[House Report 112-154]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-154

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



 
 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES REAUTHORIZATION ACT OF 
                                  2011

                                _______
                                

 July 19, 2011.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

       Mr. Smith of Texas, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 2480]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2480) to amend title 5, United States Code, to 
authorize appropriations for the Administrative Conference of 
the United States for fiscal years 2012, 2013, and 2014, and 
for other purposes, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     5
Committee Consideration..........................................     6
Committee Votes..................................................     6
Committee Oversight Findings.....................................     6
New Budget Authority and Tax Expenditures........................     6
Congressional Budget Office Cost Estimate........................     6
Performance Goals and Objectives.................................     8
Advisory on Earmarks.............................................     8
Section-by-Section Analysis......................................     8
Changes in Existing Law Made by the Bill, as Reported............     8

                             The Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Administrative Conference of the 
United States Reauthorization Act of 2011''.

SEC. 2. AUTHORIZATION OF APPROPRIATIONS.

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

``Sec. 596. Authorization of appropriations

  ``There are authorized to be appropriated to carry out this 
subchapter not more than $2,900,000 for fiscal year 2012, $2,900,000 
for fiscal year 2013, and $2,900,000 for fiscal year 2014. 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''.

                          Purpose and Summary

    The Administrative Conference of the United States 
(``ACUS'' or ``Conference'') is an independent, nonpartisan 
agency created to analyze the Federal administrative law 
process and to provide Congress, the President, the Judiciary, 
and Federal agencies with recommendations and guidance. The 
Conference's last authorization, passed in the 110th Congress, 
expires on September 30, 2011.\1\ Accordingly, H.R. 2480, the 
``Administrative Conference of the United States 
Reauthorization Act of 2011,'' extends the authorization of 
appropriations for the Conference through the end of Fiscal 
Year 2014.
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    \1\See ``Regulatory Improvement Act of 2007,'' 110 P.L. 290 (July 
30, 2008).
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                Background and Need for the Legislation

