[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
ADMINISTRATIVE LAW, PROCESS AND PROCEDURE PROJECT FOR THE 21ST CENTURY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
NOVEMBER 14, 2006
__________
Serial No. 109-152
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
CHRIS CANNON, Utah Chairman
HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio CHRIS VAN HOLLEN, Maryland
MARK GREEN, Wisconsin JERROLD NADLER, New York
J. RANDY FORBES, Virginia DEBBIE WASSERMAN SCHULTZ, Florida
LOUIE GOHMERT, Texas
Raymond V. Smietanka, Chief Counsel
Susan A. Jensen, Counsel
Brenda Hankins, Counsel
Mike Lenn, Full Committee Counsel
Stephanie Moore, Minority Counsel
C O N T E N T S
----------
NOVEMBER 14, 2006
OPENING STATEMENT
Page
The Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Chairman, Subcommittee on Commercial and
Administrative Law............................................. 1
The Honorable Melvin L. Watt, a Representative in Congress from
the State of North Carolina, and Ranking Member, Subcommittee
on Commercial and Administrative Law........................... 3
WITNESSES
Morton Rosenberg, Esq., Specialist in American Public Law,
Congressional Research Service, Washington, DC
Oral Testimony................................................. 5
Prepared Statement............................................. 9
Curtis Copeland, Ph.D., Specialist in American National
Government, Congressional Research Service, Washington, DC
Oral Testimony................................................. 19
Prepared Statement............................................. 22
T.J. Halstead, Esq., Legislative Attorney, American Law Division,
Congressional Research Service, Washington, DC
Oral Testimony................................................. 37
Prepared Statement............................................. 39
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Chris Cannon, a
Representative in Congress from the State of Utah, and
Chairman, Subcommittee on Commercial and Administrative Law.... 2
APPENDIX
Material Submitted for the Hearing Record
Letter from the American Bar Association, submitted by the
Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Chairman, Subcommittee on Commercial and
Administrative Law............................................. 55
Memorandum from Morton Rosenberg, Specialist in American Public
Law and T.J. Halstead, Legislative Attorney, American Law
Division, Congressional Research Service, to the Subcommittee
on Commercial and Administrative Law........................... 95
ADMINISTRATIVE LAW, PROCESS AND PROCEDURE PROJECT FOR THE 21ST CENTURY
----------
TUESDAY, NOVEMBER 14, 2006
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 3:27 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Chris
Cannon (Chairman of the Subcommittee) presiding.
Mr. Cannon. I would like to apologize to the witnesses for
the late start. The votes, and people chatting in the halls,
make the gauntlet from the Capitol here virtually impassable.
So I apologize to you, and I appreciate your patience and look
forward to your testimony.
Today's hearing is a fitting way to bring to a close the
109th Congress. The Committee on the Judiciary, as one of its
very first items of business for this Congress, authorized the
Subcommittee on Commercial and Administrative Law to undertake
a comprehensive study of administrative law, process and
procedure on January 26, 2005, as part of the Committee's
oversight plan for the 109th Congress.
This hearing represents the culmination of that 2-year
study known as the Administrative Law, Process and Procedure
Project for the 21st Century. Over the course of this project,
the Subcommittee conducted six hearings, participated in three
symposia, and sponsored several empirical studies.
Topics examined as part of this project included the
adjudicatory process of agencies; the role of public
participation in rulemaking; the process by which agency
rulemaking is reviewed by the Congress, the President, and the
Judiciary; and the role of science in the regulatory process.
From its very inception, this project has been a thoroughly
bipartisan and nonpartisan undertaking. To that end, I want to
thank the Subcommittee Ranking Member, Mr. Watt for his active
and unwavering support throughout this undertaking, and point
out that I look forward to working with him in whichever
chairmanship he assumes in the next Congress.
It is also important to remember that this project was
inspired and initiated by the House Judiciary Chairman, Jim
Sensenbrenner. The project is a testament to the Chairman's
deep and long-standing commitment to improving the law and
procedure in general, and, in particular, to improving the
administrative and rulemaking process. Accordingly, we thank
the Chairman for his insight and leadership in allowing the
Subcommittee to spearhead this endeavor.
It is also appropriate at this time to extend our sincere
thanks to the Congressional Research Service and its director,
Dan Mulhollan, for devoting so many critical resources--
physical, financial, and human--to this project.
The three witnesses who appear today on behalf of CRS,
namely, Mort Rosenberg, Curtis Copeland and T.J. Halstead,
deserve much of the credit for playing such a major role in
guiding the project and ensuring its success.
It is my sincere hope that the findings and recommendations
of the project's report, which will be issued later this month,
will not just sit on the proverbial shelf to gather dust.
Rather, it should become a valuable legacy for the next
Congress.
Let me cite just one example. One of the most important
legacies of the project is that it underscored the absolute and
urgent need to have a permanent, neutral, nonpartisan think
tank that can dispassionately examine administrative law and
process and that can make credible recommendations for reform.
Clearly, I am referring to the need to reactivate the
Administrative Conference of the United States. Although
reauthorized in the 108th Congress with overwhelming bipartisan
support, the Conference remains to be funded.
The extremely nominal investment to fund ACUS would redound
in billions of savings in taxpayer dollars. Accordingly, I
encourage our Subcommittee Members on both sides of the aisle
to continue to pursue this very worthy cause in the waning days
of this Congress, and, if that fails, in the next Congress.
[The prepared statement of Mr. Cannon follows:]
Prepared Statement of the Honorable Chris Cannon, a Representative in
Congress from the State of Utah, and Chairman, Subcommittee on
Commercial and Administrative Law
Today's hearing is a fitting way to bring to a close the 109th
Congress. The Committee on the Judiciary--as one of its very first
items of business for this Congress--authorized the Subcommittee on
Commercial and Administrative Law to undertake a comprehensive study of
administrative law, process and procedure on January 26, 2005 as part
of the Committee's Oversight Plan for the 109th Congress.
