[House Report 110-390]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-390
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REGULATORY IMPROVEMENT ACT OF 2007
_______
October 18, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 3564]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred 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, 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 the Legislation.......................... 2
Hearings......................................................... 14
Committee Consideration.......................................... 14
Committee Votes.................................................. 14
Committee Oversight Findings..................................... 14
New Budget Authority and Tax Expenditures........................ 14
Congressional Budget Office Cost Estimate........................ 14
Performance Goals and Objectives................................. 16
Constitutional Authority Statement............................... 16
Advisory on Earmarks............................................. 16
Section-by-Section Analysis...................................... 16
Changes in Existing Law Made by the Bill, as Reported............ 16
Purpose and Summary
The Administrative Conference of the United States (ACUS or
Conference), during its existence, was an independent,
nonpartisan agency devoted to analyzing the administrative law
process and providing guidance to Congress. Although
reauthorized on October 30, 2004,\1\ it was not appropriated
funds. In light of the fact that the Conference's authorization
expired on September 30, 2007, H.R. 3564, the ``Regulatory
Improvement Act of 2007,'' simply extends the authorization of
appropriations for the Conference for four additional years.
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\1\Federal Regulatory Improvement Act of 2004, Pub. L. No. 108-401,
118 Stat. 2255 (2004).
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Background and Need for the Legislation
BACKGROUND
As observed by the Congressional Research Service,
``Federal regulation, like taxing and spending, is one of the
basic tools of government used to implement public policy.''\2\
Impacting on nearly every aspect of our lives, regulations\3\
have significant benefits and costs as aptly summarized in the
following:
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\2\Curtis W. Copeland, The Federal Rulemaking Process: An Overview,
Congressional Research Service Report for Congress, RL 32240, at 1
(Feb. 7, 2005) [hereinafter CRS Report].
\3\The terms ``regulation'' and ``rule'' are generally used
interchangeably with respect to the Federal regulatory process. In
turn, ``rulemaking'' refers to ``[t]he process by which Federal
agencies develop, amend, or repeal rules.'' Id.
Agencies issue thousands of rules and regulations each
year to implement statutes enacted by Congress. The
public policy goals and benefits of regulations
include, among other things, ensuring that workplaces,
air travel, foods, and drugs are safe; that the
Nation's air, water and land are not polluted; and that
the appropriate amount of taxes is collected. The costs
of these regulations are estimated to be in the
hundreds of billions of dollars, and the benefits
estimates are even higher. Given the size and impact of
Federal regulation, it is no surprise that Congresses
and Presidents have taken a number of actions to refine
and reform the regulatory process within the past 25
years. One goal of such initiatives has been to reduce
regulatory burdens on affected parties, but other
purposes have also played a part. Among these are
efforts to require more rigorous analyses of proposed
rules and thus provide better information to decision
makers, to enhance oversight of rule making by Congress
and the President, and to promote greater transparency
and participation in the process.\4\
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\4\Regulatory Reform: Are Regulations Hindering Our
Competitiveness?: Hearing Before the Subcomm. on Regulatory Affairs of
the H. Comm. on Government Reform, 109th Cong. 56 (2005) (testimony of
J. Christopher Mihm, Managing Director--Strategic Issues, U.S.
Government Accountability Office) (footnotes omitted) [hereinafter GAO
testimony].
The Constitution provides that the Government may not
deprive anyone of life, liberty, or property without ``due
process of law.''\5\ This requirement of fair procedure applies
to the Federal regulatory rulemaking and adjudicatory
processes, the impact of which can be extensive. As Justice
Jackson observed in 1952:
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\5\U.S. Const. amend. XIV, Sec. 1.
The rise of administrative bodies probably has been the
most significant legal trend of the last century and
perhaps more values today are affected by their
decisions than by those of all the courts, review of
administrative decisions apart. They also have begun to
have important consequences on personal rights. They
have become a veritable fourth branch of the
Government, which has deranged our three-branch legal
theories much as the concept of a fourth dimension
unsettles our three-dimensional thinking.\6\
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\6\Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, 487
(1952) (Jackson, J., dissent) (citation omitted).
The Administrative Procedure Act (APA),\7\ enacted in 1946,
establishes minimum procedures to be followed by Federal
administrative agencies when they conduct business that affects
the public and requires judicial review of certain
administrative acts. Many agency actions, however, are not
subject to the APA. As one academic noted, ``Despite the
presence of a written Constitution and the Administrative
Procedure Act (APA), the Federal administrative process, by
design and evolution, is characterized by a considerable degree
of procedural flexibility and agency discretion.''\8\ In 1961,
President John F. Kennedy observed that ``the steady expansion
of the Federal administrative process during the past several
years has been attended by increasing concern over the
efficiency and adequacy of department and agency
procedures.''\9\
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\7\5 U.S.C.A. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372,
7521 (2006).
\8\Gary J. Edles, The Continuing Need for an Administrative
Conference, 50 Admin. L. Rev. 101, 102 (1998).
\9\Exec. Order No. 10,934, 26 Fed. Reg. 3233 (Apr. 13, 1961).
President Kennedy's other concerns included the following:
WHEREAS the performance of regulatory functions and related
responsibilities for the determination of private rights,
privileges, and obligations by executive departments and
administrative agencies of the United States Government
substantially affects large numbers of private individuals
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and many areas of economic and business activity; and
WHEREAS it is essential to the protection of private and
public interests and to the sustained development of the
national economy that Federal administrative procedures
ensure maximum efficiency and fairness in the performance
of these governmental functions; and
* * *
WHEREAS the experience of the several groups which have
examined Federal administrative procedures in recent years
demonstrates that substantial progress in improving
department and agency procedures can result from
cooperative effort by the departments and agencies, working
together with members of the practicing bar and other
interested persons. . . .
Id.
With Federal agencies issuing ``more than 4,000 final rules
each year on topics ranging from the timing of bridge openings
to the permissible levels of arsenic and other contaminants in
drinking water,''\10\ the current Federal regulatory process
faces many significant challenges. In 2004, the Administrator
of the Office of Information and Regulatory Affairs testified
that ``no one has ever tabulated the sheer number of Federal
regulations that have been adopted since passage of the
Administrative Procedure Act'' and that ``[s]ad as it is to
say, most of these existing Federal rules have never been
evaluated to determine whether they have worked as intended and
what their actual benefits and costs have been.''\11\ Since
1994, the Government Accountability Office (GAO) has issued
more than 60 reports critiquing various issues presented by the
regulatory process. In 2005, the GAO testified before a
subcommittee of the Committee on Government Reform that while
certain regulatory reform initiatives have yielded benefits,
other areas needed to be ``more effective.''\12\
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\10\CRS Report, supra note 2, at 1.
