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64–854 PDF 2011

APA AT 65: IS REFORM NEEDED TO CREATE 

JOBS, PROMOTE ECONOMIC GROWTH, AND 

REDUCE COSTS? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS, COMMERCIAL 

AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

FEBRUARY 28, 2011 

Serial No. 112–17 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW

HOWARD COBLE, North Carolina, Chairman 

TREY GOWDY, South Carolina, Vice-Chairman 

ELTON GALLEGLY, California 

TRENT FRANKS, Arizona 

TOM REED, New York 

DENNIS ROSS, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

MELVIN L. WATT, North Carolina 

MIKE QUIGLEY, Illinois 

DANIEL FLORES, Chief Counsel 

JAMES PARK, Minority Counsel 

(III) 

C O N T E N T S 

FEBRUARY 28, 2011 

Page 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Commercial 

and Administrative Law ...................................................................................... 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 2 

WITNESSES 

Susan E. Dudley, Research Professor of Public Policy and Public Administration, Director, Regulatory Studies Center, The George Washington University 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 8 

Jeffrey A. Rosen, Esq., Kirkland & Ellis LLP 

Oral Testimony ..................................................................................................... 25 

Prepared Statement ............................................................................................. 27 

Peter L. Strauss, Betts Professor of Law, Columbia Law School 

Oral Testimony ..................................................................................................... 41 

Prepared Statement ............................................................................................. 43 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 4 

Material submitted by the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 59 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Post-Hearing Questions and Responses from Susan E. Dudley, Research Professor of Public Policy and Public Administration, Director, Regulatory 

Studies Center, The George Washington University ........................................ 71 

Post-Hearing Questions and Responses from Jeffrey A. Rosen, Esq., Kirkland 

& Ellis LLP ........................................................................................................... 78 

Post-Hearing Questions and Responses from Peter L. Strauss, Betts Professor 

of Law, Columbia Law School ............................................................................. 87 

(1) 

APA AT 65: IS REFORM NEEDED TO CREATE 

JOBS, PROMOTE ECONOMIC GROWTH, AND 

REDUCE COSTS? 

MONDAY, FEBRUARY 28, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, 

COMMERCIAL AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:10 p.m., in room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Gowdy, Ross, and Conyers. 

Staff Present: (Majority) Daniel Flores, Subcommittee Chief 

Counsel; Allison Rose, Professional Staff Member; Ashley Lewis, 

Clerk; (Minority) Carol Chodroff, Counsel; and James Park, Counsel. 

Mr. COBLE. The Subcommittee will come to order. 

One of our witnesses, Professor Strauss, encountered difficulty 

with a cancelled airline flight, and he requested that he be allowed 

to be interviewed telephonically, which we granted. That seems to 

be not an unreasonable request. I have been waylaid by cancelled 

airlines, as well. 

We are going to go ahead and start. We are on a short leash here 

today. But let me make my opening statement. 

The Administrative Procedure Act was passed 65 years ago in 

1946. It was one of the most significant statutes Congress ever 

passed because it set the ground rules for legislative rulemaking by 

an administrative agency. At the time, many understood the importance of the act in governing how agencies exercised legislative 

power delegated to them by Congress. 

There had been a long and hotly contested debate in the decades 

before the APA’s passage over whether or not and to what extent 

Congress could delegate its legislative power at all. It was imperative to set forth in the APA clear rules that stood a chance to constrain agency activity appropriately. I doubt, however, that many 

foresaw in 1946 the immense amount of legislative power that Congress would come to delegate to Federal agencies over the succeeding decades. 

For example, just during the last term of Congress, the Obama 

Care legislation and the Dodd-Frank financial reform bill granted 

unprecedented authority for agencies to issue regulations in sectors 

2 

equaling roughly one-third of our economy. The overall burden of 

regulation on the economy and uncertainty over what regulation is 

still to come over the next 2 years are often cited as reasons why 

our economy has not created enough jobs and growth since the 

events of 2008. 

Since the APA’s passage, concern has risen not only over the 

breadth of Congress’ delegation of power to the agencies but also 

whether the APA is still up to the task of constraining how the 

agencies carry out those delegations. 

There has long been concern that the APA’s hallmark ‘‘noticeand-comment’’ procedures for informal rulemaking too often are 

hollow because agencies have reached preordained conclusions, in 

many instances, in discussions with interest groups before the public even receives a notice of the proposed rule. 

After several decades of Presidential initiative, a growing number of experts and decision-makers believe it is time for Congress 

to incorporate into statute sound cost-benefit analysis principles 

that Administrations of both parties have embraced. 

Many now question whether Federal agencies’ clearly exclusive 

use of notice-and-comment rulemaking, rather than formal rulemaking hearings, adequately tests the facts and premises on which 

regulations are based. The Environmental Protection Agency’s recent finding that carbon dioxide endangers public health and welfare—in the face of worldwide controversy over the science and 

data at issue—is a textbook example. 

Similarly, there is concern over whether the combination of the 

APA’s ‘‘arbitrary or capricious’’ standard and developments in judicial deference provide a system of judicial review that is strong 

enough to correct agency overreach and error adequately. 

During the 108th and 109th Congresses, the Subcommittee on 

Commercial and Administrative Law explored in depth whether 

the APA and other administrative law statutes should be modernized for the 21st century. During the 110th and 111th Congresses, 

these efforts were put on hold, however. As the APA approaches its 

65th anniversary and as the wave of new regulation under the 

Obama administration breaks with full strength over our economy, 

it is high time to renew our inquiry into whether the APA should 

be reformed. 

I look forward to hearing about potential reforms from our witnesses and reserve the balance of my time. 

I am now pleased to recognize the distinguished gentleman from 

Michigan, the former Chairman of this Judiciary Committee, Mr. 

Conyers. 

And, Mr. Conyers, you may know this already. One of our witnesses, Mr. Strauss, became a victim of a cancelled airline, and he 

has requested permission that we interview him telephonically. 