This hearing represents the culmination of that two-year study,
known as the Administrative Law, Process and Procedure Project for the
21st Century. Over the course of this Project, the Subcommittee
conducted six hearings, participated in three symposia, and sponsored
several empirical studies.
Topics examined as part of this Project included the adjudicatory
process of agencies; the role of public participation in rulemaking;
the process by which agency rulemaking is reviewed by the Congress, the
President, and the judiciary; and the role of science in the regulatory
process.
From its very inception, this Project has been a thoroughly
bipartisan and nonpartisan undertaking. To that end, I thank the
Subcommittee Ranking Member, Mr. Watt, for his active and unwavering
support throughout this undertaking.
It is also important to remember that this Project was inspired and
initiated by House Judiciary Chairman Jim Sensenbrenner. The Project is
a testament to the Chairman's deep and longstanding commitment to
improving the law and procedure in general, and, in particular, to
improving the administrative and rulemaking process. Accordingly, we
thank the Chairman for his insight and leadership in allowing the
Subcommittee to spearhead this endeavor.
It is also appropriate at this time to extend our sincere thanks to
the Congressional Research Service and its Director, Dan Mulhollan, for
devoting so many critical resources--physical, financial, and human--to
this Project. The three witnesses who appear today on behalf of CRS,
namely, Mort Rosenberg, Curtis Copeland, and T.J. Halstead deserve much
of the credit for playing such a major role in guiding the Project and
ensuring its success.
It is my sincere hope that the findings and recommendations of the
Project's report, which will be issued later this month, will not just
sit on the proverbial shelf to gather dust. Rather, it should become a
valuable legacy for the next Congress.
Let me cite just one example. One of the most important legacies of
the Project is that it underscored the absolute and urgent need to have
a permanent, neutral, nonpartisan think-tank that can dispassionately
examine administrative law and process and that can make credible
recommendations for reform.
Clearly, I am referring to the need to reactivate the
Administrative Conference of the United States. Although reauthorized
in the 108th Congress with overwhelming bipartisan support, the
Conference remains to be funded.
The extremely nominal investment to fund ACUS would redound in
billions of savings in taxpayer dollars. Accordingly, I encourage our
Subcommittee Members--on both sides of the aisle--to continue to pursue
this very worthy cause in the waning days of this Congress and, if that
fails, in the next Congress.
Mr. Cannon. I now turn to my colleague Mr. Watt, the
distinguished Ranking Member--soon to be more distinguished--of
the Subcommittee, and ask him if he has any opening remarks.
Mr. Watt. Thank you, Mr. Chairman. I assure you that being
a Chair or a Ranking Member is not, by definition, more
distinguishing or less distinguishing.
Mr. Cannon. I agree with the gentleman. I hope that I don't
lose much stature in the process. It would be hard for you to
gain more stature because you're a person of great
accomplishments and distinction already.
Mr. Watt. It does feel good.
Mr. Cannon. Now let's not rub it in, okay?
Mr. Watt. I will just, if it is all right, Mr. Chairman,
ask unanimous consent to revise and extend my remarks and
submit a statement for the record, and will make a very brief
comment about this hearing because I think it is important for
us to do the follow-up. And hopefully whoever is in charge of
this Subcommittee and Committee next term of Congress will not
allow this to go unnoticed, and the package of recommendations
will be implemented.
We are in thorough need of reform in Government agencies
and the administrative procedures since we haven't had a major
reform in over a decade, when we had the National Performance
Review and the second Clinton/Gore term began to focus on some
of these issues, so I think this is important. The Chair has
put it at the top of his agenda, and I hope some Chair will put
it at the top of their agenda in the next term of Congress if
nothing is done this year.
That having been said, Mr. Chairman, I would ordinarily
yield back, but if this is to be the last meeting of our
Subcommittee in this term of Congress, I think I would be
remiss not to express my gratitude to you and my high
admiration for the manner in which you have conducted this
Subcommittee and consulted with me as the Ranking Member. It's
the kind of consultation that I think is important, and that
the American people are saying they desire to have Republicans
and Democrats have. And from my part, you can be assured
wherever I am, as a Chair, it will be my intention to exercise
the same kind of consultation as we go forward, either on this
Subcommittee or on whatever Subcommittee I'm on, on Judiciary
or Financial Services, which I may also be eligible for a
Subcommittee on.
So you've set a good model for us and set a high standard
for bipartisanship and consultation and respect and friendship,
and I just publicly want to express my thanks to you for that.
And with that, I'll yield back the balance of my time.
Mr. Cannon. I want to thank the gentleman for those kind
remarks. I can't imagine any kinder thing being said about me,
except possibly that I'm a good father, but you don't know my
family, so that's beyond your purview. But thank you very much
for those kind comments.
And I would just point out that America has evolved, it's
grown in the last 10 or 12 or 15 years, and I think the next
Congress is going to be an opportunity to focus on what America
needs and not in a partisan fashion. There are many, many
issues that are truly nonpartisan that are important, and I
look forward to working with the gentleman on many of those
issues.
Without objection, the gentleman's entire statement will be
placed in the record. Hearing no objection, so ordered.
[The information referred to was not available.]
Mr. Cannon. I ask unanimous consent to include a letter
from the American Bar Association in the prehearing record.
Hearing no objection, so ordered.
[The information referred to can be found in the Appendix.]
Mr. Cannon. Without objection, all Members may place their
opening statements in the record at this point. Hearing no
objection, so ordered.
Without objection, the Chair will be authorized to declare
recesses of the hearing at any point. Hearing no objection, so
ordered.