Brief History of the Conference, Its Mission, and Its Structure
    Responding to ``the steady expansion of the Federal 
administrative process'' and attendant ``concern over the 
efficiency and adequacy of department and agency 
procedures,''\2\ Congress established the Conference in 
1964.\3\ The Conference was created as a small public/private 
think tank 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[.]''\4\ In addition, the Conference promotes the 
``interchange among administrative agencies of information 
potentially useful in improving administrative procedure'' and 
``collect[s] information and statistics from administrative 
agencies and publish[es] such reports as it considers useful 
for evaluating and improving administrative procedure[.]''\5\ 
Congress also has assigned the Conference specific statutory 
responsibilities.\6\
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    \2\Exec. Order No. 10,934, 26 Fed. Reg. 3233 (Apr. 13, 1961).
    \3\See ``Administrative Conference Act of 1964,'' 88 P.L. 499 (Aug. 
30, 1964), codified at 5 U.S.C. Sec. Sec. 591-596. 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).
    \4\5 U.S.C. Sec. 594(1).
    \5\Id. Sec. 594(2)-(3).
    \6\See, e.g., ``Government in the Sunshine Act,'' 5 U.S.C. 
Sec. 552b(g); ``Equal Access to Justice Act,'' 5 U.S.C. Sec. 504(c)(1).
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    The Conference consists of 101 members: the Chairman, a 10-
member Council, and 90 other members.\7\ The President appoints 
the Chairman for a 5-year term and each Council member for 3-
year terms.\8\ Fifty of the 90 other members represent each 
independent Federal regulatory agency and executive department. 
The remaining 40 are ``members of the practicing bar, scholars 
in the field of administrative law or government, or others 
specially informed by knowledge and experience with respect to 
Federal administrative procedure.''\9\
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    \7\5 U.S.C. Sec. Sec. 593, 595.
    \8\5 U.S.C. Sec. 595.
    \9\5 U.S.C. Sec. 593.
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    Justice Scalia, who was Conference Chairman from 1972 to 
1974, has described the Conference as ``a worthwhile 
organization'' that offers ``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.''\10\ Former 
members include C. Boyden Gray, Counsel to President George 
H.W. Bush; Jack Quinn, Counsel to President Clinton; and, Sally 
Katzen, Administrator of the Office of Information and 
Regulatory Affairs (1993-99). Justice Stephen Breyer was an 
active member of the Conference from 1981 to 1994. Current 
members of the Council include Ronald A. Cass, Dean of Boston 
University School of Law (1990-2004); Theodore B. Olson, 
Solicitor General of the United States (2001-04); and Judge 
Patricia Wald, U.S. Court of Appeals for the District of 
Columbia Circuit (1979-99). Except for the Chairman, all 
members of the Conference serve without receiving any 
compensation.
---------------------------------------------------------------------------
    \10\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).
---------------------------------------------------------------------------
    For approximately 30 years, ACUS was a unique source of 
recommendations for improving Federal regulatory practices and 
procedures. During this time, the Conference promulgated 
approximately 200 recommendations, ``most of which have been at 
least partially implemented.''\11\ The Conference did so, 
moreover, at an exceptionally high benefit-cost ratio. For 
example, the Social Security Administration estimated that the 
Conference's recommendation to change that agency's appeals 
process would save about $85 million annually.\12\ By adopting 
a pilot program to implement the Conference's recommendations 
for the use of alternative dispute resolution, the Federal 
Deposit Insurance Corporation found that it saved $9 million in 
legal fees and expenses in just the first 18 months.\13\ 
Commenting on the Conference's track record of success, former 
White House Counsel C. Boyden Gray observed, ``as long as there 
is a need for regulatory reform, there is a need for something 
like the Administrative Conference.''\14\
---------------------------------------------------------------------------
    \11\ABA Administrative Procedure Database Site Specific Digital 
Texts: Recommendations of the Administrative Conference, available at 
http://www.law.fsu.edu/library/admin/acus/acustoc.html (last accessed 
July 14, 2011); see also Toni M. Fine, A Legislative Analysis of the 
Demise of the Administrative Conference of the United States, 30 Ariz. 
St. L.J. 19, 46 n.102 (Spring 1998) (``It has been estimated that 75% 
of the legislative proposals of the Administrative Conference were 
adopted in whole or in large part.'').
    \12\See White Paper, ``Cost Savings Generated by the Administrative 
Conference of the United States,'' at 3 (copy on file with the 
Committee), citing ``ACUS Report to House of Representatives: Questions 
Submitted For The Record By The Committee On Appropriations'' (Mar. 27, 
1995) (copy on file with ACUS).
    \13\See Id. at 4.
    \14\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).
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Lapse and Restoration of Funding
    Notwithstanding the Conference's history of success, 
appropriations lapsed in 1995. Several factors appear to have 
led to this lapse.\15\ One cause may have been the Conference's 
low profile in Congress.\16\ Some have suggested that ACUS 
simply failed to survive budget-cutting times. Others have 
pointed to a perception that the Conference's functions could 
be performed elsewhere in the Federal Government, such as at 
the Office of Management and Budget.
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    \15\See generally Fine, note 11 supra.
    \16\See Marshall J. Breger, The Administrative Conference of the 
United States: A Quarter Century Perspective, 53 U. Pitt. L. Rev. 814, 
846 (1992) (``Beyond 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 and its work]'').
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    Although funding lapsed, the statute creating ACUS was not 
repealed; Congress even continued to give ACUS responsibilities 
as if it were not dormant.\17\ Responding to continued 
bipartisan support for its prior work, Congress reauthorized 
ACUS in 2004 and again in 2008.\18\ The 2008 reauthorization 
bill was introduced by former Rep. Chris Cannon (R-UT), then 
Ranking Member of the Subcommittee on Commercial and 
Administrative Law, with Rep. Linda Sanchez (D-CA), then Chair 
of the Subcommittee on Commercial and Administrative Law, as an 
original co-sponsor. Current Chairman Lamar Smith (R-TX) also 
co-sponsored the 2008 legislation.
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    \17\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).
    \18\``Federal Regulatory Improvement Act of 2004,'' 108 P.L. 401 
(Oct. 30, 2004); ``Regulatory Improvement Act of 2007,'' 110 P.L. 290 
(July 30, 2008).
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    The Conference's new chairman, Paul R. Verkuil, was 
confirmed by the Senate on March 3, 2010, and sworn into office 
on April 6, 2010. The Conference's current authorization will 
expire at the end of this fiscal year; the Conference is 
currently authorized at $3.2 million annually.\19\ On July 7, 
2011, the House Appropriations Committee reported legislation 
appropriating $2.608 million for the Conference in Fiscal Year 
2012.\20\ The Conference was appropriated $1.5 million for 
Fiscal Year 2009, $1.5 million for Fiscal Year 2010, and $2.75 
million for Fiscal Year 2011.\21\
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    \19\See ``Regulatory Improvement Act of 2007,'' 110 P.L. 290 (July 
30, 2008).
    \20\See H.R. 2434, 112th Cong., Title V (2011).
    \21\``Omnibus Appropriations Act, 2009,'' 111 P.L. 8, Title V (Mar. 
11, 2009); ``Consolidated Appropriations Act, 2010,'' 111 P.L. 117, 
Title V (Dec. 16, 2009); ``Department of Defense and Full-Year 
Continuing Appropriations Act, 2011,'' 112 P.L. 10, Sec. 1541 (Apr. 15, 
2011).
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The Need for H.R. 2480
    After more than a decade of dormancy, ACUS has only just 
begun to operate at full capacity. Chairman Verkuil is a 
respected scholar of administrative law and a good choice to 
lead the Conference. ACUS is in a position to do much good work 
vis-a-vis regulatory reform and at relatively little cost to 
the taxpayer.
    Regulatory reform is a high priority of the Judiciary 
Committee in the 112th Congress. This effort builds on work 
begun in the 109th Congress by the Subcommittee on Commercial 
and Administrative Law, whose Interim Report regarding 
potential administrative law reforms contained numerous 
recommendations for legislative proposals and suggested areas 
for further research and analysis that ACUS could perform.\22\
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    \22\Interim Report on the Administrative Law Process and Procedure 
Project for the 21st Century, Subcomm. on Commercial and Administrative 
Law, House Comm. on the Judiciary, 109th Cong. (Comm. Print No. 10, 
Dec. 2006).
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    After resuming operations in April 2010, ACUS is 
supervising a full program of applied research to promote its 
statutory goals. Currently, ACUS is conducting more than 10 
research projects, including two involving electronic 
rulemaking (or E-Rulemaking), which are intended to improve 
public participation in the rulemaking process and to develop 
best practices among agencies. ACUS has also initiated a study 
aimed at identifying and recommending ways to eliminate 
purposeless procedural rules that result in the non-merit-based 
dismissal of claims by or against the Federal Government. With 
regard to the use of science in the regulatory process, ACUS is 
studying the effect of judicial standards in civil litigation 
on the work of administrative agencies, and the potential use 
of science advisory panels.
    One ongoing initiative of ACUS is to encourage agencies to 
utilize video hearings more fully. The Social Security 
Administration has found that its own limited use of video 
hearings is saving the agency approximately $59 million per 
year. At its June 2011 plenary session, ACUS adopted a 
recommendation to identify best practices and considerations 
for video hearings and urging more widespread adoption of video 
hearings by agencies.\23\ The Conference also is examining 
possibilities of reducing backlogs of Freedom of Information 
Act requests through alternative dispute resolution techniques.
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    \23\See Administrative Conference Recommendation 2011-4, ``Agency 
Use of Video Hearings: Best Practices and Possibilities for Expansion'' 
(June 17, 2011), available at http://www.acus.gov/wp-content/uploads/
downloads/2011/06/Recommendation-2011-4-Video-Hearings1.pdf (last 
accessed July 15, 2011).
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    The proposed legislation, H.R. 2480, as amended by voice 
vote, authorizes the Conference at $2.9 million annually for 
Fiscal Years 2012, 2013 and 2014. This is an appropriate 
authorization level under the current budgetary and economic 
circumstances. Given the Conference's record of producing 
Federal savings many times greater than its own appropriations, 
the Committee believes defunding ACUS altogether would be 
``penny-wise and pound-foolish.'' The amount authorized 
represents almost a 10% cut from the Conference's current 
authorization level. This is a prudent reduction that will not 
undermine the Conference's ability to perform its core mission 
of regulatory reform.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
2480.