\11\What Is the Bush Administration's Record in Regulatory Reform?:
Hearing Before the Subcomm. on Energy Policy, Natural Resources and
Regulatory Affairs of the H. Comm. on Government Reform, 108th Cong. 19
(2004) (prepared statement of John D. Graham, Administrator, Office of
Information and Regulatory Affairs, Office of Management and Budget).
\12\GAO testimony, supra note 4, at 59. The areas identified by GAO
as needing improvement were described as follows:
[A]t least four recurring reasons help explain why reform
initiatives have not been more effective: (1) limited scope
and coverage of various requirements, (2) lack of clarity
regarding key terms and definitions, (3) uneven
implementation of the initiatives' requirements, and (4) a
predominant focus on just one part of the regulatory
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process, agencies' development of rules.
Id. at 54.
NEED FOR THE LEGISLATION
Administrative Conference of the United States
ACUS was established as a permanent independent agency in
1964 and became operational 4 years later.\13\ For
approximately 27 years, the Conference developed
recommendations for improving procedures by which Federal
agencies administer regulatory, benefit, and other government
programs. Over the course of its existence, the Conference
served as a ``private-public think tank to do basic research on
how to improve the regulatory and legal process.''\14\ Although
its funding was terminated in 1995, the statutory provisions
establishing ACUS were not repealed.\15\
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\13\Administrative Conference Act of 1964, Pub. L. No. 88-499, 5
U.S.C.A. Sec. Sec. 591-96 (2006). Temporary conferences were
established in 1953 by President Eisenhower, Memorandum Convening the
President's Commission on Administrative Procedure, Pub. Papers 219-22
(Apr. 29, 1953), and in 1961 by President Kennedy. Exec. Order No.
10,934, 26 Fed. Reg. 3233 (Apr. 13, 1961).
\14\Reauthorization of the Administrative Conference of the United
States: Hearing Before the Subcomm. on Commercial and Administrative
Law of the H. Comm. on the Judiciary, 104th Cong. 31 (1995) (statement
of C. Boyden Gray, ACUS Council Member).
\15\Pub. L. No. 104-52, 109 Stat. 468, 480 (1995) (authorizing
funding for the purpose of terminating ACUS' operations).
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The Conference's jurisdiction over administrative procedure
was intentionally broad.\16\ It was authorized to study ``the
efficiency, adequacy, and fairness of the administrative
procedure used by administrative agencies in carrying out
administrative programs, and make recommendations to
administrative agencies, collectively or individually, and to
the President, Congress, or the Judicial Conference of the
United States[.]''\17\ In addition, it facilitated the
interchange among administrative agencies of information
potentially useful in improving administrative procedure. The
Conference also collected information and statistics from
administrative agencies and published reports evaluating and
improving administrative procedure.\18\
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\16\The term, ``administrative procedure,'' for example, ``is to be
broadly construed to include any aspect of agency organization,
procedure, or management which may affect the equitable consideration
of public and private interests, the fairness of agency decisions, the
speed of agency action, and the relationship of operating methods to
later judicial review. . . .'' 5 U.S.C.A. Sec. 592(3) (2006).
\17\5 U.S.C.A. Sec. 594(1) (2006).
\18\5 U.S.C.A. Sec. 594 (2006).
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Over time, Congress assigned ACUS other responsibilities.
Agencies seeking to implement the Government in the Sunshine
Act\19\ and the Equal Access to Justice Act\20\ were required
to consult with ACUS before promulgating rules to ensure
uniformity. ACUS served as the key implementing agency for the
Administrative Dispute Resolution Act,\21\ the Negotiated
Rulemaking Act,\22\ the Equal Access to Justice Act,\23\ the
Congressional Accountability Act,\24\ and the Magnusson-Moss
Warranty-Federal Trade Commission Improvement Act.\25\ The
Conference was authorized to examine and make recommendations
regarding implementation of the Congressional Accountability
Act.\26\ ACUS also played a key role in the Clinton
Administration's National Performance Review with respect to
improving regulatory systems.\27\ In general, ACUS served as a
resource for Members of Congress, Congressional Committees, the
Internal Revenue Service, Department of Transportation, and the
Federal Trade Commission.\28\ Even after its demise in 1995,
Congress continued to assign ACUS various responsibilities
apparently unaware of the Conference's termination.\29\
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\19\5 U.S.C.A. Sec. 552b(g) (2006).
\20\5 U.S.C.A. Sec. 504(c)(1) (2006).
\21\5 U.S.C.A. Sec. Sec. 571 et seq. (2006).
\22\5 U.S.C.A. Sec. Sec. 561 et seq. (2006).
\23\5 U.S.C.A. Sec. 504 (2006).
\24\Pub. L. No. 104-1, 109 Stat. 3 (1995).
\25\Pub. L. No. 93-637, 88 Stat. 2183 (1975).
\26\Pub. L. No. 104-1, Sec. 230, 109 Stat. 3, 23 (1995).
\27\See, e.g., Letter from Elaine Kamark, Senior Policy Advisor to
the Vice President, to Rep. Steny H. Hoyer, Chair, Subcomm. on
Treasury, Post Service, and General Government of the H. Appropriations
Comm. (Mar. 7, 1994) (citing the Conference's ``valuable assistance''
to the National Performance Review).
\28\See Marshall J. Breger, The Administrative Conference of the
United States: A Quarter Century Perspective, 53 U. Pitt. L. Rev. 813,
835-37 (1992); Toni Fine, A Legislative Analysis of the Demise of the
Administrative Conference of the United States, 30 Ariz. St. L. J. 19,
46-47 (1998).