I ask unanimous consent that the Members have 5 legislative
days to submit written statements from the conclusion of
today's hearing record. Hearing no objection, so ordered.
I am now pleased to introduce today's witnesses for today's
hearing.
Our first witness is Mort Rosenberg, a specialist in
American public law in the American Law Division at the CRS. In
all matters dealing with administrative law, Mort has been the
Judiciary Committee's right hand. For more than 25 years he's
been associated with CRS. Prior to his service at that office,
he was chief counsel at the House Select Committee on
Professional Sports, among other public service positions he's
held. In addition to these endeavors, Mort has written
extensively on the subject of administrative law. He obtained
his undergraduate degree from New York University and his law
degree from Harvard Law School, and he has been a remarkable
help us to through this process, and I want to thank you for
that, Mr. Rosenberg.
Our second witness is Dr. Curtis Copeland, a specialist in
American Government at CRS. Dr. Copeland's expertise,
appropriately relevant to today's hearing, is Federal
rulemaking and regulatory policy. In addition to this area of
expertise, Dr. Copeland also heads the Government and Finance
Divisions, Executive and Judiciary Section at CRS, which covers
issues ranging from Federal financial management to the
appointment of Supreme Court Justices. Prior to joining CRS, he
held a variety of positions at the Government Accountability
Office over a 23-year period. Dr. Copeland received his Ph.D.
From the University of North Texas.
Our final witness is T.J. Halstead, a legislative attorney
in the American Law Division of CRS, and in this capacity is
one of CRS's primary analysts on administrative law and
separation of powers issues. Before joining CRS in 1998, Mr.
Halstead received both his undergraduate and law degrees from
the University of Kansas.
We understand and appreciate that as CRS staff, your
testimony will be confined to technical, professional and
nonadvocative aspects of the hearing subject matter pursuant to
congressional guidelines on objectivity and nonpartisanship.
I extend to each of you my warm regards and appreciation
for your willingness to participate in today's hearing.
In light of the fact that your written statements will be
included in the hearing record, I request that you limit your
oral remarks to 5 minutes. Accordingly, please feel free to
summarize or highlight the salient points of your testimony.
You will note that we have a lighting system that starts
with a green light. After 4 minutes it turns to a yellow light,
and then at 5 minutes it turns to a red light. It is my habit
to tap the gavel or a pencil at 5 minutes. We would appreciate
it if you would finish up your thoughts within that time frame.
We don't want to cut people off, and certainly not in the
middle of your thinking, so it's not a hard red light or a hard
termination.
After you've presented your remarks, the Subcommittee
Members, in the order they arrive, will be permitted to ask
questions of the witnesses subject to the 5-minute limit. I
suspect that won't be a real long event.
Let me just say we welcome Mr. Chabot, who has joined us
here on this end.
I would ask the witnesses to rise and raise your hand to
take the oath.
[Witnesses sworn.]
Mr. Cannon. The record should reflect that all the
witnesses answered in the affirmative.
Mr. Rosenberg, would you now proceed with your testimony.
TESTIMONY OF MORTON ROSENBERG, ESQ., SPECIALIST IN AMERICAN
PUBLIC LAW, CONGRESSIONAL RESEARCH SERVICE, WASHINGTON, DC
Mr. Rosenberg. Thank you, Mr. Chairman. Thank you, Mr.
Watt. I just want to reiterate that I am honored not only to
appear before you again, but also for giving me the opportunity
to do the kind of work we've been doing for the last 2 years.
It's been an education for me, and it's been a fruitful
endeavor to put together, you know, symposia, be at these
hearings, and to generally support the work of this Committee
in identifying emerging issues.
Today, my CRS colleagues Curtis Copeland and T.J. Halstead
and I will try to brief you on the status of the Process and
Procedure Project and what might be done in the future. My
testimony will focus on the potential significance of the
reactivation of ACUS, and one of the seven elements of the
project, the Congressional Review Act. Curtis and T.J. Will
discuss the other six elements of the study.
With respect to ACUS, I've always thought that in this part
of the project there was, you know--of course it's important
for it to be the reactivation that occurred in 2000--the
reauthorization that occurred in 2004 was important, and that
the funding and ultimate reactivation of ACUS was not important
at that moment. But at some particular point--and our
experience with our studies underlines the fact that there is a
need for an organization like ACUS, which provided nonpartisan,
nonbiased, comprehensive, practical and cost-effective
assessments and guidance on a wide range of agency processes,
procedures and practices, a history that has been well
documented before this Committee.
What struck me as important was one of the study projects
that we commissioned, the one which Professor West conducted
with regard to participation in the--public participation in
the prenotice and comment period. His excellent study was, you
know, hindered a great deal by the fact that, as his testimony
before this Committee revealed, that his entree to the
Committee, to the agencies that he was attempting to get
information and to do his assessments was met with
recalcitrance and suspicion. Generally, the best information
that he got was through informal interviews that were in, you
know, deep, you know, background from knowledgeable officials
of these agencies.
That was not true during the heyday of the Administrative
Conference. Its reputation of credibility, of nonpartisanship,
and expertise opened doors when an ACUS-sponsored researcher
came to the door because there was a certain amount of self-
interest involved. The reputation of ACUS as an entity that
would provide expert guidance redounded, and the kinds of
studies and suggestions for the agencies to--you know, to
change their practices or to undertake new ways of
decisionmaking redounded to their benefit so that there was a
self-interest involved in having an ACUS study that could help
that agency. So that reactivation, you know, that could be
looked to as an extraordinarily important aspect to it.