                        Committee Consideration

    On July 14, 2011, the Committee met in open session and 
ordered the bill, H.R. 2480, favorably reported with an 
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. 2480.

                      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. 2480, 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, July 15, 2011.
Hon. Lamar Smith, 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. 2480, the 
Administrative Conference of the United States Reauthorization 
Act of 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.

Enclosure
H.R. 2480--Administrative Conference of the United States 
        Reauthorization Act of 2011.

                                SUMMARY

    H.R. 2480 would authorize the appropriation of $2.9 million 
annually over the 2012-2014 period for the Administrative 
Conference of the United States, an independent advisory agency 
that would assist the Federal Government in developing and 
implementing improvements for the regulatory process. Assuming 
appropriation of the authorized amounts, CBO estimates that 
implementing the bill would cost about $9 million over the 
2012-2016 period. Pay-as-you-go procedures do not apply to this 
legislation because it would not affect direct spending or 
revenues.
    H.R. 2480 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. 2480 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
----------------------------------------------------------------------------------------------------------------
                                                           2012     2013     2014     2015     2016    2012-2016
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Authorization Level                                           3        3        3        0        0            9

Estimated Outlays                                             3        3        3        *        0            9
----------------------------------------------------------------------------------------------------------------
Note: * = less than $500,000.

                     PAY-AS-YOU-GO CONSIDERATIONS:

    None.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 2480 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
Impact on State, Local, and Tribal Governments: Melissa Merrell
Impact on the Private Sector: Paige Piper/Bach

                         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. 
2480 extends the authorization of appropriations through the 
end of Fiscal Year 2014 for the Administrative Conference of 
the United States, which is credited with making 
recommendations regarding Federal agency regulatory processes 
that have saved millions in taxpayer dollars.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 2480 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) 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 Act as the ``Administrative Conference of the United 
States Reauthorization Act of 2011.''
    Sec. 2. Authorization of Appropriations. Section 2 
authorizes $2.9 million in funding for the Conference for FYs 
2012, 2013 and 2014. Section 2 also limits the amount that may 
be made available in each fiscal year for official 
representation and entertainment expenses for foreign 
dignitaries to not more than $2,500.

         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 $3,200,000 for fiscal year 2009, 
$3,200,000 for fiscal year 2010, and $3,200,000 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.]

Sec. 596. Authorization of appropriations

  There are authorized to be appropriated to carry out this 
subchapter not more than $2,900,000 for fiscal year 2012, 
$2,900,000 for fiscal year 2013, and $2,900,000 for fiscal year 
2014. 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.