the meetings to prevent the disclosure of personal 
information.'' Peer Review: Compliance with the Privacy Act and 
the Federal Advisory Committee Act, GAO/GGD-91-48 (1991) at 13. 
The GAO recommended that ``The Secretary of Energy should seek 
an amendment to its authorizing legislation that would allow 
Energy to charter its peer review panels but still protect the 
privacy of the grant applicants and peer reviewers.'' Id. at 
14.
    Given that original impetus for the application of section 
17 of the Federal Energy Administration Act was DOE's 
anticipated regulatory role; and given that the Federal 
Advisory Committee Act and its implementing regulations provide 
for the same procedural protections in section 17 while 
providing agencies with more latitude to protect privileged 
information and personal information, there is little rationale 
for maintaining the overlapping and excessively restrictive 
requirements of section 17.

                    Legislative History of H.R. 649

    H.R. 649 was introduced on February 6, 1997. The House of 
Representatives passed the bill March 11, 1997. H.R. 649 was 
referred to the Committee on Energy and Natural Resources on 
March 12, 1997. During the 104th Congress, the Committee 
reported an essentially identical bill, S. 1874, on June 28, 
1996. The bill passed the Senate on September 28, 1996 without 
amendment. No action was taken by the House on S. 1874 during 
the 104th Congress.

            Committee Recommendation and Tabulation of Votes

    The Senate Committee on Energy and Natural Resources, in 
open business session on May 21, 1997 by unanimous vote of a 
quorum present recommends that the Senate pass H.R. 649 without 
amendment.
    The rollcall vote on the motion to report an amendment in 
the nature of a substitute was 20 yeas, 0 nays as follows:
        YEAS                          NAYS
Mr. Murkowski
Mr. Domenici*
Mr. Nickles*
Mr. Craig
Mr. Campbell*
Mr. Thomas
Mr. Kyl*
Mr. Grams
Mr. Smith
Mr. Gorton
Mr. Burns*
Mr. Bumpers
Mr. Ford*
Mr. Bingaman*
Mr. Akaka
Mr. Dorgan
Mr. Wyden
Mr. Johnson*
Ms. Landrieu

    * Indicates vote by proxy.

                      Section-by-Section Analysis

    Section 1 of the bill provides the short title, the 
Department of Energy Standardization Act of 1996.
    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 rule making with respect to 
public property, contracts, loans, and grants will be conducted 
under the same legislative authorities as such rule making 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).

    Cost and Budgetary Considerations and Federal Mandate Evaluation

    The following estimate of costs of this measure and Federal 
mandate evaluation has been provided by the Congressional 
Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 22, 1997.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, 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,
                                         June E. O'Neill, Director.

               Congressional Budget Office Cost Estimate

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

    This act 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 legislation, CBO estimates that enacting H.R. 649 would 
result in discretionary savings of about $500,000 a year. 
Because this legislation 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 act 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.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out H.R. 649.
    The bill is not a regulatory measure in the sense of 
imposing Government established standards or significant 
economic responsibilities on private individuals or businesses. 
The bill provides for simplification and standardization of DOE 
rule making procedures with respect to public property, loans, 
grants, or contracts. Because DOE rules relating to these 
subjects will now be subject to the government-wide exemption 
in the Administrative Procedure Act (5 U.S.C. 553(a)(2)), DOE 
will no longer have to engage in rulemaking under the 
Administrative Procedure Act for rules on such topics in 
addition to rule making under the procedures provided for in 
the Office of Federal Procurement Policy Act (41 U.S.C. 418b). 
The bill also provides for simplification and standardization 
of DOE advisory committee procedures. The only impact would be 
to streamline the internal DOE administrative process relating 
to advisory committee management. DOE will probably need to 
revise its internal guidelines to implement these changes.
    No personal information would be collected in administering 
the program. Enactment of this bill will strengthen DOE's 
ability to protect personal information exempt from public 
disclosure under the Administrative Procedure Act, so the bill 
would improve the protection of personal privacy.
    Enactment of H.R. 649 will reduce the paperwork associated 
with DOE advisory committee management and rule making.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
bill S. 1874, as ordered 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 
explanationresponding 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 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.]