And I think that is a reasonable permission, and we have requested that. So he will be—we will have him telephonically. I 

think everything has been honed in. 

But I now recognize the distinguished gentleman from Michigan. 

Mr. CONYERS. Thank you, Chairman Howard Coble. I am very 

happy to be with you again and with our witnesses, particularly 

Professor Dudley. 

3 

Mr. Chairman, this is the third time in a little over a month that 

our Subcommittee will consider the state of the Nation’s regulatory 

system. I have been informed by staff that there isn’t even legislation in on this subject yet. And the Judiciary Committee seems to 

be spending an extraordinary amount of time going over these matters, which I suppose for some it is appropriate because that is 

what some of you like to do. 

Now, there were bills on the first two subjects of regulatory regulation, but there isn’t a bill on the one that we are holding now. 

And you will recall last month, on the 24th day of that month, that 

we had a hearing on the REINS Act, which was the title, the acronym for ‘‘promoting jobs and expanding freedom by reducing needless regulations.’’ 

Now, the proponents of the REINS Act raised concerns about the 

financial cost imposed by regulations. And they cite eyebrow-raising figures that are troubling, especially in our current economic 

climate. What you will hear from at least one witness today, however, is that sources of these numbers are not impartial parties. 

You will also hear what I think is of the utmost importance: A 

discussion solely of the cost of Federal regulation fails to paint the 

whole picture. In other words, merely holding repetitive hearings 

about the cost of Federal regulation misses the point. We must assess both the cost and the benefits of Federal regulation. Hasn’t 

anyone on this Committee, Subcommittee, besides myself, realized 

that the benefits must be calculated as well? 

The Office of Management and Budget, in both the current Administration and in the previous Bush administration, has found 

that the benefits greatly exceed the costs of major Federal regulations. For example, the regulations promulgated over the 10-year 

period between 1998 through 2008 are estimated to have cost between $51 billion and $60 billion. Notably, the benefits associated 

with these very same rules are estimated to be between $126 billion to $663 billion—more than 10 times their cost. 

The former administrator of OIRA, Sally Katzen, under the Clinton administration, testified that OMB’s report to Congress doesn’t 

include data on benefits, and the numbers are striking, according 

to OMB. 

In addition, only this month, on the 10th of February, we had a 

hearing on H.R. 527, the ‘‘Regulatory Flexibility Improvement 

Act—Unleashing Small Business to Create Jobs.’’ That was its 

title. And our Federal agencies are charged with promulgating regulations that impact virtually every aspect of our lives, including 

the air we breathe, the water we drink, the food we eat, the cars 

we drive, and the play toys we give our children. And so I would 

like to know if the Chairman has any other future hearings on regulatory issues, because I have a few subjects I would like to submit 

to my distinguished Chairman. 

And I thank you for the additional time, and I yield back to the 

Chair. 

Mr. COBLE. I thank the gentleman. I will say to the gentleman 

from Michigan, I am not the high sheriff, so I don’t initiate much 

of it. 

4 

Good to have all of you—good to have the gentleman from South 

Carolina, the distinguished gentleman, Mr. Trey Gowdy. Good to 

have you with us, Mr. Gowdy. 

All statements will be made part of the record. 


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Mr. COBLE. We are pleased today to have three outstanding witnesses, one in absentia: Ms. Susan Dudley, who is research professor of public policy and public administration, director of Regulatory Studies Center at the George Washington University; Mr. 

Jeffrey A. Rosen, Esquire, who is with Kirkland & Ellis LLP; and 

Professor Peter L. Strauss—Professor, can you hear me? 

Mr. STRAUSS. Yes, I can. 


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Mr. COBLE. Professor, it is real good to have you with us, albeit 

in absentia. You became the victim of an airline delay, I am told. 

And we are pleased to be able to examine you telephonically. It is 

good to have you with us, sir. 

Mr. STRAUSS. Thanks so much. 

Mr. COBLE. And Professor Strauss, by the way, is the Betts Professor of Law at the Columbia School of Law. 

Ms. Dudley and Mr. Rosen, we try to impose the 5-minute rule 

around here. And we impose it against ourselves, as well. So if you 

can keep your questions terse, we would appreciate that. 

And when the amber light appears before you on the panel, that 

is your warning that the ice on which you are skating is getting 

thin. You will have 1 minute to go. When the red light appears, 

that is your signal to wrap up, if you could. 

So, Ms. Dudley, why don’t you start us off? 

TESTIMONY OF SUSAN E. DUDLEY, RESEARCH PROFESSOR OF 

PUBLIC POLICY AND PUBLIC ADMINISTRATION, DIRECTOR, 

REGULATORY STUDIES CENTER, THE GEORGE WASHINGTON 

UNIVERSITY 

Ms. DUDLEY. Thank you, Mr. Chairman and Members of the 

Subcommittee. As you said, I am Susan Dudley, director of the 

George Washington University—— 

Mr. COBLE. Ms. Dudley, pull that mike a little closer to you. 

Ms. DUDLEY. There. I will just repeat that I am director of the 

George Washington University Regulatory Studies Center and research professor of public policy at GW. 

From April 2007 to January 2009, I oversaw the executive 

branch regulations of the Federal Government as administrator of 

the Office of Information and Regulatory Affairs, but the views I 

express here are my own. 

In my 5 minutes, I would like briefly to review some regulatory 

history and offer some general thoughts on reform that I divide 

into two categories: procedural and decisional. 

The Administrative Procedure Act emerged in 1946 as a result 

of concerns about the growing fourth branch of government. It reflected a compromise between a respect for the separation of powers implicit in the Constitution and the perceived need for bureaucratic expertise in developing administrative laws. 

The APA is arguably one of the most important pieces of legislation ever enacted. It has remained largely unchanged for 65 years 

despite significant transformation in the organization and scope of 

government regulatory agencies. 

