[House Report 110-390]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-390

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



 
                   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.

           *       *       *       *       *       *       *


                                 