I also enjoyed very much the empirical--the symposia that
we conducted, as well as the--one of the more symposia--at
least, and most interesting was the science and rulemaking
symposium, from which, after questioning some of the members of
the panel on advisory bodies, we discovered that nobody knew
how many science advisory bodies were out there. Nobody knew
what the selection process was--these were among experts in
this field--and as a result of that revelation in itself--and
the panels at that science symposia were quite excellent--we
commissioned a study to develop a taxonomy of science advisory
committees in the Federal Government, a study that will be
completed sometime next June, and we'll present it to this
Committee, which will tell us, you know, how many there are,
how they're selected, how they're vetted, how they deal with
conflicts of interest and various important information about
these advisory committees that will allow Congress to decide
whether any kinds of legislative actions needs more regulating.
The symposium we held on September 11 on Presidential,
Congressional and Judicial Control of Rulemaking was also one
that I would recommend to scholars, Congresspeople, everybody
to read the transcript. One of the themes and one of the things
that came across very well was the constitutional dimension of
the study, or parts of the study, that you are engaged in. And
I will talk about that, you know, in a few moments.
I chaired the panel on the Congressional Review Act, and of
course I've spoken about the Congressional Review Act with you
at one of your hearings. The panel was interesting, revealing,
and I'd like to say a few words about the Congressional Review
Act and where we could go from here.
Congress' stated objective of setting in place an effective
mechanism to keep it informed about the rulemaking activities
of Federal agencies which would allow for expeditious
congressional review and possible nullification of particular
rules may not have been met. That was the clear result of the
testimony there and the discussion. Statistically, to date,
over 43,000 rules have been reported to Congress, including
over 630 major rules, and only one, the Department of Labor's
ergonomics standard, was disapproved in 2001. Many analysts
believe that the negation of the ergonomics rule was a singular
event, not likely to be repeated.
Witnesses at your hearing pointed to structural defects in
the mechanism, most commonly the lack of a screening mechanism
to identify rules that warranted review by jurisdictional
Committees, and then expedited consideration process in the
House--the lack of an expedited consideration process in the
House that complemented the Senate's procedures, as well as
numerous interpretive difficulties of key statutory provisions
that seemed to deter use of the mechanism.
One witness at the hearing, Todd Gaziano of the Heritage
Foundation, while agreeing with the structural critique,
suggested that the law's presence and the threat of a filing of
a joint resolution of disapproval had had a degree of influence
that could not be ignored. He agreed, however, that the framers
of the legislation anticipated that the mechanism would provide
an incentive for legislators to insist on institutional
accountability as a response to criticisms of Congress that it
had been delegating vast amounts of lawmaking authority to
executive agencies without maintaining countervailing checks on
the exercise of that authority.
There was also recognition among the witnesses that the
establishment of a joint Committee that would screen rules,
recommend action to jurisdictional Committees in both Houses
could provide the coordination and information that were
necessary to inform the bodies sufficiently and in a timely
manner and nature of such to take appropriate legislative
actions.
The balanced nature of such a joint Committee and its lack
of substantive authority appeared to provide a way to allay
political concerns over turf intrusions. The House
Parliamentarian, John B. Sullivan, agreed that such a joint
Committee was a viable construct.
A further question raised at the March hearing, and again
at the panel discussion of the Congressional Review Act in the
September 11th symposium, was whether it was necessary to have
all the rules reported and reviewed. It was suggested that only
major rules need be reported, which would save legislative
time, and also money; and that the many rules, the thousands
that have come before Congress, simply aren't of a stature that
needs to be addressed by a jurisdictional Committee.
There was no consensus, however, among the panelists as to
who or how a major rule would be defined. There was an
agreement among the panelists that the nonsubstantive advisory
joint Committee would be a politically viable screening
mechanism, but not the same unanimity with respect to an
expedited House consideration procedure. Former House
Parliamentarian, Charles Johnson, explained that it was likely
that the lack of a parallel House expedited procedure in the
CRA was purposeful. He explained that the House leadership
believes that the House is a majoritarian institution, and that
expedited procedures undermines majority rule.
One panelist, Professor Jack Beermann, expressed a view
that making it easier for Congress to overturn an agency rule
may come at a very high political cost. He asks the question,
``does Congress really want to be in the position where it is
perceived that everything an agency does is their
responsibility, since they've taken it on and reviewed it under
this mechanism? Do they want to have that perception?'' He
concluded, ``I think that this may just increase the blaming
opportunities for Congress.''
Professor Beermann also stated the belief that--similar to
that expressed by Todd Gaziano, that the current CRA has the
effect of forcing the executive to negotiate, which is a
satisfactory result, in his view. I don't think there is a lot
of empirical evidence to support those comments, but it is a
view that's prevalent out there.
Proponents of the CRA concept, however, argue that it
reflects a congressional recognition of the need to enhance its
own political accountability, and thereby strengthening the
perception of legitimacy and competence of the administrative
rulemaking process.
It is also said to rest on an understanding that broad
delegations of rulemaking authority to agencies are necessary
and appropriate, and will continue for the indefinite future.
The Supreme Court's most recent rejection in 2001 in the
Whitman case of an impending revival of the so-called
nondelegation doctrine is impetus for Congress to consider
several facets and ambiguities of the current mechanism.
Absent congressional review, it is argued, current
instances of avoidance in notice and comment, rulemaking, lack
of full reporting of covered rules to be submitted under the
CRA, and increasing Presidential control over the rulemaking
process will likely continue. Professor Paul Verkuil, who was
on the CRA panel, was a particularly strong voice for this view
at the symposium.
Let me conclude by observing that much of the
Administrative Law Project has an important constitutional
dimension, raising the crucial question of where ultimate
control of agency decisionmaking authority lies in our
constitutional scheme of separated, but balanced powers. The
tension and conflicts of this scheme were well brought forth
and voiced in CRS's symposium on Presidential, Congressional
and Judicial Control of Rulemaking.