The 1970’s, in particular, witnessed a dramatic shift in regulation. On the one hand, we saw a decline in the traditional economic 

regulation that was at issue when the APA was enacted, which 

controlled private-sector prices, entry, and exit. Scholars at the 

time persuasively showed that economic regulation tended to keep 

prices higher than necessary, to the benefit of regulated industries 

and at the expense of consumers. This led to the bipartisan movement to deregulate such industries as airlines and trucking and 

abolish regulatory agencies such as the Civil Aeronautics Board 

and the Interstate Commerce Commission. 

7 

On the other hand, a new form of social regulation aimed at addressing environmental, health, and safety concerns was emerging, 

administered by newly formed agencies such as EPA, OSHA, 

NHTSA, and the CPSC. Concerns over the burden of these new 

regulations led President Carter to expand on procedures begun by 

Presidents Nixon and Ford for analyzing the impact of new regulations and minimizing their burdens. 

Though Congress has passed legislation aimed at ensuring costeffective regulatory outcomes, these efforts have been driven largely by the executive branch. Every modern President has continued 

and expanded the procedural and analytical requirements that 

began in the 1970’s. 

Despite these requirements for regulatory impact analysis, the 

growth in new regulations continues, and with it, concerns that we 

have reached a point of diminishing returns. The executive and legislative requirements for analysis of new regulations appear to 

have been inadequate to counter the powerful motivations in favor 

of regulation. 

Politicians and policy officials face strong incentives to do something, and passing legislation and issuing regulation demonstrates 

action. Requirements to evaluate the outcomes of those actions— 

the benefits, costs, and unintended consequences—tend to take a 

back seat. 

I appreciate this Committee’s interest in regulatory reform and 

welcome opportunities to discuss changes to both administrative 

procedures and decision rules that might alter these incentives. 

There is abundant scholarship available to the Committee, including the repository of recommendations made over the years by the 

Administrative Conference of the United States, which recently reconvened. 

Unlike the scholarship regarding the traditional forms of regulation in the 1970’s, the policy literature today does not uniformly 

support deregulation, but, rather, examines the incentives provided 

by the different forms of regulation and the resulting benefits and 

costs to society. 

In the category of procedural reforms, the Committee might consider amending the APA to expand the use of formal rulemaking 

procedures, apply the ‘‘substantial evidence’’ test for judicial review, or provide for judicial review of data and analysis relied on 

in rulemakings. Applied to the most significant regulations, these 

process changes could improve the empirical accuracy of factual determinations and the rigor and transparency of agencies’ supporting analysis. 

The Committee may be able to improve upon the decisional criteria by which regulatory alternatives are evaluated by codifying 

the decision requirements currently embodied in Executive orders 

issued by Presidents Clinton and Obama. The main advantages of 

creating a statutory obligation for meeting these regulatory impact 

analysis standards would be to: one, apply them to independent 

agencies; and, two, make compliance with them judicially reviewable. 

Congress will also need to decide whether these crosscutting 

decisional criteria would supercede or be subordinate to the decision criteria expressed in individual statutes. 

8 

In closing, I am delighted that this Subcommittee is interested 

in evaluating and improving the procedures by which the U.S. Government developments and evaluates regulatory policy. And I look 

forward to further discussion. 

[The prepared statement of Ms. Dudley follows:] 


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Mr. COBLE. Thank you, Professor Dudley. And you ought to be 

commended; you beat the illuminated red light, putting pressure on 

Mr. Rosen. 

Mr. Rosen, good to have you with us. 


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TESTIMONY OF JEFFREY A. ROSEN, ESQ., 

KIRKLAND & ELLIS LLP 

Mr. ROSEN. Thank you, sir. Chairman Coble and Members of the 

Subcommittee, thank you for inviting me—— 

Mr. COBLE. Mr. Rosen, pull that mike a little closer, if you will. 

Mr. ROSEN. That would help, wouldn’t it? 

I was saying, thank you for inviting me to address today’s important topic. My name is Jeff Rosen, and I am currently a partner 

at Kirkland & Ellis LLP. I also serve as a member of the governing 

council of the American Bar Association’s Administrative Law Section and as co-chair of its rulemaking committee. 

I have previously served as the general counsel of the U.S. Department of Transportation and as general counsel and senior policy advisor at the Office of Management and Budget. But the views 

and observations that I am offering today are entirely my own. 

Now, it is generally recognized that Federal Government regulations touch upon virtually every sector of our economy. But the 

enormous impact of such regulations and the regulatory process on 

our national economy is not always well understood. Sometimes the 

costs associated with regulations issued by Federal agencies actually exceed the annual budgets of the agencies that produce them. 

So the rulemaking authority can be as significant as Federal 

spending. 

In the last 2 years alone, Federal agencies issued more than 125 final regulations that involve more than $100 million each, and 

sometimes billions of dollars. And the people and organizations 

who bear the cost of regulation are, themselves, wide-ranging, such 

as universities, hospitals, local governments, and businesses both 

large and small, among others. So it is highly appropriate that you 

focus on what can be done to improve both the regulatory process 

and the rules that are promulgated. 

As you know, this year marks the 65th anniversary of the passage of the Administrative Procedure Act, a statute which has 

never been significantly amended or modernized. Indeed, it has 

now been more than a decade since enactment of any significant 

legislative improvement to administrative law, dating back to the 

year 2000 when the Information Quality Act was passed. 

But experience over both a long period of time and over the last 

decade points to opportunities for improvement. Many of these are 

items that represent best practices employed by Presidents of both 

parties. Indeed, a number of them were reiterated by President 

Obama as recently as last month when he issued Executive Order 

13563, titled ‘‘Improving Regulation and Regulatory Review.’’ 

The Executive orders about regulation that were issued by President Reagan, President Clinton, President Bush, and President 

Obama all contain elements that are worthy of legislative codification. 