\29\See, e.g., S. 849, the ``OPEN Government Act of 2007,'' 110th
Cong., Sec. 11 (2007) (establishing an Office of Government Information
Services in ACUS); H.R. 867, the ``OPEN Government Act of 2005,'' 109th
Cong., Sec. 11 (2005) (establishing an Office of Government Information
Services in ACUS); S. 1370, the ``Common Sense Medical Malpractice
Reform Act of 2001,'' 107th Cong., Sec. 12(b) (2001) (requiring the
Attorney General and the Secretary of Health and Human Services to
consult with the Conference with respect to developing guidelines for
alternative dispute resolution mechanisms); S. 1613, the ``Equal Access
to Justice Reform Amendments of 1998,'' 105th Cong., Sec. 1(g) (1998)
(requiring the Conference to report to Congress on the frequency of fee
awards paid by certain Federal agencies); S. 886, the ``Health Care
Liability Reform and Quality Assurance Act of 1997,'' 105th Cong.,
Sec. 111 (1997) (requiring the Attorney General and the Secretary of
Health and Human Services to consult with the Conference with respect
to developing guidelines for alternative dispute resolution
mechanisms).
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Membership and Operation. The membership of ACUS was drawn
from the public and private sectors, spanning the ideological
spectrum. Before his appointment to the bench, Justice Antonin
Scalia served as a Conference Chair from 1972 to 1974. Justice
Stephen Breyer was a Conference member and actively
participated in its activities from 1981 to 1994.\30\ Other
members included C. Boyden Gray, who served as Counsel to
President George H.W. Bush; Jack Quinn, who served as Counsel
to President Bill Clinton; and Office of Information and
Regulatory Affairs Administrator Sally Katzen, among other
prominent civil servants and academic scholars. Justice Scalia
observed that ``academics who have served as consultants or
members of the Conference have been a virtual Who's Who of
leading scholars in the field of administrative law[.]''\31\
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\30\Letter from Justice Stephen Breyer to Sen. Charles E. Grassley,
Chair, Subcomm. on Administrative Oversight and the Courts of the S.
Comm. on the Judiciary (Aug. 21, 1995) (on file with the Subcomm. on
Commercial and Administrative Law of the H. Comm. on the Judiciary).
\31\Letter from Justice Antonin Scalia to Sen. Charles E. Grassley,
Chair, Subcomm. on Administrative Oversight and the Courts of the S.
Comm. on the Judiciary (July 31, 1995) (on file with the Subcomm. on
Commercial and Administrative Law of the H. Comm. on the Judiciary).
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The Conference members were drawn from the public and
private sectors.\32\ Members from the public sector consisted
of representatives from each executive department and agency as
well as independent regulatory agencies.\33\ In addition, up to
40 private sector members could be appointed for 2-year terms,
providing the number of private sector members was not less
than one-third nor more than two-fifths of the total number of
Conference members. The private sector members were required to
be ``scholars in the field of administrative law or government,
or others specially informed by knowledge and experience with
respect to Federal administrative
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\32\The statute provides that the Conference can have not less than
75 members, but not more than 101 members. 5 U.S.C.A. Sec. 593(a)
(2006).
\33\5 U.S.C.A. Sec. 593(b)(2), (3) (2006).
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procedure'' and had to selected in a manner to ensure
``broad representation of the views of private citizens and
utilize diverse experience.''\34\
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\34\5 U.S.C.A. Sec. 593(b)(6) (2006).
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The day-to-day operations of ACUS were directed by the
Conference chair, who was appointed for a 5-year term by the
President on advice and consent of the Senate. Only the
Conference's chair and employees were compensated for their
services.\35\ As the Conference's chief executive, the chairman
was the official spokesman for the Conference and had the
responsibility to encourage Federal agencies to carry out the
recommendations of the Conference.\36\ As of 1995, the
Conference was staffed by 18 full-time employees and operated
with a budget of approximately $ 1.8 million.\37\ Statutorily
required to be headquartered in Washington, DC, the Conference
was permitted to accept volunteered services and was exempt
from the anti-gift ban.\38\
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\35\5 U.S.C.A. Sec. 593(a), (c) (2006). Private sector members were
entitled to reimbursement for travel expenses. 5 U.S.C. Sec. 593(c)
(2006).
\36\5 U.S.C.A. Sec. 595(c)(2) (2006).
\37\Administrative Conference of the United States, Justification
for Appropriations Fiscal Year 1996, at 11, 33 (Feb. 1995). This level
of funding, however, was less than previous years. In fiscal year 1993,
for example, ACUS was appropriated $2.314 million. For fiscal years
1994 and 1995, its funding was $1.8 million. Id. at 10.
\38\5 U.S.C.A. Sec. 585(c)(11)-(12) (2006).
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The Conference was organized around six standing
committees: Adjudication (agency adjudicatory processes),
Administration (alternative dispute resolution and other
procedures utilized by Federal agencies to implement
assistance, procurement, and other administrative programs),
Government Process (techniques used by Federal agencies to
implement Federal programs), Regulation (administrative
procedures applicable to oversight of private economic
activities), Rulemaking (processes used by Federal agencies to
issue rules and regulations), and Judicial Review (aspects of
administrative law or practice relating to the availability and
effectiveness of judicial review of agency decisions).\39\
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\39\See Marshall J. Breger, The Administrative Conference of the
United States: A Quarter Century Perspective, 53 U. Pitts. L. Rev. 813,
826 (1992).
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Accomplishments. Many viewed ACUS as a unique agency. In
support of this observation, they cite the Conference's: (1)
public/private sector membership; (2) direct ties to the
President, Congress, and the judiciary; (3) non-partisan,
unbiased approach to issues; (4) permanent career staff; (5)
ability to attract the active participation of the Federal
judiciary; and (6) exclusive focus on administrative
procedure.\40\ As the Congressional Research Service observed
at a hearing on H.R. 3564 held by the Subcommittee on
Commercial and Administrative Law:
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\40\See, e.g., Regulatory Improvement Act: Hearing on H.R. 3564
Before the Subcomm. on Commercial and Administrative Law of the House
Comm. on the Judiciary, 110th Cong. (2007) (prepared statement of
Curtis Copeland, Specialist in American National Government,
Congressional Research Service) (citing various recent issues where the
Conference's expertise would have been useful, including e-rulemaking
and civil penalties); Reauthorization of the Administrative Conference
of the United States Before the Subcomm. on Commercial and
Administrative Law of the House Comm. on the Judiciary, 104th Cong. 6
(1995) (statement of Thomasina V. Rogers, ACUS Chair) (stating ACUS is
a ``unique public-private partnership''); Reauthorization of the
Administrative Conference of the United States Before the Subcomm. on
Administrative Law and Governmental Relations of the House Comm. on the
Judiciary, 103d Cong. 49 (1994) (statement of Prof. Thomas O.