There can be little doubt as to Congress' authority to make
the determinative decisions with respect to the wisdom of any
particular agency rulemaking, and to prescribe the manner in
which congressional review will be conducted. Whether or not to
do so is a political decision, a hard one with many practical
consequences.
I thank you, and I'll welcome questions.
Mr. Cannon. Thank you, Mr. Rosenberg.
[The prepared statement of Mr. Rosenberg follows:]
Prepared Statement of Morton Rosenberg
Mr. Cannon. The Chair would like to recognize Mr. Coble,
the gentleman from North Carolina, who has joined us, and also
the gentleman from Massachusetts Mr. Delahunt.
In deference to your experience, we went beyond the 5-
minute rule. When we made that decision, we had only a couple
of us here, but if I could remind the other two questions--we
will probably have time for questioning, but I would like to
have the panel to have the opportunity to question, so I will
probably tap at 5 minutes.
Thank you, Mr. Rosenberg.
And Dr. Copeland, you are now recognized.
TESTIMONY OF CURTIS COPELAND, PH.D., SPECIALIST IN AMERICAN
NATIONAL GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE,
WASHINGTON, DC
Mr. Copeland. Thank you very much.
Mr. Chairman, Members of the Subcommittee, thank you for
inviting me here today to discuss the Administrative Law
Project. My testimony will focus on three elements of that
project, the Presidential review of rulemaking, the utility of
regulatory analysis requirements and the role of science in the
regulatory process.
During the past 25 years, the epicenter of Presidential
review has been a small office within OMB, the Office of
Information and Regulatory Affairs, or OIRA. OIRA's role in
reviewing agency rules has changed with the changes in the
Presidency. The current Bush administration has reasserted
OIRA's gatekeeper role that was prominent during the Reagan
administration.
Although OIRA's reviews have become somewhat more
transparent in recent years, it is still far from a transparent
process. For example, OIRA has said that it has its greatest
impact before rules are formally submitted to it for review,
but has instructed agencies not to disclose those changes to
the public.
OIRA also remains highly controversial. Some public
interests groups assert that OIRA review has been a one-way
rachet that only weakens and delays rules, while business
groups contend that OIRA has not been assertive enough in
reining in agencies.
A number of very interesting studies have recently examined
the impact that OIRA has on rulemaking, but many issues remain
that either Congress or ACUS may want to address. Those issues
include whether Congress should codify Presidential review,
whether independent regulatory agencies' rules should be
subject to review, and what rules should govern OIRA's contacts
with outside parties during the review process.
OIRA also has been a key player in implementing regulatory
analysis requirements established by Congress and the
President. Many of those requirements were developed in the
1980's and `90's in an effort to ensure that the benefits of
regulation were worth the compliance cost. For example, before
publishing any proposed or final rule, the Regulatory
Flexibility Act of 1980 requires agencies to prepare an
analysis describing the rule's effects on small businesses and
what efforts the agency took to avoid those effects.
The Unfunded Mandates Reform Act of 1995 has similar
requirements to protect the interests of State and local
governments. Executive Order 12866 requires covered agencies to
prepare a cost/benefit analysis for any rule having a $100
million impact on the economy. However, numerous studies
indicate that these requirements have often been less effective
than their advocates have hoped. For example, agencies can
avoid a reg flex analysis if they certify that the rule in
question does not have a ``significant economic impact'' on a
``substantial number of small entities.'' And agencies have
certified rules, even when they cost businesses thousands of
dollars each year in compliance costs.
In other cases, new requirements have been linked to old
ones that have been viewed as ineffective. For example, the
requirements that agencies develop compliance guides to help
businesses and others comply with the regulations and that
agencies reexamine their rules every 10 years are not triggered
if the agency certifies those rules don't have a significant
impact on small entities.
After more than 25 years of experience with these analytic
requirements, we know surprisingly little about their
effectiveness or how they can be improved. Issues that Congress
or ACUS could explore include the extent to which the
requirements contribute to what is called the ``ossification''
of the rulemaking process; the accuracy of agency's prerule
estimates of cost and benefits; and whether the myriad of
requirements should be made consistent and codified in one
place.
The role of science in rulemaking has become highly
controversial in recent years, with observers from both the
left and the right suggesting that ``sound science'' has been
given insufficient weight in the development of regulatory
standards. The May 2006 symposium that Mort mentioned on this
topic featured panelists discussing such issues as the role of
science advisory panels, science and judicial review, and
Government agencies' capabilities. A panel that I moderated
focused on OIRA's recent science-related initiatives, including
recent bulletins on peer review and risk assessment.
While OIRA's peer review bulletin was initially very
controversial, with some science groups and others asserting
that it could make peer review vulnerable to political
manipulation or controlled by regulated entities. As a result
of those concerns, OIRA later published a substantially revised
version of the bulletin that gave agencies more discretion,
while reserving some for itself.
OIRA's January 2006 proposed bulletin on risk assessment is
currently undergoing peer review by the National Academy of
Sciences. In May 2006, nine Federal agencies testified at a
public meeting on that bulletin. Some agencies said that the
scope of this risk assessment bulletin is so broad that doctors
and the public may not receive timely warnings about potential
health risks posed by medical devices and drugs like Vioxx.
Other agencies were more supportive of the risk bulletin, but
still proposed certain changes.
Possible areas for further research in this area include
whether the Information Quality Act should be amended to
provide for judicial review, how advisory panels can be
constructed to ensure that they're unbiased, and whether
governmentwide standards for peer review and risk assessment
are needed and working as intended. Objective and rigorous
examinations of all of these administrative law issues by
Congress or ACUS could prove to be a wise investment in the
long term.
Mr. Chairman, that concludes my prepared statement. I'd be
happy to answer any questions.
Mr. Cannon. Thank you, Dr. Copeland.