In my prepared statement, which you have, I tried to address a 

wide range of potential improvements, but in our limited time 

today I would like to focus on two issues. 

The first is judicial review, which has always been a crucial aspect of the APA because it is a check and balance on the use of 

the authority delegated by Congress, itself, to agencies that provide 

strong incentives for agencies to get things right. 

26 

There is a need to clarify when judicial review is available and, 

perhaps, when it is not. In particular, I would like to suggest it 

would be beneficial to clarify that judicial review is available to ensure compliance with the Information Quality Act and to expand 

judicial review applicable to compliance with the Unfunded Mandates Reform Act. 

In addition, at least with regard to major, economically significant regulations, it would have a positive effect to enable judicial 

review for the aspects of regulation that I suggest ought to be codified from existing Executive orders and executive-branch requirements, such as the rulemaking criteria. 

And that takes me to the second improvement upon which I 

would like to focus, and that is expanding the occasions on which 

rules that involve complex empirical and scientific issues and that 

have a large impact on the economy are required to be conducted 

on the record. 

When the APA was enacted 65 years ago, it was expected that 

some rulemakings would employ formal and hybrid rulemaking 

procedures. And sometimes they did. But over time, those have become less common, even though they are superior for resolving contested factual and empirical issues. Again, at least for certain kinds 

of major rules, Congress ought to consider requiring that rulemaking be conducted on the record and based only on the record. 

In conclusion, I can’t imagine there is anyone who thinks there 

are no improvements possible to our administrative law and regulatory processes. I hope this Subcommittee will pursue a range of 

improvements that will make government agencies work better, 

while enabling job growth and economic growth for our country. 

Thank you very much, and I would be happy to answer questions 

at the appropriate time. 

[The prepared statement of Mr. Rosen follows:] 

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Mr. COBLE. Thank you, Mr. Rosen. 

Professor Strauss, can you hear me? 

Mr. STRAUSS. Yes, I can. 

Mr. COBLE. Professor, you are recognized for 5 minutes. 


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TESTIMONY OF PETER L. STRAUSS, 

BETTS PROFESSOR OF LAW, COLUMBIA LAW SCHOOL 

[Mr. Strauss’ testimony and answers were delivered via telephone.] 

Mr. STRAUSS. Thanks so much. I don’t have a red light, but I 

hope to stay within your constraints. 

Chairman Coble, Ranking Member Cohen, and Members of the 

Subcommittee, thanks so much for inviting me to testify today. I 

am really sorry that the weather has kept me from physical presence, and appreciate your willingness to hear me this way. 

I am speaking just on my own and want to express some 

thoughts I hope your Committee will find helpful to its important 

work. June 11 will be the 65th birthday of the APA, an appropriate 

time for reassessment. And I agree with so much of the thrust of 

what has already been said to you, if not to all the details. 

I am going to speak only to rulemaking, as the other witnesses 

have, hoping you will agree that some, though not all, rulemaking 

is beneficial, either because it fulfills basic human needs or because 

it creates jobs, promotes growth, and reduces costs. The issue is 

finding procedures that permit effective sifting of the wheat from 

the chaff. 

Over 30 years ago, reacting to the Supreme Court’s holding in 

the Vermont Yankee Nuclear Power case that only Congress or 

agencies could elaborate Section 553 simple procedures, then-Professor Antonin Scalia called for a revision of its one-size-fits-all nature. I might add that I was general counsel of the NRC at the 

time and had the opportunity to see the ways in which the rights 

to cross-examine could be used to obstruct important proceedings. 

And I trust that is one consideration the Committee will have in 

view. 

Since that time, both the courts and our Presidents, Republican 

and Democrat, have added complexities that are described in the 

literature as ‘‘ossification.’’ But the varying pattern they have created lacks the stability and sense of a thoughtful legislative solution, makes government inefficient in doing what it should be 

doing, and invites evasion. 

Quite recently, D.C. Circuit Judge Brett Kavanaugh wrote that, 

‘‘These decisions have gradually transformed rulemaking, whether 

regulatory or deregulatory, from the simple and speedy practice 

contemplated by the APA into a laborious, seemingly never-ending 

process. The judicially created obstacle course can hinder executivebranch agencies from rapidly and effectively responding to changing or emerging issues within their authority, such as consumer access to broadband, or effectuating policy or philosophical changes 

in the executive’s approach to the subject matter at hand. 

‘‘This trend,’’ Judge Kavanaugh continued, ‘‘has not been good as 

a jurisprudential matter and continues to have significant practical 

consequences for the operation of the Federal Government and 

those affected by Federal regulation and deregulation.’’ 

In 2006, this Committee produced its thoughtful and thorough bipartisan interim report considering the prospects for rulemaking 

improvement. My written testimony explores a few settings where 

congressional rationalization could be helpful that I would be 

42 

happy to expand on in Q and A. Let me for the moment just tell 

you what they are. 

First, the notice requirements of Section 553 should make explicit that giving effective rulemaking notice requires agencies to 

expose the technical data on which they might rely. 

The influential 1973 opinion in Portland Cement Association v. 

Ruckelshaus said it isn’t consonant with the purpose of a rulemaking proceeding to promulgate rules on the basis of inadequate 

data or on data that in critical degree is known only to the agency. 

And I think virtually the whole of the academic community agrees 

with this. But as Judge Kavanaugh observed in his recent opinion, 

put bluntly, ‘‘the Portland Cement doctrine cannot be squared with 

the text of Section 553 of the APA.’’ 

Second, Congress should generalize the Clean Air Act’s welcome 

requirement to put in the rulemaking record all documents of relevance to the rulemaking proceeding, including, as the Administrative Conference long ago recommended, docketing oral communications of central relevance. 

Third, you might consider codifying in one statute the many requirements for impact analysis now in place, including those that 

are now elements of Executive Order 12866, to permit needed regulation to proceed efficiently. 