Sargentich, American University Washington College of Law) (noting the
need for ACUS and its ``special uniqueness''); id. at 71 (statement of
Thomas M. Susman on behalf of the American Bar Ass'n) (noting that the
Conference ``is unique in combining the perspectives and experience and
capabilities of both the government and the private sectors'') Gary J.
Edles, The Continuing Need for an Administrative Conference, 50 Admin.
L. Rev. 101, 121 (citing various accomplishments, including the
Conference's efforts to stem the growing tide of administrative
litigation'') (1998); Jeffrey Lubbers, ``If It Didn't Exist, It Would
Have To Be Invented''--Reviving the Administrative Conference, 30 Ariz.
St. L. J. 147, 149 (1998); Toni Fine, A Legislative Analysis of the
Demise of the Administrative Conference of the United States, 30 Ariz.
St. L. J. 19, 46 (1998) (``Numerous commentators have described the
many accomplishments of ACUS--from the publication of time-saving books
and other resources to the urging of important legislative reforms of
administrative procedure.''); Marshall J. Breger, The Administrative
Conference of the United States: A Quarter Century Perspective, 53 U.
Pitts. L. Rev. 813, 831-41 (1992) (citing various ACUS recommendations
that have had ``a significant effect on the workings of the Federal
Government'' and the Conference's contribution ``to promoting
administrative law scholarship'').
ACUS' past accomplishments in providing nonpartisan,
nonbiased, comprehensive, and practical assessments and
guidance with respect to a wide range of agency
processes, procedures, and practices are well
documented. . . . ACUS evolved a structure to develop
objective, nonpartisan analyses and advice, and a
meticulous vetting process, which gave its
recommendations credence.''\41\
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\41\Regulatory Improvement Act: Hearing on H.R. 3564 Before the
Subcomm. on Commercial and Administrative Law of the House Comm. on the
Judiciary, 110th Cong. (2007) (prepared statement of Mort Rosenberg,
Specialist in American Public Law, Congressional Research Service).
Likewise, Justice Breyer expounded upon the Conference's
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uniqueness:
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 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 commends general acceptance.\42\
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\42\Letter from Justice Stephen Breyer to Sen. Charles E. Grassley,
Chair, Subcomm. on Administrative Oversight and the Courts of the
Senate Committee on the Judiciary (Aug. 21, 1995) (on file with the
Subcomm. on Commercial and Administrative Law of the H. Comm. on the
Judiciary).
Another explanation of ACUS' unique qualities is the
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following:
[T]here is a special uniqueness about it. If you compare
the Administrative Conference to other governmental bodies,
one can see how different it is. It represents a balanced
group of private and public members. There is no agency of
government that can take this kind of reflective view of
the administrative process. Each agency has its own
mandate, of course, and will come at administrative process
issues from its own perspective. You see this in discussion
on the floor of the plenary session where agency members
will frequently give an agency's view, but there is no
entity that can give a general view such as the
Administrative Conference. It is quite unique.
Reauthorization of the Administrative Conference of the United States
Before the Subcomm. on Administrative Law and Governmental Relations of
the House Comm. on the Judiciary, 103d Cong. 49 (1994) (statement of
Prof. Thomas O. Sargentich, American University Washington College of
Law).
Over the course of its existence, the Conference
promulgated approximately 200 recommendations to improve the
administrative process, many of which were implemented.\43\
Among its ``most influential government-wide recommendations''
was the Conference's proposals facilitating judicial review of
agency decisions and eliminating various technical impediments
to such review.\44\ It recommended a model administrative civil
penalty statute that has served as the basis for ``dozens of
pieces of legislation.''\45\ In addition, ACUS developed and
promoted procedures implementing the Negotiated Rulemaking
Act\46\ to encourage consensual resolution in a process that
takes into account the needs of various affected interests.\47\
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\43\American Bar Ass'n Administrative Procedure Database Site
Specific Digital Texts: Recommendations of the Administrative
Conference at http://www.law.fsu.edu/library/admin/acus/acustoc.html;
see Toni Fine, A Legislative Analysis of the Demise of the
Administrative Conference of the United States, 30 Ariz. St. L. J. 19,
46 n. 102 (1998) (noting that ``[i]t has been estimated that 75%'' of
ACUS' legislative proposals ``were adopted in whole or in part'').
\44\Gary J. Edles, Lessons from the Administrative Conference of
the United States, 2 Eur. Pub. L. 571, 584 (1996).
\45\Id. at 588.
\46\5 U.S.C.A. Sec. Sec. 561 et seq. (2006).
\47\See Gary J. Edles, Lessons from the Administrative Conference
of the United States, 2 Eur. Pub. L. 571, 590-91 (1996).
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The Conference is also credited with playing an important
role in improving the Nation's legal system by issuing
recommendations designed ``to eliminate excessive litigation
costs and long delays.''\48\ For example, Congress, in response
to an ACUS recommendation, passed the Administrative Dispute
Resolution Act in 1990, which established a framework for
agencies to resolve administrative litigation through
alternative dispute resolution.\49\ As a former ACUS member
explained:
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\48\Reauthorization of the Administrative Conference of the United
States Before the Subcomm. on Commercial and Administrative Law of the
House Comm. on the Judiciary, 104th Cong. 44 (1995) (statement of
Richard E. Wiley).
\49\Pub. L. No. 101-552, 104 Stat. 2736 (1990).
Half of the budget of ACUS is devoted to trying to find
ways to reduce, or eliminate government litigation
within and by the Government. For example, ACUS, along
with the Office of Federal Procurement Policy,
convinced successfully some 24 agencies to initiate ADR
and to try to use it in disputes with private sector
companies and government contracts. Given the fact that
you have $200 billion going into the Government
procurement program every year, the potential savings
in that one program are simply enormous.\50\
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\50\Reauthorization of the Administrative Conference of the United
States Before the Subcomm. on Commercial and Administrative Law of the
House Comm. on the Judiciary, 104th Cong. 44 (statement of Richard E.
Wiley).