[The prepared statement of Mr. Copeland follows:]
Prepared Statement of Curtis W. Copeland
Mr. Cannon. Mr. Halstead.
TESTIMONY OF T.J. HALSTEAD, ESQ., LEGISLATIVE ATTORNEY,
AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE,
WASHINGTON, DC
Mr. Halstead. Mr. Chairman, Members of the Subcommittee, I
am pleased to be here today to discuss the Subcommittee's
Administrative Law Process and Procedure Project.
I've been particularly involved in the consideration of
four issues that have arisen in the various symposia, hearings
and studies conducted under the project's banner, namely,
public participation in the rulemaking process, agency
adjudication, judicial review of agency rulemaking, and the
utility of a reconstituted ACUS in light of the regulatory
clearance and review functions of the Office of Management and
Budget. I have addressed those issues in detail in my prepared
statement, and I would like to focus today on efforts that have
been made to study court participation and judicial review over
the course of the project. I think they illustrate both the
time and effort that has gone into the project, as well as
factors that could be viewed as supporting the continuing need
for an entity such as ACUS.
The staff of your Subcommittee has spent a great deal of
time focusing on public participation issues ranging from the
impact of non-rule rules on public participation, to whether e-
rulemaking initiatives have, in fact, facilitated an increase
in public participation.
Professor Cary Coglianese convened a congressional
symposium for the Committee on the e-rulemaking issue last
December, and I think that type of collaborative effort has
been essential to furthering our understanding of these issues.
One interesting aspect of that symposium was the general
consensus that e-rulemaking initiatives have not, in fact,
generated the significant increase in participation that was
largely expected in light of the strides that have been made in
electronic technology and accessibility. The participants of
that symposium recommended further studies on the issue, and,
in particular, recommended expanding and institutionalizing
opportunities for collaboration, which is a role that ACUS has
served in the past and could arguably fulfill again.
Another significant study that Mort mentioned in his
testimony has been conducted by Professor William West at Texas
A&M, focusing on how agencies develop proposed rules, with a
particular emphasis on public participation and transparency in
the prenotice and comment phase of rule formulation. The study
relied in large part on an electronic questionnaire sent to
agency staff involved in the development of a large sample of
individual rules and on interviews with high-level agency
personnel with extensive experience in the rulemaking process.
One of the hopes of that study was that the questionnaire would
generate data that would enable a systematic comparison of
variations in agency practice during this phase of rulemaking,
but, as Mort mentioned, a low response rate to the survey
prevented that from happening.
The interview and survey data did enable Professor West and
his team to make some very interesting and important
observations relating to the outside participation of
individuals in the development of rules, but I think the low
response rate to that survey, again, could be taken to support
the position that there is an important role for ACUS.
Professor West himself has related his view that the survey was
hobbled by a general reluctance on the part of agencies to
share information, with apparently two agencies explicitly
ordering their staff not to respond to the survey.
Given the factors that Mort mentioned earlier regarding
ACUS's nonpartisan nature and organizational independence, it's
quite possible that a reconstituted ACUS would be able to
secure a greater response for these types of studies, which in
turn would further Congress' knowledge of such issues.
Another key study in the project is being conducted by
Professor Jody Freeman at Harvard Law School, focusing on
empirical analysis of judicial review of agency rulemaking. The
goal of the study is to find out what happens to agency rules
during review in the circuit courts, essentially to determine
how often rules are invalidated in whole or in part, and the
reasons why they are invalidated. Professor Freeman's study is
ongoing, but she discussed the methodology of the study and
presented her preliminary findings at our September 11, 2006,
symposium on Presidential, Congressional and Judicial Control
of Agency Rulemaking.
The study is ultimately expected to yield significant and
useful empirical data on the success of challenges to agency
rules in the appellate courts, but the limitations on this type
of study might be seen as providing further evidence of the
futility of a reconstituted ACUS. Professor Freeman herself
noted in her comments at that symposium that stand-alone
studies of this type do not give rise to a coherent and
comprehensive empirical strategy that fosters optimal analysis
of administrative process for the long term. Rather, it could
be argued that only an entity such as a reconstituted ACUS will
have the ability to assemble a group of experts with the aim of
formulating a cohesive methodology that will be supported by
ongoing and systematic analysis.
I hope my testimony has given you an idea of the scope of
work that's been done in these areas, as well as the potential
for a reconstituted ACUS to further improve our knowledge and
understanding of administrative law and process, and I look
forward to answering any questions that you might have. Thank
you.
Mr. Cannon. Thank you, Mr. Halstead.
[The prepared statement of Mr. Halstead follows:]
Prepared Statement of T.J. Halstead
Mr. Cannon. And again, thank you all for being here today.
Mr. Rosenberg, if I could just follow up on some of your
comments. You talked at some length about the Congressional
Review Act and about how it would work here in Congress. And
you fell a little short of talking about what we actually
talked about, I think, in this hearing, and that was if
Congress were to review every rule. In other words, if you set
aside the major rules as impractical to actually determine,
then what the effect of that would be that noncontroversial
rules would be viewed as minor, and if anybody had a problem
with a rule, they could raise that problem in the course of a
congressional oversight process.
That would mean that Congress would have to staff up
somewhat. The Majority or the Minority would shift a little bit
in how they would happen, but you would have an internal
process whereby notice and comment could be had, and that way
what was major would be determined not by the agency's action
or by some other standard which would be difficult to
implement, but rather by the reaction of the population. So
that in the case of a small business and the effect of a
regulation on a small business, small businesses could come
forward and say, hey, this regulation would be more difficult,
and you could do it in a more easier fashion.