And shouldn’t Congress also bring the independent regulatory 

commissions under these mandates? Presidents haven’t done that, 

as I understand it, only because they fear the political costs to their 

relationship with you, with the Congress. Given the extraordinary 

range of rulemaking Dodd-Frank requires of independent commissions, Congress ought to welcome this change. 

And, finally, I think it is time to bring the pre-notice period within the APA. Often what occurs before a notice of proposed rulemaking, as, Mr. Chairman, you noted in your opening remarks, has 

been published, produces commitments that, in the words of President George H.W. Bush’s general counsel at the EPA, ‘‘convert notice-and-comment rulemaking into a form of Kabuki theater, a 

highly stylized process for displaying in a formal way the essence 

of something which in real life takes place in other venues.’’ 

Here I think Congress might be able to build on the biannual 

regulatory agenda and the annual regulatory plan, as well as the 

potentials offered by the Internet and regulations.gov. The information age, in fact, is fundamentally transforming the relationship between citizen and government. Sitting at home, I can now access 

in seconds government materials that I could have obtained two 

decades ago, if at all, only by hiring a specialist. 

As you consider the APA at 65, adapting it to these changes has 

an importance of the first order. 

Thank you again for the privilege of appearing before you today, 

and I will be happy to answer questions. 

[The prepared statement of Mr. Strauss follows:] 

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Mr. COBLE. Thank you, Professor Strauss. 

And we have been joined by the distinguished gentleman from 

Florida, Mr. Ross. Good to have you with us. 

We will now—Members of the Subcommittee will now examine 

the witnesses. And keep in mind, we apply the 5-minute rule to 

ourselves, as well. 

Professor Dudley, what are the most important potential ABA reforms on which you and your fellow witnesses agree? 

Ms. DUDLEY. Well, I would say we agree on a lot. I have been 

very interested in listening to the other witnesses’ testimony. 

Peter talked about greater transparency for technical information 

supporting regulations. I think that is very important, getting public comment on the technical information and making sure that is 

exposed to public comment. 

He talked about—I think all three of us have talked about codifying the regulatory impact analysis requirements in Executive orders, which I think is very important. 

And bringing independent agencies under that rubric, I agree 

wholeheartedly with Peter on that. And I think I will let Jeff 

tell—— 

Mr. COBLE. Thank you. 

Let me go to Professor Strauss. 

Professor Strauss, let me put the same question to you. What are 

the most important potential APA reforms on which you and your 

fellow witnesses agree? 

Mr. STRAUSS. I think Professor Dudley put it pretty well. 

As I said in my remarks, I can’t agree to the suggestion of expanding formal rulemaking. The history of that has been quite dismal. There is a piece in the literature remarking that an FDA formal rulemaking to determine the percentage of peanuts a substance has to contain to be labeled ‘‘peanut butter’’ took 9 years 

and 20 weeks of hearings, producing an 8,000-page hearing record 

to produce a 6-page opinion to justify a decision to require at least 

90 percent peanuts. 

What I saw at the NRC in that respect was the use of cross-examination by opponents of nuclear power simply to obstruct the licensing of nuclear power plants. 

Mr. COBLE. Thank you, Professor. 

Mr. Rosen, what differences of opinion between you and your fellow witnesses are most important? And what are the key issues we 

should consider to hopefully resolve those differences? 

Mr. ROSEN. Well, I think I would echo that there is more agreement than disagreement, that I think there were a number of 

items that Professor Strauss alluded to, and Professor Dudley, that 

I would agree with, as well. So there is a number of agreements. 

The only one that I have heard of, at least in the oral discussion, 

probably is that Professor Strauss and I have a different view 

about the on-the-record kind of formal rulemaking. Although, it 

may not be as large as it could be, in that I favor that for a very 

limited subset of truly major rules where there are empirical or scientific controversies that underlie the rules. 

With regard to the length of time, that is always a concern in 

rulemaking, but I would point out a couple of things. One, there 

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ment that have taken 15 years or more. And so, time is partly a 

function of management and how the activity is managed. Two, 

there are formal or hybrid rulemakings that have been conducted 

in a quite expeditious manner at OSHA and some other agencies 

where there are still statutory requirements to do that. And, third, 

I would just observe, for a small subset of cases it can be more important to get things right than to get them done quickly. 

And so, that is why there is probably a small difference, or I 

would characterize as small—Professor Strauss may have his own 

view—but at least there is a difference with regard to that issue. 

Mr. COBLE. I thank you, Mr. Rosen. 

And, finally, in an effort to beat the red light, let me conclude 

with Professor Dudley. 

Professor, what are some of the foremost recent examples of 

agency overreach or agency error that could have been prevented 

or corrected if these reforms had been in place? 

Ms. DUDLEY. I don’t have them on the tip of my tongue. I would 

expect that there are independent agency regulations that, had 

they been subject to the benefit-cost analysis, the regulatory impact 

analysis, that we would have had better outcomes. 

Mr. COBLE. Well, the record will be open for 5 days, so you all 

feel free to contribute forthwith. 

I yield back. The distinguished gentleman from Michigan is recognized for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Could I ask Mr. Rosen of his familiarity or knowledge of the 13 

amendments that were passed on February 19, since the two hearings that we have had, in which major regulatory laws or procedures were struck down in the House of Representatives? 

Mr. ROSEN. I am sorry, Mr. Conyers, I don’t know if I understood 

the question. Could I ask you to repeat it for me? And I will try 

to answer it as best I can. 

Mr. CONYERS. I will be happy to do that. 

In H.R. 1, which was voted on at about 4 a.m. in the morning 

and passed by a vote of 235 to 189, there were included 13 different 

amendments that hampered the implementation of existing regulations or of future regulations, particularly concerning environmental protection, the implementation of the health-care reform 

legislation, and other measures. 