From a systemic perspective, the Conference also helped to
focus attention on the need for the Federal Government to be
made more efficient, less big, and more accountable. It was
viewed as one of the leading Federal proponents of practical
ways to reduce administrative litigation. In this regard, the
Conference actively promoted information-technology
initiatives, such as developing methods by which the public
could participate electronically in agency rulemaking
proceedings to increase public access to government information
and foster greater openness in government operations.\51\
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\51\See, e.g., 305.69-3 Publication of a ``Guide to Federal
Reporting Requirements'' (Recommendation No. 69-3); 305.69-6
Compilation of Statistics on Administrative Proceedings by Federal
Departments and Agencies (Recommendation No. 69-6); 305.71-6 Public
Participation in Administrative Hearings (Recommendation No. 71-6);
305.74-4 Preenforcement Judicial Review of Rules of General
Applicability (Recommendation No. 74-4); 305.76-2 Strengthening the
Informational and Notice-Giving Functions of the ``Federal Register''
(Recommendation No. 76-2); 305.76-3 Procedures in Addition to Notice
and the Opportunity for Comment in Informal Rulemaking (Recommendation
No. 76-3); 305.78-4 Federal agency interaction with private standard-
setting organizations in health and safety regulation (Recommendation
No. 78-4); 305.79-4 Public Disclosure Concerning the use of Cost-
Benefit and Similar Analyses in Regulation (Recommendation No. 79-4);
305.80-6 Intragovernmental Communications in Informal Rulemaking
Proceedings (Recommendation No. 80-6); 305.82-4 Procedures for
Negotiating Proposed Regulations (Recommendation No. 82-4); 305.82-7
Judicial Review of Rules in Enforcement Proceedings (Recommendation No.
82-7); 305.84-5 Preemption of State Regulation by Federal Agencies
(Recommendation No. 84-5); 305.85-1 Legislative Preclusion of cost/
benefit analysis (Recommendation No. 85-1); 305.85-2 Agency procedures
for performing regulatory analysis of rules (Recommendation No. 85-2);
305.88-7 Valuation of Human Life in Regulatory Decisionmaking
(Recommendation No. 88-7); 305.90-2 The Ombudsman in Federal Agencies
(Recommendation No. 90-2); 305.93-4 Improving the Environment for
Agency Rulemaking (Recommendation No. 93-4); 305.94-1 Use of Audited
Self-Regulation as a Regulatory Technique (Recommendation No. 94-1);
305.95-4 Procedures for Noncontroversial and Expedited Rulemaking
(Recommendation 95-4).
---------------------------------------------------------------------------
Although the Conference's annual appropriation at the time
it ceased operations was only $1.8 million, it has been
estimated that ACUS saved the Federal Government and the
private sector many multiples of that expenditure over the
years it was in operation.\52\ For example, an ACUS
recommendation to change the Social Security Administration's
appeals process was estimated to save that agency approximately
$85 million annually.\53\ ACUS helped Federal agencies to
implement the Administrative Dispute Resolution Act of 1990 and
the Negotiated Rulemaking Act,\54\ programs which Senator
Charles Grassley (R-IA) stated saved ``millions of taxpayers''
dollars annually by avoiding costly and protracted
litigation.\55\ The President of the American Arbitration
Association asserted that ACUS' encouragement of ADR saved
``millions of dollars that would otherwise be frittered away in
litigation costs.''\56\ Accordingly, as one public interest
group observed, ``It would be penny-wise and pound-foolish not
to reauthorize ACUS.''\57\
---------------------------------------------------------------------------
\52\See, e.g., Reauthorization of the Administrative Conference of
the United States: Hearing Before the Subcomm. on Commercial and
Administrative Law of the H. Comm. on the Judiciary, 104th Cong. 41
(1995) (statement of David C. Vladeck, Director of Public Citizen
Litigation Group) (noting that ``no other institution of government
more effectively leverages the tax dollar'' and that ``[e]very dollar
spent on ACUS brings . . . at least a ten-fold saving in terms of
enhanced government efficiency''); Toni Fine, A Legislative Analysis of
the Demise of the Administrative Conference of the United States, 30
Ariz. St. L. J. 19, 50 (1998) (``Nearly everyone who commented on ACUS
noted its efficiency as an agency that pays for itself many times over
through cost saving legislation, publications, and other
innovations.''); ABA Section of Administrative Law & Regulatory
Practice Program: The Administrative Conference of the U.S.--Where Do
We Go From Here?, 8 Thomas M. Cooley L. Rev. 147, 160 (1991) (including
comments by Philip D. Brady, Assistant to the President and Deputy to
the Chief of Staff, that ``given the reality of the Administrative
Conference's minuscule budget of only some $2 million, it's hard to
imagine a better value in the Federal Government'').
\53\Administrative Conference of the United States, Four Reasons
That the Administrative Conference's Funding Should Be Restored
(undated) (on file with the Subcomm. on Commercial and Administrative
Law of the H. Comm. on the Judiciary).
\54\5 U.S.C.A. Sec. Sec. 571 et seq. (2006).
\55\Letter from Senators Charles E. Grassley & Howell Heflin to
Senator Richard Shelby, Chair, Subcomm. on Treasury, Postal Service and
General Government of the S. Comm. on Appropriations (July 19, 1995)
(on file with the Subcomm. on Commercial and Administrative Law of the
H. Comm. on the Judiciary); see, e.g., Gary J. Edles, Lessons from the
Administrative Conference of the United States, 2 Eur. Pub. L. 571,
592-93 (1996).
\56\ Toni Fine, A Legislative Analysis of the Demise of the
Administrative Conference of the United States, 30 Ariz. St. L. J. 19,
52 (1998) (quoting Robert Coulson, President, American Arbitration
Ass'n).
\57\See, e.g., Reauthorization of the Administrative Conference of
the United States Before the Subcomm. on Administrative Law and
Governmental Relations of the H. Comm. on the Judiciary, 103d Cong. 37
(1994) (statement of David C. Vladeck, Director of Public Citizen
Litigation Group).
---------------------------------------------------------------------------
Another strength of ACUS was its supporters, who
represented a broad, bipartisan political spectrum of
interests. Congressional proponents included Senators Charles
Grassley (R-IA), Orrin Hatch (R-UT), Carl Levin (D-MI), and
Herb Kohl (D-WI).\58\ Academics from Rochester Institute of
Technology, University of Iowa, Catholic University of America,
Boston University School of Law, Columbia University School of
Law, George Mason University, Georgetown University,
Northwestern University School of Law, University of
Cincinnati, and Arizona State University and groups such as
Citizens for a Sound Economy, the Public Citizen Litigation
Group, the American Bar Association, Paralyzed Veterans of
America, and the National Resources Defense Council argued for
continued funding for ACUS.\59\ In addition, private industry
groups such as the American Automobile Association, American
Arbitration Association, and the Generic Pharmaceutical
Industry Association also actively supported the
Conference.\60\ C. Boyden Gray observed, ``As long as there is
a need for regulatory reform, there is a need for something
like the Administrative Conference.''\61\
---------------------------------------------------------------------------
\58\See, e.g., Letter from Sen. Charles E. Grassley et al. to Sen.