I don't know if you recall that part of the conversation,
but it seems to me actually that the panel is agreeing that if
you give up the idea of making a distinction between major and
minor regulations, that you pretty soon end up in a point where
you just say maybe Congress should review all, and then those
that are substantial would become the point of focus. Do you
recall that? And what is your thinking on that today?
Mr. Rosenberg. What I was talking about today was a
relation of testimony at the March hearing. It has been my view
that there is a way to deal with all rules; that if, let's say,
a joint Committee was set up as a screening mechanism, or a
quorum-type vehicle was set up as a screening mechanism, which
then presented recommendations, an internal procedure could be
set up to screen out those rules that might be deemed minor
rather than major, and that a deeming process that we talked
about at the last hearing, which was approved by current
Parliamentarian Sullivan and former Parliamentarian Charlie
Johnson, that these could be the mechanism for----
Mr. Cannon. Would you mind suspending for a moment here
while we have people leave? Thank you.
Please proceed.
Mr. Rosenberg. The difficulty with limiting congressional
review to major rules is just what you're saying: You're going
to be losing rules that have an impact. Right now a major rule
is defined by the Office of Management and Budget, and I don't
know that you want to continue to have the Office of Management
and Budget deciding what is a major rule, and therefore, these
are the only rules that will come before Congress. You could do
it verbally, with a sense of a $100 million impact, or a catch-
all kind of a thing where it has a major significance, impact
on--I did a nice thing here.
One of the constitutional problems is Congress itself can't
decide what to bring up, what would be a charter problem,
demanding that an agency bring up a particular rule. So you may
have a problem of all or nothing, and to have the kind of
effective congressional oversight, it would seem to me that all
rules, as they are now, should come before Congress. And you
would set up a procedure whereby there would be a screening
process that, let's say, after 30 days, if a particular rule is
not acted upon or a joint resolution of approval is not
followed against that particular rule, it then goes to a
calendar Wednesday when all the rules are being passed at that
particular point or approved.
Mr. Cannon. But the charter problem doesn't exist if all
rules come through, but directing a rule--Congress is not good
at directing, so you don't ultimately have a charter problem,
do you?
Mr. Rosenberg. Not when it's there, not with all the rules
covered. Then there can be a selection process and a deeming of
approval at that particular point. You could get rid of 99.98
percent of the rules every year, and you would be able to catch
the 60 or so major rules that come forward, if they're
necessary. Most of the major rules are not that controversial
either. So that you would have a process whereby the meaningful
threat is out there that Congress is looking, and that these
rules will have to come up, you know, in a way that, you know,
conforms with what they were supposed to be.
Mr. Cannon. Mr. Watt, would you allow me to do one more
question?
Mr. Watt. Sure.
Mr. Cannon. Dr. Copeland, when you talked about the blaming
process--I think you mentioned that, that was mentioned by one
of the witnesses here--that is, does Congress want to be blamed
for rules that it approves based upon agency action? It seems
to me that that's actually our job.
But secondly, having a process whereby you have a political
review means that if you don't have significant objection to a
rule, that the blame really goes to the people who have the
interest who didn't assert the interest at the time. So do you
think that the blaming--concern about blaming is something that
Members of Congress would want to avoid, or is it something
that we can deal with if we did some kind of a review of all
regulations and perhaps a vote on all regulations?
Mr. Copeland. I don't recall getting into the blaming
issue, but I can respond to your question a bit.
The issue of whether congressional accountability for
agency rules--it really gets back to the question of that the
agency rules are based on congressional action. But the problem
is more alluded to if Congress got in the business of approving
all rules. There is about 4,000 final rules issued every year,
and that would take up a significant amount of Congress' time.
So some process of weeding these things out is necessary in
order to avoid that overwhelming task.
The question then becomes how do you pick. And if you let
OMB and the agencies pick which ones are subject to
congressional review and would come up here. But technically
any rule, under the Congressional Review Act--and Mort, correct
me if I'm wrong--any rule can be challenged right now; there
can be a resolution of disapproval on any rule, and it doesn't
have to be one that an agency does a major rule report on or
that GAO does a major rule report on. So Congress can pick
which ones, and certainly the interest groups in Washington are
adept at pointing things out to Congress which ones they have a
problem with.
Mr. Rosenberg. The difficulty is it goes through a normal
process of legislation, and you know how difficult that is.
That's why expedited procedures assist in focusing and taking
action in a timely and effective way. I'm the one that brought
up the blaming----
Mr. Cannon. Oh, I'm sorry. You were quoting someone else,
but----
Mr. Rosenberg. I was quoting one of the participants on my
panel who was making a political point, you know, that you're
never going to get this because it puts too much
responsibility. It may be that Congress gets blamed for doing
things, and most often for not doing things; and here you're
adding a whole category of rules that they could have taken
care of, and somebody will hammer then. So therefore, let's
have a procedure that's less threatening to us, or to you guys.
Mr. Cannon. I would hope that you could do some sort of
expedited procedure and pass all bills, and the American people
actually want that, and they're beginning to see that. And the
blame thing is an initiating thing that we look at as
individuals. Institutionally I think that Congress ought to
have a greater role in the vast amount of law that gets created
under the direction of the law we pass, but at the behest of
the Administration.
Mr. Rosenberg. One of the ostensible reasons for the
passage of the Congressional Review Act was to place
responsibility and accountability on Congress in order to wipe
out the criticism that they nearly delegated vast amounts of
power out and never, you know----
Mr. Cannon. That lever hasn't worked as well--it might have
worked a little bit, but we don't have the data, and it hasn't
worked clearly as well as we had hoped. But you know that I'm a
fan of the idea of passing all.
Thank you, all. And I would like to recognize Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman.
And let me also join you in thanking the witnesses who have
devoted so much time to this project, and I think advanced it
to a point where hopefully it can be picked up and moved
forward.