Mr. ROSEN. H.R. 1, if I recall correctly, is the continuing resolution appropriations funding bill. And I am aware that there were 

a large number of amendments offered during the debate on that 

bill, some of which involved regulatory issues. My understanding is 

those grew out of concern about some of the very costly regulations 

issued in the last 2 years and beliefs and concerns that perhaps 

those were not well-conceived, carefully thought out. 

And I think that maybe is an illustration of why we are all of 

the view that some improvements to the regulatory process might 

ensure better regulation and avoid the need for congressional action to correct errors like that. 

Mr. CONYERS. Well, the question that I asked you, are you familiar with the regulatory amendments that you hope will improve the 

way that we go about doing business here today in the Congress 

and in the Federal Government? 

52 

Mr. ROSEN. Well, I think the answer to that is yes. 

Mr. CONYERS. Then you are familiar with the amendment—or 

are you familiar with Amendment No. 13, introduced by our colleague Thomas Cooley, that prohibits the use of funds from being 

used to implement, administer, or enforce the EPA’s rule entitled 

‘‘Water Quality Standards for the State of Florida’s Lakes and 

Flowing Waters’’? 

Mr. ROSEN. I am aware that such an amendment was offered. I 

am not well-versed in the details of that particular one. 

Mr. CONYERS. Well, are you—there were 13 in H.R. 1. Are you 

aware of any of them in particular? 

Mr. ROSEN. Am I aware of any other one in particular? 

Mr. CONYERS. Of any of them in particular. 

Mr. ROSEN. I was aware of a rider that dealt with the issue of 

EPA’s authority with regards to greenhouse gas regulation, which 

would be one of the most costly, if not the most costly, regulation 

in American history. I was aware of some other riders or amendments that were offered—— 

Mr. CONYERS. What about the health-care amendments offered 

by our distinguished Member of the Judiciary Committee, Steve 

King, in which we prohibited the use of funds to carry out the provisions of the Patient Protection and Affordable Care Act? 

Mr. ROSEN. I would say that I am not familiar with the details 

of it. I am aware, again, through really media accounts on that particular one. 

But, again, I think it highlights the point I was making, is that 

many Members of Congress feel that there have been some errors 

made in the regulatory process. And I think and hope that part of 

what this hearing is about is to improve that process and avoid 

those kind of errors. 

Mr. CONYERS. Well, if you are not familiar with them—and I am 

not going to ask Professor Dudley the same thing—maybe improvements are being made—that you might want to submit additional 

testimony for the record to demonstrate that improvements are 

being made in the direction that you would like to go. 

Mr. ROSEN. Well, I would certainly be happy to do that, but I 

think the bigger point is, when Members of Congress offer amendments, that is at another level of the regulatory process that fundamentally goes to the democratic process and the accountability 

of Congress as the people’s representatives, where, in addition to 

technical analysis, cost-benefit and other forms of technical analysis, it is, of course, important that Congress reflect the wishes of 

the voters. 

Mr. CONYERS. Would you be willing to give us your impression 

and whether you approve these or not in an additional statement 

that you would submit to the Committee? 

Mr. ROSEN. Whether I agree or disagree with some of the amendments to the bill? 

Mr. CONYERS. Well, yes, because these are only the amendments 

that deal with regulations. And that is why we are here. And if you 

don’t know about them, there may be improvements being made 

that you are unaware of that could affect the nature of your testimony before the Committee today. 

Mr. ROSEN. Well, I don’t think it would—— 

53 

Mr. COBLE. The gentleman’s time has expired. 

You may answer that question, Mr. Rosen. 

Mr. ROSEN. I don’t actually think it would affect my testimony, 

because my testimony goes to having sound procedures that are 

independent of one’s political views on any particular policy issue 

and go to a sound process and the use of good evidence and science 

and the like. 

I, like everybody, have views about particular amendments and 

particular proposals, and I am happy to share those when it is appropriate. But I don’t think it would change my view about the 

need to have a regulatory process and an approach to regulation 

that is sound and good for our economy. 

Mr. COBLE. The gentleman’s time has expired. 

The Chair recognizes the distinguished gentleman from South 

Carolina, Mr. Gowdy, for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. I want to thank you for 

presiding over this hearing. 

Last week, while we were on recess, I had the pleasure of visiting a chemical plant in Greenville, South Carolina. And I have to 

confess to you, with a background in law enforcement and not in 

administrative procedures, I was dumbstruck at the labyrinthine 

regulatory complex that that company had to negotiate. And I 

guess the example that stayed with me the most was a six-by-six 

concrete building that was visited, regulated, inspected by four different agencies. It is impossible to explain that to average folks. 

Mr. Rosen, Mr. Strauss mentioned some abuses in the formal 

rulemaking process. If you were emperor for the day, what would 

you do to assuage his fears of those abuses? 

Mr. ROSEN. I think two things. One is, I would limit it to those 

situations where there is benefit to be had by on-the-record procedures because there are empirical and scientific kinds of issues to 

be resolved. So I think his concern, in part, if I understand it, is 

that, were this done on too widespread a basis, it could have negative effects. And I would target it to where it could be most useful. 

And the second is, for those of you who have a past as trial lawyers or have some familiarity, judges all the time have to manage 

trials. And a trial can, as Professor Strauss, I think, fears, get out 

of control and go on too long and not be managed well. And it can 

be—alternatively, it can be managed very well, with a schedule and 

deadlines and cutoff periods and process. 

And I think part of what I would advocate, and perhaps would 

partly address what I understand Professor Strauss’ concern to be, 

is ensure that when hybrid or formal rulemaking procedures are 

used there are good management practices in place so that we don’t 

have a 9- or 10-year process. 

And I can tell you, during the Bush administration, OSHA did 

some hybrid rulemaking proceedings, and they didn’t take 9 years. 

They were much, much faster than that. 

Mr. GOWDY. Professor Dudley, Congress is going to be considering a piece of legislation that deals with lasers and aircraft. And 

I want you to imagine that you were empress for the day. I believe 

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ate those or, frankly, to do much of a cost-benefit analysis while 

you are considering them. 