Richard C. Shelby, Chair, Treasury, Postal Service and General
Government Subcomm. of the Senate Comm. on Appropriations (Sept. 8,
1995) (expressing ``strong support'' for continued funding for ACUS and
observing that the Conference ``achieves concrete results that save
both the government and the private sector money'') (on file with the
Subcomm. on Commercial and Administrative Law of the H. Comm. on the
Judiciary). Other signatories to this letter included, Senators Howell
Heflin, Orrin Hatch, John Glenn, William Roth, Jr., Carl Levin, William
Cohen, and Herb Kohl. Id.
\59\See, e.g., Reauthorization of the Administrative Conference of
the United States Before the Subcomm. on Administrative Law and
Governmental Relations of the House Comm. on the Judiciary, 103d Cong.
66-73 (1994) (statement of Thomas M. Susman on behalf of the American
Bar Association); Letter from Joseph A. Morris et al. to Senators
Richard C. Shelby, Chair, & J. Robert Kerry, Ranking Member, Subcomm.
on Treasury, Postal Service and General Government of the Senate
Committee on Appropriations (July 20, 1995) (on file with the Subcomm.
on Commercial and Administrative Law of the H. Comm. on the Judiciary).
\60\See, e.g., Letter from Susan Au Allen et al.on behalf of the
Concerned Friends of the Administrative Conference to Rep. Steny H.
Hoyer (Aug. 2, 1994); Toni Fine, A Legislative Analysis of the Demise
of the Administrative Conference of the United States, 30 Ariz. St. L.
J. 19, 52 (1998).
\61\Reauthorization of the Administrative Conference of the United
States Before the Subcomm. on Commercial and Administrative Law of the
House Comm. on the Judiciary, 104th Cong. 31 (1995) (statement of C.
Boyden Gray).
---------------------------------------------------------------------------
In a rare appearance before Congress on a matter other than
one involving judicial appropriations or resource needs, two
Justices of the Supreme Court testified at a Subcommittee on
Commercial and Administrative Law hearing held in 2004 in
support of ACUS. At the hearing, Justice Antonin Scalia, a
former ACUS Chair, described the Conference as ``a worthwhile
organization'' that offered ``a unique combination of talents
from the academic world, from within the executive branch . . .
and, thirdly, from the private bar, especially lawyers
particularly familiar with administrative law.''\62\ He
observed, ``I did not know another organization that so
effectively combined the best talent from each of those
areas.'' In addition, he said that ACUS was ``an enormous
bargain.''\63\
---------------------------------------------------------------------------
\62\Reauthorization of the Administrative Conference of the United
States: Hearing Before the Subcomm. on Commercial and Administrative
Law of the House Comm. on the Judiciary, 108th Cong. 10 (2004).
\63\Id. at 21.
---------------------------------------------------------------------------
Likewise, Stephen Justice Breyer testified about the
``huge'' savings to the public that resulted from ACUS's
recommendations.\64\ Noting that ACUS was ``a matter of good
Government,'' he stated, ``I very much hope you reauthorize the
Administrative Conference.''\65\ Both Justices agreed that
there were various matters that a reauthorized ACUS could
examine. These included assessing the value of having agencies
use teleconferencing facilities and developing a consensus
range regarding the use of science in the regulatory
process.\66\
---------------------------------------------------------------------------
\64\Id. at 22.
\65\Id. at 15.
\66\Id. at 25-26.
---------------------------------------------------------------------------
The Conference was ``repeatedly reauthorized funding''\67\
by the Congress every 4 years until fiscal year 1996, when its
funding was limited to terminating and winding up its
operations.\68\ Although there appears to be no one reason why
ACUS' funding was terminated,\69\ various factors apparently
contributed to its demise. One cause may have been ACUS'
``invisibility factor,'' that is, it generally played a low-
profile role and was possibly viewed as not doing ``anything
that is visible to most legislators or their
constituents.''\70\ ACUS was viewed as being a ``tiny, obscure
agency'' that simply failed to survive ``budget-slashing
times.''\71\ Based on these perceptions, the defunding of ACUS
may have been simply the result of a much bigger effort to
eliminate Federal agencies perceived to be unnecessary.\72\ In
the wake of the Conference's demise and the failure to assign
its responsibilities to other entities, however, a ``fragmented
approach to administrative law reform'' has resulted.\73\
---------------------------------------------------------------------------
\67\Reauthorization of the Administrative Conference of the United
States Before the Subcomm. on Administrative Law and Governmental
Relations of the House Comm. on the Judiciary, 103d Cong. 1 (1994)
(statement of Rep. John Bryant (D-TX), Subcomm. Chair).
\68\Pub. L. No. 104-52, 109 Stat. 468, 480 (1995) (authorizing
funding for the purpose of terminating ACUS' operations).
\69\See, e.g., Gary J. Edles, Lessons from the Administrative
Conference of the United States, 2 Eur. Pub. L.571, 599 (1996) (``A
confluence of factors contributed to the agency's demise.''); Toni
Fine, A Legislative Analysis of the Demise of the Administrative
Conference of the United States, 30 Ariz. St. L. J. 19, 90 (1998)
(``While the legislative history of the elimination of the
Administrative Conference reveals some fascinating debate about its
demise, no single factor can explain why the Conference was zero-
funded'').
\70\Jonathan Groner, ACUS Fracas--Last Rights for Administrative
Conference, Legal Times, Sept. 25, 1995, at 1, 15; See Marshall J.
Breger, The Administrative Conference of the United States: A Quarter
Century Perspective, 53 U. Pitt. L. Rev. 814, 846 (1992) (noting that
``[b]eyond the Judiciary committees, where the Conference does a great
deal of its work, there is a general lack of information among
congressional staff about [ACUS]'').
A witness testifying on behalf of the American Bar
---------------------------------------------------------------------------
Association in support of ACUS observed:
Part of the problem . . . is that much of the work of the
Conference is not very exciting. Race to the courthouse.