Mr. Rosenberg, I just had one clarifying question because I
wasn't sure I understood what you were saying about ACUS being
reauthorized in the 108th Congress, but wasn't so critical that
it be funded. What was that point?
Mr. Rosenberg. Well, my meaning was simply that the process
that we're going through, the study process, the projects, the
symposia, were setting the groundwork. And we could set the
groundwork over a 2-year period, which we have done, but at
some point there would have to be an ACUS or something like
ACUS. There has to be something like ACUS to provide the kind
of objective, nonpartisan consideration and study of
sophisticated----
Mr. Watt. Right. I just wanted to make sure that the record
was clear that all three of the witnesses, I assume, would
strongly advocate funding of ACUS, not just reauthorizing it;
or is there any disagreement about that?
Mr. Rosenberg. We don't advocate, but we would be pleased--
--
Mr. Watt. I mean, supportive and pleased, yes.
Mr. Rosenberg, let's just do it one by one so we'll have it
in the record, and there won't be any equivocation about it.
Mr. Rosenberg. I am supportive of a reactivated ACUS.
Mr. Copeland. Certainly it makes sense for these issues to
be explored further. I think the potential is there for
significant savings as a result of this because the people will
quibble about what the total dollar value is of all
regulations, but it's clearly in the hundreds of millions of
dollars. Just last year OMB approved 82, I believe it was,
economically significant rules, each of which is $100 million;
1 percent of that total is $82 million.
Mr. Halstead. It's very difficult to quantify how much
money ACUS saved over its existence. There are anecdotal
examples----
Mr. Watt. Let me be clear. I'm trying to get a straight
answer into the record that you support or don't support
appropriating money to fund ACUS.
Mr. Halstead. I think over the course of the project we've
identified several factors that could be looked at as very much
supporting the notion that a reconstituted, refunded ACUS would
have a beneficial effect for modern administrative government.
Mr. Watt. Having established that from all three of the
witnesses, let me also be clear. If you have some concept of
what the appropriate appropriation level would be to adequately
fund ACUS. And I guess I would say that against--obviously not
having ACUS or something similar to it has had substantial
economic impacts on various parts of our economy, businesses,
so forth and so on. I'm trying to kind of put in context for
the next Congress or future Congresses or Members of this
Committee or the Judiciary Committee what it would cost as
opposed to what it would save, I guess. And so what kind of
appropriation level would we be talking about to adequately
fund ACUS? Got a clue?
Mr. Halstead. Well, we----
Mr. Watt. Mr. Halstead.
Mr. Halstead. Using the prior reauthorization, it
authorized, if my memory serves correctly, a funding level for
fiscal years 2005 through 2007 of roughly $3 million a year. I
think it's 3.2 million for the 2007 authorization. And based on
the work that the Subcommittee did for that initial
reauthorization, the expectation is that that would be
somewhere in the neighborhood of what you would need for ACUS
to get up and running in an effective fashion.
When you look at the academic literature study in ACUS, it
has always been regarded as a very cost-effective organization
in relation to the return it provides. So somewhere around that
$3 million figure is maybe----
Mr. Watt. Three million?
Mr. Halstead. Three million, yes.
Mr. Watt. Okay. And that's the figure that you're
projecting that would be to get it up and running. What is the
annual figure, ballpark, that you would think it would be
appropriate to sustain it once it is up and running on an
annual basis?
Mr. Halstead. I would think it would be somewhere in that
neighborhood. Throughout the course of its existence, it was at
somewhat roughly that proportional level.
Mr. Watt. Okay. I just wanted all that to be in the record
because, I mean, you know, we're constantly doing cost/benefit
analyses. It seems to me that this is one of those occasions
that, while we're not being scientific about it, that it's
important for us to make it very clear to future Committees and
Congresses that we view ACUS as being a very cost-effective
agency. And $3 million, if you're saving substantial cost in
paperwork and administrative burden and getting substantial
benefits out of what ACUS does, is a minuscule amount of money
when juxtaposed against the benefit that we get out of it.
That's the point I'm trying to drive home, and I don't want
this hearing to end without having that unequivocally in the
record. If anybody wants to argue with it, I want that from the
witnesses, but--nobody seems to be arguing with it, so I'm
going to do like the Chairman does when he administers the
oath: Let the record show that everybody is nodding in
affirmative agreement with the statements that I just made.
And with that, I'm happy, and I'll yield back, Mr.
Chairman.
Mr. Cannon. Thank you.
Let me just add my view that ACUS is a remarkably cost-
effective tool for governing ourselves, and that while I
suspect that neither of us will be back on this Committee or
directing this Committee next cycle, we will both be advocates
for ACUS and for change. I am certainly concerned about who
does Chair this Committee, and I'm hoping that we get someone--
we've talked to several people who might end up doing that--who
would recognize the importance of what we would be doing with
this study and how we can translate that into law.
I'd like to ask unanimous consent to introduce into the
record this memorandum from the Congressional Research Service
from Mr. Rosenberg and Mr. Halstead, which its subject is the
comparison of the duties and objectives of the Office of
Management and Budget and the Administrative Conference of the
United States with respect to the assessments of executive
agency performance in the administrative process. I think that
that is a valuable addition, especially in conjunction with the
questions Mr. Watt asked.
[The information referred can be found in the Appendix.]
Mr. Cannon. I want to, again, thank the witnesses for being
here, and the hearing will now be adjourned.
[Whereupon, at 4:23 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Letter from the American Bar Association submitted by the Honorable
Chris Cannon, a Representative in Congress from the State of Utah, and
Chairman, Subcommittee on Commercial and Administrative Law
Memorandum from Morton Rosenberg, Specialist in American Public Law and
T.J. Halstead, Legislative Attorney, American Law Division,
Congressional Research Service, to the Subcommittee on Commercial and
Administrative Law