If you were advising us or an executive-branch agency on something like shooting a laser at an airplane, what apparatus would 

you suggest for us? 

Ms. DUDLEY. I would suggest the procedures that have been in 

Executive order since the early 1980s, and reinforced in 1993 and 

reinforced last month by President Obama. And that is to first 

identify what the compelling need for the problem is, what is the 

best way to address that, look at the data available, what alternatives there are, and then look at the cost and the benefits—so 

it is not just cost, but benefits as well—and who would be affected, 

the distributional impact. 

So there is a series of steps that I think all of your witnesses 

agree one would go through to see what is the best way to approach that regulation. 

Mr. GOWDY. The REINS Act has a threshold of a $100 million 

impact. Is that threshold appropriate, too high? 

Ms. DUDLEY. That is the threshold that is used in Executive 

order for—OMB requires regulations that hit that level to have a 

more full regulatory impact analysis. I think that or a higher 

threshold might be appropriate for a REINS Act. That captures between 40 and 100 regulations a year, depending on how you count 

them. 

Mr. GOWDY. Thank you. 

Ms. DUDLEY. The $100 million threshold would. 

Mr. GOWDY. Mr. Strauss, I have maybe about 30 seconds left. 

Can you give me some examples of unwarranted or superfluous 

regulations or regulations that had, perhaps, a well-intended intent 

but wound up having unintended pernicious consequences? 

Mr. STRAUSS. No, but I want to put that in the context of not 

being able to do very much in the other direction either. Professor 

Dudley has been in a position to monitor those issues and did a remarkable job at it, as I believe Professor Sunstein, former Professor 

Sunstein is doing now. 

I am thoroughly in favor of the OIRA process. It has been around 

for a while. It is perhaps time for Congress to domesticate it. I am 

not in a position to make the kind of expert assessments that you 

are asking for on my own. 

Mr. GOWDY. Okay. 

Thank you, Mr. Chairman. 

Mr. COBLE. Thank you, Mr. Gowdy. 

The Chair recognizes the distinguished gentleman from Florida, 

Mr. Ross, for 5 minutes. 

Mr. ROSS. Thank you, Mr. Chairman. 

Getting back to what the distinguished gentleman, the Ranking 

Member, Mr. Conyers from Michigan, had inquired of you, Mr. 

Rosen, being from Florida, I am somewhat familiar with the numeric nutrient water standard criteria that is being pushed on 

Florida and Florida alone. And my concern for that, of course, is 

the economic impact that it has, the cost-benefit that it has in Florida. For example, it will cost 14,000 jobs if implemented, $1.1 billion financial impact. It will cost $281 million to $500 million— 

$511 million just to monitor. 

55 

And I guess my question is, as I read the history of the last 65 

years of the APA, standing—it seems to me that, at one time, parties had to have actual standing. And now it has been liberalized 

that anybody with a tangential interest can have standing to address either a rule—and I would like you to speak on that, Mr. 

Rosen, if you will, about standing and if you think we ought to 

maybe tighten up the standing requirements in order to participate 

in this process. 

Mr. ROSEN. Well, that is an interesting point because there is a 

balance to be struck between ensuring that judicial review can 

occur for those who have been aggrieved and allowing just anybody 

who wants to to come in and complain and what I would regard 

as misuse the courts. So there is a balance. 

In terms of the current state of the law, you know, the Supreme 

Court has set out those requirements. And I could see some benefit 

to having more statutory guidance—— 

Mr. ROSS. The Supreme Court set the parameters for standing, 

but did so without any direction from this body here. And I guess 

what I am getting at is that—— 

Mr. ROSEN. Pretty minimal, yeah. And I could see benefit to 

doing that. 

Mr. ROSS. For example, when I was in Florida, we had a mini 

APA that addressed regulations in the State of—State regulations. 

But we addressed to the standing issue, because at one point it was 

so liberalized that any citizen of the State of Florida could object 

and thereby shut down a project, shut down employment, you 

know, shut down the growth of our economy. So we went back and 

we codified that. 

And it seems to me that if we are talking about, you know, regulations strangling businesses, if we are talking about the regulatory process being open to everybody, even those that it does not 

affect, I think, wouldn’t you agree that we should address the issue 

of standing, as a legislative body? 

Mr. ROSEN. In general, yes, I would see benefit to Congress addressing that. The reason I pause is there are sometimes different 

tests for different kinds of parties. And just to use as an example, 

the Supreme Court in the Massachusetts v. EPA case broadened 

the availability of standing for States. And so, State attorney generals have, arguably, broader standing than some other participants. And you would have to think carefully about how to fix 

these things, because you might do something that still leaves huge 

loopholes and doesn’t address what your concern is. 

So, in a general way, I think I would agree with you. But in 

terms of getting down to exactly how you would draft the particulars, I think there would be a lot of work to be done. 

Mr. ROSS. Professor Dudley, do you have any comment on whether we need to address the standing aspect? 

Ms. DUDLEY. I won’t because I am not a lawyer, so I will punt 

to our lawyers. 

Mr. ROSS. Okay. 

And, Mr. Strauss, how about you? 

Mr. STRAUSS. Well, I think that one issue to think about is that 

rulemaking really is open to any interested person. And I would 

hope that the Congress would not change that. 

56 

I will also say that when I was at the Nuclear Regulatory Commission, I had a chance to observe the impact of having people 

come in from both sides of issues on the way the commissioners approached their business. James Landiswrote about the machinegun impact of hearing only from the regulated. From that perspective, it seems to me highly useful to have agencies looking over 

their shoulders in both directions. 