Even ADR. Very, very important. Worth a great deal of money
to agencies. But not the stuff that you read in the
newspapers, and not the stuff that people, unless they have
some interest in it or have worked on it, are likely to
study unless given the additional encouragement.
Reauthorization of the Administrative Conference of the United States
Before the Subcomm. on Administrative Law and Governmental Relations of
the House Comm. on the Judiciary, 103d Cong. 67 (1994) (statement of
Thomas M. Susman on behalf o f the American Bar Association); see id.
at 71 (noting that ``administrative procedure, simply stated, is not
sexy stuff''); ABA Section of Administrative Law & Regulatory Practice
Program: The Administrative Conference of the U.S.--Where Do We Go From
Here?, 8 Thomas M. Cooley L. Rev. 147, 163 (1991) (noting that in
``Congress, there is unfortunately a great deal of ignorance of the
Conference'').
---------------------------------------------------------------------------
\71\Alexis Simendinger, Administrative Conference Near Demise Under
House, Senate Appropriations Ax, BNA Daily Rep. for Executives, July
27, 1995, at A-26.
\72\See, e.g., James Warren, Sunday Watch: Congress Eliminates a
Department That Actually Worked, Chi. Trib., Nov. 12, 1995, at 2;
Colman McCarthy, Mourning an Agency Mugged by Congress, Wash. Post,
Nov. 7, 1995, at E11; Mike Causey, The Federal Diary: Signs of Cuts to
Come, Wash. Post, Nov. 1, 1995, at D2; William Funk, R.I.P. A.C.U.S.,
American Bar Ass'n Network Administrative & Regulatory News, at http://
www.abanet.org/adminlaw/news/vol21no2/acus--rip.html
\73\Jeffrey Lubbers,``If It Didn't Exist, It Would Have To Be
Invented''--Reviving the Administrative Conference, 30 Ariz. St. L. J.
147, 150 (1998).
---------------------------------------------------------------------------
Administrative Law, Process and Procedure Project for the 21st Century
The Judiciary Committee, in an effort to identify issues
that a reauthorized and appropriated ACUS could examine,
established the Administrative Law, Process and Procedure
Project for the 21st Century. The Project was initially
approved by the Committee on January 26, 2005 as part of its
Oversight Plan for the 109th Congress\74\ and continued as part
of the Committee's Oversight Plan for the 110th Congress.\75\
The Project was intended to underscore the need to reauthorize
and fund ACUS. To that end, Project conducted a nonpartisan,
academically credible analysis of administrative law, process
and procedure. As part of this Project, the Subcommittee on
Commercial and Administrative held seven hearings, participated
in three symposia, and sponsored three empirical studies.\76\
---------------------------------------------------------------------------
\74\Committee on the Judiciary, Oversight Plan for the 109th
Congress, at 5 (Jan. 26, 2005) at http://judiciary.house.gov/media/
pdfs/printers/109th/109th%20Oversight%20Plan.pdf.
\75\Committee on the Judiciary, Oversight Plan for the 110th
Congress, at 2 (Jan. 24, 2007), at http://www.judiciary.house.gov/
media/pdfs/110-Oversight.pdf
\76\With respect to symposia, the Subcommittee sponsored three. On
December 5, 2005, the Subcommittee convened a symposium on e-
rulemaking. Representatives from the legislative and executive branches
as well as from academia and the private sector discussed whether e-
rulemaking improves the regulatory process and encourages public
participation. It also examined how advances in information technology
may impact administrative rulemaking.
---------------------------------------------------------------------------
On May 9, 2006, the Subcommittee sponsored a symposium that focused
on the role that science plays in the rulemaking process. This program,
which was held at American University, involved representatives from
the public and private sectors who debated what the appropriate role of
science should be.
The third symposium, held on September 11, 2006, considered
Congressional, Presidential and Judiciary review of agency rulemaking.
This program, hosted by CRS, also examined conflicting claims of legal
authority over rulemaking by the Congressional and Executive branches.
Verbatim transcripts of the second and third symposia are included in
the Project Report issued in December 2006. Interim Report on the
Administrative Law, Process and Procedure Project for the 21st Century,
Subcomm. on Commercial and Administrative Law of the H. Comm. on the
Judiciary, 109th Cong. (2006), at http://judiciary.house.gov/Media/
PDFS/Printers/110th/31505.pdf
A detailed report with recommendations for legislative
proposals and suggested areas for further research and analysis
to be considered by ACUS was issued in December 2006.\77\ The
report addressed the following principal areas:
---------------------------------------------------------------------------
\77\Id.
---------------------------------------------------------------------------
Lthe agency adjudicatory process;
Lpublic participation in the rulemaking
process;
Lthe role of science in the regulatory
process;
Lthe utility of regulatory analysis and
accountability requirements; and
LCongressional, Presidential and judicial
review of agency rulemaking.
With respect to the Project's empirical research projects,
one was devoted to examining how agencies develop proposed
rules. Conducted by Professor William West of the Bush School
of Government and Public Services at Texas A&M University, this
research particularly focused on how the agencies manage the
rulemaking process during the pre-notice phase.\78\ It also
considered how and to what extent the public has the
opportunity to participate during this important time period
when proposed regulations are still being formulated.
---------------------------------------------------------------------------
\78\The results of this study were considered over the course of an
oversight hearing before the Subcommittee on Commercial and
Administrative Law marking the 60th anniversary of the Administrative
Procedure Act. The 60th Anniversary of the Administrative Procedure
Act: Where Do We Go From Here?: Hearing Before the Subcomm. on
Commercial and Administrative Law of the H. Comm. on the Judiciary,
109th Cong. (2006).
---------------------------------------------------------------------------
The second study examined the area of judicial review of
rulemaking. Over the years, there have been informal
conjectures that a significant portion of rules are ultimately
overturned by the courts. Conducted by Professor Jody Freeman
of Harvard Law School, this study reviewed 3,075 cases drawn
from an initial database of more than 10,000 cases issued over
a 9-year period.\79\
---------------------------------------------------------------------------
\79\The results of this study were considered over the course of a
legislative hearing before the Subcommittee on Commercial and
Administrative Law on H.R. 3564, the ``Regulatory Improvement Act of
2007.'' Regulatory Improvement Act of 2007: Hearing on H.R. 3564 Before
the Subcomm. on Commercial and Administrative Law of the H. Comm. on
the Judiciary, 110th Cong. (2007).
---------------------------------------------------------------------------
The third study, conducted by Professor Stuart
Brettschneider of the Maxwell School of Public Administration
of Syracuse University, examined how many science advisory
committees currently exist, how their members are selected, how
issues of neutrality and conflicts of interest are resolved,
and how issues are selected for review, among other matters.
Notwithstanding the fact that these studies were conducted
under the auspices of the Judiciary Committee with the
assistance of the Congressional Research Service (CRS),
experience with two of these studies ``was disappointing,''
according to CRS.\80\ With respect to Professor West's study on
public participation at the development stage of a rulemaking
proceeding, for example, most of the agencies were reluctant
provide information vital to the study. According to CRS,
Professor West's requests for information ``were often met with
reluctance and suspicion and his most valuable contacts with
knowledgeable officials were on deep background.''\81\
---------------------------------------------------------------------------
\80\Id.
\81\Id.
---------------------------------------------------------------------------
Based on that experience, CRS sought to encourage agency
cooperation with respect to a subsequent study by Syracuse
University's Maxwell School of Public Administration of science
advisory panels. This study would have determined, inter alia,
how many are there, how are members selected, how issues of
neutrality and conflict of interest are handled, and the impact
of advisory body recommendations on agencies decisionmaking. To
that end, CRS prepared letters of introduction for the
researchers from the Director of CRS and the Chairman and
Ranking Minority Member of this Subcommittee ``to assure agency
officials of their bona fides and neutral academic
purposes.''\82\ That effort, however, ``was of no avail and
entree to the agencies with the most advisory bodies, such as
Health and Human Services, `closed their doors,' refusing to
respond to e-mail surveys and requests for personal
interviews.''\83\ As a result, the study relied mostly on
public documents which provided few insights with which to
assess the workings of such important bodies.
---------------------------------------------------------------------------
\82\Id.
\83\Id.
---------------------------------------------------------------------------
If ACUS conducted these studies, it is less likely that the
agencies would fail to cooperate. As CRS noted:
This was not the usual ACUS experience where agency
cooperation was generally the rule. ACUS researchers
were often welcomed because the results of their
studies redounded to the benefit of the agency.\84\
---------------------------------------------------------------------------
\84\Id.
On September 18, 2007, Subcommittee on Commercial and
Administrative Law Ranking Member Chris B. Cannon (R-UT) (for
himself and with Subcommittee Chairwoman Linda Sanchez (D-CA))
introduced H.R. 3564, the ``Regulatory Improvement Act of
2007,'' which would authorize appropriations ACUS for four
additional years.
Hearings
The Committee's Subcommittee on Commercial and
Administrative Law held 1 day of hearings on H.R. 3564, on
September 19, 2007. Testimony was received from Professor Jody
Freeman, Harvard Law School; Mort Rosenberg, Congressional
Research Service; Curtis Copeland, Congressional Research
Service; and Professor Jeffrey S. Lubbers, Washington College
of Law, American University, with additional material submitted
by the American Bar Association, and correspondence from
Justices Stephen Breyer and Antonin Scalia.
Committee Consideration
On September 19, 2007, the Subcommittee on Commercial and
Administrative Law met in open session and ordered the bill,
H.R. 3564, favorably reported without amendment by voice vote,
a quorum being present. On October 10, 2007, the Committee met
in open session and ordered the bill, H.R. 3564, favorably
reported without amendment by voice vote, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 3564.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 3564, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 12, 2007.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3564, the
Regulatory Improvement Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Peter R. Orszag,
Director.
Enclosure.
cc:
Honorable Lamar S. Smith,
Ranking Member.
H.R. 3564--Regulatory Improvement Act of 2007
SUMMARY
H.R. 3564 would authorize the appropriation of about $11
million over fiscal years 2008 through 2011 for the
Administrative Conference of the United States, an independent
advisory agency that would assist the Federal Government in
developing and implementing regulations. Assuming appropriation
of the authorized amounts, CBO estimates that implementing the
bill would cost $11 million over the 2008-2012 period. Enacting
H.R. 3564 would not affect direct spending or revenues.
H.R. 3564 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of State, local, or tribal
governments.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 3564 is shown in the
following table. For this estimate, CBO assumes that the
amounts authorized by the bill will be appropriated near the
start of each fiscal year and that outlays will follow the
historical rate of spending for similar activities. The costs
of this legislation fall within budget function 750
(administration of justice).
By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
2008 2009 2010 2011 2012
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level 1 3 3 4 0
Estimated Outlays 1 3 3 4 *
------------------------------------------------------------------------
Note: * = less than $500,000.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
H.R. 3564 contains no intergovernmental or private-sector
mandates as defined in UMRA and would not affect the budgets of
State, local, or tribal governments.
ESTIMATE PREPARED BY:
Federal Costs: Mark Grabowicz (226-2860)
Impact on State, Local, and Tribal Governments: Melissa Merrell
(225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2940)
ESTIMATE APPROVED BY:
Theresa Gullo
Deputy Assistant Director for Budget Analysis
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
3564 would reauthorize the Administrative Conference of the
United States, which is credited with making recommendations
with respect to Federal agency regulatory processes that have
saved millions in taxpayer dollars.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 14 of the
Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 3564 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1 sets forth the short title
of the bill as the ``Regulatory Improvement Act of 2007.''
Sec. 2. Authorization of Appropriations. Section 2 amends
section 596 of title 5 of the United States Code to authorize
appropriations to the Administrative Conference of the United
States. For fiscal year 2008, section 2 authorizes $1 million.
For fiscal year 2009, section 2 authorizes $3.3 million. For
fiscal year 2010, section 2 authorizes $3.4 million. For fiscal
year 2011, section 2 authorizes $3.5 million. Section 2 further
provides that not more than $2,500 may be used in each fiscal
year for official representation and entertainment expenses for
foreign dignitaries.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) 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 italics, existing law in which no change
is proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 5--ADMINISTRATIVE PROCEDURE
* * * * * * *
SUBCHAPTER V--ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
* * * * * * *
[Sec. 596. Authorization of appropriations
[There are authorized to be appropriated to carry out this
subchapter not more than $3,000,000 for fiscal year 2005,
$3,100,000 for fiscal year 2006, and $3,200,000 for fiscal year
2007. 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.]
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.
* * * * * * *