Mr. ROSS. Then, by way of example, when we look at what regulations were being promulgated by OSHA the 1st of this year that 

were fortunately withdrawn, dealing with the hearing protection 

and dealing with the MSDs, the musculoskeletal disorders, these 

were incredibly burdensome regulations that were being promulgated and ready for publication by OSHA but fortunately withdrawn. And it seems to me, then, that we are either eliminating 

a critical aspect of the regulatory rulemaking process, and that is 

that we are leaving out those that are being affected by it. 

And my concern is that—and I am out of time here, so I guess 

I will stop there. 

Mr. COBLE. You may finish your question. 

Mr. ROSS. Thank you. 

My concern is—and I will ask you, Mr. Rosen, because you have 

experience in this regard—is there anything we can do to make 

sure that those that are adversely impacted or impacted at all by 

these regulations have a say early on, so that we don’t get to where 

we did in these last two regulations where they were being promulgated and then suddenly withdrawn because they realized the absurdity of their impact? 

Mr. ROSEN. Yes. Two thoughts on that. 

One is, there could be expanded requirements for certain kinds 

of rules for pre-notice-and-comment process, for the use of 

ANPRMs or other kinds of pre-process, to ensure that there is 

greater opportunity for public participation and input, particularly 

if it could be done through the Internet or other current technologies. 

The second thing is, I do think that some of the concerns that 

you are expressing go to the ultimate rules that come out that 

seem to have problems. And, in some sense, if the principles of regulation can be improved—I mean, just to pick a couple out of President Obama’s Executive order, he says that agencies should tailor 

their regulations to impose the least burden on society and that 

they should identify and consider regulatory approaches that reduce burdens and maintain flexibility. 

If those principles are adhered to, I think some of the other process points you are concerned about, such as the standing and rights 

of aggrieved persons, will be mitigated. 

Mr. ROSS. Thank you. 

Mr. COBLE. The gentleman’s time has expired. 

Mr. Conyers has a question for Ms. Dudley. And, Mr. Gowdy, if 

you and Mr. Ross have another question, you will be recognized. 

Mr. Conyers is recognized for 5 minutes. 

Mr. CONYERS. Professor Dudley, you were formerly with 

Mercatus, and before that you were with a number of, well, people 

that were opposed to a lot of regulation and rules. 

57 

And I wanted to ask you, did you come out against airbags at 

one time in your career? 

Ms. DUDLEY. Let me just clarify. I was at the Mercatus Center 

at George Mason University. And before that I was a consultant, 

and before that I was in the government. So I don’t think it is a 

fair characterization to say that I was with people who were opposed to rules. 

So let me—— 

Mr. CONYERS. You didn’t work for any of them. All right. I 

am—— 

Ms. DUDLEY. I did work for the Mercatus Center, yes. I was 

there for a while, and I directed their regulatory studies program. 

Mr. CONYERS. All right. Well, the question—I stand corrected. 

Did you come out against airbags? 

Ms. DUDLEY. I filed a comment—I filed over 100 comments on 

Federal regulations, on proposed regulations. And in each of those, 

I applied the steps of analysis that—— 

Mr. CONYERS. Just answer yes or no, please. 

Ms. DUDLEY. It isn’t a yes-or-no answer. 

Mr. CONYERS. You mean you didn’t say—you didn’t oppose or you 

didn’t support? 

Ms. DUDLEY. I was critical of aspects of one airbag regulation 

that was issued many years ago, yes, because it was killing small 

adults and children riding in the front seat of a car. 

Mr. CONYERS. Do you still take the position that ground-level 

ozone is actually beneficial because it protects us from skin cancer? 

Ms. DUDLEY. That is a scientific fact. 

Mr. CONYERS. The answer is yes? 

Ms. DUDLEY. Yes. 

Mr. CONYERS. Okay. Thank you. 

Did you comment that the EPA should leave decisions regarding 

the sulfur content of gasoline to individual States? 

Ms. DUDLEY. I don’t recall. But I do believe—— 

Mr. CONYERS. I do. 

Ms. DUDLEY. I do believe in Federal—— 

Mr. CONYERS. I recall. Because I have—— 

Ms. DUDLEY [continuing]. Should be left to States. 

Mr. CONYERS. You can answer yes; it is okay. 

Ms. DUDLEY. I want to be factual. 

Mr. CONYERS. Oh, I see. 

Ms. DUDLEY. Although we didn’t—we aren’t under oath, are we? 

But I am honest by nature. 

Mr. CONYERS. Do you oppose regulations requiring—last question, Mr. Chairman. 

Do you oppose regulations requiring industry to provide information on toxic releases and chemical hazards? 

Ms. DUDLEY. I actually have written extensively on that topic, 

and it isn’t a simple answer. 

I think that the way that the information is provided is essential. 

It has to be good information that shares information on risks. People should be informed about risk. 

Mr. CONYERS. It sounds like a polite way of saying yes. 

Ms. DUDLEY. It is not. I am trying to be accurate. 

Mr. CONYERS. Thank you, Mr. Chairman, for your generosity. 

58 

Mr. COBLE. I thank you. 

And I have a minute remaining. Did you want to be heard further on your line of questioning, Ms. Dudley? Were you in the middle of an answer? 

Ms. DUDLEY. No, I think I am fine. Thank you, sir. 

Mr. COBLE. Very well. 

I want to thank all of our witnesses for their testimony. 

Mr. Ross, did you have another question? 

Mr. ROSS. No, sir, I do not. 

Mr. COBLE. I want to thank all of our witnesses for their testimony today. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond as promptly as they can, so that their answers may be made a part of the 

record. 

Mr. CONYERS. Mr. Chairman, may I ask unanimous consent to 

put into the record the February 26 New York Times article on 

‘‘Regulation Lax as Gas Wells’ Tainted Water Hits Rivers’’? 

Mr. COBLE. Without objection. 

Mr. CONYERS. Thank you. 

[The information referred to follows:] 

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Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

Mr. COBLE. With that, again, I thank the witnesses. 

And this hearing is adjourned. 

[Whereupon, at 4:08 p.m., the Subcommittee was adjourned.] 

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